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Coughlan - Substantive legitimate expectations. Miss Coughlan promised that nursing home would be her home for life. Health authority later decided to close the home because it was "prohibitively expensive" and not "financially viable" which was creating problems with resource allocation elsewhere. Whereas Mardon house was purposefully built for its residences' needs, the new house would not be. Miss Coughlan applied for judicial review of the decision, holding that the Health authority had acted unlawfully in breaking the unequivocal promise of a home for life. Held that the actions constituted a violation and abuse of powers. The court considered three things; 1) Had the public body given significant weight to the implications of breaking the promise? 2) Did the party have a reasonable belief that they would be consulted before the decision was taken? (was breach procedurally fair) 3) Did the promise induce a legitimate expectation of substantive benefit to the party - would breach be "so grossly unfair that to take a new and different course will amount to an abuse of power"? Was there a sufficient overriding public interest to justify a departure from what was promised?
There were 3 main reasons for the conclusion that the decision was unlawful under the third category (to go back on the promise would be grossly unfair):
- The importance of what was promised to the claimant
- The fact that the promise was made to a select few individuals
- The consequences of upholding the promise were merely financial
The departure from previous conduct was therefore Not objectively justifiable.
Concerns with Coughlan judgment;
- It rejected basing the argument on wednesbury unreasonableness, because this would not be sufficient grounds to find the decision unlawful.
- Elliot contends that the case gives no new clear grounds for when such protection should be available, lack of legal certainty and lack of authority
- Elliot criticized the decision because it turned on substantive grounds rather than procedural ones, and therefore concerned the appropriateness of the decision, where judicial review should not be a merits based review - the court examined the circumstances and made a judgment on what was the fairest outcome
- Elliot called in an 'intrusive form of review' and unprincipled
- The decision largely intruded into executive discretion, and is an affront to executive autonomy
- Clayton argues that policy-based, rather than substantively based legitimate expectations, ought to be afforded protection because such a rule is a principled and consistent approach to good administration.
- Reasonableness (Wednesbury) competes with fairness (Coughlan)
- Courts appear to be attempting to tell executive how to exercise their discretion - contrary to separation of powers
- However, legitimate expectations is closely linked to the rule of law because it upholds accountability of executive decision making
Thoburn - Parliamentary Supremacy, status of constitutional significance cannot be impliedly repealed by Parliament - express words must be used. Constitutional statues are those which affect the legal relationship between citizens and the state. 1985 weights and measurements act had not impliedly repealed the European Communities Act 1972. "Ordinary statues may be impliedly repealed. Constitutional statues may not".
Entick v Carrington - Camden LJ: "If it is law it will be found in our books. If it is not to be found there, it is not law".
Ex. Parte Smith - gay personnel dischargd but policy not irrational, politics featuing too heavily?
Madzimbamuto case - it was held that whilst it may be considered unconstitutional for Parliament to do certain things, the positive aspect of Parliamentary sovereignty holds that the courts cannot consider any act of Parliament to be invalid, no matter its content.
Ellen Street Estates - Parliament can alter any act previously passed, but cannot entrench against future repeal
Factortame - Parliamentary sovereignty has been voluntarily transferred to the European Union, and EU law is supreme over domestic law. Implied repeal does not relate to Community law.
Jackson - The courts will treat with particular suspicion any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all scrutiny - Baroness Hale. CA held that there were limits to Parliamentary powers; Bills which attempt to prolong the life of Parliament beyond 5 years or inact constitutional reform may be open to challenge.
The HRA and statutes inconsistent with convention rights - Courts cannot strike down a law, they can merely make a section 4 declaration of incompatibility. It will be up to Parliament whether further action should be taken to remedy the situation. But all legislation must be read to be compatible with convention rights (s. 3(1))
Ghaidan v Godin-Mendoza - Section 3 HRA may require the court to read certain words beyond their face value meaning in order that the statute is compatible with the convention. Succession to tenancy; living as married couple was read to include same-sex couples. Otherwise the legislation would have been discriminatory and would have contravened section 8 HRA.
Re S and Re W - It was held by Lord Nicholls that a reading in line with S. 3 should not substantially depart from the original provisions or a fundamental feature of an act of Parliament
1911 / 1949 Acts - Remove the power of HL to veto a bill being passed through the House of Commons. This was limited in Jackson.
Parliament could attempt to entrench an act by : Using express words that the act could not be repealed except by express wording, or that special procedure was required to repeal it, or simply that there would be no repeal possible. eg. Bill of rights in Canada can only be repealed by express words. Signifies intention to enact constitutional change. eg. In USA a qualified majority of congress voters is required to alter the constitution. eg. for German constitution the first 20 articles can never be repealed by any form.
Vauxhall estates - No Parliamentary act can provide that future Parliaments cannot interefere.
Costa v ENEL - The UK has given sovereign rights to the EC and created a new body of law by which it is bound.
Belmarsh Case - A v SSHD was Human rights case to detain 9 men under Anti-terrorism act. Indefinite detention or deporation without trial, which only applied to non-nationals. Incompatible with the ECHR and HRA and therefore made a declaration of incompatability. Right to liberty was under threat - Parliament repealed the Anti-terrorism act and replaced it.
Alconbury Case - In judicial review the level of deference owed may differ according to the nature of argument and the body to be reviewed
Wednesbury - Under Lord Diplock's classification, a decision is irrational if it is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it." This standard is also known as Wednesbury unreasonableness, after the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, where it was first imposed.
Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision "makes sense". In many circumstances listed under "illegality", the decision may also be considered irrational.
European Law and supremacy of ParliamentEdit
Thoburn per Lord Laws: "EC law is said to have been entrenched, rather than merely incorporated"
Dicey on the Constitution - "The sovereignty of Parliament is the dominant characteristic of our political institutions"
Postitive aspect of Parliamentary sovereignty - Parliament has the power to make or unmake any law, and cannot be entrenched by any law
•David Blunkett MP ( when Home Secretary) •“… Judges now routinely use judicial review to rewrite the effects of a law that Parliament has passed.” •Professor John Griffith:“… My thesis is that judges in the United Kingdom cannot be politically neutral…..
•Jackson Case Lord Hope: •“ Our constitution is dominated by the sovereignty of Parliament. But parliamentary sovereignty is no longer , if ever it was absolute”.••… the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” activism vs deference