sixth form conference slides 2015
DESCRIPTION
Slides accompanying Mark Elliott's talk on public law at the 2015 Cambridge Sixth Form Law ConferenceTRANSCRIPT
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An Introduction to Public Law by way of the Anisminic Case
Mark ElliottSt Catharines College
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The Suez Crisis Strategic significance of Suez Canal
Nationalisationby Egyptian government
Military action by Israel, UK, France
Withdrawal under pressure from USA
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The Anisminic case
British company owned mining property in Egypt Sequestrated by Egyptian authorities in 1956 Following withdrawal, Egyptian Government authorised sale to TEDO, an Egyptian organisation
Some money was paid to Anisminic But could it obtain further compensation?
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The legislation
Foreign Compensation Act 1950 Established Foreign Compensation Commission Considered compensation claims
Commissions decision Anisminic ineligible because property sold to TEDO Rules precluded compensation if foreign successor in title
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The ouster clause
Section 4(4)The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.
Implications Anisminicwanted to challenge eligibility decision But the Act seemed to rule out any such possibility
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Separation of powers
Law-making
Implementation
Adjudication
Legislature (e.g. UK Parliament) Democratically enacted laws
Executive (e.g. UK Government) Derives authority from legislation Subject to laws enacted by Parliament
Courts Independent of other two branches Responsible for upholding rule of law
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Constitutional tension
Legislature
Executive
Courts
UK Parliament is sovereign Can make whatever laws it wants
Executive is subject to law But can Parliament give it legally (judicially) unlimited power?
Duty to interpret and enforce the law Duty to hold executive to the law But what if the law stops this? Can it?
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Constitutional principles
Sovereignty of Parliament
Rule of law
Separation of powers
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What the court did in Anisminic
What the Act saidDeterminations shall not be called in question in any court of law
What the Act meantValid (i.e. lawful) determinations shall not be called in question in any court of law
Interpretation Constitutional interpretation Disapplication
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Written constitutions
Written constitution
Law-making power
Constitution defines extentof law-making power
Constitution limits law-making power
Courts enforce limits by striking downunconstitutional legislation
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Parliamentary sovereignty
Professor AV DiceyParliament has the right to make or unmake any law [N]o person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.
Implications All other constitutional principles subservient Interpretation is furthest court can go But how far, exactly, is that?
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What if?
Jackson v Attorney-General, Lord SteynIn exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Supreme Court may have to consider whether this is constitutional fundamental which even a sovereign Parliament cannot abolish.
What would happen if a court did this? No constitutional road-map Assumption that Parliament will exercise restraint Neither side wishes to precipitate constitutional crisis
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www.publiclawforeveryone.com @DrMarkElliott