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An Introduction to Public Law by way of the Anisminic CaseMark ElliottSt Catharines College1The Suez Crisis

Strategic significance of Suez CanalNationalisation by Egyptian governmentMilitary action by Israel, UK, FranceWithdrawal under pressure from USA

2The Anisminic caseBritish company owned mining property in EgyptSequestrated by Egyptian authorities in 1956Following withdrawal, Egyptian Government authorised sale to TEDO, an Egyptian organisationSome money was paid to Anisminic But could it obtain further compensation?

The legislationForeign Compensation Act 1950Established Foreign Compensation CommissionConsidered compensation claims

Commissions decisionAnisminic ineligible because property sold to TEDORules precluded compensation if foreign successor in title The ouster clauseSection 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 Anisminic wanted to challenge eligibility decisionBut the Act seemed to rule out any such possibilitySeparation of powersLaw-makingImplementationAdjudicationLegislature (e.g. UK Parliament)Democratically enacted lawsExecutive (e.g. UK Government)Derives authority from legislationSubject to laws enacted by ParliamentCourtsIndependent of other two branchesResponsible for upholding rule of lawConstitutional tensionLegislatureExecutiveCourtsUK Parliament is sovereign Can make whatever laws it wantsExecutive is subject to lawBut can Parliament give it legally (judicially) unlimited power? Duty to interpret and enforce the lawDuty to hold executive to the lawBut what if the law stops this? Can it?Constitutional principlesSovereignty of ParliamentRule of lawSeparation of powers8What the court did in AnisminicWhat 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 lawInterpretationConstitutional interpretationDisapplicationInterpretationConstitutional interpretationDisapplicationWritten constitutionsWritten constitutionLaw-making powerConstitution defines extent of law-making powerConstitution limits law-making powerCourts enforce limits by striking down unconstitutional legislationParliamentary sovereigntyProfessor 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.

ImplicationsAll other constitutional principles subservientInterpretation is furthest court can goBut how far, exactly, is that? 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-mapAssumption that Parliament will exercise restraintNeither side wishes to precipitate constitutional crisiswww.publiclawforeveryone.com@DrMarkElliott