Public Law - Sources of UK Constitution III - Case Law I (Common Law)
- Created by: Alasdair
- Created on: 12-11-20 20:20
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- Sources of UK Constitution III - Case Law I (Common Law)
- Actions of the State must have legal authority
- Established through common law actions taken by state officials (such as police officers) must have legal basis if they are to be lawful
- Links to principle of rule of law
- Entick v Carrington [1765] 19 St TR 1030
- Secretary of State issued general warrant for arrest and search of Entick
- Entick allegedly publishing seditious material
- Court found no legal authority enabling Secretary of State to issue such general warrants and any authority for lawful exercise of power by state had to be found 'in the [law] books. If it not to be found here, it is not law'.
- Case established
- principle state officials could not act in an arbitrary manner and exercise of power by state had to have clear legal authority.
- Law did not provide state officials with any form of exemption or 'get out' from legal accountability for their actions.
- Secretary of State issued general warrant for arrest and search of Entick
- Established through common law actions taken by state officials (such as police officers) must have legal basis if they are to be lawful
- Legal disputes should be resolved by judiciary
- Case of Prohibitions (Prohibitions del Roy) (1607) 12 Co Rep 63
- Early example of common law setting out constitutionally important principle
- Concerned dispute over land which King sought to settle by making ruling
- Court held monarch had no power to decide legal matters by way of arbitrary rulings
- Legal disputes should properly by resolved by Courts
- Lord Coke ruled
- King couldn't judge any case
- Court must deterine cases
- Another aspect of rule of law
- Case of Prohibitions (Prohibitions del Roy) (1607) 12 Co Rep 63
- Habeas corpus and individual liberty
- Remedy of habeas corpus
- individual who has been detained by state has right to have legality of detention tested before court
- developed originally through common law
- A and others v Secretary of State for the Home Department [2005] 2 AC 68
- Example of case law setting out principles of constitutional importance
- Belmarsh
- Provisions in Anti-terrorism, Crime and Security Act 2001 challenged
- Act permitted foreign nationals suspected of being involved in terrorist activities (but against whom there was insufficient evidence to bring criminal proceedings) to be detained indefinitely without trial.
- House of Lords held such detention was unlawful and breach of ECHR
- Remedy of habeas corpus
- Right to fair hearing
- Courts have repeatedly stressed importance of right as fundamental constitutional principle
- Important part of rule of law
- Also contained in Article 6 of ECHR
- Now forms part of UK Law following Human Rights Act 1998
- Parliamentary supremacy
- Common Law doctrine accepted by judiciary
- Edinburgh and Dalkeith Railway Co v Wauchope and Pickin v British Railways Board
- Developed and applied common law 'Enrolled Act' rule at centre of Parliamentary supremacy
- States once Act of Parliament has entered onto Parliamentary roll, courts will not question validity of Act or hold Act to be void.
- Developed and applied common law 'Enrolled Act' rule at centre of Parliamentary supremacy
- Actions of the State must have legal authority
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