BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

BENNION ON STATUTORY INTERPRETATION
Fifth Edition Updating Notes (Version 24, 25 Mar 2010)
Parliamentary Ombudsman under the Parliamentary Commissioner Act 1967 „judicial review
principles apart, their remedy is political, not juridical‟ (see [141]).
Pages 109-111 Relevant Index entry: jurisdiction:ouster of
In A v B [2009] EWCA Civ 24, [2009] 3 All ER 416, at [22] Laws LJ said:
„It is elementary that any attempt to oust altogether the High Court's supervisory jurisdiction
over public authorities is repugnant to the constitution. But statutory measures which confide
the jurisdiction to a judicial body of like standing and authority to that of the High Court, but
which operates subject to special procedures apt for the subject-matter in hand, may well be
constitutionally inoffensive.‟
For a provision not regarded as an ouster provision see Okandeji v Bow Street Magistrates
Court & Ors [2005] EWHC 2925 (Admin) at [16]. A court‟s jurisdiction cannot be ousted by
mere implication: A v B (Investigatory Powers Tribunal: jurisdiction) [2008] EWHC 1512
(Admin), [2008] 4 All ER 511, at [12]. As to ouster of jurisdiction see also the note above
regarding Code s 12 and the Aribisala case.
Pages 112-113 Relevant Index entry: advocate:lay
Note that the question whether a person has a right of audience is to be determined solely in
accordance with the Courts and Legal Services Act 1990 pt II: see s 27 of that Act. For a full
updating regarding use of a McKenzie friend see Re N (A Child) [2008] EWHC 2042 (Fam).
Pages 111-114 Relevant Index entry: inherent judicial powers:alteration of unperfected judgment
[New entry, not in fifth edition]
As to a judge‟s power to recall and alter an unperfected judgment see Paulin v Paulin and
another (Note) [2009] EWCA Civ 221, [2009] 3 All ER 88. See also page 114 footnote 1.
Pages 111-114 Relevant Index entry: inherent judicial powers:appeal, relating to [New entry, not in
fifth edition]
As to power to grant a stay of execution pending appeal see Admiral Taverns (Cygnet) Ltd v
Daniel and another [2008] EWCA Civ 1501, [2009] 4 All ER 71.
Pages 111-114 Relevant Index entry: practice:directions
In footnote 2 on page 112, delete second sentence. As to practice directions, rules of court and
similar matters see Example 45.2 and Bovale Ltd v Secretary of State for Communities and
Local Government and another [2009] EWCA Civ 171, [2009] 3 All ER 340.
Pages 118-121 Relevant Index entry: open court, principle of the:nature of
Munby J referred to „principles of open justice – transparency in the modern jargon‟: see Re N
(A Child) [2008] EWHC 2042 (Fam), at para. 20.
Section 20. Interpretation by adjudicating authorities
Pages 127-129 Relevant Index entry: discretion:judgment, distinguished from
The distinction was applied in R v Barker [2010] EWCA Crim 4 at [39] where Lord Judge LCJ
said:
„. . . although the distinction is a fine one, whenever the competency [of a witness] is
addressed, what is required is not the exercise of a discretion but the making of a judgment,
that is whether the witness fulfils the statutory criteria. In short, it is not open to the judge to
create or impose some additional but non-statutory criteria . . .‟
In R v Clarke [2007] EWCA Crim 2532 at [29] the President said the decision whether to grant
an adjournment „is usually described as [at] the discretion of the Judge, but in fact is a decision
which reflects his or her judgment on an overall balance of all the material as it stands before
him at the time . . .‟
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