BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Page 198 Relevant Index entry: Act of Parliament:overriding effect of Rug analogy The Court of Appeal of New Zealand described this as putting the position „graphically‟ in Vector Limited & Anor v Transpower New Zealand Limited [1999] NZCA 167 at [53]. Pages 198-200 Relevant Index entry: common law:abolition of common law rules by Act An example of the abolition of common law rules by statute is the abolition of the common law offences of blasphemy and blasphemous libel by the Criminal Justice and Immigration Act 2008 ss 79, 149 and 153(2) and Sch 28: see FB‟s 2008 article at www.francisbennion.com/2008/021.htm. Section 33. Uniqueness of an Act Page 205 Relevant Index entry: Bill, parliamentary:legal status of As to preparatory acts by a government department in anticipation of the passing of a Bill see R (on the application of Shrewsbury and Atcham Borough Council and another) v Secretary of State for Communities and Local Government (Shropshire County Council, interested party) [2008] EWCA Civ 148, [2008] 3 All ER 548. Section 34. Whether an Act binds the Crown: the doctrine of Crown immunity Pages 207-208 Relevant Index entry: Crown:ambit of concept See R (on the application of Bapio Action Ltd & Anor) v Secretary of State for the Home Department & Anor [2008] UKHL 27. Section 38. Royal assent (signification) Page 218 Relevant Index entry: Royal Assent:refusal of As to refusal or delay regarding assent (including the procedure in other countries) see Stabroek News (Guyana) 30 December 2008, www.stabroeknews.com/features/lightly-spoken-words. Section 45. Settling of text of Act and promulgation Pages 226-227 Relevant Index entry: Queen’s Printer In 2007 HMSO was acquired by Williams Lea, which operates in the private sector. Section 48. Nature of a prerogative instrument Pages 237-240 Relevant Index entry: prerogative instrument:nature of Not all prerogative instruments are legislative in nature. Thus the immigration rules „are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights . . .‟: Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 3 All ER 1061, per Lord Hoffmann at [6]. „It is true that a prerogative Order in Council is primary legislation in the sense that the legislative power of the Crown is original and not subordinate. It is classified as primary legislation for the purposes of the Human Rights Act 1998: see paragraph (f)(i) of the definition in section 21(1). That means that it cannot be overridden by Convention rights . . . But the fact that such Orders in Council in certain important respects resemble Acts of Parliament does not mean that they share all their characteristics. The principle of the sovereignty of Parliament . . . is founded upon the unique authority Parliament derives from its representative character. An exercise of the prerogative lacks this quality; although it may be legislative in character, it is still an exercise of power by the executive alone. (R (On The Application of Bancoult) v www.francisbennion.com/5th-edn 26
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Secretary of State For Foreign and Commonwealth Affairs [2008] UKHL 61, [2008] 3 WLR 955, per Lord Hoffmann at [34]). A prerogative instrument may be made by a minister on his own authority, eg the Immigration Rules on which see Odelola v Secretary of State for the Home Department [2008] EWCA Civ 308 at[17]-[19]. As to Code s. 48 see also BW, Re Judicial Review [2007] NICA 44 at [28]. Controversy exists over whether there is a „third power‟ which, apart from legislation and the prerogative, authorises state action: see Shrewsbury and Atcham Borough Council and Anor v Secretary of State for Communities and Local Government and Anor [2008] EWCA Civ 148 at 22-27, 43-71, 72-77, 78-81; F A R Bennion, „“Never On The Cards”: Fighting For Two-Tier Local Government‟, 173 CL&J (31 Jan 2009) pp 72-75, www.francisbennion.com/2009/005.htm, at paras 29, 30. Page 238 Relevant Index entry: act of state:nature of On the „act of state‟ principle see R (on the application of Hilali) v City of Westminster Magistrates’ Court [2008] EWHC 2892 (Admin), [2009] 1 All ER 834, at [43]-[47]. For the rule that municipal courts lack jurisdiction to entertain an action which is founded on an act of state, or which seeks to enforce the penal, fiscal or other public law of a foreign state, see United States Securities and Exchange Commission v Manterfield [2009] EWCA Civ 27, [2009] 2 All ER1009. Page 238 Relevant Index entry: pardon:power to grant As to footnote 2 see R (on the application of Shields) v Secretary of State for Justice [2008] EWHC 3102 (Admin) , [2009] 3 All ER 265. Part III. The Instrument to be Interpreted: Subordinate Legislation Section 50. Nature of delegated legislation Page 244 Relevant Index entry: delegated legislation:Act, conflict with Henry LJ applied the passage headed Must not conflict with law in Hyde Park Residence Ltd v Secretary For Environment, Transport & Regions & Anor [2000] EWCA Civ 13 at [29]. Page 245 Relevant Index entry: delegated legislation:„as if in Act‟ (1) The first two sentences of the Comment on Code s 87 were followed in R (on the application of Secretary Of State For Home Department) v Burke [1998] EWHC Admin 913 at [4]. (2) The sentence referred to in footnote 5 on page 245 was acted on in R (on the application of Lightfoot) v Lord Chancellor [1998] EWHC Admin 827 (see [51]). Section 51. Parliamentary control of delegated legislation Pages 247-248 Relevant Index entry: legislation:primary and secondary [New entry, not in fifth edition] The words „since this has the effect of converting it into primary legislation‟ preceding Example 51.1 were cited to the ECtHR in Kafkaris v Cyprus [2008] ECHR 143 at para. 50. Section 58. Ultra vires delegated legislation Page 254 Relevant Index entry: ultra vires, doctrine of:delegated legislation, and The European Communities Act 1972 s 2(2) authorises the making of delegated legislation for the purpose of implementing any Community obligation of the United Kingdom etc. It would be ultra vires for such delegated legislation to go any wider than was required to implement the www.francisbennion.com/5th-edn 27
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BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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