BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569„. (R (On The Application of Bancoult) v Secretary of State For Foreign and Commonwealth Affairs [2008] UKHL 61, [2008] 3 WLR 955, per Lord Hoffmann at [60]). Section 412. Transposing of Community law Pages 1290-1293 Relevant Index entry: transposition of European Community law:UK transposing enactment, interpretation of „This may be another case in which the draftsman thought he could clarify the meaning of a directive but would have done better to leave its language alone‟: Spencer-Franks v Kellogg Brown and Root Ltd and others [2008] UKHL 46, [2009] 1 All ER 269, at [26]. For an error in transposing see Marks & Spencer plc v Revenue and Customs Commissioners [2009] UKHL 8,at [8]. Section 413. Effect of Community law on UK enactments Pages 1297-1300 Relevant Index entry: European Community Law:UK law, effect of, on See R (on the application of Irving) v Secretary of State for Transport [2008] EWHC 1200 (Admin), which involved a strained construction of the Road Traffic Act 1988 s 92 to comply with a directive which had not been transposed into UK law. Section 417. Remedies against Member States Pages 1308-1309 Relevant Index entry: European Community law:member states‟ laws A claim for Francovich damages against the government for failing to implement Community law is a claim in tort to which the Limitation Act 1980 s 2 applies: Spencer v Secretary of State for Work and Pensions [2008] EWCA Civ 750, [2009] 1 All ER 314, at [17], [46]. Part XXX. Human Rights Act 1998 Introduction to Part XXX Page 1312 Relevant Index entry: European Convention on Human Rights:proportionality As to proportionality see AS (Somalia) and another v Secretary of State for the Home Department [2009] UKHL 32, [2009] 4 All ER 711, at [18]. Section 419. Nature of the Convention rights Pages 1318 Relevant Index entry: European Convention on Human Rights:Art 13 See R (on the application of Etame) v Secretary of State for the Home Department and another [2008] EWHC 1140 (Admin), at [47]. Section 420. Duty to take account of Convention jurisprudence Pages 1320-1322 Relevant Index entry: Human Rights Act 1998: Convention jurisprudence, duty to take account of As to refusal by a UK court to take account of defective Convention jurisprudence see R. v Horncastle & Ors [2009] UKSC 14. www.francisbennion.com/5th-edn 64
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Section 421. Compatible construction rule Page 1325 Relevant Index entry: parliament:judges and „It is a fundamental principle of our constitutional structures that Parliament should not normally be subject to judicial scrutiny or supervision. The House of Commons is answerable to its collective conscience, and in the ultimate analysis, to the electorate.‟ (Corporate Officer of the House of Commons v The Information Commissioner & Ors [2008] EWHC 1084 (Admin), [2009] 3 All ER 403, at [2]). Section 422. Judicial declaration of incompatibility (primary legislation) Pages 1330-1333 Relevant Index entry: incompatibility, declaration of, under Human Rights Act 1998:primary legislation, in respect of For the quashing of a declaration of incompatibility relating to art 3 (torture) of the Convention see Secretary of State for the Home Department v Nasseri [2009] 1 All ER 116. For the making of a declaration of incompatibility in relation to the Care Standards Act 2000 s 82(4)(b) see R (on the application of Wright and others) v Secretary of State for Health and another [2009] UKHL 3, [2009] 2 All ER 129 (Court of Appeal‟s proposal to write in words under Human Rights Act Act 1998 s 3 held inappropriate). Lady Hale said at [38]: „It is not for us to attempt to rewrite the legislation‟. For the making of a declaration of incompatibility in relation to the Sexual Offences Act 2003 s 82(1) (Sex Offenders Register) see JF & Anor (on the application of R) v Secretary of State for the Home Department [2009] EWCA Civ 792. It was held to be disproportionate to require registration for life without review. Section 426. Ministers’ statements of compatibility regarding Bills Page 1334 Relevant Index entry: Human Rights Act 1998:compatibility, ministers‟ statements of In relation to Code s 426(1)(b) (reproducing the Human Rights Act 1998 s 19(1)(b)), see R (On The Application of Animal Defenders International v Secretary of State For Culture, Media and Sport [2008] 2 WLR 781, [2008] UKHL 15 para [13] (in relation to Bill for the Communications Act 2003, Minister made statement under s 19(1)(b)). Section 443. Article 5 of Convention (right to liberty and security) Pages 1350-1352 Relevant Index entry: European Convention on Human Rights:Art 5 (liberty and security) For a finding that the Criminal Justice Act 1991 s 35(1) contravenes art 5(4) and that a declaration of incompatibility should be made see R (on the application of Black) v Secretary of State for the Home Department [2008] EWCA Civ 359, [2008] 4 All ER 151. Section 444. Article 6 of Convention (right to a fair trial) Pages 1353-1358 Relevant Index entry: European Convention on Human Rights:Art 6 (fair trial) Art 6 does not require a right of appeal: R (on the application of Langley v Preston Crown Court [2008] EWHC, [2009] 3 All ER 1026 at [26]. Page 1356 Relevant Index entry: Human Rights Act 1998:civil rights, meaning of [New entry, not in fifth edition] See R (on the application of A) v London Borough of Croydon [2009] UKSC 8. www.francisbennion.com/5th-edn 65
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BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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