An Introduction to Public Law by way of the Anisminic Case

Mark ElliottSt Catharines College

The Suez Crisis Strategic significance of Suez Canal

Nationalisationby Egyptian government

Military action by Israel, UK, France

Withdrawal under pressure from USA

The Anisminic case

British company owned mining property in Egypt Sequestrated by Egyptian authorities in 1956 Following withdrawal, Egyptian Government authorised sale to TEDO, an Egyptian organisation

Some money was paid to Anisminic But could it obtain further compensation?

The legislation

Foreign Compensation Act 1950 Established Foreign Compensation Commission Considered compensation claims

Commissions decision Anisminic ineligible because property sold to TEDO Rules precluded compensation if foreign successor in title

The ouster clause

Section 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 Anisminicwanted to challenge eligibility decision But the Act seemed to rule out any such possibility

Separation of powers

Law-making

Implementation

Adjudication

Legislature (e.g. UK Parliament) Democratically enacted laws

Executive (e.g. UK Government) Derives authority from legislation Subject to laws enacted by Parliament

Courts Independent of other two branches Responsible for upholding rule of law

Constitutional tension

Legislature

Executive

Courts

UK Parliament is sovereign Can make whatever laws it wants

Executive is subject to law But can Parliament give it legally (judicially) unlimited power?

Duty to interpret and enforce the law Duty to hold executive to the law But what if the law stops this? Can it?

Constitutional principles

Sovereignty of Parliament

Rule of law

Separation of powers

What the court did in Anisminic

What 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 law

Interpretation Constitutional interpretation Disapplication

Written constitutions

Written constitution

Law-making power

Constitution defines extentof law-making power

Constitution limits law-making power

Courts enforce limits by striking downunconstitutional legislation

Parliamentary sovereignty

Professor 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.

Implications All other constitutional principles subservient Interpretation is furthest court can go But 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-map Assumption that Parliament will exercise restraint Neither side wishes to precipitate constitutional crisis

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