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Law and Lawyers: Supreme Court decisions: A trio of former Lords ...

by ObiterJ

The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice. 'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Updated 16th October .... The Supreme Court commenced the new Law term by handing down a number of very interesting decisions.  The cases are replete with material for practitioners, academics and law students.  Also, during this week, the President of the Supreme Court - Lord Phillips of Worth Matravers - announced that he will retire at the end of September 2012 - ( Solicitor's Journal )....

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Scope OF Judicial Review Part 2 | - Advertising Magazines

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SCOPE OF JUDICIAL REVIEW

Part 2

(PAPER PRESENTED TO THE THIRD COMMONWEALTH & EMPIRE LAW CONFERENCE HELD IN SYDNEY (AUSTRALIA) FROM 25TH AUGUST TO 1ST SEPTEMBER 1965 BY A.K.BROHI)

The position under the British Constitution is often summed up by the employment of a phrase which has acquired a well known connotation: In England, it is said, there is the `rule of law’. By that phrase is meant the idea that the existence or non‑existence of a justification to do anything by a public functionary is a matter that can be decided solely by appeal to some statute or some judicially decided principle. Even the existence of a necessity does not constitute any sufficient justification for resort to the exercise of a power or fulfilment of a duty which cannot, strictly speaking, be said to flow either from a statute or precedent. In the case of extreme urgency, how­ever, when the ordinary law of the land cannot function; there is the common law right in the public authority to repel force by force and to do all acts necessary to bring back order to prevail in the country and thus secure normal functioning of government machinery, but even these have to be protected by the eventual passing of Acts of Indemnity by the Parliament. The extent to which the private rights of individual are jealously guarded even in cases of necessity is well illustrated by the Burmah Oil Co.’s case (1964) 2 All. E R 348, in which retrospective legislation to overcome a finding that compensation was due to the Burmah Oil Company in respect of `denial’, damage is the subject of active debate . . . . . . On the day before the Japanese entered Rangoon, the company’s installations were destroyed on the orders of Lord Alexander. The Crown throughout took the view that no compensation was payable. The Company, however, instituted proceedings in the Scottish Courts (it is regis­tered in Scotland) and ulimately in the House of Lords the verdict of the trial Court in favour of the company was restored and that of the C. A. reversed. On April 13, 1965, a War Damage Bill was passed by the House of Commons was rejected in the Lord’s (acting in a legislative capacity). The Commons have thrown out the Lord’s amendment and ultimately the Bill is likely to become law, but the long battle in Courts and the controversy it bad evoked illustrate the vigour with which the rights of private citizens are guarded. Lord Devlin, writing in the Sunday Observer, May 16, 1965, has gone so far as to say: “If this Bill becomes law, it will shatter the simple belief that we in‑ Britain are blessed among nations in that we do not have to rely for our liberties upon the provisions of a written constitution since they are enshrined for ever in the hands of the governors as well as the governed.”

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