An Introduction to Public Law

by way of the Anisminic Case

Mark Elliott
St Catharines College

The Suez Crisis

Strategic significance of
Suez Canal
Nationalisation by
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
Anisminic wanted to challenge eligibility decision
But the Act seemed to rule out any such possibility

Separation of powers
Law-making

Legislature (e.g. UK Parliament)

Democratically enacted laws
Executive (e.g. UK Government)

Implementation

Derives authority from legislation

Subject to laws enacted by Parliament
Courts

Adjudication

Independent of other two branches

Responsible for upholding rule of law

Constitutional tension
UK Parliament is sovereign
Can make whatever laws it wants

Legislature

Executive is subject to law

But can Parliament give it legally
(judicially) unlimited power?

Executive

Duty to interpret and enforce the law

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

Courts

Constitutional principles
Sovereignty of
Parliament

Rule of
law

Separation of
powers

What the court did in Anisminic

What the Act said
Determinations shall not
be called in question in
any court of law

Interpretation

What the Act meant

Valid (i.e. lawful)
determinations shall not
be called in question in
any court of law

Constitutional
interpretation

Disapplication

Written constitutions
Written
constitution

Law-making power

Constitution defines
extent of law-making
power
Constitution limits law-
making power
Courts enforce limits by
striking down
unconstitutional
legislation

Parliamentary sovereignty
Professor AV Dicey
Parliament 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 Steyn
In 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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@DrMarkElliott