2
Public Law (KL Campus)
2. Constitutional Conventions,
Convention (case study)
in
particular
the
Salisbury
Addison
Principal lecturer: Rabinder Singh
Public law lectures – Fridays 2-5pm (face to face classes & on line)
Tutorials: Ms Kirthina
3. The Rule of law – the modern version Lord Bingham’s core principle and 8
sub rules in 2006 and Dicey’s version in 1885 – a comparison. Is it
procedural or substantive? Has it been followed, when has there been
deviation by the executive?
Reference texts
(i) Public Law, Texts, Cases and Materials by Andrew Le Seur, Maurice Sunkin
& Murkens
(ii)
Constitutional and Administrative Law, by Hilare Barnet, 11th edition
(iii)
VLE;
(iv)
Manual – as a starting point
4. The Doctrine of Separation of powers, the three organs of government,
legislature, executive and judiciary compare with the USA’s system. Is the
separation absolute? What are the advantages of the UK system where
there is some overlap?
5. The royal prerogative – can it be exercised? Who exercises it most of the
time. Or it can be exercised can it be subject to judicial review? recent
responses by the Supreme Court
Brief History of UK – the genesis of the Constitution, the Church & the State,
Henry VIII, reformation, Protestantism and Church of England, the King as the
head of the Church, Constitutional monarchy, Abdication in 1936 by Edward VIII.
George VI followed by the reign of Queen Elizabeth II and relationship with the
executive, vestiges of monarch’s executive powers – the royal prerogative – is it
outdated?– R (On the Application of Miller) v Prime Minister [2019]
6. Parliamentary sovereignty, implications of Brexit – is it an absolute
concept or subject to control by Courts especially when it comes to uster
clauses? –the recent case of R (on the application of Privacy International)
v Investigatory Powers Tribunal [2019] 4 All ER 1 [2019] UKSC 22 SUPREME
COURT.
7. Central Government – the office of Prime Minister, Cabinet and Civil
Service
Chapters to be covered:
1. The British Constitution – ie the constitution of Great Britain & Northern
Ireland – made up of 4 ‘countries’ England, Wales, Scotland and Northern
Ireland.
8. Ministerial Responsibility
responsibility
– collective and individual ministerial
3
Chapter 2: Constitutional Conventions
9. Primary & Delegated Legislation
2.1.
What Are Conventions?
(i)
They are rules of practice applicable to the 3 organs of the State.
According to Sir Ivor Jennings in The Law and the Constitution:
“Constitutional conventions provide the flesh which clothe the dry bones
10.Human Rights and the Human Rights Act 1998 – the important provisions
sections 2, 3, 4, 6 and 8 HRA 1998 as well as the concept of
proportionality.
of the law; they make the legal constitution work; they keep in touch with
the growth of ideas.”
(ii)
Constitutional conventions form the most significant class of non-legal
constitutional rules. They are based on consent or acquiescence of those
11.Judicial Review of administrative action inclusive of exercise of royal
prerogative
whom they bind and not on any legal basis.
(iii)
Marshall and Moodie state conventions as: “rules of constitutional
behaviour which are considered to be binding by and upon those who
operate the Constitution but which are not enforced by the law
courts…nor by the presiding officers in the Houses of Parliament.”
12.State Security and Terrorism
(iv)
The Cabinet Manual description of UK constitution conventions in respect
of conventions relating to exercise of executive power, is that they are
13.The Judiciary
regarded as binding in practice but not in law.
2.2
Examples of Conventions
(i)
Acts of Parliament are technically enacted by the Queen in Parliament –
the Crown, Commons and Lords. Though the Queen has the legal right to
refuse to give the Royal assent to Bills passed by the House of Commons
and Lords, by convention, the Queen would assent to such Bills.
(ii)
The Queen will appoint as Prime Minister the leader of the political party
with the majority of seats in the House of Commons to form the
Government (though this convention is tempered when no party has an
overall majority as happened in 2010 after the general elections). Another
related convention here is that the Prime Minister should be a member of
the House of Commons (the last Prime Minister from the House of Lords
was Lord Salisbury).
2
(iii)
The government must maintain the confidence of the House of
3
(ix)
Commons. If a ‘vote of confidence’ on a matter central to government
Lords, the latter House should ultimately defer to the will of the elected
policy is lost, the government must resign. The Fixed Term Parliaments Act
House of Commons and in the event this convention is breached, the
2011 has brought about changes in this area and the Monarch is no
longer involved in the dissolution of Parliament.
(iv)
In cases of conflict between the House of Commons and the House of
provisions of the Parliamentary Act 1949 apply.
(x)
Parliaments and places the dissolution of Parliament on a statutory basis.
The Act provides for fixed days for parliamentary elections, ordinarily to be
(xi)
Judges shall not play an active part in political life. Further, members of
Parliament shall not criticise the judiciary.
held on the first Thursday in May every five years. The dissolution of
Parliament will occur automatically under the provisions of the Bill, thus
Parliament must be summoned to meet at least once a year. (to give
effect to the yearly Supply Bill)
The Fixed-Term Parliaments Act 2011 brought in fixed term five-year
(xii)
The opinion of the law officers of the Crown is confidential.
(xiii)
The Sovereign should act on the advice of her ministers, as tendered
removing the prerogative power of the Crown to dissolve Parliament.
(v)
The Act provides that the Prime Minister may vary the date of a general
through the PM (has this convention been watered down after Supreme
election by up to two months earlier or later than the scheduled election.
decision in of R (On the Application of Miller) v Prime Minister [2019]?)
The power would be exercisable by statutory instrument, subject to the
affirmative procedure, and is designed to cater for short-term crises which
require postponement.
(vi)
(xiv)
Civil servants must be politically neutral.
2.3
The binding nature of conventions and distinction from laws
(i)
If conventions are rules prescribing conduct, then they impose an
The Act provides for the holding of early parliamentary general elections.
obligation, though not legal, on those who are regulated by the rule. Thus
These would be triggered by a vote of no confidence unless the House,
if a person is under an obligation which is recognised by observers of the
within a period of 14 days, passes a motion expressing confidence in the
constitution and conduct of deviating from accepted conduct would be
government. An early election could also be triggered if at least two-thirds
said to be ‘unconstitutional’ rather than illegal.
of all MPs vote in favour of an early election. (this proviso in the Act was
invoked by The Prime Minister Theresa May when the early 9.6.2017
(ii)
Conventions differ from legal rules. According to Hilaire Barnett, sources of
elections were held and also by Boris Johnson in November 2019 which
law are "identifiable and certain" e.g. Acts of Parliament and case laws. A
led to elections being held on 12.12.2020).
legal rule will normally have a settled meaning as it may have been
subject to statutory interpretation earlier. The origins of conventions are by
(vii)
Parliament. (Ministerial Responsibility)
(viii)
large vague and may change with the passage of time.
Ministers of the Crown are individually and collectively responsible to
(iii)
Ministers must be members of either the House of Commons or the House
The change of a legal rule needs a legal process such as overruling or
legislation amending or revoking it, to change it. Correspondingly, it
of Lords.
would be more difficult to create, modify or repeal laws and they have
4
to go through a certain definite processes (e.g. primary laws would have
5
2.4
to go through the parliamentary process).
(iv)
According to Marshall and Moodie: The purpose of having conventions is
"to define the use of constitutional discretion ... non-legal rules regulating
In this respect conventions are more flexible. Conventions may be more
the way in which legal rules shall be applied". O'Hood & Phillips state:
easily adopted or dropped as no strict processes have to be abided by.
(v)
questioning its validity. It survives on and its existence simply does not rest
upon general acquiescence.
(vi)
"Conventions are a means of bringing about constitutional developments
without formal changes to the law."
If conventions are not accepted by those to whom it purportedly binds,
then it simply vanishes. For laws per se, breach of it does not result in us
2.5
Who is bound by conventions?
(i)
For example, it is a convention under doctrine of collective responsibility
of Ministers to Parliament that all members of Cabinet speak in public
Laws are legally enforceable and breaches of it entails in an illegality
with a united voice and furthermore, in order to reinforce public
and sanction. Courts may not enforce conventions but may accord
confidence in government, cabinet members may not disclose the
them with recognition (A-G V Jonathan Cape; Manuel V A-G).
(vii)
Purposes of Conventions
Consequences of a breach of convention rest upon the importance of
contents of Cabinet discussions.
(ii)
the convention itself. As can be seen from the doctrine of ministerial
This doctrine was put under strain during Mrs. Thatcher’s government
(1979-1989). She deviated slightly from the convention.
responsibility, conventions may also be "waived" when the situation
1.
demands it. This would not be true of a law however.
(viii)
2.
According to NW Barber in ‘Laws and Constitutional Conventions’ [2005]
member of Cabinet nor even a Member of Parliament.
one of degree: laws and conventions should be placed upon a
(ix)
The second was that the Prime Minister took advice on financial
and economic policy from an economist who was neither a
Law Quarterly Review, the difference between law and convention is
spectrum of types of social rules, a spectrum gradated in terms of the
The first was that increasing use was made of decision-making by a
small group of cabinet members, an ‘inner Cabinet’
(iii)
David Cameron resigned on 13 July 2016 after the Brexit referendum and
formalization of rules. Law lives at the formalized end of the spectrum –
Theresa May became the Prime Minister. Was there a new convention
there is no definable, point which rules shift from conventions into being
created, in that, if the Prime Minister takes a stand on a referendum issue
laws – conventions can become law through judicial intervention or
and the referendum result on the constitutionally important issue is
crystallise into law vide statute. (e.g. the Parliamentary Act 1911)
otherwise, he should step down as Prime Minster and party leader?
In summary, a convention is a non-legal rule which imposes an obligation
on those bound by the convention, breach or violation of which will give
rise to legitimate criticism: and that criticism will generally take the form of
an accusation of ‘unconstitutional conduct’
(iv)
The convention of collective ministerial responsibility came under severe
strain from 2017 to 2019 during the premiership of Theresa May on the
terms of Brexit, in which there was a sharp divide in her cabinet
punctuated by many resignations. This eventually led her resigning as
head of the Conservative party.
6
2.6
Effect of Breaching a Convention
(i)
A V Dicey argued that a breach of a convention may lead to a breach of
7
2.7
The courts and conventions.
(i)
Generally, the courts have no jurisdiction to adjudicate upon conventions
as they are non-legal rules. The court may however, give recognition to a
law. For example, if Parliament, in breach of convention, did not meet
convention when deciding a case.
annually, the consequence would be that money granted on an annual
basis by Parliament for maintenance of the armed forces would not be
forthcoming. Accordingly, maintenance of the army would become
(ii)
publication of the diaries he had kept while in government. The Diaries
the raising and keeping of an army in peacetime, without Parliament’s
included records of Cabinet discussions which, under the doctrine of
consent, is unlawful.
(ii)
collective ministerial responsibility, may never be revealed other than
Sir Ivor Jennings opined that a breach of convention could result in
under conditions specified by law or on the authority of the Cabinet
political chaos. The convention that in financial matters the will of the
Secretary. The government sought an injunction to restrain publication on
House of Commons shall prevail over the House of Lords was broken in
the basis that Cabinet meetings are, by convention, confidential and that
1908 when the House of Lords rejected the Finance Bill of the Commons.
The Diaries accordingly represented a breach of confidentiality.
After a deadlock between the two Houses and a threat by the king (King
The court recognised the convention but could not enforce it. The court
Edward VII) to ‘flood’ the House of Lords with sufficient new peers to
however ruled that unless national security was involved, an eight to ten-
secure a majority for the Bill, the government introduced the Parliament
year embargo was the maximum period that such material would be
Bill 1911 which eventually became the Parliamentary Act 1911.
(iii)
In AG v Jonathan Cape Ltd (1976), the executors of the late Richard
Crossman, a former Cabinet Minister, decided to proceed with the
unlawful as a result of Article 6 of the Bill of Rights 1689 which provides that
protected. In reaching judgement, Lord Widgery CJ evaluated the
doctrine of collective responsibility finding that there was “...overwhelming
In 1975, the convention of collective ministerial responsibility was waived
evidence that the doctrine…is generally understood and practised and
temporarily. The Labour Government was divided on the continued
equally strong evidence that it is on occasion ignored.” He stated that for
membership of the European Community. It was decided that the matter
the AG to succeed three matters had to be established:
be put to the electorate in a referendum. The cabinet itself was deeply
divided on the issue and the Prime Minister decided to lift the convention
(a)
that such publication would be in breach of convention;
of collective responsibility in order to facilitate full and free public debate.
(b)
that the public interest required that the publication be restrained;
The convention was however set aside only for this purpose and remain
and
effective for all other matters before Cabinet. Upon resolution of the issue,
(c)
the convention was reinstated. No adverse consequences arose there
that there are no other facts of the public interest contradictory of
and more compelling than that relied in.
were criticisms that such a move was unconstitutional.
Accordingly, the injunction was refused.
(iv)
A similar temporary waiver on collective ministerial responsibility was
effected by the then Prime Minister David Cameron prior to the Bexit
referendum which was held on 23 June 2016.
8
(iii)
9
Other examples where courts have recognised conventions but have not
2.8
Should We Codify Conventions?
gone on to enforce it: Reference re Amendment of the Constitution of
2.8.1 Arguments for
Canada (1982). The principal question before the Supreme Court of
(i)
As Hilaire Barnett pointed out, "for rules of such importance to be ill-
Canada was whether, as a matter of law, the constitution of Canada
defined, uncertain in application and unenforceable by the courts is, at
could be changed without the consent of the Provinces and whether this
best, anomalous, and at a worst, a threat to the principle of government
consent was required as a matter of convention. It was essentially the
according to law.”
repatriation of Canadian Constitution because Canadian’s constitution
was due to it being a dominion of UK (British North America Act 1867) i.e.
(ii)
bang" but instead "adapt in amoeba-like fashion to meet constitutional
consent was required but the Canadian Supreme Court held that powers
needs of the time".
of two Canadian Houses of Parliament were unlimited as a matter of law.
The majority of the Supreme Court ruled that the consent of the Provinces
(iii)
was not required by law and that consent was required by convention,
Similarly, in Madzimbamuto v Lardner – Burke (1969) the Privy Council held
Bradley and Ewing state: "If many legal rules have an 'open texture', how
much more 'open' will be the texture of non-legal rules where there is no
but that convention could not be enforced by a court of law.
(iv)
Codification would add clarity to the qualities possessed by conventions.
As Hilaire are Barnett puts it, unlike laws, conventions do not "go out with a
Act of UK Parliament which provided that (by convention) provinces
definite procedure for resolving disputes about existence and content."
(iv)
Codification would provide greater insight into conventions and thereby
that the convention under which the UK Parliament did not legislate for
act as some check on the power of the government. By crystallizing them
South Rhodesia without the consent of the government of the colony,
as statutory force, they would be given the force of law thereby securing
although important as a convention, had no effect in limiting the power
their effective enforcement unlike the haphazard present.
of the UK Parliament.
(v)
(v)
For citizens, their only recourse would be political action - a complaint to
The Supreme Court in R (Miller) v Secretary of State for Exiting the
the MP, a letter to the press, demonstrations and protests. For a member
European Union [2017] UKSC 5 stated that to the application of the Sewel
of the executive, he may take up the issue in Parliament. It has however
Convention to the decision to withdraw from the EU given the effect on
been recognized in Carltona v Commissioner of Works and ex p Notts CC
the devolved competences, the Convention only operates as a political
that such accountability to Parliament may not be an effective remedy
to the individual.
constraint on the activity of the UK Parliament. It therefore plays an
important role in the operation of the UK constitution. But the policing of its
scope and operation is not within the constitutional remit of the courts.
The devolved legislatures do not have a veto on the UK’s decision to
withdraw from the EU.
2.8.2 Arguments against
(i)
It is difficult or even disadvantageous to define a number of important
conventions. This is because some conventions are vague e.g. Ministerial
Responsibility and the working of the cabinet System.
10
(ii)
11
Codification will bring in an element of certainty at the expense of
flexibility. Their unwritten nature gives conventions flexibility, enabling new
(iv) If, at the end of the legislative process, there is deadlock between the
Commons and Lords, the Parliament Acts allow a Bill to receive royal assent
conventions to be adopted and old ones to be discarded. Informal
without the agreement of the Lords pursuant to the Parliamentary Act 1949.
modifications keep the constitution in touch with contemporary political
This mechanism created initially by the Parliamentary Act 1911 had been
thinking that is to keep the convention up to date.
(iii)
used occasionally in highly contentious circumstances.
There may be situations in the future where some conventions ought, be
waived and some varied. Codification would make this difficult as an Act
(v)
After the 1945 general election, which the Labour Party won, the government
embarked on a massive programme of social and political change, including
of Parliament would have to be passed every time to change a
the creation of the National Health Service (giving free medical care to all);
convention and would take up unnecessary Parliamentary time.
the National Insurance Act 1946 laid the foundations for a welfare state and
(iv)
They allow for the exercise of discretion where circumstances call for it.
major industries were taken into public ownership. All of this required legislation
E.g. waiver of the doctrine of collective ministerial responsibility. This would
but the Labour party had a majority in the House of Commons but a minority
be lost with codification.Codification would drag the judiciary into the
of peers (ie only 16 labour peers out of 831 voting peers).
political arena as it would require them to adjudicate on matters which
are essentially political.
2.9
2.11 The Salisbury - Addison –Convention
(i) During the Government of 1945-1951 (PM Clement Atlee), Lord Salisbury, the
Case study: The convention between the House of Commons and House of
Leader of the Opposition in the House of Lords and Viscount Addison, the
Lords relating to legislation proposed by the House of Commons.
Labour Leader of the House of Lords, came to an agreement on the passage
(a)
Introduction:
of major pieces of Government legislation through the House of Lords.
(i)
In a bicameral parliamentary system, rules are needed about the relative
powers of each chamber of the legislature. In the United Kingdom, the
(ii)
legislate mentioned in the Government's election manifesto.
views the Lords and present a Bill for royal assent.
(ii)
The doctrine known as the "Salisbury-Addison Convention" means that the
House of Lords should not reject at second or third reading an intention to
Commons (dominated by the government) has power to disregard the
In the United Kingdom, these rules are partly in the form of a
(iii)
In the committee's report (Joint Committee on Conventions First Special
Report, Session 2005-06) the focus was on how the convention has
constitutional convention (the 'Salisbury-Addison convention') and
changed in recent years. It was acknowledged by the committee that one
partly in legislation (the Parliament Act 1911 as amended by, the
of the main functions of the House Lords, is that it is effectively the only
Parliament Act 1949).
place in which the legislature can curb the power of the executive. Lord
(iii)
During the passage of a Bill, the, Salisbury-Addison convention is that the
Hesketh [a Conservative hereditary peer], reiterated that the doctine was
Lords will give a Second Reading to a 'manifesto Bill' and avoid making
that in practice that the House does not seek to vote down a manifesto Bill
`wrecking
at second or third reading.
amendments’
that change
the
government’s
manifesto
intention.
12
(iv)
13
Viscount Cranborne [a Conservative hereditary peer] agreed that the
Third Reading. The report further noted that the Convention has sometimes
Salisbury-Addison Convention is a constitutional convention and is definitely
been extended to cover 'wrecking amendments' which 'destroy or alter
part of the UK constitution.
beyond recognition' such a Bill.
2.12. The Salisbury- Addison after the House of Lords Act 1999
(i)
In 1999, shortly after the enactment of the House of Lords Act [which
(vi)
remains valid as it arises from the status of the House of Commons as the
removed most hereditary peers], the Leader of the Opposition in the
United Kingdom pre-eminent political forum and from the fact that the
House of Lords, Lord Strathclyde argued that most of the conditions that
general elections are the most significant expression of the political will of
gave rise to the Salisbury doctrine had gone.
(ii)
The Wakeham Report stated that the Salisbury-Addision Convention
the electorate.
He stated that the doctrine needed to re-examined under the new
conditions that arise. He stated that the Salisbury-Addison agreement was
(vii)
The Wakeham report recognised that only a tiny minority of the electorate
that the House of Lords would not vote against manifesto items at Second
ever reads party manifestos; and as it is most unlikely that any voter will
Reading, nor would it introduce wrecking amendments
agree with every sentence of any manifesto, it is rarely possible to interpret
to such
a general election result as evidence of clear public support for any
programme Bills.
specific policy.
(iii)
He stated that the House of Lords was not suddenly going to change all
that. It always accepted the primacy of the elected house and will always
(iv)
(viii)
Legislation introduced in the third or fourth session of a Parliament may
accept that the Queen's Government must be carried on. On the other
differ significantly from the relevant manifesto commitment. He stated that
hand, he stated that the House of Lords should always insist its right to
it
scrutinize amend and improve legislation.
circumstances.
On 15 December 1999 Baroness Jay of Paddington the Leader of the. House
(ix)
would
be
unreasonable
to
extend
the
convention
to
such
The report concluded that the principles underlying the Convention
of Lords stated that the Salisbury-Addison convention had nothing to do with
remained valid and should be maintained. A version of the 'mandate'
the strength of the parties in either House of Parliament. It had to do with the
doctrine should continue to be observed: where the electorate has chosen
relationship between the two Houses and that it would be constitutionally
a party to form a Government the elements of that party's general election
wrong, when the country has expressed its view, for the House of Lords to
manifesto should be respected by the second chamber.
oppose proposals that have been definitely put before the electorate.
(x)
(v)
Lord Strathclyde stated that election promises can be vague and easily
The Wakeham report in January 2000 described the Salisbury-Addison
manipulated by governments, who reserve the right to change manifesto
Convention as an understanding that a manifesto Bill, foreshadowed in the
promises if things change. He stated that if governments can have the
governing party's most recent election manifesto and passed by the House
right, why cannot Parliaments too have a say on circumstances as they
of Commons, should not be opposed by the second chamber on Second or
change? While manifesto promises can be given a relatively easy ride in
14
the first few Sessions of a Government's life it does not mean that that
Chapter 3: The Rule of Law
should automatically extend to the whole five years.
(xi)
The Joint Committee concluded that the Salisbury-Addison Convention has
changed since 1945, and particularly since 1999. For a convention to work
3.1
Introduction
(i)
The rule of law is an essential component of a good constitution; it is a
principle concerned with constraining governmental action.
properly, however, there must be a shared understanding of what it means.
(xii)
The
Convention
now
differs
from
the
original
Salisbury-Addison
(ii)
that it should be that ‘content free’ in that it should be concerned only
Convention in two important respects. It applies to a manifesto Bill
with the form of the law and its procedural aspects? Others stipulate that
introduced in the House of Lords as well as one introduced in the House
it ought it be ‘content rich’ in that the substance of the law ought to
of Commons. It is now recognized by the whole House, unlike the original
comply with fundamental human rights.
Salisbury-Addison Convention which existed only between two parties.
(xiii)
(iii)
The Convention which has evolved is that In the House of Lords:
There are differing views on the definition of the rule of law. Some argue
Judges play a crucial role in ensuring compliance with the rule of law by
(a)
A manifesto Bill is accorded a Second Reading;
recognition of certain fundamental human rights and liberties at common
(b)
A manifesto Bill is not subject to 'wrecking amendments' which
law through the application of tort law and also in statutory as
change the Government's manifesto intention as proposed in the
interpretation by leaning on the principle of legality as well as narrowly
Bill; and
construing ouster clauses in judicial review: R (Privacy International) v
A manifesto Bill is passed and sent (or returned) to the House of
Investigatory Powers Tribunal and others [2019] UKSC 22
(c)
Commons, so that they have the opportunity, in reasonable time to
consider the Bill or any amendments the Lords may wish to propose.
(iv)
Another aspect by which the judiciary ensures executive compliance with
the rule of law, is through its supervisory role in judicial review under the
heads of illegality, procedural impropriety, irrationality and proportionality.
(v)
The Human Rights Act 1998 has also fortified judicial power under sections
2, 3, 4 and 6. (which would be discussed in detail in the chapter on
Human Rights)
(vi)
Parliament has the power, through Acts of Parliament, both to safe guard
the rule of law and weaken it. This it can vide the principle of
Parliamentary supremacy, choose to legislate contrary to fundamental
principles of human right and rule of law.
2
3.2
(i)
3
The concept of constitutionalism
According to KC
(ii)
Wheare, in ‘Modern Constitutions’,
2nd
He then went on to identify and discuss eight ‘sub-rules’:
(1) 'The law must be accessible and so far as possible intelligible, clear
edition,
and predictable.'
constitutional government means government according to rule of law as
opposed to arbitrary government; it means government limited by the
(2) 'Questions of legal right and liability should ordinarily be resolved by
terms of a constitution.
(ii)
application of the law and not the exercise of discretion.'
(3) 'The laws of the land should apply equally to all, save to the extent that
According to J.E.K. Murkens, ‘The quest for UK constitutionalism in UK public
objective differences require differentiation.'
law discourse’ (2009), constitutionalism in UK consists of the following limbs:
(a)
it concentrates ultimate public power in one institution (the
(4) 'Ministers and public officers at all levels must exercise the powers
sovereignty of Parliament);
(b)
the
government
is
organised
conferred on them in good faith, fairly, for the purpose for which the
by
means
of
majority
rule
powers were conferred, without exceeding the limits of such powers
(representative government);
(c)
and not unreasonably.'
the granting and exercise of public power is determined and
(5) 'The law must afford adequate protection of fundamental rights.'
controlled by constitutional principles such as the rule of law,
(6) 'Means must be provided for resolving without prohibitive cost or undue
separation of powers, and respect for individual rights. (limited
delay, bona fide civil disputes which the parties themselves are unable
government);
(d)
to resolve.
the government is held to account by Parliament for its policies and
its conduct (political accountability);
(e)
(7) 'Adjudicative procedures provided by the state should be fair.'
the government is held to account by an independent judiciary
through
the
principle
mechanism
of
judicial
review
(8) 'The rule of law requires compliance by the state with its obligations in
(legal
international law as in national law'
accountability)
(iii)
Sub-rules 1, 2, 6 and 7 only relate to the form of law and the procedures
3.3.
Defining Rule of Law
(i)
Lord Bingham during the sixth Sir David Williams lecture in 2006 stated
and are thus ‘content free’ whereas 3,4,5 and 8 are substantive or focus
that the core of the existing principle is that all persons and authorities
on the content of law, in particular, 5 & 8 are focusing on human rights.
within the state, whether public or private should be bound by and
entitled to the benefit of laws publicly and prospectively promulgated
and publicly administered in the courts. (the extract of which be
discussed at the end of the chapter).
(iv)
Raz on the other hand in ‘The rule of law and its virtue” (1977) offers a list
of principles which can be derived from the basic idea of the ‘rule of law’.
They are summarised as:
(a)
all laws should be prospective, open and clear;
4
(b)
5
laws should be relatively stable, the making of particular laws
(b)
(particularly legal orders) should be guided by open, stable, clear
(c)
the independence of the judiciary must be guaranteed;
personal liberty, or the right of public meetings etc.) are the result of
(d)
the principles of natural
judicial decisions determining the rights of private persons.
(e)
justice must be observed-meaning
the courts should have review powers over the implementation of
(viii)
(f)
the courts should be easily accessible; and
(g)
the discretion of crime preventing agencies should not be allowed
to pervert the law.
Constitution.
3.4
Has Dicey’s 1st Postulate Been Observed?
(i)
The first postulate means the absolute supremacy or predominance of
regular law as opposed to the influence of arbitrary power, and excludes
Raz thus argues for a negative, content free version of the rule of the law.
the existence of arbitrariness, of prerogative, or even of wide discretionary
The criticism of Raz’s version of the rule of law is that an evil legal system
authority on the part of the government. Dicey stated: ‘a man may with
(for example, one based on race or religious discrimination) could
us be punished for a breach of law, but he can be punished for nothing
nonetheless be regarded as respectful of the rule of law. Lord Bingham
else.’
when expounding his eight sub-rules has explored this criticism.
Professor Paul Craig in ‘Rule of Law’ [2006] disagrees and states that the
(ii)
[1974].
of law.
According to A.V. Dicey in ‘Introduction to the Study of the law of the
(iii)
the invocation of the powers of royal prerogative though matters relating
the rule of law), he stated that the supremacy of the rule of law can be
to national security are non-justiciable.
summarised as (referred to his three postulate or conceptions):
except for a distinct breach of the law established in the ordinary
Discretionary authority in most spheres of government is inevitable.
Following the GCHQ case, the courts will no longer hesitate to inquire into
Constitution’ (1885) (who was one of the first few to give an exposition on
no man is punishable or can be made to suffer in body or goods
There exists a presumption of statutory interpretation that Parliament does
not intend to legislate with retrospective effect: Waddington v Miah
substance of the law must also be good in order to comply with the rule
(a)
According to A.V. Dicey, alongside with the notion of Parliamentary
sovereignty, the rule of law is one of the twin pillars of the British
other principles,
(vii)
the general principles of the constitution (as for example the right to
(c)
procedural fairness in decision making by public officials;
(vi)
every man, whatever his rank or
condition, is subject to the ordinary law of the realm; and
and general rules;
(v)
no man is above the law…
(iv)
There exists the mechanism of judicial review to ensure that public bodies
act within the sphere of power bestowed upon them by Parliament. It has
legal manner before the ordinary courts;
been ruled in R v Secretary of State for the Home Department ex p Fire
Brigades' Union and Others [1995] that the executive may not wield the
6
powers of royal prerogative to defeat a right granted under an Act of
7
(v)
Parliament.
As Sir Ivor Jennings observed, no 2 citizens are entirely equal as most
classes "have special rights and duties". Undeniably, certain special groups
of people enjoy immunities not afforded to others and they include judges,
(v)
diplomats and MPs.
Sometimes the courts rule that the exercise of the royal prerogative
cannot be valid if it clashes with a statute or alternatively if its exercise has
the effect of changing the law of the land: R (Miller) v Secretary of State
(vi)
for Exiting the European Union [2017] Supreme Court.
(vi)
which involves matters of policy which was deemed to be best
determined by the Executive itself. (e.g. national security) – the concept of
In the recent of case of R (on the Application of Miller) v Prime Minister
non-justiciability.
[2019] Supreme Court it was held that the exercise of the royal prerogative
in proroguing Parliament vide an Order of Council was justiciable and the
In Council for Civil Service Unions v Minister for Civil Service [1985] (“The
GCHQ case”) it was stated that courts would not review prerogative acts
(vii) What can be said is that whilst all are subjected to the same courts, there
said prorogation was held to be null and void and to no legal effect.
are some who enjoys certain "advantages" in such legal proceedings in
the form of "immunities" or "special powers" exercisable by them at law.
3.5
(i)
Has Dicey’s 2nd Postulate Been Observed?
The second postulate is equality before the law, or the equal subjection of
(viii) Lord Bingham in 2006 has qualified this by stating in his third sub-rule that
all classes to the ordinary law of the Iand administered by the ordinary law
the laws of the land should apply equally to all, save to the extent that
courts. In Dicey's view, this implied that no one was above the law.
objective differences justify differentiation. He states that special legislative
provision can properly be made for some categories of people such as
(ii)
(iii)
The Bill of Rights 1689 affirmed that the monarchy was subject to law
children,
thereby forcing the Crown to govern through Parliament and not by way
characteristics of such categories. He goes on to state that when there are
of Proclamations as before.
non-objective factors then differentiation is unjustified.
The Home Secretary was held liable for contempt of court in M v Home
Office [1994] for his failure to abide by an order of the High Court that he
order the return to UK of a Zairian teacher claiming refugee status.
(iv)
prisoners
and
the
mentally
ill,
based
on
the
peculiar
3.6
Has Dicey’s 3rd Postulate Been Observed?
(i)
According to Dicey’s third postulate the rights of the individual were
secured not by guarantees set down in a formal document but by the
In Britain, government departments became liable to be sued for their
ordinary remedies of private law especially tort law or public law available
wrongful acts under the Crown Proceedings Act 1947. That Act preserved
against those who unlawfully interfered with his or her liberty, whether they
the personal immunity of the Sovereign, an immunity which in other legal
were private citizens or officials.
systems is enjoyed by the head of state.
8
(ii)
9
Dicey's third meaning of the rule of law expressed a strong preference for
John Entick was arrested under a general warrant (which identified the
the principles of common law declared by the judges as the basis of the
crime but not the name of the suspect) and his papers were seized by
citizen's rights and liberties. Dicey had in mind the fundamental political
the ‘King’s messengers’ (led by Nathan Carrington) who were looking for
freedoms - freedom of the person, freedom of speech, freedom of
copies of this allegedly seditious newssheet. Carrington and his men
association.
were acting on the orders of Lord Halifax, the Secretary of State to King
George III.
3.7
(a)
(i)
The Judiciary’s role in protection of citizen’s under the rule of law
Lord Camden decided that an act of trespass had occurred because
the search warrant was illegal in that it was not issued by a court of law
Common Law
but the executive.
One of the major roles of judiciary, the judicial review of administrative
action which is inclusive of control of discretionary powers given to the
executive inclusive of exercise of the royal prerogative (subject to
(iv)
habeas corpus, a common law writ which had been rendered more
justifiability).
(ii)
The procedure by which individual liberty was protected was that of
effective than statute. Whilst slavery was abolished in the USA only after a
In Council for Civil Service Unions v Minister for Civil Service [1985] Lord
Civil War, it only took a court case in England Somersett v Steuart (1777).
Diplock laid down the grounds of judicial review as
(a)
illegality;
(b)
irrationality;
(c)
procedural impropriety; and
(d)
proportionality in the European context (though inapplicable in the
(v)
statutory right to privacy under UK laws, telephone tapping by the police
was hence not illegal. In Malone v UK [1984] ECtHR, held Art 8 (right to
privacy) was violated.
UK context at that time.
See also R (On the Application of Miller v Prime Minister [2019] Supreme
In Malone v MPC [1979, it was held that there was no common law or
(vi)
Court
The Human Rights Act 1998 (“HRA”) has somewhat changed the rigours of
the Malone decision. Covert surveillance of the accused, at home and in
police cells, while he was suspected of planning an armed robbery, was a
(iii)
In tort law, citizen’s rights have been safeguarded by judicial
violation of Arts 8 and 13: PG and JH v UK [2001] ECtHR, Covert surveillance
pronouncement of trespass to property unless the defendant public-
is now regulated by statute.
office holder can show that law justifies the action. In Entick v Carrington
[1765], John Entick was a printer and had printed pamphlets written by
(vii)
A
policy
that
prisoners
must
be
absent
when
privileged
legal
John Wilkes (who was a Member of Parliament), Lord Mayor of London
correspondence held in their cells was examined by prison officers was
and an outspoken critic of the government of the day.
unlawful. The House of Lords reached this conclusion by, applying the
10
common law but it was supported by the Art.8 (1) right to respect for
11
(xi)
correspondence: R v SS - for the Home Dept Ex parte Daly [2001] UKHL 26.
Secondly, the common law does not assure the economic or social
well-being of individuals or communities. The Human Rights Act 1998 and
the creation of new procedures for protecting those rights, has fallen short
(viii)
The principle of Parliamentary sovereignty leads to Parliament, not the
of a Bill of Rights.
courts, having the final say on the validity of provisions in Acts of
Parliament that offend the rule of law. On the other hand Parliament may
(xii)
The third criticism of the common law is that it only provides protection in
enact legislation to abolish or limit a ‘fundamental right’ that has been
certain circumstances like Entick v Carrington. the common law is
recognised at common law. Parliament has reversed inconvenient court
inadequate for the protection of socio-economic rights or liberalism which
decisions by way of retrospective legislations (War Damage Act 1965) -
are better suited politically and for Parliament.
Burmah Oil Company v Lord Advocate [1965].
(xiii)
(ix)
In R v Davis [2008] the House of Lords held that the trial judge had no
Another criticism is directed at the erratic nature of the judgments
For example:
power to make an anonymity order for witnesses testifying with them
In Liversidge v Anderson [1942] the House of Lords failed to protect
testifying behind screens in court and having their voices mechanically
the right to liberty under the defence regulations that permitted
distorted. The accused Davis (who was accused of shooting two people)
detention without trial;
had appealed on the ground that he did not receive a fair trial because
In Council for Civil Service Unions v Minister for the Civil Service
the anonymity arrangements made by the trial judge prevented his
[1985] the House of Lords referred to apply the rules of natural
counsel from cross-examining the witnesses.
justice when ministers claimed national security was at stake.
The House of Lords held that the anonymity arrangements infringed an
important common law right – the right to a fair trial. Parliament
(a)
intervened immediately thereafter by passing the Criminal Evidence
(Witness Anonymity) Act 2008 which now allows judges to make a wide
(i)
recognised by the courts to be of constitutional importance. This occurred
for example where the Criminal Evidence (Witness Anonymity) Act 2008
statutorily overruled R v Davis [2008]
incompatibility
under
HRA
1998:
Section
4
and
Despite bringing rights home via the HRA, Parliament could yet derogate
from it, as most clearly seen with the Anti-Terrorism, Crime and Disorder
Act 2001.
One criticism of common law is that it is unable to deal with situations in
which an Act of Parliament expressly limits or abolishes a right previously
of
unlawfulness of control orders under Prevention of Terrorism Act 2005.
range of anonymity orders.
(x)
Declarations
(ii)
A derogation was made to authorise new powers of detention without
trial contained in Part 4 of the Anti-Terrorism, Crime and Disorder Act 2001.
Under it, where the Home Secretary issues a certificate in respect of an
individual reasonably believed to be a terrorist and a threat to national
security, he may be refused leave to enter or remain n the UK and
12
(iii)
13
ensuingly deported. Where deportation is not possible, say where it is to a
Home Secretary consulted the trial Judge and the Lord Chief Justice; they
country where they might be subjected to torture or inhumane treatment
recommended the ‘tariff’ should be 15 years and the Home Secretary
contrary to Art 3, they could be detained without trial, i.e. interned.
agreed.
Later the Home Secretary revised his decision, deciding that 20 years
In A (FC) v Secretary of State for Home Dept [2004], while the Lords agreed
should be the tariff. The House of Lords held that the Home Secretary had
that such derogation is necessary, they also deemed these steps as
no legal power to increase the tariff retrospectively. The case also stated
disproportionate and discriminatory. A declaration was thus made to
that there is presumption that in the event of ambiguity legislation is
declare such measures incompatible with Arts 5 and 14 of the ECHR.
(iv)
presumed not to invoke common law rights.
Due to political pressure, these measures were repealed by the Prevention
of Terrorism Act 2005, though the latter also permitted the making of
control orders by the Home Secretary with the permission of a High Court
(ii)
Judges also presume that Parliament does not intend to deprive people
of common law right, such as access to the courts: Chester v Bateson
judge. Although due to expire on 10 March 2006, it was kept in force for
[1920]. Thus from Pierson’s case it is clear that any statutory intervention of
another by secondary legislation introduced by the Home Secretary.
a citizen’s fundamental common law rights must be in the clearest of
(v)
The Court of Appeal has ruled that Control Orders imposed under the
terms and any ambiguity is to be resolved in favour of the citizen.
Prevention of Terrorism Act 2005 are unlawful: Secretary of State for the
Home Department v JJ [2003] The orders, which place restrictions on
(iii)
terrorist suspects just short of house arrest, are a violation of Article 5. There
narrowly: Anisminic v Foreign Compensation Commission [1969]; R (Privacy
is no violation of Article 6, however, in that the court had jurisdiction under
International) v Investigatory Powers Tribunal and others [2019] UKSC 22
section 3 of the Prevention of Terrorism Act 2005 to consider whether any
(discussed in detail in the chapter on judicial review).
of the Home Secretary's decisions in relation to the making of the order
and its content was flawed (Secretary of State for the Home Department v
MB).
The Courts also construe ouster clauses against judicial review very
(iv)
Denning J (as he then was) had stated extra judicially that where there is
a conflict between the freedom of the individual and any other rights or
interests, the freedom of the humblest citizen shall prevail.
(c)
Statutory Interpretation
(i)
In R v Secretary of State for Home Department exparte Pierson [1988] HL,
John Pierson was convicted of murdering his parents in 1984. At the time,
(v)
Ultimately, the court's protection may have to bow down to Parliament's
supremacy: the retrospective War Damages Act. The court cannot "fill the
the Home Secretary had the power to determine how many years of a
gaps left by legislation" (compare Lord Denning MR’s view in Magor and St
murderer’s mandatory life sentence had to be served before the prisoner
Mellons RDC v Newport Corp [1965]. See however the interpretation of
would be allowed to apply to the Parole Board for release on licence. The
14
15
section 3 of HRA by Lord Steyn in R v A [2001] HL where legislation may be
'… the scope of judicial review is an artefact of the common law whose
object is to maintain the rule of law—that is to ensure that, within the
bounds of practical possibility, decisions are taken in accordance with the
law, and in particular the law which Parliament has enacted, and not
otherwise…’
given a strained meaning to comply with HRA.
(vi)
Lord Hoffmann in R v Secretary of State for Home Dept ex p Simms [1999]
stated that the HRA has in no way dislodged the principle of
Parliamentary supremacy. Parliament may yet legislate contrary to
(vii)
(x)
In R (Privacy International) v Investigatory Powers Tribunal and others [2019]
fundamental principles of human rights. The only impediment in the way
UKSC 22 it was held by the majority of the Supreme Court that there is a
of Parliament doing so would be the political costs it would incur in the
strong case for holding that, consistently with the rule of law, binding effect
process. What the court may do is only to lean in favour of upholding
cannot be given to a clause which purports wholly to exclude the
individual rights in the absence of clear statutory language to the
supervisory jurisdiction of the High Court to review a decision of an inferior
contrary.
court or tribunal, whether for excess or abuse of jurisdiction, or error of law.
Lord Woolf had in 1995 argued that "if Parliament did the unthinkable" and
(xi)
In Privacy International’s case above, the Supreme Court held that in all
legislated without regard for the role of the judiciary in upholding the rule
cases, regardless of the words used by Parliament, it should remain
of law, the courts might wish to make it clear that "ultimately there are
ultimately a matter for the court to determine the extent to which such a
even limits on the supremacy of Parliament which it is the courts’
clause should be upheld, having regard to its purpose and statutory
inalienable responsibility to identify and uphold".
context, and the nature and importance of the legal issue in question; and
to determine the level of scrutiny required by the rule of law.
(viii)
In Jackson v AG [2005], Lord Steyn has said that the judiciary might have
to "qualify" the principle of Parliamentary supremacy should Westminster
(xii)
seek to abolish judicial review of flagrant abuse of power by a
In Privacy International’s case, Lord Carnwarth stated that the relationship
between Parliament and the courts is governed by accepted principles of
government or even the role of the ordinary courts in standing between
the 'rule of law' in that there is no principle more basic to our system of law
the executive and the citizens. Section 18 of the European Union Act 2011
than the maintenance of [the] rule of law itself and the constitutional
is an indirect declaration of parliamentary sovereignty by Parliament itself
protection afforded by judicial review.
where hitherto the doctrine of parliamentary sovereignty was a common
law concept.
(xiii)
Lord Carnwarth stated that the critical step taken by the Supreme Court
in Cart was to confirm that it is ultimately for the courts, not the legislature,
(ix)
In R (on the application of Cart) v Upper Tribunal (Secretary of State and
Ors. [2011] Lady Hale stated:
to determine the limits set by the rule of law to the power to exclude
review.
16
3.8
17
The modern version of 'The Rule of Law' – the 8 principles enunciated by
“The core of the existing principle is, that all persons and authorities within
Lord Bingham (the summary from the speech of Lord Bingham in the Sixth
the state, whether public or private, should be bound by and entitled to
Sir David Williams Lecture on 16 November 2006)
the benefit of laws publicly and prospectively promulgated and publicly
administered in the courts”
The Constitutional Reform Act 2005 (“CRA”) provides, in section 1, that the
Act does not adversely affect "the existing constitutional principle of the
There are, for instance, some proceedings in which justice can only be
rule of law" or "the Lord Chancellor's existing constitutional role in relation
done if they are not in public. But it seems to me that any derogation calls
to that principle".
for close consideration and clear justification.
Under section 17(1) of CRA, to respect the rule of law and defend the
As propounded by John Locke in 1690 that "Where-ever law ends, tyranny
independence of the judiciary. But the Act does not define the existing
begins", and also that famously stated by Thomas Paine in 1776, "that in
constitutional principle of the rule of law, or the Lord Chancellor's existing
America THE LAW IS KING. For as in absolute governments the King is law,
constitutional role in relation to it.
so in free countries the law ought to be King; and there ought to be no
other."
According to Lord Bingham, Dicey's exposition of the rule of law, first
propounded in 1885, has attracted considerable controversy over the
Lord Bingham states that the existing principle may be conveniently
years which had elapsed since then.
broken down into a series of eight sub rules.
Lord Bingham states that the authors of CRA recognised the extreme
“First, the law must be accessible and so far as possible intelligible, clear
difficulty of formulating a succinct and accurate definition suitable for
and predictable”
inclusion in a statute, and preferred to leave the task of definition to the
courts if and when occasion arose.
This seems obvious: if everyone is bound by the law they must be able
without undue difficulty to find out what it is, even if that means taking
The statutory affirmation of the rule of law as an existing constitutional
advice (as it usually will), and the answer when given should be sufficiently
principle and of the Lord Chancellor's existing role in relation to it does
clear that a course of action can be based on it.
have an important consequence: that the judges, in their role as
journeymen judgment-makers, would be bound to construe a statute so
that it did not infringe an existing constitutional principle, if it were
reasonably possible to do so.
Given the legislative hyperactivity which appears to have become a
permanent feature of our governance, the sheer volume of current
legislation raises serious problems of accessibility, despite the internet. And
this is compounded by the British tradition of parliamentary draftsmanship
depends so heavily on cross-reference and incorporation.
18
19
At common law, the length, complexity and sometimes prolixity of
“My second sub-rule is that questions of legal right and liability should
modern common law judgments, particularly at the highest level, raise
ordinarily be resolved by application of the law and not the exercise of
problems of their own.
discretion”
These problems could be mitigated if the House of Lords were to give a
Lord Bingham suggests that the broader and more loosely-textured a
single opinion, a solution advocated from time to time and raised with me
discretion is, whether conferred on an official or a judge, the greater the
by the late Lord Brightman, very shortly before he died, with reference to
scope for subjectivity and hence for arbitrariness. This sub-rule requires that
the lengthy opinions of the House in R (Jackson) v Attorney General.
a discretion should ordinarily be narrowly defined and its exercise capable
Bingham indicates that a single lapidary judgment buttressed by four brief
concurrences can give rise to continuing problems of interpretation which
of reasoned justification. There can, first of all, be no discretion as to the
facts on which a decision-maker, official or judicial, proceeds.
would have been at least reduced if the other members had summarised,
The grant of a civil injunction, it is always said, is discretionary. But if a clear
however briefly, their reasons for agreeing. He suggests that judges should
violation of legal right is shown, and there is a clear risk of repetition
recognise a duty, not always observed, to try to ensure that there is a
injurious to the victim for which damages will not compensate, and there
clear majority ratio. Without that, no one can know what the law is until
is no undertaking by the lawbreaker to desist, the trial judge ordinarily has
Parliament or a later case lays down a clear rule.
no choice. His discretion can only, usually, be exercised one way.
It also precludes excessive innovation and adventurism by the judges. It is
one thing to alter the law's direction of travel by a few degrees, quite
another to set it off in a different direction. The one is probably
foreseeable and predictable, something a prudent person would allow
for, the other not.
Lord Bingham quotes Justice Heydon of the High Court of Australia who
stated judicial activism, taken to extremes, can spell the death of the rule
of law.
Lord Bingham further elaborates that, a second, example is found in
section 78(1) of the Police and Criminal Evidence Act 1984, which
provides:
"In any proceedings the court may refuse to allow evidence on which the
prosecution proposes to rely to be given if it appears to the court that, having
regard to all the circumstances, including the circumstances in which the
evidence was obtained, the admission of the evidence would have such an
adverse effect on the fairness of the proceedings that the court ought not to
admit it."
The use of the word "may" is relied on as conferring a discretion. But what
Another prescription by Lord Bingham is that judges may not develop the
the subsection does, Lord Bingham suggests, is to require an exercise of
law to create new offences or widen existing offences so as to make
judgment, which may be difficult to make but which will determine the
punishable conduct of a type hitherto not subject to punishment, for that
outcome: if the statutory condition is judged to be satisfied, the judge
would infringe the fundamental principle that a person should not be
must refuse to allow the evidence to be given; if it is not, the subsection
criminally punishable for an act not proscribed as criminal when the act
does not authorise the judge to exclude the evidence.
was done. (retrospectivity)
20
21
“My third sub-rule is that the laws of the land should apply equally to all,
“I turn to my fourth sub-rule, which is that the law must afford adequate
save to the extent that objective differences justify differentiation”
protection of fundamental human rights”
Lord Bingham states that some special legislative provision can properly
be made for some categories of people such as children, prisoners and
the mentally ill, based on the peculiar characteristics of such categories.
Even more obviously incompatible according to Lord Bingham, would be
the statute 22 Henry 8 cap 9 which convicted Richard Rose, the Bishop of
Rochester's cook, who had not been tried, of high treason: he had put
poison into the porridge in the bishop's kitchen, and the statute ordered
that he be boiled to death without having any advantage of his clergy.
Other poisoners were to be similarly treated, but the statute was primarily
aimed at him.
Lord Bingham states that this should be universally accepted as
embraced within the rule of law. Dicey, it has been argued, gave no such
substantive content to his rule of law concept.
Professor Raz has written:
"A non-democratic legal system, based on the denial of human rights, on
extensive poverty, on racial segregation, sexual inequalities, and racial
persecution may, in principle, conform to the requirements of the rule of
law better than any of the legal systems of the more enlightened Western
democracies … It will be an immeasurably worse legal system, but it will
excel in one respect: in its conformity to the rule of law … The law may …
He states that the position of a non-national with no right of abode in this
country differs from that of a national with a right of abode in the obvious
and important respect that the one is subject to removal and the other is
not. That is the crucial distinction. But it does not warrant differentiation
irrelevant to that distinction, as Lord Scarman made clear in R v Secretary
of State for the Home Department, Exp Khawaja on the issue of habeas
corpus being available to all on British soil - there is no distinction between
British nationals and others. He who is subject to English law is entitled to its
protection.
institute slavery without violating the rule of law."
The European Court of Human Rights has referred to "the notion of the rule
of law from which the whole Convention draws its inspiration." The
European Commission has consistently treated democratisation, the rule
of law, respect for human rights and good governance as inseparably
interlinked.
While Lord Bingham recognises the logical force of Professor Raz's
contention, he does not himself accept it. A state which savagely
Lord Bingham further elaborates that this did not deter Parliament from
providing, in Part 4 of the Anti-terrorism, Crime and Security Act 2001, for
the indefinite detention without charge or trial of non-nationals suspected
of international terrorism while exempting from that liability nationals who
were judged qualitatively to present the same threat. (though Lord
repressed or persecuted sections of its people could not in my view be
regarded as observing the rule of law, even if the transport of the
persecuted minority to the concentration camp or the compulsory
exposure of female children on the mountainside were the subject of
detailed laws duly enacted and scrupulously observed.
Bingham did not discuss the implications of A (FC) v Secretary of State for
Home Department)
22
23
According to Lord Bingham, to hold the rule of law in Raz’s sense being
those using the courts may generally be called on to contribute
content free, would be to strip the existing constitutional principle affirmed
specifically to the cost of the service. Lord Bingham argues that the
by section 1 of the 2005 Act of much of its virtue and infringe the
danger again is that the cost of obtaining redress may lead to its being
fundamental compact which, underpins the rule of law.
denied to some at least of those who need it. The rule of law plainly
Lord Bingham agrees that there is not, after all, a standard of human rights
requires that legal redress should be an affordable commodity.
universally agreed even among civilised nations. Bingham accepts that
“My sixth sub-rule expresses what many would, with reason, regard as the
there is an element of vagueness about the content of this sub-rule, since
core of the rule of law principle. It is that ministers and public officers at all
the outer edges of fundamental human rights are not clear-cut, and in
levels must exercise the powers conferred on them reasonably, in good
the last resort (subject in UK to statute) the courts are there to draw them.
faith, for the purpose for which the powers were conferred and without
The rule of law must, surely, require legal protection of such human rights
exceeding the limits of such powers”
as, within that society, are seen as fundamental.
“My fifth sub-rule is that means must be provided for resolving, without
prohibitive cost or inordinate delay, bona fide civil disputes which the
parties themselves are unable to resolve”
According to Lord Bingham, what it does is to recognise the right of
unimpeded access to a court as a basic right, protected by UK’s own
domestic law, and in Lord Bingham’s view comprised within the principle
of the rule of law.
If that is accepted, then the question must be faced: how is the poor man
or woman to be enabled to assert his or her rights at law? This problem
was addressed through the civil Legal Aid scheme established in 1948.
According to Lord Bingham, this sub-rule reflects the well-established and
familiar grounds of judicial review. It is indeed fundamental.
The historic role of the courts has of course been to check excesses of
executive power, a role greatly expanded in recent years due to the
increased complexity of government and the greater willingness of the
public to challenge governmental (in the broadest sense) decisions.
Lord Bingham states that the British Government, through one entity or
another, is very frequently involved in litigation. In the past the convention
was that ministers, however critical of a judicial decision, and exercising
their right to appeal against it or, in the last resort, legislate to reverse it
retrospectively, forebore from public disparagement of it.
Although subject to well-known defects, the scheme did bring legal
Lord Bingham suggests that this convention appears to have watered
redress within reach of the less well-off. The cost of the scheme rose
down in recent times, since if ministers make what are understood to be
exponentially, and this led to its curtailment.
public attacks on judges, the judges may be provoked to make similar
criticisms of ministers, and the rule of law is not, in my view, well served by
Can the civil courts, judicial salaries usually aside, be self-financing? Some
public dispute between two arms of the state. (for recent example,
have suggested that the cost of running the courts should be covered by
though not discussed by Lord Bingham, see the aftermath of the High
fees recovered from litigants. The judges for their part have accepted that
Court decision of the R(on the application of Miller) v Secretary of State for
24
25
Exiting the European Union [2016] where the Judges were attacked in the
First and foremost, Lord Bingham suggests, that decisions are made by
press and the Lord Chancellor did not intervene in a timely manner to
adjudicators who, however described, are independent and impartial:
address the criticism).
independent in the sense that they are free to decide on the legal and
factual merits of a case as they see it, free of any extraneous influence or
There is an inevitable, and in Bingham’s view entirely proper for tension
pressure, and impartial in the sense that they are, so far as humanly
between the two. There are countries in the world where all judicial
possible, open-minded, unbiased by any personal interest or partisan
decisions find favour with the government, but they are not places where
allegiance of any kind.
one would wish to live.
In addition, certain core principles have come to be accepted: that a
According to him, such tension exists even in quiet times. But it is greater
matter should not be finally decided against any party until he has had an
at times of perceived threats to national security, since governments
adequate opportunity to be heard; that a person potentially subject to
understandably go to the very limit of what they believe to be their lawful
any liability or penalty should be adequately informed of what is said
powers to protect the public, and the duty of the judges to require that
against him; that the accuser should make adequate disclosure of
they go no further must be performed if the rule of law is to be observed
material helpful to the other party or damaging to itself; that where the
(see recent cases of A (FC) v Secretary of State for Home Department, R v
interests of a party cannot be adequately protected without the benefit
Secretary of State for Home Department exparte JJ, though not cited for
of professional help which the party cannot afford, public assistance
BIngham]
should so far as practicable be afforded; that a party accused should
have an adequate opportunity to prepare his answer to what is said
“So to my seventh and penultimate sub-rule: that adjudicative procedures
against him; and that the innocence of a defendant charged with
provided by the state should be fair”
criminal conduct should be presumed until guilt is proved.
Lord Bingham states that the general arguments in favour of open
Lord Bingham explores the issue of statutory offences defined so as to
hearings are familiar: "Democracies die behind closed doors."
place a reverse burden on the defendant. He states that these are not in
He further states that there is difficulty where a person faces adverse
themselves objectionable, but may be so if the burden is one which a
consequences as a result of what he is thought or said to have done or
defendant, even if innocent, may in practice be unable to discharge (R v
not done, whether in the context of a formal criminal charge or in other
Hunt though not cited by Lord Bingham)
contexts such as deportation, precautionary detention, recall to prison or
“My eighth and last sub-rule is that the existing principle of the rule of law
refusal of parole. (see Chahal v UK, Rv Secretary of State for Home
requires compliance by the state with its obligations in international law,
Department exparte Anderson, R v Secretary of State for Home
the law which whether deriving from treaty or international custom and
Department exparte Doody, A v UK, AF v Secretary of State for Home
practice governs the conduct of nations”
Department though not cited by Lord Bingham]
26
Chapter 4: Separation of Powers
Lord Bingham did not, for his own reasons touch, on the vexed question
whether Britain's involvement in the 2003 war on Iraq was in breach of
4.1
Meaning of separation of powers
international law.
(i)
This doctrine is traceable to Aristotle and its clearest exposition could be
found in Montesquieu's ‘De L'Espirit des Lois’ [The Spirit of the Laws]
But he makes a comparison between the procedures followed in 2003
Bradley and Ewing noted that the doctrine may mean:
and those followed at the time of the Suez invasion of 1956. First, Sir
(a)
Anthony Eden, prime minister in 1956, appears to have treated legal
the three organs of government, for example, that ministers
considerations as at best peripheral. At a later stage of the crisis, the
should not sit in Parliament, that is composition should not be the
prime minister specifically instructed that Sir Gerald Fitzmaurice, the very
same;
distinguished Legal Adviser to the Foreign Office, who had strongly and
(b)
consistently advised that the British action was unlawful, should not be
not interfere in judicial decisions;
Mr Blair in 2003.
(c)
that one organ of government should not exercise the functions
of another, for example, that ministers should not have legislative
Secondly, and although in 1956 as in 2003 it was the function of the Law
powers.
Officers to tender legal advice to the Government, in 1956 they were
Instead, the Government relied on the advice of the Lord Chancellor, and
that one organ of government should not control or interfere
with the work of another, for example, that the executive should
informed of developments. No similar sentiments were ever expressed by
never formally consulted before the ultimatum to Egypt was delivered.
that the same persons should not form part of more than one of
(ii)
Historically, in particular, the English Civil War (1641-51), in UK the more
important division of powers was between the Crown and Parliament.
not the Attorney General at that time. The Attorney General stated that
The English Civil War was a series of bitter armed conflicts between
he always supported the Government though he couldn’t do so on legal
supporters of Charles I (an adherent to the notion of the 'divine right of kings')
grounds." In 2003 (the Iraq invasion) the Attorney General's advice
and the parliamentary forces led by Oliver Cromwell. Charles I attempted to
supported the proposed action.
rule without convening Parliament, resorting to a variety of means to raise
Lord Bingham then explores the issue that there has has been much
revenue (such as ship money') to run the country without parliamentary
debate whether the rule of law can exist without democracy. Some have
approval for general taxation. In 1649, Charles I was executed for treason.
argued that it can. He states that the rule of law does depend on an
For 11 years, the country was ruled without a king; monarchy was restored in
1660 when Charles II became king.
unspoken but fundamental bargain between the individual and the state,
the governed and the governor, by which both sacrifice a measure of the
freedom and power which they would otherwise enjoy. The individual
living in society implicitly accepts that he or she cannot exercise the
unbridled freedom and accepts the constraints imposed by laws properly
made because of the benefits which, on balance, they confer.
(iii)
This Crown and Parliament division of power which has over time
evolved
into
the
current
legislature,
executive
and
judiciary
demarcation. The particular set of separation and cooperation between
institutions in the United Kingdom is often referred to as 'the Westminster
model'.
2
(iv)
Principal functions of the 3 organs
3
(iv)
Legislature: Making legally binding set of rules that apply to people
Executive:
Perhaps the Queen is the greatest offender of this doctrine. The Queen
is the "fountain of justice", the courts of law being her courts. As the
generally
Queen in Parliament, she is part of the legislature. At the same time, she
Foreign relations, military action, administration, developing
is the head of the executive. Yet, given her symbolic role, in practice it
national policy on a wide range of subjects
has little significance.
Judicial: Applying the law to resolve civil disputes and criminal law.
4.2
(iv)
4.2
(i)
Executive and Judiciary
According to Hiliare Barnett, the modern view of the doctrine is not that
4.2.1 Separation of Powers Not Being Observed
it prescribes for the 3 organs of the State working in isolation from each
(a)
On Composition:
other but rather that their "primary functions" be allocated clearly with
(i)
Whilst the courts are the Queen's courts, judicial functions are exercised
checks to ensure that no institution encroaches significantly upon the
by the judges. The Judicial Committee of the Privy Council is in form an
function of the other. The UK doctrine is one of check and balance.
executive organ, but in fact it is an independent court of law.
Importance of the Doctrine
(ii)
The Lord Chancellor, who is a member of the Cabinet, was formerly also
Henderson saw the separation of powers ("SOP") as "a necessary
head of the Judiciary and entitled to preside over the House of Lords in
condition for the rule of law in modern society and therefore for
its role as the final court of appeal. This departure from the separation
democratic government itself." Lord Bingham in his speech in 2006 also
of powers came to be seen as incompatible with independence of the
asserts this point that democracy (or impliedly the separation of
judiciary. Under the Constitutional Reform Act 2005, the Lord Chancellor
powers) is a sine qua non for the existence of the rule of law.
remains a Cabinet minister with executive functions in connection with
the system of justice, but has lost the right to sit as a judge.
(ii)
According to Montesquieu the essential reason for the need of separation of
powers was to protect liberty. If too much of one kind of power is
(b)
On Function & Powers
concentrated in the hands of one person or institution, there is more of a risk
(i)
Many disputes arising out of public services are resolved not in courts
of that power being abused to curtail freedom than if the powers are kept
distinct or if there is a system of 'checks and balances.
Note: He did not mean for the legislature and the executive to exercise no
but rather by tribunals.
(ii)
As Drewry noted, judges have often been called on by the government
to preside over royal commissions, departmental committees and
influence over one another but rather only that neither should exercise
inquiries. Notable examples include the Arms for Iraq affair, the Profumo
the whole power of the other.
affair and the BSE chapter. This has led to allegations that the
(iii)
N.W. Barber, on the other hand, argues that 'it is efficiency, not liberty,
government is using judges for its own ends as well as exposing judges
which is at the heart of separation of powers'. If the various types of
to criticisms that they are being dragged into the political arena. A very
power are allocated sensibly to the right kind of institution, it is more
recent example would be the Hutton Inquiry and Butler Inquiry.
likely to be exercised efficiently.
4
(iii)
5
Section 61(1) of the Criminal Justice Act 1967, passed when the death
4.2.2 Separation of Powers (“SOP”) Being Observed
penalty for murder was abolished in the United Kingdom, gave the
(a)
On Function
function to the Home Secretary. The power was re-enacted, in slightly
(i)
Bradley and Ewing defended the use of tribunals on the ground that
modified form, in s. 29 of the Crime (Sentences) Act 1997. Anderson, a life
they "exist not because they exercise a political discretion which it
prisoner brought a judicial review challenge. In R v Secretary of State for
would be inappropriate to confer on the judges, but because they do
Home Department ex parte Anderson [2002] the House of lords held
the work of adjudication required more efficiently than the courts."
that the power of the Home Secretary under the section 29 Crime
(Sentences) Act 1997 to fix the tariff period for murderers serving life
(ii)
They further defend public inquiries by the executive itself into acts of
governmental departments as a decision-making process in which full
sentence after which they would be eligible for release on ‘licence’,
account may be taken of departmental policy rather than judicial
was incompatible with Article 6 of the European Convention on Human
application of legal rules that such matters may remain subject to
Rights (ECHR).
ministerial decision rather than judicial consideration.
(iv)
The Child Maintenance and Enforcement Commission (CMEC) was a
public body run by civil servants responsible for getting absent parents
(iii)
In M v Home Office, the House of Lords held that ministers and civil
servants were subject to the contempt jurisdiction of the courts.
(usually fathers) to pay child maintenance to the parent living with a
child (usually mothers) in accordance with the Child Support Act 1991.
In 2009, the law was changed to give civil servants power to require
fathers who had not paid to surrender their passports and driving
(b) On Influence and Control:
(i)
constitutional custom, and by professional and public opinion."
under the government was given wide powers to enforce payment of
child support by confiscating non-payers' passports as well; as having
(ii)
control over driving licences.
(v)
administrative law that the judges who decide claims of judicial review
brought
2009) in its Ninth Report was of the view that it is constitutionally
an independent and impartial judge.
individuals
should
be
wholly
independent
of
the
are challenged in this way.
have a sanction power to withdraw a person's right to hold a passport
restricting this right as a punishment demands rigorous examination by
by
government departments and other public authorities whose decisions
unsatisfactory for CMEC and its contractors—rather than the courts—to
from one's country is a constitutional right of such significance that
One essential function of the judiciary is to protect the citizen against
unlawful acts of government agencies and officials. It is fundamental to
The House of Lords Constitution Committee, Welfare Reform Bill (2008-
or on the right to hold a driving licence. The freedom to travel to and
Bradley and Ewing: "Although judges are appointed by the executive,
judicial independence of the judiciary is secured by law, by
licences. Under the Welfare Reform Act 2009, the enforcement agency
(iii)
The judicial function also relates to ascertaining whether the royal
prerogative exists when juxtaposed with a statute. In R v Secretary of
State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC
513, 567, the issue was whether a minister had acted unlawfully when he
decided not to exercise a power (by making delegated legislation) to bring
6
7
into force provisions in an Act of Parliament (Criminal Justice Act 1988)
(a)
that set out a scheme for compensating victims of violent crime. The
(i)
On Composition:
There is the strong convention that ministers also double up as members
government planned instead to put in place a new non-statutory
of either House of Parliament. Shadowing this would be their
scheme using the royal prerogative. The Fire Brigades Union and other
responsibility to Parliament for their acts as ministers. Further, by
trade unions were involved because they were concerned that their
convention, the PM must be a member of the Commons. Lord Hailsham
members would lose out. The majority of the Law Lords held that the
famously termed this domination of the legislature by the executive as
minister had acted unlawfully by deciding that he would never bring
the "elective dictatorship".
into force a provision that had been passed by Parliament.
(ii)
(iv)
The Westminster model assumes a situation in which there is strong collective
Much recently, the judicial function also relates to ascertaining whether
decision-making through the Cabinet. The experiences of government during
the royal prerogative can be used to change the law of the land
the tenure of Margaret Thatcher (1979-90), Tony Blair (1997-2007) are
without Parliamentary approval. In R (Miller) v Secretary of State for
interpreted by many commentators as periods of prime ministerial, rather
Exiting the European Union [2017] Supreme Court it was held that the
than collective Cabinet, government. In other times, Prime Ministers had less
government could not use the royal prerogative to trigger Article 50 to
power over their Cabinet colleagues. John Major (1990-97) and Gordon
leave the EU.
Brown (2007-10), Theresa May (2016-2019) are often seen as administrations in
which the Cabinet had more influence over government decision-making.
(v)
Following the case of GCHQ, the court claimed the power to review
the exercise of executive power, irrespective of whether it is statutory or
(b)
On Influence and Control:
prerogative by nature but would not rule on "non-justiciable" matters,
The House of Commons ultimately controls the executive since it can
which involve high policy. Judicial review is concerned with the process
oust a government which has lost the ability to command a majority on
by which executive decisions are made and not the merits of those
an issue of confidence as it did to the Callaghan minority government
decisions. See the recent case of R (On the Application of Miller) v
of 1979. This was also the political scenario towards the autumn of 2019
Prime Minister [2019] Supreme Court.
which constrained the Prime Minister Boris Johnson who was leading a
minority government (after his removed the Whip for 20 odd of
4.3
Conservative MPs) , via the Fixed Term Parliament Act 2011, to call for
Legislature and Executive
early elections on 12 December 2019 As long as the Government wields
4.3.1 SP Not Being Observed
In 1867, Walter Bagehot in “the English Constitution’ wrote that the
the confidence of the House of Commons, which it usually does, it has
"efficient secret" of the constitution lies in "the close union, the nearly
a decisive say.
complete fusion, of the legislative and executive powers". He stated
that the Cabinet is a combining committee – a hyphen which joins, a
(b)
On Functions:
"Delegated legislation - executive practicing the powers of the
buckle which fastens, the legislative part of the State to the Executive
legislature. Hilaire Barnett has however defended the use of delegated
part of the State. the connecting link (between executive and
legislations as a "necessity given the heavy legislative programme and
Parliament) is the Cabinet.
8
9
the modern complexity of legal regulation" provided parliamentary
At the same time, as the Queen in Parliament, she is a member of the
scrutiny is adequate and the courts are vigilant and effective.”
legislature.
4.3.2. SP Being Observed
(b)
Bagehot's critics have rejected the concept of fusion, arguing that the
close relationship between executive and legislature does not negate
Parliament)
(i)
the constitutional distinction between the two. As Amery wrote:
Government
and
Parliament,
however
closely
intertwined
The doctrine of legislative supremacy ensures that the courts are bound
by Acts of Parliament to the effect of being required to do certain acts.
and
Under the Human Rights Act 1998, the superior courts may declare an
harmonized, are still separate and independent entities, fulfilling the
Act of Parliament to be inconsistent with European Convention rights
two distinct functions of leadership, direction and command on the
(declarations of incompatibility under section 4 HRA 1998), but may not
one hand, and of critical discussion and examination on the other.
refuse to apply it unless section 3 HRA 1998 applies in interpreting
(a)
On Composition:
(i)
Whilst the LC was previously both a politically appointed member of the
Cabinet and the Speaker of the HOL, with the CRA 2005, he will no
legislation to conform with human rights: R v A [2000] HL
(ii)
Despite bringing rights home via the HRA, Parliament could yet derogate
from it, as most clearly seen with the Anti-Terrorism, Crime and Disorder Act
longer wear the latter hat.
(ii)
On Influence and Control (where the judiciary exerts control on
2001. A derogation order was made by the Secretary of State for Home
Section 2 House of Commons Disqualification Act 1976 allows no more
Department to authorise new powers of detention without trial contained
than 95 ministers to sit and vote in the House of Commons. Yet, in spite
in Part 4 of the Anti-Terrorism, Crime and Disorder Act 2001. Under it, where
of this the 95 ministers, when considered with their loyal Parliamentary
the Home Secretary issues a certificate in respect of an individual
Private Secretaries, generally ensures that the government would enjoy
reasonably believed to be a terrorist and a threat to national security, he
the support of 120 MPs.
may be refused leave to enter or remain in the UK and ensuingly
deported. Where deportation is not possible, say where it is to a country
(iii)
Furthermore, save for ministers, most of the members of the Executive
where they might be subjected to torture or inhumane treatment contrary
(e.g. the civil service, the armed forces and the police) are disqualified
to Art 3, they could be detained without trial, i.e. interned.
from the Commons. Police officers and some civil servants are also
restricted from taking part in political activities. Only ministers exercise a
(iii)
In A (FC) v Secretary of State for Home Dept [2004], while the Lords agreed
that such derogation is necessary, they also deemed these steps as
dual role as key figures in both Parliament and the executive.
disproportionate and discriminatory. A declaration was thus made to
4.4
Judiciary and Legislature
declare such measures incompatible with Arts 5 and 14 of the ECHR.
4.4.1 SOP Not Being Observed
(a)
On Composition
(iv)
In R (on the application of Cart) v Upper Tribunal; R (on the application of U
At the head of the judiciary is the Crown who represents the "fountain
and XC) v Special Immigration Appeals Commission [2011] UKSC 28. the
of justice" and all judicial acts are carried out in the name of the Crown.
last case, the question before the UK Supreme Court was whether the
10
11
legality of decisions of the Special Immigration Appeals Commission
(iii)
Because of the doctrine of precedent, the judicial function of declaring
(SIAC) and the Upper Tribunal could be challenged in claims for judicial
and applying the law has a quasi-legislative effect. The ability of the
review. Both of these statutory bodies were described in the legislation
judges to create law by their decisions is narrower than the ability of
setting them up as 'superior courts of record' and, on behalf of the
Parliament
bodies, it was contended that this status exempted them from judicial
established rules of law. However, there is much scope for judicial
review challenges (in the same way as the High Court, Court of Appeal,
lawmaking in relation to individual liberties and the principles of public
and UK Supreme Court are not subject to judicial review). The UK
law. Decisions in these areas may be welcomed as bringing old law up
Supreme Court held that SIAC and the Upper Tribunal were amenable to
to date (for example, by reversing the rule that a married man cannot,
judicial review.
in law, rape his wife: R v R, or the law of impossibility on attempts:
to
legislate,
since
Parliament
may
readily
change
R v Shivpuri )
(v)
The Superior Courts view ouster clauses on judicial review very narrowly
in that an ouster clause is ineffective if the decision made by the body
(iv)
might overrule a minister's claim on grounds of public interest immunity
Compensation Commission [1969] HL. In R (Privacy International) v
to withhold evidence in civil litigation.
Investigatory Powers Tribunal and others [2019] UKSC the Supreme Court
considered whether the supervisory jurisdiction of the High Court was
(v)
In Magor & St Mellons Rural District Council V Newport Corporation, Lord
Simonds criticized Lord Denning's broad "gap filling" attitude to statutory
‘ousted’ by s.67(8) of the Regulation of Investigatory Powers Act 2000
interpretation as a "naked usurpation of the legislative function".
(RIPA). By a majority of four to three, the Supreme Court ruled that RIPA
Recently, the section 3 of the Human Rights Act 1998 have given the
did not oust the supervisory jurisdiction for errors of law.
judges greater scope in statutory interpretation beyond the traditional
rules (see the views of Lord Steyn in the House of Lords decision in R v A)
(c)
On functions:
(i)
Each House has the power to enforce its own privileges and to punish
those found in want although it may not extend its own privileges save
by an Act of Parliament. The Parliament also has the sovereign power
to regulate its composition and procedure.
(ii)
In Conway v Rimmer [1968] the House of Lords held that the courts
is in excess of jurisdiction and in fact a nullity: Anisminisic v Foreign
4.4.2 SOP Being Observed
(a)
(i)
On Composition:
All members of the judiciary are disqualified from the Commons. In
Northern Ireland, members of the House of Commons, House of Lords,
The very doctrine of stare decisis bequeaths upon the court a quasi-
European Parliament, or one of the devolved parliamentary assemblies
legislative power, albeit narrower than the ability of Parliament to
may not be appointed or sit as a lay magistrate. There are no similar
legislate. Well-known examples include R v R [1990]; Knuller v DPP [1973];
restrictions in England and Wales, and several MPs sit as magistrates.
and Shaw v DPP [1962].
(ii)
Previously, all Law Lords received life peerages so that they take part, to
some extent, to the HOL's legislative business. In Davidson v Scottish
Ministers (2005), it was held that the Lords' participation in debates on
12
13
legislations would give rise to, in the mind of the "fair-minded and
(iii)
(vii)
The first exception is the House of Lords decision in Pepper (Inspector of
informed" observer, a "real possibility" that the Lords would be biased
Taxes) v Hart [1993] which permits the judge to receive evidence in
when called on to rule judicially on that legislation later in that he could
the form of extracts from the Hansard in which the Minister responsible
not "bring an objective and undistorted judgment to bear on the issue
for introducing the Bill to Parliament explains what it is intended to
raised".
achieve. The conditions for admissibility are;
(a) the statutory provision that court is trying to interpret is
After the Hunting Bill was debated in 2003 in the House of Lords, two of
ambiguous; and
the Law Lords, Lord Scott and Lord Hoffman, voted against the passage
(b) the Minister’s statement is itself clear.
of the said Bill in the House of Lords. Because they expressed prohunting views, these two law Lords were unable to be members of the
(viii)
nine-judge panel of Law Lords in R (Jackson) v AG [2005]. Taking part in
individual waiver of privilege by MPs in an action brought against
the appeal would have breached Article 6 of ECHR (on fair trials) which
has
participated
in
the
legislative
process
from
subsequently
adjudicating on issues under that legislation.
(iv)
The second exception is the Defamation Act 1996 which allows for
another party outside court or defended against by the MP.
(ix)
The sub-judice rule requires that MPs should not seek to bring up in
debates, questions and motions cases that are pending or being
It cannot be denied however that judicial expertise greatly enrich
heard in court. On criticism of judges after a judgment is delivered, see
debates which thus take place in the House of Lords as well as being
Chapter 16 (The Judiciary where this issue is discussed at length).
invaluable in the scrutiny role of the HOL. Lord Bingham said that the
Lords will not indulge in legislative work which involves "matters where
there is a strong element of party political controversy".
(b)
(i)
On Influence and Control:
The doctrine of legislative supremacy prevents the courts from
reviewing the validity of legislations. In one sense, this bars the courts
(v)
Part 3 of the CRA 2005 put an end to this by creating a new Supreme
from entering into the political arena such that they will not be able to
Court for the UK, separate from the HOL. In future, all Supreme Court
pass judgment on matters which truly lie with the executive given their
justices will not be entitled to receive life peerages.
political nature. See however the views of Lord Woolf in 1995 and the
obiter dicta in the House of Lords case of Jackson v AG [2005].
(vi)
Article 9 of the Bill of Rights relates to Parliamentary Privilege. The courts
should not allow parties to litigation to put in as evidence statements
(ii)
Even the HRA 1998 was drafted consciously so as to reflect
made in Parliament and reported in the Hansard or evidence given to
Parliament's supremacy. Section 3 CRA 2005 imposes a duty upon the
or reports made by parliamentary committees see hoever the dicta of
LC and other government ministers to uphold judicial independence.
Lady Hale in R (On the Application of Miller) v Prime Minister [2019]
(iii)
The Act of Settlement held that judicial salaries should be "ascertained
and established", suggesting that judicial salaries should be fixed by
statute and not left to executive discretion which may result in judges
14
seeing their salaries trimmed as a punishment for unpopular decisions.
Chapter 5: The Royal Prerogative (1)
The governing Act at present is the Judges' Remuneration Act 1965.
(iv)
Similarly, their tenure is protected by s11 (3) Supreme Court Act (for
High Court and COA judges); s6 Appellate Jurisdiction Act 1876 (for
5.1 Introduction
(i)
Dicey in ‘Law of the Constitution’ defines the prerogative as: “the residue
Law Lords); and s33 CRA 2005 (for future Supreme Court Justices). Art
of discretionary or arbitrary authority, which at any time is legally left in the
6 also provides an indirect guarantee of judicial independence.
hands of the Crown…Every act which the executive can lawfully do
without the authority of an Act of Parliament is done in virtue of this
(v)
By statute judges of the superior courts may be removed by the Crown
prerogative…”
on an address from both Houses, but only once since the Act of
Settlement has Parliament exercised the power of removal." The rules
of debate in the Commons protect judges from certain forms of
(ii)
(vi)
(vii)
According to Hilaire Barnett, five points about the prerogative have to be
noted.
criticism.
(a)
First these powers are inherent in, and peculiar to the Crown.
It is a rule of Parliamentary Practice that save the discussion is based
(b)
Secondly, the powers derive from common law;
on a substantive motion, conduct of a judge or judges in general must
(c)
These powers are residual.
not be questioned.
(d)
Thirdly, the majority of these powers are exercised by the executive
government in the name of the Crown.
While the courts may examine acts of the executive to ensure that
(e)
they conform with the law, the doctrine of legislative supremacy
denies the courts the power to review the validity of legislation: Pickin
v British Railway Board [1974]. The judges are under a duty to apply
(iii)
and interpret the laws enacted by Parliament. The effect of their
Parliamentary supremacy, all that is left of the Crown's prerogative powers
necessary, retrospectively. In one sense, therefore, the courts are
are those left untouched by Parliament.
constitutionally subordinate to Parliament, but the courts are bound
(iv)
which may have no legal force.
(viii)
In BBC v Johns [1965] Lord Diplock stated “It is 350 years and a civil war too
late to broaden the Queen’s prerogatives” With the establishment of
decisions may be altered by Parliament both prospectively and also, if
only by Acts of Parliament and not by resolutions of each House,
No Act of Parliament is necessary to confer authority on the exercise
of these powers.
There are some elements of executive power which have its source from
the Crown which by convention is exercised by Minsters of the Crown,
and more often than not the Prime Minister, and it does import some
The Supreme Court, established under the Constitutional Reform Act
element of arbitrariness (juxtapose with Dicey’s first conception).
2005, commenced operation in October 2009.
2
(vi)
3
Until 1984, if the prerogative power did exist and could be exercised, the
(iv)
courts were reluctant to entertain challenges to its exercise under judicial
The actual power which is exercisable by the Crown is limited in two ways:
(a)
review. The tide turned after the landmark House of Lords decision in
Majesty’s government or Her Majesty’s judges in her name.
Council of Civil Service Unions v Minister for the Civil Service [1985]
(b)
(abbreviated often as the ‘the GCHQ case) where it was ruled that the
exercise of the power could prima facie be amenable to judicial review
and the court’s supervisory role could only be displaced by the concept
of justifiability.
5.2
Prerogative Today
(i)
The constitutional issue to be considered here is the relationship between
statute and prerogative and the control, judicial or political, of the
the existence and the scope of a purported prerogative power is
subjected to the scrutiny of the courts.
5.3
A brief summary of the prerogative
(a)
foreign affairs (also known as acts of State)
(i)
power to make declarations of war and peace,
(ii)
power to enter into Treaties
(iii)
the recognition of foreign States
(iv)
diplomatic relations and granting diplomatic protection to British
Citizens abroad.
prerogative.
(ii)
By convention the majority of the powers are exercised by her
(v)
disposition of armed forces overseas.
(vi)
governance of British Overseas Territories
(b)
Domestic affairs
(i)
appointment of Ministers
(ii)
Royal assent to Bills
(iii)
the granting of honours
(iv)
defence of the realm
personal prerogatives of the Crown include the grant of honours such as
(v)
the keeping of peace
the Order of Merit, Orders of the Garter and Thistle. According to Bagehot
(vi)
the parens patriae wardship jurisdiction of the courts
in ‘the English Constitution’ the sovereign has three other rights-the right to
(vii)
the power to stop criminal prosecutions -‘nolle prosequi’
be consulted, the right to encourage, the right to warn.
(viii)
the prerogative of mercy ie currently, the reduction of sentences or
Another prerogative notion still exists till today i.e. The Crown never dies,
(ix)
Crown’s powers are now mostly exercised by the executive in the name
of the Crown. Earlier the Crown retained important residual powers of
these, the dissolution of Parliament and appointment of the Prime Minister
are the most significant. The former has been statutorily superseded by the
Fixed Term Parliaments Act 201.
(iii)
The
pardoning of offenders
(iii)
the Crown is never an infant and the Crown can do no wrong, thus
placing the Queen outside the jurisdiction of the courts and guaranteeing
immunity from protection in her own courts.
the right to treasure trove, and to royal fish and swans.
4
5. 3. 1 The prerogative and domestic affairs
(a)
5
(d)
Prerogative of mercy
The dissolution of Parliament.
This has two aspects the power to grant pardons, reduction of sentences
The dissolution of Parliament was prior to 2011 perhaps the most important
and the power to enter into nolle prosequi. On proceedings on indictment,
residual prerogative exercised personally by the Sovereign and represents
the Attorney General, in the name of the Crown can enter into a nolle
the greatest potential for controversy. The Fixed-Term Parliaments Act 2011
prosequi the effect of which stops the legal proceedings. This power is not
brought in fixed term five-year Parliaments and places the dissolution of
subject to control by the courts: R v Comptroller of Patents. (1899)
Parliament on a statutory basis.
(e)
Law Enforcement
(c)
The appointment of the Prime Minister.
For many legal proceedings, the consent of the AG is required. The AG has
(i)
By convention the Queen must appoint the person who can command a
a discretion whether or not to institute proceedings. In Gouriet v Union of
majority in the House of Commons, who under normal circumstances will
Post Office Workers (1978) this discretion was tested. The Court of Appeal
be the leader of the political party which secures the greatest number of
held that there was no power to review the exercise of the AG’s decision.
parliamentary seats in the general election.
Lord Denning MR, in the minority held that the refusal by the AG to give
(ii)
reasons for refusing (or withholding consent) was contrary to the rule of
The difficult position arises however where the election produces no
law. On Appeal to the House of Lords, Lord Wilberforce stated that “… he
outright winner, resulting in no one party having an overall majority-a ‘hung
need not give reasons…”.
Parliament arises.’ E.g. in 1974 the Conservative party lost the General
Election by a small number of seats and could command no overall
majority.
(f)
Prime Minister did not tender his resignation but entered into
of Tistle, the Royal Victoria Order and the Order of Merit. Otherwise the
government. When these failed Mr Heath resigned and the Queen invited
conferring of Honours is by the Queen acting on the advice of the Prime
the Leader of the Labour party to become the Prime Minister. See also the
Minister.
political uncertainty after the 2010 and 2017 elections.
(iii)
There is however no duty on the Prime Minister to recommend the man to
The granting of honours.
The Queen has the personal right to confer the Order of Garter, the Order
negotiations with other political parties in order to form a coalition
(g)
The regulation of the Civil Service
The Constitutional Reform and Governance Act 2010 abolished the royal
be sent for. It is theoretically the sovereign who decides whom to send for
prerogative in managing the civil service. The Act established a statutory
and invite to form a government. Theresa May remained as Prime Minister
basis for the appointment and management of the civil service.
after the election on 9.6.2017 when her party formed a loose coalition
(confidence and supply agreement) with DUP of Northern Ireland.
6
(h)
Regulation of the Armed Forces.
7
(ii)
In R v Foreign Secretary ex parte Everett (1989), the court for the first time
Members of the armed forces are regulated under the royal prerogative.
held that the granting and withholding passports could be the subject
The Sovereign is Commander-in-Chief of the armed forces whose control,
matter for judicial review by the courts.
organisation and disposition are within the prerogative and cannot be
questioned in any court of law- China Navigation Co. Ltd v AG (1932);
Chandler v DPP (1964).
(e)
Treaty- making powers
(i)
The power to enter into treaties under international law is a feature of the
sovereignty of the state and it is generally regarded that such a power is
an emanation of the prerogative. Accordingly a Treaty - being a
5.3.2 The Prerogative and foreign affairs
(a)
creature of international law cannot alter national law without being
Acts of State - Acts of state in relation to foreign affairs. This is an act of the
given effect by an Act of Parliament - Walker v Baird (1982).
executive as a matter of policy performed in the course of its relations with
another State, including its relations with the subjects of that State, unless
(b)
It is for that reason that the European Community Act 1972 was enacted
they are temporarily within the allegiance of the Crown. It includes the
to provide for entry and application of European Community law into the
recognition of foreign States and government, diplomatic relations-
United Kingdom. The treaty-making power of the executive was
including the sending of diplomats and the reception of foreign diplomats-
challenged in R v Secretary of State ex parte Rees-Mogg (1994). In
declarations of war and peace and the annexation or cession of territory.
February 1991 the Heads of Government of the Member States of the
Declarations of war and peace: Where a declaration of war has been
made, the status of nationals of the enemy state within the United
Kingdom is altered. If the Secretary of State for the Foreign Office issues a
certificate to the effect that a state of war exists, this must be accepted by
the courts- R v Botrill, ex parte Kuechenmeister (1947).
(c)
(ii)
Annexation and cession of territory- The Crown also has the power to alter
the limits of British territorial waters - R v Kent JJ ex parte Lye (1967).
European Community signed the Treaty of Union- the Maastricht treaty.
The Treaty was to come into effect on ratification by the member states.
Under constitutional practise in UK a treaty need only be approved by
Parliament if it requires a change in legislation or the grant of public
money.
The issue raised in this case was whether the government had the power
to ratify the said treaty without the approval of the House of Commons. It
was clear that there was substantial opposition to the treaty on all sides
(d)
(i)
Issue of Passports
The conventional classification of the right to issue and withhold passports
of the House.
is that of Crown’s prerogative. At common law citizens have the right to
The Prime Minister announced that the Treaty would be ratified under the
enter and leave the realm. Nevertheless it is extremely difficult in practice
prerogative thus avoiding the risk of parliamentary disapproval. The
to travel without a passport, which is issued under the prerogative.
Queens Bench Division refused to grant an application for judicial review:
the matter was within the prerogative of the Crown. In the long-run the
8
9
Bill bringing the Treaty into effect in the law of the United Kingdom was
The significance of the above case is that the House of Lords declared that
passed by the Commons and the Lords. (contrast with R (Miller) v
the exercise of the prerogatives of the Crown could in principle be subject
Secretary of State for Exiting the European Union [2017] Supreme Court, to
to judicial review. There were however prerogatives the exercise of which
be discussed in detail at the end of this chapter)
was not justiciable. These included matters such as the appointment of
Ministers, dissolution of Parliament, grant of honours, treaties and matters of
5.4
Controls on Prerogative
national security which were not appropriate subjects for review by the
5.4.1 Judicial (by judicial review or judicial pronouncements)
courts as these are matters of high policy and are best left for Ministers to
(i)
decide and Parliament to control.
In ex p Fire Brigades' Union, the act of the Home Secretary introducing a
scheme radical different to that of the Criminal Injuries Compensation
Scheme obligated by the Criminal Justice Act 1988, claiming to act under
(iii)
and withholding of passports was within the powers of the courts to review
unfettered discretion as to whether to implement the statutory scheme
but in these case the grounds for judicial review were not made out.
and he could not, through the use of prerogative, defeat the purpose of
the statute.
(ii)
A case in which the exercise of the prerogative was justiciable was the
case of R v Foreign Secretary ex parte Everett (1989) where the issue of
royal prerogative, was held to be ultra vires. Further, he did not have an
(iv)
In A-G v de Keyser's Royal Hotel [1920], it was stated that where statute
In The Council for Civil Service Unions v Minister of State for the Civil Service
seeks to regulate a matter previously within the realm of prerogative but
[1985] the Prime Minister as Minister of the Civil service, by prerogative
yet does not expressly abolish the prerogative, the statute would prevail in
order terminated the rights of workers at the Government Communications
line with the doctrine of legislative supremacy. The prerogative would fall
Headquarters(GCHQ) to belong to trade unions. The Union sought judicial
into "abeyance" waiting to be awakened once the statute has been
review claiming that they had a legitimate expectation to be consulted
repealed.
prior to their rights to membership being withdrawn.
(v)
In Laker Airways v Department of Trade [1977] it was held once again that
The House of Lords accepted that the terms and conditions of the
the government could not defeat a statutory right which regulated a
employment of civil servants were within the prerogative powers of the
specific area by use of the prerogative power. In this case the statutory
Crown. Their Lordships accepted that the employees had a legitimate
right gave the Secretary of State the power to give guidance to the Civil
expectation
Aviation Authority on the policy to follow in considering licencing
to
be
consulted
before
their
rights
were
affected.
applications. What the Secretary of State could not do however was to
Nevertheless this was overridden in the interests of national security.
give ‘guidance’ on withdrawing Laker Airways’ licence was ultra vires as it
went beyond giving mere guidance and fell within the ambit of
‘instructing’ the Authority
10
(vi)
In the case of Secretary of State for the Home Department ex parte
(viii)
If the Secretary of State for Foreign and Commonwealth Affairs issues a
Northumbria Police Authority [1988] the issue of the relationship between
certificate to the effect that a state of war exists, this must be accepted
statute and the prerogative once again surfaced. The Police Act 1964
by the courts (R v Botrill ex p Kuechenmeister).
set out the respective powers of the Home Secretary, the Police
Authorities and the Chief Constable of police with regard to, inter alia,
the supply of equipment to the police forces.
(ix)
In R (G) v Home Secretary [2012] EWCA Civ 867; [2013] 2 WLR 1277, the
Court of Appeal considered, inter alia, the relationship between the royal
prerogative and statute. The royal prerogative is that residue of power
The Secretary of State issued a circular that he would be making
which remains in the hands of the Crown, but which for the most part is
available supplies of riot-control equipment to the police forces,
exercised by the government in the name of the Crown. It has long been
irrespective of the approval of the police authorities. The Northumbria
established that where an Act of Parliament regulates a matter
Police Authority sought judicial review on the legality of the circular. The
previously regulated under the prerogative, the statute will prevail: the
Home Secretary argued that he had the power under the prerogative to
courts will give effect to Parliament’s ‘sovereign will’ and the prerogative
issue the weapons.
will be set aside.
The Court of Appeal held that no monopoly was reserved to the police
In R (G) v Home Secretary, the claimant, a naturalised British citizen born
authority and accordingly the Secretary of State had not acted ultra
in Sudan, left the United Kingdom while on bail for a public order offence.
vires. It accepted that the Police Act 1964 had left unaffected the
The Home Secretary decided to deprive him of his citizenship on the basis
prerogative powers to keep the peace.
that it was conducive to the public good because he was considered to
It was also stated that the prerogative powers to take all reasonable
steps to preserve the Queen’s peace remained unaffected by the Act
and these include the supply of equipment to the police forces which is
reasonably required for the more efficient discharge of their duties.
(vii)
11
However, the exercise of a number of prerogatives does not fall under
judicial control. The prerogative of mercy has traditionally been viewed
as unreviewable by the courts. "Mercy is not the subject of legal rights. It
be involved in terrorism-related activities (Under the British Nationality Act
1981, section 40(2), as substituted by section 56(1) of the Immigration
Asylum and Nationality Act 2006).
The decision to exclude the claimant was taken under the Crown’s
common law prerogative powers, and as such did not attract any
statutory right of appeal. The claimant was therefore obliged to
challenge the decision by way of judicial review.
begins where legal rights end." (Lord Diplock, De Freitas v Benn) The
power of nolle prosequi is also not subject to the courts' control (R v
Comptroller of Patents).
There were three grounds of appeal, the first of which is of principal
interest
here.
That
ground
was
that
Parliament
had
impliedly
‘extinguished’ the Crown’s common law or prerogative power to
12
13
exclude a person from the United Kingdom pending his appeal against a
Secondly, through its scrutiny mechanisms, call the government to answer
decision taken under the 1981 Act. On this point, Laws LJ stated that:
for its use of prerogatives.
“…By definition the prerogative power is not authorised by Parliament. It
is the residue of legal authority remaining in the hands of the Crown
(ii)
As with other acts of government, prerogatives are subject to the full array
of parliamentary procedure such as Question Times, debates and select
which Parliament has not abrogated or modified. It is common ground
committees.
that by virtue of its prerogative the Crown has ample power to exclude
an alien from the United Kingdom, unless the power has been abrogated
(xi)
(iii)
However, there lie a number of issues which ministers conventionally
or modified….. … there is nothing in the statutory provisions … which
decline to furnish information on and these matters are precisely those
touches on the Crown’s undoubted common law prerogative power to
which fall within the scope of prerogative. Examples would include the
exclude the appellant once the section 40(2) order had been made.…”
disposition
In R (XH) v Secretary of State for the Home Department [2017] EWCA Civ
41 the Court of Appeal held that the executive retained the prerogative
the
armed
forces,
government
contracts,
judicial
grant of honours as well as the broad notions of national security,
Prime Minister [2019] discussed in detail at 5.7 below.
(xiii)
of
appointments, investigations by the Director of Public Prosecutions the
See also the Supreme Court decision in R (On the application of Miller) v
confidentiality and public interest: Duncan v Cammell Laird [1942].
(iv)
In the furore over the manner in which PM Tony Blair dragged UK into the
Iraq war, it was said by Ron Bailey that "going to war is one of the most
power to refuse to issue or to cancel a passport issued to a person whom
important decisions a country can take, but our democratically elected
the Home Secretary was satisfied had been involved in terrorist activities.
parliament has no formal right to debate the issue, as the prime minister
The claimant had argued that the purported exercise of the prerogative
uses the royal prerogative to make the decision,".
was invalid because that power had been impliedly abrogated by the
Terrorism Prevention and Investigation Measures Act 2011. The Court
(v)
In March 2011 the use of the royal prerogative was in the limelight once
disagreed. There being no express restriction in the Act, to succeed the
again when the government decided to embark on air strikes in Libya
claimant had to show that the prerogative was abridged or abrogated by
without seeking Parliament’s prior agreement or approval, although the
'necessary implication'. Necessary implication is a strict test and in this case
issue was brought up in Parliament after the intervention had begun.
was not established.
5.4.2
How effective then are the political controls on prerogatives?
(i)
As Hilaire Barnett notes, there are 2 principal means whereby Parliament
(vi)
Conventions would appear to be another political means whereby the
exercise of prerogatives could be regulated. Whilst it is constitutional
theory that the Queen may appoint whomsoever she pleases to the
office of PM, by convention, she must appoint the person who
may curtail the use of prerogatives. Firstly, abolish the prerogative and
commands a majority in the Commons.
place it on a statutory basis, as with the Bill of Rights and the Treasure Act.
2
Chapter 5: Royal Prerogative (2)
(vii)
Back in 1988, Tony Benn introduced a Private Member's Bill to place
prerogative powers under statutory authority. In 2005, unhappy with the
5.5
Should Prerogatives Be Put On a Statutory Footing?
way PM Blair brought UK into the Iraq War, with the Commons approval
(i)
Given UK's unwritten constitution, there is no agreed text as to the
forthcoming only on the eve of fighting in March 2003 such that
prerogative. The exercise of identifying prerogatives and mapping out
eyebrows were raised as to the legal situation, Claire Short brought
their contents requires an examination of the historical attributes of the
another Private Member Bill to entrench the right of Parliament to
Crown which at the same time, rests upon the attitudes of the courts.
approve war. Both Bills fell in parliament.
(ii)
(iii)
In Ex parte Northumbria Police, it was intriguing that the courts found
(viii)
The government’s Constitutional Reform and Governance Act 2010
that the prerogative powers of the Home Secretary existed. This stands
was the recent constitutional reform on the royal prerogative. The Act
uneasily with Lord Camden's assertion in Entick v Carrington that if
established a statutory basis for the appointment and management of
there existed authority for the lawful exercise of power, it would be
the civil service, and introduced a new parliamentary procedure for
found "in the books".
the approval (ratification) of treaties.
The process of putting prerogatives on statutory terms would clearly
5.6
The royal prerogative and the attempted trigger of Article 50 of the
define the nature and scope of prerogatives. Even if the very
Treaty of the European Union using the royal prerogative leading to R
existence of prerogatives in their present unwritten form could
(Gina Miller and Others r) v Secretary of State for Exiting the European
somehow be determined accurately, the manner of their exercise
Union [2017] UKSC (“the first Miller case)
remains questionable.
5.6.1 The June 2016 referendum and Brexit
(vi)
In July 2006, the House of Lords’ Committee on the Constitution
(i)
After the June 23 2016 referendum and subsequent resignation of the
published a report entitled Waging War: Parliament’s Role and
Prime Minister David Cameron, the current Prime Minister Theresa May
Responsibility which had examined the nature of the executive’s
indicated that she would invoke the royal prerogative as an executive
powers in relation to the fundamentals of peace and war, and
act to trigger Article 50 of the Treaty of the European Union.
concluded “that the exercise of the Royal prerogative by the
Government to deploy armed forces overseas is outdated and should
(ii)
Article 50 of the Treaty of European Union provides that a Member
not be allowed to continue as the basis for legitimate war-making in
State ‘may decide to withdraw from the Union in accordance with its
the 21st century. Parliament’s ability to challenge the executive must
own constitutional requirements’. Once notification to withdraw has
be protected and strengthened."
been given, a two-year period follows (unless extended by Brussels)
The Committee did not favour proposals for legislating to place the
during which the terms of withdrawal and future relations with the EU
prerogative on a statutory basis or to make parliamentary approval a
are negotiated. It is the meaning of the phrase ‘in accordance with its
prior legal condition for use of the armed forces. In lieu, it proposed
own constitutional requirements’ that has given rise to arguments over
that that there should be a "parliamentary convention" determining
whether Article 50 can be triggered under the royal prerogative or
the role Parliament in this sphere.
whether only Parliament can authorise the notification to withdraw.
3
(iii)
A challenge on the intended exercise of the prerogative power was
4
(iii)
For the government it was argued that Parliament could choose to
launched by one Gina Miller and certain others, against the Minister for
leave prerogative power in the hands of the Crown, even if its use
Exiting the European Union (David Davis) alleging that the royal
would result in a change to common law and statutory rights. To
prerogative could not be invoked and that Parliamentary approval
remove the prerogative required express words in a statute (or words
was necessary before Article of TFEU could be triggered.
which led to a necessary implication that this was intended) and no
such words could be found in the ECA 1972 or any other statute.
(iv)
The High Court decided that the Government could not use the royal
prerogative to trigger Article 50 and the government thereafter appeal
(iv)
European Communities Act 1972. Unless Parliament legislates to the
sat on the appeal and the Supreme Court essentially affirmed the
contrary — the Crown ‘should not have power to vary the law of the
decision of the High Court below and ruled, by a majority of eight to
land by the exercise of its prerogative powers’.
three, that Prime Minister Theresa May could not lawfully bypass MPs
and peers by using the royal prerogative to trigger Article 50 of the
(v)
created by the ECA 1972′. That made it especially unlikely that
Parliament intended to leave their continued existence in the hands of
5.6.2 The High Court decision
(ii)
ECA 1972 was a statute of ‘special constitutional significance’ and ‘the
wide and profound extent of the legal changes in domestic law
Lisbon Treaty.
(i)
Central to the High Court’s reasoning was the interpretation of the
(leap frog) to the Supreme Court. All 11 Judges of the Supreme Court
R (Gina Miller and Others) v Secretary of State for Exiting the European
the Crown’. Moreover, Parliament having legislated to accept the
Union [2016] EWHC 27768 (Admin) the High Court considered the
direct effect of EU law, it was ‘… not plausible to suppose that it
question whether the government (in the name of the Crown) could
intended that the Crown should be able by its own unilateral action
use prerogative powers to give notice under Article 50.
under its prerogative powers to switch it off again’
The principal argument for the claimants was that the Crown’s
(vi)
The Court concluded that the Crown had no prerogative power to
prerogative powers could not be used by the government to ‘diminish
effect a withdrawal from the relevant Treaties by giving notice under
or abrogate rights under the law of the United Kingdom’ unless
Article 50 of the TEU. The Government thereafter appealed (leapfrog)
Parliament had given authority to the Crown to do so. It was accepted
to the Supreme Court which, by a majority of 8 to 3 affirmed the High
that triggering the Article 50 process was irreversible and would
Court decision.
inevitably lead to the UK leaving the EU at the end of the two-year
5.6.2 The Supreme Court decision
period.
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC
Thus rights conferred under EU law will inevitably be diminished or
5: (Judgment delivered by Lord Neuberger)
repealed and that the giving of notice under Article 50 would remove
The claimants submitted that, owing to the well-established rule that
the real decision over rights from Parliament.
prerogative powers may not extend to acts which result in a change to
UK domestic law, and withdrawal from the EU Treaties would change
5
6
domestic law, the Government cannot serve a Notice unless first
Reasons for the majority judgment
authorised to do so by an Act of Parliament.
The Supreme Court considered that the terms of the ECA, which gave
Resolution of this dispute depends on the proper interpretation of the
European Communities Act 1972 (‘the ECA’), which gave domestic
effect to the UK’s obligations under the then existing EU Treaties,
together with subsequent statutes, which gave effect to and related to
later EU Treaties, and the European Union Referendum Act 2015.
effect to the UK’s membership of the EU, are inconsistent with the
exercise by ministers of any power to withdraw from the EU Treaties
without authorisation by a prior Act of
Parliament
Section 2 of the ECA authorises a dynamic process by which EU law
becomes a source of UK law and takes precedence over all domestic
sources of UK law, including statutes. So long as the ECA remained in
The devolution issues require the court to consider whether the terms of
force its effect was to constitute EU law as an independent and
the Northern Ireland Act 1998 (‘NIA’), and associated agreements,
overriding source of domestic law.
require primary legislation, and the consent of the Northern Ireland
UK domestic law would change as a result of the UK ceasing to be
Assembly and/or the people of Northern Ireland, before a Notice can
party to the EU treaties and the rights enjoyed by UK residents granted
be served.
through EU law will be affected (eg 267 reference to the CJEU,
Under each of the devolution settlements in Northern Ireland, Scotland
and Wales the devolved legislatures have responsibilities to comply
with EU law, and there is a convention (‘the Sewel Convention’) that
the UK Parliament will not normally exercise its right to legislate with
regard to devolved matters without the agreement of the devolved
legislature.
Judgment
The Supreme Court by a majority of 8 to 3 dismissed the Secretary of
State’s appeal (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr,
Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge in the majority
with Lord Reed, Lord Carnwath and Lord Hughes dissenting).
participation in European Parliamentary Elections as well Treaty
Provisions, as regulations under EU law which have direct effect and
directives having indirect effect under eg State liabiity)
Withdrawal makes a fundamental change to the UK’s constitutional
arrangements, by cutting off the source of EU law. Such a fundamental
change will be the inevitable effect of a Notice being served. The UK
constitution requires such changes to be effected by Parliamentary
legislation.
The fact that withdrawal from the EU would remove some existing
domestic rights of UK residents renders it impermissible for the
Government
to
withdraw
from
the
EU
Treaties
without
prior
Parliamentary authority
It would have been open to Parliament when enacting the ECA to
The Supreme Court held that an Act of Parliament is required to
authorise ministers to withdraw from the EU Treaties, but since ECA was
authorise ministers to give Notice of the decision of the UK to withdraw
a constitutional statute, clear words would have been required; not
from the European Union. On the devolution issues, the court
only are there no such clear words. Withdrawal is not authorised by
unanimously concluded that neither section 1 nor section 75 of the NIA
section 2, which envisages ministers taking part in the EU law-making
is of assistance in this case, and that the Sewel Convention does not
processes: withdrawing from the EU is doing the opposite.
give rise to a legally enforceable obligation.
7
8
The 2016 referendum is of great political significance. However, its legal
debate and approve or disapprove the proposed withdrawal agreement,
significance is determined by what Parliament included in the statute
failing which, UK would have left the European Union without any
authorising it, and that statute simply provided for the referendum to
negotiated agreement on 31.10.2019. Two cases were commenced one
be held without specifying the consequences. The change in the law
by Gina Miller in the High Court in London and one by Cherry & others in
required to implement the referendum’s outcome must be made in the
the Scottish Court of Sessions.
only way permitted by the UK constitution, namely by legislation. The
resolution of the House of Commons on 7 December 2016 calling on
(iv)
The case of R (Miller) v Prime Minister [2019] UKSC 41 reached the
Supreme Court as an appeal from the Scottish Court of Session in
ministers to give notice under Article 50 by 31 March 2017 was a
Cherry v Advocate General for Scotland [2019] CSIH 49 and the High
political act which does not affect the issues arising in the appeals.
Court’s decision in Miller v Prime Minister [2019] EWHC 2381.The
The devolution issues
Supreme Court, ruled unanimously that the advice given to the Queen
As to the application of the Sewel Convention to the decision to
to prorogue Parliament, and the subsequent prorogation, was unlawful
withdraw from the EU given the effect on the devolved competences,
and of no effect.
the Convention operates as a political constraint on the activity of the
UK Parliament. It therefore plays an important role in the operation of
(v)
The Court ruled, first, that the issue was justiciable: the courts had been
protecting parliamentary sovereignty by restricting the prerogative for
the UK constitution. But the policing of its scope and operation is not
centuries (Case of Proclamations (1611); Entick v Carrington (1765);
within the constitutional remit of the courts.
Attorney-General v De Keyser’s Royal Hotel Ltd (1920); Burmah Oil v Lord
5.7
R (On the Application of Miller) v Prime Minister [2019] UKSC (“the
second Miller case”)
5.7.1 The events leading to prorogation of Parliament for five weeks from the
Advocate (1965); Fire Brigades Union (1995)).
(vi)
(i)
the Supreme Court, stated that parliamentary sovereignty would be
Boris Johnson was sworn in Prime Minister on 24 July 2019 after he
undermined if the executive, via the royal prerogative, could prevent
emerged as leader of the Conservative party after Theresa may
Parliament from exercising its legislative authority. On accountability,
resigned as leader of the party and had remained as interim Prime
the longer Parliament was prorogued the greater the risk that
Minister.
(ii)
accountable government would be replaced by unaccountable
government.
Thereafter there was in impasse in Parliament about the terms of the
negotiations in the withdrawal agreement and between 1st September to
4 September 2019, the government lost out on 5 motions.
(iii)
Two fundamental principles underpin the constitution: parliamentary
sovereignty and parliamentary accountability. Lady Hale, President of
2nd week of September until 14 October 2019.
(vii)
There were therefore legal limits, as defined by the courts, on the
power to prorogue. Prorogation will be unlawful if it would frustrate,
Boris Johnson had on 27th or 28th August 2019 advised the Queen to
‘without reasonable justification, the ability of Parliament to carry out its
prorogue Parliament by Order in Council from mid- September until 14
constitutional functions as a legislature and as the body responsible for
October 2019, which was effected. This left Parliament only 2 weeks to
the supervision of the executive’.
9
10
On 27th or 28th August, in a telephone call, he formally advised Her
5.7.2 Case analysis – the brief grounds of Judgment by Lady Hale P
Majesty to prorogue Parliament between those dates. On 28th August, Mr
R (on the application of Miller) (Appellant) v The Prime Minister
Jacob Rees-Mogg, Leader of the House of Commons and Lord President
(Respondent)
of the Privy Council, Mr Mark Harper, chief whip, and Baroness Evans of
Cherry and others (Respondents) v Advocate General for Scotland
Bowes Park, Leader of the House of Lords, attended a meeting of the Privy
(Appellant) [2019]
Council held by the Queen at Balmoral Castle. An Order in Council was
made that Parliament be prorogued between those dates and that the
Because of the importance of the case, a panel of 11 Justices, the
Lord Chancellor prepare and issue a commission for proroguing
maximum number of serving Justices who are permitted to sit was
Parliament accordingly…
convened. The judgment was the unanimous judgment of all 11 Justices.
In giving the judgment of the Court Lady Hale stated:
Parliament returned from the summer recess on 3rd September. The
House of Commons voted to decide for themselves what business they
We have before us two appeals, one from the High Court of England and
would transact. The next day what became the European Union
Wales and one from the Inner House of the Court of Session in Scotland. It
(Withdrawal) (No 2) Act passed all its stages in the Commons. It passed all
is important, once again, to emphasise that these cases are not about
its stages in the House of Lords on 6th September and received royal
when and on what terms the United Kingdom is to leave the European
assent on 9th September. The object of that Act is to prevent the United
Union.
Kingdom leaving the European Union without a withdrawal agreement
They are only about whether the advice given: by. The Prime Minister to
Her Majesty the Queen on 27th or 28th August, that Parliament should be
prorogued from a date between 9th and 12th September until 14th
October, was lawful. And the legal consequences if it was not. The
question arises in circumstances which have never arisen before and are
unlikely to arise again. It is a "one-off".
On 15th August, Nikki da Costa, Director of Legislative Affairs at No 10,
sent a memorandum to the Prime Minister, copied to seven people, civil
servants and special advisers, recommending that his Parliamentary
Private Secretary approach the Palace with a request for prorogation to
begin within 9th to 12th September and for a Queen's Speech on 14th
October. The Prime Minister ticked 'yes' to that recommendation.
on 31st October.
On 11th September, the High Court of England and Wales delivered
judgment dismissing Mrs Miller's claim on the ground that the issue was not
justiciable in a court of law. That same day, the Inner House of the Court
of Session in Scotland announced its decision that the issue was
justiciable, that it was motivated by the improper purpose of stymying
Parliamentary scrutiny of the Government, and that it, and any
prorogation which followed it, were unlawful and thus void and of no
effect.
The first question is whether the lawfulness of the Prime Minister's advice to
Her Majesty is justiciable. This Court holds that it is. The courts have
exercised a supervisory jurisdiction over the lawfulness of acts of the
Government for centuries. As long ago as 1611, the court held that "the
King [who was then the government] hath no prerogative but that which
11
12
the law of the land allows him". However, in considering prerogative
The third question, therefore, is whether this prorogation did have the effect
powers, it is necessary to distinguish between two different questions.
of frustrating or preventing the ability of Parliament to carry out its
The first is whether a prerogative power exists and if so its extent. The
constitutional functions without reasonable justification. This was not normal
second is whether the exercise of that power, within its limits, is open to
prorogation in the run-up to a Queen's Speech. It prevented Parliament
legal challenge.
from carrying out its constitutional role for five out of the possible eight
weeks between the end of the summer recess and exit day on 31st
This second question may depend upon what the power is all about:
October.
some powers are not amenable to judicial review while others are.
However, there is no doubt that the courts have jurisdiction to decide
…This prolonged suspension of Parliamentary democracy took place in
upon the existence and limits of a prerogative power. This Court has
quite exceptional circumstances: the fundamental change which was due
concluded that this case is about the limits of the power to advise Her
to take place in the Constitution of the United Kingdom on 31st October.
Majesty to prorogue Parliament.
Parliament, and in particular the House of Commons as the elected
The second question, therefore, is what are the limits to that power? Two
representatives of the people, has a right to a voice in how that change
fundamental principles of our Constitution are relevant to deciding that
comes about. The effect upon the fundamentals of our democracy was
question. The first is Parliamentary sovereignty that Parliament can make
extreme.
laws which everyone must obey: this would be undermined if the
executive could, through the use of the prerogative, prevent Parliament
No justification for taking action with such an extreme effect had been put
from exercising its power to make laws for as long as it pleased. The
before the court. The only evidence of why it was taken is the
second fundamental principle is Parliamentary accountability…The
memorandum from Nikki da Costa of 15th August. This explains why holding
power to prorogue is limited by the constitutional principles with which it
the Queen's Speech to open a new session of Parliament on 14th October
would otherwise conflict.
would be desirable. It does not explain why it was necessary to bring
Parliamentary business to a halt for five weeks before that, when the normal
The relevant limit on the power to prorogue is this: that a decision to
period necessary to prepare for the Queen's Speech is four to six days. ..
prorogue (or advise the monarch to prorogue) will be unlawful if the
prorogation has the effect of frustrating or preventing, without for the
The Court is bound to conclude, therefore, that the decision to advise Her
supervision reasonable justification, the ability of Parliament to carry out
Majesty to prorogue Parliament was unlawful because it had the effect of
its constitutional functions as a legislature and as the body responsible of
frustrating or preventing the ability of Parliament to carry out its
the executive.
constitutional functions without reasonable justification.
The next and final question, therefore, is what the legal effect of that
If the prorogation does have that effect, without reasonable justification,
finding is and therefore what remedies the Court should grant. The Court
there is no need for the court to consider whether the Prime Minister's
can certainly declare that the advice was unlawful. The Inner House
motive or purpose was unlawful.
went further and declared that any prorogation resulting from it was null
13
Chapter 6: Parliamentary Sovereignty
and of no effect. The Government argues that the Inner House could
not do that because the prorogation was a "proceeding in Parliament"
which, under the Bill of Rights of 1688 cannot be impugned or
questioned in any court.
6.1
(i)
of members of both Houses, but it is not their decision. It is something
adjudicating on the validity of primary legislation.
(ii)
enrolled bill rule): Pickin v British Railways Board [1974]. See also Edinburgh
which members can speak or vote. It is not the core or essential business
& Dalkeith Railways v Wauchope (1842).
of Parliament which the Bill of Rights protects. Quite the reverse: it brings
(iii)
In Jackson v Her Majesty's Attorney General [2005] UKHL 56 pro-hunting
campaigners sought to argue that the Hunting Act 2004 was not an Act of
This Court has already concluded that the Prime Minister's advice to Her
Parliament alleging that it had received Royal Assent without the consent
Majesty was unlawful, void and of no effect. This means that the Order in
of the House of Lords under the terms of the Parliament Acts 1911 and
Council to which it led was also unlawful, void and of no effect and should be
1949. The House of Lord held that the Hunting Act 2004 was valid law.
quashed.
This means that when the Royal Commissioners walked into the House of
If the proper parliamentary procedure has been adhered to in passing an Act
the Courts cannot question the validity of that Act of Parliament (the
which has been imposed upon them from outside. It is not something on
that core or essential business to an end.
The concept of legislative supremacy of the UK parliament is that Acts of
the UK Parliament are the highest form of law and prevents the judiciary
But it is quite clear that the prorogation is not a proceeding in
Parliament. It takes place in the House of Lords chamber in the presence
Introduction
(iv)
According to Dicey, parliamentary sovereignty means that Parliament has
Lords it was as if they walk with a blank sheet of paper. The prorogation was
the "right to make or unmake any law whatever" – illimitable. This simply
also void and of no effect. Parliament has not been prorogued. This is the
means that there is no limit on the subject matter on which Parliament may
unanimous judgment of all 11 Justices.
legislate.
(v)
The central question here is: Should Parliamentary supremacy remain the
dominant principal in the British constitution or common law principles by
the UK Supreme Court ought to constrain it?
(vi)
Parliamentary supremacy applies only to the UK Parliament, not to the
other legislatures in the United Kingdom. The Scottish Parliament, Northern
Ireland Assembly, and National Assembly for Wales are each created by
an Act of the UK Parliament. Acts of the Scottish Parliament and of the
Northern Ireland Assembly, and Measures of the National Assembly for
Wales, may be held to be invalid by the courts ie the UK Supreme Court.
2
(vii)
3
Does parliamentary supremacy prevent courts from quashing delegated
6.3 No Parliament can bind its successors nor could it be bound by its
legislation? In R v Secretary of State for Home Department ex parte Simms
and O’Brien [1999] UKHL 33 the House of Lords held that the Prison Rules
6.2.1
(i)
predecessors.
(i)
The doctrine of implied repeal: Vauxhall Estates v Liverpool Corporation
(delegated legislation) made under the Prison Act 1952 which gave the
[1932] and Ellen Street Estates v Minister of Health [1934], whereby should a
power to prison governors to refuse permission to prisoners to have oral
later statute be inconsistent but not expressly repeal an earlier one, the
interviews with journalists (as part of a campaign to show that there had
court would apply the former as the latest expression of Parliament's will
been a miscarriage of justice) were ultra vires the Act.
and deem the latter as impliedly repeal.
No limit on subject matter
(ii)
With His Majesty's Declaration of Abdication Act 1936, the Parliament had
The doctrine of implied repeal does not apply to constitutional statutes:
Thoburn v Sunderland CC [2002]
legislated to alter the succession to the throne. The Parliament Acts of 1911
and 1949 also resulted in a shift of power between the 2 Houses. Much
6.5.
recently, on the line of succession to the Crown, The Succession to the
6.5.1 Devolution
Modern Challenges to Parliament's Supremacy
Crown Act 2013 changes the primogeniture rules.
(i)
The Scotland Act, Government of Wales Act and Northern Ireland Act
1998 established a system of self-government, in varying degrees, for
(ii)
Parliament is free to legislate retrospectively, the more famous examples
Scotland, Wales and Northern Ireland respectively whereby Westminster
being the War Damages Act 1961 and the War Crimes Act 1991. Parliament
remains free to legislate over "reserved matters" with devolved powers
may legislate with extra-territorial effect contrary to the general principles of
now matters of the devolved government's competence.
international law such as with the Territorial and Extra-Territorial Extent of
Criminal Law 1978, the Continental Shelf Act 1964 and the Criminal Justice
(ii)
Section 29 of the Scotland Act 1998 regulates the legislative competence
of the Scottish Parliament, making clear (see section 29(2)(b)) that a
Act 1988.
provision is outside its competence ‘if it relates to reserved matters’.
(iii) Treaties can only take effect under the authority of an Act of Parliament:
Section 30 and Schedule 5 define matters which are reserved. Part 1 of
Treacy v DPP; R v Kelly[1998]. In Cheney v Conn (Inspector of taxes) [1968],
Schedule 5 to the 1998 Act lists the reserved matters and includes ‘(b) the
the Court held that an Act of Parliament cannot be declared void just
Union of the Kingdoms of Scotland and England’.
because it is in conflict with a treaty to which the UK is a party.
(iii)
ambiguous words. In the absence of express language or necessary implication
to the contrary, the courts therefore presume that even the most general words
Section 28 (7) Scotland Act states that it "does not affect the power of the
Parliament of the United Kingdom to make laws for Scotland."
(iv) On the contrary, fundamental rights cannot be overridden by general or
(iv)
S1 Northern Ireland Act 1998 declares that Northern Ireland “in its entirety
remains part of the UK and shall not cease to be so without the consent of
were intended to be subject to the basic rights of the individual: Pierson v
a majority of the people of Northern Ireland" voting in a poll held for the
Secretary of State for Home Department Parliament [1988].
purpose.” Bradley and Ewing asserts that political constraints against
breach of this guarantee provide a greater safeguard than reliance on
4
5
litigation to confirm that the 1998 Act had limited the powers of future
One of the grounds of challenge lay in the contention that the legislation
Parliaments.
(v)
was an irrational exercise of legislative authority, and thus unlawful at
There is a convention known as the Sewel Convention, which applies
common law. At first instance in Axa it was held that, like any statutory
when the Westminster Parliament wants to legislate on a matter within the
body, the Scottish Parliament could be reviewed on common law
devolved competence of the Scottish Parliament, National Assembly for
grounds.
Wales that If the Westminster Parliament legislates over Northern Ireland
It thus fell on the Supreme Court to decide the issue. Lord Hope endorsed
Assembly. Under the terms of the convention, the UK Parliament will ‘not
his position in Jackson that the rule of law, and not parliamentary
normally’ do so without the relevant devolved institution having passed a
sovereignty, was the peremptory principle of UK constitutional law. The
legislative consent motion. This convention is however not binding on the
Supreme Court also held that it was not the common law judicial review
Westminster Parliament: R (Miller) v Secretary of State for Exiting the
of the Scottish law which was in issue but the legislative supremacy of
European Union [2017] Supreme Court.
Westminster Parliament.
(vi)
In
AXA
General
Insurance
Ltd
v
HM
Advocate
In the end however the Supreme Court held that it was for the elected
[2011] UKSC 46UK the Supreme Court had to decide whether the Scottish
and accountable Scottish Parliament, rather than for judges, to decide
Parliament exceeded its legislative competence in enacting the
what constituted rational social policy.
Damages (Asbestos-related Conditions) (Scotland) Act 2009. This was the
first challenge to the Scottish Parliament’s legislative competence to
reach the Supreme Court
The saga began with the judgement in Rothmann ([2007] UKHL 39, that
6.5.2 The European Communities Act 1972 (no longer relevant after 31.12.2020)
6.5.3 The HRA 1998
(i)
sovereignty.
exposure to asbestos had developed pleural plaques, a form of lung
scarring which indicate a predisposition to mesothelioma but are not
themselves harmful. Insurers counted savings in the billions. In response to
this common law decision, the Scottish Parliament enacted the Damages
(Asbestos-related Conditions) (Scotland) Act 2009 overturning the effect
of Rothmann in Scotland. A legal challenge was brought by the Plaintiff
on the validity of the Scottish parliament enacted law.
The manner in which the ECHR was incorporated via Human Right Act 1998
(“HRA”) was designed in such a manner as to preserve Westminster's
insurers had no liability towards claimants who through workplace
(ii)
In R v Secretary of State for the Home Department, ex parte Simms and O'Brien [1999]
UKHL 33, Lord Hoffmann stated that Parliamentary sovereignty means that
Parliament can, if it chooses, legislate contrary to fundamental principles of
human rights. The Human Rights Act 1998 will not detract from this power. The
constraints upon its exercise by Parliament are ultimately political, not legal.
(iii) Section 3 of HRA, the interpretive section on legislation, puts the duty on
In Scottish courts the legislation was upheld, which followed an appeal to
judges to interpret legislation, so far as its possible, to conform with human
the Supreme Court which had to resolve issues of constitutional law which
rights. This section however, cannot be applied if the legislation (subject to
had existed since 1998, and issues of administrative law which had existed
the principle in ex parte Pierson and ex parte Simms as discussed above)
since long before that.
makes it clear in unambiguous terms that human rights under the Articles in
6
7
HRA 1998 or the common law, are being overridden, then the courts
(iii)
cannot give it any contrary meaning.
In Thoburn v Sunderland CC, "on a principled basis", Laws LJ distinguished
between "ordinary" statutes and "constitutional" statutes. Constitutional
statutes those which:
(iv) Section 4 HRA enables the higher courts to only issue a "declaration of
(a)
incompatibility" when it is not possible to construe a primary legislation in
general, overarching manner, or
such a way as to be harmonious with the Convention rights.
(b)
interpretation under section 3 HRA, may be seen to be an implicit clog on
enlarges of diminishes the scope of fundamental constitutional
rights.
(v) What may be said however is that judges now have greater liberty in the
exercise of statutory interpretation? The liberal approach taken in statutory
condition the legal relationship between citizen and state in some
(iv)
The Magna Carta, the Bill of Rights, the Acts of Union, the HRA, the
Scotland Act, the Government of Wales Act and the ECA (formerly)
Parliament’s supremacy. See R v A [2001], Lord Steyn’s views; see also
clearly belongs to this family (which would cease to be operative end
Ghaidan v Godin-Mendoza [2001] EWCA.
December 2020). Their repeal could only be affected by "express words
in the later statute or by words so specific that the inference of an actual
(vi) Sometimes the decision of incompatibility by courts results in political
determination to affect the result contended for was irresistible. The
pressure: A (FC) v Secretary of State of Home Department [2004]
ordinary rule of implied repeal does not satisfy this test." Ordinary statutes
(vii) In March 2005, Parliament passed the Prevention of Terrorism Act to replace
the offending 2001 Act. The Act allowed British and foreign terrorist suspects
to be placed under a control order (meaning house arrest), by the Home
on the other hand may be impliedly repealed.
(v)
In R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014]
UKSC 3, the concept of constitutional statute was rebranded (by Lord
Secretary in times of non-emergency (non-derogatory) as well as
Neuberger
emergency (derogatory control orders). Non-derogatory control orders
and
Lord
Mance)
as
“constitutional
instruments.”
The HS2 case involved action groups’ challenge to the parliamentary bill
have been challenged in courts as being illegal due to the extent of the
procedure that was being used for facilitation of the project, on the
interference with liberty under Article 5: Secretary of State for the Home
ground that it contravened requirements of the Environmental Impact
Department v JJ [2007].
Assessment Directive in EU law. The Supreme Court found that there was
6.6
Are there constitutional statutes which are not subject to repeal?
(i)
The ECA 1972 became the first to be accorded the special status of
“constitutional statute" thereby freeing it from the doctrine of implied
no contravention.
(vi)
In obiter dicta, Lord Reed confirmed that the impact of EU membership
on sovereignty was a matter of UK constitutional law, to be resolved by
repeal (Garland v BRE; Macarthys v Smith).
the UK courts, as Laws LJ had observed in Thoburn.
(ii)
With the HRA, it has been voiced by Lord Hoffman in ex p Simms that "in
the absence of express language or necessary implication to the
(vii)
Lord Neuberger and Lord Mance (with whom the other five judges
agreed) said that “constitutional instruments” included “Magna Carta,
contrary, the courts therefore presume that even the most general words
the Petition of Right 1628, the Bill of Rights…, the Act of Settlement 1701
were intended to be subject to the basic rights of the individual."
and the Acts of Union 1707. The Human Rights Act 1998 and the
8
9
Constitutional Reform Act 2005 may now be added to this list” If the EU
(iv)
This is why the courts construe the ouster clauses in judicial review cases
parliamentary
very strictly: R v Secretary of State for the Environment ex parte Ostler
procedures, there could have been an obstacle in Article 9 of the Bill of
(1976). See also the case of Anisminic v Foreign Compensation
Rights, which warns off the courts from such inquiries.
Commission [1969].
Directive
had
required
the
court
to
investigate
(v)
In R (Privacy International) v Investigatory Powers Tribunal and others [2019]
6.7
The Judiciary’s role in the doctrine of Parliamentary Sovereignty
(i)
Lord Woolf had in 1995 argued that "if Parliament did the unthinkable" and
UKSC 22 the Supreme Court considered whether the supervisory jurisdiction
legislated without regard for the role of the judiciary in upholding the rule
of the High Court was ‘ousted’ by s.67(8) of the Regulation of Investigatory
of law, the courts might wish to make it clear that "ultimately there are
Powers Act 2000 (RIPA). By a majority of four to three, the Supreme Court
even limits on the supremacy of Parliament which it is the courts’
ruled that RIPA did not oust the supervisory jurisdiction for errors of law.
inalienable responsibility to identify and uphold".
(vi)
(ii)
For the majority, Lord Carnwarth stated that there were close parallels with
In R v Secretary of State for Home Department ex parte Simms and O’
the case of Anisminic v Foreign Compensation Commission (1969) and that
Brien [1999] Lord Hoffmann stated that Parliament can, if it chooses,
the drafter of the legislation could have been in no doubt that a
legislate contrary to fundamental principles of human rights. The Human
determination vitiated by an error of law was no determination at all. The
Rights Act will not detract from this power. The constraints upon its exercise
reference to a determination was to be read as a reference only to a
are political, not legal. But the principle of legality ….means that
legally valid determination. Furthermore, any attempt to exclude judicial
fundamental rights cannot be overridden by general or ambiguous
review had to be expressed in the ‘most clear and explicit words’. Lord
words. In the absence of express language or necessary implication to the
Carnwarth also held that it was ultimately for the courts and not Parliament
contrary, the courts must therefore presume that that even the most
to determine the limits to the power to exclude review. That principle ‘is a
general words were to be intended to be subject to the basic rights of the
natural application of the constitutional principle of the rule of law’.
individual. On this principle of legality, see also the House of Lords case of
R v Secretary of State for the Home Department ex parte Pierson [1998].
(vii)
Lord Carnwarth further stated that the question in any case is 'the level of
scrutiny required by the rule of law', set on a basis which as stated by Lady
(iii)
The obita dicta by Lord Steyn and Lord Hope in Jackson v AG [2001] seem
Hale in R (on the application of Cart) v Upper Tribunal (Secretary of State
to indicate that Parliamentary sovereignty has its limits especially if it
and ors. [2011], is both 'principled and proportionate' or Lord Dyson that:
encroaches on the rule of law. Lord Steyn stated that the judiciary might
'what scope of judicial review … is required to maintain the rule of law'; it
have to "qualify" the principle of Parliamentary supremacy should
being 'a matter for the courts to determine what that scrutiny should be'.
Westminster seek to abolish judicial review of flagrant abuse of power by
a government or even the role of the ordinary courts in standing between
the executive and the citizens.
2
(ii)
Chapter 7: The Legislative Process (1): Primary
legislation
7.1
Introduction
(i)
In the UK, legislation is enacted or authorized by the Parliament, and takes
to set out public law rights—for example, the Human Rights Act 1998, the
Freedom of Information Act 2000, the Disability Discrimination Act 1995,
and the Equality Act 2006;
to impose
precedence over conflicting rules or principles developed by the courts.
taxation—the government cannot perform
executive
functions without access to funds, and tax can be levied only through
Acts of the UK Parliament are the highest form of law.
(ii)
Legislation is in place for a wide range of purposes, including:
legislation;
Since 1998, devolution has resulted in three new legislative bodies: the
to create powers for public bodies to take action—almost all public
Scottish Parliament; the Northern Ireland Assembly; and the National
bodies created in recent years are 'creatures of statute', meaning that
Assembly for Wales.
they have those powers (and only those powers) conferred on them by
legislation;
7.2
Public and Private Legislation Distinguished
(i)
The rules contained in public legislation should be of a general
the regulation of commercial activity; and
social control—through the creation of criminal offences; in more recent
character, not aimed at a specific person. It would not be
years, the courts have been empowered to make a wide range of
constitutionally acceptable for Parliament to enact legislation to
preventative injunctions (such as antisocial behavior orders).
impose a specific punishment on a particular person (as it did in 1531
when Henry VIII procured legislation declaring the Bishop of Rochester's
(iii) According to critics the parliamentarians who form the government (that
cook guilty of treason by poisoning and ordering that he be put to
is,
death by boiling alive).
parliamentarians (that is, backbench MPs and peers from all parties). It is
the
ministers)
have
too
much
power
compared
to
other
government (not Parliament) that develops policy and drafts the text of
(ii)
Sometimes legislation is passed that is specific to an organization (for
proposed legislation. Government also controls the timetable by which Bills
example, a university, local authority, or company). These are 'private
is scrutinized in the House of Commons—as a result of which, Bills are
Acts of Parliament' rather than the normal 'public Acts'. A Bill that
rushed through without proper scrutiny.
contains both public and private provisions is called a `hybrid Bill'.
Note: A private act of parliament is not to be confused with private
(iv) Though there are tensions between the two chambers (House of
Commons and House of Lords), the Commons, as the elected part of
members’ bill.
Parliament, should have primacy—but the limited reforms (House of
7.3 The Importance of Legislation
Lords Act 1999) that have taken place to the membership of the Lords
(i)
One of the main activities of government is to formulate and
(fewer Conservative hereditary peers and a more robust appointment
implement policy. Outside government, pressure groups are constantly
system) has seen the Lords growing in confidence and in its ability to
calling for new legislation to achieve the certain utilitarian goals (Eg.
scrutinize government Bills.
better environmental protection, an end to cruelty to animals).
3
(v)
4
A government with a majority of MPs in the Commons may effectively
(b) Courts may be called on to consider whether an Act of Parliament
control that chamber (because MPs from the governing party can be
that received royal assent under the terms of the Parliament Acts
expected to support ministers), but there is no automatic government
(that is, without the consent of the House of Lords) is a valid statute.
majority in the Lords when voting on Bills. Pursuant to the Parliamentary
(c) Acts of the Scottish Parliament, Acts of the Northern Ireland Assembly,
Act of 1949, the House of Commons can insist that a Bill receives royal
and Assembly Measures in Wales (the legislation made by the
assent even though the House of Lords disagrees with it. (See however,
devolved legislatures) will be quashed by the senior courts in those
the Salisbury-Addision convention).
parts of the United Kingdom or the UK Supreme Court if they are
7.4
The UK Parliament and the devolved legislatures.
incompatible with Convention rights, or otherwise outside the powers
(i)
Legislative powers (of varying degrees) have been conferred by the UK
conferred by the Scotland Act 1998, the Northern Ireland Act 1998, or
Parliament on the Scottish Parliament, the Northern Ireland Assembly,
the Government of Wales Act 2006. See AXA General Insurance Ltd v
HM Advocate [2011] UKSC 46UK;
and the National Assembly for Wales.
(ii)
Since 1998, greater powers to legislate have been given to Wales now
(d) Ouster clauses in legislation ousting the jurisdiction of the supervisory
under Pt 4 of the Government of Wales Act 2006. Meanwhile, the
jurisdiction of the Queen’s Bench division of the High Court are
legislative powers of the Scottish Parliament were extended by the
construed narrowly pursuant to the rule of law: Anisminic v Foreign
Scotland Act 2012 and further powers remain high on the political
Compensation Commission [1969].R (on the application of Cart) v
agenda, especially after Brexit. The devolution Acts state that the:
Upper Tribunal (Secretary
grant of legislative powers does not affect the power of the Parliament
International) v Investigatory Powers Tribunal and others [2019] UKSC 22
of
State
and
ors.
[2011];
R
(Privacy
of the United Kingdom to make laws for those parts of the United
(e) The principle of parliamentary supremacy does not stop the courts
Kingdom."
from considering whether delegated legislation is lawful. The normal
7.5
The Judiciary and Legislation
grounds of judicial review apply (that is, illegality, procedural,
(i)
The judiciary is involved in interpreting legislation, and enforcing
impropriety, irrationality, and the Human Rights Act 1998) and the
rights and duties contained in legislation.
court may make a quashing order if it finds a legal flaw.
(ii)
In the past in the United Kingdom, the principle of parliamentary
supremacy meant that judges in Britain could not adjudicate on the
validity of legislation: Pickin v British Railway Board. The exceptions
are however that:
(a) Senior courts in the United Kingdom have power to hear arguments
that a section in an Act of Parliament is incompatible with a
Convention right under HRA 1998 and it may make a declaration of
incompatibility under section 4 HRA 1998.
(iii)
Outside the UK:
The European Court of Human Rights (the Council of Europe's court)
may also be called on to consider whether national legislation
breaches Convention rights.
5
6
7.6 Primary Legislation
(ii) The Queen has a formal involvement at two points. First, some Bills require
7.6.1 Parliamentary supremacy
'Queen's consent' even to progress through Parliament. This situation arises
(i)
The United Kingdom's constitutional set-up gives politicians, rather than
in cases in which a Crown prerogative is involved. The Queen acts on the
the judiciary, the final say on whether an Act of Parliament is valid and
advice of ministers. Second, Bills require royal assent in order to become
should be recognized as binding law. The first justification for this is that
law; this is a formality- the political reality is that Parliament (or, when the
the elections and the political process of making legislation are likely to
Parliament Act 1911 (as amended in 1949) is invoked, the House of
lead to legislation that accords with the wishes of the electorate.
Commons) is the effective legislative body.
(ii)
A second justification is that the legislative process is superior to the
adjudicative processes
of the courts
(iii) Parliament's role is mostly limited to scrutinizing the Bills introduced by
for deliberating, on and
ministers. In most cases, the first opportunity to examine a government Bill is at
determining questions of public interest.
the point at which a minister formally introduces it to one of the Houses of
Parliament (its 'First Reading'). Members of Parliament and peers also have
(iii)
Though public interest is an important factor in legislation, the govern-
limited opportunity to initiate legislation in the form of private member's Bills.
ment has a dominant role in the legislative process. It is the government
that initiates policy, drafts Bills, steers Bills through the process, and often
7.6.3 Policymaking
decides when (if at all) legislation is brought into force. To say that
(i)
The main purpose of legislation is to give legal backing to government
'Parliament legislates' is, at best, a half-truth: formally, it is so—but in reality,
policies. Government policy is an authoritative determination by ministers
it is the government that determines the content and timing of legislation.
and civil servants of what will be done about something. Examples include:
global warming; ensuring that British manufacturing industry survives the
(iv)
Furthermore, the electoral system used for Commons' elections—that is,
economic downturn; the challenge of ensuring financial support for older
'first past the post'—does not result in that House having a composition
people in the context of an aging population; dealing with antisocial
proportionate to the number of votes cast nationally for each of the
behaviour by young people etc.
political parties. Moreover, only one of the two Houses of Parliament (the
Commons) is elected; the other (the Lords) is not. Thus ensuring that public
(ii)
Sometimes, the government feels the need to formulate a policy and
seek to implement it very quickly. For example, on 18 June 2008, the
opinion is reflected in the legislation that is passed is not one of them.
Appellate Committee of the House of Lords (the forerunner of the UK
Supreme Court) held that criminal courts did not have power to shield the
7.6.2 Who or what is the legislature ?
identity of key prosecution witnesses from defendants and their lawyers,
(i) The government takes a lead in many aspects of the legislative process:
because this was contrary to a common law right for defendants to be
ministers and civil servants develop policy initiatives; government lawyers
able to face their accusers. R v Davis [2008].
draft Bills; ministers introduce Bills to Parliament and steer them through
the House of Commons and the House of Lords, suggesting amendments
(iii)
The government took the view that this was unacceptable because there
along the way; often it is left to a Secretary of State to decide when an
were serious problems with witness intimidation—particularly in gang-
Act of Parliament should come into force.
related crimes. A policy was rapidly decided; a bill was drafted to reflect
7
8
the government's policy and the Criminal Evidence (Witness Anonymity)
(viii) Although the code says that it 'does not have legal force', in a number
Act 2008 came into force thereafter statutorily overruling R v Davis
of judicial review cases, it had been alleged that it creates legitimate
[2008].
expectation and challenges have been the lawfulness of consultation
exercises on the grounds of legitimate expectations.
(iv) Another example is the War Damage Act 1965 which retrospectively
statutorily overruled the decision in Burmah Oil v Lord Advocate, the policy
(ix) In R (on the application of Bhatt Murphy (a firm)) v The Independent
being the overburdened Exchequer ought not be burdened further with
Assessor [2008] a firm of solicitors argued that the code had created a
claims which would open floodgates.
'legitimate expectation' that there would be consultation by the government, according to the code, when it decided that it wanted to
(v)
Consultation is a major aspect of the policymaking process. The
change the way in which victims of miscarriages of justice are
government has adopted various consultation practices. Normally, a
compensated. The Court of Appeal stated that to do otherwise, would
Green Paper is published, outlining the government's initial views on a
be to act so unfairly as to perpetrate an abuse of power.
proposed policy, or setting out various policy options. A White Paper
may follow some months later, in which the government lays out more
firmly its policy plans on a given topic. Sometime later, a Bill will be
7.6.4 Drafting bills
(i)
introduced to Parliament.
In the United Kingdom, there is a centralized system of drafting
Bills. They are written by a team of just over sixty 'parliamentary
counsel' (government lawyers) working from No. 36 Whitehall. They
(vi) In 2000, the government published for the first time a code on
act on the basis of formal instructions sent by departments.
consultation. (Code of Practice on Consultation). This Code sets out the
approach the Government will take when it has decided to run a formal, written, public consultation exercise. The Code does not have legal
(ii)
After researching the relevant field of law and analyzing what it is the
department seems to be seeking to achieve, drafting begins.
force and cannot prevail over statutory or mandatory requirements.
(iii)
A criticism that has often been made of Acts of Parliament is that they
(vii) The Code sets out the Government's general policy on formal, public,
are usually incomprehensible to non-lawyers, and sometimes even to
written consultation exercises. Ministers retain their existing discretion not
lawyers, because of the complexity of their language, grammar, and
to conduct formal consultation exercises under the terms of the Code.
structure. There may be several reasons for this.
This occurs when public consultation will not be the most effective or
(a) First, the statute may seek to give legal effect to a policy that itself is
proportionate way of seeking input from interested parties, e.g. when
engaging
with
stakeholders
very
early
in
policy
inherently highly complex.
development
(b) Second it may be important for people's rights and obligations to be
(preceding formal consultation) or when the scope of an exercise is
spelt out with great precision so that they may plan their affairs
very narrow and the level of interest highly specialized.
accordingly. This is particularly so where a statute imposes a tax (the
right of government to require a transfer of wealth from a citizen or
business) or penal sanctions.
9
10
(c) A third reason for complexity is incremental change to policy; which
is often given legal effect by several Acts amending earlier ones
7.6.5 The Parliamentary year.
(i)
over a period of time and consolidating them.
the Fixed-Term Parliaments Act 2011, it is expected that each five-year
(d) Fourthly, complexity may arise from a desire to control and restrict
discretion
in
the
implementation
of
policy.
A
Parliament will have five 12-month sessions, beginning and ending in
government
department may fear that unless contingencies are anticipated and
details spelt out, other people may misunderstand exactly what the
the spring.
(ii)
Bills that it expects to introduce to Parliament in the following session.
agency responsible for giving practical effect to a policy (such as a
local authority) which may lead challenges under judicial review.
(iii)
The monarch reads out a short speech (`the Queen's Speech') drafted
for the people whose rights and interests are affected by it, but also for
by the government, which sets out the government's proposals for Bills.
Parliament. If MPs during the legislative process cannot understand
the
government's
policy
proposals
effectively.
Since
1999,
all
government Bills have been accompanied by 'explanatory notes',
7.6.6 The Parliamentary Stages of a Bill
(a)
published and start its passage through the House). Since 1999, Bills are
some way to addressing this problem.
accompanied by `explanatory notes', drafted by government lawyers,
which seek to explain in some detail, but using nontechnical language
Framework bills: Some statutes set out only the broad framework for
what the Bill is designed to achieve and how it will do this.
the government's policy, leaving the detail to be filled in later by
delegated legislation drafted in government departments. For
(b)
example, the Policing and Crime Act 2010, s. 96, amended the Police
Second Reading
The Second Reading takes place two to four weeks after the First
and Criminal Evidence Act 1984 to give the Home Secretary very
Reading, and is an opportunity for MPs or peers to debate the general
wide powers to make delegated legislation about the controversial
policy aims in the Bill. Debates are published in Hansard, the official
topic of retention by the police of people's DNA samples.
(vii)
First reading
The First Reading is a formality (in effect, announcing that the Bill will be
drafted by lawyers in the department sponsoring the Bill, which may go
(v)
The annual session starts with the State Opening of Parliament, where
the monarch attends the House of Lords, to which MPs are summoned.
Legislation that is difficult to understand may create problems not only
what a Bill really means, they will not be able to probe and scrutinize
In recent years, the government has adopted a practice of publishing
a 'draft legislative programme in which it sets out in outline the main
Act is intended to achieve: there may be 'misinterpretation' by the
(iv)
Parliament organizes its workload into annual sessions. After the passing of
record.
Thus skeleton-style Bills may give ministers maximum flexibility to alter and
amend policy to suit changing circumstances, and while such Bills may
appear to be clearer, there are fears that they confer too much unsu-
(c)
(i)
Committee stage
The Committee Stage usually starts two weeks later, and is when
detailed consideration of the policy and drafting of the Bill occurs.
pervised discretion on government and may contravene the rule of law.
11
(ii)
12
In the Commons, this is normally in a public Bill committee of between
fifteen and
twenty MPs
(in proportion, party-politically,
to
(f)
the
Royal assent is the final stage of the legislative process. The grant of
composition of the House as a whole). For most Bills, the committee's
royal assent is a prerogative power of the Queen—although, by
work begins with oral evidence sessions in which MPs hear from experts,
constitutional convention, it is always granted. After royal assent, the
campaign groups, and finally the minister in charge of the Bill. There is
new Act of Parliament must be officially printed and published.
then clause-by-clause debate, with Opposition MPs seeking to argue
that amendments should be made; very few, if any of these
amendments are agreed to by the public Bill committee (on which the
7.6.7 Bills of Constitutional Importance
(i)
change the constitutional set-up in a way that advantages the
instructs the MPs of its party, who will form a majority of the committee,
government?
to vote against them.
It is normal also for the government to make amendments: often they
(ii)
to Robert Hazell, since 1945
convention
that
Bills
of
there has
`first-class
been
the
constitutional
importance' have their Second Reading stage in the chamber of the
the policy of the Bill slightly if the government, has been convinced that
House of Commons (a 'Committee of the Whole House', or CWH) rather
it could be improved. In the House of Lords, the Committee Stage
than in a public Bill committee.
normally takes place on the floor of the chamber, giving all peers an
(iii)
After 1997 the convention was challenged by the new Labour
government, which attempted to split the committee stage.
(d) Report and Third Reading
After the Committee Stage in the relevant house, there follow the
According
constitutional
will be 'technical', to tidy up drafting points; sometimes, they will alter
opportunity to table amendments seeking (in their view) to improve it.
Is there any mechanism to prevent a government from introducing and
steering through a Bill that seeks to undermine basic liberties or to
governing party has a majority of members), because the government
(iii)
Royal Assent
(iv)
From the outset it proved difficult to define exactly which Bills were of
Report and Third Reading stages. These stages often take place on the
"first class constitutional importance", and which were not. Set against-
same day. They are further opportunities for MPs or peers (depending
this are some significant disadvantages from taking the committee
on in which House the Bill is in at that time) to press for acceptance of
stage on the floor. It leads to the curtailment of time.
their amendments and for the government to make its own
amendments.
(v)
According to D. Oliver, there is a lack of appreciation on the part of
ministers and some parliamentarians of the existence and importance
(e)
Ping-pong
of the legal and constitutional values with which independent
Once the Bill has been through both Houses, agreement needs to be
scrutineers concern themselves.
reached on the final text that will be presented for royal assent. Where
there is disagreement, a 'ping-pong' process will arise, with proposed,
(vi)
D. Oliver states that these values include the respect for the rule of law
amendments and counter-amendments shuttling back and forth, until
and for individual liberties and rights, rights of access to the courts,
both Houses are willing to consent.
matters such as the burden of proof in criminal proceedings, the
13
(vii)
14
avoidance of certain retrospective legislation, certainty in relation to
Act 1988 that set out in statutory form the methods by which the
administrative powers, non-delegation of legislative power unless
Criminal Injuries Compensation Board calculates its payments to
justified, and that there should be no taxation without the express
victims of crime. (The Board had, in fact, been operating on a non-
consent of Parliament.
statutory basis since 1964.) Instead, he said, the government would
instruct the Board to make future payments according to a tariff
According to him scrutiny standards on these values or checklists could
system set by the Home Office (which was going to reduce the
bring Parliament back into the constitutional arena. There are also
amounts of compensation payable in many cases).
good general public policy reasons for a checklist, given the real
concern about the amount of badly thought out legislation brought
(viii)
(iii)
Brigades Union and Ors [1995] 2 AC 513, the Law Lords, by a majority,
legislation. (eg Counter Terrorism Crime And Security Act 2001).
held that the Home Secretary's decision was unlawful: although he
was entitled to decide when to bring a section into force, he was
In 2011, the House of Lords Committee considered scrutiny of
not able to declare be would never do this and make rules contrary
constitutionally important Bills. The Committee was particularly
to the will of Parliament expressed in the Act. The government
critical of the way that some such Bills do not receive full scrutiny in
subsequently introduced its tariff scheme in a new Act.
Parliament due to pressure of time, especially at the end of an
(ix)
annual parliamentary session (the Bill that become the Constitutional
7.6.9 T h e S e w e l C o n v e n t i o n
Reform and Governance Act 2010 was cited as an example).
(i)
circumstances, to pass legislation on policy areas that were not
'reserved' to the UK Parliament (or, putting it the other way, areas
existing constitutional arrangements, what public engagement had
taken
place
and
how
the
Bill
had
been
scrutinized
that had been `devolved').
within
government. It suggested that a requirement for such pre-legislative
scrutiny should be departed from only in exceptional circumstances.
During the passage of the bill that became the Scotland Act 1998,
it was recognized that the UK Parliament would continue, in certain
It recommended that a minister introducing such a Bill should make
a detailed statement explaining the impact of the proposal upon
(ii)
The 1998 Acts specifically preserve this power to legislate for
Northern Ireland and Scotland but is subject to the Sewel
Convention is that there needs to be a motion passed in the
7.6.8 Bringing Legislation into force
(i)
In R v Secretary of State for the Home Department, ex parte Fire
forward by government in recent years, much of it amending earlier
Scottish Parliament or Northern Ireland Assembly. Nonetheless, it
After a Bill has completed its passage through Parliament and received
only remains a convention which cannot be enforced by the
royal assent, the next step is for it to be brought into force. Every Act
Courts: R (On the Application of Miller) v Secretary of State for
contains a commencement provision towards its end.
Exiting the European Union [2017] Supreme Court.
(ii)
A problem may arise if the government decides not to bring
legislation into force. In 1993, the Home Secretary announced that
he would not be bringing into force sections in the Criminal Justice
2
Chapter 8: The Legislative Process (2): Delegated Legislation
(d) that delegations of rule-making power allow adjustments and
updating or amending exercises to be carried out efficiently.
8.1
Introduction
(i)
Delegated legislation—also called 'subordinate' and 'secondary'
(iv)
He further states that much modern legislation is carried out by means
of 'framework' items of primary legislation, which do little more than
legislation.
confer on ministers powers to issue secondary legislation. The common
(ii)
Through delegated legislation, the government makes legislation on
criticism is that parliamentary and democratic scrutiny is weakened by
a large scale with only minimal parliamentary involvement. The
such heavy reliance on secondary legislation, as such legislation does
primary question here is whether the use of delegated legislation is
not involve the full parliamentary process and the debating stages that
compatible theory of separation of powers and under that theory it
are associated with primary legislation.
is Parliament which is the sovereign lawmaker?
8.2
Nature of Delegated Legislation
(i)
The vast majority of delegated legislation is made in the form of
8.3
The justification for delegated legislation and critical views
(i)
Many Acts of Parliament set out only a general `framework’ or`
'skeleton', for the policies sought to be achieved, delegating matters of
'statutory instruments' (SIs), a form of law that is regulated by the
detail to the government to be made by secondary legislation.
Statutory Instruments Act 1946. Another mode is by An Order in
Council. An enabling provision in a parent Act will typically specify
(ii)
In 1992, the Hansard Society’s study revealed that several people and
bodies thought that the substantive provisions of statute law should be
considerable importance is at stake.
dealt with in Acts of Parliament, with only less important details being left
to delegated legislation.
In some situations delegated legislation is used to give legal authority
to a policy, it would be more constitutionally appropriate for primary
(iii)
(ii)
that the SI be in the form of an Order in Council when something of
(iii)
According to the Hansard Society, the reasons for this critical view of the
legislation to be used. legislation. Furthermore delegated legislation
use of delegated legislation were numerous. They included:
receives far less political scrutiny from Parliament than do Bills.
(a) objection to "skeleton bills"; the use of delegated powers to determine
According to R. Baldwin, in 'Legislation, types of', the common
justifications for secondary legislation are that delegations of rule-making
are necessary and useful because:
(a) Parliament does not have the time or the detailed knowledge to
make specialist bodies of rules;
(b) that some subjects are too technical to justify parliamentary attention;
(c) that secondary rules are much more flexible and responsive than
statutes; and
the principles rather than the detailed implementation of legislation;
(b) the increased power it gave to Ministers; the lack of parliamentary time
for scrutiny of delegated legislation and inadequate parliamentary
scrutiny;
(c) the difficulty of campaigning against bills that include extensive
delegation of powers and against draft orders etc.;
(d) the fact that statutory instruments cannot be amended; the danger of
the drafters of bills thinking they Could rely on regulations to put matters
3
4
right if there were a flaw in a bill; the fact that the drafting of statutory
statutory instruments with less delay. Less rigidity in procedures and timing
instruments was sometimes delayed till too near the time they had to be
should also facilitate improved consultations.
applied;
(e) the uncertainty of leaving things to regulations and waiting for
(vii)
The Hansard Society recognised the disadvantages of extensive use of
delegated legislation, but suggested that many of them could be
them to be made;
overcome. It welcomed the setting up by the House of Lords, of the
(f) the difficulty of discovering the law on any matter if it is buried in a
Delegated Powers Scrutiny Committee, which has been given, as its first
number of statutory instruments.
task, the consideration of ground rules and criteria on what matters can
(iv)
The Hansard Society also found that there were others who believed
appropriately be left to delegated legislation.
that only the policy elements and other major provisions of legislation
need be included in bills, or saw some advantages in leaving more
(viii)
The Hansard Society also emphasised that statutory delegation should
detail to delegated legislation. The main arguments advanced in
never leave an Act bare of everything except a framework of
favour of greater use of delegated legislation were:
ministerial powers, with all real substance being left to ministerial
(a)
the advantage of keeping primary legislation uncluttered;
regulations etc. The main principles of the legislation provisions should
(b)
the fact that delegated legislation is not subject to the same
appear in the Act itself i.e. the main provisions of statute law should be
constraints of the parliamentary time-table as is primary
set out in Acts of Parliament, but that most detail should be left to
legislation and that therefore there can be more time for
delegated
consultation;
procedures are adopted by Parliament for scrutiny of delegated
the greater flexibility it permits (as it does not involve the passing
legislation and that improved arrangements are made for the
of a bill through Parliament) in updating the law to match
publication of all statute law.
(c)
legislation,
provided
that
much
more
satisfactory
changed circumstances and in correcting or amending it.
(ix)
(v)
The use of delegated legislation is thus usually for the purposes of (a)
The Hansard Society concluded there was merit in keeping bills as clear,
bringing sections of Acts into force, (b) perhaps more significantly, filling
simple and short as possible. This not only makes Acts easier for the user to
in framework Acts, and (c) implementing European Union law [under
follow, but it helps Parliament to focus on the essential points, and on
section 2(2) ECA 1972 formerly]
policy and principle, in its debates on bills.
(x)
(vi)
Enabling provisions that confer this surprising power on ministers have
It found advantages for the Government and for those affected by
been dubbed 'Henry VIII' provisions, so-called because some critics
legislation in keeping the legislative process flexible so that statute law
argue that if abused, Henry VIII powers contained in Acts of Parliament
can be kept as up-to-date as possible. Given the pressures on the
risk giving ministers powers to suspend parliamentary legislation such as
parliamentary time-table, such changes may have to wait several years
were enjoyed by the notoriously autocratic Tudor king.
before a bill can be introduced. It is much easier to bring in amending
5
(xi)
6
Why would Parliament wish to give ministers these powers? One answer
Given the constitutional position as this court now holds it to be a minister
who reserves a decision to himself—and equally a civil servant who is
authorized by him to take a decision - must know or be told enough to
ensure that nothing that it is necessary, because legally relevant, for him
to know is left out of account. This is not the same as a requirement that
he must know everything that is relevant. …What it was relevant for the
minister to know was enough to enable him to make an informed
judgment. This centrally included the Commission's advice.
is that they are useful for relatively small-scale fine-tuning to the reforms
being introduced by the Act without the need to trouble parliament
with a Bill. Often, minor problems come to light after an Act has received
royal assent.
(xii)
In 1997, the House of Lords established a select committee—now
known
as
the
Delegated
Powers
and
Regulatory
The Court of Appeal dismissed the National Association's appeal.
Reform
Committee—to monitor the inclusion of Henry VIII powers in Bills.
The Committee reports any concerns to the House of Lords, so that
8.5
Parliament's role in Delegated Legislation
(i)
One of the rationales for delegated legislation is that it relieves
peers may, if they agree, seek to amend the Bill to remove or limit
Parliament of some of the burden of legislating. Thus draft SIs receive
the power in question.
far less scrutiny than bills. Some SIs, being those that make
commencement orders bringing sections of an Act into force, are
8.4
Civil Servants and Ministers Making Delegated Legislation
subject to no parliamentary procedures at all; other draft SIs are subject
(i)
Sometimes a minister in the relevant department must sign the text of
to a
delegated legislation produced by civil servants and government law-
of the subject matter.
range of over sight mechanisms, depending on the importance
yers; that minister may either be a junior minister or the Secretary of
State (the most senior minister in that department, and a member of
(ii)
An Sl cannot, except in extremely rare instances where the parent Act
provides otherwise, be amended or adapted by either House. Each
the Cabinet).
House simply expresses its wish for them to be annulled or passed into
(ii)
How much is the minister in question expected to know about the
law, as the case may be.
subject matter of the draft SI, or the reasons why it is being made? Is a
ministerial signature just a rubber stamp for things done by officials? This
became a main issue in a judicial review challenge to an SI made
(iii)
The Minister in charge will sign the statutory instrument and lay it before
Parliament under a draft order.
under the Medicines Act 1968 prohibiting the sale for medicinal
(a) The negative procedure: Some SI’s become law on the date stated on
purposes of a drug called kava-kava, widely used herbal tranqullizer,
them but will be annulled if either House (or the House of Commons only
and other made under the Food and safety Act 1990 banning use of its
if it deals with a financial matter) passes a motion for their annulment
foodstuffs.
within a specified time. This is usually 40 days including the day on which
R (on the application of National Association of Health Stores) v
it was laid.
Secretary of State for Health [2005] EWCA Civ 154, [1]
Sedley LJ stated:
7
(b)
for
more
stringent
The House of Lords held that the Home Secretary could not have
instrument
must
receive
concluded on the evidence, that women were not at risk from
Parliamentary approval before it comes into force or remain in force.
persecution in Pakistan. The same was true in relation to Ahmadis.
Such orders cannot be made unless the draft order is approved by
Accordingly, the Home Secretary’s inclusion of Pakistan on the ‘white list’
both Houses of parliament (unless it relates to financial matters).
was held to be irrational and the order (SI) in relation to Pakistan was
The
affirmative
parliamentary
(iv)
8
procedure:
control
since
This
provides
the
quashed.
SIs may be subject to scrutiny by select committees—committees
of backbench MPs or Lords (or both): Joint Committee on Statutory
Instruments (a committee of both Houses)
(iii)
[2010] UKSC 2, the UK Supreme Court had to review the lawfulness of
two pieces of delegated legislation that were designed to freeze the
8.6
Role of the Courts
(i)
Delegated legislation is amenable to judicial review:
assets of suspected terrorists. The enabling provision relied upon was
R (on the
section 1 of the United Nations Act 1946, which stated that if the UN
application of National Association of Health Stores) v Secretary of State
Security Council called upon the UK to implement measures, his
for Health. All of the grounds of judicial review are potentially applicable:
Majesty may by Order in Council make such provision.
illegality (for example, the delegated legislation is outside the ambit of
the
enabling
provision);
In Ahmed and Ors v HM Treasury (JUSTICE intervening) (Nos 1 and 2)
procedural
impropriety
(for
The names of three claimants appeared on the list drawn up by the UN as
example,
people being involved in terrorism. The UK government then designated
consultation was flawed or non-existent); irrationality.
them as persons whose assets would be frozen under the orders. At no
(ii)
In the case of R (on the Application of Javed) v Secretary of State for
point was there any procedure in place for the claimants to challenge
Home Department [2001] EWCA Civ 789, the Court of Appeal had to
the UN or the government’s determination, in clear contravention of basic
consider whether the Asylum (Designated Countries of destination and
principles of procedural fairness. The Supreme Court held that the orders
designated Safe Countries) Order 1996 (an SI) had been made lawfully
were ultra vires as they fell outside the scope of the 1946 Act; the enabling
by the Home Secretary; the Order had been debated and approved by
provision was not sufficiently wide to permit ministers to interfere with
both Houses of parliament. The Order sought to give effect to policy that
fundamental rights to fair process.
certain countries should be designated as generally free from
Note: In response to the ruling, the government fast-tracked a Bill through Parliament,
persecution, so enabling an expedited process to be used for returning
which became the Terrorist Asset-Freezing (Temporary Provisions) Act 2010; this
failed asylum seekers to the countries they originally came from as the
was subsequently replaced by the Terrorist Asset-Freezing etc. Act 2010. Using
UN authorities could assume that people returned would not be subject
primary legislation, the government now has power to implement UN Security
to mistreatment. The claimants submitted that the Home Secretary had
Council measures on asset freezing. The primary legislation includes a right of
acted unlawfully in placing Pakistan on the ‘white list’. One of the
appeal for the designated person.
claimants was a member of the Ahmadi community, a religious minority
in Pakistan.
2
Chapter 11: The Human Rights Act 1998
statement that it is compatible or decline to make a statement but
indicate that the Government wishes to proceed.
11.1
Incorporation into UK Law: The Human Rights Act 1998
(i)
Section 1 and Sch.1 of the HRA 1998 restate Conventions and Protocols
(vii)
One consequence the application of the HRA is that the courts have
as part of UK law with the exception of Art.13. Article 13 would have
been faced with many challenges involving the application of anti-
given a remedy for violation in any court or tribunal. An applicant can
terrorist legislation (in (particular the Belmarsh case). This has forced
still apply to the ECHR in Strasbourg but they will have to show that they
judges to reassess whether the deferential approach to the executive
have exhausted all domestic remedies.
displayed in cases such as Liversidge v Anderson [1942] remains
appropriate after HRA 1998.
(ii)
(iii)
Section 2 HRA 1998 provides that when a court or tribunal is determining
a question in connection with a Convention right it "must take into
11.2
The Convention Rights
account" judgments, decisions or declarations of the ECHR, and
(i)
These are appended to the HRA 1998 as Sch.1, where they are spelled
opinions or decisions of the Commission or the Committee of Ministers.
out in full. Briefly, they are:
This does not mean that the Court's decisions are binding: see R (Ullah) v
□
Art 2. Right to life.
Secretary of State for the Home Department (2004),
□
Art 3. Prohibition of torture.
□
Art 4. Prohibition of slavery and forced labour.
□
Art 5. Right to liberty and security.
□
Art 6. Right to a fair trial.
□
Art 7. No punishment without law.
Where courts cannot interpret a piece of legislation as compatible,
□
Art 8. Right to respect for private and family life.
then certain courts may make a declaration of incompatibility, under
□
Art 9. Freedom of thought, conscience and religion.
section 4 HRA 1998. The declaration of incompatibility does not affect
□
Art 10.Freedom of expression.
validity and is not binding on the parties: A (FC) and others v SS for the
□
Art 11. Freedom of assembly and association.
Home Dept [2004] UKHL 56
□
Art 12. Right to marry.
□
Art 13. (Not incorporated into English law )
□
Art 14. Prohibition of discrimination.
□
Art 15. Derogation (qualified Articles)
Section 3 of the HRA 1998 states that so far as possible, primary
legislation and subordinate legislation must be read and given effect in
a way which is compatible with the Convention rights: R v A [2000] HL
(iv)
(v)
Section 6 of the HRA 1998 makes it unlawful for any public authority
including any court or tribunal, to act in a way incompatible with a
Convention right. Public authorities must respect rights protected by the
common law.
(vi)
Note: Some rights are absolute, such as Art 3. Some admit exceptions, such as
Section 10 HRA 1998 provides for a fast track legislative procedure
Art 2 and most are subject to restrictions to ensure respect for other rights and
designed to remove the incompatibility. When a new Bill is published,
freedoms.
section 19 HRA 1998, obliges the sponsoring minister to make a written
2
3
(ii)
4
Where the Articles are applicable domestically, the applicant must seek
recourse in the domestic courts, under sections 3 or 4 (for legislation) or
(ii)
Prosecutions (DPP) should be told by the courts to grant her husband
(“ECHR”) which sits in Strasbourg and which interprets and enforces the
ECHR.
In
the
event
the
Article
or
protocol
is
immunity from prosecution in assisting her planned suicide. Her
unenforceable
application was unanimously declared inadmissible. The Court stated
domestically, the applicant has to proceed to Strasbourg.
(iii)
(iv)
In Pretty v UK [2002] the dying Diane Pretty took her case to the ECtHR
after the House of Lords refused to rule that the Director of Public
section 6. Thereafter appeals lie to the European Court of Human Rights
that the right to life, did not extend to a right to die. Article 3 imposed
Following a finding of a breach of the Convention, the State is legally
positive and negative obligations on states to avoid “Inhuman and
obliged (in international law) to make reparation for the consequences
degrading treatment and punishment" but this did not extend to
of the violation.
condemning the DPP's refusal to grant her husband immunity from
prosecution.
In R v Secretary of State for the Home Department, ex parte Simms and O'Brien
[1999] UKHL 33, Lord Hoffmann stated that Parliamentary sovereignty means
(iii)
In Evans v. UK (decided March 2006), the ECtHR rejected a case
that Parliament can, if it chooses, legislate contrary to fundamental
brought by Natalie Evans. She and her former partner had created
principles of human rights. The Human Rights Act 1998 will not detract from
embryos via IVF as she was about to have her ovaries removed
this power. The constraints upon its exercise by Parliament are ultimately
because of cancer. Both parties gave written consent, as required by
political, not legal.
the Human Fertilisation and Embryology Act 1990. The relationship then
finished and the father withdrew his consent to store the embryos, as
(v)
ECtHR has developed a principle called the margin of appreciation to
was his right under the Act, so the embryos would have to be
allow for the cultural and social differences between Member States. In
destroyed.
Wingrove v UK [1996], The UK decided to ban the film Visions of Ecstasy
The Court held that the embryos’ right to life was not engaged,
under its blasphemy laws. The film director asserted that his freedom of
because, in the absence of any European consensus on when life
speech under Art 10 was infringed, but the Court held that such
commenced, the issue was within each state’s margin of appreciation.
fundamental issues as blasphemy should be decided at the local level
Art 8 did apply and included the right to respect for all parties to decide
and UK was held not to be in violation of Art 10.
when to become parents and a fair balance had to be struck between
competing individual interests and society. There was a wide margin of
11.
The Approach of the European Court of Human Rights & Examples of the
appreciation – in other words, national governments had considerable
Convention's Application in English Law
autonomy – because in IVF treatment there was no international
11.3.1 Article 2: Right to Life
(i)
consensus. They examined the 1990 Act which made written consent
Article 2 protects the right to life. Lawful execution, use of self-defence,
mandatory. They observed that several other countries gave either
lawful arrest, use of force to quell a riot or prevent a prisoner's escape
party the right to withdraw up to the moment of implantation. The Court
are permitted. No other derogation is allowed under Article 15.
declined to hold that that it ought to examine the balance of
Relevant case.
competing interests (hers and the father’s).
3
4
5
6
11.3.3 Article 5: Liberty and Security
(iv)
In An NHS Trust v Y [2018] UKSC 46, the Supreme Court ruled on the
(i)
circumstances under which it was lawful to withdraw clinically assisted
to exceptions prescribed by law and Art 15 derogation in an
nutrition and hydration (CANH) from a patient in a state of prolonged
emergency. Article 5(2) states that where liberty is in issue there should
disorder of consciousness without an order of the court. The patient
be a fair hearing.
suffered cardiac arrest that led to extensive brain damage. He never
regained consciousness and medical evidence indicated that he was
(ii)
appellants challenged the lawfulness of their indefinite detention under
and family agreed that it would be in his best interests to withdraw
the Anti-Terrorism, Crime and Security Act 2001, an Act passed swiftly
CANH and the NHS Trust sought a declaration in the High Court that it
after the terrorist destruction of the New York World Trade Centre on
was not necessary to seek court approval for its withdrawal. The
September 11, 2001, which enabled the internment without trial of
Supreme Court stated that there was no common law requirement
foreign nationals whom the Home Secretary suspected were terrorists.
always to seek authorisation from a court.
There were no similar powers over British citizens. The Government had
derogated from (opted out of) its obligations under Art.5, as provided
for by the Convention where there is "a public emergency threatening
Article 3 ensures freedom from torture or inhuman or degrading
the life of the nation". No other European country had done this in the
treatment. No derogation is allowed under Article 15. This is an
wake of "9/11`.
absolute duty and it includes degrading treatment: Chahal v UK
(ii)
Seven Law Lords ruled that indefinite detention without trial was
unlawful because it was a disproportionate interference with liberty
In GS (India) v Secretary of State for the Home Department [2015] 1 WLR
(Art.5) and equality (Art.14).
3312, the Court of Appeal held that the order to return claimants to
their country of origin where they alleged that they would not receive
the same standard of medical treatment for serious conditions did not
constitute a breach of Article 3.
(iii)
In A (FC) and others v SS for the Home Dept [2004] UKHL 56, the
in a vegetative state without any prospect of improvement. The doctors
11.3.2 Article 3: Inhuman and Degrading Treatment
(i)
Article 5 protects the right to liberty and security of the person, subject
(ii)
In March 2005, Parliament passed the Prevention of Terrorism Act to
replace the offending 2001 Act. Due to a series of decisions questioning
the validity of non-dergatory control orders (Secretary of State for the
The Court of Appeal held in AM (Zimbabwe) v Secretary of State for
the Home Department [2018] EWCA Civ 64 that the removal of a
foreign national with a medical condition from the UK would amount
to a violation of Article 3 if the medical treatment he was receiving in
the UK was not available to him in the receiving state and would lead
to him suffering a rapid decline in health leading to suffering or death.
5
Home Department v JJ [2007]) and the compatibility issue on the
Special Immigration Appeals Commission and Article 5(4) (Secretary of
State for the Home Department v AF and anor [2009] UKHL 28) and
the decision of the ECtHR in A and ors v UK [2009], the PTA 2005 was
replaced with the terrorist Prevention and Investigative Measures Act
2011.
6
7
8
11.3.4 Article 6: The Right to a Fair Trial
pro bono (free) lawyers, they mainly acted alone. The trial length was a
(i)
Article 6 ensures the right to a fair trial. There are three parts to this
testament to their lack of skill and experience. They had been deprived
provision:
of the opportunity to present their case effectively and there was
1.
in civil and criminal proceedings, 'everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law
2.
inequality of arms.
(iii)
R. (on the application of Anderson) v SS for the Home Dept [2002] UKHL
criminal offence;
3.
46, the Home Secretary's power to determine the length of a life
five minimum rights are provided for those charged with a criminal
sentence was incompatible with Art.6. Following previous ECtHR case
offence to be informed promptly of the nature and cause of the
law, the House of seven Law Lords held that the Secretary of State's role
accusation in a language he understands and in detail; to have
was objectionable because he was not independent of the executive.
adequate time and facilities for preparation of his defence; to defend
The European Court had been right to describe the complete
himself in person or through legal assistance of his own choosing or to
functional
have free assistance when the interests of justice so require and he has
and to obtain the attendance and examination of witnesses on his
(iv)
behalf under equal conditions; to have free assistance of an interpreter
the
judiciary
from
the
executive
as
Forcing litigating parties into alternative dispute resolution (ADR) (as
on their right of access to the courts: Halsey v Milton Keynes General
NHS Trust [2004] EWCA Civ 576.
On the issue of legal aid, in Steel and Morris v UK [2005] ECtHR it was
(v)
were denied legal aid, in defending themselves against a defamation
In Re MB [2006], Mr Justice Sullivan ruled that control orders, under the
Prevention of Terrorism Act 2005 breach these Articles. These orders
action by McDonalds, after distributing leaflets attacking the fast food
involve a form of house arrest for anyone suspected of terrorism-related
chain. It was central to the concept of a fair trial, civil or criminal that a
activity. He said they were an “affront to justice” and “conspicuously
litigant was not denied the opportunity to present his or her case
unfair” and were in breach of Arts 6 and 8.
effectively before the court and that he or she was able to enjoy
equality of arms with the opposing side.
of
discussed under the earlier module) was an unacceptable constraint
if he cannot understand or speak the language used in court.
held that there had been a breach of Art.6 because the applicants
separation
"fundamental", since the rule of law depended on it.
insufficient means; to examine or have examined witnesses against him
(ii)
Another thorny issue under Art 6 has been that under the doctrine of
separation of powers, judges must determine sentence not ministers In
the presumption of innocence applies to everyone charged with a
(vi)
The applicants argued they were severely hampered by lack of
See also A & Ors v UK [2009] (the appeal by the Belmarsh detainees to
the ECtHR)
resources, such as note-taking and photocopying, not just legal advice.
The facts were complex, involving 40,000 pages documentary
11.3.5 Article 7: No Punishment Without Law
evidence. Nor was the law straightforward. Extensive legal and
procedural issues had to be resolved even before the trial started.
Although the applicants were articulate and they had some help from
7
8
9
11.3.6 Article 8: Private and Family Life
(i)
10
(iii)
In R (on the application of Begum) v. Headteacher and Governors of
Article 8 provides a right to respect for family and private life, home
Denbigh High School [2006] UKHL 15, the Law Lords reversed the Court
and correspondence, subject to exceptions in the interests of national
of Appeal’s decision. Giving the leading opinion, Lord Bingham
security, public safety or economic wellbeing of the State, prevention
explained that, to be justified under Art 9.2, a limitation on or
of disorder or crime, protection of health or morals or the rights and
interference with the freedom of religion must be a) prescribed by law
freedoms of others: See R (on the application of Conway) v Secretary of
and b) necessary in a democratic society for a permissible purpose,
State for Justice (Humanists UK and others intervening) [2019] 1 All ER 39
that is, it must be directed to a legitimate purpose and must be
CA; R (on the application of Nicklinson) v Ministry of Justice, R (on the
proportionate in scope and effect.
application of AM) v DPP [2014] UKSC 38]
The school was fully justified in acting as it did. It had taken immense
pains to devise a uniform policy which respected Muslim beliefs but did
(ii)
In R v SS - for the Home Dept Ex p. Daly [2001] UKHL 26 the House of
so in an inclusive, unthreatening and uncompetitive way.
Lords held that a policy that prisoners must be absent when privileged
mentioned that four out of six parent governors were Muslim, as was the
He
legal correspondence held in their cells was examined by prison
head teacher. The school had consulted parents and the local
officers was unlawful. The House of Lords reached this conclusion by,
mosques. The school permitted the wearing of a shalwar kameez and
applying the common law but it was supported by the Art.8 (1) right to
there was no suggestion by those consulted, including the Imams of
respect for correspondence. This case is very important as the House
three local mosques, which this failed to satisfy Islamic requirements. Her
ruled that the courts must apply a proportionality test in judicial review
family had chosen the school for her in full knowledge of the uniform
cases where human rights are in issue, as a principle of English law.
requirements.
She wore the shalwar kameez for two years. People sometimes had to
11.3.7 Article 9 Freedom of Thought, Conscience and Religion
(i)
suffer inconvenience for their beliefs. She and her brother had, instead,
Under Art 9.2, a limitation on or interference with the freedom of religion
decided that it was the school’s problem. There were three schools in
must be a) prescribed by law and b) necessary in a democratic society
the area where the wearing of a jilbab was permitted and there was no
for a permissible purpose, that is, it must be directed to a legitimate
evidence to show that there was any real difficulty in her attending a
purpose and must be proportionate in scope and effect.
(ii)
neighbouring school. The two year interruption in her schooling was the
result of her unwillingness to comply with a rule which the school was
In Leyla Sahin v Turkey [2004].The ECtHR held there to be no breach of
entitled to adhere to and her failure to secure prompt admission to
Art.9 in a ban placed on Islamic headscarves by the University of
another
Istanbul. Turkey’s Constitutional Court guaranteed democratic values,
freedom, if necessary, to defend other values and principles, including
secularism, and equality.
school
where
her
religious
convictions
could
be
accommodated.
including the freedom of religion but restrictions could be placed on this
(iv)
In Eweida and others v United Kingdom Application nos 48420/10,
59842/10 (2013) 57 EHRR 8, the Court of Human Rights reconsidered the
scope of Article 9: the right to manifest one’s religion. Two of the
applicants alleged that their rights had been infringed by the refusal of
9
10
11
12
their employer to allow them to wear a Christian cross around their neck
Even a large multinational had a right to defend itself and it had a
at work. In relation to an employee of British Airways (BA), Ms Eweida,
competing interest in protecting its commercial success. The state was
the Court held that there had been a violation. BA allowed the wearing
free under the margin of appreciation to provide such a remedy to the
of other religious clothing and had amended its dress code to allow for
corporation but lack of procedural fairness gave rise to a breach of
religious symbolic jewellery, showing that the earlier prohibition was not
Art.6. Also, the damages were disproportionate.
of importance.
In respect of Ms Chaplin, a geriatric nurse
employed
in
a hospital,
there was no violation. The prohibition was justified on the grounds of
11.3.9 Article 11: Freedom of assembly and association.
(i)
This includes a right to join a trade union, a right to strike, to join
political parties and other associations. However, such rights are not
protection of the health and safety of the hospital ward.
without limitation, so there is no automatic right to join a trade or
(v)
In Lee v Ashers Baking Company Ltd [2018] UKSC 49, the Supreme Court
professional body, such as The Law Society or the Bar, and the Council
ruled that the refusal by a Christian couple (the McArthurs) who owned
of Civil Service Unions v Minister for the Civil Service (1985) (the GCHQ
a bakery to provide a cake iced with the message Support Gay
case) clearly shows that a ban, imposed by the Government on civil
Marriage was lawful and not discriminatory. The Article 9 right was
servants at the Cheltenham communications centre, from joining a
engaged and it included the right not to be obliged to manifest beliefs
trade union, was justified in the interests of national security and so was
one does not hold. The McArthurs did not refuse to provide the cake
not in breach of this Article.
because the customer was gay but because they were being required
to supply a cake with a message with which they profoundly disagreed.
(ii)
The right of peaceful assembly and association includes the right to
belong to a trade union or political party: Red v United Kingdom
11.3.8 Article 10: Freedom of expression
(47334/06) [2012] ECtHR 1878. In this case, the applicant was a
(i)
In Steel and Morris v UK, the appeal by the McLibel two the ECtHR said
member of the British National Party (BNP), a right-wing political party.
the central issue on an Art. 10 application was whether the interference
As a result of his membership he was dismissed from his employment,
with freedom of speech was necessary in a democratic society.
on the basis that his employment would cause problems in an area in
Political expression, including expression on matters of public interest
which he there was a high concentration of non-white families. He was
required a high level of protection. In a democratic society even small
unable to claim unfair dismissal because he had not been in the post
and informal campaign groups, like London Greenpeace, to which the
for the qualifying one-year period. His claim that he had been
pair belonged, had to be able to carry on their activities effectively. In
discriminated on grounds of race contrary to the Race Relations Act
a campaign leaflet, a certain degree of exaggeration could be
1976 was dismissed by the Court of Appeal. The Court ruled, by four
tolerated but in this case the allegations made against McDonalds
votes to three, that the United Kingdom Government was under a
were very
duty to take ‘reasonable and appropriate measures’ to protect
serious and were presented as statements of fact rather than value
employees from dismissal on grounds of political opinion or affiliation.
judgments. The fact that the burden of proof was on the defendants to
The legislation was ‘deficient’ in providing no remedy and there was,
prove the truth of their allegations was not incompatible with Art.10.
accordingly, a violation of Article 11.
11
12
13
14
11.3.11 Article 13 Effective Remedy
11.3.10 Article 12: Right to Marry
(i)
Article 13 provides a right to an effective remedy, but this has not been
Marriage (Same Sex Couples) Act 2013 makes marriage of same sex
incorporated by the Human Rights Act 1998: see Osman v UK; Z v Others
couples lawful in England and Wales and sets out the legislative
v United Kingdom [2001] The Times, 31 May ECtHR.
provisions under which same sex couples may marry. It ensures there is
no obligation on the clergy of the Church of England and the Church
11.3.12 Article 14 Prohibition against Discrimination
in Wales to effect the same.
(i)
(ii)
Article 14 provides non-discrimination in relation to Convention rights on
The Civil Partnership Act 2004 enabled same-sex couples to obtain
the grounds of sex, race, colour, language, religion, political or other
formal legal recognition of their relationship. The Marriage (Same Sex
opinion, national or social origin, association with a national minority,
Couples) Act 2013 enabled same-sex couples to marry. Thus same-sex
property, birth or other status.
partners had two options, whereas opposite-sex couples had only one.
(ii)
(iii)
In the matter of an application by Denise Brewster for Judicial Review
This was challenged by an opposite-sex couple (who had an
(Northern Ireland) [2017] UKSC 8, the Supreme Court held that differing
ideological objection to marriage) as being discriminatory and
requirements
incompatible with Article 14 read with Article 8 in R (Steinfeld) v
partnerships) and cohabitees for entitlement to succeed to a
Secretary of State for International Development [2018] UKSC 32.
deceased partner's pension were incompatible with Article 14 and
The Supreme Court ruled that there was a breach of Article 14 (the
applying
to
married
couples
(and
those
in
civil
A1P1 (the right to peaceful enjoyment of possessions).
right to non-discrimination in the enjoyment of Convention rights)
taken in conjunction with Article 8. The Civil Partnership Act 2004
provided for same-sex couples to enter into a civil partnership. In
2013 Parliament enacted the Marriage (Same Sex Couples) Act. The
claimants
were
a
different-sex
couple
with
a
conscientious
objection to marriage. The Supreme Court decided that the
interference with their right to non-discrimination was unjustified.
11.3.13 Article 15: Derogation
This Article permits derogation from Convention rights (except Art 3) in
'war or other public emergency threatening the life of the nation',
provided such derogation is proportional and necessary to deal with
the emergency. This was a much used provision by the UK in
connection with terrorist activities in Northern Ireland.
Note: No derogation is allowed under Article 15 in respect of Article 3
(iv)
The Civil Partnerships, Marriages and Deaths (Registration etc.) Act
2019 was the response to the case of Steinfeld above. The Act allows
heterosexual couples who are opposed to marriage to enter into a
civil partnership. The Civil Partnerships Act 2004 made civil partnerships
available for same-sex couples but not heterosexual couples.
13
14
2
Chapter 11: Human Rights Act (Part 3)
pursuant to its duties as the local housing authority under the Housing
Act 1996. The property was later transferred to Poplar. Poplar was
11.6
Section 6 HRA & the definition of public authorities
created as a housing association by Tower Hamlets in order to transfer
11.6.1 Definition of Public bodies and statutory interpretation by Courts.
to it a substantial proportion of the council's housing stock. Tower
(i)
Section 6 is the key enforcement provision in the HRA. This reflects the
Hamlets decided that the defendant had made herself intentionally
'vertical' nature of human rights obligations under the Act. It is unlawful
homeless, and Poplar were informed of this fact.
for a public authority to act in a way which is incompatible with a
Convention right [Section 6(1)] and the victim of such an unlawful act
Later, proceedings for possession were begun, and, later still, the
may bring proceedings in which a court “may grant such relief or
Secretary of State for the Environment, Transport and the Regions
remedy, or make such order, within its powers as it considers
intervened in the proceedings. He was able to do so because the
appropriate: section 8(1).
defendant was seeking a declaration of incompatibility.
There is no comprehensive definition of a public authority in the Act but
provisions of the HRA would only apply if Poplar was a public body or
it includes a court or tribunal or “any person certain of whose functions
performing public functions. The court stressed that for section 6, the
are of a public nature”: section 6(3) [but not Parliament].
definition of a public authority and a public function should be given a
The defendant was alleging a breach of Article 8 of the ECHR. The
(ii)
generous interpretation.
(iii)
Organs of central or local government and the police obviously public
authorities and the same may be true of many regulatory bodies and
However, this principle is limited to a certain extent by the following
the BBC. The Act does not apply to acts of the body which are of a
argument.
private nature: s.6(5): Aston Cantlow etc. Parochial Church Council v
“That a body performs an activity which otherwise a public body would
Wallbank [2003] UKHL
be under a duty to perform, cannot mean that such performance is
necessarily a public function. A public body in order to perform its
(iv)
Exception: s.6(1) does not apply to an act of a Public Authority if, as
public duties can use the services of a private body. Section 6 should
detailed by s.6(2), the authority could not have acted differently
not be applied so that if a private body provides such services, the
because of primary legislation; or in the case of provisions made under
nature of the functions are inevitably public. If this were to be the
primary legislation which cannot be read in a way which is compatible
position, then when a small hotel provides bed and breakfast
with the Convention rights, the authority was acting so as to give effect
accommodation as a temporary measure, at the request of a housing
to or enforce those provisions.
authority that is under a duty to provide that accommodation, the small
hotel would be performing public functions and required to comply
(v)
Poplar v Donoghue [2001] 4 All ER, 604, CA.
with the HRA. This is not what the HRA intended…”
The defendant moved into a local authority property, pending a
decision as to whether she was intentionally homeless. The tenancy was
granted by the London Borough of Tower Hamlets (“Tower Hamlets')
3
4
The consequence would be the same where a hospital uses a private
accountable to the general public for what it did and received no
company to carry out specialist services, such as analysing blood
public funding. The statutory powers which it had been given by the
samples. The position under the HRA is necessarily more complex.
Chancel Repairs Act 1932 were not exercisable against the public
generally, or against any class or group of persons which formed part of
The House of Lords held that Section 6(3) means that hybrid bodies,
it. The appellant was not a core public authority and its status as part of
which have
the Church of England did not affect this conclusion.
functions of a public and private nature are public
authorities, but not in relation to acts which are of a private nature. The
renting out of accommodation can certainly be of a private nature.
(vii)
In Cameron and Others v. Network Rail Infrastructure Ltd. [2006] EWHC
The fact that through the act of renting by a private body a public
1133, the question arose as to whether Network Rail was a public body
authority may be fulfilling its public duty, does not automatically
or public authority and could thus be the subject of proceedings under
change into a public act what would otherwise be a private act.
the 1998 Act. The proceedings arose out of the Potters Bar rail crash in
2002. The HC ruled that it was not because:
(vi)
The House of Lords decision in Aston Cantlow and Wilmcote with
(a)
Billesley Parochial Chuch Council v Wallbank [2004]1 AC 546
of a church that was an obligation
railway was not intrinsically a government activity;
of the ownership of a particular
(b)
property close to the church. The respondents were arguing that the
(c)
to show that the Council was bound by the Human Rights Act. In
repair the Church, the Council was, in fact, depriving the respondents
(d)
R. had not been democratically accountable to government;
(e)
R.’s directors had been appointed by the company and their
of their possessions, or controlling the use of their property, in breach of
appointment had not been subject to government influence or
first
control;
sentence of Protocol 1, Art.1 ECHR. The House of Lords held that the
(f)
Church was not a public authority.
R. possessed no special powers or immunities, beyond those which
regulate individuals;
(g)
The House of Lords turned to the definition of hybrid public authorities.
were not public authorities in respect of acts of a private nature.
there had been no obligation on Railtrack to conduct its
operations in a manner subservient to the public interest;
enforcing the duty to
These exercised both public functions and non-public functions and
there had been a clear commercial objective in Railtrack’s
performance. (Railtrack was NR’s previous name).
Parochial Church Council was a public authority. This would allow them
the general principle of peaceful enjoyment set out in the
the primary purpose of the Railways Act 1993 had been to take
the railways out of the public sector and the activity of running a
concerned ecclesiastical law, and an obligation to repair the chancel
(viii)
R. had not been publicly funded.
s. 6(3)(b) of the HRA also includes within the expression 'public authority'
persons or bodies that are private, but which perform functions of 'a
public nature'. Such bodies are referred to as 'hybrid' public authorities.
The House of Lords determined that a Parochial Church Council was
not a governmental organisation, as it had nothing to do with the
processes of either central or local government. Furthermore, it was not
This distinction has been alluded to in detail by Lord Nicholls in Aston
Cantlow’s case.
5
(ix)
6
In YL (by her litigation friend the Official Solicitor) v Birmingham City
statutory provisions in Scotland and Northern Ireland) are taken to be
Council and Others [2007] UKHL 27 House of Lords adopted the narrow
exercising functions of a public nature for the purposes of the Human
approach in that private bodies exercising functions (previously
Rights Act 1998.
performed by local authorities under statutory powers) is not in its nature
public and are not public authorities rejected the argument that,
(xi)
The meaning of ‘public body’ under s.6 of the Human Rights Act was
considered recently in Fearn v Board of Trustees of the Tate Gallery [2019]
considered to be 'functions of a public nature' when performed by a
EWHC 246 (Ch). A case was brought under the law of nuisance and the
private body.
Human Rights Act to protect rights of privacy of residents in flats opposite
the Tate Modern Art gallery in London. A walkway around the gallery on
In YL, the claimant relied on the HRA when challenging a decision by a
the 10th floor provides panoramic views of London but also enabled
private care home, run as a business, to give notice to an elderly resident
visitors to look into the neighbouring flats.
suffering from Alzheimer's disease terminating her placement in the home.
The majority in the House of Lords (Lord Bingham and Baroness Hale
A preliminary question for the court was whether the Tate is a public
dissenting) held that a care home run as a business was not performing
body for the purposes of the Article 8 human rights claim. The Tate is
functions of a public nature when providing residential accommodation
regulated by statute. It receives some public funding amounting to
and care to people whose places were funded by local authorities
about one-third of its running costs. The funding is, however,
(which had a statutory duty to arrange and subsidize placements).
discretionary. The gallery is required to act in the public interest. Each of
these factors is relevant to determining whether the Tate is a public
This was essentially because the relationship between the care home
body but none of them is determinative.
and its residents was contractual in nature, and when the home was
delivering
a
contractual
obligation
owed
to residents,
it
The court ruled that the Tate is not exercising governmental functions
was
nor is it run under the direction of the government. The Tate is therefore
performing a private, rather than a public, function. The majority said
not exercising a ‘function of a public nature’ and is not a public body.
that it would be wrong to characterize the situation as one in which
Accordingly, the court did not consider the claim under Article 8.
local authorities had delegated their functions to the company
running
the
home.
Moreover,
the
provision
of
care
and
11.6.2 The victim requirement (contrast with the standing test in judicial
accommodation was not, they held, inherently a government
function.
review cases
(i)
A claimant under s. 6(1) of the HRA must show that he or she is 'a victim
of the unlawful act. A person will only be a victim if he or she is, or will
(x)
Parliamentary intervention has mitigated the harshness of the above
be, directly affected by the violation.
decision. Section 145 of the Health and Social Care Act 2008 now
provides that private or voluntary bodies providing accommodation,
(ii)
In some circumstances, family members of victims are also able to bring
together with nursing or personal care, under arrangements with local
proceedings. In Daniel v St George's Healthcare NHS Trust and London
authorities under the National Assistance Act 1948 (and equivalent
Ambulance Service [2016] a foster mother and 'foster brother' of a man
7
8
who died of a heart attack while in prison on remand claimed that they
were `indirect victims' of a culpable delay in treatment. Mrs Lang J set
(ii)
awarded if the court considers this necessary to afford 'just satisfaction;
1. the nature of the legal/family relationship between the Claimants and
having regard to all of the circumstances of the case and to the
the said man;
principles applied by the ECtHR.
2. the nature of the personal ties between the Claimants and the said
man;
3. the extent to which the alleged violations of the Convention (1)
affected them personally and (2) caused them to suffer;
4. involvement in the proceedings arising out of JB's death.
Applying that criteria, Mrs Lang J was satisfied that the first claimant
was an indirect victim as she had been JB's foster mother for three
years, leading to a longstanding parent-child relationship. However,
the second claimant was not a victim; it was insufficient that he had
suffered hugely from the loss of a close friend.
(iii)
The narrow approach taken to the term 'victim was also illustrated by
the recent decision of the UK Supreme Court In the Matter of an
application by the Northern Ireland Human Rights Commission for
Judicial Review [2018] which held that the Northern Ireland Human
Rights Commission could not be a victim of, and was therefore was
unable to challenge, Northern Ireland abortion law.
(iv)
Public interest groups cannot claim to be victims. The 'victim
requirement is narrower than the standing requirement in judicial review
proceedings: R v Secretary of State for Foreign and Commonwealth
Affairs ex parte Word Development Movement [1995].
11.6.3 Remedies
(i)
When a court has decided that a public authority has, or is proposing
to, act unlawfully under s. 6(1) of the HRA, it may grant 'such relief or
remedy, or make such order within its powers as it considers just and
appropriate: section 8 HRA.
The remedies can include any that could be obtained in judicial review,
or an order to pay damages or compensation. Damages may be
out the relevant test:
(iii)
Courts would not generally award of a high quantum of damages in
cases in which no financial losses are involved, such as in infringement
of liberty cases. In Johnson v UK (1999), the ECtHR awarded £10,000 in a
case in which there had been a wrongful detention in a maximum
security psychiatric hospital for three-and-a-half years. When the ECtHR
upheld the claims following the Belmarsh case, it awarded substantially
lower sums of between €3,900 and €1,700 to those who had been unlawfully detained together with legal costs.
2
Chapter 11: Human Right Act 1998 (Part 2)
(iv) In R v Homcastle & Ors [2009], Lord Phillips stated that the domestic courts
were not obliged to follow the jurisprudence of the European Court of
11.4. The Approach of English Courts to Convention Rights and Interpretation
Human Rights where that Court insufficiently appreciated domestic law.
of Domestic Law
The UK Supreme Court stated that it would depart from Strasbourg case
law where that concerned continental trial procedures that differ from
Section 2 HRA 1998
(i)
those used in the UK criminal process.
Section 2 of the Human Rights Act (HRA) requires courts and tribunals 'to
take into account any judgment, decision … of the European Court of
(v) In Al Rawi v The Security Service and Ors [2011] SC Lord Dyson stated that
that it was open to the domestic courts to provide greater protection
Human Rights’. This section becomes relevant when the courts are
through the common law than which is guaranteed by the Convention.
applying the convention rights under section 3 or 4 or 6 HRA. This is also
subject to a State’s margin of appreciation: Wingrove v UK.
(ii)
(vi) R (Children's Rights Alliance) v Secretary of State for Justice [2013] Laws
LJ, in the Court of Appeal, called for the Ullah principle to be revisited:
In R (on the application of Ullah) v Special Adjudicator [2004[, Lord
There is no doubt that in this court we are bound by the Ullah principle….
Bingham stated that the case law of the European Court was not strictly
There is a great deal to be gained from the development of a municipal
binding but must be followed unless special circumstances dictated
jurisprudence of the Convention rights, which the Strasbourg court
otherwise. It is the duty of the courts to keep in pace with Strasbourg
should respect out of its own doctrine of the margin of appreciation, and
jurisprudence as it evolves over time. This view is referred to as the 'mirror
which would be perfectly consistent with our duty to take account of
principle'.
(not to follow) the Strasbourg cases.
(iii) This view was supported in Pinnock v Manchester City Co ]2010] SC where
Lord Neuberger JSC stated that:
(vii)
In Poshteh v Royal Borough of Kensington and Chelsea [2017] UKSC 36,
This Court is not bound to follow every decision of the EtCtHR. Not only
the Supreme Court again considered the relationship between its
would it be impractical to do so: it would sometimes be inappropriate, as
precedent decisions and those of the Court of Human Rights. In this
it would destroy the ability of the Court to engage in the constructive
case, which turned on the right to accommodation under the Housing
dialogue with EtCtHR which is of value to the development of Convention
Act 1996, the Court held that it would not depart from its previous
law. …
unanimous decision in Ali v Birmingham City Council [2010] UKSC 8 in
Where, however, there is a clear and constant line of decisions whose
order to follow the decision of the Strasbourg court in Ali v United
effect is not inconsistent with some fundamental substantive or
Kingdom (2016). The ECtHR's decision was from a Chamber of the Court
procedural aspect of our law, and whose reasoning does not appear to
and it had not addressed in any detail the Supreme Court's reasoning
overlook or misunderstand some argument or point of principle, we
or its concerns over the judicialisation' of the welfare services. In this
consider that it would be wrong for this Court not to follow that line.
case the Supreme Court stated that it would await a decision of the
Grand Chamber before considering whether to depart from its previous
decision.
3
(viii)
4
In Moohan v Lord Advocate (Advocate General for Scotland
1998 he added that a declaration of incompatibility was a measure of
intervening) [20151 AC 901 Lord Wilson JSC suggested that there
last resort.
had been a "retreat" from the Ullah principle which had led the
As such the majority allowed the evidence of previous sexual history
court to "substantially" modify it. This is where there is no directly
contrary to the clear meaning of section 41 to make it compliant with
relevant decision of the ECtHR with which it would be possible to keep
Article 6 HRA 1998. Thus the court could read in words to change the
pace, the UK courts can and must do more. It is then for the UK Court
meaning of legislation to make it convention compliant.
to be the determinant of an alleged Convention right.
Lord Hope in a dissenting judgment, stated that the traditional rules of
11.5
statutory interpretation were still applicable and using the approach
Application of Sections 3 and 4 HRA 1998
stated by Lord Steyn would be usurping Parliament’s role in legislation
11.5.1 Section 3 HRA – the interpretative section
(i)
Under s.3 the court is to read primary and subordinate legislation in a
way compatible with Convention rights, so far as it is possible to do so.
(ii)
R. v A [2001] UKHL 25 concerned the interpretation of section 41 of the
Youth Justice and Criminal Evidence Act 1999 which prohibited
previous sexual history of the complainant in a case involving a sexual
offence from being elicited in evidence by a Defendant in light of Artile
6 of HRA 1998 wherein the courts as public body under section 6 HRA
had to ensure the right to a fair trial.
(iii)
The same bold approach by Lord Steyn in R v A above, was adopted
by the Court of Appeal and then the House of Lords in Ghaidan v
Godin-Mendoza [2004] UKHL 30. Originally, the 1977 Act stated that
where a tenancy was in the name of one party to a marriage (it was
usually in that of the husband), the other could not be evicted. That
was later extended to cover unmarried men and women (in situations
in which the survivor had lived with the tenant 'as his or her wife or
husband').
In Ghaidan, the question arose whether that protection also covered
In interpreting s.3 of the 1998 Act Lord Steyn stated that the HRA s.3
gay couples if the phrase was interpreted so as to be compatible with
obligation went far beyond the rule which enabled the courts to take
Convention rights under s. 3 of the Human Rights Act 1998.
the Convention into account in resolving any ambiguity in a legislative
provision. Parliament placed on a court a duty to strive to find a
possible interpretation compatible with Convention rights.
Prior to this case in Fitzpatrick v Sterling Housing Association 2001],a
case with the same facts that was decided before the HRA, the House
of Lords had held that a same-sex survivor would not qualify under the
It was much more radical than the ordinary method of interpretation
wording of these provisions. The question in Ghaidan was whether that
which permitted a departure from language of an Act to avoid absurd
decision remained-applicable following the HRA.
consequences. In accordance with the will of Parliament, in enacting
The House of Lords was unanimous in its view that it would be contrary
the HRA, it would sometimes be necessary to adopt an interpretation
to Art. 14, taken together with Art. 8, to deny Mr Godin-Mendoza the
which linguistically might appear strained. The techniques to be used
right to succeed to a statutory tenancy. The central issue was whether is
would not only involve the reading down of express language in a
was possible to read the 1977 Act, as amended, in a way that made it
statute but also the implication of provisions. Interpreting s.4 of the HRA
compatible with these provisions? The majority said that it was possible
5
to do so and the gay partner was granted the right to the statutory
6
(ii)
In R (Steinfeld and Keidan) v Secretary of State for International
tenancy.
Development (in substitution for the Home Secretary and the Education
Lord Steyn stated that section 3(1) applies even if there is no ambiguity in
Secretary) [2018] UKSC 32 the UK Supreme Court granted a declaration
the language in the sense of it being capable of bearing two possible
that the Civil Partnership Act 2004 is incompatible with Convention rights
meanings. The word "possible" in s 3(1) is used in a different and much
in so far as it prevents a different sex couple from entering into a civil
stronger sense. Secondly, s 3(1) imposes a stronger and more radical
partnership. The declaration was made despite the government
obligation than to adopt a purposive interpretation in the light of the
agreeing to an amendment in a Private Members Bill that would, if
ECtHR.
enacted, alter the Civil Partnerships Act.
Lord Nicholls stated that in the ordinary course the interpretation of
legislation involves seeking the intention reasonably to be attributed
(iii)
debate about the content of future legislation. Many writers argue that
quire the court to depart from this legislative intention, that is,
the courts are, and should be, involved in a dialogue (or even a
depart from the intention of the Parliament which enacted the
partnership) with policy and law-makers, and that the ability to make
legislation.
(iv)
declarations of incompatibility is an important tool in this process.
Section 3 HRA allows the courts to shift the interpretative focus away from
the traditional rules of statutory interpretation towards fulfilling the
(iv)
As stated above, the Civil Partnerships, Marriages and Deaths
(Registration etc.) Act 2019 was the response to the case of Steinfeld v
overriding goal of achieving compatibility with the convention, even
Secretary of State for Education (2017] above. Act allows heterosexual
though it may accord the words used by Parliament a strained meaning.
couples who are opposed to marriage to enter into a civil partnership.
This approach looks at the imputed intention of Parliament rather than the
The Civil Partnerships Act 2004 made civil partnerships available for
actual intention.
(v)
Lady Hale and Lord Kerr in Stenfield’s case stated that the courts as
having a positive role to play in warning Parliament and informing
to Parliament in using the language in question. Section 3 may re
same-sex couples but not heterosexual couples.
Section 3 of HRA cannot be applied if the legislation makes it clear in
unambiguous terms that human rights under the Articles in HRA 1998 or
(v)
R (on the application of Noel D Conway) v the Secretary of State for
the common law, are being overridden, then the courts cannot give it
Justice [2018] EWCA Civ 143, Court of Appeal, the court of Appeal
any contrary meaning: R (Wilkinson) v IRC [2005] UKHL 30
cited Nickinson’s case above but distinguished it on certain grounds.
(amongst others, as not a case of being terminally ill as in Conway’s
11.5.2 Section 4 HRA – declarations of incompatibility.
(i)
On section 4 HRA and political repercussion arising as a consequence:
see A (FC) v Secretary of State for Home Department [2004] HL
Declarations of incompatibility are not binding on the parties and do
not compel government or Parliament to change the law.
case but the 2 claimants being totally disabled, there was no pending
Bill in Parliament)
Mr Conway was a 68-year-old man who, in November 2014, was
diagnosed with a form of motor neurone disease ('MND'). MND is a
neurological disease which attacks the nerve cells responsible for
controlling voluntary muscle movement. The nerve cells degenerate
7
8
and die and stop sending messages to the muscles. The muscles
personal autonomy in choosing the time and manner of death,
gradually weaken and waste away. Eventually, the brain's ability to
protected by art 8.
start and control voluntary movement is lost.
It was the responsibility of the courts under the 1998 Act to determine
Mr Conway had to use a wheelchair and requires ever increasing levels
whether or not there had been infringement of the Convention, and in
of assistance with daily life, eating and bodily functions. The muscles
many cases that involved the court itself reaching a decision on
which allowed Mr Conway to breathe were also wasting away. He
matters which had wide-ranging implications for society.
increasingly found it difficult to breathe without mechanical assistance
in the form of non-invasive ventilation (“NIV”), which he required for an
increasing number of hours each day. The average life expectation of
a person with MND is between two and five years …
When Mr Conway has a prognosis of six months or less to live, he
wished to have the option of taking action to end his life peacefully
and with dignity, with the assistance of a medical professional, at a
time of his choosing, whilst remaining in control of the final act that
In the case of qualified Convention rights, such as art 8, the court was
required to weigh the interests of the wider community against the
interests of the individual applicant.
However, in some cases, it was appropriate to give respect to the
views of the executive or of Parliament. How much respect should be
given would depend upon all the circumstances.
may be required to bring about his death. He filed a claim for judicial
There was no common law right to assisted suicide and Parliament had
review, in which he sought a declaration under s 4 of the Human Rights
expressed a clear position, not only by the terms of the 1961 Act itself,
Act 1998, that 2 (1) of the Suicide Act 1961, which imposed a blanket
but by subsequently and relatively recently rejecting legislation along
ban on assisted suicide, was incompatible with his right to respect for
the lines of the claimant's scheme.
private and family life under Article 8 of the European Convention. He
proposed an alternative statutory scheme in cases where a person had
been diagnosed with a terminal illness and given a clinically assessed
prognosis of six months or less to live, with a number of procedural
safeguards including authorisation by the court. The Divisional Court
dismissed his claim.
There could be no doubt that Parliament was a far better body for
determining the difficult policy issue in relation to assisted suicide in
view of the conflicting, and highly contested, views within society on
the ethical and moral issues and the risks and potential consequences
of a change in the law and the implementation of a scheme such as
that proposed by the claimant.
The Court of Appeal unanimously held:
Weighing the views of Parliament heavily in the balance in a case such
A decision to permit assisted suicide raised important moral and ethical
as the present one was not the same as a complete abdication of
issues, on which society was divided and many people held passionate
responsibility to consider the merits of the arguments on either side in
but opposing views. Permitting assisted suicide was a statement about
relation to art 8(2).
the way in which, as a society, the line was drawn between two
important but, on the present issue, competing values: the concept of
the sanctity of life, reflected in art 2 of the Convention, and the right to
9
10
11.5.3 Case study on disenfranchisement of prisoners.
the guise of interpretation, however supercharged by section 3 of the
(i)
In Hirst v United Kingdom (2004) the European Court of Human Rights
Human Rights Act 1998. It would be a legislative act and nothing else.
ruled that the blanket restriction which deprives all prisoners of the right
Furthermore, in relation to the government’s failure to introduce
to vote – irrespective of the length of their sentence or the seriousness of
legislation on the matter, Laws LJ stated:
the offence committed – was unlawful.
... the court has no role to sanction government for such failures. Under
(ii)
the Human Rights Act 1998 the minister has no obligation to act on a
In Greens and MT v United Kingdom (2010) the Court of Human Rights
declaration of incompatibility....
ordered that the government, having failed to implement its judgment
in Hirst, must bring forward legislation within six months of the judgment
(v)
becoming final to reform the law.
(iii)
Court in Moohan v Lord Advocate [2014] UKSC 67, [2015] 2 WLR 141.
The appellant prisoners (M) appealed against a decision that the
In Frodle v Austria (2010) 52 EHRR 267 the European Court of Human
blanket ban on
Rights ruled that the blanket ban on prisoners voting contravened the
voting in a Scottish independence
grounds that the ordinary meaning of the words of Protocol 1 art.3 was
in respect of periodic elections to a democratically elected legislature.
The disenfranchisement of prisoners was considered again in R
It did not cover any major political decision, via referendum which was
(Chester) v Secretary of State for Justice and another [2010] EWCA Civ
put to a popular vote, however important that decision might be.
1439; [2011] 1 WLR 1436. The claimant sought judicial review of the
failure of the Secretary of State for Justice and the local authority to
prisoners
referendum was not unlawful. Appeal was dismissed, inter lia, on the
European Convention on Human Rights.
(iv)
The statutory ban on prisoner voting was considered by the Supreme
(vi)
allow him to vote in parliamentary and European Union elections,
In Delvigne v Commune de Lesparre-Medoc [2015] Times 22 December
2015, the Court of Justice of the European Union held that the ban on
seeking a declaration that section 3 of the 1983 Representation of the
prisoner voting in elections to the European Parliament was lawful.
People Act was incompatible with Article 3 of the First Protocol to the
Convention, and a declaration that he was entitled to vote in
(vii)
The right to free elections: Article 3, Protocol 1 (A3P1)
forthcoming elections. Lord Justice Laws delivered the judgment of the
It has been reported that the Council of Europe has accepted a proposed
Court of Appeal.
compromise on prisoner voting rights. Prisoners on temporary release and those
Laws LJ explained that the Strasbourg Court accepted that the right to
at home under curfew will be given the right to vote. This is designed to settle
vote was not absolute and that contracting states had a margin of
the dispute over voting rights, which has endured since the Hirst case (2005) in
appreciation over the matter. He further stated:
which the Court of Human Rights ruled that the blanket ban on voting violated
“.... I should decline altogether to seek to interpret or ‘read down’
the Convention.
section 3 of the 1983 Act so as to incorporate within it a judicial
discretion as to the disenfranchisement of prisoners. That would be to
confer a new constitutional power on the judges, and it requires no
authority to conclude that such a measure cannot be effected under
2
Chapter 12: Judicial Review of Administrative Action (1)
exceeded the powers conferred upon them by Parliament, using the ultra
vires (`beyond the powers') doctrine.
12.1.1 Introduction
(i)
(ii)
(iii)
Judicial review represents the means by which the courts control the
(iii)
adequately the judges’ power to rule, as they do, on certain aspects of
bodies, which exercise law-making power or adjudicatory bodies act
decision-making. When judges rule on ‘unreasonableness’ or as Lord
within their powers. Judicial review is usually concerned with the legality
Diplock classifies the concept of ‘irrationality’ they come close to ruling
of the decision made, not the merits of the particular decision.
on the merits of a particular decision.
The Human Rights Act 1998 extends the scope of judicial review in that
(iv)
law. On this view, courts derive their authority from the constitution and
to review by courts.
have ultimate responsibility for ensuring that the constitution is applied.
This might conceivably require them to judge whether the UK
From one aspect judicial review may thus be regarded as an aspect of
been brought by the Human Rights Act 1998, the courts seek by judicial
review, to ensure four objectives:
Parliament has acted unconstitutionally.
(a)
that Acts of parliament have been correctly applied.
(b)
That discretion conferred by statute has been lawfully exercised;
(c)
That the decision-maker has acted fairly.
(d)
That the exercise of power by a public body does not violate
(v)
12.1.2 What is the Constitutional basis of judicial review?
Is the basis of judicial review to ascertain the intention of Parliament
M. Elliott, ‘The Constitutional Foundations of Judicial Review’ (2001)
states that the assertion that judicial review is based solely on the
intention of the legislature is fundamentally incorrect. Judicial review's
legitimacy is secured, and its ambit determined, by the rich set of
constitutional principles most notably the rule of law, the separation of
powers and the sovereignty of Parliament—on which the constitution is
human rights.
(ii)
The second view is that judicial review is founded upon the common
any failure on part of a public body in respect of human rights is subject
parliamentary sovereignty. In essence, subject to changes which have
(i)
According to Hilare Barnet, the doctrine of ultra vires cannot explain
exercise of governmental power. It is designed to ensure that public
founded.
12.1.3 The distinction between judicial review and appeal.
(i)
The role of the courts in appellate jurisdiction is to review the case
and uphold parliamentary sovereignty, or is it a common law
decided in the court below ie the substance/merits of the decision.
concept, a terrain which even Parliament cannot qualify or
Judicial review is not an appeal from a decision, but a review of the
curtail?
manner in which the decision was made. It is is thus procedural in
Professor Christopher Forsyth subscribes to the first view, in that, judicial
review is founded upon the supremacy of the UK Parliament.
According to him, the essential task for the courts when asked to
review the actions of public bodies is to ensure that these bodies have not
nature: per Lord Brightman in Chief Constable of North Wales Police v
Evans [1982]).
3
(ii)
Even if a claimant succeeds, the matter will normally be sent back
remedy of an appeal, save in exceptional circumstances of clear want
(`remitted') to the original decision-maker for a fresh decision to be made in
of jurisdiction, or procedural irregularity amounting to a denial of a fair
the light of the court's judgment. When this happens, the decision-maker
hearing.
may reach the same decision as that which was originally challenged, but
hopefully, this time, the decision-maker will have acted lawfully.
(iii)
12.2
What is a ‘public body’ for the purposes of judicial review?
(i)
Judicial review is only available to test the lawfulness of decisions made
The exception is where the judicial review procedure is used to protect
by public bodies and is a public law remedy. If the decision of a private
'Convention rights' under the HRA. If a court decides-that a public
body is being challenged in court, the remedy lies in private law.
authority has infringed Convention rights, the authority may not be able
to reach the same decision after a reconsideration.
(iv)
4
(ii)
the Take-over Panel had dismissed a complaint by a bidder. The bidder
In Secretary of State for the Home Department v Nasseri [2009] 2 WLR
applied for judicial review. Although the court stated that there were no
1190 the House of Lords explained the correct (and differing) judicial
grounds for judicial review, it affirmed the fact that the Panel was a
approaches to applications for judicial review and a challenge based
public body. It was subject to judicial review, despite its lack of statutory
on an alleged infringement of a Convention right.
or prerogative power, because it was a body exercising public
Lord Hoffmann stated that when a court is hearing an application for
functions analogous to those, which would have been exercised by a
judicial review, its focus is on whether the decision maker reached a
government Department. Lloyd J stated that in some cases if the source
decision according to law: it is concerned with the decision-making
of the power is unclear, it is necessary to look at the nature of the
process rather than the merits of the decision. However, when an
power. If the body in question is exercising public law functions or the
application involves an alleged violation of a Convention right, the
exercise of its functions have public law consequences, then it may be
court’s approach must differ. The focus is not on whether the decision-
sufficient to bring the body under the reach of judicial review.
making process is defective, but on whether or not the applicant’s
This important decision showed that, in determining whether a body is
Convention rights have been violated. Lord Hoffmann went on to state
amenable to judicial review, the courts would, if necessary, look not only at
that:
whether the body derives its powers from statute or prerogative, but also at
“... when breach of a Convention right is in issue, an impeccable
whether the body performs functions that have a `public element'. In
decision-making process by the Secretary of State will be of no avail if
Datafin, the Court of Appeal discerned the public element from the nature
and impact of the Panel's functions.
she actually gets the answer wrong…”
(v)
In R v City Panel on Take-overs and Mergers exparte Datafin Ltd (1987),
In R (Sivasubramaniam) v Wandworth County Court [2003], the Court of
(iii)
Contrast:
(a) R v Disciplinary Committee of the Jockey Club ex parte Aga Khan
Appeal rule that the High Court ought not entertain an application for
(1993);
permission to apply for judicial review of the decision of the judge in the
(b) R (on the application of Julian West) v Lloyd’s of London [2004].
county court where the applicant had failed to pursue the alternative
5
(iv)
In R v Servite Houses and Wandsworth LBC, ex parte Goldsmith [2000] a
6
12.3
Permission for judicial review and the outcome of judicial review.
person was placed in a private care home by a local authority acting
An aggrieved individual must seek permission (formerly leave) to apply
under powers in the National Assistance Act 1948 (NAA). The owner of the
for judicial review. This application must be within three months from the
private care home, Servite Homes, later decided to close the home. Could
date when the grounds of application first arose. This procedural hurdle
a resident challenge this decision in judicial review?
represents the need to filter out unmeritorious cases at earlier stages.
The resident argued that although Servite Homes was not a government
body, in providing accommodation and care to people who would have
12.4
subject matter to be judicially reviewed. Matters such as the exercise of
exercising public functions. In essence, the claimant argued that these
the prerogative power and most importantly issue of national security,
functions were public when exercised by a local authority and that they did
and matters of high policy are matters the courts normally regard as
not cease to be public when exercised by Servite Homes.
non- justiciable.
The High Court held that the relationship between the resident and the
care home was governed solely by contract, and therefore that judicial
12.4.1 Matters of public policy/national security – powers exercised under
review was not appropriate; if a remedy existed, it should be in contract. In
other words, the court looked not at the nature of the function—providing
primary legislation or delegated legislation
(i)
care to those in need under the terms of the NAA—but rather at the nature
would be regarded as a violation of the separation of powers.
individual.
(ii)
Under section 6 of the Human Rights Act 1998, public authorities are
Regulations 1939 (delegated legislation) enabled the executive to detain
whose functions are of a public nature. The test for public authorities
persons without trial 'if the Secretary of State has reasonable cause to believe'
under section 6 HRA 1998 is more restrictive than the Datafin test above.
that the person had hostile associations. The majority of the House of Lords
held that even though the matter concerned individual liberty and the
See the recent High Court decision Fearn v Board of Trustees of the Tate
legislation specifically said that the Secretary of State could only act if he had
Gallery [2019] EWHC 246 (Ch) (discussed under previous Chapter pertaining
'reasonable cause; the courts could not review the legality of a detention
to HRA 1998) where Tate Gallery was not deemed to be a public body
under this power.
though providing public services – in the event Section 6 is invoked in judicial,
review cases where human rights are in issue then the public body test
Earlier on, the courts adopted the deferential approach in judicial review
cases. In Liversidge v Anderson. [1942] House of Lords, the Defence (General)
defined as including courts and tribunals and ‘any person certain of
(vi)
Matters of high policy are for determination by the executive and not
the judiciary and any attempt by the courts to control the decision
of the legal arrangements under which the functions were delivered to the
(v)
The concept of ‘justiciability’
This is a concept, which defines the judges’ view of the suitability of the
been previously looked after by a local authority under the NAA, it was
(iii)
In Nottinghamshire County Council v Secretary of State for the
seems to be more restrictive than common law judicial review when
Environment (1986), the House of Lords held that the court should not
section 6 and human rights are not invoked as in Datafin’s case.
intervene to quash guidance drafted by the Secretary of State, on the
7
authority of Parliament. Lord Scarman stated: “ … these are matters of
8
(iii)
See also R (On the application of Miller) v Prime Minister [2019] Supreme
political judgement for him and the House of Commons. They are not
Court where the decision of the Queen to prorogue Parliament vide
for judges….”
Order in Council was considered justiciable and the said Order in
Council was quashed due to the effect of the Prime Minister’s (Borris
(iv)
In R v Parliamentary Commission for Administration ex parte Dyer (1994)
Johnson’s) advise given to the monarch being unlawful, to no legal
it was held that matters of national policy were not open to challenge
effect.
before the courts other than on the basis of bad faith, improper motive
or manifest absurdity. Matters of national economic policy were for
political- not judicial judgement.
12.5 The standing to apply for judicial review
12.5.1 The sufficient interest test. (“locus standi”)
(i)
In order to obtain permission to seek judicial review, claimants must show that
12.4.2 The exercise of the royal prerogative and judicial review.
they have a 'sufficient interest in the matter' to which the claim relates. In most
(i)
In Council for Civil Service Unions v Minister for Civil Service (1985) the
cases, it is obvious that claimants have a sufficient interest, because they will
House of Lords made it clear that the source of power was not
be challenging decisions that clearly directly affect them.
determinative of whether the courts would review, but rather the
matter to be decided was whether the subject matter of the
(ii)
On the standing of pressure groups, it depends on whether the group
has its interests adversely affected by administrative decision-making. In
application was justiciable or not. The GCHQ case was the first case of
R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators
its kind in the House of Lords on judicial review being available on the
Association (1972) the Liverpool Corporation had the duty of licensing
exercise of the royal prerogative binding all the Courts of UK, a setting
taxis and fixing the number of licences to be granted. When the
a precedent under the doctrine of stare decisis.
Corporation announced that the number of licences was to be
(ii)
increased, without consulting the Operators’ Association, leave for
The Court of Appeal case of R v Secretary of State for the Home Dept,
judicial review was sought. It was held that the Association had
ex p Hosenball [1977] 3 All ER 452, was concerned with the actions of
sufficient standing.
the Secretary of State himself in refusing to give information about the
reasons for making a deportation order against an alien, the Divisional
Court and the Court of Appeal refused to make an order of certiorari
(iii)
In R v Inland revenue Commissioners ex parte National Federation of
Self –Employed and Small Businesses ((1982) The House of Lords
because the refusal had been based on grounds of national security
approach was that the question of standing should be examined in two
but, if it had been made in what Lord Denning MR called an 'ordinary
stages. At first instance standing should be considered when leave to
case', that is one in which national security was not involved, the
apply is sought. At that stage the court is concerned to ensure that ‘it
position would have been different. Lord Denning MR said:
prevents abuse by busybodies, cranks and other mischief-makers’. If
'… if the body concerned, whether it be a Minister or advisers, has
acted unfairly, then the courts can review their proceedings so as to
ensure, as far as may be, that justice is done.'
leave is granted the court may-when the merits of the case are known-
9
10
revise its original decision and decide that after all the applicants do
state had exceeded his powers. The court held that WDM had
not have sufficient interest.
sufficient interest. The WDM played a prominent role in giving advice
The Federation, an interest group, wanted to challenge the legality of
and
a decision by the tax authorities to grant a tax 'amnesty' to print
United Nation’s bodies.
assistance in relation to aid and had consultative status with the
workers employed on a casual basis by newspapers. The Federation
was angered -that the amnesty was granted when the Inland
(vii)
that they had jurisdiction to determine whether the government could
The majority in the House of Lords held that, in order to determine
use its prerogative powers to serve notice under Art. 50 of the Treaty of
whether the Federation had a sufficient interest in the matter, it was
European Union of the UK's intention to withdraw from the EU. Standing
necessary to look at the substance of the claim. The majority of The
was not an issue. As the Lord Thomas put it: 'It is not difficult to identify
House of Lords decided that the Federation did not have a sufficient
people with standing to bring the challenge since virtually everyone in
interest in the matter, in that: ‘…one taxpayer has no sufficient interest
the United Kingdom or with British citizenship will . . . have their legal rights
in asking the court to investigate the tax affairs of another taxpayer or
affected if notice is given under Article 50.
to complain that the latter has been under-assessed. Moreover, 'an
aggregate of individuals such as the Federation] each of whom has
no interest cannot of itself have an interest'.
in R (On the application of Miller and Another) v Secretary of State for
Exiting the European Union [2016] HC, [2017] SC, the courts accepted
Revenue went to great lengths to collect tax from its members.
(vii)
Standing was also not an issue in the case of R (On the Application of
Gina Miller) v Prime Minister [2019] Supreme Courrt.
The House of Lords ruled that the court had been correct in granting
leave at the first stage but on the facts at the second stage, the
(viii)
The Human Rights Act 1998 introduced a new basis for ‘standing’.
Federation lacked sufficient interest to challenge the particular
Section 7 of the Act provides that only a ‘victim’ of an act of a public
wrongdoing alleged. The House of Lords (Lord Diplock) added that if
body may make a claim. That test-which is the same as the test applied
the IRC had acted with impropriety there would have been standing
under the European Convention of Human Rights – is narrower than
in an individual taxpayer to challenge its unlawful acts.He decided
standing in other judicial review proceedings. It also excludes
against the Federation, not on grounds of standing but because the
representative bodies and interest groups taking action on behalf of
Federation had failed to show that the Inland Revenue had acted
their members.
unlawfully.
12.5.2 The ‘Exclusivity Principle’
(vi) Lord Diplock’s above view was followed in R v Secretary of State for
In O’Reilly v Mackman (1983) it was held that if that if an individual’s
Foreign and Commonwealth Affairs ex parte Word Development
rights are infringed in private law it is not a proper subject for judicial
Movement [1995]. In this case, the WDM sought judicial review of the
review
Foreign Secretary’s decision to grant financial aid to Malaysia for the
building of the Pergau Dam. The WDM argued that the Secretary of
11
12.6
Grounds for judicial review.
(i)
In Council for Civil Service Unions v Minister for Civil Service [[1984] 3 All
12
(d)
“ … I have in mind particularly the possible adoption in the future of the
principle of proportionality’ which is recognised in the administrative
ER 935 (the facts of which have been discussed in the chapter on royal
law of several of our fellow members of the European Community…”
prerogative), the House of Lords held that Irrespective of whether a
(ii)
power exercised directly under the prerogative was immune from
12.7
The doctrine of proportionality
judicial review, delegated powers emanating from a prerogative
(i)
The traditional view in judicial review cases was that the courts declined
power were not necessarily similarly immune.
to examine the merits of a decision, provided it had been taken
Thus such powers were subject to judicial control to ensure that the
procedurally correctly and provided the decision-maker had taken
scope and limits of the power were not exceeded, or because the
account of all relevant factors and decided rationally. This was known
controlling factor in determining whether the exercise of the power
as the Wednesbury test of irrationality or unreasonableness, based on
was subject to judicial review was the justiciability of its subject matter,
the test laid down in Associated Provincial Picture Houses v
rather than whether its source was the prerogative.
Wednesbury Corporation (1948).
In the above case, (hereinafter referred to as the GCHQ case) Lord
(ii)
The new approach that the courts are required to take, of evaluating
Diplock, stated that the grounds of judicial review could be classified
proportionality
under three heads, namely, illegality, irrationality and procedural
reasonableness"' in judicial review cases.
of
the
State's
action's
replaces
the
test
of
impropriety. It was also accepted that the further ground of judicial
review, such as ‘proportionality, might emerge.
(iii)
(a)
differences between reasonableness and proportionality, identifying
“ By ‘illegality’… I mean that the decision-maker must understand
the following differences. The starting point is that there is an overlap
correctly the law that regulates his decision making power and give
between the traditional grounds of review and the approach of
effect to it…”
(b)
proportionality. But the intensity of review is somewhat greater unde r
“By ‘irrationality’, I mean ‘Wednesbury’ unreasonableness. It applies to
the proportionality approach.
a decision which is so outrageous in its defiance of logic or of
(c)
This was made clear by the House of Lords in R (Daly) v Secretary of
State for Home Department [2001] UKHL 26. Lord Steyn examined the
Lord Diplock stated:
(a)
the doctrine of proportionality may require the reviewing court to
accepted moral standards that no sensible person who had applied
assess the balance which the decision maker has struck, not
his mind to the question to be decided could have arrived at it”
merely whether it is in the range of rational or reasonable
“ …
decisions;
‘procedural impropriety’…judicial review under this head also
(b)
covers (in addition to the requirements of natural justice) failure by an
the proportionality test may go further than the traditional
grounds of review in as much as it may require attention to be
administrative tribunal to observe the procedural rules expressly laid
directed to the relative weight accorded to interests and
down in the legislative instrument by which its jurisdiction is conferred.”
considerations
13
(iv)
In the above case Lord Steyn cited The Privy Council decision of
14
(vii)
In R (Lord Carlile of Berriew and others) v Secretary of State for the
de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries,
Home Department [2014] UKSC 60; [2014] 3 WLR 1404, the Supreme
Lands and Housing [19991 1 AC 69 which adopted three stage test.
Court considered the concepts of deference and proportionality
(a)
the legislative objective is sufficiently important to justify
limiting a fundamental right;
(b)
the measures designed to meet the legislative objective are
rationally connected to it; and
(c)
within the context of Convention rights.
The Court of Appeal had held that in matters of national security and
foreign policy a review of the Secretary of State's decision was to be
conducted on the basis of 'rationality, legality and procedural
propriety' and that once the court was satisfied that the decision fell
(iii) the means used to impair the right or freedom are no more
within the range of decisions that could lawfully be made, the Court
than is necessary to accomplish the objective.
was not required to go further and consider proportionality. This, the
Supreme Court ruled, was the wrong approach. According to Lord
(v)
In Kingsley v UK [2001], the ECtHR held that the reviewing court should
not confine itself to examining the quality of the decision making process
and not the merits. In Daly and many other cases, the House of Lords has
made it clear that the required test for judicial review, since the HRA has
been in force is one of proportionality. The test was the same as in de
Freitas’s case above.
(vi)
(a)
(b)
Kerr JSC the process stated in Aguilar Quila [2012] 1 AC 621 applied.
On the issue of institutional competence and deference, the
Supreme Court ruled that where the executive's decision was based
on factors where the court did not have the evidence, experience
and institutional legitimacy to form its own view with confidence, its
interference could only be justified in exceptional circumstances. In
The proportionality test was further amplified by Lord Wilson in R (on the
this case international relations, economic and diplomatic interests
application of Aguilar Quila) v Secretary of State for the Home Dept, R
and the potentially harmful effects on the safety of individuals were
(on the application of Bibi) v Secretary of State for the Home
matters which were entrusted to the executive which had the
Dept [2011] UKSC 45 as:
specialised experience, range of source material and the institutional
is the legislative objective sufficiently important to justify limiting a
competence to enable it to reach a decision which should be given
fundamental right;
'great respect' by the courts.
are the measures which have been designed to meet it rationally
connected to it;
(c)
are they no more than are necessary to accomplish it; and
(d)
do they strike a fair balance between the rights of the individual and
the interests of the community?
15
16
Chapter 12: Judicial Review of Administrative Action (Part 2)
12.4.2 Is there a distinction between the Wednesbury test of reasonableness
and the doctrine of proportionality? Should the Wednesbury test of
12.4.4 Irrationality
unreasonableness be replaced with the proportionality test? **
12.4.1 ‘Wednesbury’ unreasonableness.
(i)
(i)
J. Jowell and A. Lester, 'Beyond Wednesbury: Substantive principles of
The terms irrationality and Wednesbury unreasonableness appear to
administrative
be used interchangeably. In the GCHQ case Lord Diplock regarded
unreasonableness test was unsatisfactory for three reasons. First, it is
unreasonableness as entailing a decision ‘…so outrageous in its
inadequate. The word 'unreasonable' simply does not provide
defiance of logic or of accepted moral standards that no sensible
sufficient justification for judicial intervention. There needs to be a
person who had applied his mind to the question to be decided could
further explanation or justification why the act is unreasonable.
law'
[1987]
suggest
that
the
Wednesbury
have arrived at it.’
Secondly, it seeks to prevent review except in cases where the official has
(ii)
In Associated Provincial Picture Houses Ltd v Wednesbury Corporation
behaved absurdly or has 'taken leave of his senses’ Thus immunity would be
(1988) the Local authority had the power to grant licences for the
drawn around many oppressive or improper decisions that are in reality
opening of cinemas subject to such conditions as the authority
vulnerable to judicial review.
‘thought fit’ to impose. The authority when granting a Sunday licence,
imposed a condition that no children under the age of 15 years should
Thirdly, the Wednesbury test is confusing, because It allows the courts to
be admitted whether accompanied by an adult or not.
The
interfere with decisions that are unreasonable, and then defines an
applicants
was
unreasonable decision as one which no reasonable authority would take.
argued
that
the
imposition
of
the
condition
unreasonable and ultra vires the corporation’s powers.
The Court of Appeal held that the local authority could take the moral
(ii)
decision in English law in suggesting that there are degrees of
intervened had the condition been ‘so unreasonable that no
unreasonableness and that in only a very extreme degree could bring it
reasonable authority could ever have come to it.’have imposed it.
under the scope of judicial review.
This, however, had not been established.
(iii)
In Roberts v Hopwood (1925) the council, in adopting a policy of paying
(iii)
unreasonableness cases, but instead using the proportionality test
unreasonable, for the discretion of the council was limited by law-it was
required by the European Convention on Human Rights (ECHR). ‘
not free to pursue a socialist policy at the expense of rate-payers. The
council had a duty to act ‘reasonably’ and its discretion was limited by
Since the HRA came into force, many these situations where human
rights are in issue have been approached not as Wednesbury
higher wages than the national average for its workers was
House of Lords ruled that, irrespective of the wording of the statute, the
In R v Secretary of State for Home Department ex Parte Daly [2001] Lord
Cooke stated that Wednesbury was an unfortunately regressive
welfare of children into account. The court said that it would have
(iv)
The Court of Appeal in R (Association of British Civil Internees: Far East
Region) v Secretary of State for Defence [2003] suggested that
law.
proportionality should replace Wednesbury unreasonableness in
17
18
cases in which a court has to consider whether there is a lawful
(vi)
balance is struck between public and individual interests.
connote some degree of objectivity which can be applied without
an in-depth analysis of the case. Proportionality, is more sensitive to
Dyson LJ suggested that the strictness of the Wednesbury test has
the context of the case. It requires the court to consider whether the
been relaxed in recent years even in areas which have nothing to do
decision reached is strictly required (proportionate) to the objective
with fundamental rights. Dyson LJ further stated: “…Support for the
being sought which it cannot do without considering both the policy
recognition of proportionality as part of English domestic law in
and the means adopted to achieving it.
cases which do not involve… the Convention is to be found the
speech of Lord Slynn of Hadley in R (Alconbury Developments Ltd)
v Secretary of State for the Environment, Transport and the Regions
12.5 Illegality
Decision-makers must properly understand what their legal duties and
[20031 2 AC 295 and in the speech of Lord Cooke of Thorndon in R
powers are.
(Daly) v Secretary of State for the Home Department [2001]2 AC
532 … It seems to us that the case for this is indeed a strong one.
As Lord Slynn points out, trying to keep the Wednesbury principle
12.5.1 Onerous conditions attached to decision.
(i)
A decision by an authority may also be unreasonable if conditions are
and proportionality in separate compartments is unnecessary and
attached to the decisions which are difficult or impossible to perform.
confusing. The criteria of proportionality are more precise and
In R v Hillington London Borough Council ex parte Royco Homes Ltd.
sophisticated: see Lord Steyn in the Daly case…it is true that
(1974), planning permission was tied to conditions. The conditions were
sometimes proportionality may require the reviewing court to assess
that
for itself the balance that has been struck by the decision-maker,
occupation by those on the Council’s housing waiting list, and further
and that may produce a different result from one that would be
for ten years the houses be occupied by persons subject to security of
arrived at on an application of the Wednesbury test.
tenure under the Rent Acts. The conditions were held to be onerous
But we
Andrew Le Seur in Public Law, ‘Text Cases & Materials’ states the burial rites
for the Wednesbury unreasonableness test were not performed by the
(i)
make
properties
constructed
available
for
Errors on the face of the record, that is evidence from the
documentation that the decision-maker has made a wrong decision in
law-will cause the judges to rule that the decision was defective, even
Court, although there are indications that proportionality will soon be
if the decision-maker was acting inside jurisdiction.(intra vires).
accepted as a general ground of judicial review. Where it is claimed
adopt a proportionality approach.
Homes
12.5.2 ‘Errors of law on the face of the record.’
House of Lords and have yet to be performed by the UK Supreme
that actions infringe common law rights it is clear that the courts should
Royco
and held to be ultra vires.
consider that it is not for this court to perform its burial rites…”
(v)
According to Hilare Barnet, unreasonableness and irrationality
(ii)
This is normally when the authority has correctly interpreted its powers
but used them towards the wrong objective. In Perilly v Tower Hamlets
Borough Council (1973) the local authority believed- erroneously-that it
was obliged to consider applications for stall licences in a street market
19
(iii)
20
in the order in which they were received. The effect of this was to deny
12.5.3 Using powers for the wrong purpose.
a licence to Perilly even though his mother, by then deceased, had
(i)
Powers conferred must be used for the purpose for which they were
held a licence for some 30 years. The licence granted to an incoming
granted. In Attorney General v Fulham Corporation (1921) the authority
applicant in preference to Perilly was set-aside by the court.
was empowered under statute to establish washhouses for noncommercial use of local residents. The Corporation in deciding to open
There are however other cases in which an authority misunderstands
a laundry on a commercial basis was held to have acted ultra vires.
the powers which it has been granted and accordingly acts ultra vires.
In Anisminic Ltd v Foreign Compensation Commission (1969) the
Compensation
Commission
had
the
power
to
distribute
a
(ii)
government was held to have acted unlawfully in relation to aid money
result of property being sequestrated by the Egyptian Government. The
paid to Malaysia. In 1988, the United kingdom Government signed an
Act provided that compensation was payable to applicants who
agreement with the Malaysian Prime minister, Mahathir Mohamed, for
satisfied the test of being either the owner or ‘successor in title’ to the
the sale of arms valued at L 1.3 billion.
property. The Egyptian Government had however sold the property to
In 1989, Britain offered L 234 million towards the building of the Pergau
a third party, and accordingly Anisminic could neither establish that it
dam. In 1991, under the premiership of John Major, the deal went
was the owner nor successor in title to the property. Accordingly, the
Compensation
Board
compensation
to
ruled
that
Anisminic.
The
it
had
Act
no
also
power
stated
to
grant
that:
‘The
In R v Secretary of State for foreign and Commonwealth Affairs ex parte
the World Development Movement (1994) Times 11 November, the
compensation fund to British companies and persons suffering loss as a
ahead
despite
warnings
from
officials
that
of
determination by the Commission of any application made to them
project
was
the
Overseas
development
Administration
budget.
Under
international law any linkage between aid monies and arms sales is
under this Act shall not be called into question in any court of law’
prohibited. While the government denied this, the House of Commons
The House of Lords held the decision of the Board to be ultra vires. The
Foreign Affairs Committee inquiry concluded that the government had
decision made by the Board was so wrong that in law it amounted to
in effect made such a link.
not a decision at all. The ouster clause according to the House of Lords
Legal proceedings were instituted by the World Development
was ineffective because the ruling of the Compensation Board being so
Movement which felt that a vast sum of public money was being
wrong in law, resulted in the Commission acting outside its jurisdiction,
devoted to subsidising a project which was a misuse of funds which
and nothing in the Act prohibited a court of law from reviewing what
should have been rightfully channelled for the relief of poverty.
was in law a nullity. The House of Lords ruled that : ‘ If the inferior
The High Court ruled that the Foreign Secretary had acted unlawfully, in
tribunal, as a result of its misconstruing the statutory description
part because the project was ‘economically unsound’ and also
…..makes a purported determination in a case of kind which it has no
because the aid did not promote the development of a country’s
jurisdiction to inquire, its purported determination is a nullity..’ (excess of
economy as required by law. As a result of this some L55 million already
jurisdiction).
spent on the project had to be returned to the ODA by the
See also R (Privacy International) v Investigatory Powers Tribunal and
government.
others [2019] UKSC 22 the Supreme Court discussed below.
21
22
12.5.4 Irrelevant considerations in decision making
12.5.5 Failure to take relevant considerations into account.
(i)
(i)
In R v Somerset County Council ex parte Fewings (1995) the local
the
uneconomical and a waste of public funds. The monies were paid out
This occurs when an authority fails to take into account relevant
authority decided to ban stag-hunting on land owned by the council
considerations or takes into irrelevant considerations which materially
and designated for recreational purposes. Here the motivation behind
affect the decision reached and may be held to be acting ultra vires.
the ban was the moral objection of the councillors to hunting. The Court
of Appeal held that the Council’s mind had not been directed to
(iii)
In Roberts v Hopwood (1925) the local authority was empowered to pay
relevant statutory provisions, and had not considered, as it was required
its workers ‘as it thought fit’ When the council decided to pay wages
to do, whether a ban of hunting would be for general public benefit.
which were higher than the national average and pay men and
women equally, it was held to have acted beyond its powers. Its duty to
(ii)
In Wheeler v Leicester County Council (1985) the House of Lords
its ratepayers overrode its desire to better the lot of workers.
thoroughly examined the concepts of unreasonableness and of fairness
and the interaction between bad faith, unreasonableness and
(iv)
In Bromley London Borough Council v Greater London Council (1983),
the Greater London Council wishing to increase passenger numbers
procedural impropriety. In 1984 the Rugby Football Union announced a
and thereby reduce traffic congestion by decreasing fares on public
tour of South Africa, with a team including three members of the
transport, sought to pay for this by seeking a higher level of subsidy for
Leicester Football Club. At the time the Government was opposed to
London Transport by increasing the rates payable by ratepayers in
any sports links with South Africa and the Leicester County Council was
London. The House of Lords Greater London Council to be acting ultra
opposed to the proposed tour.
vires and had used its powers for the wrong purpose. They had to act in
The Club’s response was that although it was anti-apartheid, they were
the interests of all constituents and not only constituents who were users
not constrained from playing in South Africa as a result of government
of London Transport.
opposition, which did not make these tours illegal nor had proposed
any sanction for those who visited South Africa. The Council then
resolved that the Club would be suspended from using the local
12.5.6 Fettering discretion
(i)
discretion at all.
The House of Lords held that the Council had acted unreasonably in
the Wednesbury sense or had been in fundamental breach of the duty
An authority may act ultra vires if, in the exercise of its powers, it
adopts a policy, which effectively means that it is not exercising its
playing field for a 12 month period. The Club sought judicial review.
(ii)
In H Lavender & Sons Ltd v Minister of Housing and Local Government
to act fairly. It further went on to add that the council’s use of the
(1970) the applicant sought planning permission to extract sand and
statutory power was a misuse of power. The council could not properly
gravel from high grade agricultural land. The local planning authority
use its statutory powers of management or any other statutory powers
refused it and the applicant appealed to the Minister of Housing and
for the purpose of punishing the club when the club had done no
Local Government who being persuaded by the Minister of Agriculture
wrong.
that such land be preserved for agricultural purposes, dismissed the
appeal.
23
24
The decision was set aside. The Minister was entitled to have a policy
(ii)
In Bradbury v Enfield London Borough Council (1967) the Education Act
but in this instance the Minster’s decision had been based solely on
1944 provided that if a local authority intends to establish new schools
another Minister’s objection. The Minister did not therefore open his
or cease maintaining existing schools, notice must be given to the
mind to the application and thereby fettered his discretion as the
Minister, following which public notice must be given in order to allow
Minster of Agriculture had no power to determine such matters.
interested parties to comment. The Council breached the requirement
of public notice and the plaintiffs sought an injunction. Lord Denning
12.5.7 Unauthorised delegation
(i)
held that the Council had breached with the procedural requirement
Where powers are conferred by statute, the general rule is that they
of notice.
may not be delegated unless the delegation is authorised by law. It is
however accepted that where the statute has conferred powers on the
(iii)
In R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR
3315 the Court of Appeal quashed a decision which had been taken
minister, the powers are exercisable on his behalf by the personnel of his
without the consultation required by statute. If there had been proper
Department.
consultation a different decision might have been reached.
(ii)
In Local Government Board v Arlidge (1915) it was stated: ‘a minister
cannot do everything himself’. The court however held that while a
12.6.2 Breach of natural justice
The rules of natural justice are common law rules. The fundamental
minister could lawfully delegate his power of determination to
dictate of justice is that those affected by decision-makers should be
subordinate, he remained constitutionally and personally accountable
dealt with in a fair manner.
to Parliament for the conduct of his Department. See also Carltona v
Works Commissioners (1943) & Oladehinde v Secretary of State for the
Home Department (1990)
(iii)
(a)
The rule against bais: nemo judex in causa sua.
(i)
It is not necessary to show that actual bias existed, the merest
appearance or possibility of bias will suffice. In R v Gough (1993) The
In Barnard v National Dock Labour Board (1953), disciplinary powers
House of Lords stated that test was whether there was a real likelihood,
delegated by Statute to the London Dock board were sub-delegated
in the sense of a real possibility, of bias on the part of a justice or a
to a port manager. The delegation was held to be ultra vires.
12.6
member of a tribunal.In R v Sussex justices ex parte McCarthy (1924) it
was stated: “Justice should not only be done but should manifestly and
Procedural impropriety
undoubtedly be seen to be done.”
12.6.1 Under statute
(i)
Failure to comply with procedures laid down by statute may invalidate
a
decision.
The
courts
distinguish
between
those
procedural
(ii)
In Dr Bonham’s case (1609) Lord Coke held that members of a board
which determined the level of physicians fines could not impose and
requirements which are mandatory, the breach of which will render a
receive the fines. In Dimes v Grand Junction Canal Ltd (1852) Lord
decision void and those which are directory which may not invalidate
Cottonham LC held shares in the canal company involved in litigation.
the decision taken.
The House of Lords set aside the decision in which he had adjudicated.
25
(iii)
26
In R v Sussex Justices ex parte McCarthy (1924) the applicant had been
In relation to the circumstances surrounding one of the Locobail cases,
charged with dangerous driving and convicted. On discovering that
which concerned the publication by the Recorder who adjudicated in
the Clerk to the Magistrates’ Court was a solicitor who had represented
a personal injury case, of articles which were allegedly in favour of the
the person suing McCarthy for damages, he applied for judicial review
claimants and against the insurers, the court ruled that, taking a broad
on the basis of bias on part of the Clerk. The Clerk had retired with the
common sense approach, a lay observer with knowledge of the facts
magistrates when they were considering their verdict. It was accepted
could not have excluded the possibility that the Recorder was biased.
that the magistrates neither sought advice nor were given advice by
While it was not inappropriate for a judge to publish in his area of
the Clerk during their retirement. Nevertheless, McCarthy’s conviction
expertise, and that such publications could further rather than hinder
was quashed. On the basis of the possibility of bias.
the administration of justice, nevertheless, it was always inappropriate
for a judge to use intemperate language about subjects on which he
(iv)
In R v Bow Street Metropolitian and Stipendary magistrate ex parte
had adjudicated or would have to adjudicate. The appeal was
Pinochet Ugarte [1999] extradition proceedings of the former Chilean
allowed and a retrial ordered.
head of State was challenged on the basis that one of the law Lords,
Lord Hofman, had links with Amnesty International, the charitable
(vi)
adjudicated by a judge who knew one of the witnesses. The
which had been allowed to present evidence in court. It was accepted
applicant’s counsel had advised that the judge was unlikely to be
that there was no actual bias but there were concerns that the public
biased. The Court ruled that such advice should not have been given
perception might be that a senior judge was biased (apparent bias). As
as it influenced the applicant’s decision. The decision would be set
a result the proceedings were abandoned and reheard by a new
aside.
bench of seven judges (who nevertheless came to the same decision).
(vii)
(v)
In Locabail (UK) Ltd v Bayfield Properties Ltd and another;
In Smith v Kvaerner Cementation Foundations Ltd [2006] 2 All ER 593 the
Court of Appeal, ruled that a litigant had the right not to have his case
pressure group which works on behalf of political prisoners around and
In Helow v Secretary of State for the Home Department Times LR 5
November 2008 the House of Lords ruled that a judge’s membership of
Locabail (UK) Ltd and Another v Waldorf Investment Corp and others
a Jewish association whose magazine expressed partisan views against
[2000], the Court of Appeal reconsidered the issue of judicial bias. The
Palestinian causes did not in itself imply that the judge shared such
court distinguished the two rules relating to disqualification, the first
views so as to raise the possibility of bias and lack of impartiality when
being where the judge had an interest in the case which he decided,
dealing with an immigration appeal by a Palestinian activist. The
as in Dimes v Grand Junction Canal (1852), and where he would be
automatically disqualified. The second rule was based on examination
of all the relevant circumstances, where there was a real danger or
possibility of bias as in R v Gough (1993).
magazine contained a greater variety of articles than those relied on
by the applicant. A judge read a ‘great deal of material which was
designed to influence them, but which they were trained to analyse
and to accept reject or use as appropriate.’
27
28
Chapter 12: Judicial Review of Administrative Action (Part 3)
The House of Lords held that the dismissal was ultra vires. Lord Reid
stated: “ … I would hold that the power of dismissal…could not then
(b)
(i)
The right to a fair hearing: audi alteram partem.
have been exercised and cannot now be exercised until the watch
It is a fundamental requirement of justice that when a person’s interests
committee have informed the constable of the grounds on which
are affected by a judicial or administrative decision, that he or she
they propose to proceed and given him an opportunity to present his
have the opportunity both to know and to understand any allegations
case in defence…”
made, and to make representations to the decision-maker to meet the
The practical result was that Chief Constable Ridge was held to have
allegations. For example it may include one or more of the following:
a right to notice of allegations made against him and a right to
1.
the right to be given notification of a hearing
2.
the right to be given indications of any adverse evidence
respond before the police authority removed him from office.
(iii)
R (Shoesmith) v OFSTED [2011] EWCA Civ 642
3.
the right to be given opportunity to respond to the evidence.
4.
The right to an oral hearing.
The Director of a local authority’s Children’s Services was dismissed
5.
The right to legal representation at a hearing.
following the death of a child whose name had been placed on the
6.
The right to question witnesses.
protection register. The Secretary of State made a direction appointing
a new Director. The council dismissed Ms Shoesmith. No opportunity
(ii)
Ridge v Baldwin (1964) House of Lords stated that procedural fairness
had been given to make representations. The Secretary of State’s
applied irrespective of the type of body determining a question. The
decision was unlawful, as was the dismissal which had been based on
principles of natural justice could be applied to a wide range of
the Secretary of State’s directions.
government decisions, and not only to decisions of courts and
administrative actions that were 'judicial' in character.
(iv)
A holistic approach combining the procedural requirement under
Ridge the Chief Constable of Brighton, had been suspended from duty
statute and procedural fairness at common law was adopted by the
following charges of conspiracy to obstruct the course of justice.
House of Lords in R v Secretary of State for the Home Department, ex
Despite Ridge having been cleared of any allegations against him, the
parte Doody [1994]. In this case Lord Mustill stated, inter alia, that where
judge made comments which were critical of Ridge’s conduct.
an Act of Parliament confers an administrative power there is a
Subsequently, Ridge was dismissed from the force. Ridge was not
presumption that it will be exercised in a manner which is fair in all the
invited to attend the meeting at which the decision to dismiss him was
circumstances and that the standards of fairness may change with the
reached, although he was later given an opportunity to appear before
passage of time and what fairness demands is dependent on the context
the Committee which confirmed its earlier decision. Ridge appealed to
of the decision, and this is to be taken into account in all its aspects.
the Home Secretary who dismissed the appeal. Ridge then sought a
According to Lord Mustill, fairness will often require those adversely
declaration that his dismissal was ultra vires on the basis that the
affected by a decision to be. given an opportunity to make
Committee had violated the rules of natural justice.
representations before the decision is made. Fairness, however, does
not necessarily require an oral hearing. Fairness will often require that a
29
person be informed of the gist of the case against him or her, or why an
30
(iv)
The representation must be clear and unequivocal: Association of
adverse decision has been made. This normally requires decision--
British Civilian Internees: Far Eastern Region (ABCIFER) v Secretary of
makers to give reasons why decisions have been made.Reasons
State for Defence [2003] QB 1397. Furthermore, the representations
provide transparency and help people to decide whether to challenge
must not conflict with statute: R v Department of Education and
or complain about decisions.
Employment, ex parte Begbie [1999] All ER 983
Fairness may also require a level of impartiality and open-mindedness:
(v)
R v North and East Devon Health Authority, ex parte Coughlan
[2001]. Miss Coughlan was seriously injured in a road accident and, as a
there is no point in allowing representations to be made if decision-
result, was tetraplegic, doubly incontinent, and partially paralysed. In
makers have already made up their mind, or are unable or unwilling to
1993, with her agreement, she was moved from a hospital that the
listen to what is said, or have conflicting interests. This is obviously
health authority wished to close to Mardon House, an NHS facility for the
important in the case of judges, who must be unbiased, independent,
long-term disabled, The health authority assured her, and other
and neutra1. But it also applies to other decision-makers as well: for
residents, that Mardon House would be their home for life. Despite this
example, officials employed by local authorities or ministers.
assurance, in 1998, following a public consultation, the health authority
12.6.3 The duty to act ‘fairly’ and the concept of legitimate expectations.
decided to close Mardon House. Miss Coughlan challenged the
(i)
Irrespective of the body in question, there exists a duty to act fairly.
decision, in part, on the ground that the clear promise that she had
In Re HK (an infant)(1967) it was held that whilst immigration officers are
been given created a legitimate expectation that Mardon House would
not obliged to hold a hearing before deciding an immigrant’s status,
be her home for life. The Court of Appeal held that the decision to close
they were nevertheless under an obligation to act fairly. The duty to
the home breached this legitimate expectation and was therefore
give a hearing will be higher if a ‘legitimate expectation’ has been
unlawful.
created in the mind of the complainant by the public body
concerned.
(vi)
In Coughlan’s case above, the Court of Appeal stated that
whether or not a legitimate expectation has arisen is for the court to
(ii)
(iii)
A legitimate expectation will arise in the mind of the complainant
decide; it is not a matter of what a claimant may have subjectively
whenever he or she is led to understand-by words or actions of
expected or hoped for. Public bodies may act contrary to legitimate
decision-maker-that certain procedures will be followed in reaching a
expectations, ie if there was an overriding public interest for it to do so.
decision.
It will be unlawful to frustrate a substantive legitimate expectation if
the court decides that there has been an abuse of power.
The first is where an individual or a group has been led to believe that
a certain procedure will apply. The second is where an individual or a
(vii)
In R (Bhatt Murphy (a firm) and Others) v Independent Assessor; R (Niazi
group rely upon a policy or guidelines which have previously
and Others) v Secretary of State for the Home Department Times LR 21
governed an area of executive action.
July 2008 The Secretary of State had announced that a discretionary
scheme of compensation for victims of miscarriages of justice would be
31
32
withdrawn and that a less generous basis for the assessment for legal
hold an inquiry. Where clear and unambiguous undertakings are
costs would be introduced.
made, a public authority would not be allowed to depart from it unless
Laws LJ stated that the power to change policy was constrained by the
it was show that it is fair to do so.
legal duty to be fair. If the authority had promised to consult, had
promised to maintain an existing policy, or if an authority established a
(ix)
stating the criteria to be used for determining whether a child could
be required to consult before making a change in the policy. Failure to
enter the United kingdom. When the applicant sought to bring his
comply with these requirements would amount to unfairness such as to
nephew in, entry was refused. It was held that the Home secretary had
constitute an abuse of power. In relation to the changes introduced in
acted ultra vires : he had created a legitimate expectation and was
this case, there was nothing which was capable of creating a
not free to employ different criteria.
legitimate expectation.
(viii)
In R v Secretary of State for the Home department ex parte Asif
Mahmood Khan (1984) , the Home Office had published a circular
policy which substantially affected a person or group, it would normally
Legitimate expectations were considered in In the matter of an
(xi)
R (Patel) v General Medical Council (2013)1 WLR 2694. the Court of
Appeal
application by Geraldine Finucane for Judicial Review (Northern
considered
the
concept
of
‘legitimate
expectation’.
In administrative law, if a public body creates in the mind of a person
Ireland) [2019] UKSC 7.
affected by its decision, either through its policy, or the making of
In 1989, Patrick Finucane, a solicitor in Northern Ireland, was murdered
assurances, then that public body cannot simply ignore that
by paramilitary loyalists. There were allegations of collusion between
expectation. Through judicial review proceedings the courts will
the security forces and loyalists. In 2003, the European Court of Human
examine whether such an expectation has been created, and if it has,
Rights ruled that there had not been an inquiry into his death which
will require the body concerned to act accordingly. Under the Medical
complied with the requirements of Article 2. In 2004, the Secretary of
Act 1983 the General Medical Council (GMC) was responsible for
State for Northern Ireland stated that an inquiry would take place under
registering and regulating doctors within the UK. The claimant had
new legislation (which became the Inquiries Act 2005). Mrs Finucane
undertaken a long course of study at an overseas university. He had
objected to this and discussions continued as to how an inquiry would
sought assurances from the GMC that he would be entitled to
be conducted. In 2011, the government decided that there would be
registration on completion of all the clinical requirements, and this he
no public inquiry but that a senior barrister would investigate.
had received. However, the GMC later changed its policy and refused
Mrs Finucane sought judicial review, claiming that she had a legitimate
to register the claimant. The Court of Appeal accepted that the GMC
expectation that a public inquiry would be held because of the
was entitled to change its policy, but that the claimant had been
assurances given to her in 2004.
given ‘... a clear, unequivocal and unqualified assurance .... that if he
The
Supreme
Court
agreed:
Mrs
Finucane
had
a
legitimate
completed the course in a reasonable time the GMC would recognise
expectation that an inquiry would be held and that there had been no
the qualification’. It was not now open to the GMC to refuse to
Article 2 compliant inquiry into her husband’s death. The undertakings
recognise his qualification
given by various ministers amounted to an unequivocal undertaking to
33
12.7
34
Exclusion of judicial review
held that the jurisdiction of the court was not ousted by the statutory
A number of different statutory means are employed in an attempt to
words. Lord Denning stated: “ the remedy of certiorari is never to be
limit the availability of judicial review, of which the main ones are:
taken away by any statute except by the most clear and explicit words.
(a) Clauses which are designed to limit review to a specified time
The word ‘final’ is not enough. That only means that ‘without appeal’. It
does not mean without recourse to certiorari…”
period;
(b) Clauses which are intended to prevent any challenge;
(iv)
(i)
In Anisminic v Foreign Compensation Board (1969) section 4(4) of the
Foreign Compensation Act 1950, provided that the decisions of the FCC
12.7.1 Time limits on judicial review.
A statute may provide that there should be no challenge by way of
‘shall not be called in question in any court of law’.
judicial review other than within a specified time period. In Smith v East
The House of Lords ruled that the jurisdiction of the courts was not
Elloe Rural District Council (1956), a challenge to the validity of a
ousted. Accordingly, the court had the power to review the FCC’s
compulsory purchase order was limited under statute to a six week
decision which it declared null and void. This was because FCC had
acted outside its jurisdiction by misinterpreting the statute.
period after the confirmation of the order. If not challenged within that
period the order ‘shall not… be questioned in any legal proceedings
The effect of the Anisminic case is drastic. The House of Lords destroyed
whatsoever. Mrs Smith did not do so. She argued that despite the time
the distinction between errors of law within jurisdiction (previously
limit, it did not apply as the clerk acted in bad faith. The House of Lords
regarded as non-reviewable) and errors of law which took the decision-
by a majority rejected this view and upheld the time limit clause.A
maker outside its jurisdiction. The decision reveals the judicial emphasis
similar view was taken by the Court of Appeal in R v Secretary of State
on the rule of law.
for the Environment ex parte Ostler (1976).
(v)
Similarly in Pearlman v Keepers and Governors of Harrow School [1979]
12.7.2 Ouster clauses: Attempts to exclude judicial review totally ***
the Court of Appeal ruled that the misinterpretation of the provisions of
(i)
The central question here is whether an Act of Parliament can oust the
the Housing Act 1974 by the county court amounted to a jurisdictional
court's judicial review jurisdiction. Are such clauses successful in preventing
error which nullified the court’s decision Lord Denning MR stated that
the distinction between errors which entail an excess of jurisdiction and
the courts from ensuring that governmental bodies, including ministers,
an error made within jurisdiction should be abandoned.
comply with the requirements of legality.
(ii)
At the root of this contentious question lies a clash between the UK
Parliament's supremacy and the rule of law. If the UK Parliament can
prevent judicial review, how can the rule of law be safeguarded?
(vi)
In Jackson v Her Majesty's Attorney General [2005] UKHL 56 Lord Steyn
stated: “…The supremacy of Parliament is still the general principle
of our constitution. It is a construct of the common law. The judges
created this principle. If that is so, it is not unthinkable that
(iii)
In R v Medical Appeal Tribunal ex parte Gilmour (1957) the statute
circumstances could arise where the courts may have to qualify a
provided that ‘the decision of any medical question by a medical
principle established on a different hypothesis of constitutionalism.
appeal tribunal…is final. The tribunal made an error of law. The Court
In exceptional circumstances involving an attempt to abolish
35
(vii)
36
judicial review or the ordinary role of the courts, the new Supreme
The Court of Appeal stated that the decision of the Upper Tribunal is
Court may have to consider whether this is a constitutional
reviewable but only on very limited grounds: essentially if it exceeded its
fundamental which even a sovereign Parliament acting at the
jurisdiction. Mr Cart appealed unsuccessfully to the Supreme Court and
behest of a complaisant House of Commons cannot abolish…”
Lady Hale was of the contrary view that in was not correct to limit judicial
review to exceptional circumstances as stated by the Court of Appeal
In R (Cart) v Upper Tribunal and ors [2009] EWHC 3052
below as such was approach was too restrictive. Lady Hale held that
This case concerned the Tribunals, Courts and Enforcement Act 2007
held that judicial review of non-appealable decisions (such as refusals to
gives the Upper Tribunal a judicial review jurisdiction over the First-tier
allow an appeal) should only be possible when there is an important
Tribunal, applying the same principles as the High Court. The Act also says
point of principle or practice involved, or when there is another
that the Upper Tribunal is a 'superior court of record. Court the Upper
compelling reason.
Tribunal’s decisions be judicially reviewed?
Mr Cart complained that a decision to vary his child maintenance
payments was unfairly made without him being notified. He appealed
unsuccessfully to the First-tier Tribunal on this and other grounds. That
tribunal refused him permission to appeal on the notification issue to the
Upper Tribunal. The Upper Tribunal also refused him permission to appeal.
Because legislation does not provide for an appeal against a decision of
the Upper Tribunal to refuse permission to appeal, Mr Cart sought to
challenge the Upper Tribunal's refusal using judicial review. He was met
with the argument that decisions of the Upper Tribunal are not subject to
judicial review because the Upper Tribunal is a 'superior court of record.
The High Court rejected this argument.
Laws LJ stated: “ The supervisory jurisdiction of the High Court can only
be ousted "by the most clear and explicit words", citing per Denning in
R v Medical Appeal Tribunal ex parte Gilmore[1957] 1 QB 574, 583. He
further stated than there is a distinction between the High Court and
courts of limited jurisdiction The High Court as a court of unlimited
jurisdiction cannot be subjected to review. On the other hand, courts
whose jurisdiction is limited will generally be subject higher judicial
authority ie the High Court to fix the limits of their authority.
(viii)
R (Privacy International) v Investigatory Powers Tribunal and others [2019]
UKSC 22
Brief facts: Privacy International is a group that campaigns to protect
privacy arguing that 'privacy is essential to the protection of autonomy
and human dignity, serving as the foundation upon which other human
rights are built. The IPT is a judicial body which operates independently of
government to provide a right of redress for anyone who believes they
have been a victim of unlawful action by a public authority using covert
investigative techniques. It considers complaints about any conduct by
or on behalf of the UK Intelligence Community, MI5, SIS, and GCHQ, as
well as claims alleging the infringement of human rights by those
agencies.
Privacy International complained to the IPT that GCHQ had been
conducting unlawful computer network exploitation activity (i.e.
hacking). It argued that GCHQ did not have authority to undertake
generalized hacking because the Secretary of State under whose warrant it was acting only had power to grant warrants authorizing
'specified' acts in respect of specified' property, but not general
warrants. The IPT held that the grant of general warrants was permitted.
37
38
. s.67(8) of the Regulation of Investigatory Powers Act 2000 (RIPA) which
Lord Carnwarth adopted an approach that is very similar to that taken
stated that: “…determinations, awards and other decisions of the
by the majority in Anisminic. In particular, he stresses the strong
Investigatory Powers Tribunal (including decisions as to whether they have
interpretative presumption against the exclusion of judicial review other
jurisdiction) shall not be subject to appeal or be liable to be questioned in
than by the 'most clear and explicit words'. He also found that there is no
any court…”
justification for distinguishing Anisminic on the grounds that the Foreign
Privacy International sought judicial review to challenge the IPT's
Compensation Commission and the IPT are different types of body. For
decision. The High Court held that s. 67(8) of the Regulation of
Lord Carnwath, there was no longer any justification in drawing a
Investigatory Powers Act 2000 prevented judicial review. Privacy
distinction between errors of law that are jurisdictional (and which
International appealed unsuccessfully to the Court of Appeal essentially
therefore result in a decision being a nullity) and errors of law that are not
relying on the approach taken in Animismic.
jurisdictional.
Supreme Court had to consider two issues (or questions posed by the
The practical effect of this is that any error of law would be capable of
Appellant):
being challenged in judicial review, even if the error could be
(a) whether section 67(8) of R IPA 2000 "ousts" the supervisory jurisdiction of
questioned on an appeal, (although the claimant would have to obtain
the High Court to quash a judgment of the Investigatory Powers Tribunal
permission to seek judicial review and this may be refused if an
for error of law?
alternative right of appeal exists).
(b) whether, and , if so, in accordance with what principles, Parliament may
by statute "oust" the supervisory jurisdiction of the High Court to quash the
decision of an inferior 'court or tribunal of limited statutory jurisdiction?
Lord Carnwarth also held that it was ultimately for the courts and not
Parliament to determine the limits to the power to exclude review. That
principle ‘is a natural application of the constitutional principle of the
By a majority of four to three, the Supreme Court ruled that RIPA did not
oust the supervisory jurisdiction for errors of law. For the majority, Lord
Carnwarth stated that there were close parallels with the case of
Anisminic v Foreign Compensation Commission (1969) and that the
drafter of the legislation could have been in no doubt that a
determination vitiated by an error of law was no determination at all.
The reference to a determination was to be read as a reference only to
a legally valid determination. Furthermore, any attempt to exclude
judicial review had to be expressed in the ‘most clear and explicit
words’.
rule of law’.
2
Chapter 13: Human Rights and Terrorism
believing that Chahal's presence in the United Kingdom was not
conducive to the public interest on national security grounds.
13.1 Introduction
(i)
(ii)
The United Kingdom's legislative reaction to what President Bush called
Under the Immigration Act 1971, a person subject to a deportation
the 'war on terror' (after 9/11) raised fundamental questions about the
order on these grounds had no right to appeal to a court against
balance between the government's legitimate need to protect the
the decision and no right to see the evidence upon which the
public (and the corresponding right of the public to security).
Home Secretary had acted.
After HRA 1998, the central questions is whether judges adopted the
Chahal took his case to the ECtHR. He argued that the procedure
traditional
(institutional
adopted was unlawful because it infringed his right to a court
deference), whenever the government justified breaching individual
hearing under Art. 5(4) (which requires those who are deprived of
human rights in the interests of national security (as in the GCHQ
their liberty to have access to a court), as well as his right to an
case, Liversidge v Anderson), or whether they more proactive in
effective remedy in Art. 13.
view
of
leaving
it
to
the
executive
their application of the HRA.
Chahal also argued that if he were deported and returned to
India, there was a real risk that he would be tracked down and
(iii) This chapter focuses on:
(a)
killed by lawless Punjab police. He argued that, in this situation,
The then Part IV of the Anti-Terrorism Crime and Security Act
deportation would constitute a breach of Art. 3 of the ECHR. The
2001—which permitted detention without trial; and
(b)
ECtHR upheld each of these claims.
The previous Prevention of Terrorism Act 2005— which enabled
the making of control orders in relation to those suspected of
(ii)
being involved in terrorist activities;
(c)
Immigration Appeals Commission Act 1997 establishing the Special
Immigration Appeals Commission (SIAC).
The current Terrorism Prevention and Investigate Measures Act
2011;
(iii)
(d)
Recent amendments and related legislation; and
(e)
The recent Supreme Court decision in Begum’s case.
The decision in Chahal also led to the enactment of the Special
The SIAC is a superior court that was established to hear appeals
against decisions to deport on national security grounds. It is
composed of a High Court judge or some other holder of high
judicial
office,
an
expert
on
immigration
matters,
and
an
intelligence expert. It operates under procedural rules that allow it
13.2 Chahal v UK and the establishment of SIAC in 1997
to hold closed hearings in the absence of the appellant or the
(i)
Chahal v UK (1996) ECtHR
appellant's usual lawyer (but sometimes in the presence of special
Chahal was an Indian citizen resident in the United Kingdom. The
advocates
Home Secretary believed that he had been involved in terrorist
Government had then to deal with how not to be in breach of
activities in support of Sikh separatism and he sought to deport him,
Article 3.
who
have
3
been
given
security
clearance).
The
4
13.3
UK’s legislative response to the events on 11 September 2001
(i)
On 11 November 2001, the Home Secretary made a Derogation
was satisfied that the threat from al-Qaeda had created a public
Order under s. 14 of the HRA enabling the United Kingdom to take
emergency threatening the life of the nation, within the meaning of
steps that would otherwise constitute a deprivation of liberty
Art. 15 of the Convention. The SIAC held, however, that the 2001 Act
contrary to Art. 5 ECHR (the right to liberty). It should be noted that
unjustifiably discriminated against foreign nationals, in breach of Art. 14
under Article 15 HRA 1998, derogations can be made only 'in time of
of the ECHR. For this reason, it issued a declaration of incompatibility
war or other public emergency threatening the life of the nation'
under s. 4 of the HRA.
and derogations are only permissible 'to the extent strictly required
by the exigencies of the situation'.
(ii)
(viii) The government successfully appealed against this decision to the
Court of Appeal, which held that the SIAC had been entitled to find
Thereafter Parliament enacted the Anti-terrorism, Crime and
that there was a public emergency threatening the life of the nation
Security Act 2001 (ATCSA. Part 4 of ATCSA allowed foreign nationals
but there was no discrimination under Article 14.
to be indefinitely detained without charge when the Home
Secretary had certified them to be suspected international terrorists
who could not be deported from the United Kingdom as a
consequence of Chahal. The government accepted that this form
of detention was incompatible with Art. 5 of ECHR, but derogated.
(iv)
(vii) These arguments were first considered by the SIAC which held that it
(ix)
The detainees appealed to the House of Lords in A v Secretary of State
for the Home Department (The Belmarsh case) [2004]. The detainees
argued that their detention was inconsistent with the obligations of the
United Kingdom under the ECHR, that the Derogation Order was
unlawful, and that the statutory provisions under which they were
The Act gave the SIAC exclusive jurisdiction to hear challenges to
detained were incompatible with the ECtHR. The House of Lords
certifications and to deal with derogation matters, with further
quashed the 2001 Derogation Order and made a declaration that
appeal on a point of law to the Court of Appeal.
s. 23 of the 2001 Act was incompatible with Arts 5 and 14 of the
ECHR. The main findings of the House of Lords were:
(v)
Sixteen people were certified and detained under Pt IV. These
detentions generated mainly challenges to the legality of the
derogation and the legislative scheme.
(vi)
(a) In relation to the legality of the Derogation Order on the emergency:
was there a public emergency that threatened the life of the nation?
The House of Lords by a majority agreed with the SIAC that there
The government took the position that it was solely responsible for
was power to derogate from Art. 5. The majority also attached great
determining whether such an emergency existed and its judgment
weight to the judgment of the Home Secretary and Parliament on
could not be upset by the courts. If the court was not prepared to hold
whether there was a threat to the life of the nation.
the derogation unlawful, a second line of challenge was to the
proportionality of the legislative provisions.
(b) The Derogation Order was lawful in respect of the emergency, but
what were the powers of detention proportionate? Were they 'strictly
required by the exigencies of the situation'?
5
The, House considered that proportionality was a question of law and
6
(iii)
therefore a matter for courts. The powers of detention related only to
that will be used as a point of reference by courts all over the world for
foreign nationals who could not be deported. But the majority stressed
decades to come, even when the age of terrorism has passed. It is a
that foreign nationals were not the only threat. Moreover, even when
powerful statement by the highest court in the land of what it means to
they were a threat, the 2001 Act left them free to leave the United
live in a society where the executive is subject to the rule of law. Even
Kingdom and carry on their activities from abroad. In other words, the
the Government, and even in times when there is a threat to national
legislative provisions infringed Art. 5 and the infringements were not
security, must act strictly in accordance with the law. (contrast the
rationally directed at the reasons for the emergency—that is, the
prevention of terrorism. The House of Lords by a majority of seven to one
held that the proportionality requirement had not been met, essentially
because s. 23 was not specifically focused on the actual threat posed.
recent Shammima Begum’s case discussed below).
13.5 The impact of the Belmarsh case on the individuals concerned
(i)
affect 'the validity, continuing operation or enforcement' of s. 23, nor
did it bind the Home Secretary.
Art. 14 of the ECHR by discriminating unjustifiably between British and
foreign nationals. The House of Lords held that the appropriate comparators were UK nationals who were suspected terrorists, not non-UK
Despite the constitutional importance of the principles enunciated
by the House of Lords, the declaration of incompatibility did not
(c) The third main issue was whether the detention powers in s. 23 violated
(ii)
Those who were still detained started proceedings in the ECtHR.
These led to the decision, A and Ors v UK, which was given by the
nationals who were suspected terrorists. For this reason, s. 23 was incom-
Grand Chamber of that Court four years later, on 19 February 2009.
patible with Art. 14, read in conjunction with Art. 5.
In its judgment, the Grand Chamber agreed with the House of Lords
13.4 The impact of the House of Lords decision i n A v Secretary of
in the Belmarsh case on the principal issues with which it had dealt.
State for the Home Department (The Belmarsh case) [2002] in UK
(i)
She states that the decision in the Belmarsh case is a landmark decision
It also addressed the compatibility of the process used by the SIAC
Mary Arden, in her article entitled 'Human rights in an age of terrorism'
with the obligation to provide a fair hearing in Arts 6 and 5(4).
(2005) in the Law Quarterly Review states that there was a 'startling
difference' between the approach taken in the Belmarsh case and
that taken in Liversidge v Anderson [1942]. In Liversidge, the majority
13.6
The legislative response to the Belmarsh decision
(i)
The Prevention of Terrorism Act 2005 (PTA) enabled the Secretary
of State to make derogating and non-derogating control orders.
had held that the balancing of the interests of national security against
The former would breach Art. 5 of the ECHR and would be
those of the individual was the sole prerogative of the Home Secretary.
(ii)
imposed only if a derogation from that Article was in place. They
In the Belmarsh case, the House of Lords held that the courts have a
would be made by a court on application by the Secretary of
duty to review the way in which this balance is struck in order to ensure
State and they would be reviewed by the court after six months.
conformity with human rights requirements. The House took the view
No derogating control orders were ever made.
that there is no jurisdictional barrier to the review of national security
decisions and that national security is not a `no-go' area for the courts
or the law. (compare with the GCHQ case).
7
(ii)
8
Non-derogating control orders were intended to be compatible with
constant supervision, had a nine-hour overnight curfew, and was
Art. 5 of the ECHR and were made by the Secretary of State when he
obliged to report to the authorities twice a day and to inform them
had 'reasonable grounds for suspecting' that someone is or has been
of any person whom he wished to telephone; he also had to obtain
'involved in terrorism-related activity' and he considered it 'necessary,
for purposes connected with protecting members of the public from
the risk of terrorism, to make a control order'.
(iii)
Other challenges which were brought included the procedural
fairness adopted by the SIAC.
The making of control orders was supervised by the SIAC, which had
Secretary of State for the Home Department v AF and anor [2009]
the task of determining whether these requirements were satisfied.
UKHL 28
The appellants in the Belmarsh case who remained detained were
AF was born in the United Kingdom in 1980. His mother is English and
released on 11 March 2005 and immediately made subject to non-
divorced from his Libyan father. He has both UK and Libyan nationality.
derogating control orders.
Although brought up in Libya, he has lived in England since 2004. A
13.7
The Legality of Control Orders under PTA 2005
(i)
The control order regime under PTA 2005 led to a large number of legal
challenges. Two main lines of argument were made. One focused on
whether the non-derogating control orders infringed the Art. 5(1) right to
liberty, even though they purported to be compatible with this right. It
(ii)
consent to visit Sardinia on the mainland.
(iii)
control order, confining him to his flat for eighteen hours a day, was first
imposed on him on 24 May 2006. That order was revoked following the
Court of Appeal's decision in JJ. A new order was imposed on 11
September 2006. This reduced the curfew period from eighteen hours
to fourteen hours.
would, of course, be unlawful under s. 6(1) of the HRA for the Secretary
On 19 February 2009, shortly before the House of Lords was to hear AF's
of State to make control orders that were incompatible with Art. 5 of the
appeal, the Grand Chamber of the ECtHR handed down its judgment
ECHR. It would, on normal judicial review grounds, also be beyond the
in A and Ors v UK. The Grand Chamber reiterated the main
powers conferred by the PTA.
conclusions reached by the House of Lords—but the Court also made
In Secretary of State for the Home Department v JJ [2007], the House of
Lords stated that a non-derogating control order that prevented a
person from leaving a one-bedroom flat for eighteen hours in every
important pronouncements on the fairness of the closed procedure
used by the SIAC when it dealt with challenges to certifications made
under Pt IV of the ATCSA.
twenty-four (an eighteen-hour curfew) and imposed very restricted
The House of Lords immediately applied this judgment where Lord
controls that effectively meant that the person's life was wholly regu-
Phillips stated:
lated by the Home Office was contrary to Art. 5.
“…The decision of the Grand Chamber establishes that the controlee
must be given sufficient information about the allegations against him
to enable him to give effective instructions in relation to those
allegations. …Where, however, the open material consists purely of
general assertions and the case against the controlee is based solely or
to a decisive degree on closed materials the requirements of a fair trial
Lord Bingham reached the conclusion following Guzzardi v Italy
(1980) where the ECtHR held there to be a deprivation of liberty
when a person was forced to stay on a small island, in dilapidated
accommodation, without social intercourse. He was under almost
9
will not be satisfied, however cogent the case based on the closed
materials may be.
…The best way of producing a fair trial is to ensure that a party to it has
the fullest information of both the allegations that are made against him
and the evidence relied upon in support of those allegations…”
13.8
10
(e)
system of special advocates is used. [TPIMA Sch. 4]
(iv) TPIMA 2011 lasts for five years, and may be further extended by the
Secretary of State after consulting the Independent Reviewer, the
Intelligence Services Commissioner, and the Director-General of the MI5,
The aftermath of the decision in AF’s case and impact of control order
and after a resolution of each House of Parliament. [TPIMA S 21]
litigation
(i)
Following the decision of the House of Lords, the Home Secretary
(v)
The 'reasonable suspicion' test in PTA 2005 has been replaced by a test of
reasonable belief that a person is or has been involved in terrorism-related
decided to free AF after three years 'under virtual house arrest' rather
activity [TPIMA s. 3(1) 'Reasonable belief' is a harder test to satisfy. [...]
than disclose the secret intelligence case against him. The then Labour
government was clearly frustrated by some of the judgments.
(ii)
(vi)
Under PTA 2005 There was no limit on the number of times a 12-month
In early January 2011, the Home Secretary (under the Conservative –
control order could be extended, so long as the necessity test continued to
Liberal Coalition government), Theresa May, announced that Control
be met. Some controlled persons were subject to control orders for periods
Orders were to be replaced by a new regime known as Terrorism
exceeding four years.A TPIM notice, by contrast is subject to a two-year
limit [TPIMA s. 5]
Prevention and Investigation Measures (TPIMS). The Terrorism Prevention
and Investigation Measures Act 2011 was thereafter introduced.
(iii)
In any court proceedings where secret evidence is involved, a
(vii)
(a)
(b)
TPIM notices are made by the Secretary of State [TPIMA ss 2-3] after
(a) The power to relocate controlled persons to different towns and cities is
police and prosecutors have been consulted on whether there is
removed. A Londoner must thus be allowed to continue to reside in
evidence that could realistically be used to prosecute the intended
London, even if his 'network is nearby: the option of sending him to a
subject.
provincial town or city has gone. This is notwithstanding the fact that
relocation was undoubtedly effective in disrupting networks, and that
A wide (though finite) range of measures may be imposed, including
it had been upheld as proportionate in two cases during 2011.
an overnight residence requirement, travel restrictions and restrictions
on electronic communications and association with other persons.
(c)
(b) The frequently exercised power to confine controlled persons to a
particular area is replaced by a much weaker power to exclude them
Permission to make a notice is required from the High Court, which
from particular specified areas or places. So while a person may be
goes on to hold a full review hearing unless the subject decides
prevented from visiting a particular street where an associate lives, he
otherwise or the court decides to discontinue the review. [TPIMA ss 6-9]
(d)
There was however a major difference with PTA 2005 in relation to
geographical restrictions. Thus:
The main provisions of TPIM are:
cannot be restricted to his own borough, or to a part of his own town.
Appeals lie against any decision to vary, extend or revive a TPIM
notice and any decision to refuse to vary or revoke a TPIM
notice.[TPIMA s. 16]
11
(c) Curfews of up to 16 hours are replaced by "overnight residence
12
(iv)
Part 2 of the Act amends the Terrorism Prevention and Investigation
measures". While no maximum length is specified, it would be surprising
Measures Act 2011 (TPIMA), to enable the Secretary of State to
if these could be for more than 10 or 12 hours.
require the subject of a TPIM order to reside in a particular location
(this was a power formerly available with Control Orders) and to
(d) A power that potentially extended to a complete ban all electronic
restrict the subject's area of travel outside that location and impose
communications is replaced by a provision which requires the subject
other restrictions relating to firearms and communications with
to be allowed the use of fixed line and mobile telephones and a
specified persons.
computer with internet access.
(e) Limits on the freedom to associate are relaxed [...] Association with
(v)
Part 3 of the Act amends the Data Retention and Investigatory
Powers Act 2014 (DRIPA), in relation to communications service
named individuals can still be prohibited: but the previous practice of
providers. Data Retention and Investigatory Powers Act 2014-15 was
prohibiting all prearranged meetings and all visitors is to be
introduced as emergency legislation to maintain the requirement for
abandoned, in favour of a policy to require new associations to be
phone and internet companies to log records (but not content) of
notified on the first occasion only
calls, texts and internet use. The Act in addition allows internet protocol
(f) Police searches for the purpose of determining whether there is
(IP) address matching. This would identify the individual or the device
compliance with TPIMs now require a warrant from the appropriate
that was using a particular IP address at any given time.
judicial authority.
(vi)
Part 4 of the Act relates to border and transport security and Part 5
13.9
Reform: Counter-Terrorism and Security Act 2015
relates to measure designed to prevent people from being drawn
(i)
The government thereafter passed the Counter-Terrorism and
into terrorism. It imposes a duty on particular bodies (such as
Security Act 2015.
universities) to prevent radicalization and requires local authorities to
(ii)
Approximately 500 individuals 'of interest to the police and security
services' (including Shammima Begum) had travelled to Syria to fight
and powers were needed to deal with both their leaving the
country and return to the United Kingdom. The major provisions of
the Bill are discussed below.
(iii)
Part I of the Act provides that the police and Border Force officers
may seize a passport at a border for a period of time, when it is
suspected that an individual is travelling for purpose of involvement
in terrorism outside the UK. The Act also provides for a temporary
exclusion order which would control the return to the UK of a British
citizen suspected of involvement in terrorism overseas.
provide support for people vulnerable to being drawn into terrorism:
a voluntary programme already exists, this measure would place that
on a statutory basis.
(vii) The Act amends the law to ensure that it is capable of dealing with
new threats in the digital age and to reflect changing patterns of
radicalisation. It provides a new power to strengthen the UK's border
defences against hostile state activity, as evidenced in the poisoning of
Sergei and Yulia Skripal in March 2018 by suspected Russian agents. The
regime for the collection, storage and examination of communications
data provided under the Regulation of Investigatory Powers Act 2000
has been found to violate both Articles 8 and 10 of the European
Convention.
13
14
13.10 Events in UK relating to terrorism in 2017 to date
(a)
(iv)
London terrorist attack on 22.3.2017 on Westminster Bridge next to the
parliament in a single day, will block the automatic release of about 50
Houses of Parliament in London
serving terrorist prisoners at the halfway point of their sentences. Critics
Five people have died, including a policeman and the attacker.
have asked for more focus to be placed on rehabilitation behind bars
Approximately 40 other people were injured. The assailant drove a car
into pedestrians on Westminster Bridge, killing two people, before
crashing it outside parliament and trying to enter the complex, armed
with a knife. He stabbed an unarmed police officer who later died from
the injuries, before armed police shot him.The police officer was
identified as 48-year-old PC Keith Palmer, who had
15
years
of
service with the parliamentary and diplomatic protection service. He
was a husband and father, police said.
(b)
(c)
The proposals, which the government hoped to rush through
rather than the length of sentences.
13.11 The Shammima Begum case
R (on the application of Begum) (Appellant) v Special Immigration
Appeals Commission (Respondent) R (on the application of Begum)
(Respondent) v Secretary of State for the Home Department (Appellant)
Begum (Respondent) v Secretary of State for the Home Department
(Appellant) [2021] UKSC 7
Manchester Attack: 23 May 2017
The facts
In 2015 the respondent, then aged 15, had left the UK and travelled to
At least 22 people, including children, were killed and 59 injured in a
Syria where she aligned herself with ISIL fighters. She was detained in a
suicide bombing at a crowded pop concert in Manchester, the most
camp run by the Syrian Democratic Forces. In 2019, the secretary of
deadly attack in Britain in a decade. According to the police, the
state issued the deprivation of citizenship decision (“the deprivation
attacker died after detonating ‘improvised explosive device’ in foyer
decision”) pursuant to the British Nationality Act 1981 Pt V s.40(2), on the
of concert hall.
basis that such deprivation was conducive to the public good and that
The London Bridge attack on 3 June 2017
the respondent's return to the UK would present a risk to national
On 3 June 2017, an attack took place in the Southwark district of
security.
London, England, when a van mounted the pavement of London
The respondent applied for leave to enter (LTE) in order to pursue her
Bridge and was driven into pedestrians. The van crashed, and the three
appeal against the deprivation decision. That application was refused
male occupants ran to the nearby Borough Market pub and restaurant
(LTE decision). The respondent appealed against the LTE decision to the
area, where they stabbed people with long knives.
Special Immigration Appeals Commission (SIAC) under the Special
Immigration Appeals Commission Act 1997 s.2B. SIAC found that the
(d)
Subsequently acts of terrorism to date
secretary of state had not departed from his extraterritorial human rights
(i)
The government announced emergency legislation less than 24 hours
policy (policy issue) and that, although the respondent's appeal could
after the convicted terrorist Sudesh Amman stabbed two people in
not be fair and effective to the extent that she was unable to give
south London.
effective instructions or participate properly in the appeal while
detained, it did not follow that her appeal should succeed (fair and
(ii)
Six convicted terrorists had been released from prison and convicted of
a further terrorist offence within seven years.
15
The respondent appealed (amongst other appeals), to the Court of
Appeal under s.7 of the 1997 Act against SIAC's decision to dismiss the
LTE appeal. The Court of Appeal had allowed her appeal against SIAC's
decision in the LTE appeal and ordered the secretary of state to grant
her leave to enter the UK.
The Supreme Court decision
The Supreme Court held that the Court of Appeal had misunderstood
SIAC's role and that of the courts on an appeal against the Secretary of
State's decision to refuse leave to enter. An LTE appeal could only be
brought against the refusal of a human rights claim on the ground that
the decision was unlawful under the Human Rights Act 1998 s.6.
As no such ground had been argued before the Court of Appeal, the
respondent's appeal against the LTE decision should have been
dismissed.
Moreover, there was no evidential basis for the Court of Appeal's finding
that the national security concerns about the respondent could be
addressed and managed by her being arrested and charged with an
offence, or being made subject to a terrorist prevention and
investigation measure, upon her arrival in the UK. The right to a fair
hearing did not overcome all other considerations, such as the public
interest in minimising the risk of terrorism.
If public safety made it impossible for a case to be fairly heard, the
appeal should be stayed until the appellant was in a position to play an
effective part in it without such safety being compromised. There was
no perfect solution to such a dilemma.
In relation to the LTE decision, it was the Secretary of State's responsibility
to assess the requirements of national security, for which it was
democratically accountable to Parliament.
effective appeal issue).