PUBLIC LAW (Done-elyss)

PUBLIC LAW STUDY MANUAL RABINDER SINGHCONTENTS: CHAPTER 1: THE BRITISH CONSTITUTION CHAPTER 2: CONSTITUTIONAL CONVENTIONS CHAPTER 3: THE RULE OF LAW CHAPTER 4: SEPARATION OF POWERS CHAPTER 5: THE ROYAL PREROGATIVE CHAPTER 6: PARLIAMENTARY SOVEREIGNTY CHAPTER 7: EUROPEAN COMMUNITY LAW CHAPTER 8: THE ELECTORAL SYSTEM CHAPTER 9: HOUSE OF LORDS 91 99 73 15 29 35 43 51 1 7 CHAPTER 10: PARLIAMENTARY SCRUTINY OF THE EXECUTIVE CHAPTER 11: MINISTERIAL RESPONSIBILITY CHAPTER 12: THE HUMAN RIGHTS ACT 1998 111 117 CHAPTER 13: THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 143 Page1 Chapter1: THE BRITISH CONSTITUTION CONTENTS: 1.1 Introduction 1.2 The Contents of Most Constitutions 1.3 Characteristics of the British Constitution 1.4 The Sources of the UK Constitution 1.5 Arguments for the Codification of the British Constitution 1.6 Arguments against the Codification of the British Constitution 1.1 INTRODUCTION (i) According to Colin Munro, a constitution refers to “the body of rules and arrangements concerning the government of the country. (ii) Quite unlike the constitution of many Commonwealth countries, the constitution of the United Kingdom is classified as ‘unwritten’. It is quite surprising that although our colonial masters deemed it fit to codify our constitution (the Malaysian) and the constitutions of many of their former colonies like India, Australia, theirs remains largely unwritten. (iii) Sir Ivor Jennings in ‘Law of the Constitution’ states: “If a constitution means a written document, then obviously Great Britain has no constitution. In countries where such a document exists, the word has that meaning. But the document merely sets out the rules determining the creation and operation of government institutions, and obviously Great Britain has such institutions and rules. The phrase ‘British Constitution’ is used to describe those rules.” (iv) Thus in the broader sense, the word constitution refers to the whole system of government of a country, the collection of rules which establish and regulate or govern the government. In this sense, UK has a constitution that is a complex and comprehensive system of government. 1.2 THE CONTENTS OF MOST CONSTITUTIONS They stipulate the powers, functions and limitations of the 3 organs of the State i.e. the legislature, executive and judiciary. It also includes citizens’ rights and liberties, the ideology of the State and the relationship between the domestic/municipal law of the country and international law. Page2 1.3 CHARACTERISTICS OF THE BRITISH CONSTITUTION In short, the characteristics of the United Kingdom’s constitution are, it is: (a) unitary in structure (b) largely unwritten in character (c) parliament is supreme (or sovereignty of parliament) (d) flexible in nature (e) exhibits mainly but not completely separated powers (f) is monarchical 1.3.1 Unitary (i) This simply means that it is not federal. There is only one Government for the UK, being seated in London. For governance at a local level, a system of local governments is provided for by the Local Government Acts and must act within the powers delegated to them. (ii) There have been steps to devolve powers of government to Scotland, Wales and Northern Ireland by allowing, to some extent, the creation of separate Parliaments. Powers thus devolved may yet be withdrawn by the Westminster Parliament - thus, there is no loss of Parliament sovereignty. 1.3.2 Unwritten This refers to the fact that there is no one single document which could be called the UK Constitution. In lieu, there are several documents which are central to UK constitutional law - Magna Carta 1215, the Bill of Rights 1689, the Act of Settlement 1700 and more recently, the Human Rights Act 1998. 1.3.3 Parliament is sovereign As there is no written constitution in England, Parliament is supreme i.e. that Parliament has untrammelled legislative powers. There however areas of law where there has been a serious challenge to this doctrine- directly under Section 2 of the European Communities Act 1972 and indirectly under Section 3 of the Human Rights Act 1998. 1.3.4 Flexible (i) Parliamentary sovereignty in turn endows the British Constitution with flexibility. To borrow the words of Dicey, this translates to the fact that “every law of every description can legally be changed with the same ease and in the same manner” by Westminster. (ii) This is unlike countries where constitutional changes require certain procedures e.g. Malaysia. Such countries have a “frozen” constitution. As such, the British Constitution is not a higher form of law unlike a written constitution. (iii) According to Sir Ivor Jennings: “The British Constitution has not been made but has grown.” Page3 1.4 THE SOURCES OF THE UK CONSTITUTION (i) The constitution essentially consists of some fundamental documents, statutes, case law which are legal sources and non-legal conventional rules which operate as a complement to the legal sources. (ii) There however exists some doubt as to which statutory rules; common law or conventions are correctly defined as ‘constitutional’ rules. This is because some external sources also contribute to the ‘constitutional’ rules, for example the European Court of Justice and its interpretation of European Community law which has slightly watered down the notion of parliamentary sovereignty. (iii) Much recently, the Human Rights Act 1998 seeks to give effect to the European Convention on Human Rights into the domestic law of the United Kingdom subject to the mechanisms of the Act. It could be argued that the 1998 Act in particular, the interpretation the courts have given to section 3 of the Act (see R v A), i.e. the manner in which a statute is to be interpreted, seems to tacitly affect parliamentary sovereignty. 1.4.1 Statutory Sources (a) Magna Carta (1215) This represented a formal settlement between the Crown and the barons and represented settlement of the grievances challenging the powers of the King. The settlement provided for the freedom of the Church, and the right of merchants to be free from exorbitant taxation and the requirement of trial by jury. (b) The Petition of Rights 1628 This arose as a result of Darnel’s case (The Five Knights’ case). The Petition forbade such loans, taxes and other monetary demands without the consent of Parliament. This was superseded by the Bill of Rights 1689. (c) The Bill of Rights 1689 (i) By this Bill, the power of suspending or executing laws by the Crown without Parliamentary consent is illegal; (ii) The levying of money for the use of the Crown under the prerogative without Parliamentary consent is illegal; (iii) The raising or keeping of an army in peacetime without Parliamentary approval is illegal. (iv) The elections of members of parliament should be free (v) The freedom of speech and debates in proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. (vi) Excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. This will continue to have immense significance for the constitution of the United Kingdom. (d) The Act of Settlement 1700 This Act provided for the line of succession to the throne. (viii) For redress of grievances Parliament ought to meet frequently.2 Common Law sources (a) The Crown and the Judiciary (i) The Act of Settlement 1700 curtailed the powers of the monarch and provided for security of tenure for judges.(vii) Jury trial is available. he was dismissed from the Bench. the European Community (Amendment) Act 1986. and the Treaty of European Union (the Maastricht Treaty) 1992 which gives effect to the United Kingdom’s entry into the European Community. when Coke CJ in Case of Proclamations (1610) told King James I that monarchical power derived from the law alone and that the judge alone and not the king had the power to rule on the law. Page4 1. It however preserved the laws which concerned Scottish private rights. Much recently there has been some devolution of power to Wales. For example. Scotland and Northern Ireland with the establishment of State Assemblies. It also preserved the Court of Session in Scotland whereas the lower courts were subject to alteration in their powers by Parliament. . (f) Other statutes These include examples such as the European Community Act 1972. in that succession was tied to Protestant heirs and prohibited accession to the Throne by persons who are Roman Catholics or who marry Roman Catholics. To give legal effect to the Bill of Rights 1689 the Crown and Parliament Recognition Act 1689 was passed and the Meeting of Parliament Act 1694 provided that parliament must be summoned to meet at least once in three years.4. (e) The Treaty of Union 1706 This treaty united England and Scotland under a single Parliament of Great Britain. The Human Rights Act 1998 will have a great impact on certain human rights issues and on judicial role in statutory interpretation and precedent. ending the power of the Crown to dismiss judges at will. It also provided for security of tenure for the judiciary ‘during good behaviour’. This is what Lord Hailsham termed as the “elective dictatorship”. while the ECA 1972 was debated at length in Parliament. public bodies exercising public functions. There is no special procedure being prescribed for the repeal or amendment of legislation of constitutional importance. In this case it was decided by the court that a general warrant issued by a Home secretary for the entry into private property and seizure of alleged seditious material was contrary to law and amounted to trespass to property. a constitutional amendment had to be approved by referendum of the people. what is said in Parliament is not to be made the subject matter of court proceedings in defamation unless under the Defamation Act 1996 an individual Member waives this privilege. they must act intra vires. Wales and Northern Ireland not as a matter of constitutional requirement but rather due to political expediency. it was passed by the same procedure just as any other piece of legislation. (ii) At common law.(ii) The judiciary has no power to question the validity of an Act of Parliament. This is to ensure that organisations (Ministers. Furthermore.5 ARGUMENTS FOR THE CODIFICATION OF THE BRITISH CONSTITUTION (i) The Parliamentary sovereignty which is a result from the vacuum created by the absence of a written constitution results in arbitrariness as the Parliament cannot be questioned whatsoever. a Member of Parliament is free from any threat of the law of defamation by any person harmed by the exercise of free speech. 1. (iii) At the other end of the spectrum was the case of Liversidge v Anderson (1942). (iii) Referendums were held prior to the devolution of powers to Scotland. (iii) Under the concept of Parliamentary Privilege. In the Cabinet-style of government of the UK. cases like Entick v Carrington (1765) provide some protection. tribunals etc) act within the powers conferred on them by an Act of Parliament. In this case it was held by the House of Lords that the Home Secretary’s detention of an individual without warrant during times of emergency was non-reviewable by the courts provided the Home Secretary believed that the detention was justified. (ii) Before the Republic of Ireland joined the EC. delegated or secondary legislation may be subject to judicial review. In UK. Local Authorities. (though there was an arrangement that members of the ruling party could differ in the voting – the whip system was relaxed). However. in relation to the conduct of its business. In other words. Parliament claims many privileges and immunities. For example. Absent a writ . there is no doubt that there is a serious overlap of membership between the executive and the legislature and this allows the executive to almost always have its way with its legislative programme. (b) The State and the Individual (i) The Human Rights Act 1998 has a substantial impact on a citizen’s right in enforcing certain fundamental rights and freedoms under the European Convention on Human Rights. ” 15 May 2006. The present task of having to peruse through the jungle of legislations is no small feat for an ordinary citizen. (ix) A written constitution would make it an easier task to educate citizens as to their rights as we need only to point to a singular text. such “growing encroachment by the government on judicial independence is a warning that judges may need a written constitution to protect themselves from further political interference” (viii) Lord Alexander argues that whilst our rights ultimately may be enforced at the ECHR. (x) Despite the efforts of the Labour government. much still remains to be clarified. (vi) With the supremacy of Parliament. there are no legally enforceable constitutional limits which bind this “elective dictatorship”. 1.en constitution. Page5 (v) A written Constitution would serve as a check and balance mechanism over the potential arbitrariness by Parliament. many important rules which govern the government are not rules of law at all . Justice Sullivan supported a decision to allow Afghan hijackers to remain in the UK until it was safe for them to return home. only owe their existence to the continued acquiescence of those whom they bind.6 ARGUMENTS AGAINST THE CODIFICATION OF THE BRITISH CONSTITUTION (i) Some argue that there is no pressing need for a writ en constitution since the HRA is arguably a model form of a Bill of Rights.as conventions. He criticised the failure of successive Home Secretaries to allow them leave as “conspicuous unfairness amounting to an abuse of power”. The Human Rights Act 1998 only offers nominal protection of human rights and certainly not on the scale envisaged of a written constitution. do not draw their authority from the law. such as the stand on the use of royal prerogatives. . The Sun agreed.. Mr. “At last Tony Blair admits he needs to do something about the ludicrous Human Rights Act. the HRA 1998 is not immune to express repeal. (vii) According to Lord Woolf. the ECHR itself should be incorporated into a Bill of Right thereby preventing the need for costly and lengthy trial at Strasbourg which may prove beyond those who most need them. He wants the Government to overturn judges’ barmy rulings. In the High Court. like the Cabinet.. (iv) It is surprising to note that the some of the more important institutions. In turn. they are political by birth and remarkably. Tony Blair attacked the decision as “an abuse of common sense”. and the convention of ministerial responsibility in particular and the footing on which conventions stand in general. the monarchy. By and large. Japan’s pacifist constitution).g. albeit in scattered form. the British North America Act 1867. publication of consultation documents. say.(ii) Such an exercise would consume much time and money.capital punishment. Page6 (vii) William Hague once said “that there was no need for a written constitution as we already have internal stability and democratic accountability.” . As such. constitutional principles have been abided by. (vi) Notwithstanding 2 World Wars. and which we rightly expect parliament to resolve.. Britain has been stable and has had a responsible government. the South Africa Act 1909. and Britain has been well served by its unwritten constitution”. don’t fix it”. as the saying goes.” (iv)The historical reason for the absence of a written constitution is that Britain has never been the subject of alien rule since 1066. then millions of pounds would be needed. and consequent referendums. (viii) A written constitution would inevitably draw the judiciary into the political arena as judges would then have to decide on political issues. There has been an exponential growth of constitutional statute law since 1997. (iii) According to Rodney Brazier.these are issues which the US Supreme Court has resolved. This is no more clearly seen than in the case of the US judiciary.. Such constitutions are termed as “reactive” . abortion. This would compromise on their neutrality. (v)In Portugal.. notably its decisions on the issue of the separation of State and the Church. As can be seen from most Commonwealth countries a written constitution is the legacy of foreign rule (say the Malaysian Federal Constitution. a dictatorship or occupation. racial discrimination . the use of expert committees. (ix) Lord Falconer in his speech at the British Institute of International and Constitutional Law Seminar stated: “I do not believe that the public want issues which most of us would regard as political being resolved by the courts . add to the constitution. new constitutions have been adopted to mark the transition from dictatorship to democracy. involving the appointment of an independent body.now the Constitution Act 1867. If a Constitutional Commission were to be employed to do the detailed work on a possible draft. All these costs would not be justifiable if the end product is only to bring together whatever documents which are already on the books. in whole or in part. the UK “has been given rather more of a written constitution by the addition of sixteen Acts of Parliament which.meaning it is reacting against a certain past. “if it isn’t broken.and the Canada Act 1982) or the legacy of a successful revolution or even being “superimposed” upon a nation which has lost in a war (e. Spain and Greece. consulting widely.. g. conformity to the convention of ministerial responsibility no longer rests upon rigid and faithful practice but rather upon the meeting of 3 factors: a firm PM.2 Examples of Conventions 2. from the use of conventions whereby ancient ones can be discarded with ease and constitutional changes brought about “with the minimum of constitutional formality” (Hilaire Barnett). (xvi) The less-than-clear demarcation of powers within the political system has ultimately been proven to be a blessing.(x) Moreover. in part.. Should this convention be enshrined in a new constitution in more certain terms. The codification of the constitution would ‘freeze’ these rules and practices from sprouting as they are now in the most common of forms: conventions. (xii) A written constitution will necessarily be enveloped by a wide variety of customary rules and practices which would adjust the operation of the constitution to changing conditions. (xiii) As Foley said. why even bother codifying it in the first place? (xiv) It has been argued that the greatest virtue of the British Constitution is its flexibility. it appears conventions may also be obviated for less than worthy reasons. all constitutions leave important things ‘unsaid’. (xv) However. a compliant minister and a clamorous party. Page7 Chapter2: CONSTITUTIONALCONVENTIONS CONTENTS: 2.1 What Are Conventions? 2.4 Purposes of Conventions . as Prof Finer pointed out. It would be undemocratic for unelected judges who are not accountable to the electorate at the ballot box to be able to overturn the decision of democratically elected representatives of the people. its offenders would certainly no longer be able to escape with impunity. judges would undoubtedly have to act as unelected legislators. A written constitution would have to be couched in broad terms and subject to the courts’ interpretation. For e. These rules and practices are more often than not more easily changed than the constitution itself and this quality of theirs renders formal amendment of the constitution unnecessary while at the same time bringing it up-to-date. (xi) This would be an affront to democracy. If this is so.3 The binding nature of conventions 2. allowing for the powers of the Monarchy and the House of Lords to be diminished over time. in the process of doing so. Such flexibility results. 10 The May 2010 general Elections and the interim period – was there breach of a convention? 2... . conduct of several members of the sovereign power. though they may regulate the. Another related convention here is that the Prime Minister should be a member of the House of Commons.1 WHAT ARE CONVENTIONS? (i) They are rules of practice applicable to the 3 organs of the State. habits or practices which. they keep in touch with the growth of ideas. They are based on consent or acquiescence of those whom they bind and not on any legal basis. (iii) Conventions are defined by A V Dicey as “. the Queen must assent to such Bills unless advised to the contrary by her government. By convention.or by the presiding of officers in the Houses of Parliament.8 The courts and conventions 2.6 Effect of Breaching a Convention 2.” (ii) In essence it has been stated that constitutional conventions form the most significant class of nonlegal constitutional rules.. The Queen has the legal right to refuse to give the Royal assent to Bills passed by the House of Commons and Lords. Commons and Lords.7 Differences between Conventions and Laws 2. are not in reality laws at all since they are not enforced by the courts. (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...2. they make the legal constitution work.” Page8 2.understandings..2 EXAMPLES OF CONVENTIONS (i) Acts of Parliament are technically enacted by the Queen in Parliament – the Crown.. According to Sir Ivor Jennings in The Law and the Constitution: “Constitutional conventions provide the flesh which clothe the dry bones of the law.” (iv)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.9 Should We Codify Conventions? 2..5 Who is bound by conventions? 2. then they impose an obligation. Further. (Ministerial Responsibility) (vi) Ministers must be members of either the House of Commons or the House of Lords.(iii) The government must maintain the confidence of the House of Commons. can the Sovereign not dissolve Parliament even though the PM requests this after having lost the confidence of the Commons. (v) Ministers of the Crown are individually and collectively responsible to Parliament. there may still exist doubts. (superceded by the Parliamentary Act of 1911) (xiii) Civil servants must be politically neutral. on those who are regulated by the rule. (vii) In cases of conflict between the House of Commons and the House of Lords. the latter House should ultimately defer to the will of the elected House of Commons. than that failure will give rise to legitimate criticism. Note: Even in the case of a written constitution. A recent stark reminder is the constitutional crisis in Perak. as tendered through the PM. (viii) Parliament must be summoned to meet at least once a year. members of Parliament shall not criticise the judiciary. (iv) The Sovereign should dissolve Parliament only on the PM’s request. 2. The decision of the Federal Court stated that the appointment was valid. The central issue being: Could the Sultan of Perak refuse to a request for dissolution of the State Assembly by the former Menteri Besar and unilaterally decide (on the basis of support of three independent candidates for the Barisan members of the State Assembly) the change of government in Perak and the ensuing appointment of a new Menteri Besar and State Exco. (xii) Finance Bills must originate from the Lower House. though not legal. (ix) Judges shall not play an active part in political life. (x) The opinion of the law officers of the Crown is confidential.3 THE BINDING NATURE OF CONVENTIONS (i) If conventions are rules prescribing conduct. as in convention (iii) above and invokes convention (ii) calling upon the new leader to show evidence of his support in the Commons. In the event the PM refuses to suggest dissolution of Parliament after losing majority support could the Sovereign unilaterally invoke convention (ii) or (iii) above? Alternatively. (xi) The Sovereign should act on the advice of her ministers. If a ‘vote of confidence’ on a matter central to government policy is lost. . Thus if a person is under an obligation which is recognised by observers of the constitution and that person fails to act in accordance with the obligation. the government must resign or advise the Queen to dissolve Parliament. A practice on the other hand. Example: Some Asians drink tea in the afternoon. Thus the obligation to follow the standard of conduct is accepted by those whose conduct is regulated by the convention. (ii) AV Dicey: Conventions are rules for determining the mode in which the discretionary powers of the Crown ought to be exercised and these are intended to secure the ultimate supremacy of the electorate as the true political sovereign of the State. the conduct of deviating from accepted conduct would be said to be ‘unconstitutional’ rather than illegal. (iii) O’Hood Phillips: “Conventions are a means of bringing about constitutional developments without formal changes to the law. A legal rule is identifiable and certain will normally be found in an Act of Parliament or a judicial decision.. (iii) It is not totally accurate to state that conventions are habits or practices as failure to follow habit does not attract the type of criticism which arises from the breach of conventions. in order to reinforce . Page9 2. (v) A legal rule will normally have a settled meaning as it may have been subject to statutory interpretation earlier.. it is a convention under doctrine of collective responsibility of Ministers to Parliament that all members of Cabinet speak in public with a united voice and furthermore. non-legal rules regulating the way in which legal rules shall be applied”. Would not drinking tea attract any criticism? Understandings impose a weak moral obligation only and failure to comply would not attract the type of criticism that a breach of convention would.” 2. The meaning of a non-legal rule may change with times. a convention is a non-legal rule which imposes an obligation on those bound by the convention. to change it. does not acquire the binding characteristic of a rule. 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’. though requiring a justification for departure. Conventions are less certain in their origins. Drinking tea would be the habit. (vi) In summary. (iv) Conventions also differ from legal rules.(ii) Thus putting this jargon into simple terms. In this respect conventions are more flexible. The change of a legal rule needs a legal process such as overruling or legislation amending or revoking it.4 PURPOSES OF CONVENTIONS (i) According to Marshall and Moodie: The purpose of having conventions is “to define the use of constitutional discretion .5 WHO IS BOUND BY CONVENTIONS? (i) For example. public confidence in government. cabinet members may not disclose the contents of Cabinet discussions. Page10 2.Thatcher’s government (1979-1989). the government introduced the Parliament Bill 1911 which eventually became the Parliamentary Act 1911. it is evident that when a breach of a convention is deemed sufficiently serious. is unlawful. if Parliament. It was decided that the matter be put to the electorate in a referendum. it is essential that there be a full and frank disclosure between its members and – in order that consensus appears to exist – that decisions are collectively reached. the convention of collective ministerial responsibility was breached. (iii) In 1975. The convention that in financial matters the will of the House of Commons shall prevail over the House of Lords was broken in 1908 when the House of Lords rejected the Finance Bill of the Commons. did not meet annually.6 EFFECT OF BREACHING A CONVENTION (i) A V Dicey argued that a breach of a convention may lead to a breach of law. The second was that the Prime Minister took advice on financial and economic policy from an economist who was neither a member of Cabinet nor even a Member of Parliament. The effect of this practice was to reduce the power and influence of the Chancellor of the Exchequer. the consequence would be that money granted on an annual basis by Parliament for the maintenance of the armed forces would not be forthcoming. (iii) This doctrine was put under strain during Mrs. in breach of convention. Accordingly. The Labour Government was divided on the continued membership of the European Community. For example. even though they had not participated in the decision-making process. From this example. (ii) Sir Ivor Jennings opined that a breach of convention could result in political chaos. Nigel Lawson. She deviated slightly from the convention. 1. an ‘inner Cabinet’ whose decisions were under the convention of collective responsibility made binding on all other members. The first was that increasing use was made of decision-making by a small group of cabinet members. After a deadlock between the two Houses and a threat by the king to ‘flood’ the House of Lords with sufficient new peers to secure a majority for the Bill. 2. The effect of this was that a non-elected and democratically unaccountable individual was involved in decision-making with the Prime Minister and whose decision provided she could get the support of Cabinet-would bind all Ministers outside the Cabinet. without Parliament’s consent. Parliament may place the convention on a statutory basis. In fact in consequence of this he resigned. The cabinet itself was deeply divided on the issue and the Prime Minister decided to lift the convention of collective responsibility in order to . maintenance of the army would become unlawful as a result of Article 6 of the Bill of Rights 1689 which provides that the raising and keeping of an army in peacetime. (ii) For collective cabinet responsibility. (iv) However. If Parliament chose to do any of them.these are what he termed as “constitutional morality”. conventions may also be “waived” when the situation demands it. No adverse consequences arose there were criticisms that such a move was unconstitutional. “But that does not mean that it is beyond the power of Parliament to do these things. The convention was however set aside only for this purpose and remain effective for all other matters before Cabinet. It survives on and its existence simply does not rest upon general acquiescence. understandings. Consequences of a breach of convention rest upon the importance of the convention itself.7 DIFFERENCES BETWEEN CONVENTIONS AND LAWS (i) AV Dicey: “On one hand there are one set of rules which are in the strictest sense “laws” as they are enforceable by the courts. the convention was reinstated. it would be more difficult to promulgate laws compared to conventions as the latter has to go through certain definite processes (e. primary laws would have to go through the parliamentary process). For laws per se. (vi) As can be seen from the doctrine of ministerial responsibility.g.g. (v) Laws are legally enforceable and breaches of it entails in an illegality and sanction. Manuel V A-G). are in reality not laws as they are not legally enforceable . Acts of Parliament and case laws. On the other hand. habits or practices which though may regulate the conduct of the Executive. (v) Madzimbamuto V Lardner-Burke: It is said that it would be unconstitutional for the UK Parliament to act contrary to conventions.facilitate full and free public debate. when the PM from 1916-1918. As such. Upon resolution of the issue. sources of law are “identifiable and certain” e. for all purposes and intent. Courts may not enforce conventions but may accord them with recognition (A-G V Jonathan Cape. the courts could not hold the Act of Parliament invalid. there are a set of rules consisting of conventions. their scope lacks proper demarcation. This would not be true of a law however. The origins of conventions are by large vague and definitely historical. (iii) According to Hilaire Barnett. Llyod George dissolved Parliament without consulting and informing his colleagues in Cabinet and thus. then it simply vanishes. Conventions may be more easily adopted or dropped as no strict processes have to be abided by. breaching a convention. breach of it does not result in us questioning its validity.” 2. . (iv) Correspondingly. (ii) If conventions are not accepted by those to whom it purportedly binds. there was no consequence for him at all. is generally understood and practised and equally strong evidence that it is on occasion ignored. had no effect in limiting the power of the UK Parliament. The court however ruled that unless national security was involved. Accordingly. decided to proceed with the publication of the diaries he had kept while in government. a former Cabinet Minister. may never be revealed other than under conditions specified by law or on the authority of the Cabinet Secretary... as a matter of law. an eight to ten year embargo was the maximum period that such material would be protected. (ii) In AG v Jonathan Cape Ltd (1976).Page11 2. but that convention could not be enforced by a court of law. the courts have no jurisdiction to adjudicate upon conventions as they are non-legal rules. The court recognised the convention but could not enforce it. (b) that the public interest required that the publication be restrained. the executors of the late Richard Crossman. give recognition to a convention when deciding a case. under the doctrine of collective ministerial responsibility. confidential and that The Diaries accordingly represented a breach of confidentiality.. the constitution of Canada could be changed without the consent of the Provinces and whether this consent was required as a matter of convention. although important as a convention. . (iii) Other examples where courts have recognised conventions but have not gone on to enforce it: Reference re Amendment of the Constitution of Canada (1982).. by convention. Lord Widgery CJ evaluated the doctrine of collective responsibility finding that there was “.overwhelming evidence that the doctrine. The majority of the Supreme Court ruled that the consent of the Provinces was not required by law and also that consent was required by convention. the injunction was refused. The government sought an injunction to restrain publication on the basis that Cabinet meetings are.8 THE COURTS AND CONVENTIONS (i) Generally. in Madzimbamuto v Lardner – Burke (1969) the Privy Council held that the convention under which the UK Parliament did not legislate for South Rhodesia without the consent of the government of the colony. In reaching judgement. The court may however. The Diaries included records of Cabinet discussions which. (iv) Similarly. The principal question before the Supreme Court of Canada was whether.” He stated that for the AG to succeed three matters had to be established: (a) that such publication would be in breach of convention. and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied in. (vi) For citizens.9 SHOULD WE CODIFY CONVENTIONS? 2. This begs the question: if we are not even sure that it exists.9. ii. Firstly. that is.” (Bradley and Ewing) (v) Codification would provide greater insight into conventions and thereby act as some check on the power of the government. it is difficult or even disadvantageous to define a number of important conventions. demonstrations and protests.g. anomalous.2.1 Arguments for (i) As Hilaire Barnett pointed out. For a member of the executive. It has however been recognized in Carltona v Commissioner of Works and ex p Notts CC that such accountability to Parliament may not be an effective remedy to the individual. how much more ‘open’ will be the texture of non-legal rules where there is no definite procedure for resolving disputes about existence and content. uncertain in application and unenforceable by the courts is. As Hilaire Barnett puts it. There may be situations in the future where some conventions ought. how are we to enforce it? (iii) For example.2 Arguments against i. when Lord Irvine was the LC. Informal modifications keep the constitution in touch with contemporary political thinking.” (ii) Codification would add clarity to the qualities possessed by conventions. iii. a letter to the press. a threat to the principle of government according to law. This is because some conventions are vague e. to keep the convention up to date. they would be given the force of law thereby securing their effective enforcement unlike the haphazard present. Page12 2. but when Lord Falconer was appointed to the office. and at a worst.a complaint to the MP. Codification would inhibit this and stultify one of the purposes of conventions. Ministerial Responsibility and the working of the Cabinet system. By crystallizing them as statutory force. their only recourse would be political action . conventions do not “go out with a bang” but instead “adapt in amoeba-like fashion to meet constitutional needs of the time”. he declared that he would not do so. There may be reasons for not codifying a convention.9. he may take up the issue in Parliament. he insisted on his right to sit as a judge. Codification will import an element of certainty at the expense of flexibility. in the public interest be waived and some varied. “for rules of such importance to be ill-defined. (iv) “If many legal rules have an ‘open texture’. Codification would make this difficult as an Act of Parliament would have to be . at best. unlike laws. this quality of conventions would ensure that the most important aspects of the UK constitution are kept abreast with times at no cost to Westminster’s legislative agenda. It ought to be noted that in a written constitution. Codification would drag the judiciary into the political arena as it would require them to adjudicate on matters which are essentially political. Page13 2.g. with little fuss and thereby keeping the law up-to-date. this means that they are adept at meeting changing circumstances with speed. so would the concept of separation of powers. Their unwritten nature cloaks them with flexibility. ix. the convention that ‘lay Peers’ cannot sit in the Lords when it sits as a Judicial Chamber was always complied with. In May 2006. vii. Not only would their impartiality be compromised. For example. E. iv. The number of seats each party has a after all 650 had been declared were as follows: Conservatives 307 Labour 258 Liberal Democrats Others 28 57 . enabling new conventions to be adopted. a joint committee of both Houses was appointed “to consider the practicality of codifying the key conventions in the relationship between the two Houses of Parliament which affect the consideration of legislation”. v. the constitution may not cover all aspects and indeed it may be quite accurate to say that there may still exist conventions which lubricate and enhance the efficacy of the written constitution. They allow for the exercise of discretion where circumstances call for it.WAS THERE BREACH OF A CONVENTION? (i) UK had its general elections in May 2010. viii.passed every time to change a convention and would take up unnecessary Parliamentary time and expense. waiver of the doctrine of collective ministerial responsibility. as well as antiquated ones to be discarded. This would be lost with codification. something written law cannot boast of. vi. Given that parliamentary time is at a premium. In turn.10 THE MAY 2010 GENERAL ELECTIONS AND THE INTERIM PERIOD . So long as conventions are regularly observed there would be no sound or apparent reason for codifying them. In essence. 10 Downing Street. he could convince the Liberal Democrats to team up with him to garner a total of 315 parliamentary seats though this fell short of the 326 seats needed for a majority government. paving the way for another general election. 10 Downing Street. (iv) If such were the case. he stated that he was willing to talk to Nick Clegg after he had his negotiations with David Cameron of the Conservatives.2 Has the 1st Postulate Been Observed? . who had the legitimate right to form the government? The minority Conservative or Labour. (totaling 364 seats). he would have to also get the support of some of the minority parties to touch that figure. how long could Gordon Brown remain in No. there would be immediate legislation for proportional representation. In fact during the press conference outside No. Some constitutional experts and lawyers stated that it would be a serous breach of convention and unconstitutional for Gordon Brown to remain as Prime Minister – his duty was to resign so that David Cameron could seek an audience with the Queen. UK faced a hung Parliament. This would have been a very precarious position if the Conservatives teamed up with the other minority parties and passed a vote of no-confidence. Page15 Chapter3: THE RULE OF LAW CONTENTS: 3. Thus Gordon Brown sought and audience with the Queen and tendered his resignation and David Cameron was sworn in as the next Prime Minister of UK. 10 Downing Street as sitting Prime Minister. Nick Clegg obtained his party’s sanction for adoption of the proposals and this facilitated the ‘lose coalition’ between Conservatives and the Liberal Democrats. (vi) Nevertheless. In such instance. (iii) Gordon Brown was somewhat optimistic that if talks between the Liberal Democrats and Conservations (on the possibility of a loose coalition) failed. In fact to lure the Liberal Democrats to his side he suggested that if they teamed up. Otherwise.1 Introduction 3. he would have to contend with a minority ‘loose coalition’ government with the Liberal Democrats exceeding the Conservative figure (307) by only 5 seats. (ii) After the results were announced. (v) In the next few days that followed. this uncertainty was cleared after some of the negotiation proposals by the Conservatives were agreed upon by the Liberal Democrats and thereafter. there was an air of uncertainty in British politics – in the absence of a loose coalition between the Conservatives and Liberal democrats. Gordon Brown remained in office at No. the rule of law is one of the twin pillars of the British Constitution.5 The rule of law as a broad political doctrine 3. Dicey. Article 7 to interpret the Immigration Act 1971 to only have prospective effect..1 INTRODUCTION (i) According to A. (b) No man is above the law . The same had also been pronounced in Phillips v Eyre (1870). is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. Dicey stated: ‘a man may with us be punished for a breach of law. as an aid of construction.” (Thomas Fuller) (c) General principles of the constitution .V. the law is above you. Page16 3. Note: “Be you ever so high.3.. of prerogative. or even of wide discretionary authority on the part of the government. but he can be punished for nothing else. and excludes the existence of arbitrariness.4 Has the 3rd Postulate Been Observed? 3. .6.3 Has the 2nd Postulate Been Observed? 3. ‘The Rule of Law’ Text according to Lord Bingham *extract from the speech of Lord Bingham in the House of Lords on 16 November 2011) 3. (ii) There lie at least 3 distinct conceptions of Dicey: (a) That no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.2 HAS THE 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.whatever be his rank or condition.’ (ii) There exists a presumption of statutory interpretation that Parliament does not intend to legislate with retrospective effect: Waddington v Miah [1974] where the HOL using. are with us as a result of judicial decisions determining the rights of private persons in particular cases brought before the courts. alongside with the notion of Parliamentary sovereignty.” Note: This reveals Dicey’s belief that the common law affords greater protection to the citizens than a written constitution. Note: Art 7 ECHR prohibits the imposition of retrospective criminal liability into English law by the HRA 1998. (iii) Discretionary authority in most spheres of government is inevitable. In practice it is not so much on attacking the existence of discretionary powers as on establishing a system of legal and political safeguards by which the exercise of such powers may be controlled. Following the case of GCHQ, it can be said that the courts will no longer hesitate to inquire into the invocation of the powers of royal prerogative though matters relating to national security are non justiciable. (iv) Public authorities and officials must be subject to effective sanctions if they depart from the law. Often the sanction is that their acts are declared invalid by the courts. Another sanction is the duty to compensate citizens whose rights have been infringed. (v) The 1st postulate is aimed at curbing “exercise by persons in authority of wide, arbitrary or discretionary powers of constraints” (Dicey). Yet, his other pillar of the British Constitution that of Parliamentary Supremacy may contradict this. Dicey sought to explain this by stating that the will of Parliament can only be expressed through an Act of Parliament after formal passage through Parliament. (vi) Supremacy of the law necessitates Parliamentary supremacy. The government, even when armed with the widest statutory powers, is always under the supervision, so to speak, of the courts. Rather than challenge such powers, courts nowadays focus on control of such arbitrary powers. (vii) Flaunting the doctrine of Parliamentary supremacy, executives with a secured Parliamentary supremacy have reversed inconvenient court decisions by way of retrospective legislations (War Damage Act 1965) - Burmah Oil Company v Lord Advocate [1965]; Northern Ireland Act 1972; National Health Service (Invalid Direction) Act - Lambeth BC v Secretary of State. (viii) In Malone v MPC [1979], it was held that there was no common law or 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. (ix) 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 violation of Arts 8 and 13: PG and JH v UK [2001]. ECtHR, Covert surveillance is now regulated by statute. (x) The ECtHR in ADT v UK [2000] held that a conviction for gross indecency under the Sexual Offences Act 1956 constituted an unnecessary interference with the right to respect for private life. Following a search of his premises, police had seized photos and videos of the applicant and other consenting men engaging in oral sex and mutual masturbation. The acts took place in the applicant’s home and did not involve physical harm. There was no evidence the tapes were available for wider distribution: (xi) A policy that prisoners must be absent when privileged legal correspondence held in their cells was examined by prison officers was unlawful. The House of Lords reached this conclusion by, applying the common law but it was supported by the Art 8 (1) right to respect for correspondence: R v SS - for the Home Dept Ex p. Daly [2001] UKHL 26. (xii) 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. (xiii) Following S89 of the Terrorism Act 2000, any member of the armed forces or a constable may stop any person “so long as it is necessary in order to question him” for the purpose of ascertaining that person’s identity and movements, and what he or she knows about a “recent explosion or incident”. As Bradley and Ewing noted, none of the safeguards laid down in the Police and Criminal Evidence Act 1984 appears to apply here. The retention of this measure after the commencement of the Human Rights Act is therefore surprising” (Bradley and Ewing). Page17 (xiv) 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 ensuingly deported. Where deportation is not possible, say where it is to a country where they might be subjected to torture or inhumane treatment contrary to Art 3, they could be detained without trial, i.e. interned. (xv) 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 disproportionate and discriminatory. A declaration was thus made to declare such measures incompatible with Arts 5 and 14 of the ECHR. (xvi) 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 judge. Although due to expire on 10 March 2006, it has been kept in force for another by secondary legislation introduced by the Home Secretary. (xvii) The Court of Appeal has ruled that Control Orders imposed under the Prevention of Terrorism Act 2005 are unlawful: Secretary of State for the Home Department v JJ [2003] The orders, which place restrictions on terrorist suspects just short of house arrest, are a violation of Article 5. There is no violation of Article 6, however, in that the court had jurisdiction under Section 3 of the Prevention of Terrorism Act 2005 to consider whether any 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 (24)). (xviii) Perhaps the most controversial provision of the new Terrorism Act 2006 would be section 23 amending Schedule 8 of the Terrorism Act 2000 authorising the detention of terrorist suspects for up to 28 days without charge, although this is already a watered down version of the initially proposed 90 days. 3.3 HAS THE 2ND POSTULATE BEEN OBSERVED? (i) The second postulate is equality before the law, or the equal subject on of all classes to the ordinary law of the Iand: administered by the ordinary law courts. In Dicey’s view, this implied that no one was above the law; (ii) The Bill of Rights 1689 affirmed that the monarchy was subject to law thereby forcing the Crown to govern through Parliament and not by way of Proclamations as before. Entick v Carrington established the right of individuals to be free of unlawful interference in their private affairs. The State could not claim search powers unless granted by the law. (iii) 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) 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 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 powers of royal prerogative to defeat a right granted under an Act of Parliament. In Laker Airways v Department of Trade [1977], it was held that the use of the prerogative powers of treaty-making could not be used to defeat a right granted under an Act of Parliament. (v) In Britain, government departments became liable to be sued for their wrongful acts under the Crown Proceedings Act 1947. That Act preserved the personal immunity of the Sovereign, an immunity which in other legal systems is enjoyed by the head of state. (vi) As 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, diplomats and MPs. (vii) Police have powers over and above citizens. 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 which involves matters of policy which was deemed to be best determined by the Executive itself. (e.g. national security). (viii) What can be said is that whilst all are subjected to the same courts, there are some who enjoys certain “advantages” in such legal proceedings in the form of “immunities” or “special powers” exercisable by them at law. Page18 3.4 HAS THE 3RD POSTULATE BEEN OBSERVED? (i) According to the third postulate the rights of the individual were secured not by guarantees set down in a formal document but by the ordinary remedies of private law available against those who unlawfully interfered with his or her liberty, whether they were private citizens or officials. (ii) Dicey’s third meaning of the rule of law expressed a strong preference for the principles of common law declared by the judges as the basis of the citizen’s rights and liberties. Dicey had in mind the fundamental political freedoms - freedom of the person, freedom of speech, freedom of association. The citizen whose freedoms were infringed could seek a remedy in the courts and did not need to rely on constitutional guarantees. Dicey believed that the common law gave better protection to the citizen than a written constitution. (iii) Today it is not possible to share Dicey’s faith in the common law as the primary legal means of protecting the citizen’s liberties against the state. First, fundamental liberties at common law may be eroded by Parliament and thus acquire a residual character (namely, what remains after all statutory restrictions have taken effect). Second, the common law does not assure the economic or social wellbeing of individuals or communities. Third, the belief that there is much value in a formal declaration of the individual’s basic rights is widely accepted, and this has led to the Human Rights Act 1998 and the creation of new procedures for protecting those rights. (iv) The doctrine of government according to law stresses the importance of legal authority and form for the acts of government. In a system in which Parliament is supreme and in which the Cabinet is supported by a majority in the Commons, executive decisions may readily be clothed with legality. In the absence of constitutional guarantees for individual rights, the need for legal authority does not protect these rights from legislative invasion. A detainee’s right to come to a court for a ruling on the legality of his or her detention is of little value if the government has taken care to obtain the requisite power to detain from a compliant legislature. (v) There have been numerous examples of the courts upholding individual rights. The more notable examples include Entick and Congreve v Home Office. Dicey in his book considered in great detail the right to personal freedom, the right to freedom of discussion and the right of public meeting. (vi) The procedure by which individual liberty was protected was that of habeas corpus, a common law writ which had been rendered more effective than statute. (vii) Whilst slavery was abolished in the USA only after a Civil War, it only took a court case in England Somerset v Steuart (1777); see also R (L and Another) v Secretary of State for the Home Department. (viii) The HRA 1998 equips judges with greater powers to scrutinize the executive’s acts. In the context of the war against terror, the UK courts have held that indefinite detention without trial under the Anti Terrorism, Crime and Security Act 2001 was held to be breach the ECHR (A v Home Secretary). In A v Home Secretary (No 2) [2005] the Law Lords held that evidence that might have been obtained by means of torture committed abroad by foreign agents is inadmissible in special immigration proceedings. notably matters of national security.(ix) According to TRS Allan. the Equality Act and the Gender Equality Act as well delegated legislation under ECA 1972 due to Section 2(4) ECA 1972. leaving it to the Parliament to correct the situation. the courts may not rule an Act of Parliament to be invalid. the HRA. represents evidence of this. What the court may do is only to lean in favour of upholding individual rights in the absence of clear statutory language to the contrary. The cases of D v NSPCC. The courts are toothless to adjudge on the validity of an Act. Ridge v Baldwin. (xii) The case of GCHQ demonstrates that the courts refrain from reviewing on matters of high policy or “non-justiciable” matters. What it may merely do is to issue a declaration of incompatibility. such as with the Equal Pay Act. Parliament may yet legislate contrary to fundamental principles of human rights. Race Relations Act. Page19 (x) 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. (xiii) 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. Sex Discrimination Act. The court cannot “fill the gaps left by legislation” (compare Lord Denning MR’s view in Magor and St Mellons RDC v Newport Corp *1965]. (xiv) That Parliament has became the determinant of rights and freedoms is beyond doubt. Anisminic and recently R v A. it is for the judges to restrict the meaning of the statute so far as possible as to ensure that it does not unduly infringe upon individual liberty. Is the rule of law then in this broad sense too subjective and uncertain to be of any value? Would discussion of new legislation be clearer if the rule of law were excluded from the vocabulary of debate? . The rule of law is “in the keeping of the courts” for in interpreting statutes. and more recently. (xi) Ultimately. (compare Lord Hope vis-a-vis Lord Steyn’s views in R v A). the court’s protection may have to bow down to Parliament’s supremacy: the retrospective War Damages Act.5 THE RULE OF LAW AS A BROAD POLITICAL DOCTRINE (i) Sometimes the political parties may disagree as to what legislation should contain to protect the rights of those persons who are primarily affected. the freedom of the humblest citizen shall prevail. Even under the HRA. The only impediment in the way of Parliament doing so would be the political costs it would incur in the process. See however the interpretation of Section 3 of HRA by Lord Steyn in R v A [2001] HL where legislation may be given a strained meaning to comply with HRA. 3. he states that the third postulate is none other than the principle of statutory interpretation. head of house.gives the lecturer a broad range of subject matter from which to choose. the Attorney-General has suggested. and litigants should receive a fair hearing. Thus. which is further reflected in the oath to be taken by Lord Chancellors under Section 17(1) of the Act. university leader. The nature of these values can be discovered from judicial decisions and from a growing body of articles and lectures by judges.my best hope must be that Sir David will himself be provoked into giving us. as would heavy reliance on retrospective legislation or on legislation imposing criminal sanctions for conduct which is not defined but may be deemed undesirable by an official. But they have not explained what they meant by the expression. or the Lord Chancellor’s existing constitutional role in relation to it. without straying into fields Sir David has not adorned. illustrates the importance attached to the rule of law in the modern age.6 ‘THE RULE OF LAW’ TEXT ACCORDING TO LORD BINGHAM *EXTRACT FROM THE SPEECH OF LORD BINGHAM IN THE HOUSE OF LORDS ON 16 NOVEMBER 2011) It is an immense honour and privilege to give the Sixth Sir David Williams Lecture. public servant and loyal son of Wales . and well-respected authors have thrown doubt on its meaning and value. It is also a formidable challenge. who argued that the enactment of secret laws would be contrary to the essential nature of a legal system. In choosing to address the Rule of Law .a big subject for a lecture .as legal scholar. The meaning of this existing constitutional principle may no doubt have been thought to be too clear and well-understood to call for statutory definition. (iii) Joseph Raz argues that the term ‘rule of law’ should be limited to formal values associated with the legal system. This provision. John Finnis has described the rule of law as “*t+he name commonly given to . open. since Sir David’s scholarly reputation is so high as to discourage comparison. certain and capable of guiding human conduct. that the Act does not adversely affect “the existing constitutional principle of the rule of law” or “the Lord Chancellor’s existing constitutional role in relation to that principle”. judges should be independent and the courts accessible. to respect the rule of law and defend the independence of the judiciary. But the Act does not define the existing constitutional principle of the rule of law. his considered reflections on the subject. Page20 3. The Constitutional Reform Act 2005 provides. But the great range of his achievement . Thus Joseph Raz has commented on the tendency to use the rule of law as a shorthand description of the positive aspects of any given political system. and it is true that the rule of law has been routinely invoked by judges in their judgments. Today these values include those inherent in the European Convention on Human Rights. in Section 1.(ii) One attempt to ascertain the values inherent in the system of law was made by Lon Fuller. laws should be prospective. He called this the ‘inner morality of law’. at greater length. (iv) Among British judges there is an important vein of belief in the values to be upheld in a legal system. and preferred to leave the task of definition to the courts if and when occasion arose. but have contrasting convictions about what it is”. had attracted considerable controversy over the years which had elapsed since then. commenting on Bush v Gore in which the rule of law was invoked on both sides. that all persons and authorities within the state. should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts. in principle. There are. recognising of course . No intellectual effort need therefore be wasted on this bit of ruling-class chatter”. So it seems unlikely that the meaning of the existing constitutional principle was thought so clear as to obviate the need for definition. the more so since the meaning of the concept has to some extent evolved over time and is no doubt likely to continue to do so. even if accurate as one of general principle. are not free to dismiss the rule of law as meaningless verbiage. I doubt if anyone would suggest that this statement. I suggest. Page21 The core of the existing principle is. Jeremy Waldron. first propounded in 1885. But the statutory affirmation of the rule of law as an existing constitutional principle and of the Lord Chancellor’s existing role in relation to it does have an important consequence: that the judges. If so. They would be bound to construe a statute so that it did not infringe an existing constitutional principle. one has considerable sympathy with that view. today. for instance.as a serving judge necessarily must that any thoughts he proffers may wilt or die in the light of future adversarial argument in a concrete case. And the Lord Chancellor’s conduct in relation to that principle would no doubt be susceptible. So it is not perhaps premature to attempt to define what. to judicial review. It is perhaps more likely that the authors of the 2005 Act recognised the extreme difficulty of formulating a succinct and accurate definition suitable for inclusion in a statute. if it were reasonably possible to do so. Judith Shklar has suggested that the expression may have become meaningless thanks to ideological abuse and general over-use: “It may well have become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. is meant by the existing constitutional principle of the rule of law. The authors of the 2005 Act may or may not have known of these critical academic opinions. even if they were inclined to do so. the jurisprudential equivalent of motherhood and apple pie. But it seems to me that any derogation calls for close consideration and clear justification.the state of affairs in which a legal system is legally in good shape”. And . could be applied without exception or qualification. recognised a widespread impression that utterance of those magic words meant little more than “Hooray for our side!” Brian Tamanaha has described the rule of law as “an exceedingly elusive notion” giving rise to a “rampant divergence of understandings” and analogous to the notion of the Good in the sense that “everyone is for it. in their role as journeymen judgment-makers. But they can scarcely have been unaware that Dicey’s exposition of the rule of law. some proceedings in which justice can only be done if they are not in public. in this country. whether public or private. despite the internet. More ingenious minds could doubtless propound additional and better sub-rules.. particularly at the highest level. the consequences which a given action may entail. of course owing much to Dicey. raise problems of their own.to foresee. complexity and sometimes prolixity of modern common law judgments. A single lapidary judgment buttressed by four brief concurrences can give rise to continuing problems of interpretation which would have been at least reduced if the other members had summarised. for all its technical virtuosity. tyranny begins”. in 2003.I think that this formulation. a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able . clear and predictable. addressing the Society of Public Teachers of Law.” But I do not think the scope of the existing principle can be adequately understood without examining its implications. depends so heavily on cross-reference and incorporation as on occasion to baffle.in 2004. with reference to the lengthy opinions of the House in R (Jackson) v Attorney General. which may be conveniently broken down into a series of sub-rules. I agree with Lord Reid that the quality of single Privy Council judgments has on the whole been inferior from the point of view of developing the law to the more diverse opinions of the House. These problems could. so in free countries the law ought to be King. The accusing finger cannot however be fairly pointed at legislators alone: the length. For as in absolute governments the King is law. be mitigated if the House of Lords were to give a single opinion. “That in America THE LAW IS KING. for very much the reasons given by Lord Reid. And this is compounded by the British tradition of parliamentary draftsmanship which. the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case . and the answer when given should be sufficiently clear that a course of action can be based on it. There is English authority to this effect.. First. or economise with fewer. which I shall briefly discuss. I have identified eight such rules. but not. but not one which I would in general accept. and the European Court of Human Rights has also put the point very explicitly: “.if need be with appropriate advice . in 1971...” Obvious this point is. the law must be accessible and so far as possible intelligible. to a degree that is reasonable in the circumstances. some 3500 pages of primary legislation. There is regrettably little to startle in any of them. trivial. a solution advocated from time to time and raised with me by the late Lord Brightman. I think. even if that means taking advice (as it usually will). nearly 9000 pages of statutory instruments .the sheer volume of current legislation raises serious problems of accessibility. Given the legislative hyperactivity which appears to have become a permanent feature of our governance . recently echoed by Chief Justice Roberts of the United States in an address to the American College of Trial Lawyers. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is. expresses the fundamental truth propounded by John Locke in 1690 that “Where-ever law ends. at least in theory. This is a serious argument. however . very shortly before he died. and also that famously stated by Thomas Paine in 1776. and there ought to be no other. briefly, their reasons for agreeing. And a well-constituted committee of five or more can bring to bear a diversity of professional and jurisdictional experience which is valuable in shaping the law. But I would add three important caveats. First, whatever the diversity of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio. Without that, no one can know what the law is until Parliament or a later case lays down a clear rule. Secondly, and without challenging the value or legitimacy of judicial development of the law, the sub-rule under consideration does in my view preclude 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. Thus one can agree with Justice Heydon of the High Court of Australia that judicial activism, taken to extremes, can spell the death of the rule of law. But thirdly, and importantly, all these points apply with redoubled force in the criminal field. The torrent of criminal legislation in recent years has posed very real problems of assimilation. Not all of this legislation is readily intelligible. Whether derived from statute or judicial opinion the law must be stated in terms which a judge can without undue difficulty explain to a jury or an unqualified clerk to a bench of lay justices. And the judges may not develop the law to create new offences or widen existing offences so as to make punishable conduct of a type hitherto not subject to punishment, for that would infringe the fundamental principle that a person should not be criminally punishable for an act not proscribed as criminal when the act was done. Page22 My second sub-rule is that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. Most modern commentators would not share to the full Dicey’s hostility to the exercise of official discretions. In the immigration field, for example, judges have routinely and gratefully invited the Secretary of State to exercise his discretion to grant leave to enter or remain to applicants who do not meet the tests for entry laid down in the immigration rules but whose personal history or circumstances demand sympathetic consideration. But the essential truth of Dicey’s insight stands. The broader and more loosely-textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law. This sub-rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification. These are requirements which our law, in my opinion, almost always satisfies, because discretion imports a choice between two possible decisions and orders, and usually the scope for choice is very restricted. There can, first of all, be no discretion as to the facts on which a decision-maker, official or judicial, proceeds. An assessment of the facts may of course be necessary and will depend on the effect made by the evidence on the mind of the decision-maker. The assessment made may be correct or it may not, but if the evidence leads the decision-maker to one conclusion he has no discretion to reach another, any more than a historian has a discretion to conclude that King John did not execute Magna Carta at Runnymede in June 1215 when all the evidence shows that he did. Similarly, most so-called discretions depend on the making of a prior judgment which, once made, effectively determines the course to be followed, and leaves no room for choice. Even the least constrained of judicial discretions - that as to the award of costs - is governed by principles and practice. I take three examples, two judicial and one official. The grant of a civil injunction, it is always said, is discretionary. But if a clear violation of legal right is shown, and there is a clear risk of repetition injurious to the victim for which damages will not compensate, and there is no undertaking by the lawbreaker to desist, the trial judge ordinarily has no choice. His discretion can only, usually, be exercised one way. A second, very familiar, 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 the subsection does, I suggest, is to require an exercise of judgment, which may be difficult to make but which will determine the outcome: if the statutory condition is judged to be satisfied, the judge must refuse to allow the evidence to be given; if it is not, the subsection does not authorise the judge to exclude the evidence. For my third illustrative example I return to the immigration field. If an official were to grant leave to enter or remain to a person who did not meet the tests laid down in the immigration rules, but whose case presented no exceptional features whatever suggesting the need for special treatment, such decision would be incapable of rational justification and could not be defended as an exercise of discretion. There is in truth no such thing as an unfettered discretion, judicial or official, and that is what the rule of law requires. Page23 My third sub-rule is that the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. I doubt if this would strike a modern audience as doubtful. While 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, we would regard legislation directed to those with red hair (to adapt Warrington LJ’s long-lived example) as incompatible with the rule of law. Even more obviously incompatible 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. In much more recent times our law not only tolerated but imposed disabilities not rationally based on their religious beliefs on Roman Catholics, Dissenters and Jews, and disabilities not rationally connected with any aspect of their gender on women. It would be comforting to treat this sub-rule as of antiquarian interest only. But it would be unrealistic, as the treatment of non-nationals here and elsewhere reveals. 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, and differentiation relevant to it is unobjectionable and indeed inevitable. 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, Ex p Khawaja: “Habeas corpus protection is often expressed as limited to ‘British subjects’. Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic ‘no’ to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed ‘the black’ in Sommersett’s Case (1772) 20 St. Tr. 1. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed.” This message seems clear enough. But it did not deter Parliament from providing, in Part 4 of the Antiterrorism, Crime and Security Act 2001, for the indefinite detention without charge or trial of nonnationals suspected of international terrorism while exempting from that liability nationals who were judged qualitatively to present the same threat. The record of the United States in this respect is not better than our own, and arguably worse. As an American academic author has written, “Virtually every significant government security initiative implicating civil liberties - including penalizing speech, ethnic profiling, guilt by association, the use of administrative measures to avoid the safeguards of the criminal process, and preventive detention - has originated in a measure targeted at noncitizens.” There is, I think, profound truth in the observation of Justice Jackson in the Supreme Court of the United States in 1949: “I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.” Sixty years on we may say that this is not merely a salutary doctrine but a pillar of the rule of law itself. I turn to my fourth sub-rule, which is that the law must afford adequate protection of fundamental human rights. This would not 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 ... institute slavery without violating the rule of law.” Page24 On the other hand, as Geoffrey Marshall has pointed out, chapters V to XII of Dicey’s Introduction to the Law of the Constitution in which he discusses what would now be called civil liberties, appear within part II of the book entitled “The Rule of Law”, and, as Marshall observes, “the reader could be forgiven for thinking that Dicey intended them to form part of an account of what the rule of law meant for Englishmen.” The preamble to the Universal Declaration of Human Rights 1948 recites that “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by 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, therefore, I recognise the logical force of Professor Raz’s contention, I would not myself accept it. A state which savagely 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. So to hold would, I think, be to strip the existing constitutional principle affirmed by Section 1 of the 2005 Act of much of its virtue and infringe the fundamental compact which, as I shall suggest at the end, underpins the rule of law. But this is a difficult area, for I would agree with Professor Jowell that the rule of law. “does not, for example, address the full range of freedoms protected by bills of rights in other countries or in international instruments of human rights, or those now protected by our recently enacted Human Rights Act 1998, as set out in the European Convention on Human Rights (such as the right not to suffer torture, or the right to freedom of expression or rights of privacy or sexual freedom).” There is not, after all, a standard of human rights universally agreed even among civilised nations. We may regret the United States’ failure to ratify the UN Convention on the Rights of the Child 1989, which forbids the imposition of capital punishment for offences committed by persons under 18, and the Supreme Court’s decision upholding the imposition of capital punishment for a murder committed at the age of 161/2, but accession to any international convention is a matter of national choice, and then the question must be faced: how is the poor man or woman to be enabled to assert his or her rights at law? Assuming. all of which properly resorted to and fairly conducted. without prohibitive cost or inordinate delay. Perhaps they have. require legal protection of such human rights as. bona fide civil disputes which the parties themselves are unable to resolve. of course. since the outer edges of fundamental human rights are not clear-cut. But. should be self-financing: the cost of running the courts should be covered by fees recovered from litigants.different countries take different views on the morality as well as the efficacy of the death penalty. are seen as fundamental. the existence of a free and independent legal profession. imaginative and somewhat under-celebrated reform of the Attlee post-war government. an element of vagueness about the content of this sub-rule. Page25 For many years. Whether conditional fees. as some have. Lurking in the background is another point which. But I have a fear that tabloid tales of practitioners milking the criminal legal aid fund of millions. Although subject to well-known defects. It is open to a state to acknowledge. protected by our own domestic law. the obtaining of legal advice and representation is bound to have a cost. My fifth sub-rule is that means must be provided for resolving. however spurious and lacking merit. This is not a rule directed against arbitration and more informal means of dispute resolution. a bold. surely. that a penalty is cruel and unusual treatment or punishment within the meaning of its Constitution. and advice and help are still available to those of modest means who deserve it. The old gibe about the Ritz Hotel is one that cannot be ignored. But within a given state there will ordinarily be a measure of agreement on where the lines are to be drawn. There is. The rule of law must. the scheme did bring legal redress within reach of the less welloff. If that is accepted. and this led to its curtailment. as I would certainly wish to do. I would accept. must concern adherents of the rule of law. It would seem to be an obvious corollary of the principle that everyone is bound by and entitled to the benefit of the law that people should be able. What it does is to recognise the right of unimpeded access to a court as a basic right. Nor is it a rule requiring every claim or defence. in the last resort. judicial salaries usually aside. Successive British governments have insisted that the civil courts. have a supremely important contribution to make to the rule of law. and more general distrust of lawyers and their rewards. and in the last resort (subject in this country to statute) the courts are there to draw them. at a certain point. and nonetheless to assert that it is authorised by that Constitution as lawful. as we know. to go to court to have their rights and liabilities determined. and since legal services absorb much professional time they are inevitably expensive. the cost of the scheme rose exponentially. various pro bono schemes and small claims procedures have filled the gap left by this curtailment I do not myself know. to be guaranteed full access to the process of the law. may have enabled a valuable guarantee of social justice to wither unlamented. The judges for their part have accepted that those using the courts may generally be called on . this problem was addressed through the civil Legal Aid scheme established in 1948. within that society. and in my view comprised within the principle of the rule of law. since if ministers make what are understood to be public attacks on judges. accepted the full recovery principle. Some sections of the press. being driven like every other litigant by a belief in the rightness of its cause but also no doubt by a belief that the public interest is best served by its succeeding. This is not in my view an accurate analysis. When unsuccessful it is displeased. the government of the day. Even under our constitution the separation of powers is crucial in guaranteeing the integrity of the courts’ performance of this role. and the rule of law is not. the judges may be provoked to make similar criticisms of ministers. since governments understandably go to the very limit of what they believe to be their lawful powers to protect the public. That it should also be available without excessive delay is so obvious as to make any elaboration unnecessary. This convention appears to have worn a little thin in recent times. There are countries in the world where all judicial decisions find favour with the government. It is usually successful. I think. regarding the provision of courts as one of the essential functions of a liberal democratic state. decisions have been made of which neither country can be proud. But it is greater at times of perceived threats to national security.resort to the law being less universal than that to the doctor . The cautionary words of Justice William Brennan of the United States Supreme Court in 1987 remain pertinent: . 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. In the past the convention was that ministers. have spoken of open war between the government and the judiciary. since history suggests that in times of crisis governments have tended to overreact and the courts to prove somewhat ineffective watchdogs. duly made. and the duty of the judges to require that they go no further must be performed if the rule of law is to be observed. in good faith. For although the citizens of a democracy empower their representative institutions to make laws which. and it falls to the executive. It is indeed fundamental. as I think unfortunately. for the purpose for which the powers were conferred and without exceeding the limits of such powers. This is a fraught area. and exercising their right to appeal against it or.but have never. tension between the two. and in my view entirely proper. In our country and in the United States. however critical of a judicial decision. But there is an inevitable. bind all to whom they apply. The danger again is that the cost of obtaining redress may lead to its being denied to some at least of those who need it. in the last resort.to contribute specifically to the cost of the service . forebore from public disparagement of it. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably. with their gift for understatement. legislate to reverse it retrospectively. is very frequently involved in litigation. but not invariably so. through one entity or another. The rule of law plainly requires that legal redress should be an affordable commodity. in my view. This sub-rule reflects the well-established and familiar grounds of judicial review. regard as the core of the rule of law principle. The British Government. Such tension exists even in quiet times. with reason. to carry those laws into effect. well served by public dispute between two arms of the state. (I say “ordinarily” to acknowledge the survival of a shrinking body of unreviewable prerogative powers). nothing ordinarily authorises the executive to act otherwise than in strict accordance with those laws. My sixth sub-rule expresses what many would. The historic role of the courts has of course been to check excesses of executive power. but they are not places where one would wish to live. free of any extraneous influence or pressure. But it has proven unable to prevent itself from repeating the error when the next crisis came along. recall to prison or refusal of parole. since the prosecutor may be in possession of material which he is for public interest reasons unwilling or very reluctant to disclose to the defence.Page26 “There is considerably less to be proud about. however described. two of these principles in particular have raised questions. that decisions are made by adjudicators who. But as the law now stands. The general arguments in favour of open hearings are familiar. that a party accused should have an adequate opportunity to prepare his answer to what is said against him.. and that the innocence of a defendant charged with criminal conduct should be presumed until guilt is proved. precautionary detention. Questions have also arisen concerning statutory offences defined so as to place a reverse . and a good deal to be embarrassed about. This problem. open-minded. so far as humanly possible. the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. calls for the exercise of very careful judgment by the trial judge.” Application of this sub-rule to ordinary civil processes is largely unproblematic. unbiased by any personal interest or partisan allegiance of any kind. In the strictly criminal context. when it arises. are independent and impartial: independent in the sense that they are free to decide on the legal and factual merits of a case as they see it. that a person potentially subject to any liability or penalty should be adequately informed of what is said against him. I suggest. if helpful to the point where the defence would be significantly prejudiced by non-disclosure.” So to my seventh and penultimate sub-rule: that adjudicative procedures provided by the state should be fair.. What in such contexts does fairness ordinarily require? First and foremost. that where the interests of a party cannot be adequately protected without the benefit of professional help which the party cannot afford. The first concerns disclosure. once it is remembered that not all decisions are purely judicial. “the rule of law does not mean rule by lawyers. As the Chief Justice of Australia has pointed out. summed up on this side of the Atlantic by the dictum that justice must manifestly and undoubtedly be seen to be done and on the American side by the observation that “Democracies die behind closed doors. certain core principles have come to be accepted: that a matter should not be finally decided against any party until he has had an adequate opportunity to be heard. In addition. After each perceived security crisis ended. public assistance should so far as practicable be afforded.” There is more scope for difficulty where a person faces adverse consequences as a result of what he is thought or said to have done or not done. that the accuser should make adequate disclosure of material helpful to the other party or damaging to itself. when one reflects on the shabby treatment civil liberties have received in the United States during times of war and perceived threats to national security . the prosecutor must either disclose or abandon the prosecution. whether in the context of a formal criminal charge or in other contexts such as deportation. material need not be disclosed if in no way helpful to the defence. and impartial in the sense that they are. The rule of law would seem to require no less. There the matter rests. I think. That is contrary to international law. Any process which denies knowledge to a person effectively.. which has judged the departure to be necessary and attempted to limit its extent. Addressing a joint session of Congress in September 1990 after the Iraqi invasion of Kuwait.. “A world where the rule of law supplants the rule of the jungle. And we will. I do not think this proposition is contentious. even if not ideal. and they have been clearly identified and regulated by Parliament. echoed the same sentiment: “But America will always stand firm for the non-negotiable demands of human dignity: the rule of law. speaking of the international. A world where the strong respect the rights of the weak . I do not think these solutions. accused of what is relied on against him. Resort to a similar procedure by the Parole Board in the absence of any express statutory authority provoked a division of opinion in the House of Lords: a majority upheld the practice. even if innocent. It was not always so.A world in which nations recognize the shared responsibility for freedom and justice. and necessity knows no law. The wrong we thus commit we will endeavour to repair directly our military aim is achieved. must arouse acute disquiet. not the domestic. private property. may in practice be unable to discharge. limits on the power of the state. but may be so if the burden is one which a defendant. Our troops have occupied Luxembourg and perhaps are already on Belgian soil. the first President Bush said that a new world was emerging. free speech. the law which whether deriving from treaty or international custom and practice governs the conduct of nations. equal justice. These are not in themselves objectionable. America and the world must support the rule of law. a minority (which included myself) strongly dissented. But these categories reflect the undoubted danger of disclosing some kinds of highly sensitive information. More disturbing are the growing categories of case outside the strictly criminal sphere in which Parliament has provided that the full case against a person. share this belief. if not actually.” . Page27 My eighth and last sub-rule is that the existing principle of the rule of law requires compliance by the state with its obligations in international law. respect for women. infringe the rule of law. should not be disclosed to that person or to any legal representative authorised by that person to represent him. put before the adjudicator as a basis for decision. and thus denies him a fair opportunity to rebut it.” President George W Bush.” British statesmen today would. On the outbreak of war in 1914 the German Chancellor told the Reichstag: “Gentlemen. and religious tolerance. All would probably agree that this is difficult terrain. in his State of the Union Address of 29 January 2002. we are in a state of necessity.burden on the defendant. scene. the ultimate exercise of sovereign power. however. appears to have treated legal considerations as at best peripheral. seems to me to be quite different. In 2003..” I shall not for obvious reasons touch on the vexed question whether Britain’s involvement in the 2003 war on Iraq was in breach of international law and thus. the Lord Chancellor did not give a legal opinion on the lawfulness of war but the Attorney General made a brief public statement on the eve of war. both of law and of humanity. those who are to fight and perhaps die. not susceptible to direct questioning in the elected chamber. and although in 1956 as in 2003 it was the function of the Law Officers to tender legal advice to the Government. the prime minister specifically instructed that Sir Gerald Fitzmaurice. But a revealing comparison may be made between the procedures followed in 2003 and those followed at the time of the Suez invasion of 1956. the very distinguished Legal Adviser to the Foreign Office. contemporaneous. Secondly.. There seems to me to be room to question whether the ordinary rules of client privilege. he said: “We should not allow ourselves to become involved in legal quibbles about the rights of the Egyptian Government to nationalise what is technically an Egyptian company . The government’s position as a defendant would be greatly and unfairly weakened if this were not so. we are not going to allow our efforts to be strangled in a network of juridical niceties. But this is not an accepted view. “The lawyers are always against our doing anything. and some two years later his more detailed earlier opinion reached the public domain. And the case for full. in 1956 they were never formally consulted before the ultimatum to Egypt was delivered. appropriate enough in other circumstances.” At a later stage of the crisis. . involving the whole people. rather than the government. as the client.” So far as I know. First. who in turn relied on an ambiguous footnote in an article by Professor Waldock. should apply to a law officer’s opinion on the lawfulness of war: it is not unrealistic in my view to regard the public.Defending the British blockade of Germany. disclosure seems to me even stronger when the Attorney General is a peer. For God’s sake. An opinion on the lawfulness of war. the Government relied on the advice of the Lord Chancellor.” he said. who had strongly and consistently advised that the British action was unlawful. and the comparison does suggest that over that period the rule of law has indeed gained ground in this country and the law of the jungle lost it. should not be informed of developments: “Fitz is the last person I want consulted. so far as is known. prime minister in 1956. if this sub-rule is sound. known to be of doubtful legality. Waldock was never approached. Mr Asquith was not deterred by legal considerations: “In dealing with an opponent who has openly repudiated all the restraints. I see no reason why the ordinary rules of client professional privilege should not apply. Instead. on which. This is a political affair. of the rule of law. Echoing Asquith. keep them out of it. Sir Anthony Eden. If the government is sued for damages in negligence for (say) injuries caused by an army lorry or a mishap in a military hospital. no similar sentiments were ever expressed by Mr Blair. but with much less justification. and we know that in 2003 the Attorney General’s advice supported the proposed action. ” Sir Harry also wrote to the Prime Minister saying: “Reflection has convinced me that I was wrong to allow legalistic considerations to weigh so heavily with me. as we are sometimes seen. In 2003. on behalf of himself and the Solicitor General. this conclusion is reassuring to all of us who. Hon Lord Bingham of Cornhill KG. before the creation of Eve. or that lawyers advising the government of such a state at a senior level would publicly support action for which they could find no legal justification. save perhaps in extremis. with others. and accepts the constraints imposed by laws properly made because of the benefits which. House of Lords.” After a meeting the next day he wrote again. as you know. Writing to the Prime Minister on 7 November 1956. The fourth distinction is the most striking of all. Page29 Chapter4: SEPARATION OF POWERS . it does not appear that the service chiefs in 1956 called for any assurance that the invasion would be lawful. For it means that we are not. said “. But it seems to me that the rule of law does depend on an unspoken but fundamental bargain between the individual and the state. the Attorney General. they confer. Some have argued that it can. and surprisingly with memories of Nuremberg relatively fresh. The state for its part accepts that it may not do. I support and have supported the Government’s actions though I cannot do so on legal grounds. But despite this they supported the Government’s action. at home or abroad. If correct. mere custodians of a body of arid prescriptive rules but are. the governed and the governor. they did. [The Rt. agree with the statements made on behalf of the Government that we were legally entitled so to act. Although not formally consulted on the lawfulness of the proposed intervention in 1956. devote our professional lives to the service of the law. in any capacity. To do either would pay scant respect to the existing constitutional principle of the rule of law.” It would no doubt be naïve to suppose that even today major democratic states do not on occasion resort to legal casuistry to justify the use of force in doubtful circumstances. all that it has the power to do but only that which laws binding upon it authorise it to do. we cannot. 16th November 2006].. the government of such a state would embark on a course which it acknowledged to be blatantly unlawful.Page28 Thirdly.. the guardians of an all but sacred flame which animates and enlightens the society in which we live. But I do not think that. on balance. by which both sacrifice a measure of the freedom and power which they would otherwise enjoy. the Law Officers learned what was in the air and expressed the clear view that it could not be justified in law. Sir Reginald ManninghamBuller QC. Sir Harry Hylton-Foster QC: “Although I support what we have done and have said so publicly. as is well known. The individual living in society implicitly accepts that he or she cannot exercise the unbridled freedom enjoyed by Adam in the Garden of Eden. There has been much debate whether the rule of law can exist without democracy. CONTENTS: 4. . that ministers should not have legislative powers. The UK doctrine is one of check and balance.1 Meaning of separation of powers 4. Note: He did not mean for the legislature and the executive to exercise no influence over one another but rather only that neither should exercise the whole power of the other.2 IMPORTANCE OF THE DOCTRINE (i) Henderson saw the separation of powers (“SOP”) as “a necessary condition for the rule of law in modern society and therefore for democratic government itself. Bradley and Ewing noted that the doctrine may mean at least 3 different things: (a) that the same persons should not form part of more than one of the three organs of government.2 Importance of the Doctrine 4. (c) that one organ of government should not exercise the functions of another. that the executive should not interfere in judicial decisions.6 Reform 4. that ministers should not sit in Parliament .” (ii) According to Montesquieu: There would be “no liberty” if the same body of men exercised all the 3 powers of the legislature. 4. (b) that one organ of government should not control or interfere with the work of another. for example. for example.3 Executive and Judiciary 4. the judiciary and the executive.5 Judiciary and Legislature 4. (ii) According to Hilaire Barnett. for example.4 Legislature and Executive 4.1 MEANING OF SEPARATION OF POWERS (i) This doctrine is traceable to Aristotle and its clearest exposition could be found in Montesquieu’s ‘De L’Espirit des Lois’. that is composition should not be the same. the modern view of the doctrine is not that it prescribes for the 3 organs of the State working in isolation from each other but rather that their “primary functions” be allocated clearly with checks to ensure that no institution encroaches significantly upon the function of the other. 3 EXECUTIVE AND JUDICIARY 4. (iii) Bradley and Ewing: Although the law officers of the Crown (in particular the A-G) have duties of enforcing criminal law which are sometimes branded as “quasi-judicial”. Under the Constitutional Reform Act 2005. was formerly also head of the Judiciary and entitled to preside over the House of Lords in its role as the final court of appeal. albeit guided by judicial opinion. Page30 4. departmental committees and inquiries. 4. but in fact it is an independent court of law. in practice it has little significance. But he still retains a role over the selection of the members of the Judicial Appointments Commission. judicial functions are exercised by the judges. The Queen is the “fountain of justice”.2 SOP Being Observed .(iii) Perhaps the Queen is the greatest offender of this doctrine. who is a member of the Cabinet. the Profumo affair and the BSE chapter.3. At the same time. As the Queen in Parliament. (iii) In Easterbrook v UK. This has led to allegations that the government is using judges for its own ends as well as exposing judges to criticisms that they are being dragged into the political arena. the courts of law being her courts. but has lost the right to sit as a judge. Notable examples include the Arms for Iraq affair. she is part of the legislature. it must be emphasized that they do not sit to judge the case. it was held that the separation of power between the executive and the judiciary was breached when the Home Secretary. This departure from the separation of powers came to be seen as incompatible with independence of the judiciary. the Lord Chancellor remains a Cabinet minister with executive functions in connection with the system of justice. (ii) As Drewry noted. (ii) The Lord Chancellor. given her symbolic role. The Judicial Committee of the Privy Council is in form an executive organ. Yet. fixed the tariff for a prisoner sentenced to life imprisonment. A very recent example would be the Hutton Inquiry and Butler Inquiry. (b) On Function (i) Many disputes arising out of public services are resolved not in courts but rather by tribunals.1 Separation of Powers Not Being Observed (a) On Composition: (i) Whilst the courts are the Queen’s courts. she is the head of the executive.3. judges have often been called on by the government to preside over royal commissions. but because they do the work of adjudication required more efficiently than the courts. It is fundamental to administrative law that the judges who decide claims of judicial review brought by individuals should be wholly independent of the government departments and other public authorities whose decisions are challenged in this way. judicial independence of the judiciary is secured by law. Judicial review is concerned with the process by which executive decisions are made and not the merits of those decisions. Page31 4. irrespective of whether it is statutory or prerogative by nature. and by professional and public opinion. (b) On Influence and Control: (i) Bradley and Ewing: “Although judges are appointed by the executive. Within the EU.1 SP Not Being Observed In 1867.” (ii) They further defend public inquiries by the executive itself into acts of governmental departments as a decision-making process in which full account may be taken of departmental policy rather than judicial application of legal rules that such matters may remain subject to ministerial decision rather than judicial consideration.4 LEGISLATURE AND EXECUTIVE 4. (iii) The House of Lords reasserted in Gouriet v Union of Post Office Workers [1978] the demarcation between executive responsibility for enforcing criminal law and the judicial function. and denied that the civil courts had any executive authority in criminal law. it ruled that the courts would not rule on “non-justiciable” matters. (a) On Composition: . the court claimed the power to review the exercise of executive power.” (ii) One essential function of the judiciary is to protect the citizen against unlawful acts of government agencies and officials. In M v Home Office. which involve high policy that should be left to the hands of the executive. Baghot wrote that the “efficient secret” of the constitution lies in “the close union. (iii) Following the case of GCHQ. of the legislative and executive powers”. by constitutional custom.4. the Court of Justice must ensure that the acts of Community organs comply with the treaties on which the Community system is based. the House of Lords held that ministers and civil servants were subject to the contempt jurisdiction of the courts.(B) On Function (i) Bradley and Ewing defended the use of tribunals on the ground that they “exist not because they exercise a political discretion which it would be inappropriate to confer on the judges. Yet. the nearly complete fusion. executive practicing the powers of the legislature. There are no formal limits in Britain as to the power of Parliament to delegate legislative powers to the government. which it usually does. but it does not ensure that fully accountable government is achieved. (ii) Further. the government was forced to abandon it legislative plans to deregulate Sunday trading due to parliamentary pressure. (b) On Influence and Control: (i) The Commons ultimately controls the executive since the Commons can oust a government which has lost the ability to command a majority on an issue of confidence as it did to the Callaghan minority government of 1979. as long as the Government wields the confidence of the Commons. despite enjoying a strong parliamentary majority. In 1986. the PM must be a member of the Commons. the government won a vote on its Higher Education Bill by a majority of just 5 votes. the Select Committee on Procedure concluded that the balance of advantage between Parliament and Government is now weighted in favour of the Government for a proper working of our parliamentary democracy. it has a decisive say in the workings of the Commons. (c) On Functions: (i) “Delegated legislation . (ii) Hilare Barnett has however defended the use of delegated legislations as a “necessity given the heavy legislative programme and the modern complexity of legal regulation” provided parliamentary scrutiny is adequate and the courts are vigilant and effective. The existence of an assured majority in the Commons is not necessarily incompatible with there being MPs who are vigilant in scrutinising the work of the executive. According to Bagehot the connecting link (between executive and Parliament) is the Cabinet.(i) There is the strong convention that ministers also double up as members of either House of Parliament. (v) In 2003-2004 sessions. . Lord Hailsham famously termed this domination of the legislature by the executive as the “elective dictatorship”. (iv) The effects of such clear majority in the Commons are not confined to the passage of legislation but also in the role of Parliament in calling the government to account for its acts.” (iii) Blackstone thought that the total separation of the 2 might lead to the legislature dominating the executive. in spite of having a significant majority in the Commons. (iii) In 1978. (ii) Yet. as can be seen in ECA 1972. It is worth noting that the government’s legislative agenda does not succeed all the time. Shadowing this would be their responsibility to Parliament for their acts as ministers. by convention. generally ensures that the government would enjoy the support of 120 MPs. direction and command on the one hand. he will no longer wear the latter hat. most of the members of the Executive (e. (ii)European Communities Act 1972 provides an outstanding example of the control which the legislature may exercise over the Judiciary and vice versa: by S 3.5.5 JUDICIARY AND LEGISLATURE 4. As Amery wrote: Government and Parliament. as the Queen in Parliament. are still separate and independent entitles. 4.4. (ii) Section 2 House of Commons Disqualification Act 1976 allows no more than 95 ministers to sit and vote in the House of Commons. when considered with their loyal Parliamentary Private Secretaries. the civil service.2 SP Being Observed Bagehot’s critics have rejected the concept of fusion. arguing that the close relationship between executive and legislature does not negate the constitutional distinction between the two. This duty may require the courts to ‘disapply’ an Act of Parliament which clashes with rights in Community law.Page32 4. (b) On Influence and Control: (i) 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. she is a member of the legislature. Yet. Only ministers exercise a dual role as key figures in both Parliament and the executive. (iii)Furthermore. in spite of this the 95 ministers. and of critical discussion and examination on the other. Police officers and some civil servants are also restricted from taking part in political activities.” Under the Human Rights .1 SOP Not Being Observed (a) On Composition At the head of the judiciary is the Crown who represents the “fountain of justice” and all judicial acts are carried out in the name of the Crown. with the CRA 2005. however closely intertwined and harmonized. (a) On Composition: (i) Whilst the LC was previously both a politically appointed member of the Cabinet and the Speaker of the HOL. the courts are required to follow the case law of the European Court of Justice in dealing with matters of Community law and to take full account of the reception of Community law into the United Kingdom. fulfilling the two distinct functions of leadership. save for ministers.g. At the same time. the armed forces and the police) are disqualified from the Commons. Well-known examples include R v R[1990] . the judicial function of declaring and applying the law has a quasi-legislative effect. the government “will legislate further including. we have seen the withering of the long-standing convention that ministers do not criticize the judiciary or judicial decisions. The ability of the judges to create law by their decisions is narrower than the ability of Parliament to legislate. (iv) In 2005. albeit narrower than the ability of Parliament to legislate. However. In 2003. Tony Blair said that should legal obstacles arise in the future. there is much scope for judicial lawmaking in relation to individual liberties and the principles of public law. by reversing the rule that a married man cannot. It ought to be noted that had the labour Government done this (radically amend the HRA or even in the extreme case repeal it) it would have cost them great dissent from the voting franchise as it would have been tantamount to breach of the ‘social contract’ as it was part of Labour’s 1997 election manifesto to bring in the Human Rights Act if elected into power. Knuller v DPP [1973]. Note: He stepped down as PM without ever carrying this into effect. in the heat of the war on terror. Mr David Blunkett reacted angrily to the decision in R (Q) &Ors v Secretary of State for Home Department [2003]. in law. the PM. (iii) In recent years. (ii) The very doctrine of stare decisis bequeaths upon the court a quasi-legislative power. Decisions in these areas may be welcomed as bringing old law up to date (for example. and Shaw v DPP [1962]. The Parliament also has the sovereign power to regulate its composition and procedure.) (iv) An important instance of this occurred when in Conway v Rimmer [1968] the House of Lords held that the courts might overrule a minister’s claim on grounds of public interest immunity to withhold evidence in civil litigation. the superior courts may declare an Act of Parliament to be inconsistent with European Convention rights but may not refuse to apply it. Page33 (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. A v Secretary of State. . It is for the Parliament to determine the procedure by which an Act of Parliament should come into being.Act 1998. (iii) Because of the doctrine of precedent. rape his wife: R v R. if necessary. since Parliament may readily change established rules of law. amending the HRA in respect of the interpretation of the ECHR”. after noting that the each tightening of terrorism laws have met with “fierce opposition in the courts”. to the HOL’s legislative business.2 SOP Being Observed (a) On Composition: (i) All members of the judiciary are disqualified from the Commons.(v) In Magor& St Mellons Rural District Council V Newport Corporation. Lord Falconer declared that he would not sit in appeals before the HOL. (v) This is reinforced by the exclusion of the LC from the Supreme Court.5. (iv) “Our proposal for the creation of a Supreme Court is supported by the most basic principles of the separation of powers. a “real possibility” that the Lords would be biased when called on to rule judicially on that legislation later in that he could not “bring an objective and undistorted judgment to bear on the issue raised”. In Davidson v Scottish Ministers (2005). In one sense. Nonetheless. this bars the courts from entering into the political arena such that they will not be able to pass judgment on matters which truly lie with the executive given their political nature. (ii) Previously. In future. (iii) S3 CRA 2005 imposes a duty upon the LC and other government ministers to uphold judicial independence. in his speech at the British Institute of International and Constitutional Law Seminar). 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”. Law Lords have abstained greatly from the legislative work of the HOL though they contribute on matters where their legal experience can be brought to bear. separate from the HOL. Page34 (b) On Influence and Control: (i) The doctrine of legislative supremacy prevents the courts from reviewing the validity of legislations. in the mind of the “fair-minded and informed” observer.” (Lord Woolf. (ii) Even the HRA 1998 was drafted consciously so as to reflect Parliament’s supremacy. all Supreme Court justices will not be entitled to receive life peerages. Lord Simonds criticized Lord Denning’s broad “gap filling” attitude to statutory interpretation as a “naked usurpation of the legislative function”. . in recent years. it was held that the Lords’ participation in debates on legislations would give rise to. to some extent. 4. (vi) It cannot be denied however that judicial expertise greatly enrich debates which thus take place in the HOL as well as being invaluable in the scrutiny role of the HOL. In 2003. all Law Lords received life peerages so that they take part. (iii) Part 3 of the CRA 2005 put an end to this by creating a new Supreme Court for the UK. which may have no legal force. therefore. retrospectively. The Ministry of Justice also sponsors the Parole Board. conduct of a judge or judges in general must not be questioned. the courts are constitutionally subordinate to Parliament.(iv) The Act of Settlement held that judicial salaries should be “ascertained and established”. 4. (viii) While the courts may examine acts of the executive to ensure that they conform with the law. (vii) It is a rule of Parliamentary Practice that save the discussion is based on a substantive motion. their tenure is protected by S11 (3) Supreme Court Act (for High Court and COA judges). the European Communities Act 1972. The effect of their decisions may be altered by Parliament both prospectively and also. This has however not prevented Mrs Thatcher from criticizing light sentences imposed on a child molester or the criticism of a judge who had described a rape victim as contributory negligent. if necessary. Art 6 also provides an indirect guarantee of judicial independence. they should remain in prison. the body which considers whether it is safe for prisoners to be released into the community or whether. (vi) By statute judges of the superior courts may be removed by the Crown on an address from both Houses. The governing Act at present is the Judges’ Remuneration Act 1965. suggesting that judicial salaries should be fixed by statute and not left to executive discretion which may result in judges seeing their salaries trimmed as a punishment for unpopular decisions. but only once since the Act of Settlement has Parliament exercised the power of removal. S6 Appellate Jurisdiction Act 1876 (for Law Lords). In one sense. It became an independent Nondepartmental Government Body in 1996 pursuant to the Criminal Justice and Public Order Act 1994. The Ministry assumed the responsibilities formerly undertaken by the Department of Constitutional Affairs and is responsible for the Courts Service. The Parole Board was established in 1968. creating the Ministry of Justice. . [2006] 1 WLR 1917. (ii) The Ministry of Justice also assumes responsibility for the National Offender Management Service (which includes the Prison Service and Probation Service) and the Office for Criminal Justice Reform. and S33 CRA 2005 (for future Supreme Court Justices). See however. The judges are under a duty to apply and interpret the laws enacted by Parliament.” The rules of debate in the Commons protect judges from certain forms of criticism.6 REFORM (i) In 2007 the government divided the Home Office into two departments. but the courts are bound only by Acts of Parliament and not by resolutions of each House. the Judicial Appointments Commission. (v) Similarly. on grounds of dangerousness. Judicial doubts have been expressed concerning the independence of the Parole Board: see R (Girling) v Parole Board [2005] EWHC 546. the Tribunals Service and Legal Aid. the doctrine of legislative supremacy denies the courts the power to review the validity of legislation. and peculiar to the Crown.” (ii) According to Hilaire Barnett. five points about the prerogative have to be noted. The separation of powers is improved with the physical separation of the highest court (formerly the Appellate Committee of the House of Lords) from Parliament. these provisions can only come into force following approval in a referendum of the people. the powers derive from common law. the majority of these powers are exercised by the executive government in the name of the Crown.. (d) Thirdly. (c) These powers are residual.1 INTRODUCTION (i) Dicey in ‘Law of the Constitution’ defines the prerogative as: “the residue of discretionary or arbitrary authority. (iv) Note that the Government of Wales Act 2006 confers enlarged legislative power on the Welsh Assembly.. which at any time is legally left in the hands of the Crown.(iii) The Supreme Court established under the Constitutional Reform Act 2005. commenced operation in October 2009. While the 2006 Act confers power to enact primary legislation.3 A brief summary of the prerogative 5. Every act which the executive can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative. Page35 Chapter5: THE ROYAL PREROGATIVE CONTENTS: 5.1 Introduction 5.2 Prerogative Today 5. (e) No Act of Parliament is necessary to confer authority on the exercise of these powers. (a) First these powers are inherent in. .4 Controls on Prerogative 5... It also separates the executive from the legislature by making it clear that the Welsh Assembly Government is separate from the National Assembly.5 Should Prerogatives Be Put On A Statutory Footing? 5. (b) Secondly. all that is left of the Crown’s prerogative powers are those left untouched by Parliament.and while the Queen has no power to make laws.) Note that this is not equivalent to control of the prerogative but only its purported exercise. thus placing the Queen outside the jurisdiction of the courts and guaranteeing immunity from protection in her own courts. the entire administration of justice is conducted in the name of the Crown. (iii) Another prerogative notion still exists till today i. the right to encourage.2 PREROGATIVE TODAY (i) The constitutional issue to be considered here is the relationship between statute and prerogative and the control. of the prerogative. the Crown is never an infant and the Crown can do no wrong. Page36 5. (ii) Crown’s powers are now mostly exercised by the executive in the name of the Crown. the dissolution of Parliament and appointment of the Prime Minister are the most significant.e. 5. The Queen is the fountain of justice . the right to warn. According to Bagehot in ‘the English Constitution’ the sovereign has three other rights-the right to be consulted. Orders of the Garter and Thistle. or suspend laws or to act in judicial capacity. Lords and the Commons. The Crown never dies.(iii) 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 Parliamentary supremacy. The Crown retains important residual powers of these.3 A BRIEF SUMMARY OF THE PREROGATIVE (a) Foreign affairs (i) power to make declarations of war and peace (ii) power to enter into Treaties (iii) the recognition of foreign States . judicial or political. Under the United Kingdom’s constitutional monarchy. (iv) The actual power which is exercisable by the Crown is limited in two ways: (a) By convention the majority of the powers are exercised by her Majesty’s government or Her Majesty’s judges in her name. The personal prerogatives include the grant of honours such as the Order of Merit. (b) The existence and the scope of a purported prerogative power is subjected to the scrutiny of the courts (see the GCHQ case. the Queen is part of the legislature: Parliament comprises of the Crown. (iv) diplomatic relations (v) disposition of armed forces overseas (b) Domestic affairs (i) the summoning and dissolution of Parliament (ii) appointment of Ministers (iii) Royal assent to Bills (iv) the granting of honours (v) defence of the realm (vi) the keeping of peace (vii) the parens patriae wardship jurisdiction of the courts (viii) the power to stop criminal prosecutions -‘nolle prosequi’ (ix) the prerogative of mercy (x) reduction of sentences (xi) pardoning of offenders (xii) regulation of the terms and conditions of the Civil Service (xiii) the right to treasure trove. can the Crown dissolve Parliament on its own initiative? Secondly whether the Crown has a right to refuse dissolution when requested by the Prime Minister or other Ministers. it would be unconstitutional” (BS Markensis-The theory and practice of Dissolution of Parliament).3. and to royal fish and swans Page37 5.1 The prerogative and domestic affairs (a) The dissolution of Parliament (i) The dissolution of Parliament is perhaps the most important residual prerogative exercised personally by the Sovereign and represents the greatest potential for controversy. whether by refusing to assent to a Bill contrary to the advice of the Prime Minister. Firstly. . Sir Ivor Jennings states that since dissolution requires acquiescence of ministers the Queen is unable to achieve dissolution without advice. It has been suggested that “a royal dissolution in our times would not merely be unpolitical. Thirdly. the Crown can indirectly force dissolution. (b) The refusal of dissolution on Prime Ministerial request The situation could arise whereby the Prime Minister wishes a dissolution and other Ministers do not. Prime Minister did not tender his resignation but entered into negotiations with other political parties in order to form a coalition government. (ii) The difficult position arises however where the election produces no outright winner. whenever the wishes of the legislature are. the Queen would have ample grounds for refusing provided an alternative leader of the majority was in sight. at the time of publication.on its own initiative . resulting in no one party having an overall majority-a ‘hung Parliament arises. or necessary.(i) Dicey has a different view. The last occasion on which the Crown . The central issue is when the leader loses confidence and who decides on this. Dicey recognised that the King wrongly interpreted the will of the nation in this instance. assent has always been given.dissolved Parliament was by William IV in 1835. dissolve Parliament against the government’s will. forced it out of office only to be replaced by an unsuccessful successor. He says that dissolution is allowable.’ E. or may fairly be presumed to be.g. that the State of Perak. the only exception being during the reign of Queen Anne in 1704. (d) Circumstances requiring dissolution Loss of confidence vote: By convention a government must resign or seek dissolution of Parliament from the Queen if a confidence vote is lost in the House of Commons. and dismiss the government. before the federal Court of Malaysia. The Queen would then have to exercise a personal choice. in 1974 the Conservative party lost the General Election by a small number of seats and could command no overall majority. . Malaysia. different from the wishes of the nation. has a written constitution. See also the 2010 elections (under 2. (c) Dissolution following the refusal of Royal Assent In legal theory the Queen has the right her assent to bills but by convention. (e) The appointment of the Prime Minister (i) By convention the Queen must appoint the person who can command a majority in the House of Commons.10 previous chapters). who under normal circumstances will be the leader of the political party which secures the greatest number of parliamentary seats in the general election. Was an alternative leader of the majority in sight in Perak in 2009? Did the three independent Members of the State Assembly form part of the ‘majority’? This is matter is currently. According to Geoffrey Marshal. Note however. When these failed Mr Heath resigned and the Queen invited the Leader of the Labour party to become the Prime Minister. Doubt exists as to whether the Queen can refuse the Royal Assent. The government lost its leader but was nonetheless viable to a continuing ministry but the King misjudging the strength of public opinion against the government. (j) Regulation of the Armed Forces Members of the armed forces are regulated under the royal prerogative. including its relations with the subjects of that State. the consent of the AG is required.” Page38 (h) The granting of honours The Queen has the personal right to confer the Order of Garter. organisation and disposition are within the prerogative and cannot be questioned in any court of law.. However the appointment is subject to ‘good behaviour’ although in practice will not be dismissed other than for misconduct..R v Comptroller of Patents.. the Attorney General. (i) The regulation of the Civil Service This control is vested in the Crown and civil servants. like Ministers. 5.(iii) There is however no duty on the Prime Minister to recommend the man to be sent for. in the minority held that the refusal by the AG to give reasons for refusing (or withholding consent) was contrary to the rule of law. the Order of Tistle. Lord Denning MR. Ltd v AG (1932). The AG has discretion whether or not to institute proceedings. are servants of the Crown.China Navigation Co. The Court of Appeal held that there was no power to review the exercise of the AG’s decision. It is theoretically the sovereign who decides whom to send for and invite to form a government. It includes the . (Fulton Committee Report). The Sovereign is Commanderin-Chief of the armed forces whose control.Although salaries and other benefits are by virtue of statute most part of the Civil Service is governed under the prerogative. (1899). This is an act of the executive as a matter of policy performed in the course of its relations with another State.. (f) Prerogative of mercy This has two aspects the power to grant pardons and the power to enter into nolle prosequi. unless they are temporarily within the allegiance of the Crown. the Royal Victoria Order and the Order of Merit.2 The Prerogative and foreign affairs (a) Acts of State . In Gouriet v Union of Post Office Workers (1978) this discretion was tested.Acts of state in relation to foreign affairs. Chandler v DPP (1964). On proceedings on indictment. This power is not subject to control by the courts. he need not give reasons. On Appeal to the House of Lords. Otherwise the conferring of Honours is by the Queen acting on the advice of the Prime Minister. Lord Wilberforce stated that “.3. (g) Law Enforcement (i) For many legal proceedings. in the name of the Crown can enter into a nolle prosequi the effect of which stops the legal proceedings. The Treaty was to come into effect on ratification by the member states.Walker v Baird (1982) (ii) It is for that reason that the European Community Act 1972 was enacted to provide for entry and application of European Community law into the United Kingdom. diplomatic relations. It was clear that there was substantial opposition to the treaty on all sides of the House.R v Botrill.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. 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. ex parte Kuechenmeister (1947) (c) Annexation and cession of territory. (e) Treaty. Accordingly a Treaty being a creature of international law cannot alter national law without being given effect by an Act of Parliament . At common law citizens have the right to enter and leave the realm. The Prime Minister announced that the Treaty would be ratified under the prerogative thus avoiding the risk of parliamentary disapproval. the status of nationals of the enemy state within the United Kingdom is altered. 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 treaty-making power of the executive was challenged in R v Secretary of State ex parte Rees-Mogg (1994).The Crown also has the power to alter the limits of British territorial waters . The Queens Bench Division refused to grant an application for judicial review: the matter was within the prerogative of the Crown. In February 1991 the Heads of Government of the Member States of the European Community signed the Treaty of Unionthe Maastricht treaty. which is issued under the prerogative.R v Kent JJ ex parte Lye (1967) (d) Issue of Passports (i) The conventional classification of the right to issue and withhold passports is that of Crown’s prerogative. . If the Secretary of State for the Foreign Office issues a certificate to the effect that a state of war exists.including the sending of diplomats and the reception of foreign diplomats-declarations of war and peace and the annexation or cession of territory. In the long-run the Bill bringing the Treaty into effect in the law of the United Kingdom was passed by the Commons and the Lords. (ii) In R v Foreign Secretary ex parte Everett (1989). Nevertheless it is extremely difficult in practice to travel without a passport.recognition of foreign States and government. (b) Declarations of war and peace: Where a declaration of war has been made. this must be accepted by the courts. the court for the first time held that the granting and withholding passports was subject to judicial review by the courts. Their Lordships accepted that the employees had a legitimate expectation to be consulted before their rights were affected. he did not have an unfettered discretion as to whether to implement the statutory scheme and he could not. treaties and matters of national security which were not appropriate subjects for review by the courts as these are matters of high policy and are best left for Ministers to decide and Parliament to control.Page39 5. What the Secretary of State could not do . through the use of prerogative. In this case the statutory right gave the Secretary of State the power to give guidance to the Civil Aviation Authority on the policy to follow in considering licencing applications. it has been held that where statute seeks to regulate a matter previously within the realm of prerogative but yet does not expressly abolish the prerogative. claiming to act under royal prerogative. was held to be ultra vires. (ii) In the Council for Civil service Unions v Minister of State for the Civil Service (1985) the Prime Minister as Minister of the Civil service.1 Judicial (by judicial review) (i) In Ex p Fire Brigades’ Union. by prerogative order terminated the rights of workers at the Government Communications Headquarters (GCHQ) to belong to trade unions. 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. The House of Lords accepted that the terms and conditions of the employment of civil servants were within the prerogative powers of the Crown.4 CONTROLS ON PREROGATIVE 5. grant of honours. Nevertheless this was overridden in the interests of national security. These included matters such as the appointment of Ministers. (v) In Laker Airways v Department of Trade (1977) it was held once again that the government could not defeat a statutory right which regulated a specific area by use of the prerogative power. The Union sought judicial review claiming that they had a legitimate expectation to be consulted prior to their rights to membership being withdrawn. The significance of the above case is that the House of Lords declared that the exercise of the prerogatives of the Crown could in principle be subject to judicial review. the statute would prevail in line with the doctrine of legislative supremacy. Further. dissolution of Parliament. (iv) In A-G v de Keyser’s Royal Hotel *1920+. The prerogative would thereby fall into “abeyance” waiting to be awakened once the statute has been repealed. defeat the purpose of the statute. (iii) 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 and withholding of passports was within the powers of the courts to review.4. There were however prerogatives the exercise of which was not justiciable. The Home Secretary argued that he had the power under the prerogative to issue the weapons. the House of Lords considered whether the legality of the Iraq war under international law could be pleaded in defence to various charges for criminal damage and/or aggravated trespass. the supply of equipment to the police forces. It accepted that the Police Act 1964 had left unaffected the prerogative powers to keep the peace.2 How effective then are the political controls on prerogatives? . It begins where legal rights end. The relevant statutes were domestic and Parliament could not have intended that international law could affect its operation.4. The Secretary of State issued a circular that he would be making available supplies of riot-control equipment to the police forces. The Court of Appeal held that no monopoly was reserved to the police authority and accordingly the Secretary of State had not acted ultra vires. “Mercy is not the subject of legal rights. The Court ruled that it could not. (vii) However.however was to 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. The Police Act 1964 set out the respective powers of the Home Secretary. 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. Moreover. Page40 (vi) In the case of Secretary of State for the Home Department ex parte Northumbria Police Authority (1988) the issue of the relationship between statute and the prerogative once again surfaced. the Police Authorities and the Chief Constable of police with regard to. (ix) In R v Jones (Margaret) [2006] 2 All ER 741. De Freitas v Benn) The power of nolle prosequi is also not subject to the courts’ control (R v Comptroller of Patents). The Northumbria Police Authority sought judicial review on the legality of the circular. the court would not inquire into such areas. the exercise of a number of prerogatives does not fall under judicial control. Note: This case is indicates that there is a difference between updating a prerogative and creating a new one. irrespective of the approval of the police authorities. inter alia. 5. since foreign affairs and the deployment of armed forces were conducted under the royal prerogative. this must be accepted by the courts (R v Botrill ex p Kuechenmeister). Thus no new prerogatives can be created and the existing ones cannot be broadened in any way by the courts. (viii) If the Secretary of State for Foreign and Commonwealth Affairs issues a certificate to the effect that a state of war exists. The prerogative of mercy has traditionally been viewed as unreviewable by the courts.” (Lord Diplock. she must appoint the person who commands a majority in the Commons. call the government to answer for its use of prerogatives. rests upon the attitudes of the courts. given the difficulties lying on the path to the exercise of the Crown’s prerogative power to dissolve Parliament according to its own initiative. Thus. through its scrutiny mechanisms. by convention. as the prime minister uses the royal prerogative to make the decision. abolish the prerogative and place it on a statutory basis.5 SHOULD PREROGATIVES BE PUT ON A STATUTORY FOOTING? (i) Given UK’s unwritten constitution. it was said by Ron Bailey that “going to war is one of the most important decisions a country can take.(i) As Hilaire Barnett notes. but our democratically elected parliament has no formal right to debate the issue. Examples would include the dissolution of parliament. (iii) As Barnett highlights. government contracts. investigations by the Director of Public Prosecutions the grant of honours as well as the broad notions of national security. Secondly. Firstly. judicial appointments. debates and select committees.” . (ii) As with other acts of government. (iv) Markesinis questions whether the Crown has the right to refuse dissolution of the Parliament on the PM’s request . confidentiality and public interest. accordingly. This is “paradoxical” in a modern democracy (Barnett). there is no agreed text as to the prerogative. Whilst it is constitutional theory that the Queen may appoint whomsoever she pleases to the office of PM. there lie a number of issues which ministers conventionally decline to furnish information on and these matters are precisely those which fall within the scope of prerogative. On the other hand. prerogatives are subject to the full array of parliamentary procedure such as Question Times. (v) Conventions would appear to be another political means whereby the exercise of prerogatives could be regulated. “in doubt”.if it ever existed. (iii) However. (ii) It had never been possible to identify all prerogatives of the Crown and that their existence could be ascertained only by means of piecemeal decisions (ex p Northumbria Police Authority). “no one in particular was or is quite sure whether a convention has emerged that virtually allows the PM a free hand in the matter. (iv) In the furore over the manner in which PM Tony Blair dragged UK into the Iraq war.”. its existence is. as with the Bill of Rights and the Treasure Act. Page41 5. there are 2 principal means whereby Parliament may curtail the use of prerogatives. Duncan v Cammel Laird [1942. the exercise of identifying prerogatives and mapping out their contents requires an examination of the historical attributes of the Crown which at the same time. the disposition of the armed forces. the House of Lords’ Committee on the Constitution published a report entitled Waging War: Parliament’s Role and Responsibility which had examined the nature of the executive’s powers in relation to the fundamentals of peace and war. unhappy with the way PM Blair brought UK into the Iraq War.1 Introduction 6. Both Bills fell in parliament.2 No limit on subject matter . it was bewildering that the courts found the alleged prerogative powers of the Home Secretary existed. it ought not to exist in a functioning democracy as the power to control the executive ought to rest with Parliament and the parliamentary process. In lieu. the manner of their exercise remains questionable. (viii) In July 2006. Parliament’s ability to challenge the executive must be protected and strengthened.” The Committee did not favour proposals for legislating to place the prerogative on a statutory basis or to make parliamentary approval a prior legal condition for use of the armed forces. (ix) Back in 1988. Tony Benn introduced a Private Member’s Bill to place prerogative powers under statutory authority. (vi) The process of putting prerogatives on statutory terms would clearly define the nature and scope of prerogatives. This stands uneasily with Lord Camden’s assertion in Entick v Carrington that if there existed authority for the lawful exercise of power. which helps to ensure that Parliament is informed of treaties that the government intends to ratify. (vii) Although the power of the Crown to dissolve Parliament on its own initiative exists in legaltheoretical terms. it proposed that that there should be a “parliamentary convention” determining the role Parliament in this sphere. and concluded “that the exercise of the Royal prerogative by the Government to deploy armed forces overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in the 21st century.(v) In Ex p Northumbria Police. Page43 Chapter6: PARLIAMENTARY SOVEREIGNTY CONTENTS: 6. In 2005. Note: This bears some resemblance to the so-called Ponsonby rule. Even if the very existence of prerogatives in their present unwritten form could somehow be determined accurately. According to Hilaire Barnett “A situation in which the Crown felt obliged to protect the ‘sovereignty of the people’ against its democratically elected parliament would represent an extreme paradox. it would be found “in the books”.” An exercise in putting prerogative on statutory footing would present an opportunity to eradicate such anomalies. with the Commons approval forthcoming only on the eve of fighting in March 2003 such that eyebrows were raised as to the legal situation. Claire Short brought another Private Member Bill to entrench the right of Parliament to approve war. 1 INTRODUCTION (i) The Courts cannot question the validity of an Act of Parliament: Pickin v British Railways Board [1974]. 6. (ii) According to Dicey. Nigeria Independence Act 1960 and Zimbabwe Independence Act 1979). the “enrolled Bill rule”. (iii) Parliament is free to legislate retrospectively. Parliament may further limit its own powers in relation to dependant territories. the Continental Shelf Act 1964 and the Criminal Justice Act 1988.6 Are there constitutional statutes which are not subject to repeal? 6. Furthermore.2 NO LIMIT ON SUBJECT MATTER (i) With His Majesty’s Declaration of Abdication Act 1936.3 No Parliament can bind its successors nor could it be bound by its predecessors 6. the court may not inquire behind the parliamentary roll . such as via the Colonial Laws Validity Act 1865 and Statute of Westminster 1931. The Parliament Acts of 1911 and 1949 also resulted in a shift of power between the 2 Houses. the court must give effect to it viz.8 Traditional Challenges to parliamentary Sovereignty 6. the more famous examples being the War Damages Act 1961 and the War Crimes Act. This simply means that there is no limit on the subject matter on which Parliament may legislate. the Parliament had legislated to alter the succession to the throne. By legislation. (iv) Treaties can only take effect under the authority of an Act of Parliament (Treacy v DPP. parliamentary sovereignty means that Parliament has the “right to make or unmake any law whatever”.5 Modern Challenges To Parliament’s Supremacy 6. (ii) Parliament also has the power to grant independence (e.if legislation has passed through the proper parliamentary procedure. See also Edinburgh & Dalkeith Railways v Wauchope (1842).6.4 “Effectiveness” – The Political Significance Of Parliamentary Supremacy 6. contrast Rees Mogg where the royal prerogative was used for ratification of the Treaty itself) An Act of Parliament cannot be declared void just because it is in conflict with a treaty to which the UK is a . R v Kelly [1998]. Parliament may legislate with extra-territorial effect contrary to the general principles of international law such as with the Territorial and Extra-territorial Extent of Criminal Law 1978.7 The Judiciary’s role in the doctrine of Parliamentary Sovereignty 6.g. THE POLITICAL SIGNIFICANCE OF PARLIAMENTARY SUPREMACY (i) Viewing Jennings’ example of Parliament legislating to ban smoking on streets of Paris. 6.party (Cheney v Conn). passive resistance and civil disobedience. (iii) Stephens highlights that the power of the legislature is limited “from within” as the legislature is the product of certain social conditions and is thereby determined by whatever determines society. it would not. sovereignty is by the possibility of popular resistance. (iv) Thus though Parliament is free to enact laws which violate UK’s international obligations arising from treaties and membership of certain international bodies such as the UN and the EU. constitutional amendments may only take effect if they are approved by referendums. Nonetheless. put a serious dent on the sovereignty of British rule in India. be “illimitable”. it is limited “from without” by the “instinct of subordination” viz. the court would apply the former as the latest expression of Parliament’s will and deem the latter as impliedly repeal.3 NO PARLIAMENT CAN BIND ITS SUCCESSORS NOR COULD IT BE BOUND BY ITS PREDECESSORS (i) This aspect arises from the fact that for a body to be sovereign. The criterion of “effectiveness” is an important constraint on Parliament’s powers . In other constitutions (Denmark and Switzerland). (ii) Note: Mahatma Gandhi once taunted the British colonial government with this historic phrase: “This fist can be broken but its will not yield up its salt”. (ii) The doctrine of implied repeal: Vauxhall Estates v Liverpool Corporation [1932] and Ellen Street Estates v Minister of Health [1934].albeit extra-legal.g. whereby should a later statute be inconsistent but not expressly repeal an earlier one. his ideals when put into effect. Note: the very fact that Parliament may not bind its successors could also be seen as a limitation on its supremacy. in the words of Austin. In fact by his principles of non.violence. in practice. In some constitutions (e. the Republic of Ireland and Australia). law cannot ultimately go against the will of the governed. At the same time. For a body to be sovereign yet subordinate to another is a contradiction in terms. such a statute would have been “valid” as it has passed through the proper parliamentary procedure but yet it will not be “effective” in that no Parisian would abide by an English law. it must. Page44 6.4 “EFFECTIVENESS” .This required the Parliament to pass the ECA to secure UK entry into the EC notwithstanding the signing of the EC Treaties. . a. economic and social interest groups and other means by which public opinion is formed and expressed.” Bradley and Ewing asserts that political constraints against breach of this guarantee provide a greater safeguard than reliance on litigation to confirm that the 1998 Act had limited the powers of future Parliaments. Moreover. for Scotland. the first-past-the-post voting system which produces the House of Commons does not accurately reproduce the distribution of views among the electorate and provides only weak protection for unpopular minorities. . power was returned to Westminster. It must be recognized that the electorate’s power is great at the time of general election but weak during a government’s term of office. this may yet be another legitimate check on the power of the Commons to pass legislation. their continued existence rests upon Parliament’s will and could just as easily be retracted. It is through Parliament that the electorates will for the most part find expression. media. .5 MODERN CHALLENGES TO PARLIAMENT’S SUPREMACY 6.legislative proposals may be subject to referendum. the task of scrutinizing the government is left to Parliament and its array of scrutinizing mechanisms. Section 28 (7) Scotland Act makes it clear that it “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. With the escalation of unrest in 1960s and the 1970s. (ii) Given that such powers are bequeathed by Westminster. In UK however. Government of Wales Act and Northern Ireland Act 1998 have establish a system of self-government. Wales and Northern Ireland respectively whereby Westminster remains free to legislate over “reserved matters” with devolved powers now matters of the devolved government’s competence.1 Devolution (i) The Scotland Act. Nonetheless. with the current impetus for reform in the House of Lords especially with the proposals for elected Lords. d. Page45 6. i. such practice of direct democracy only takes place on an ad hoc basis and even then. at the ballot box. b.e. particularly when the government enjoys a strong majority. in varying degrees. c. does not impinge on Westminster’s supremacy.” (iii) With the birth of Northern Ireland came along the Northern Ireland Assembly. The electorate is only able to exercise their influence sporadically. This effect though depends much on the political parties. During the government’s term of office.5. The Northern Ireland Act 1998 ensuingly re-devolved power to a Northern Ireland Assembly only for the Assembly to be suspended and the power retracted by Westminster. (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 a majority of the people of Northern Ireland” voting in a poll held for the purpose. Lord Steyn’s views. In outlining its scheme for the HRA. The HRA 1998 will not detract from this power.” Page46 (vii) “Parliamentary sovereignty means that Parliament can. The extent to which successive governments respond to the ruling of the courts thus lies in the moral rather than legal authority of the Convention. if it chooses. (ii) Section 4 HRA enables the higher courts to only issue a “declaration of incompatibility” when it is not possible to construe a primary legislation in such a way as to be harmonious with the Convention rights. following S 10 HRA. the government nevertheless wishes to proceed with the Bill. The constraints upon its exercise by Parliament are ultimately political. (ix) Could the courts escape the undesirable effect of making a declaration of incompatibility and resort to straining the meaning of a statute notwithstanding Parliamentary intention? Wouldn’t that be judicial . (v) Section 19 HRA requires that a minister in charge of a Bill in either House. although such a statement could not be made.3 The HRA 1998 (i) The manner in which the ECHR was incorporated via HRA was designed in such a manner as to preserve Westminster’s sovereignty.5. the HRA has taken the centre stage in acting as the yardstick against which all governmental actions are measured. legislate contrary to fundamental principles of human rights. “the Act is carefully drafted to ensure that the court cannot and must not strike down or dispense with any single item of primary legislation. make a statement to the effect that either the Bill does comply with Convention rights or that. To this extent. As Judge LJ said in 2001. Ex p Simms). it falls short of immunizing such rights from legislative changes. see also Ghaidan v Godin-Mendoza [2001] EWCA.” (Lord Hoffman. (viii) What may be said however is that judges now have greater liberty in the exercise of statutory interpretation? Formerly. (vi) Nonetheless. before second reading.5. Now.6. whilst the HRA generates a climate of greater awareness of human rights and augments the power of the judiciary to subject Parliamentary work to detailed scrutiny.2 The European Communities Act 1972: (see under EC Law in Chapter 7) 6. they concentrate on interpreting “the latest will of Parliament”. it may be seen that Parliament’s supremacy has taken a dent. the relevant Minister may then amend the offending legislation by means of a “fast track” parliamentary procedure so as to bring it in line with Convention rights. the government denied that it was transferring power from future Parliaments to the courts. (iv) Barnett observes that this “fast track” procedure “also opens the door to the possibility that governments of different political persuasions may react with greater or lesser enthusiasm to declarations of incompatibility. See R v A *2001+. the supremacy of Westminster in legislating remains unchallenged by the HRA.” Thus seen. (iii) Thereafter. not legal. due for its annual renewal in spring 2005. The Act again derogates from the requirements of the Convention. by the Home Secretary. Their Lordships made a ruling of incompatibility. (xiii) The HRA came under attack in May 2006. Following the duty of interpretation of S3 HRA. Mr. Lord Scot said `Indefinite imprisonment. The new Home Secretary declined to release the suspects but announced he would await a decision by Parliament on the legislation. Although this will be reviewed by a judge. (x) In addition. Crime and Security Act 2001. It allows British and foreign terrorist suspects to be placed under a control order (meaning house arrest). In the ensuing days. the HRA may be seen as the latest challenge to the doctrine of implied repeal. the appellants challenged the lawfulness of their indefinite detention under the Anti -Terrorism. Opponents of the Bill.14). This caused some of the special Government-appointed advocates for the detainees to threaten to resign and caused some backbenchers to threaten trouble. Lord Hoffman went further. laid down in Magna Carta. In the High Court. did not cite the Convention so much as ancient liberties fundamental to the British constitution. Seven Law Lords ruled that indefinite detention without trial was unlawful because it was a disproportionate interference with liberty (Art. as required for derogation. claiming the nation was not under threat. were an unelected and undemocratic body who should not second guess ministers. 2001.law making and filling in gaps which was suggested by Lord Denning in Magor & St Mellons v Newport Corporation and prohibited by the Viscount Simmonds in the House of Lords. Soviet Russia in the Stalinist era. Justice Sullivan supported a decision to allow Afghan . associated with. on grounds not disclosed. the Government were faced with what much of the media portrayed as a constitutional crisis. if Parliament intends to legislate contrary to the Convention rights that would have to be made clear by express words or in some other manner make this absolutely clear. They asked why we are the only country in Europe which considers it necessary to do this. Baroness Hale said “We have always taken it for granted that we cannot be locked up in this country without trial or explanation’. There were no similar powers over British citizens.5) and equality (Art. No other European country had done this in the wake of “9/11`. The Government had derogated from (opted out of) its obligations under Art. is the stuff of nightmares. including all civil liberties groups.” The House of Lords were not all impressed by the Attorney’s argument that they. the Law Lords.5. such as habeas corpus. (xi) Sometimes the decision of incompatibility by courts results in political pressure: A (FC) v Secretary of State of Home Department [2004] in this case. Parliament passed the Prevention of Terrorism Act to replace the offending 2001 Act but it was ferociously debated. as provided for by the Convention where there is “a public emergency threatening the life of the nation”. with the media whipping up hostility to it after several cases and incidents. (xii) In March 2005. which enabled the internment without trial of foreign nationals whom the Home Secretary suspected were terrorists. an Act passed swiftly after the terrorist destruction of the New York World Trade Centre on September 11. it does not satisfy critics that it amounts to detention without trial. (xiv) See also Venables and Thompson v Newsgroup Newspapers [2001]2 MR 1038 that where the Court gave horizontal effect to HRA and the court argued that: the ECHR applied in this case via the obligation on the courts in the Human Rights Act. “on a principled basis”.6 ARE THERE CONSTITUTIONAL STATUTES WHICH ARE NOT SUBJECT TO REPEAL? (i) Traditionally.” Ordinary statutes on the other hand may be impliedly repealed.” The Sun. the Government of Wales Act and the ECA clearly belongs to this family. the Scotland Act..” (iii) In Thoburn v Sunderland CC. The ordinary rule of implied repeal does not satisfy this test. Tony Blair attacked the decision as “an abuse of common sense”. it has been voiced by Lord Hoffman in ex p Simms that “in the absence of express language or necessary implication to the contrary. no statutes are free from the clutches of the doctrine of implied repeal. This probably means that the courts will refrain from employing the HRA in all but the most extreme cases. 6. overarching manner. He criticised the failure of successive Home Secretaries to allow them leave as “conspicuous unfairness amounting to an abuse of power”. or (b) enlarges of diminishes the scope of fundamental constitutional rights. (iv) The Magna Carta. The ECA 1972 became the first to be accorded the special status of “constitutional statute” thereby freeing it from the doctrine of implied repeal (Garland v BRE. (ii) With the HRA.7 THE JUDICIARY’S ROLE IN THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY . even though the defendant newspapers were not a public It would appear that the court will utilise the HRA in disputes between private parties only in exceptional circumstances. the HRA. the Acts of Union. He wants the Government to overturn judges’ barmy rulings. “At last Tony Blair admits he needs to do something about the ludicrous Human Rights Act.. the Bill of Rights. and where there are significant human rights issues at stake. Isn’t this contrary to section 6 wherein under section 7 an aggrieved party can only go against a public authority and enforce convention rights be it at common law or pursuant to interpretation of a statute? Page47 6. Macarthys v Smith). the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.hijackers to remain in the UK until it was safe for them to return home. Their repeal could only be affected by “express words in the later statute or by words so specific that the inference of an actual determination to affect the result contended for was irresistible. Constitutional statutes those which: (a) condition the legal relationship between citizen and state in some general. Laws LJ distinguished between “ordinary” statutes and “constitutional” statutes. 15 May 2006. 2 The Manner and Form Argument (i) The Parliament may have set down particular procedures for enacting legislation i. (ii) The cases of A-G v Trethowan. Thus. (iii) This is why the courts construe the ouster clauses in judicial review cases very strictly: R v Secretary of State for the Environment ex parte Ostler (1976). (iv) The South African High Court in Ndlwana v Hofmeyer proclaimed that such a restriction amounted to a fetter on Westminster’s legislative might as “freedom once conferred cannot be revoked”. As .8. Note: These 2 cases are simply demonstrate that Parliament is not bound by any legal constraints. (ii) Lord Steyn has said that the judiciary might have to “qualify” the principle of Parliamentary supremacy should 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: R v Jackson. an earlier Parliament may lay down a manner of legislating which will bind its successors thereby compromising on the sovereignty of the latter. Harris v The Minister of the Interior and Bribery Comsr V Ranasinghe illustrates the point that that legislative bodies do not necessarily enjoy full sovereign powers. 6. (ii) One of the most cited examples would be S 4 of the Statute of Westminster which gives statutory force to the convention that Westminster would not legislate for the Dominions without their express consent. it was accepted by the Privy Council that whilst Westminster’s power remained “in theory unimpaired” and that “as a matter of abstract law” S 4 could be repealed.(i) Lord Woolf had in 1995 argued that “if Parliament did the unthinkable” and legislated without regard for the role of the judiciary in upholding the rule of law. Page48 6.1 Grants of Independence (i) Where Westminster has conferred partial competence on a subordinate legislature.8. in practice it could not be as “legal theory must march alongside practical reality”.8 TRADITIONAL CHALLENGES TO PARLIAMENTARY SOVEREIGNTY 6.e. the courts might wish to make it clear that “ultimately there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold”. the question is whether Westminster could revoke that grant of power. perhaps contrary to the doctrine of implied repeal. the “manner and form” of enacting a piece of law. What may exist are really political or extrinsic constraints. (iii) In British Coal Corporation v R *1935+. Failure to do so would empower the judiciary to declare a legislative act void. before legislation could be enacted. the Life Peerages Act 1958. do not impinge upon Parliament’s sovereignty as the result of a referendum is only morally. referendums. Page49 6. (iv) Prof Mitchell saw that with S4 of the Statute of Westminster. Parliament is said to have “redefined” its composition to include not only the Queen in Parliament. (ii) More recently. the Commons and the Lords but also the electorate. and more recently. to . (iii) However. as conceived in the UK. There is no legislature superior to it. binding upon the government. South Africa and Ceylon. such as the UK Parliament and a legislative body which was less than sovereign. Geoffrey Marshall saw that Lord Pearce “seemed to imply equally that both nonsovereign and sovereign legislatures may be made subject to procedural rules entrenching parts of the law from simple majority repeal. Westminster however does not face such controlling powers. say. although this might no longer be the case with entry into the EU. In doing so.3 Redefinition Theories (i) Alternatively. (iv) From Ranasinghe.Cantilevres CJ pointed out in Harris. Parliament may require. He also cited Ibralebbe v R [1964] where Lord Radcliff e argued that while the UK Parliament has the legal power to legislate for Ceylon. a distinction lies between a truly sovereign legislative body. (vi) The decision of the Privy Council above hence shows that judges protecting the sovereignty of the supreme UK Parliament by keeping subordinate legislatures within the sphere of powers conferred.8. the legislatures of New South Wales. being established by an Act of the truly sovereign UK Parliament. a referendum be held. (iii) In each of the cases. the House of Lords Act 1999. Such redefinition may be seen to be effected by Parliament Act 1911.” (v) According to Prof Heuston’s “new view” of sovereignty. and in London in 1998 in relation to the establishment of a directly elected mayor and the re-establishment of a London-wide elected authority. specifically the manner and form of legislating as prescribed by the earlier law. Parliament has redefined itself in a manner which excludes its power to legislate for the Dominions. the courts may question the validity of a statute on grounds whether the proper legislative procedure has been abided by or not or whether the legislature was then properly constituted but not on grounds of the legislature’s area of power. referendums have been used in relation to the devolution to Scotland and Wales. and not legally. must comply with the constitutional laws in force. as well as in 1975 to decide on UK’s continued membership of the EC. 5 The Question of Legal Supremacy: The UK Courts’ View 7.8 Recent response by Parliament on the issue of Parliamentary sovereignty.7 The Concept of State Liability 7. As listed by Art 7 of the EC Treaty.1 Institutions of the EC 7. alongside the common foreign and security policy as well as police and judicial cooperation in criminal matters.use such powers would be “wholly inconsistent” with the powers of legislation conferred on the legislature of Ceylon. repeal or disregard S4 of the statute.2 Sources of Community Law 7. But that is theory and has no relation to realities. Rule of law and supremacy of EC law 7. (v)It was also held by Lord Sankey LC in British Coal Corporation’s case that “indeed.4 The Question of Legal Supremacy: The ECJ’s View 7.6 The Working Principles of Community Law 7.1 INSTITUTIONS OF THE EC (i) The 5 principal institutions of the EC. the Imperial Parliament could.” Page51 Chapter7: EUROPEAN COMMUNITY LAW CONTENTS: 7. as a matter of abstract law. constitute of the 3 pillars of the EU.3 Article 234 of the Treaty (formerly Article 177) 7. They are: (a) The Commission (b) The European Parliament (c) The Council Note: This is not to be confused with the European Council which consists of heads of states or government and meets at least twice a year to “provide the Union with the necessary impetus for its development” (Art 4 TEU) . as defined by Art 249 of the EC Treaty: (iv) Regulations Have “general application” in the sense that they are binding in its entirety and directly applicable in all Member States (“MS”). .(d) ECJ (e) Court of Auditors Page52 7. as amended. (v) Directives Directives are binding as to the objective to be achieved but have a measure of discretion on a member state as to how to implement the required objective. They have direct effect and there is no need for incorporation by MS. 1975 (d) SEA 1986 (e) Treaty on EU (Maastricht) 1992 (f) Treaty of EU (Amsterdam) 1997 (g) Treaty of Nice 2000 (iii) Secondary legislation is law made by the Community institutions. They may require members states to take measure (legislative or other) to achieve the common objective. 1985) (c) Budgetary Treaties 1970. 1979. (vii) Recommendations and opinions: No binding force. They comprise of. and includes both interpretation of primary and secondary source of legislations by the ECJ. (vi) Decisions: Binding in its entirety upon the MS to whom it is addressed. (ii) The Original EEC Treaty (Treaty of Rome 1957) and Protocols and its Protocols have been amended by: (a) Merger Treaty 1965 (b) Acts of Accession (1972. Note: They would be referred to as “Treaty Articles” or “Treaty provisions”.2 SOURCES OF COMMUNITY LAW (i) The primary sources of Community law would be the Treaties. provided that it is a question of community law and not national law which requires interpretation and provided also that a decision of the ECJ is necessary to enable national court to reach a decision in the case.a court must feel that it cannot reach a decision unless a reference is made. the difficulty of the point of law. or leave to appeal may be needed and be refused. (b) International agreements entered into by the Council between the EC and non-EU states on behalf of MS. considered the question of when references to the ECJ should be made and Lord Denning laid down the following guidelines for English courts to apply when a reference was a matter of discretion: (a) the decision must be necessary to enable the court to give judgment . (iii) A reference becomes mandatory when the question of Community law is before a court or tribunal of last resort. in Bulmer u Bollinger [1974].e. court or tribunal from which there is no further appeal does not always mean the House of Lords.(viii) Other sources of law. Page53 (v) The domestic courts however sometimes lean on to the concept of acte clair which states that if a matter is so obvious in its meaning to the domestic court.3 ARTICLE 234 OF THE TREATY (FORMERLY ARTICLE 177) (i) Article 234 represents a means by which the harmony of laws between member States is achieved. (iv) the English Court of Appeal. then no reference need be made. and the doctrine of acte clair. (c) even if the court considers a reference to be necessary. in the Cilfit case(1983). the appeal structure will end lower in the hierarchy. regard must still be paid to the delay involved. the expense. The ECJ has time and again ruled that Community law has supremacy and that it be uniformly applied within Member States. have a significant impact on the working of the EC and the EU. (vi) The ECJ has considered the circumstances under which courts should refer. i. The Court was asked to consider the meaning of Article 177(3) (now 234(3)) which relates to mandatory references from a court of last resort. They include: (a) Procedures for self-regulation formulated by institutions of the Union.not just a peripheral issue. in many cases. (b) the decision of the question must be conclusive to the case . The Court ruled that: . and the burden on the ECJ. (ii) According to Article 234 courts or tribunals may refer a question. whilst not legally binding. 7. however. where there is no authority. and under certain conditions. the questions which may be referred are: (a) interpretation of the treaties. To this limited extent. (viii) Though national courts have some discretion as to whether to refer a matter to the ECJ. (ix) According to Article 234 of the EC Treaty. (b) the validity and interpretation of acts of institutions of the Community: regulations. if the interpretation can have no effect on the outcome of the case. (c) the effectiveness of Community law must be the same in all Member States . the matter is then returned to the domestic court for application. (vii) In Cilfit.4 THE QUESTION OF LEGAL SUPREMACY: THE ECJ’S VIEW (i) The ECJ claims that Community law is supreme over national law. (d) courts of Member States must follow the interpretation of laws given by the ECJ or. this only relates to interpretation of Community law. (c) the interpretation of statutes of bodies established by acts of the Council. 7. (b) national law cannot prevail over Community law. be satisfied that the matter is equally obvious to courts of other Member States and to the ECJ. The national court must. As to questions of validity only the ECJ has the sole power to rule on whether a measure of Community law is invalid. This claim carries the following implications: (a) Community law confers rights on individuals to which national law must give effect. the doctrine of acte clair is endorsed. etc. (b) there is no duty of refer when the question is one substantially the same as one previously answered by the ECJ. in general. was to ensure the proper application and uniform interpretation of Community law in all Member States and to prevent divergences occurring within Member States. . (x) Once the ECJ accepts jurisdiction and gives a ruling. the ECJ emphasised that the purpose of Article 177 (now Article 234 of the EC Treaty).(a) there is no duty to refer where a question of Community law was irrelevant that is.it cannot vary in effect from one Member State to another. (c) there is no need to refer where no real doubt about the law exists. directives. must refer the matter to the ECJ under Article 234 of the Treaty. the company was required to obtain a licence. Since the retention of the deposit was contrary to the Federal Constitution. would have an adverse effect on the uniformity and efficacy of Community law. and forfeiture was made.(e) where the ECJ gives a ruling. the deposit was to be forfeited. Simmenthal sued the Italian Minister of Finance for return of the money. arguing that the fee was equivalent to a customs duty and was contrary to Article 12 (now 25) of the Treaty and Community regulations on the common organisation . The company paid the deposit. albeit within limited fields. Simmenthal. Simmenthal imported beef from France into Italy. for which a ‘permanent deposit’ had to be paid. it could not. The matter was referred to the ECJ under Article 177 (now Article 234). arguing that the forfeiture was contrary to the Constitution of the Federal Republic of Germany. according to German law. Page54 (iii) The EVST case: Under Community law. the ECJ in Simmenthal (1976-1980) ruled that regulations take precedence over both previous and subsequent domestic law. Van Gend en Loos. (ii) The ECJ in Luxembourg has consistently asserted the supremacy of Community law over national laws as by becoming signatories to the treaties. in order to export produce. fees for veterinary and health checks had to be paid by the importer at the frontier. Such supremacy is necessitated by the aim to attain uniformity throughout the Community. MS have shackled their own legislative competence in Community matters.. for the purposes of judging the validity of Community measures. If the goods were not exported within the licence period. ceding supreme law-making powers on these matters to the law-making institutions of the EC [Costa v ENEL. be lawful under the law of the Community. failed to complete the export. Member States are under an obligation to amend their national laws so as to conform to Community law. The validity of Community measures could be judged only in the light of Community law and could not be affected by allegations that the measures ran counter to fundamental rights as formulated by the constitution of the Member State.. The ECJ declared that giving effect to rules or concepts of national law contained even within the constitution of a state. The firm sued the agency involved for return of the deposit. Under Italian legislation of 1970. and have thus created a body of law which binds both their nationals and themselves” (Costa v ENEL) (v) In face of a conflict between an Article of the Treaty and subsequently passed domestic legislation. member states have limited their sovereign rights. (iv) Entry into “the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of Community law cannot prevail. . Internationale Handelgesellschaf v EVST (1970)]. must set aside any provision which conflicts with community law and apply Community law in its entirety. The ECJ held that regulations take precedence over previous and subsequent domestic legislation and that a national court. The minister pleaded that the domestic 1970 Act was binding unless and until set aside by the Italian Constitutional Court. of the Treaty and a later Italian statute.on beef imports. These rights include even the protection of constitutionally guaranteed individual rights. Member States were further robbed of their power to enter into international agreements. whatever its position or role in the national judicial hierarchy. Member States have lost that capacity. A reference was made under Article 177 (now Article 234). (viii) Such assertion of Community law ascendancy over national laws has been wrought by means of: (a) Art 10 of the EC Treaty (b) The principle of direct applicability. both vertical and horizontal (d) The principle of indirect effect (e) The concept of state liability Note: Pursuant to Article 10 (Formerly Article 5). the question at issue being whether directly applicable regulations issued under Article 189 (now Article 249) required national courts to disregard subsequently passed domestic legislation. The national court ordered the Ministry to return the money. (c) The principle of direct effect. It matters not whether a domestic law in conflict with Community law was passed prior to accession to the EC or subsequently: neither can prevail over Community law. without waiting until the domestic legislation had been set aside by the Constitutional Court. one to which Member States have limited their sovereign rights by transferring these to the Community. EC Member States are under a duty to take all appropriate measures to ensure the fulfilment of obligations under Community Law-Marleasing Case [1992 ] Further the ECJ has extended the obligation to comply with EC Law through requiring the counts to interpret domestic law in acc with EC law . without waiting for the Constitutional Court to declare it invalid. a basic attribute of sovereignty. (vii) In summary. the ECJ has declared the existence of a new legal order. The Italian court was thus faced with a conflict between Article 12. (vi) In the ERTA (1971) case. as it then was. such power has come to reside solely in the hands of the Community institutions. looking at the legal personality of the EC and the exercise of Community competence since 1969. Finally where the Community has the power to act on behalf of Member States in the making of international agreements. The EC reasoned. S2 is an attempt by one Parliament to fetter the continuing supremacy of another by providing that. the Plaintiff sought a declaration that the government. There is no statement in the Act purporting that EC law is a ‘higher form of law’. that is. S2 (1) provides that directly applicable Community laws shall be enforceable in the UK courts. to make them immune from amendment or repeal. Lord Denning’s reply to the contention that joining the EC was contrary to the Bill of Rights 1689. or that the Act cannot be repealed. the government must indicate in clear terms what primary legislation is being repealed or amended when this procedure is invoked [R(Orange Personal Communications Ltd) v Trade and Industry Secretary]. or could be repealed but only by some specified ‘manner and form’. This means that the repeal of the ECA could only be achieved by “express words in the later statute or by words so specific that the inference of an actual determination to affect the result contended was irresistible”. (vi) Again. albeit silently. To this. (iv) According to Laws LJ. Together. in Ex p McWhirter.Page55 7.” (Bradley and Ewing) (iii) By S2(2). Although this power has been widely construed (Ex p UNISON). Factortame (No 1) had effectively accepted that S2 (4) could not be impliedly repealed “albeit the point was not argued”. Lord Denning responded that “even if the treaty is signed. (ii) “As such. In this way. regulations may be introduced by a designated minister for the purpose of implementing Community obligations save for those purposes enumerated in Schedule 2. which declared that all powers of government are vested in the Crown and . It serves as a rule of construction to the courts to interpret law in accordance with the requirements of Community law. (v) Initially. by signing the Treaty of Rome. it is elementary that the courts take no notice of it until embodied in an Act of Parliament”. these provisions mean that directly applicable Community measures ought to prevail over future Acts of Parliament in so far as they might be inconsistent with them. the reception of EC laws is as under the ECA 1972. S2 (4) promotes the primacy of Community law. the courts must (to the extent of any inconsistency) deny it any effect. In Blackburn v AG [1971]. would surrender part of parliament’s sovereignty which it could not do so as no parliament could bind another. It is also designed to ensure that such measures take precedence over national laws. while future Parliaments may legislate in breach of Community law. challenges to the ascension into EC were swept away by the courts proclaiming that the signing of the Treaties bore no legal effect until they have been implemented by an Act of Parliament.5 THE QUESTION OF LEGAL SUPREMACY: THE UK COURTS’ VIEW (i) In UK. Nothing in the European Communities Act (ECA) 1972 entrenches its provisions. the common law had carved an exception to the doctrine of implied repeal which extends to all “constitutional statutes”. Lord Denning stated: “.. were required to be paid equally. The matter was referred by the Court of Appeal to the ECJ under Article 177 (now Article 234).. Garland v BRE. On receiving the judgment of the ECJ. as amended by the Sex Discrimination Act 1975.” .or intentionally of acting inconsistently with it . the Court of Appeal ruled in favour of Mrs Smith. therefore. but as an overriding force. inter alia..In construing our statute. whenever it passes legislation. as to whether employers were required to pay the same wage to a woman who came to the job after the man had left their employment. was whether men and women. The ECJ held that Article 119 required equal pay for men and women whether they were employed contemporaneously or in succession. that men and women employed in the same job should be paid equal amounts.” (vii) Short shrift was also given to the argument in Ex p Rees Mogg that the government could not lawfully ratify the Maastricht Treaty without Parliament’s consent.or is inconsistent with Community law . by means of a Treaty. Page 56 (viii) The ECA has gained recognition as a “constitutional statute... Mrs Smith was employed by Macarthys as a stockroom manageress. employed at differing times for the same job. Such is a result of Section 2(1) and (4) of the European Communities Act 1972. The applicable domestic legislation was the Equal Pay Act 1970. we are entitled to look to the Treaty as an aid in its construction: and even more. however.Parliament could not. In Macarthys v Smith (1981). The man who had previously held the position had been paid a higher wage than Mrs Smith. If on close investigation it should appear that our legislation is deficient . not only as an aid.” Thus far. hence immunising it from the doctrine of implied repeal” (Thoburn v Sunderland CC. it has no effect as far as the courts are concerned until implemented by Act of Parliament. The Act was silent. intends to fulfil its obligations under the Treaty. (ix) Initially UK courts proved defiant to EC’s encroachment into Westminster’s supremacy..by some oversight of our draftsmen then it is our bounden duty to give priority to Community law. The relevant point for interpretation. I have assumed that our Parliament. transfer those rights was that “even though the Treaty of Rome has been signed. thus. If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it . which provided. Macarthys v Smith).and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. to a man with a temporary physical disability who would also have been unable to work . The ECJ ruled that English law was inadequate and held.(x) Article 119 was considered by the House of Lords in Garland v British Rail Engineerin [1983]. the dismissal had amounted to sex discrimination. accordingly. and whether the courts in England should construe the Sex Discrimination Act 1975 in a manner so as to make it compatible with the requirements of Article 119. The domestic regulation had been introduced for the purpose of complying with the directive and. The House of Lords referred the matter to the ECJ. (xii) In Litster v Forth Dry Dock Ltd (1990). since . but not to the children of women reaching retirement. a reference was made to the ECJ. the House of Lords interpreted a domestic regulation contrary to its clear meaning in order to comply with a directive as interpreted by the ECJ. the fact that the reason why she would be temporarily unavailable for work at a time when her services would be particularly required was pregnancy was a . the House of Lords considered the construction of Section 6(4) of the Sex Discrimination Act 1975. in Webb v EMO Air Cargo (UK) Ltd (No 2) (1995) ruled that Sections 1(l) (a) and 5(3) of the 1975 Act were to be construed in accordance with the ECJ’s ruling and that in the case where a woman was engaged for an indefinite period. The Court ruled that the Article ‘precludes dismissal of an employee who is recruited for an unlimited term with a view. the House of Lords was complying with its duty under Section 2(4) of the ECA 1972 to give effect to Community. that pregnancy was not a pathological condition to be compared with illness and. secondly. The question was whether this policy amounted to discrimination contrary to Article 119.comparing her. Page57 Under Article 177 (now Article 234). shortly after recruitment. The plaintiff’s claim for damages based on unequal treatment was for a period prior to parliament’s amendment of the Sex Discrimination Act to bring English law into line with the requirements of Community law. (xiv) The House of Lords. first. (xi) In Duke v GEC Reliance Ltd [1988].the man would also have been dismissed. the Court of Appeal ruled. Accordingly. However. In British Rail made concessionary travel facilities available to the children of male employees reaching retirement. which ruled that the policy amounted to discrimination contrary to Article 119. and the House of Lords affirmed. she is herself found to be pregnant. The House of Lords declined to give retrospective effect to the amendment in light of parliament’s express decision not to amend the Act retrospectively. to replacing another employee during the latter’s maternity leave and who cannot do so. initially. The English Trades Union Reform and Employment Rights Act 1993 provides that dismissal on the grounds of pregnancy is unfair. that a woman who was dismissed from employment because of her pregnancy was not unlawfully dismissed. in Webb v EMO Cargo (UK) Ltd (1992). (xiii) In Webb v EMO Cargo (UK) Ltd (1992). the issue of dismissal on the basis of pregnancy was considered in relation to the EC’s Directive on Equal Treatment. of the Treaty. and that Article 119 must prevail. because. as it then was. that a pregnant woman’s inability to work was temporary and not permanent. by way of regulation. It required not less than 75 per cent of shipping vessels fishing in British waters vessels to be owned by United Kingdom citizens resident in the United Kingdom. setting limits to the amount of fish to be caught in certain periods by way of ‘total allowable catches’ . . with 75 per cent of owners in the United Kingdom. the United Kingdom Parliament passed the Merchant Shipping Act and enacted fresh merchant shipping regulations. the decision of the Court of Appeal was upheld: injunctive relief against the Crown was not within the court’s jurisdiction. further.the provisions of Community law could confer jurisdiction on the English courts to grant injunctive relief against the Crown.circumstance relevant to her case. whether . Factortame. in part. or part owned. The government appealed to the Court of Appeal. which ruled that the court had no jurisdiction to grant interim relief disapplying an Act of Parliament.a move opposed by the plaintiffs unless the Divisional Court was prepared to grant an interim order protecting their Community rights by way of an injunction restraining the government from imposing the requirements of the new regulations. a system for the conservation and management of resources. that vessels be effectively operated from the United Kingdom. As a result. with 75 per cent of shareholders and directors in the United Kingdom. whether the court could protect alleged rather than established rights under Community law. This entailed. which did not comply with these stringent requirements. in 1990. Registration would be lost with effect from 31 March 1989 until vessel owners could satisfy the government that they were eligible for registration. basically that there should be equal access for the fishing vessels of all Member States to the fishing grounds of fellow Member States.contrary to all previous precedent . challenged the domestic requirements as incompatible with EC law. granted an interim injunction against the government restraining it from applying the Merchant Shipping Act regulations until final judgment was made following a reference to the ECJ under Article 177 (now Article 234). Two constitutionally significant factors arose in Factortame. the Council established. The quotas were based on the number of ships flying the flag of a Member State or registered in a Member State. the Council of Ministers passed a regulation relating to the common organisation of the market in fishery products.the allocation of total allowable catches being fairly distributed among the Member States by way of national quotas. being a circumstance that could not be present in the case of the hypothetical man. or wholly owned in the United Kingdom. and. (xv) The most constitutionally significant British case revealing the relationship between Community law and domestic law is that of R v Secretary of State for Transport ex parte Factortame (1991). The Divisional Court wanted to refer the matter to the ECJ under Article 177 (now Article 234) . First. claiming discrimination on the grounds of nationality contrary to Article 14 of the Treaty and the rights of companies to establishment under Articles 43-48. due to fears of over-fishing caused by such open access. On appeal to the House of Lords. The Divisional Court. In 1983. secondly. In 1988. In 1970. a separate action was commenced by the Commission.” (xvii) While legal action being pursued by Factortame was in progress. alleging that the United Kingdom was in breach of its Treaty obligation. “something that was supposed to be constitutionally impossible. Page58 (xvi) The House of Lords in R v Secretary of State for Transport ex parte Factortame (No 2) accepted the ECJ’s ruling and granted interim relief. Article 5 of the EC Treaty (now Article 10) imposes an obligation. To apply this rule is merely to recognise the supremacy of Parliament to make any laws. as has been seen above. . this would give rise to a “right to obtain redress in the national courts for damage caused by the breach”. Note: This is merely recognition of the 1972 Parliament’s sovereignty to the detriment of its successors. (xviii) R v Secrctary of State for Transport ex parte Factortame (No. 5) (2000).The ECJ. and seeking an order that the United Kingdom should suspend the Merchant Shipping Act in respect of fishing vessels: Re Nationality of Fishermen: EC Commission (Spain Intervening) v United Kingdom (Ireland Intervening) [1991]. The House of Lords ruled that the United Kingdom’s breach of community law was sufficiently serious as to warrant damages. This limitation of sovereignty had been accepted voluntarily by the ascension of UK into the EC. Lord Bridge saw that there was no loss of sovereignty entailed in allowing national laws to make way for Community laws as the principle of supremacy of Community law had been inherent in the EEC Treaty and the jurisprudence of the ECJ. held that the offending provisions of the Merchant Shipping Act should be suspended.” The ECJ reverted to its decision in Simmenthal (1979). stating that: “The full effectiveness of Community law would be impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judicial decision to be given on the existence of rights claimed under Community law. on the basis that the Act could be in breach of the prohibition against discrimination on the grounds of nationality under Articles 43 and 294. pending a full determination of Factortame’s claim. to ensure the legal protection which is provided for under the principle of direct effect. Curiously.The ECJ held that an interim order could be granted. stating that directly applicable rules were to be fully and uniformly applied in all Member States in accordance with the principle of precedence of Community law over national law. in its preliminary ruling on the first point (Case 213/89). This form of entrenchment of S2 was referred to by Sir William Wade as a constitutional revolution as it had resulted in the 1972 Parliament successfully binding the 1988 Parliament. However. As the issues there were less clear-cut than in Factortame. Nonetheless. intervenor Case C-17/05. where the legal and factual context of a case was not completely identical to that considered by the Commission. UK could easily legislate to leave the Community and thus recover those part of sovereignty ceded to the EC. Accordingly. so too has the law of the Community. . pure equality is not always attainable. to the extent that the ECJ’s early statement that the Community represents a. The courts have to thread the former with greater circumspection compared to the latter.(xix) In R v HM Treasury ex parte British Telecommunications (1993) the Court of Appeal cautioned against over-reliance on the likelihood of success in the ECJ as a basis to grant injunctive relief. Times LR 6 October 2006. A distinction lies between “a major piece of primary legislation” and a “minor piece of legislation” (or subordinate legislation). Page59 (xxii) Of course it would be beyond doubt that theoretically. there was no risk of adoption of conflicting decisions. has ensured the supremacy of Community law over domestic law. through its dynamic approach. unique legal order’ is now a reality which touches on increasingly wide aspects of domestic law. legal theory must march alongside political reality and the scenario of UK leaving the EC is certainly an unimaginable scenario. Accordingly. The ECJ. a decision of the Commission was simply evidence properly admissible before the English court and might be highly persuasive but was not binding on the court. A further exception to equality was shown in Cadman v Health and Safety Executive. the House of Lords ruled that while there was a duty to avoid conflicting decisions of the Commission and national courts and the decisions of the Commission should be followed. (xxiii) As the aims and objectives of the Union have expanded. Interim orders would only be granted “in the most compelling circumstances”. in a show of Parliamentary supremacy. Equal Opportunities Commission. It however fell short of ruling that the national provisions were void and rather confined its ruling to the compatibility issue. The fact that a reference was made meant that the English courts were uncertain as to the question in issue. it would be inappropriate to prejudge the issue by granting injunctive relief at an interim stage. any more than claims that Westminster could legislate to regain sovereignty over former colonies. (xx) In Ex p Equal Opportunities Commission. The CA also admonished of the difficulties in disapplying domestic legislation. (xxiv) The Court of Justice has been highly influential in furthering the equality of women in the workplace. the CA declined to grant an injunction. (xxi) In Crehan v Entrepreneur Pub Co (CPC) (Office of fair Trade intervening) (3). the House of Lords boldly granted a declaration to the effect that national law was inconsistent with Community law. it was for the employer to prove that the practice at issue was justified by objective factors unrelated to any discrimination based on sex. this principle of direct effect means that an individual may invoke such measures as conferring direct rights. In its case law. and (c) that provision must be unconditional and unqualified and not subject to any further measures on the part of the MS. The House of Lords ruled that the purpose of Article 141 was to provide for equal pay for men and women doing equal work.6 THE WORKING PRINCIPLES OF COMMUNITY LAW 7.would such measure have direct legal effect over individuals? If yes. the disparity in pay was justified. which may be relied on in his national courts. In the instant case. [2006] 4 All ER 577. What remains unanswered then is the questions of what is the legal consequence of this applicability . the case of Van Gend en Loos established that if a Treaty provision is to confer individual enforceable rights (viz. and (b) that the provision must be clear and precise. Page60 7. The Employment Rights Act 1996 provides for a cut-off age beyond which protection from unfair dismissal is removed and redundancy payments are not available. experience acquired by a worker that enabled him to perform his duties better constituted a legitimate objective of pay policy. it must: (a) Indicate that it applies not just to MS but also to individuals within the state.6. not to guarantee equality throughout working lives which ended at different ages. The applicants claimed that the provisions were discriminatory in that more men than women worked over the age of 65.The ECJ ruled that whenever there was evidence of discrimination. in particular. (xxv) The limits to formal equality were also apparent in Rutherford v Secretary of State for Trade and Industry [2006] UKHL 19. the ECJ had recognized that rewarding. (ii) The spine of the jurisprudence of this principle is formed by the legal duty imprinted by Art 10 of the EC Treaty (formerly Art 5) over MS to take action to ensure compliance with Community law and to refrain from any action which might impede the application and effectiveness of EC laws. (iii) In respect of TREATY ARTICLES. it has direct effect). The justification given had to be based on a legitimate objective and the means chosen to achieve that objective had to be appropriate and necessary for that purpose. AND .1 The Principle of Direct Effect (i) It has been noted that Art 249 cloaks regulations with “direct applicability”. Horizontal Effect (i) A measure cloaked with horizontal effect confers an enforceable obligation which entitles an individual to pursue his/her rights. Where a directive is not precise. “because of its nature and its purpose within the system of sources of Community law”. The ECJ held that. as such. the ECJ has nonetheless found that directives are capable of having direct effect as without it. capable of creating individual rights which national courts must protect” (Leonesio V Italian Ministry of Agriculture). it required no legislative intervention by member states and a member state had no power to subordinate it to its own law. . it will not have direct effect (Gibson v East Riding of Yorkshire Council [1999]).6. The case involved a directive which had been issued under Article 48. nor will it have direct effect if its implementation date has not passed (Pubblicio Ministero v Ratti [1979]). The ECJ considered Article 12 (Now Article 25) of EC Treaty. in some cases. it follows that it was directly effective. It was held that since Art 39 of the EC Treaty (formerly Art 48) in question was not subject to any exception or condition. Found that the article was clear and unconditional and. 2. by which they became part of law of a MS without further intervention by MS.(d) that provision must be one which does not leave any substantial latitude or discretion to MS. wording. Such effect could be dichotomized into horizontal and vertical. but horizontally against institutions. 7. (iv) In respect of REGULATIONS As a general principle. and by its nature did not require intervention on the part of the EC or the MS. organizations or individuals within the MS. (v) In respect of DIRECTIVES. Despite Art 249 leaving room for MS as to the manner of implementation of directives. and a right insufficiently defined. a regulation “has direct effect and is. Note: Accordingly both provisions in Treaty and Regulations are capable of having direct effect if they satisfy the requirements of clarity and non-conditionality – see Henn & Derby v DPP (1981) AC 580. The ECJ has further developed the concept of direct applicability as regards treaties and regulations which are formed by the council. not directly against a MS. which provides for free movement of workers between member states. clarity and whether or not member state action is required as a prerequisite to implementation. individuals would not be able to rely on it before the national courts hence emasculating the usefulness of directives: Van Duyn V Home Office). therefore. other than emanations of the state. Directives as well as Regulations and Treaty Provisions may have direct effect depending on their subject matter. suspend their adoption and implementation until the requirement of notification has been complied with. (viii) The principle in CIA Security was enlarged in Unilever Italia v Central Food [2000] to require national courts to refuse to apply a national regulation which was adopted in contravention of the requirement of postponement (delay) required by a directive. except in particularly urgent cases. (vi) In CIA Security v Signalson [1996] ART 8 and 9 of Directive 83/189. as against individuals. on its own failure to perform the obligation which the directive entails. (v) In Ratti [1979] where the ECJ held that where the Directive has set a deadline for member states to enforce it (implement it) which has not been met. even where that Article has not been implemented by the State. However. a member state which has not adopted the implementing measures required by the Directive in the prescribed period. Such directives may be relied on against any national provision not in line with it. there remains the possibility that directives could be indirectly effective and also that they might be enforceable via the principle of the liability of the state to give effect to Community measures.6. such as could be seen in Van Duyn. which required MS to notify the Commission of all draft technical regulations. Note: CIA Security however undercuts the clear rule against horizontal effect of directives as enunciated in Faccini Dori. EC law imprints a duty on the MS to comply and confers enforceable right on the citizen. and. Page61 7. may not rely. The view that directives have no effect vis-à-vis private bodies was reaffirmed. the horizontal effect of Treaty Provisions was confirmed. (ii) With vertical effect. the MS is left responsible to the citizen for the enforcement of his/ her Community rights. as seen in Francovich and Bonifaci v Italy [1991] (iv) The direct effect of directives could well be harnessed to ensure harmonization and approximation of laws within the legal edifices of the MS. (iii) In Faccini Dori v Recreb [1994]. Ergo. 3. the ECJ declined to broaden the principle of direct effect of directives to all parties. was adjudged to have direct effect as they were unconditional and sufficiently precise in terms of their context. an EC measure having this effect allows it to be directly enforceable by an individual against a MS. .(ii) In Defrenne v SABENA [1978]. even in proceedings against private parties. against both public and private sector employers. (vii) Where previously an individual who suffers from the failure of the MS could only claim compensation for this. It was held that the principle of direct effect of Treaty Articles entitles individuals to rely on them. Vertical Effect (i) In essence. be they public or private. they could now rely on CIA Security to claim that the directive in question is unenforceable. it was held that an Area Health Authority was deemed to be a public (as opposed to private) body and accordingly. in effect giving ‘horizontal direct effect’ under a different name. whatever its legal form” so long as it is “providing public service” under the control of the state and for that purpose. as witnesses in Francovich and Bonifaci v Italy.7 THE CONCEPT OF STATE LIABILITY (i) Since the state is encumbered by the Art 10 duty. Page62 7. had not been responsible for “providing a public service”. bound by Community law. The ECJ made it clear that in principle.. although “under the control of the state” as it was then a nationalised body. Thus. create obligations for non-state actors. The horizontal effect of directives has been denied by the ECJ in Marshall v Southampton and SW Hampshire AHA as well as Faccini Dori V Recreb.6. (vi) Foster was distinguished in Doughty v Rolls Royce where the court drew the line between services for the public and services for the state. the ECJ ruled that this principle of interpretation could be applied as between private parties. (ii) In Marleasing. 7. effect. In Marshall. of itself. Thus whether the member state has adopted law to implement an EC Directive Von Colson v Land Nordrhein – Wolstfalen [1984] or not. British Gas was a public body against which a directive might be enforced.4 Principle of indirect effect of directives (i) This principle requires national courts to interpret national law in light of non-directly effective provisions of Directives – the Article 10 obligation. the national courts must interpret national law in light of the wording and purpose of the Directive in order to achieve the result of the directive. Italy was nonetheless under an obligation to implement the directive . the ECJ rejected the demarcation between a nationalised undertaking and a state agency and ruled that a directive might be relied on against organisations and bodies which were “subject to the authority or control of the state or had special powers beyond those which result from the normal relations between individuals. (ii) Whilst it was acknowledged in Francovich that the directive in question there was not sufficiently clear to be directly effective against the state. as regards the identity of institutions responsible for the implementation of the directive. has special powers beyond individuals. Marleasing SA [1990].. a failure to fulfil it by the implementation date gives rise to state liability.(iii) Directives (the Van Duyn type) enjoy vertical. (v) In Foster v British Gas. It was merely entasked to provide defence equipment to the state. (iv) The question which then arises is what bodies would fall to be categorized as “public” or “quasipublic” so as to be snared by this principle. a directive could not. Rolls Royce. but not horizontal. since Italy failed in its duty. and (c) there is a causal link between the state’s failure and the damage suffered by individuals affected. In Brasserie and Factortame. MS are obliged to make good losses suffered by individuals when : (a) any of the 3 national organs was responsible for the breach of Community law. [2004] All ER EC 23. Accordingly..state liability can be incurred only in the exceptional case where the national court adjudicating at last instance has manifestly infringed the applicable law. The same principles apply when considering the liability of a public body as when considering the liability of the state (Haim v Kassenzahnarztliche).. (a) the directive must have individual rights. inter alia. a MS’s highest court is in principle liable for error in interpretation but only where it “manifestly infringed the applicable law” (Kobler v Republic of Austria).. as affirmed in Ex p British Telecommunications and Dillenkofer. in the light of a number of criteria. whether the infringement was intentional. it was under a duty to compensate individuals for losses thus suffered.under the then Art 5 of the EC Treaty. (vii) The concept of state liability was examined in Traghettidel Metiterraneo SpA (in liq) v Italy Case C224-1. whether the error of law was excusable or inexcusable. such as the degree of clarity and precision of the rule infringed. For compensation to be available to the victim. and (d) There is a causal link tying the breach to the losses suffered. (vi) Equally. and (b) the content of those rights can be identified on the basis of the provision of the directive. (b) the rule of law breached was intended to confer rights upon individuals. (iv) The scope of state liability is neither limited to the failure to implement directives nor to the absence of direct effect.’ . defined as a manifest and grave disregard of the limits on the MS’ discretion. Manifest infringement is to be assessed. (v) Failure to take “timeous” action to implement a directive within the specified time period per se constituted a sufficiently serious breach of Community law. and the non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC. (c) the breach is sufficiently serious. they concerned loss accruing from the breach of Treaty provisions which were directly effective. The Court stressed the exceptional nature of state liability: ‘. (iii) Per Brasserie du Pecheur SA V Federal Republic of Germany and ex p Factortame (No 4).. This article will consider the speculation surrounding the creation of such a clause. there is no express legal statement within the UK constitution setting out that the UK maintains ultimate authority over the EU within the UK itself. On Thursday 11th November 2010 William Hague introduced the European Union Bill to the House of Commons for its first reading. But it will put the matter beyond speculation. Part of the coalition agreement between the Conservatives and the Liberal Democrats was to explore this issue. a sovereign parliament can also undo. but the Conservatives appeared to be going ahead with introducing a bill. Great speculation has surrounded this clause as..This clause will enshrine this key principle in the law of the land. if it materializes into a statute. RULE OF LAW AND SUPREMACY OF EC LAW *This is an extract of the Article by Richard Glancey entitled: A ‘Sovereignty’ clause for the UK – essential Act. Mr Hague said: “A sovereignty clause on EU law will place on the statute book this eternal truth: what a sovereign parliament can do. William Hague announced the government’s plan to introduce a European Union Bill in the autumn of 2010 which would include a clause expressly stating that Westminster Parliament still retains sovereignty with regards to EU law.. for the first time in the history of the UK constitution. the ‘Sovereignty’ or ‘Supremacy’ of Parliament will be given the status of primary legislation. And it will be in line with other EU states.8 RECENT RESPONSE BY PARLIAMENT ON THE ISSUE OF PARLIAMENTARY SOVEREIGNTY...8. like Germany who in a different constitutional framework give effect to EU law through their own sovereign act . empty words or hidden agenda?] 7.2 The Article by Richard Glancey William Hague stated that a European Union bill would be introduced to Parliament in the autumn of 2010. Rather. Included in the bill would be a clause that the UK Parliament (Westminster Parliament) gives consent for EU directives to be enforceable in the UK and that the consent could be withdrawn by the UK – thereby expressly stating that the UK maintains ‘sovereignty’ over the EU.” . It will also consider the potent al consequences upon the UK constitution of such a clause.Page63 7. there is the possibility that. 7.8.1 Summary At the Conservative Party Conference in October 2010.. the purpose of enacting it and whether such a clause is necessary. The justification for such a clause is that due to the UK not having a ‘written’ constitution. this matter is governed by an unwritten doctrine of the UK constitution – the ‘Sovereignty’ or ‘Supremacy’ of Parliament. Clause 18 of the Bill contains the much anticipated ‘sovereignty’ clause..It will not alter the existing order in relation to EU law. legal instruments made under them. and because of the particular context of this clause.The European Union Bill was introduced to Parliament on November 11th 2010. Clause 18 is the ‘sovereignty’ clause: Status of EU law dependent on continuing statutory basis It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law (that is. obligations. Clause 18 is a declaratory provision which confirms that directly applicable or directly effective EU law only takes effect in the UK as a result of the existence of an Act of Parliament. liabilities. The clause provides that directly applicable and directly effective EU law is given effect in the law of the UK only by virtue of an Act of Parliament (emphasis added) The commentary upon the clause says: 104. the rights and obligations created by them take effect in domestic law through the legislation enacted to give effect to them. makes express provision for this. the rights. This clause has been included in the Bill to address concerns that the doctrine of Parliamentary sovereignty may in the future be eroded by decisions of the courts. 105. The words ‘by virtue of an Act of Parliament’ cover UK subordinate legislation made under Acts.’ 106. and in particular the European Communities Act 1972. By placing on a statutory footing the common law principle that EU law takes effect in the UK through the will of Parliament and by virtue of an Act of Parliament. This reflects the dualist nature of the UK’s constitutional model under which no special status is accorded to treaties. such EU law is enforceable in the UK only because domestic legislation. and judgments of the EU Courts have direct application or effect in the domestic law of all of the Member States. As Lord Denning noted in the case of Macarthys Ltd v. The explanatory notes of the Bill say: Clause 18 of the Bill places on a statutory footing the common law principle of Parliamentary sovereignty with respect to directly applicable or directly effective EU law. restrictions. Page64 . Although EU Treaties and judgments of the EU Courts provide that certain provisions of the Treaties. powers. This has been clearly recognized by the Courts of the UK. remedies and procedures referred to in Section 2(1) of the European Communities Act 1972) falls to be recognized and available in the United Kingdom. this will provide clear authority which can be relied upon to counter arguments that EU law constitutes a new higher autonomous legal order derived from the EU Treaties or international law and principles which has become an integral part of the UK’s legal system independent of statute. Smith (*1979+ 1 WLR 1189): ‘Community law is part of our law by our own statute. also covers Acts and Measures of the devolved legislatures in exercise of the powers conferred on them by the relevant UK primary legislation. the European Communities Act 1972. we also need to consider how the judiciary would react to such a change to fully appreciate the potential impact of the sovereignty clause. the principle of the primacy of EU law. to run the proposition that the legislative and judicial institutions of the EU may set limits to the power of Parliament to make laws which regulate the legal relationship between the EU and the UK. the law of the EU includes the entrenchment of its own supremacy as an autonomous legal order. in particular. There is an express statement therefore (in the explanatory notes) that the doctrine of Parliamentary Sovereignty or ‘Supremacy’ is being put on a statutory footing.8. It also means that there is no other body that can legislate contrary to Parliament or set aside or override any law that Parliament has created. The rights and obligations assumed by the UK on becoming a member of the EU remain intact. As the ultimate law making body Parliament can legislate howsoever it wishes. Dicey did not create this doctrine – he merely observed its existence and commented upon it. 110. The doctrine has existed for centuries and. of the European Communities Act 1972. Putting it upon a statutory footing is therefore a major constitutional shift . This clause does not alter the existing relationship between EU law and UK domestic law.107. attempts were made.3 Parliamentary Supremacy Defined The traditional doctrine of Parliamentary ‘Sovereignty’ or ‘Supremacy’ (Supremacy will be used in this article) essentially means that Parliament is the ultimate law making body within the UK. we need to first of all define the doctrine. In the ‘Metric Martyrs’ case (Thoburn v. The most famous account of this doctrine was given by Albert Venn Dicey in his Introduction to the Study of the Law of the Constitution Dicey said that Parliament has: “the right to make or unmake any law whatever. This clause is declaratory of the existing common law position and does not alter the competences of the devolved legislatures or the functions of the Ministers in the devolved administrations as conferred by the relevant UK Act of Parliament. wholly or partly. Sunderland City Council [2002] EWHC 195 (Admin)). who noted that Parliament cannot bind its successors by stipulating against repeal. 109. This argument was rebutted by the High Court. and. but rejected. has been governed by the Judiciary. that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament” (Dicey. It was argued that. In order to assess the potential impact of putting the doctrine on a statutory footing. Given the vital role the judiciary has played in the development of the doctrine. further. and the prohibition of its abrogation by the Member States. His theory has been the most influential upon this doctrine and is invariably used as the starting point for learning . We need to look at the roots of the doctrine to consider its characteristics as they will key in assessing the impact upon the doctrine of the transition from being an unwritten doctrine of the common law to being a statutory phenomenon. in effect. the consequences of this need to be considered. (emphasis added). 7. 1885: 40). as part of the common law. 1963: 170) According to Jennings and Dicey. Interested readers can look further at Dicey’s comments and consider other academic comments by those such as Sir Ivor Jennings (Jennings. Parliament can make any laws regardless of content or territorial extent 2. as their successors could simply repeal any of the previous Parliament’s attempts to bind the future one. According to the traditional doctrine of Parliamentary Supremacy. nevertheless. it is a good place to start. There is no other body within the UK that can legislate contrary to or go against and challenge . (For a vivid practical illustration of this dichotomy see the case of Madzimbamuto v Lardner Burke [1969] 1 AC 645.5 Parliament Cannot Be Bound By Its Predecessors or Bind Its Successors A particular Parliament can simply repeal or amend any legislation passed by a previous Parliament through the doctrines of express and implied repeal. No ‘body’. Ellen Street Estates v Minister of Health [1934] KB 590 and Vauxhall Estates Ltd v Minister of Health [1932] 1 KB 733 are good examples of this doctrine. nor are there are territorial limits upon their laws. From Dicey’s theory three principles can be established: 1.8. There have been great debates upon the essence of this principle as to whether a Parliament can bind itself in any way or not – in other words. Cases such as Mortensen v Peters (1906) 8 F (J) 93 and Cheney v Conn [1968] 1 WLR 242 aptly illustrate this principle.4 Parliament Can Make Any Laws Regardless of Content or Territorial Extent For Dicey. 7. Its enforceability (this law would clearly not be enforceable in reality) was a separate question to the actual validity of the Act.8. including the courts.the doctrine. 1955) as a good starting point. there are no limits upon Parliament as to the content of laws that it passes. Page65 7. As long as the law was contained in an Act of Parliament. including the courts. This means that a Parliament cannot be bound by its predecessors nor can it bind its successors.8. As we shall later see. can a Parliament give away any of its powers for good: are some acts irreversible or can any act of one Parliament simply be undone by a successor.6 No ‘body’. his theory was concerned with legal validity. 1963) and Sir William Wade (Wade. rather than practical reality or politics. Parliament cannot be bound by its predecessors or bind its successors 3. Sir Ivor Jennings came up with the famous example of would a law that said that smoking on the streets of Paris be a valid law in the UK? (Jennings. and for an academic exploration of the this issue see Allan. can challenge the validity of an Act of Parliament At the heart of the meaning of ‘Parliamentary Supremacy’ is that Parliament has ultimate law making authority. Such a debate is not the focus of this essay however. it would be a valid law. 1985). can challenge the validity of an Act of Parliament 7. Dicey’s theory has faced many subsequent challenges. yes it would. As a ‘doctrine’ its roots are not to be found in any Act of Parliament. There is no exact starting date at which we can point to for the creation of this doctrine. For example the Kings Bench in the case of Heath v Pryn 86 E. 14 refused a challenge to an Act of Parliament saying that as long as it had been enacted by the King. The courts have not entertained any assertions that they have the power to decide not to apply an Act of Parliament for any reason.8. It put an end to the ability of the Monarch to create laws without the consent of Parliament. There is no higher source of law than that which Westminster Parliament enacts. It has no written source. where challenges to Acts of Parliament on both procedural and substantive grounds failed. Given the history and roots of the doctrine of Parliamentary Supremacy. The ‘rules’ of the UK constitution can be found in various ‘sources’ such as Acts of Parliament. [2006] 1 AC 262. Classic authority for this principle can be seen in cases such as Edinburgh & Dalkeith Railway v Wauchope (1842) 8 CL&F 710. but the general consensus is that the main thrust of the doctrine can be seen after the Glorious Revolution of 1688. The courts have said they can do nothing other than apply an Act of Parliament. the ‘Separation of Powers’ and the ‘Supremacy of Parliament’. (1669) 1 Vent. We will now consider where this doctrine comes from as this will help us envisage and appreciate the impact upon the doctrine of putting it onto a statutory footing. In addition to these sources the UK also has a number of ‘doctrines’ that underpin the constitution. they would not look into any defects as to how it was procedurally passed (startling similar to the House of Lords’ sentiments more than 300 years later in 1974 in the Pickin case cited above). believe that it is a construct of the common law. There is evidence to suggest the doctrine is older than this though. R v Jordan [1967] Crim LR 483 and Jackson v AG [2005] UKHL 56. it is a significant development of major constitutional importance to attempt to put such a doctrine upon a statutory footing.R. the Supremacy of Parliament has a long history. 7. It has survived for at least 320 years. As the UK does not have a ‘written’ or codified constitution setting out the legal framework of the organs of the state. As a doctrine. 11. Pickin v British Railways Board [1974] AC 765. The Conservatives’ proposal to put the doctrine on a statutory footing is specifically to address the concerns . These doctrines include the ‘Rule of Law’. decisions of the judiciary and constitutional conventions. The encapsulation of these three principles is known as the ‘traditional’ doctrine of Parliamentary Supremacy. It re-established the Monarchy as a ‘constitutional Monarchy’ and set out that Parliament was the ultimate law making power.laws of the UK Parliament. Some of the leading English judges (Lord Steyn for one. regardless of what it says or how it was enacted (as long as it is an Act of Parliament). a different scheme has developed though time which does establish such a framework. The Glorious Revolution was the culmination of the struggle between Parliamentarians and those loyal to the Monarch the Bill of Rights 1689 was created after the Glorious Revolution.7 The Roots of the Supremacy of Parliament The Supremacy of Parliament is a doctrine of the UK constitution. the Commons and the Lords together. more of which will be discussed below). can challenge the validity of an Act of Parliament Courtesy of Section 2 of the ECA. to EU law. the EU now creates the law for those areas. The 1972 Parliament has.11 No ‘body’. 7.12 Impact of the ECA upon Parliamentary Supremacy The seminal example of the impact of EU law upon the traditional doctrine as per Dicey is the Factortame series of cases. This means that within those specific areas. Also contained within Section 2 was the requirement that ‘any laws passed or to be passed’ within the UK are to be subject to the primacy of EU law. the latest version has incorporated the changes brought about by the Lisbon Treaty) into domestic law.8 The European Communities Act 1972 The European Communities Act 1972 (ECA) came into force on 1st January 1973. Section 2 has greatly impacted upon the traditional doctrine of Parliamentary Supremacy as per Dicey as all three of his principles have been affected: 7. Section 2 of the Act sets out that laws created by the EU is to be enforceable in domestic courts. Page66 7.8. The purpose of the Act was to bring what is now the EU treaty (originally the Treaty of Rome. but are under a duty. This contravenes the principle that the courts are unable to challenge the validity of an Act as under Section 2 they can challenge an Act of it contravenes EU law. We therefore need to consider for a brief moment the European Communities Act 1972. All shipping vessels have a registered nationality.8. or supremacy. It also puts a duty upon the UK courts to give primacy to EU law where they are faced with a conflict between domestic law and EU law. in this regard. This is an attempt by the 1972 Parliament to bind its successors . Factortame was a company which owned a large fleet of Spanish vessels. the UK cannot legislate however it wishes. A very brief overview of the facts is as follows.10 Parliament cannot be bound by it predecessors or bind its successors Within Section 2 it says that any laws ‘to be passed’ in the future are to be subject to the primacy of EU law. including the courts. bound the 2010 Parliament from legislating how it wishes.about the impact of the European Communities Act 1972 upon the Supremacy of the UK Parliament.9 Parliament can make any laws regardless of content or territorial extent This is no longer the case as courtesy of the ECA the UK has said that in specific areas. These vessels were obtaining Spanish quotas then re- . 7. The flag that a vessel flies is the national flag of the vessel’s nationality. If the UK Parliament in 2010 enacts legislation that contravenes EU law then the UK courts must give primacy. domestic courts are not only empowered. The UK would be breaching domestic (ECA) and international law (the treaty itself) if it did not do so.an attempt that has worked thus far. to give supremacy to EU law in domestic courts.8.8. Within the EU there were fishing quotas allocated to different member states. 7. it has to do what the EU says.8. Factortame issued a claim in the High Court in England challenging the validity of the MSA.registering (legitimately) as British vessels and obtaining British quotas. saying the High Court were wrong in law to do as they had done. Ultimately. This decision confirmed the proposition that the ECA had adversely affected the traditional doctrine of Parliamentary Supremacy. that the courts cannot challenge an Act of Parliament – the High Court did. In this case there were some very important obiter dicta comments made by the leading judges in England and Wales about the traditional doctrine of Parliamentary Supremacy. (For a recent exploration of the traditional doctrine as it stands today. Factortame then appealed to the Appellate Committee of the House of Lords against the Court of Appeal’s decision. The Secretary of State for Transport appealed against the High Court’s decision to the Court of Appeal. see Gordon.) Page67 7. the House of Lords re-instated the High Court’s decision and granted the interim injunction (R v Secretary of State for Transport. very bravely some may say. there was another Act of Parliament.8. [2006] 1 AC 262. The end result was that the UK passed the Merchant Shipping Act 1988 (MSA).13 Recent Developments to the Traditional Doctrine Departing from the realm of EU influence upon domestic law. preventing the MSA from operating and impacting upon them. This Act changed the rules about registration of vessels and it was intended to prevent the problem as identified by the British fishermen. Section 21 of which specifically said that the UK Courts could not grant an injunction against the crown. The case concerned a challenge to the validity of the . but relevant to the area nonetheless. This means that the High Court disapplied the provisions of two Acts of Parliament – the CPA and the MSA. ex parte Factortame Ltd [1991] 1 AC 603). The High Court sent a reference to the European Court of Justice (ECJ) asking them for assistance upon the matter. The problem the High Court was faced with in doing this was the MSA was an Act of Parliament. is the case of Jackson v Attorney General [2005] UKHL 56. The highest court in the UK thereby confirmed that under the ECA they do have the power to ‘disapply’ an Act of Parliament if it breaches EU law. This is in complete opposition to Dicey’s third principle. as they did not have the power to do so – the CPA expressly said they did not have the power to do so. and could they ‘disapply’ the provisions of an Act? The problem also ran deeper than this. This reference could have taken two years to work its way through the system so Factortame asked the High Court to grant them an interim injunction in the meantime. British fisherman complained about this. decided to follow the provisions of Section 2 of the ECA and decided to grant an interim injunction preventing the MSA from operating for Factortame. The Court of Appeal reversed the High Court’s decision. as in addition. This was known as ‘quota hopping’. saying it breached numerous aspects of EU law. the Crown Proceedings Act 1947 (CPA). The High Court. so they needed interim relief in the meantime. 2009. They said that if they waited two years they would be bankrupted by that time. It is no longer right to say that its freedom to legislate admits of no qualification whatever. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691. If that is so. Although these comments are obiter dicta. When considering whether the House of Commons could in theory use the Parliament Acts of 1911 and 1949 to create radical changes to the constitution Lord Steyn at para 102 said: “The classic account given by Dicey of the doctrine of the supremacy of Parliament. can now be seen to be out of place in the modern United Kingdom. 720. Step by step. It is therefore worthwhile considering the speculation as to how the clause might end up being worded. if it ever was. Such a clause would serve very little . the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”. pure and absolute as it was. continued: “I start where my learned friend Lord Steyn has just ended. it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. may be changed significantly in its passage through Parliament. the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified”. We now know what the actual wording of the clause is. the supremacy of Parliament is still the general principle of our constitution. Nevertheless. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts. at para 104. absolute.14 Potential Impact of the Proposals – the Speculation Before the first reading of the European Union Bill on November 11th there was much speculation about how the sovereignty clause would be worded. However. Lord Steyn’s views were not isolated. But Parliamentary sovereignty is no longer. The judges created this principle. This leads into the crux of the question that this article raised at the outset – what would the impact be of putting this common law doctrine onto a statutory footing and taking it away from the judiciary? Page68 7. Lord Hope. The wording of the clause is of crucial importance as the impact of the clause is dependent upon how it is worded. One end of the spectrum would be to have a very weakly worded clause that merely says that within the UK constitution there is the doctrine of Parliamentary Supremacy. the Bill has yet to be debated upon and the clause. It is a construct of the common law.8. if it survives at all. The challenge failed. gradually but surely. A number of the judges made some significant obiter dicta comments about this. but the judges felt an important issue had been raised about the limits of Parliamentary Supremacy. Our constitution is dominated by the sovereignty of Parliament. they do indicate most acutely the attitude of the judiciary regarding Parliamentary Supremacy: they created the doctrine – they can amend the doctrine.Hunting Act 2004 by a group of pro-hunters. This means that Westminster Parliament could legislate contrary to EU law and they would require the UK courts to apply legislation that was incompatible with EU law. whilst at the same time not being too weakly worded as to be ineffective. A treaty is binding in international law – but in international law only. the new clause would have to state that ultimately. But the question remains. contracted out Supremacy to the EU. but. Whilst this is legally possible. A number of issues arise from such a strong clause. So why bother with such a clause? That is a good question. which was never ratified. it would not be politically desirable for the UK to create such a strongly worded clause. as contractor. in effect. Perhaps the Conservative party want to try and win over EU sceptics within the UK by giving . the contract could be rescinded at any time and Supremacy recalled back to the UK. (It is interesting to remember that the original draft of the EU Constitution. legislate contrary to EU law by making it expressly clear within the offending legislation that it has been enacted with the realization that it contravenes EU law but it nevertheless requires the UK courts to apply the offending legislation should it ever come before them. The UK would be breaching the obligations it signed up to which are now encapsulated in the Treaty of the European Union (TEU) and the Treaty of the Functioning of the European Union (TFEU). Perhaps the clause would say that the UK could. What would such a middle-ground clause contain? In order to preserve international relations. It was therefore considered much more likely that the clause would lie somewhere in the middle of the spectrum as outlined above. It was thought that it would be unlikely that the clause would be at this extreme of the spectrum. This would be a rebuff to the EU. It was considered patently obvious that the UK would not go down this route. The consequences of the UK breaching its obligations would be political turmoil. The UK’s relations with the other EU states would be severely damaged. The strong clause would expressly state that Westminster Parliament enjoys absolute supremacy over EU law.purpose and would not really make any practical difference to anyone. The clause could make it clear that the UK has. similar to Ministerial Statements required by S 19 of the Human Rights Act 1998 in respect of an Act’s compatibility with the European Convention of Human Rights and Fundamental Freedoms. in exceptional circumstances and as a last resort. Even more conjecture is required to consider a possible answer to that question. The opposite to the proposed weakly worded clause would be a very strongly worded clause that stated the UK has not surrendered any sovereignty at all to the EU and Westminster Parliament maintains total supremacy over any EU law. It would cause political uproar amongst EU member states. The EU is unlikely to try to enforce the UK to comply with its treaty obligations through the court process. contained a supremacy clause within it at Article I-6 stating the EU law had primacy over member states’ domestic law). but the general nature of the UK’s relationship with the EU is that the EU enjoys supremacy for as long as the UK allows them to. Perhaps the new clause would ask for a Ministerial Statement to be put at the beginning of such legislation setting out the legislation’s relationship with EU law. Westminster Parliament maintains supremacy in theory. what would such a middle-ground clause achieve that the UK does not have already? Most people cognizant of the doctrine of the Supremacy of Parliament would say that the UK already enjoys such a position as the middle-ground clause would set out. A practical consequence of this would be major harm to the UK economy. What is the point of enacting such a clause? Parliament is aware . they outweigh the actual clause by a huge margin: the clause itself amounts to approximately 50 words. It is an attempt to give the government. the legislative (Parliament). it says the purpose of enacting the clause is to stop the doctrine of the Supremacy of Parliament being eroded by the judiciary. as long as it sticks together. Perhaps this is in reaction to the comments by the judiciary in the Jackson case as set out above. In the UK. It is therefore leaving a lot more detail unsaid as opposed to tackling the matter directly. the executive dominates the legislative. set out above. This is a major statement. through Parliament. precise language. and the judiciary (the courts) (see Montesquieu’s Spirit of the Laws (1748) for the classic account of this doctrine). due to the way Parliament works. It seems to be stating the obvious and very little else. Those who would like to see the UK constitution itself be codified into a single document need no convincing of such an argument. at 567). The doctrine of the separation of powers attempts to equalize state power amongst three branches: the executive (government). A government needs a majority in the House of Commons to get into office. the explanatory notes and commentary amount to more than 850 words. outnumbers all opposition.What Has Actually Happened? Clause 18 of the new Bill states that EU law is only recognized in the UK because of an Act of Parliament. At paragraph 106 of the commentary upon the clause.them some express reassurance that the UK is still in charge of its own affairs rather than relying upon an unwritten theoretical doctrine that only scholars are aware of. Such people argue that with clarity comes certainty and ownership over the subject matter. But perhaps the purpose goes somewhat further than that. If one looks at the explanatory notes and the commentary upon the clause. If this is the true purpose of the clause then that is of much more concern. it has been influential in the UK constitution (see for example Lord Mustill’s comments about the doctrine in R v Home Secretary. is better than leaving matters to unwritten. Ex p Fire Brigades Union [1995] 2 AC 513. If this is the purpose of the clause then it will skew power even more towards the legislative and executive than it already is. This means that the clause is an assertion of power. Whilst the UK has never truly abided by the doctrine of the separation of powers. then that is of genuine concern. endowing citizens with a deeper engagement with government and politics – not an undesirable outcome. The clause falls somewhere between the weak and the middle ground as set out above. Page69 7. If this is the purpose behind the clause. The new clause would increase this power even further by restricting the power the judiciary have over Parliament by expressly stating that the judiciary have to do what Parliament tells them to do – something which the law lords were very keen to dispel in Jackson. unclear. total constitutional control. This argument says that having matters written down in clear. as the commentary suggests it is. of renewed supremacy of Parliament over the courts.8. There is clearly merit with such an argument. The current coalition government. and disputed theory.15 After the Speculation . This illustrates there is a lot more intention underlying the clause itself than is expressly stated in the clause. so it can get through any measures it wants through Parliament by the fact of sheer numbers alone. and serves to reassure them that the UK still retains its sovereignty. Before we do this. The Bill is leaving much unsaid in order not to offend the EU. there is a deeper issue contained within this matter. whatever its final wording is. it is worth considering the debates upon the Bill that have taken place on the floor of the House of Commons.16 Parliamentary Debates upon the Bill Clause 18 of the Bill was debated upon at the first sitting of the Committee of the Whole House on January 11th 2011. At para 106 it is stated that the clause provides clear authority that EU law does not constitute a higher legal order – this is contrary to what the European Court of Justice has emphatically stated in cases such Van Gend en Loos (C-26/62) [1963] ECR 1 and Costa v ENEL (C-6/64) [1964] ECR 585. but one would have to be familiar with the common law constitutional doctrine of the Supremacy of Parliament to know that – a small minority of UK citizens. Ex p Factortame (No. The main focus . Perhaps it is being too cautious and more clarity could be afforded. Perhaps the proposed clause does not achieve the right balance of being sufficiently certain on one hand whilst maintaining EU relations on the other. thereby overturning centuries of tradition. It therefore serves the purpose of allaying EU sceptics whilst at the same time keeping on good terms with the EU. this defeats the object of achieving total clarity. lasting for five hours and thirty minutes. They may have something to say in response to this. who have little or no knowledge of the common law doctrine of Parliamentary Supremacy. However. Pickstone v Freemans *1989+ AC 66 and R v Sec of State for Transport. Without such a clause the matter was still certain. Page70 7.2) [1991] 1 AC 603). It was an extensive debate. This begs the question of how would the judiciary react to such a request? Upon first glance this appears unproblematic as the judiciary’s role is interpret and apply legislation. If an Act instructs them to give primacy in certain circumstances to UK law over EU law then that is straightforward. Contrary to this though are the comments in the commentary upon the clause (set out above). As the explanatory notes of the clause make clear – the intention is to put the doctrine of the Supremacy of Parliament on a statutory footing. One answer is that such a clause is aimed at EU sceptics. The Supremacy of Parliament derives from the Common Law – it is a doctrine created by the judiciary. The clause would make the doctrine a statutory mechanism. a key matter remains to be explored. Is the clause certain though? With leaving a lot more unsaid – such matters as raised by the explanatory notes and the commentary – than being expressly set out in the actual clause. It is therefore pertinent to ask how the judiciary would react to such a ‘sovereignty clause’. If the clause does survive its passage through Parliament. It does serve to show UK citizens and any other interested parties that the UK maintains Parliamentary Supremacy. It is therefore analogous to a double agent – trying to keep both sides happy.that what the clause states is the current situation and the judiciary are acutely aware that this is the current situation (see cases such as McCarthy’s Ltd v Smith *1979+ ICR 785. Does the clause as currently worded serve any useful purpose? If one values clarity and certainty then there is an argument that the clause is useful.8. is unwise. In this fascinating debate Mr Cash clearly states that the purpose of his proposed amendment is not for clarity for citizens or MPs. Ultimately. The government responded to the European Scrutiny Committee’s report on the 10th January 2011. are not unfounded. The members commented upon the differing opinions about the origin of the doctrine of Parliamentary Supremacy and referred to commentators such as Sir William Wade and Professor Allan. This would have been a major change to not just the clause. but to the doctrine of Parliamentary Supremacy itself. the concerns that clause 18 is potentially dangerous and that there may be agendas behind it. placing it beyond their reach. Out of all of this. They again identify as a problem that the judiciary may take the doctrine in a direction that they do not want it to be taken. We now need to turn to what the potential reaction of the judiciary would be to clause 18. On 7th December 2010 the European Scrutiny Committee produced a report upon the EU Bill (The EU Bill and Parliamentary sovereignty. The government members defending the Bill stated in the debate that clause 18 was deliberately drafted without a great level of detail about the doctrine of Parliamentary Sovereignty as to do so would encourage judicial activism rather than preventing it. There are clear arguments about the legitimacy of such an approach. and the clause will prevent that from happening. the amendments were rejected by 314 votes to 39. They rejected the Committee’s concerns and restated that the clause is necessary as it achieves clarity in an area that may become problematic in the future. Their conclusion in respect of clause 18 is very clear – it is not needed. which for something that is not necessary in the first place. Page71 .” And with a further amendment adding: “and not by virtue of a common law principle”. who state that it is a common-law doctrine. as evidence as to why this is needed. and he refers to the passages of Lord Steyn et al in the Jackson case.for debate was whether an amendment proposed by William Cash should be incorporated into clause 18. therefore trying to put the doctrine upon a statutory footing would be more likely to cause judicial activism than trying to prevent it. They state that it merely says what the current situation is. discussed above. Mr Cash wanted not just a clause at the strong end of the spectrum as set out above. after hours of trying to persuade the House to adopt the proposed amendments. but to prevent the Judiciary from weakening the doctrine any further. but a clause that in addition to this expressly removes the jurisdiction of the doctrine from the judiciary. This would be putting the doctrine clearly upon a statutory footing which would amount to Parliament giving itself its own powers. and by attempting to put such matters on a statutory footing will invite litigation and potential problems. Mr Cash wanted the following to be added to the clause: “The sovereignty of the United Kingdom Parliament is hereby reaffirmed. House of Commons Paper No 633-I. The new clause merely states that EU law takes effect in the UK only by virtue of an Act of Parliament. The new sovereignty clause. and as such.8. Putting the doctrine upon a statutory footing would not be legitimate for the reasons mentioned above – it would be giving oneself power by one’s own assertion – this is neither possible nor legitimate. If Parliament tried to legislate contrary to the Rule of Law then the Courts are saying it is in their power. This legitimacy would be questioned if the doctrine was put on a statutory footing. obiter dicta) the relationship between the doctrine of Parliamentary Supremacy and the Rule of Law. It is also worthwhile remembering Lord Hope’s comments in Jackson where he was considering (again. The biggest concern is the purpose underlying the enactment of the clause. This begs the questions of can Parliament do this and how would the judiciary respond to this? They would be giving themselves ultimate authority over everyone else via one of their own Acts of Parliament? Is this not Parliament pulling themselves up by their own boot straps? Perhaps the only reason why the doctrine has lasted so long is due to the fact that the judiciary have acquiesced to such circumstances – they were the ones who created the doctrine and gave it a level of legitimacy. They feel they have ownership of the doctrine as they said that the doctrine is judge made. as interpreted by the commentary. At para 107 he said: “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. One possible response to this is that such concerns will not materialize under the current proposals. it can be altered by the judiciary. Sir William . thereby asserting supremacy without expressly addressing the doctrine or putting it on a statutory footing. The Conservatives’ proposal will mean that for the first time in the history of the doctrine (more than 300 years) it will be taken from the control of the judiciary and put under Parliament’s control via an Act of Parliament. for them to prevent them from doing so. The explanatory notes to the clause do state that the doctrine is being put on a statutory footing though.7. When commenting upon the Separation of Powers in the UK. is asserting that Lord Hope is wrong and that Parliamentary Supremacy is the ultimate controlling factor. This comment from Lord Hope is of crucial importance as he suggests that the Rule of Law could be used as a check and balance upon Parliament’s legislative power.17 How Would the Judiciary React to a Sovereignty Clause? We have already seen the comments from the judiciary in the Jackson case regarding their position in relation to the doctrine of Parliamentary Supremacy. so this does raise concerns about the impact of this upon the doctrine itself and it is worthwhile considering them. Would such an Act mean that Parliament is hijacking the role of constitutional watchdog from the judiciary? Would trying to put the doctrine of the Supremacy of Parliament itself onto a statutory footing contravene the Rule of Law? Perhaps it would as there would be too much power concentrated in one source – Parliament. especially given the recent attacks upon the traditional doctrine of Parliamentary Supremacy from all quarters. and in accord with the UK constitution. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament’s legislative sovereignty”. Giving Westminster Parliament ultimate law making power without allowing the judiciary to review that position would contravene the rule of law. and significant changes do not materialize under the radar. Care needs to be taken to make sure that the government does not persuade Parliament to usurp too much power. The long established checks and balances of the judiciary upon Parliament. I do not however envisage any such situation”. Page72 .S. Parliament would be too powerful.Blackstone believed that a true separation was not desirable as the existence of the doctrine of the Supremacy of Parliament would mean that Parliament would be too powerful (Blackstone. there is scope for a clash between the clause with its underlying purpose and the judiciary. 7. He said: “If the time should come when our Parliament deliberately passes an Act — with the intention of repudiating the Treaty or any provision in it — or intentionally of acting inconsistently with it — and says so in express terms — then I should have thought that it would be the duty of our courts to follow the statute of our Parliament. He felt the UK needs some level of cross-over between bodies to act as a check and a balance.8. and the Courts may. in conjunction with the commentary upon the clause stating the underlying purpose. given Lord Hope’s comments. does give rise to legitimate concerns about the impact of the clause upon the UK constitution. Whilst some may think that all this is a far cry from what the current proposals are in the EU Bill.18 Conclusion In light of what has been outlined above. If the clause does survive its passage through Parliament. If the clause does survive its passage through Parliament the likely final solution will be to merely say that the UK can ultimately legislate contrary to EU law if is so wishes to do so. Putting Parliamentary Supremacy within the control of Parliament via an Act of Parliament would fall foul of this. it was unsurprising that the Conservatives did not put forward a bill that tried to put the doctrine of Parliamentary Supremacy fully upon a statutory footing. 2001). we need to keep these matters in mind to make sure that it stays that way. and due to the explanatory notes saying that Parliamentary Supremacy is to be put on a statutory footing. where he asked what would the UK courts do if they were faced with an Act that contravened EU law but it did so expressly. whilst rarely exercised. The fact that they are intending to put a ‘sovereignty clause’ in the bill though. be less likely to defer to Parliament than they have been in the past and be ready to challenge such an Act on the grounds of the Rule of Law. need to be protected. This would be an attempt to answer the question raised by Lord Denning in McCarthy’s Ltd v Smith *1979+ ICR 785. 5 U. (1 Cranch) 137 (1803) established that they did have the power to do this – despite the constitution being silent on this matter) – otherwise the legislature would have too much power. This would be akin to the US Supreme Court being unable to rule actions of the US legislature to be unconstitutional (the case of Marbury v Maddison. . then the UK Parliament would be reliant upon. (b) that the value of each vote cast is equal to that of every other vote.7 The May 2010 General Elections 8.1 INTRODUCTION (i) In a democratic State the electoral process exercises determining power over those who hold political office. then there are legitimate concerns about such a clause. and calls government to account. The EU Bill is confirmation that some people do not feel confident leaving matters to an unwritten doctrine.6 Case for and against reforming the simple majority system 8. however. They would rather that the situation be spelled out expressly for the avoidance of doubt. That is why it is imperative that we all keep a close eye on the clause’s passage through Parliament.5 Voting systems (refer to pages 338-343 Hilare Barnett) 8. the domestic courts to follow the UK Act using the doctrine of the Supremacy of Parliament. It is the electorate. then that would be a welcome situation. the purpose is something else. which confers the power to govern. the response of the Courts would almost certainly be the same as if there were such a clause in place. subject to limited restrictions.3 The Constituencies and the Boundary Commissions 8. What then is the point of the EU Bill? If the answer is the short and simple one: to achieve clarity and certainty. If such a situation did. and we did not have a ‘sovereignty’ clause.4 The election process 8. Page73 Chapter8: THE ELECTORAL SYSTEM CONTENTS: 8.This situation has never arisen. (ii) If the electorate is to enjoy true equality in constitutional participation it is of fundamental constitutional importance that the electoral system ensures four principles: (a) that there is a full franchise. If such a circumstance arose. If.1 Introduction 8.2 The franchise 8.8 Recent reform 8. and is an assertion of ultimate constitutional control. and expect. Page74 8. on a point of law. no period of residence is necessary.2 THE FRANCHISE (i) The Representation of the People Act 1948 introduced a full franchise of all men in women respecting the principle of ‘one person. citizenship. to the Court of Appeal. The court held that a person could. and who might spend as little as 26 weeks a year in residence in those towns. (v) Service voters-members of the armed forces.(c) that the conduct of the election campaigns is regulated to ensure legality and fairness. but for the service. There is also provision for postal voting by those living overseas. The question before the court was whether two students who took up residence in their university town a few days before the qualifying date. (b) Minors (persons under 18 years of age). one vote’. be regarded as a resident in more than one place at a time. even though his name appears in the electoral register for each constituency. even if their names appear on the electoral register: (a) Aliens. excluding citizens of the Republic of Ireland. whether serving at home or abroad. spending the rest of their time at their parents’ home in another part of the country could be regarded as ordinarily resident in their university town for purposes of the electoral register. Appeal lies from his determination to the County Court and thereafter. Representation of the People Act 1983 eligibility to vote is dependant upon residence in a constituency on the ‘qualifying date’ (currently 10 October in England. (iii) The register is prepared once a year by the registration officer of each constituency. (iv) The meaning of residence for electoral purposes was considered by the Court of Appeal in Fox v Stirk (1970). for these purposes. Wales and Scotland). However. it is a criminal offence for a person to vote in more than one constituency. Any objection to the inclusion or exclusion of any person in or from the register must be made by 16 December. The register comes into force on 16 February and remains in force for 12 months. and their spouses-shall be registered as if they were living at the address at which. . (d) that the voting system is such as to produce both a legislative body representative of the electorate and a government with sufficient democratic support to be able to govern effectively. and not being subject to legal incapacity. which is heard by the registration officer. (ii) Under Section 1. (vi) The following persons are not entitled to vote. There is provision for judicial review. voting age (now 18 years and over). they would be normally be resident. crown servants and British Council staff overseas. The Parliament (Qualification of Women) Act 1918 provided that a woman shall not be disqualified by sex or marriage from being elected or sitting or voting as a member of the House of Commons. Except for Northern Ireland. the representation within constituencies. (Section 3 of the Parliamentary Constituencies Act 19126 as amended by the Boundary Commissions Act 1992). Page75 (v) Parliamentary constituencies shall. each constituency should have the same number of voters within it to ensure that all votes have equal value. The former are disqualified for voting five years. as far as is practicable. Each constituency is represented in Parliament by just one member who has secured a majority of votes in a general election or a by-election.3 THE CONSTITUENCIES AND THE BOUNDARY COMMISSIONS (i) The United Kingdom is divided for electoral purposes into 659 constituencies or voting areas. The Boundary Commission is however. A local inquiry may have to hold. Scotland and Northern Ireland have been created under the House of Commons (Redistribution of Seats) Act 1949 and 1958. the reports being submitted not less than eight or more than 12 years from the date of the submission of the last report. The Secretary must lay the Boundary Commission report in Parliament together with a draft Order in Council for giving effect. notice must be given in the constituencies affected and representations invited. entitled to depart from the strict application of this principle if ‘special geographical considerations including in particular the size. to its recommendations. lack at the moment of voting to understand what they are about to do. (f) Those who for reasons of mental illnesses. sub normality.(c) Peers and peeresses in their own right (Irish peers may vote). It is for the presiding officer at the polling station to decide whether or not a person lacks such a capacity. 8. with or without modifications. Wales. (iv) As a basic principle. conducted as a result of the seat falling vacant during the life of a Parliament. the latter for five years in the constituency in question.) (ii) Four permanent Boundary Commissions for England. The ideal size . (e) Persons convicted of corrupt or illegal practises at elections. follow local government boundaries and local ties and any inconvenience caused the proposed alteration must also be considered. (d) Convicted persons undergoing sentences in penal institutions. (iii) When a Commission has decided to recommend changes. Each Boundary Commission is headed by the Speaker of the House of Commons and comprises a senior judge as Deputy and two other members who are not Members of Parliament. shape and accessibility of a constituency’ so require. (an election in a single constituency. drunkenness or other infirmity. The draft order must then de approved by resolutions in each House before the final order is made by the Queen in Council. The duty of the Commission is to review and report to the Home Secretary. . Note: The reluctant attitude of the courts towards controlling the Boundary Commissions’ exercise of power is understandable given the politically charged nature of the subject matter. one value’ seems to be departed from and if viewed strictly.of each constituency is found by dividing the total electorate in each Commission area by the number of constituencies in that area. In R v Home Secretary ex parte McWhirter (1969) the Labour Party feared the loss of up to ten constituencies as a result of the Commission’s recommendations. having being aggrieved by the Boundary Commission’s proposals instituted legal proceedings. The reason given for failure to produce the draft Orders was that it made little sense to implement changes given that local council boundaries were under review at the time. or conversely had taken into account irrelevant considerations. this means that an individual vote in Scotland or Wales is more powerful than an individual vote in other parts of the United Kingdom. which your vote carries. but inviting the House of Commons to reject the Orders. however. (vi) In practice. (vii) The political difficulties-generally the loss of a number of ‘safe’ seats by one party-which arises from boundary changes have given rise to challenges in the courts. In other words. without the draft Orders in Council which were necessary to implement the changes. which the Lords again rejected. The Home Secretary introduced the House of Commons Redistribution of Seats Bill. this formula may be departed from. The Rt Hon Michael Foot MP sought an order of prohibition and injunctions to restrain the Commission from putting the recommendations to the Home Secretary alleging that the Commission had misinterpreted the Rules.. which is more appropriately dealt with in Parliament (separation of powers) and thereby infringing the privileges of Parliament. the weight. as because of the smaller constituency population. one vote. leaving the Lords’ amendments intact. The Court of Appeal rejected the argument relying on the considerable discretion built into the rules by the Parliamentary Constituencies Act 1986. the Labour Party. which the Home Secretary rejected. It felt that there was insufficient evidence to show that in compiling its report the Commission had failed to take into account relevant considerations. The principle of ‘one man. Judicial inquiry in this matter comes very close to questioning a matter. The application for mandamus was withdrawn. The Home Secretary then suggested compromise amendments. varies according to where a voter lives. Subsequently the Home secretary introduced the draft Orders in Council. fewer votes are required to elect a member. the incoming Conservative Government reintroduced and passed the Orders. but not the remaining. A constituency in the Scottish Highlands would be so large so as to be unworkable if constituencies were arranged on the equal average population basis. (viii) In R v Boundary Commission for England ex parte Foot (1983). Because of the population distribution in for example the Highlands of Scotland or rural Wales. In 1970. implementing some of the recommendations regarding large urban areas. The House of Lords introduced amendments. not all votes have the same value as some electors are more equal than others. . The Home Secretary laid the report before Parliament. certain categories of persons are ineligible for election and others are disqualified under the Act.3 Eligibility of candidates (i) Under the House of Commons Disqualification Act 1975. Under Section 1 of the Act. Any Member of Parliament may put down a motion to the House.4. A royal proclamation dissolves Parliament and orders the issue of writs for the election of a new Parliament. and election to Mayor. the maximum life of any Parliament. Note: The Electoral Administration Act 2006. Mayor of London and Assembly Members of the Greater London Authority from 21 to 18. In 1973 a Speaker’s Conference recommended that the motion initiating the by-election process should be within three months of the vacancy arising. (ii) In addition.2 By-elections By-elections take place following the death or retirement of a Member of Parliament. Commissions. (Section 7 of the Parliament Act 1911). reduces the age of qualification for election to the House of Commons or a local authority. Tribunals and other bodies whose members are appointed by the Crown. the following classes of persons are disqualified from membership of the Commons: (a) holders of judicial office (b) civil servants (c) members of the armed forces (d) members of the police (e) members of non-Commonwealth legislatures (f) members of Boards of Nationalised Industries. 8.Page76 8. There is a limit laid down by law as to the time period in which a by-election must be held. . The Prime Minister controls the timing of General Elections.4 THE ELECTION PROCESS 8. Section 17. the eligibility for election to Parliament does not arise until the age of 21. a number of restrictions on eligibility apply: (a) Persons under the age of 21: While the age of majority is 18.1 General elections General elections must be held every five years. which if successful.4. although the dissolution of Parliament lies within the prerogative of the Crown. orders the Speaker to make a warrant for the issue of a writ commencing the election procedure.4. 8. It should be noted that while the law regulates the conduct of constituency campaigns. (d) Members of the clergy: A person who has been ordained ‘to the office of priest or deacon’ or who is a Minister of the Church of Scotland may not stand for election.Section 10(2) of the House of Commons Disqualification Act 1975.4 The conduct of election campaigns (i) The Representation of the People Act 1983 governs the law relating to election campaigns. The disqualification commences from the date of the report of the Election Court on the practices and will last.(b) Peers: Members of the House of Lords or persons succeeding peerage are not eligible for office. (e) Bankrupts: persons declared bankrupt are ineligible for election to the House of Commons and if already a member may not sit or vote in Parliament until he is discharged as a bankrupt or the adjudication annulled. the Speaker of the House is notified and following confirmation of the illness. If an alreadyelected Member of Parliament is authorised to be detained on grounds of mental illness. (f) Persons convicted of treason are disqualified until pardon or the sentence has expired. the absence of regulation at national level.4. The Member’s seat is declared vacant (Section 141 of the Mental Health Act). a person succeeding to a peerage has a limited right to disclaim his peerage. in relation to any constituency for a period of five years and in relation to the constituency in which the practices occurred for a ten year period. Page77 8.other than via broadcasts controls is a matter for concern. If a member of the House of Commons succeeds to a peerage. the Member may be disqualified from sitting in Parliament. If the corrupt practice only comes to light after the election. he has one month in which to disclaim his peerage or resign from the House of Commons. proscribing certain unlawful practices and providing challenges to the legality of a campaign. (g) Corrupt practices at elections: any person found guilty of corrupt practices in the course of an election may be disqualified from membership of the house of Commons. Under the Peerage Act 1963. (a) Expenditure . (c) Persons suffering from mental illness: mental illness is a common law disqualification. it virtually ignores regulation of the national political party campaigns (ii) In an age of mass communication and ever–increasing ‘personality politics’ in terms of political party leaders. controlling both the amounts of expenditure and the manner in which it can lawfully be spent. The court accepted the contention that the intention behind the broadcast was not to promote the candidature of Douglas – Home in his own constituency but to provide general information about the Party to the general public. but nevertheless lodged . (1998) the Times 23 Feb European Court of Human Rights. It was held that an offence had been committed even though the promoters were seeking to prevent election of a candidate rather than directly promote the election of a preferred candidate. Section 76 of the act permits the Secretary of State to set and raise the permitted amounts of expenditure. the applicant was in fact acquitted of the Section 75 charges. All accounts relating to the election expenses must be reported within 21 days of the election result. The group was prosecuted under Section 75 for incurring expenditure with a view to promoting the election of a candidate without authority of an election agent. (v) In DPP v Luft (1977). In R v Tronoh Mines Ltd (1952). Broadcasting is confined to broadcasts made by the British Broadcasting Corporation and Independent Broadcasting Authority.(i) Section 75 of the Representation of the People Act 1983 provides that no expenditure shall be made other than by a candidate or through his or her electoral agent. The court held that the expenditure had been incurred with a view to promoting the interests of a party generally. During the 1992 general elections she had distributed 25. in line with inflation. 000 in the Halifax parliamentary constituency outlining the views of the various parliamentary candidates on abortion. (ii) This is to maintain fairness between candidates and providing a mechanism for accountability as to election expenses. The 1983 Act imposed a limit of L5 on such unauthorised expenditure. rather than an individual candidate. As a result of the summons being issued out of time. an anti -fascist group had distributed pamphlets in three constituencies urging voters not to vote for National Front (extreme right-wing candidates).Tronoh Mines placed an advertisement in The Times urging voters to vote socialist. Each candidate is obliged to appoint an election agent.000 leaflets at the cost of L10. the expenditure did not fall within Section 75. Expenditure on national party election broadcasts is met from central Party funds. and accordingly. charged with incurring unauthorised expenditure with the view of promoting or procuring the election of a candidate contrary to Section 75 of the Representation of People Act 1983. The company and the Times were charged under the Act. in due course. (viii) There was a challenge that the UK electoral expenditure restrictions were a violation of Article 10 of the ECHR (freedom of expression) in Bowman v United Kingdom. BBC or IBA. (iii) Any expenditure exceeding the prescribed limits amounts to a corrupt practice under Section 75(1). (vii) In Grieve v Douglas – Home (1965) Alec Douglas-Home’s election was alleged to be void on the basis that he had participated in a National Party Political Broadcast on behalf of the Conservative Party and had not declared the cost of this expenditure. that the advantage incurred was incidental and not direct. to the returning officer. The applicant was. No broadcast may be made without the consent of the participating candidate. The court held that no offence had been committed by the candidate. The applicant in this case was an anti abortion campaigner. (iv) Several challenges to expenditure have been presented to the courts. (b) Broadcasting and elections (i) No broadcast may be made other than through the BBC or IBA. (iii) The general duty of fairness was raised by Rt Hon David Owen MP in R v Broadcasting Complaints Commission exparte Owen (1985). The BBC is not controlled by statute but by Royal Charter and is under a duty to preserve impartiality. David Owen had complained to the Commission that the allocation of time to various parties. Page78 The Court held that the operation of Section 75 of the 1983 Act amounted to violation of the applicant’s rights under Article 10 of the ECHR. (ii) The IBA is under a statutory duty to ensure that the news is accurate and impartial and that political parties are given a fair allocation of time for political party broadcasts and news coverage of their campaigns.an application with the European Commission on Human Rights alleging that Section 75 amounted to violation to her right to freedom of expression contrary to Art 10 of the ECHR. Section 75 did restrict freedom of expression in a manner that was prescribed by law and was introduced to secure a legitimate aim. The Commission referred the application to the European Court of Human Rights after attempts at a friendly settlement with the government failed. On an appeal to the court it was held that the Commission had jurisdiction to consider complaints about general fairness rather than the fairness or otherwise of particular programmes. The Court was therefore of the view that the spending limit imposed by Section 75 could not be justified as necessary in a democratic society. Judicial review will lie if either body infringes these rules. In these circumstances. The Committee on Party Political Broadcasts (a non-statutory body) which consists of representatives from the broadcasting authorities and from the main political parties which decides on allocation of broadcasting time. namely equality between candidates seeking election. but that the Commission had acted lawfully in allocating time on the basis of the number of seats won rather than votes cast. It is allocated on the basis of the number of votes for each at the last general elections and at by-elections between general elections. principally the Social Democratic party was unjust or unfair under Section 54 of the Broadcasting Act 1981. the court concluded that Section 75 effectively imposed a complete ban on the applicant disseminating her views effectively in the pre-election period as the spending limit was too low and she had no access to other forms of broadcasting. Similarly it was important to ensure the freedom of expression of the opinion of the people in the choice of the legislature. and this might mean restricting the right to freedom of expression. . Note: It seems inevitable that the spending limit will be increased as a result of this decision and the incorporation of the ECHR into domestic law by virtue of the Human Rights Act 1998 which came into force in October 2000. was sufficiently ‘governmental’ in nature (due to the BBC’s obligation to observe impartiality which arose out of contract with the government) as to warrant the conclusion that the matter was susceptible to judicial review. having refused to participate in a debate. To ‘take part’ in a constituency item means to take an active part in. In Ruffle v Rogers (1912) the election papers were incorrectly counted and affected the outcome of the election. The applicant party sought to challenge the decision of the British Broadcasting Corporation and Independent television Commission to allocate it one five minute party political broadcast in the run-up to the 1997 general election. The election was declared void but the court made clear that had the miscount not affected the result. ex parte Referendum Party (1997). Tony Benn MP. an unsuccessful candidate or their nominees. The applicant party was adversely affected by the adoption of such an approach because. Page79 . The High Court held that the respondents had not acted irrationally in taking into account previous electoral support as a factor in allocating party political broadcasts. (v) In R v British Broadcasting Corporation and Another. The respondents had adopted a policy of regarding the fielding of at least 50 candidates by a political party as the threshold requirement for the granting of one political party broadcast and had determined that the decision to grant more than one party political broadcast would be taken in the light of a number of other factors including previous electoral support. On the challenge to the legality of the broadcast. The election was declared void and awarded to the runner-up. it was held that no offence had been committed. disqualify a candidate from membership of the House of Commons and declare the runner-up duly elected or to order a fresh election. The application was dismissed. despite the fact that it was fielding some 547 candidates. every other candidate in the constituency must consent to the broadcast. In Marshall v BBC (1979) the candidate. The court has a power to order a recount. was filmed while canvassing in the streets. (ii) In Re Parliamentary Election for Bristol South East (1964). The complaint can be made by a registered elector.(iv) The consent of participants in broadcasts is required and if a candidate participates in a broadcast with a view to promoting his own election. who had recently succeeded to a peerage stood for re-election. a Divisional Court of the Queen’s Bench Division of the High Court. The respondents had considerable discretion in weighing all factors involved and this was not a case such as would justify intervention by the courts. Auld LJ stated that the allocation of political party broadcasts. declare corrupt or illegal practices. the election would have been upheld. Such challenges go to the Election Court. (c) Disputed Elections (i) Any challenge to an election campaign must be made within three weeks of the result being declared. it had never before contested in a general election and therefore had no track record of electoral support. Such donations are lawful provided that they comply with .5 Political Party funding (i) In the United Kingdom there is no provision for State aid for political parties. which would replace the current system whereby the head of each household registers the names of all voters living at that address: a system which is open to abuse. (ii) In late 1997. (iii) In May 1995 the Nolan Committee on standards in Public Life reported on allegations of improper payments being made to Members of Parliament by lobbyists. Individual registration would be required. (c) Existing controls under the Representation of the People Acts to remain (v) On the issue of public funding the Report recommended that political parties should be entitled to receive an amount of public funding equivalent to the sum donated by an individual in any year: thus for every L 10 donated the party would receive L10 state funding. (vii) The Electoral Commission’s Annual Report 2007–8. The Committee intended to examine the issue to political party funding in its second inquiry but the intention was blocked by the Prime Minister. (viii) Concern continues to surround donations to political parties from overseas donors who have companies registered in the United Kingdom. the Party funding report made a number of recommendations. These included: (a) A cap on donations and loans of L 50. The aim is to reduce the possibility of electoral fraud. made to opposition parties in Parliament on the basis of a fixed sum for every seat won plus an amount for every 100 votes cast. Parties are dependent upon the support of the membership.4 million in donations.2 million.000 (b) Spending controls with an overall single limit on expenditure of L 150 million to be spread over the life of Parliament. however. Approximately 30% of the Conservative party funds come from companies whereas 55% of the labour party funds come from trade unions donations.4. (vi) The Electoral Commission has recommended that there be established a national register of electors to replace or supplement the current local registers. He effectively stonewalled the question in Parliament during the Prime minister’s Question time in particularly by William Hague. reveals that in 2007 the Labour Party received £20. more importantly from companies and trades unions. Voters would have to provide a signature.8. the Labour Party leader Tony Blair and also the new Prime Minister was questioned in Parliament over his close association with Marlborough Co. the opportunity for independent judicial scrutiny of the probity of party funding was lost. As a result. £21 million and the Liberal Democrats £3. up to a fixed maximum for any one party. the Conservative Party. chairman and the fact that the co had been a huge donor for the labour party and that after election the same Company had been awarded huge publicity in terms of advertising at a major tournament. Payments are. (iv) In 2007 following an enquiry chaired by Sir Hayden Phillips. their date of birth and national insurance number. (ix) The Political Parties and Elections Bill 2007–8 and 2008–9 aims to strengthen the regulatory powers of the Electoral Commission by giving it new powers of investigation and the option of civil sanctions. little representation Of smaller parties (e. hence strong.the 2000 Act. UK the ‘third party’. Page80 8. It will also place further requirements on political parties and donors to clarify the source of donations. Elections and Referendums Act 2000 provides that a permissible donor includes a company which is registered and incorporated within the United Kingdom or another Member State ‘which carries on business in the United Kingdom’.g. Liberal Democrats) (iv) National result may effectively be determine by just a few ‘marginal seats’ (v) Implements a mandate but not necessarily of the majority .6 CASE FOR AND AGAINST REFORMING THE SIMPLE MAJORITY SYSTEM Simple Majority System: Advantages (i) Quick result. local and national (ii) Simple to understand and use (iii) Close link between MP and constituency (iv) Voting preference not watered down by transfer to different candidate (v) Usually clear result (a majority of seats in Commons to one political party). Section 54 of the Political Parties. only the winner relative to the second placed candidate being elected (iii) Two-party dominance. carried out without watering down by compromise derived from coalition Disadvantages (i) No [direct] proportionality between votes Cast and seats won in Commons (ii) Many votes (even an overall majority in a constituency) ‘wasted’.5 VOTING SYSTEMS (refer to pages 338-343 Hilare Barnett) 8. stable government (vi) Clear mandate. . questioned the democratic basis of the current system. and the composition of the legislature as a whole. (iii) Under such a system. rather than weak. it can be argued that the government would have enhanced authority to pursue its electoral mandate. and they are not alone in this.Proportional Representation Systems: Advantages (i) More votes count so greater. may hold disproportionate or even the balance of power (iii) Majority mandate not implemented (iv) Voter does not decide or know to whom his vote ultimately goes Page81 (i) Most of the arguments for reform of the electoral system centre on the alleged defect of the present system. In answer to the charge that proportional representation can result in weal government. former Conservative Lord Chancellor and Cabinet minister. Reformers argue that the status quo results in a government that does not represent the majority of the voters’ wishes. perhaps of ‘marginal’ or ‘extreme’ stance. especially where more that one candidate (with different politics) elected (ii) Better representation minority interests and smaller parties (iii) Coalition produces wider representation in government. (ii) The case for reform is focussed on the principle of democracy and equality in voting power. it is argued that the government of the day. The Liberal Democrats have been arguing for reform for many years. reformers argue that less extreme. government would be the result. wider representation of views. Lord Hailsham. must reflect the wishes of the electors. For democracy to have real meaning. encourages consensus and compromise (iv) Encourages voter participation by more votes counting (v) Enables voter to express more than one (ranked) preference Disadvantages (i) Possibly less stable government (ii) Small parties (in terms of voter support). once duly elected. (vii) One of the often experienced effects of proportional representation systems is that governments are returned with either a very small majority of seats or a minority of seats overall in the legislature. and irrespective of political party. and irrespective of the proportion of votes won in an election. The Liberal Democrat Party regularly achieves approximately 20 per cent of the popular vote at general elections (and has a high success rate at byelections). Under current constitutional arrangements. A member is thus able to gain a detailed knowledge of his or her constituency. (x) There also exist doubts as to the effects of a reformed system on the convention of collective ministerial responsibility. the convention of collective responsibility requires that the Cabinet ‘speaks with one voice’s in order to maintain parliamentary. each member of Cabinet and non-Cabinet ministers and all their Parliamentary Private Secretaries adhere to the decision and do not speak out against it. and leaves little room for the adequate representation of smaller parties. industry and economy. but that overall popularity does not translate into a proportionally related number of parliamentary seats. represents each and every one of his or her constituents in parliament. (v) One explanation for this result is that votes for the Liberal Democrats are spread fairly evenly over the United Kingdom. confidence. minority parties with few seats and relatively small electoral support may hold a disproportionate amount of power. (ix) Under the current system. where less strong government is the frequent result. its geography. as a result. environment . and not concentrated in one geographic area. The doctrine of individual ministerial responsibility might also prove more difficult to adhere to. As a result. although not invariably. it is generally the case that the elected government – always depending upon its majority in parliament – relatively free to implement its electoral programme. (viii) As a consequence of this dependence. Under proportional representation. The rule accordingly requires that. the Member of Parliament. and electoral. less commanding of the confidence of the people. (xii) Irrespective of the proportion of votes won in an election. voters can be far less certain either that the policies for which they are voting will be implemented or of the policies which will be pursued after the election. particularly where a minister felt unable to support and pursue a policy with which he or she disagreed on political principle. (xi) Such a show of unity would prove difficult to sustain in coalition or minority governments. (vi) The simple majority system generally. produces a government with a strong parliamentary majority which is able to implement its electoral programme without undue hindrance. thus producing general political insecurity and the potential for frequent elections.(iv) The simple majority system invariably favours a two party system. where a decision has been made by the Cabinet. governments are also subject to the risk of defeats on motions of no confidence.governments become less cohesive and. Despite the experimentation with the reform. (xv) The unresolved issue is the voting system for elections to the United Kingdom Parliament. the government appointed Liberal peer Lord Jenkins Commission reported in October 1998. wanting to retain single member constituencies but also inject a greater degree of proportionality into the system. solution. for elections to the Scottish Parliament and National Assembly for Wales the additional member system was used. the government appears unconvinced of wholesale reform of the system employed for elections to the Westminster Parliament. 57 . The government has however deferred both issues. and recommended a novel. With large constituencies.1 The verdict (i) UK had its general elections in May 2010. (xiv) A system of proportional representation was used in May 1999 for elections to the European Parliament. and for elections to the Northern Ireland Assembly the single transferable vote system was used. The Commission. (xiii) One of the manifesto pledges of the Labour Party before the 1997 election was a review of the electoral system for the Westminster Parliament and.7. opted for a ‘mixed system’ made up of the alternative vote and regional list systems. Labour was branded by the electorate as a movement unfit for office. The simple fact was that it was a disaster for Labour. The government had promised to hold a referendum on the matter and as seen above. with the added possibility that a Member is less effective in his representation of that constituency in Parliament. once in office. if complex. a party that so recently seemed invincible. such a detailed working knowledge of an area becomes more difficult.7 THE MAY 2010 GENERAL ELECTIONS 8.and populace. Conservatives 307 Labour 258 Liberal Democrats Others 28 In essence. UK faced a hung Parliament. the Jenkins Commission recommended a mixed system of voting. After 13 years in government. The number of seats each party has after all 650 had been declared were as follows. (ii) All three of the main parties lost in one sense or another. Page82 8. of educational failure. A measure of discipline might be imposed upon Labour by the narrowness of the result and the possibility that another election may be around the corner. In fact during the press conference outside No. To gain 117 seats in one day – needed to give Cameron a one-seat majority – was always going to be extraordinarily difficult. and believed that such an outcome was well within their grasp. But once he started to dwell publicly upon his coalition demands – before a single vote was counted – he was asking for trouble. was the least toxic. disaggregated. Nick Clegg brought a freshness and dynamism to the campaign which caught David Cameron and Gordon Brown off guard.7. the Conservative Party is entering one of the most perilous periods in its history. localized. of reckless spending leading to prodigious debt. of sleaze and spin and social collapse. Page83 8. Cameron’s problem was that his credibility as a “change maker”. They had longed for at least a modest majority. 10 Downing Street. It will be scrutinized more vigorously and comprehensively than it ever was in the 13 years of New Labour government. The result may have somewhat different if the proportional representation system was adopted. its verdict was fragmented. (viii) In the wake of this election. who had been always clamoring for proportional representation rather than first past the post system which was retained in the May 2010 general elections. he did not modernize his party enough. the voters were still not sure that they could trust the Tories with a Commons majority. But it was not prepared to give the next prime minister an unambiguous endorsement. But it lacks a true mandate and the authority with which such a vote of confidence invests a party’s ideas. he could convince the Liberal Democrats to .(iii) For the Lib Dems.2 How David Cameron became Prime Minister (i) After the results were announced. after 13 years of New Labour. 10 Downing Street. (vii) Even now. (vi) If anything. Instead. he stated that he was willing to talk to Nick Clegg after he had his negotiations with David Cameron of the Conservatives. His only hope of a comeback is as a matured junior partner in a bipartisan or multi-party alliance. Gordon Brown remained in office at No. (ii) Gordon Brown was somewhat optimistic that if talks between the Liberal Democrats and Conservations (on the possibility of a loose coalition) failed. If anything. (v) The electorate knew that it wanted rid of Gordon Brown. or deliver the “change” message with sufficient consistency. a moment of great opportunity and great danger. (ix) The electoral result was a self fulfilling prophecy for Nick Clegg’s Liberal democrats. (iv) The Tory failure. though deeply traumatic for the party. how long could Gordon Brown remain in No. Harriet Harman. that is for the Liberal Democrats to team up with the Conservatives to form a loose coalition bring the tally 364. became a reality. This would have been a very precarious position if the Conservatives teamed up with the other minority parties and passed a vote of no-confidence. (ix) When talks began on Tuesday the Lib Dem team (David Laws. Nick Clegg followed up with discussions with the Labour power brokers. Lord Adonis. which would depend on a flimsy alliance with smaller parties and would risk defeat with every parliamentary vote. Ed Balls and Ed Miliband) and prepared to open formal discussions with the Lib Dems. there was an air of uncertainty in British politics – in the absence of a loose coalition between the Conservatives and Liberal democrats. Some constitutional experts and lawyers stated that it would be a serous breach of convention and unconstitutional for Gordon Brown to remain as Prime Minister – his duty was to resign so that David Cameron could seek an audience with the Queen. informal negotiations between senior Labour and Lib Dem figures had already been going on for at least two days. (vi) Nevertheless. In fact after the initial discussion with the Tories. who had the legitimate right to form the government? The minority Conservative or Labour. this uncertainty was cleared after some of the negotiation proposals by the Conservatives were agreed upon by the Liberal Democrats and thereafter. the Tories were seriously spooked. (iv) The next scenario was more promising. In such instance. he would have to also get the support of some of the minority parties to touch that figure. Gordon Brown. to enable his party to start its own coalition talks with the Lib Dems. (vii) Talks on forming a coalition between the Lib Dems and the Tories were progressing well but had no endgame in immediate sight when Mr Brown dropped his bombshell: declaring he would resign as prime minister and Labour leader. Cries of “betrayal” rang out in Conservative Campaign Headquarters and candidates from the previous week’s election were put back on standby for a snap return to the polls in case a Liblab pact. (viii) As Labour set up its five-strong negotiating team (Lord Mandelson. (v) In the next few days that followed. Nick Clegg obtained his party’s sanction for adoption of the proposals and this facilitated the ‘lose coalition’ between Conservatives and the Liberal Democrats. Chris Huhne and Andrew Stunell) was astonished to hear the lengths to which Labour was prepared to go to keep the . In fact to lure the Liberal Democrats to his side he suggested that if they teamed up. In truth. Otherwise. 10 Downing Street as sitting Prime Minister. there would be immediate legislation for proportional representation. getting the desired majority and ousting Labour for good as well as the sitting Prime Minister. Mr Brown had even met Mr Clegg face to face. paving the way for another general election.team up with him to garner a total of 315 parliamentary seats though this fell short of the 326 seats needed for a majority government. he would have to contend with a minority ‘loose coalition’ government with the Liberal Democrats exceeding the Conservative figure (307) by only 5 seats. (iii) If such were the case. to an agreed timetable. Danny Alexander. this may pave the way for a proportional representation system in contrast to the current first past the post system. Despite this. Even though the Queen had approved it (and Mr Cameron was already inside No 10). (xvi) As part of the coalition agreement. pursuant to demands from Liberal Democrats. (xi) It did not take long. It was more than we dared hope for” one Liberal Democrat spokesman said. (xii) Thereafter senior cabinet ministers such as Andy Burnham. (xv) As such Labour’s 13 years in power drew to their close and Gordon Brown departed from No. Thus it remains to be seen when the referendum of the people is sought and if given the go ahead.3 The common policies (i) The Prime Minister insisted that the two parties agreed on most policies. 8. (xiv) There was one final chapter. however. their side thought they extracted a good deal from the Conservatives – including more than 20 ministerial seats and a host of Tory U-turns on key policies.7. these included a shift from the current first-past-the-post voting system to the multi-preference Alternative Vote – without a referendum – and. The game was up. due to the majority of support David Cameron was named and appointed the Prime Minister. even as he unveiled an agreement that put off many decisions by establishing independent reviews and commissions. the former health secretary. joined some of Labour’s “big beasts” – David Blunkett and John Reid – in condemning any Liblab pact as an act of desperation and claiming the party would do better to recuperate in opposition. . As a matter of convention. the Lib Dem Federal Executive had not. undertaken to put to a referendum the alternative vote system. bizarrely. He has and audience with the Queen and tendered his resignation. (xiii) The Lib Dems now had nowhere to go except back to the Tories. however. Shortly after midnight on Wednesday morning. “We were prepared to give up pretty much everything. “We offered them the moon on a stick. “Cameron was bending over backwards and then bending even more.” a source close to the Labour negotiating team said.” Page84 (x) What were the Lib Dems demands? According to one Labour source. The complex Lib Dem constitution demands that all sides of the party have to approve major changes – with the result that for a few hours the change of government technically was in limbo. for the talks to begin falling apart. the Conservatives have.Tories out of power. Lib Dems claimed after the breakdown that they believed Labour never intended to enter into a coalition and that some members of Labour’s negotiating team simply wanted to make life as difficult as possible for the Conservatives. a shift to Conservative plans for cutting the deficit. instead of the Lib Dems’ own. this august body did so – and a very British transfer of power was complete. 10 Downing Street as well as from the office of Prime Minister. including an immediate £6 billion of Whitehall savings. reform of the House of Lords. rights to flexible working. as would Tory plans to assert the supremacy of Parliament over the European Union. public sector pensions. The Act established a statutory basis for the appointment and management of the civil service. (iii) Other issues put under review included: local government finance. The Bill provides for fixed days for parliamentary elections. review libel laws to protect freedom of speech. control orders for terrorist suspects. and proposing increases in capital gains tax. scrap the ID cards scheme. (vi) Europe: In an attempt to meld the two parties’ differing stances on Europe. stressing the “ultimate authority” of Parliament. Britain would play a leading role in an enlarged European Union. and the possibility of a United Kingdom Sovereignty Bill. which sets maximum working hours. will be explored. Britain will not join the euro in this Parliament. (v) Civil Liberties: Human freedoms. and introduced a new parliamentary procedure for the approval (ratification) of treaties.1 Introduction The government’s Constitutional Reform and Governance Act 2010 represents the most recent constitutional reform.8. (iv) Mr Cameron shifted his position on several other issues important to Right-wing Tories. a law that the Lib Dems have defended. i) The Fixed-term Parliaments Bill was introduced in the House of Commons in July 2010.8 RECENT REFORM 8. ordinarily to be held on the first Thursday in May . and sentencing in English courts. and regulate the widespread use of CCTV. including shelving promises to cut inheritance tax and give tax breaks to married couples. will be restored “in keeping with Britain’s tradition of freedom and fairness”. The coalition text confirmed that the issue would be reviewed. which have been “abused and eroded”. and introduce a so-called “referendum lock” to ensure that any future proposed transfer of power must be subject to a referendum. halt new biometric passports. (a) The Fixed-term Parliaments Bill 2010 – 11 will bring in fixed term five-year Parliaments and place the dissolution of Parliament on a statutory basis. Constitutional reform proposals currently before Parliament include the following. but no further powers should be transferred to Brussels without a referendum. In particular.(ii) The Tories promised to scrap the Human Rights Act. There will be a commission on a Bill of Rights to “build on” the European Convention on Human Rights and promote “understanding of the true scope of these obligations and liberties”. Page85 8. the Government will introduce a Freedom Bill. The Government promises to limit the application of the Working Time Directive in the UK. The dissolution of Parliament will occur automatically under the provisions of the Bill. thus removing the power of the Crown to dissolve Parliament. iii) The Bill provides for the holding of early parliamentary general elections. The Bill will also reduce the number of parliamentary constituencies from 650 to 600 and place greater emphasis on achieving an equal number of voters in each constituency. The power would be exercisable by statutory instrument. (b) The Identity Documents Bill which will repeal the former government’s identity card scheme. (d) The Public Bodies Bill which confers on Ministers the power to abolish a large number of public bodies without the need for a further Act of Parliament. ii) The Bill provides that the Prime Minister may vary the date of a general election by up to two months earlier or later than the scheduled election. and is designed to cater for short-term crises which require postponement. Page86 8. The Act abolishes the need for Identity Cards and the national register. passes a motion expressing confidence in the government.every five years. (c) The Parliamentary Voting System and Constituencies Bill which will provide for a referendum of the people to be held to determine whether the voting system for general elections should change from the simple majority system to the Alternative Vote system. The Act was the response to the Supreme Court’s ruling in HM Treasury v Ahmed and Others decided in January 2010. (f) The Terrorism Asset-Freezing Act 2010 received the Royal Assent on 17 December. iv) The Report stage of the Bill is due in the House of Commons on 15 September 2010. . within a period of 14 days. The first such election would be on 7 May 2015.2 Electoral law The Political Parties and Elections Act 2009 amends the law relating to the Electoral Commission (the Political Parties Elections and Referendums Act 2000) and amend the law relating to elections (the Representation of the People Act 1983). subject to the affirmative procedure. An early election could also be triggered if at least two-thirds of all MPs vote in favour of an early election. These would be triggered by a vote of no confidence unless the House. The Act replaces the previous temporary Act which was due to expire at the end of December.8. (e) The Identity Documents Act 2010 received the Royal Assent in December. 0 (v) Vacant seat: Number of seats=1 (vi) Total: Number of seats=650. In order to ensure that the nominated Commissioners are in a minority. It is intended to strengthen the regulatory role of the Electoral Commission by making it clear that the Commission’s functions are to monitor and to regulate compliance with the requirements relating to donations to political parties.The Act applies to the whole of the United Kingdom. Percentage of vote=29.0 (iv) Others: Number of seats=28. Section 24. Section 2 of the 2009 Act substitutes a new Section 146 of the 2000 Act. Percentage of seats=100. increasing the minimum number of Commissioners from five to nine and the maximum number of Commissioners from nine to ten.0. The same provisions relate to loans and other financial benefits/ transactions.0. imposing civil sanctions for breach of the Act. Section 10 prohibits donations over £7.500 from non-resident donors. providing that candidates for election may choose that their home address does not appear on the ballot paper at the election. Percentage of seats=4. Percentage of seats=40. Percentage of vote=23.1 per cent.0 (iii) Liberal Democrat: Number of seats=57. which enables the Secretary of State to establish a corporation sole to be the CORE keeper. Section 5 provides for four Commissioners to be nominated by the largest political parties. the time to be counted from the day on which Parliament was first appointed to meet. ordinarily resident and domiciled in the United Kingdom for income tax purposes in the tax year in which the donation was made. Section 3 inserts a new Section 147 to the 2000 Act. The 2009 Act also provides for restrictions on expenditure by those persons who are not yet candidates for election. amends the parliamentary election rules (PERs) found at Schedule 1 to the 1983 Act. providing powers to enable the access to information relating to donations. Percentage of vote=36. Section 6 amends Section 1 of the 2000 Act.0.0 (ii) Labour: Number of seats=258.0. These include the power. Donors must be resident. The result of the May 2010 general election was: Party: (i) Conservative: Number of seats=306. It is a criminal offence to make a false declaration (Section 9(5)). Section 28(3) of the 2009 Act inserts a new Section 3A into the 2006 Act.0. to enter premises and inspect and copy documents. The 2009 Act. under warrant. Percentage of seats=9.500 to either national or local parties. Part 4 of the 2009 Act amends the Electoral Administration Act 2006 in relation to Co-ordinated On-line Record of Electors Schemes (CORE). Percentage of vote=12. Section 9 of the 2009 Act requires donors to make a formal declaration of donations over £7. Percentage of seats=47. On the composition of the Commission. Percentage of vote=100.0 The percentage of eligible voters voting (the ‘turn-out’) was 65. . The provisions only apply when a Parliament has run for over 55 months before it dissolves. there is no clear ‘winner’ of a general election. for the first time since 1974. Also by convention. . as in 1974 and 2010. this requires that a majority of the Members of Parliament will support the government so that it is not at risk of defeat on crucial issues in the Commons which could require the government to resign and trigger another general election. the Leaders of the Conservative Party and Liberal Democrat Party reached agreement on a full coalition government – a form of government unknown in the United Kingdom since the 1930s. the Conservative Party could seek an alliance with the Liberal Democrat Party which would give it a clear majority of seats (306 + 57 = 363). The doctrine of collective Cabinet responsibility has been adjusted in order to accommodate the policy differences between the two political parties without causing a constitutional crisis which could arise if one or both parties were unable to agree and support certain policies.one in which no political party had a clear majority of seats in Parliament. The Leader of the Conservative Party took office as Prime Minister with the Leader of the Liberal Democrat Party becoming Deputy Prime Minister. Alternatively. However. there was no political party leader who could claim the right to be appointed Prime Minister and form a government. a political party needed to secure parliamentary 326 seats. but not invariably. the incumbent Prime Minister. Where. the incumbent Prime Minister is entitled to form an alliance with one or several other political parties in the attempt to form a stable government. should form a government. had both the Labour Party and Conservative Party failed in their attempt to form an alliance with other parties the Conservative Party. or parties. After five days of negotiations. the Labour Party could have sought an alliance with the Liberal Democrat Party and other minority parties in the attempt to create a majority.In order to have a clear majority and the right to form a government. However. Several options presented themselves. In the May 2010 election. To promote certainty and stability. the Conservative Party won more seats (306) than any other party. as the figures above show. an alliance with the Liberal Democrats would leave the Labour Party without the requisite majority (258 + 57 = 315) and would require further parliamentary support from other minority parties to ensure a majority. as seen above. As the governing party immediately before the general election. As a consequence. the two parties agreed that there would be a fixed term five-year Parliament – an unprecedented constitutional development which provides certainty over the timing of the next general election. The Liberal Democrat Party has five Cabinet members. could have governed as a minority government. The fundamental requirement is that any prospective government can command the confidence of the House of Commons. the May 2010 general election. by convention. having the largest number of seats. but was twenty seats short of the necessary majority (326 seats). Normally. Page87 As a further alternative. resulted in a ‘hung Parliament’ -. remains in post until a political agreement can be reached as to which party. 170 (the number of registered voters divided by the number of constituencies). The Parliamentary Voting System and Constituencies Bill 2010 – 11 makes provision for the holding of a referendum on introducing the Alternative Vote (AV) system for general elections. from 650 to 600. the Simple Majority system gave them 165 seats (or 25 per cent) and under the AV system they would have won a mere 96 seats (or 14. A referendum of electoral reform is due to be held in 2011 (one of the Liberal Democrats conditions for entering a coalition government with the Conservative Party). established by the former Labour government and reporting in 1998. rejected the Alternative Vote as the preferred system. rather than the 46 under the Simple Majority system. a Member of Parliament would have the support of a majority of the voters in his or her constituency. the Alternative Vote would become the established system for general elections. the Conservatives would have won 96 seats rather than the 165 under the Simple Majority system and the Liberal Democrats 82. giving an electoral quota of 70. However. If supported by a majority and accepted by Parliament. and that there should be greater equality in the number of voters in each constituency. the Jenkins Commission rejected AV and opted instead for ‘AV-Plus’.The coalition government established in May 2010 agreed that there should be a reduction in the number of constituencies. For these reasons.7 per cent of votes would have won 202 seats under a proportional system of voting. Under other research it was established that the Conservatives who won 30.610. with disproportionality being corrected by a minority being elected under a regional list system. . However. Labour would have won 452 seats rather than 419 under the Simple Majority system. In May 2010 there were 45. the Commission stressed that AV does not eliminate disproportionality in the result and that it operates unpredictably. a mixed system involving the election of a majority of MPs by the AV system. the Commission stated that if AV had applied. On the voting system. there would be no need for boundary changes and it could be introduced without delay. However. it offered more choice to voters who would list candidates in order of preference. The Commission recognized that AV offered four main advantages namely: it preserved the close link between the Member of Parliament and his or her constituency. there are arguments for and against the Alternative Vote system. Applying research into the 1997 general election. the Bill provides for a referendum to be held on 5th May 2011.369 registered electors and 650 constituencies. The Jenkins Commission.6 per cent – less than half their entitlement under a proportional representation system). The Bill is expected also to include provisions designed to reduce the size of the House of Commons and to make constituencies more equal in size. England will have 503 constituencies (minus 30 seats). with the first taking place by October 2013.8.The Parliamentary Voting System and Constituencies Bill 2010 also provides for the reduction in the number of parliamentary constituencies and revises the Rules for redistribution. Wales 30 seats (minus 10). unless the Minister regards it as “impossible or impracticable” for it to be held on that date. Scotland. Rules 5 sets out the considerations the Boundary Commission may take into account: special geographical considerations and local government boundaries. Rule 2 restricts the size of constituencies to within five per cent of the electoral quota (with limited exceptions to provide for special considerations). If that is the case he is to stipulate the date on which it is to be held. Page88 Under the 2010 Bill.3 Further developments After prolonged opposition in the House of Lords.000 square kilometres. Rule 8 sets out the procedure for calculating the number of constituencies in each country (the SainteLogue method used for calculating European Parliamentary constituencies). A referendum on whether to introduce the Alternative Voting system for general elections will be held on 5 May 2011. currently set out in Schedule 2 of the Parliamentary Constituencies Act 1986. It is proposed that there should be regular redistributions every five years. Rule 1 provides that the number of constituencies will be 600. which must be no later than 31 October 2011 (Section 1(2). Rule 7 makes special provision for Northern Ireland which has a relatively small electorate. Scotland 52 (minus 7) and Northern Ireland 15 (minus 3). Rule 6 provides that there are two preserved constituencies to which Rule 2 will not apply (Orkney and Shetland and the Western Isles). Rule 3 provides that each constituencies must be wholly within one of the four parts of the United Kingdom (England. the Parliamentary Voting System and Constituencies Bill finally received the Royal Assent on 16 February 2011. Under the proposed redistribution of seats. Wales. The question to be asked is: . Rule 4 provides that no constituency may be more than 13. 8. Clause 9 sets out the new Rules for Redistribution which will replace Schedule 2 of the Parliamentary Constituencies Act 1986. Northern Ireland). giving greater emphasis to equality in voter numbers within constituencies than was the case under the 1986 Act. The Boundary Commissions are now required to submit reports on boundary changes: (a) before 1 October 2013.At present. making reviews more frequent and more certain. 3 (1) Each constituency shall be wholly in one of the four parts of the United Kingdom. and (b) the Boundary Commission concerned is satisfied that it is not reasonably possible for the constituency to comply with that rule. (2) A constituency does not have to comply with rule 2(1) (a) if: (a) it has an area of more than 12.000 square kilometres.000 square kilometres. . and (b) no more than 105% of that quota. Should the “alternative vote” system be used instead? If a majority of votes are cast in favour of the change. If more votes are cast in favour of retaining the current system the Minister must make an order repealing the alternative vote provisions (see section 8). The number of constituencies in the United Kingdom shall be 600. the Minister must make an order bringing the alternative vote into effect. Section 10 of the Parliamentary Voting System and Constituencies Act 2011 amends Section 3 of the Parliamentary Constituencies Act 1986. Page89 The new rules on the distribution of seats are as follows: Schedule 2 to the 1986 Act Number of constituencies 1. Electorate per constituency 2 (1) The electorate of any constituency shall be: (a) no less than 95% of the United Kingdom electoral quota. 4 (1) A constituency shall not have an area of more than 13. the UK uses the “first past the post” system to elect MPs to the House of Commons. Part 2 of the Act reduces the number of constituencies from 650 to 600. It also reforms the rules concerning constituency boundaries contained in the Parliamentary Constituencies Act 1986. and (b) before 1 October of every fifth year after that. (iii) investigates alleged breaches of the rules relating to donations. (iv) draws on the Register of Members’ Interests for data on donations. Times LR 16 November 2010. as amended by the Electoral Administration Act 2006 and the Political Parties and Elections Act 2009. including in particular the size shape and accessibility of a constituency. Elections and Referendums Act 2000. (v) oversees the conduct of elections and referendums. The Electoral Commission. (b) local government boundaries as they exist on the most recent ordinary council-election day before the review date. A majority of the Committee’s members must be Members of the House of Commons (Section 14). Page90 8. (e) the inconveniences attendant on such changes. the petitioner contested the result of the election in the constituency of Oldham East and Saddleworth (OES) at which he had stood . (d) any local ties that would be broken by changes in constituencies.8. chaired by the Speaker of the House of Commons and having one member appointed by the Prime Minister and five Members appointed by the Speaker of the House.4 Recent case law (i) In Watson v Woolas [2010] EWHC 2702. Is an independent body set up by statute. (i) the Commission maintains the Register of Political Parties. A review of the effects of the reduction in the number of constituencies is to be undertaken by a Committee established by the Lord President of the Council or the Secretary of State. (c) boundaries of existing constituencies.The following factors may be taken into account by the Boundary Commissions. “if and to such extent as they think fit”.: (a) special geographical considerations. The Commission is accountable to Parliament through the Speakers’ Committee. (ii) maintains and monitors donations and loans to political parties. Established under the Political Parties. In addition the Boundary Commission for England may take into account the constituency boundaries for European elections. the decision of the Election Court could be judicially reviewed.. ‘. although having the same powers as the judges of the High Court. found for the petitioner. any false statement of fact in relation to the candidate’s personal character or conduct’ unless they believed it was true and had ‘reasonable grounds’ to do so. The right of the electorate to express their choice at an election was protected by Article 3 of the First Protocol to the Convention which sought to ensure that the electorate based their choice on facts and policy arguments rather than ‘false assertions’ as to the character and conduct of candidates. by a majority of four to three. the Court ruled that while Parliament intended that a lawful decision of the election court was to be final (and therefore not reviewable). sitting in the constituency. ‘. a right which was also covered by Article 8 of the Convention (the right to privacy). This. although of High Court status. Furthermore. and was guilty of an illegal practice contrary to Section 106 of the RPA 1983. The petitioner argued that the respondent (a former Immigration Minister and candidate for the Labour Party) had lied in his election literature in order to sway the vote. the Supreme Court ruled. and for which there was no reasonable belief.. however. exercised the more limited jurisdiction conferred under the Representation of the People Act 1983. The Administrative Court refused the application. Section 106 of the RPA was also designed to protect the reputation of candidates. . The Election Court (of the Queen’s Bench Division). Section 106 did not interfere with statements which were true. The respondent sought judicial review of this decision. declared the election void (under Section 159 of the RPA) and ordered that the respondent be disqualified from standing for election to Parliament for a period of three years. The Election Court ruled that the respondent had been personally guilty of an illegal practice. the Court ruled that High Court judges sitting as judges in the Election Court. The respondent then appealed. for the purpose of affecting the return of any candidate at the election’. was rejected by the Court. The respondent won the seat by 103 votes. That restriction was proportionate to the legitimate aim of the section.as a candidate for the Liberal Democrat Party. accordingly... enjoyed less power than the High Court and that. that the court had a discretionary power to order partial forfeiture of the value of an impermissible donation to a political party rather than a total forfeiture. arguing that the Election Court. on the well-established principle that the High Court cannot subject itself to judicial review of its decisions. Mr Woolas also argued that the decision violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. The action was brought under Section 120 of the Representation of the People Act 1983 (the RPA). Parliament could ‘not have intended that a decision that had been made on a wrong interpretation of the law’ could not be challenged. (ii) In R (Woolas) v Watkins (2010). (iii) In R (Electoral Commission) v City of Westminster Magistrates’ Court *2010+ 3 WLR 705. but only with statements which were untrue. Section 106 provides that it is an offence to publish. 7 Hereditary Peers 9.1 Membership 9.1 MEMBERSHIP . Page91 Chapter9: HOUSE OF LORDS CONTENTS: 9.8 The Reforms 9. must bring forward legislation within six months of the judgment becoming final to reform the law. (v) In Green and MT v United Kingdom (2010) the Court of Human Rights ordered that the government. having failed to implement its judgment in Hirst. (vi) In R (Chester) v Secretary of State for Justice Times LR 17 Jan 2011. his Lordship said that amending the law would be controversial.(iv) In Hirst v United Kingdom (2004) the European Court of Human Rights ruled that the blanket restriction which deprives all prisoners of the right to vote – irrespective of the length of their sentence or the seriousness of the offence committed – was unlawful.5 The Case for Unelected Lords 9. and that the controversy would be one not about the law. However. was repugnant to Article 3 of the Protocol 1 of the Convention.6 The Impetus for Reforms 9.2 Functions 9. which disenfranchises prisoners. The responsibility for reform was a political responsibility and remained with the government – not the judiciary. Jaws LJ accepted that section 3 of the Representation of the People Act 1983.4 The Case for an Elected Lords 9. but about social policy.3 The Case for Bicameralism (Two Houses of Parliament) 9. The decision leaves open the question of whether certain prisoners may be subject to restrictions. the Court of Appeal ruled that it was not the function of the court to construe existing statutes so as to confer on the courts the power to decide whether prisoners should be allowed to vote: it was for the government to decide on appropriate amending legislation to comply with the decision of the Court of Human Rights. either directly (such as in Australia and in the USA) or indirectly (as in France and Germany). Major functions of the Lords include: (a) scrutinising.3 THE CASE FOR BICAMERALISM (TWO HOUSES OF PARLIAMENT) . and (g) with its Delegated Powers and Regulatory Reform Committee. (f) scrutiny and reporting of Bills and draft Bills for their compatibility with the ECHR. (iv) Although Canada similarly shares a nominated second chamber. amending and approving law-making proposals which have been passed by the Commons. the current complexion of the House as one which is exclusive to lineage (Hereditary Peers) or appointment (bishops. Law Lords.2 FUNCTIONS (i) The bicameral structure of Westminster places the HOL as the upper house of Parliament. whilst a Hereditary Peer may disclaim his right under the Peerages Act 1963. a Life Peer could not. the Lords keeps watch over delegated legislation 9.(i) Historically. Page92 9. with the passage of the Appellate Jurisdiction Act. (ii) Despite the active role the Law Lords have played in debates. nomination remains an uncommon method of composition when second chambers of other countries are characteristically elected. their very presence in an element of the legislature represents an anomaly and a blot on the doctrine of separation of powers. (c) as a debate chamber. and the undoubted knowledge they bring to such debates. both primary and secondary. (b) Bills may also be initiated in the Lords. In 1867. Such appointments are irrevocable. Life Peers) took form. membership of the Lords was confined to Hereditary Peers and the representatives of the Church of England. (iii) Life Peers were ushered in 1958 with the Life Peerages Act. (e) scrutiny of European legislation. (d) scrutiny of the government. about the reform of the legal profession and human rights. inter alia. Lords of Appeal in Ordinary were appointed to conduct judicial business of the House. This will change when the CRA 2005 comes into effect with the founding of the Supreme Court of the UK. With that. they do not continue to hold their seats neither at the government’s mercy nor the electorate’s liking. (iii) In the five weeks since Parliament reassembled before Christmas in 2005. As such. It has helped to create a culture in which the Government accepts that it has to justify the decisions which it takes on our behalf in the Council of Ministers. The clearest example of an appointed second chamber is the Canadian Senate. judges and bishops do not take the party whip.” (Lord Bingham) (ii) Many have said that reforming the Lords would be at the cost of the expertise and specialisation it is now filled with. Attending peers also receive allowances for overnight stays away from home. the Lords enjoy greater individual freedom than the Commons where party whips exerts a strong presence. and have continued ever since.(i) “The selective and detailed approach of the House of Lords Committee and its various subcommittees is widely admired throughout the EU. That the Lords are unelected means that once appointed. to which members are effectively appointed by the prime minister. “It is in part the introduction of life peers which explains the revival of the House of Lords. or even the appetite for it. The independence of the HOL also stems from the fact that its large train of cross-benchers. but the Lords has done so. the Commons has not been able to secure a debate on Iraq/Afghanistan. free from the government’s tight legislative agenda. they have no qualms in debating “unpopular” issues which the government would not have risked airing in the Commons. For this among other reasons it is not a popular body. Proposals for its reform were first made within seven years of its creation. members of the HOL do not receive a salary but is paid only a daily attendance allowance and reimbursed for their travel costs. and be seen to be. Moreover. Page93 9. This in its turn has done much to enhance the reputation generally. with participation by four former foreign or defence secretaries. and among the institutions of the EU in particular. .” (Barnett) (iii) There is then really no guarantee that peers appointed to the Lords would possess the necessary credentials to excel as a legislator. A proliferation of the backwoodsmen syndrome is likely. two former chairmen of the Commons Foreign Affairs Committee and plenty more. This points towards a process of election. the consideration being the Lords’ perception of public interest. democrat c and representative. whether direct or indirect.” (Lord Hope) (ii) As a debating chamber. issues may be discussed with greater depth.4 THE CASE FOR AN ELECTED LORDS (i) “International experience suggests that if a second chamber is to earn the respect of the public it must be. of the system of scrutiny of EU legislation at Westminster. as well as for secretarial and research assistance. four chiefs of defence staff . (iv) Save for the Law Lords. the independence of the Lords has been further fastened. the figure has been five times that . the Lords inflicted a major defeat on the government’s Broadcasting Bill by voting to deny Sky Television exclusive rights to the 8 most important sporting events of the year. In a thriving democracy. 60 defeats”. (v) The absence of elections leaves the Lords in destitute of legitimacy and mandate to act as legislators. both Tory and Labour. (ii) That the Lords does not have any constituents emboldens its members can safely propose and debate legislation on contentious matters without fear of a political backlash and ensuingly. the then heavily Tory-flavoured Lords rejected Labour bills thirty-nine times. (vii) The year 2000 saw the Lords breaking a (contested) convention by rejecting a piece of delegated legislation . On the other hand. (iii) Scrutiny of legislations in the Commons has often been belittled as effectively a party political tussle rather than a rigorous assessment of the merits of the legislative proposals. this scenario of an electedchamber being frustrated by an unelected one is nothing short of unacceptable. Labour also tasted defeat in .the Greater London Authority (Election Expenses) Order 2000.5 THE CASE FOR UNELECTED LORDS (i) The unelected nature of the Lords had been heralded as the source of their independence. Introduction of elections would displace this very source of independence. (v) The wrecking amendment passed by the Lords to the Local Government (Interim Provisions) Bill in 1984 caused the Tories to reconsider its plans to retroactively nullify the results of the 1984 elections to the greater London Council. there have been 13 defeats of government business in (the Lords). a significant number of amendments stemming from the Lords represent changes of principle. which included a part of 1997 and most of 1998. In the first session of a Labour -dominated Parliament. With over 170 cross benchers who pledge allegiance to none. (iv) The independence of the Lords has helped it to challenge the government.(iv) As Jack Straw noted in the Queen’s Speech debate in 1998. (vi) The House of Lords Bill was expected to face a tough fight in the House of Lords. the loss of office at the next election. In an average session when Labour has been in power.on average. Several Lords threatened to disrupt the Government’s other bills if they continued with the plan to abolish the hereditaries’ right to sit in the House of Lords. 9. “in an average session when the conservatives have been in power. when the Opposition find themselves helpless in face of a large parliamentary majority in the government’s hands. (vi) In what was described as “the biggest government upset in the Lords since 1988”. (ix) The proposed creation of an incitement of religious hatred offence in the Anti -Terrorism.its Criminal Justice (Mode of Trial) Bill which had sought to remove the right of defendants to choose jury trial in “either way” offences. this is no where near . The spotlight of media attention will continue to focus on the Commons. as a result. (xiv) Should the Lords be subjected to a more proportional voting system. Page94 9. it might be the inevitable case that the reform of the Lords would usher in a reform of the way we vote for our government. (xi) Hadfield had also noted that elections might also result in 2 different parties gaining control of 1 House each. Whilst it is possible for members of other faiths to be appointed to the Lords by being made a Life Peer. (xii) “If both Houses are democratically accountable and representative. not the Lords.surely the Lords would boast of a superior mandate! As such. creating the prospect of a legislative deadlock.would be atrophied. in the Lords not. as can be witnessed in Canada and Ireland. and depending on the ballot box. Crime and Security Bill was repeatedly rejected in the Lords and was eventually dropped altogether. not the Lords. Both will then claim a mandate for their actions and each claiming a superior mandate to the other.6 THE IMPETUS FOR REFORMS (i) The momentum for reforms to the House of Lords is chiefly fuelled by the questionable composition of the HOL. (ii) Lords Spiritual: This right of representation is not one shared by other faiths and its continued being reflects the special constitutional status commanded by the Church of England. and then curious glances would be cast on the legitimacy of the Commons .to provide a democrat c and legitimate check on the work of the Commons . what will be the justification for giving greater weight to the Commons than to the second chamber? There is likely to be a call to reassess the democratic arguments for the legitimacy of the Parliament Acts 1911 and 1949. the very reason for reforming the House . the same party might wrest control in both Houses.” (David Feldman) (xiii) Counter arguments are that The prime minister must command a majority in the Commons. (viii) It was only with the Lords intervention that the making of control orders under the now Prevention of Terrorism Act 2005 is placed under judicial control rather than the Home Secretary solely. Should this materialise. political talent will be concentrated there. (x) Hadfield had observed that elections might result in a House wholly dominated by political parties. A vote of no confidence in the Commons is fatal. Political power will continue to reside in the Commons and. In order to overcome the political imbalance.an automatic entitlement to a guaranteed number of places. it is the PM who makes the final recommendation to the Queen who by convention would rarely question such nominations. (iv) Statistically. As a result. Where there were 1. intended to be working peers. (vi) This was the stark reality the Labour Government had to face when it took over in 1997. it remains the case that ultimately. both hereditary and life. there is no formal mechanism by which a balance between the parties can be established and maintained against the wishes of the Prime Minister. only 695 survived the following year. Historically justifiable. The main criticism of these life peerages is that the system of appointment has been politically motivated and this undermines the legitimacy of the House of Lords. are spared from accountability to the electorate. The current cash for peerage affair nicely illustrates the fact that the Commission has not helped to lessen the PM’s powers of patronage. To address such criticisms. there is an inbuilt bias in appointments. to fortify the Labour bias in the House of Lords? (viii) Nonetheless. i. (iii) Life Peers: Criticisms have been focussed on the fact that a system of appointment on the recommendation of the PM is an inappropriate way to recruit a legislative chamber. Whilst MPs are voted in on account of merits. non-departmental public body. attached to the Cabinet Office. Currently. (vii) Thus the delay in implementation of the second stage facilitated the then Prime Minister to appoint more political life peers whilst at the same time reducing the number of hereditary peers to 92. hereditary Peers are no longer entitled to membership of the Lords. actively participating in the work of the Upper House. (v) If the Prime Minister insists that the working life peers should reflect the political party’s strength in the House of Commons. (see below). as did Margaret Thatcher and as was the case with the Conservative government being in power for a continuous period of 18 years. Mr Blair establishes the HOL Appointments Commission which is a non-statutory. it has been noted that approximately one third of former government ministers will receive life peerages. such representation is however no longer tenable in age where the values of multiculturalism and secularism pervade. peers are largely viewed as “hacks” of the PM. the PM enjoys great patronage. Page95 9.295 members in 1999. the Prime Minister appointed an unprecedented number of life peers. (ii) Peers. Peerages are conferred by the Crown on the advice of the Prime Minister. Was the decision to delay the second stage a political one.e.7 HEREDITARY PEERS (i) With the House of Lords Act 1999 (“HLA”). In fact it should be noted that the second stage of the reforms after the House of Lords Act 1999 was passed have not been implemented as yet. more so with the ongoing . a. Pursuant to this. all but 92 remained. (v) Thereafter. They would serve longer terms of office. the remaining hereditary peers would be elected by the hereditary peers themselves. as a first step. The electorate thus has no say over the question of with whom the legislative powers of the Lords rest with nor could they throw out “under-performing” Lords. still brandishes legislative powers. The government’s ultimate objective was to as stated in its election manifesto was to replace the current House of Lords with a newly elected second chamber. It trimmed the HOL by evicting 655 hereditary peers from the chamber. d. and there would be a new statutory appointments commission to choose the appointed members. 9. Nonetheless. c. the then Conservative leader of the Lords. With the Weatherill amendment. elected under a system of proportional representation. although it should take on additional responsibility for scrutinizing constitutional matters and for reflecting the devolution settlement. the Wakeham Commission was set up. threats to the House of Lords Bill from the Majority of the conservative hereditary peers persuaded the government to allow 92 peers to remain. the voting rights of the hereditary peers. Unlike MPs. (iii) In the deal brokered by Viscount Cranborne. (iv) In essence by the HLA 1999: a. The Labour 2001 general election manifesto included a commitment to implement the Wakeham proposals “in the most effective . the right of members of the Royal family to vote in the House of Lords was removed. e. The chamber’s members should largely be appointed with only 12% to 35% elected to represent the “nations and regions”. b. b. Discontent was abounding as to the suggestion that the chamber is to stay largely unelected. peers do not hold the electorate’s mandate but curiously. It proposed that there should be no major changes to the chamber’s powers or to its functions. (ii) This was accomplished by the House of Lords Act 1999. the government broadly welcomed the Wakeham proposals. It was envisaged that these 92 would eventually be phased out by natural wastage. While it had been intended to remove the rights of all hereditary peers to sit and vote.8 THE REFORMS (i) The first commitment made in relation to the House of Lords by the Labour Party prior to the 1997 election to office was to abolish.cash for honours saga. A poll in September 2000 found that 78% expressed a preference for a majority elected element in the reformed House. Elections would be held at the same time as European Parliament elections in 2014. The White Paper is the result of cross-party discussions designed to reach wide-ranging consensus on the issue of reform. to reform the House to be “more representative and democratic” and specifically to remove the remaining hereditary peers. The government proposes a two-stage consideration of the proposals. but nor should it simply rubber stamp government proposals. then a free vote on the various options for the elective and non-elective elements based on an alternative vote system. with a proposed 20 per cent non party political element and 30 per cent appointed party political representation. Retired Law Lords should be appointed as part of the non-political cohort. (viii) The existing conventions which regulate relations between the two Houses should continue. was published on 7 February 2007. (x) The major provisions include: . Cm 7438. The proposals are for an eighty per cent elected chamber and are based on the House of Commons’ vote in 2007 for a wholly elected second chamber (thereby ignoring the House of Lords vote for a fully appointed chamber). Cm 7027. The principles on which the reform would be based are: (a) The primacy of the House of Commons (b) The complementarity of the House of Lords (c) A more legitimate House of Lords (d) No overall majority for any political party (e) A non-party political element (f) A more representative House of Lords (g) Continuity of membership (vii) The government favours a House of 540 members. An Elected Second Chamber. The House of Lords: Reform. Appointments will be made by a statutory appointments Commission. 2019 and 2024.way possible”. Introducing the White Paper. (ix) On 14 July 2008 the government published its White Paper. The Rt Hon Jack Straw MP stated that the Lords should neither be a rival nor a replica of the Commons. Page96 (vi) The government’s White Paper. further reform of the House of Lords. First a ‘paving motion’. possibly to the Senate.(a) a 100 or 80 per cent elected chamber the voting system for elections will be either first-past-thepost. This is a wide-ranging Bill covering a number of different areas. (xii) The previous Labour government’s Constitutional Reform and Governance Bill 2008– 2009 to 2009– 2010 represented the most recent proposals for constitutional reform. (xi) The White Paper notes that the House of Lords has become more assertive in recent years and the government welcomes this assertiveness provided that the primacy of the House of Commons remains. in the 2001–2002 to 2006–2007 sessions the government suffered an average of 60 defeats per session. In summary. 31 and 39 defeats in the Lords respectively. a statutory Appointments Commission will be established (k) appointments would be made on the basis of an individual’s willingness to take part in the work of the chamber (l) the name of the second chamber will change. possibly to around 430 (f) new members will be elected in thirds. the 1998–1999 session and 1999–2000 session the government suffered 39. coinciding with general elections (g) existing members will continue until the new membership is achieved (h) the link between a peerage and a seat in Parliament will finally be broken (i) the right of the remaining hereditary peers to sit will be removed (j) if there is to be an appointed element. the major aspects of the Bill were to: Page97 (a) establish a statutory basis for the management of the civil service which is currently regulated under the royal prerogative (b) introduce a new procedure for the approval (ratification) of treaties . The White Paper states that whereas in the 1997–1998 session. The government intends that the reformed second chamber should complement rather than rival the Commons. The Parliament Acts and current conventions would remain. many of which were considered in the Green Paper. The Governance of Britain 2007. and does not foresee any major change in the powers of the House of Lords. alternative vote. single transferable vote or a list system (b) the primacy of the House of Commons is to be maintained (c) the powers of the House of Lords will remain substantially the same as at present (d) members would normally serve a non-renewable term of 12 to 15 years (e) the size of the chamber will be reduced. it is recommended that there should be arrangements established to enable peers to retire permanently from the House. It is recommended that peers who have attended on three or fewer occasions in the previous session should be contacted by the Clerk of the Parliaments inviting them to take leave of absence for the forthcoming session. If the three peers who have been suspended and those who have taken leave of absence are included the membership of the Upper House is now over 800. resignation and expulsion of members of the Lords (e) introduce new rules on protests around Parliament (f) make new provisions relating to the appointment of judges. (xiv) It remains to be seen whether the new government remains as committed as the previous Labour Government to see the proposals in the 2008 White Paper through.(c) provide for the gradual elimination of hereditary peers by ending the system of elections in the House (d) make provisions to allow for the suspension. A return to active membership would require a three month period of notice. All parties are agreed that the powers of a reformed Upper House should not rival the power of the House of Commons. On retirement. Page99 Chapter10: PARLIAMENTARY SCRUTINY OF THE EXECUTIVE CONTENTS: . especially Nick Clegg’s commitment to reform of the House of Lords coupled with electoral reform. Nonetheless pressure from its Liberal Democratic allies. The total number of peers is now 792. has made recommendations relating to voluntary retirement and leave of absence of Members of the House. The Leader’s Group on Members Leaving the House chaired by Lord Hunt of Wirral. 27 of them being Conservative. 15 Liberal Democrats and ten Labour peers. (xiii) It ought to be noted that the above bill did not see the light of day as the Labour government was replaced by the loose coalition between the Conservative and Liberal Democrats with David Cameron of the Conservatives taking over as Prime Minister from Gordon Brown. The Bill is expected to be produced by the end of 2010. A total of 54 new peers have been appointed to the House of Lords. Anyone failing to respond would be automatically granted leave of absence. All three political parties are expected to produce Draft Bills on House of Lords reform in 2011 for prelegislative scrutiny by a Joint Committee of MPs and peers. 9.9 RECENT REFORM A Joint Committee of members of the Commons and Lords has been established to produce a draft Bill for reform of the House of Lords. There are over 200 crossbenchers. Mill has said. . almost all the terms of almost all (government) Bills are settled” (iii) J. Opposition Days do not necessarily satisfy the needs of backbenchers of scrutinising ministers. (ii) Although a greater share of general debates will be decided by the government. This is in fact inherent in the doctrine of separation of powers in practice in UK where there is a check and balance system between the three organs of state. “the proper office of a representative assembly is to watch and control the government”.2 Debates 10. Alongside QTs.10.6 Public Accounts Committee (“PAC”) 10.5 Select Committees 10.S. (iv) The fact that the House must supply the personnel of the government (the executive) which it is expected to hold to account compounds the matter.1 Introduction 10. pressing the government to debate matters it would otherwise prefer not to address.2 DEBATES (i) The major part of Parliamentary business is at the hands of the government. (iii) 17 days are at the disposal of the Leader of the Opposition and the remaining 3 days for the leader of the second largest opposition party.1 INTRODUCTION (i) The close fusion between the executive and the legislature was described by Bagehot as the “effective secret” of the British constitution.4 Question time 10. The provision of 20 Opposition Days ensures that the Opposition can dictate the business of the day. debates take centre stage in the exercise of scrutinising the executive. (ii) This domination of the executive over the legislature led Calvert to state that “before the formal dramatic part of the legislative process even begins. the opposition has 20 days on which it can dictate the subject matter.3 Early Day Motions (“EDMs”) 10. Bradley and Ewing observe. 10. (ii) These debates last 41/2hours in total.2. Understandably. 10. Blair skipping the debate on Iraq.2. If granted.” . Downing Street has defended him by saying that it is normal for the PM to be absent from adjournment debates. 10. A successful Member may speak for 15 minutes on the chosen subject and the relevant minister is given 15 minutes for reply. It is a shocking negation of his responsibilities. (v) John McDonnell expressed his displeasure that Mr Blair “cannot find time to attend a debate in the House of Commons about a policy that is undermining his legacy. (iii) Mr Blair has defended himself by saying that he will inform MPs on progress there in the near future.3 Weaknesses of debates as a check on the executive (i) The Iraq War episode has unveiled to us the many loopholes present in this mechanism of debate. the norm being 1 or 2 per session. successful applications are sparse. In the aftermath of Mr. the PM chose to address the Confederation of British Industry (CBI) rather than attend the first House of Commons debate on Iraq.2 Emergency Debates (i) Standing Orders provide that any Member may apply to the Speaker to raise an urgent matter for debate.Page100 10. (iv) Matters which may be thus raised during daily adjournment debates are diverse and may range from a matter relating to his constituency solely to one pertaining to a particular concern. with 2 long debates of 90 minutes each and 3 short debates of 30 minutes each. under Standing Orders. Members take part in a ballot held in the Speaker’s Office. backbenchers are given the opportunity to initiate a short debate on a matter of their choosing. (ii) Due to the disruption they bring to the strict parliamentary timetable. despite the intervention having cost Britain her 130th serviceman. preferring to speak to big business. (ii) When a debate on the Iraq War came up on 24 Jan 2007. only matters deemed to be urgent national importance may be thus raised. the matter will be raised right after the conclusion of QTs and emergency questions where it will be briefly introduced with a 3 hour debate arranged for the next day.1 Daily Adjournment Debates (i) At the end of the day’s business. (iv) CBI Conferences are organised months ahead. (iii) Competition for debate is keen and to grasp this opportunity. as is Mr Blair’s diary so it is bewildering why a little rescheduling was not done. This thus affords more time for questioning ministers than QTs.2. not relate to a sub judice matter and must be no more than 250 words long. Their attempts to force a vote were scuttled. an EDM remains current for the duration of the parliamentary session. 10. Tablingan EDM not only enables the Member to air his view and request a debate. a Callaghan or a Thatcher would not be here to debate at a time of war. there is no means of probing behind ministerial statements. Moreover. In the 2000-2001 sessions. (iii) As with other motions. (ix) As Erskine May noted long ago. they must be worded in parliamentary language. it may simply be sidestepped by not at ending one in the first place! (viii) After that six-hour debate on Iraq. Once tabled. According to her. EDMs may be tabled on any subject. Page101 10. but also helps him to gauge the strength of feeling in the House over the said matter. (v) Hilare Barnett notes that they “provide an important outlet for the expression of views across party lines. Norman Tebbit and Michael Heseltine successfully caused Kenneth Baker. and other Members may add their names in support. If this is the case. subject to that matter not being sub judice. rebel Labour MPs tabled an EDM to debate the recent Carter review into the legal aid service. the then Secretary of State for Education.1 Strengths of EDM’s (i) The EDM No 351 of 1978-79 led to a debate on 28 March 1979 which resulted in the resignation of the government and the ensuing election.(vi) William Hague.” (vii) This shows the true price of missing a vital debate: a media barrage with no legal consequences. to amend the Education Reform Bill. a Churchill. adjournment debates are not followed by a vote of the House. subject to a few procedural rules. EDMs represents “an expression of the mood of the House across a whole spectrum of issues which places pressure on the government to respond. (ii) The 1988 EDM tabled by Tory front-benchers. rebel Labour MPs failed in a bid to stage a symbolic show of defiance over the government’s Iraq policy. (iv) The rules and restrictions on EDMs are sparse in number.” . called it “unthinkable that an Atlee. 1854 EDMs were tabled. then no matter how forceful the artifice of debate is. (iii) More recently. on any subject matter.3 EARLY DAY MOTIONS (“EDMS”) (i) Any MP may table an EDM. the shadow foreign secretary.3. (ii) An EDM may be tabled by one Member or by several. (iii) Appearing on a rota to be decided by the government.1 Ministerial QT (i) QT. are held from 2. (vii) Only a few questions would receive an oral reply whilst the majority will receive a written reply published in the Official Report of the House. All the answers would be recorded in the Official Journal of the Commons.30pm on every Monday. (iv) The Speaker would call the first Member listed on the Order of Business who will then ask the questions. (ii) After 3. No such ceiling exists however in relation to oral answers. 10. This ensures that most departments are featured in QT at least once every 3 to 4 weeks. (v) A Member is allowed only 2 supplementary questions each. is a “rarity” both in terms of resulting in a debate and in bringing down a government. It is for the minister to decide whether and how to reply to questions. The former would be printed on the Order Paper of the day whilst the latter are marked with a “W” and would be segregated into those requesting a priority answer and those requiring a non-priority answer. the Member may ask a supplementary question and when that has been answered. and not more than 2 on any 1 day. Page102 (viii) An individual MP may have 8 questions pending at any one time during a period of 10 sitting days. In the main. This injects an element of surprise into the process and helps to ensure that Ministers command a good grasp of their respective sphere of responsibility.2 Weaknesses of EDM’s EDMs yield very little debates. of which not more than 1 may be addressed to any 1 minister.4 QUESTION TIME 10.3. The 1979 EDM according to Barnett. Thereafter. . departments may refuse to answer a question if the cost of doing so exceeds the advisory cost limit of £600 for written answers. (vi) Questions may be forwarded to ministers for either oral or written answers. minister from several departments may field questions. the Speaker may call on other Members to ask their supplementary questions. Tuesday and Thursday.35pm to 3. as the Standing Orders provide. Such supplementary questions provide an avenue whereby a Member may forward a question for which no notice has been given. Time allocated for supplementary questions is at the Speaker’s discretion. no questions shall be taken save the Speaker deems it a matter of urgency relating to matters of public importance or to the arrangement of business of the house.10.30pm.4. (c) MPs may now electronically table questions. Success or failure on these occasions can greatly strengthen or seriously weaken the political standing of the two protagonists.. (iv) The Leader of the Opposition has the luxury of not needing to table questions for oral answer to the PM but may in lieu ask up to 6 questions to the PM and may raise virtually any facet of governmental policy. (e) As an experiment. It follows that a question wrongly addressed to a PM would not be answered by the PM and who will in lieu refer it to the responsible minister. (a) Strengths of Prime Ministerial Question time (i) Barnett describes that “this is frequently parliament at its best” as its pits the leaders of the 2 main political parties in an oral combat.given the notice requirement . They provide what Barnett calls the “neutral peg on which to hang a supplementary and real.” This is where “the Prime Minister can be most critically tested. now MPs are allowed up to 5 written questions on any 1 day. (ii) Griffith and Ryle termed this as “the direct confrontation of the Prime Minister and the Leader of the Opposition in its most concentrated and highly charged form. MPs may now question several ministers on policy areas for which they have overlapping responsibility. question.” (iii) That QTs are televised ads to the potency as this ensures that MPs are subjected to full public gaze.” (iii) A supplementary question may concern any matter for which the PM carries responsibility or matters which do not fall within any individual minister’s responsibility.2 Prime Ministerial Question time (i) From the conventional 15 minutes session on Tuesdays and Thursdays this was rescheduled to 30 minutes on Wednesdays where it was thought that this would make it more meaningful and in-depth. and (d) oral questions may be put to junior ministers. (b) reductions were made to the number of questions for oral answer printed on the Order Paper..that a supplementary question put to the PM will be “politically stale” (Barnett). 10.4. (a) from the 2 previously.(ix) Members wishing to ask questions are required to give up to 3 sitting days’ notice so as to ensure that there is an adequate opportunity for ministers to prepare the answers and at the same time ensure that the matter is still fresh and relevant. . (x) The following changes were implemented in the 2002-2003 session. The open question averts the possibility . (ii) Questions put to a PM here simply request that the PM “lists his engagements for the day”. Sir Chester points out that many decisions in a department will be taken at a low level without the minister’s actual accord or knowledge. (ii) They relate to matters which “in the Speaker’s opinion. of an urgent character. the foreign secretary to answer an urgent question from the shadow attorney general. In the short 2004-2005 session which lasted a mere 6 months.4 Strengths of QTs Generally (i) There is no denying as to the dynamism QTs bring to the scrutiny role of Parliament. deputy legal adviser at the Foreign Office. a Member wishing to put forth such a question must first give notice to the Speaker before noon of that very day which he proposes to forward the question. The minister will have to then justify that decision (and as a result bring it to the public’s gaze) or modify departmental policy if that was not the result intended. and relate either to matters of public importance or to arrangement of business.4. who resigned in protest at the war. Dominic Grieve. (iv) They assume priority over other parliamentary business and because of this. (ii) QT is “pre-eminently a device for emphasizing the individual responsibility of ministers” (Chester and Bowring).(b) Weaknesses: As with ministerial QT. Page103 10.g. 10.” (Standing Orders). . They provide the avenue by which matters of urgency could be raised for immediate discussion right after the conclusion of QTs.3 Urgent Questions (previously termed “Private Notice Questions”) (i) Such questions are oral questions forwarded to a minister minus the necessity of observing the normal rules as to notice. permission to put such questions is rare and few. (v) The Speaker commands the absolute discretion as to whether to allow the said question to be forwarded. believed intervention in Iraq would be unlawful less than two weeks before the invasion which came in the resignation letter of Elizabeth Wilmshurst. stonewalling. the exercise of the royal prerogative. 730 questions were forwarded which translates to 10% of parliamentary time. forced Jack Straw. Lord Goldsmith. Of course.4. convention again fences up a large swathe of area from being the subject of questions e. by their very nature. (iii) The disclosure that the attorney general. (iii) The tabling of a question which queries this decision and the investigation that follows will bring the decision to the minister’s attention. 23. Lacking both political and judicial controls over them. there is a class exemption in relation to all information relating to “the formulation or development of government policy”. or on which a minister has previously refused to answer. As can be seen. . or to which the answer is a matter of public record. as made possible by the notice requirements. Only questions on matters resting squarely with a minister’s responsibility may be put to that minister and even then. (iv) The enactment of the Freedom of Information Act 2000 is littered with wide-ranging exemptions. (iii) Persistent complaint from MPs monitored and publicised by reports from the Public Administration Committee. or that they are given late. the executive may exercise them in any fashion as it wishes free from prying eyes. they are now once again left beyond the purview of Parliament. As it is. de facto. save perhaps those of the media. and they include. being matters which are nonjusticable following the case of GCHQ.5 Weaknesses of QTs Generally (i) The breadth of matters which may not form the subject of a question impairs the effectiveness of QTs. this means that. (e) trivial or irrelevant questions. (b) questions concerning issues on which the PM has given advice to the Crown in respect of the royal prerogative. (ii) Sir Scott had considered these categories as in need of “serious and urgent revision”.4. convention dictate that a range of issues may not be asked. these matters are mostly matters which fall as prerogative powers. and (f) questions on matters which are sub judice. In particular. QTs are often a stage play as ministers come fully briefed by the Civil Service who would arm them with prepared answers to the questions posed. (vi) The fact that QTs are open to Members from the ruling party as well as the opposition alike raises suspicion that they are being converted into a platform from which the government may promote it’s views or to boast its accomplishments via “planted” questions. that answers are often partial. (c) questions which have been previously put. inter alia: (a) questions bringing the Sovereign directly before parliament or questions reflecting on the Sovereign. even broader than those ensconced in the Code. (d) defence and national security. Page104 (v) Moreover. that they disregard part(s) of the question.10. 10. it is not mandatory for the ministers to answer the questions thus posed. They are responsible for examining matters within the Department to which they are entrusted and to report to the House. if the answer be refused by a Minister.5 SELECT COMMITTEES 10. “An answer to a question cannot be insisted upon. and (b) to give such advice relating to the work of SCs as may be sought by the HOC Commission. To date.(vii) Indeed. (xi) To even out this. ad hoc SCs set up to investigate and report on a specific matter. this has not been realised. (ii) Another Select Committee is the Liaison Committee. the Speaker has refused to allow supplementary questions in these circumstances” (Tomkin) (ix) The ability of the MPs to put down really probing questions is hampered by the lack of information and support staff available to them. (d) at any one time. Ministers can enlist the aid of a skilled team of civil servants to furnish them with answers to written questions and thereafter. undertake research into the questioner’s known interests and concerns in an attempt to foresee and prepare the minister for possible supplementaries. (b) Those that relate to the procedures of the House.5. . This committee.1 The Structure (i) Select Committees include: (a) Those that relate to the running of the Commons itself. Its membership is made up of all Chairmen of the departmentally-related SCs as well as the Chairmen of the Public Accounts Committee and the European Legislation SC. (x) By contrast. (c) Departmentally-related SCs which play an investigative and reporting function.” (Erskine May) (viii) “An answer to a question cannot be insisted upon if the answer is refused by the minister. shoulders the task of co-ordinating the work of SCs. The current system of such committees was established in 1979 following the recommendations of the SC on Procedure. (iii) The function of the Liason Committee is to: (a) consider general matters relating to the work of SCs. established in 1967. some observers have called for a Department of the Opposition which would result in the Opposition being armed with their own support staff of civil servants. Page105 10. it is for the committee members. which in turn reports to the House for approval. to formally elect the chairman.(iv) The Joint Committees. (iii) Powers of SCs (a) to send for persons. unanimous report will be drawn up to be presented to parliament.5. within the boundaries of the work of the department. membership is largely limited to backbenchers. what subject matter to inquire into and to decide what evidence it needs to aid its examination. (ii) The majority of Committees have 11 members. itself a SC.2 Membership of SCs (i) Unlike Standing Committees. (v) The strength of each political party in the Commons is largely mirrored in the membership of SCs. (iii) The Leader of the House. By convention. membership of SCs lasts the life of a parliament. Party whips make nominations to the Committee of Selection. Each has a permanent staff of around 3 to 4 members. if not total. Accordingly.it is open to any Member of any party. 10. Upon the conclusion of an inquiry. This promotes stability of membership and thereby affords an opportunity for Members to develop expertise in the subject matter.5. the government Deputy Chief Whip and the Financial Secretary to the Treasury represent the only ministers who are members. Committees are serviced by Commons clerks and they may appoint specialist advisers. the most notable of which is the Joint Committee on Human Rights with a remit which includes the examination of proposed legislation. papers and records. There also exist a number of joint SCs composed of members drawn from both Houses. Chairmanship of the committees does not invariably fall to Members of the ruling party . under the “advice” of the whips. . (vi) It is the result of negotiation between the government and the Opposition. over membership. Once a decision has been made. (iv) Political party whips exercise great influence. (ii) It is not unusual for committees to vote on party lines though this may be justifiable in respect of highly controversial matters. No governmental approval is needed. an authoritative. Opposition front-benchers are not appointed to SCs. control.4 Workings of the SCs (i) It is for the SCs themselves to determine. every aspect of government administration is potentially susceptible to inquiry. John-Stevas described the 1979 proposals which led to the current edifice of departmentally-related SCs as “a necessary preliminary to the more effective scrutiny of government” and that they afford “opportunity for closer examination of departmental policy. opinion is almost unanimous (that) select committees since 1979 have increased the flow of information coming out of Whitehall” thereby resulting in the enrichment of debates both outside and inside Westminster. the Rt Hon Norman St. analysis and ideas. Despite the allegations of partisanship in SCs.(b) to sit notwithstanding any adjournment of the House. Page106 10. and they had provided a much-needed climate of Parliamentary accountability.... “there are clear indications that the existence of select committees has affected the way government business is conducted. (c) to adjourn from place to place. (iii) The Liaison Committee report in 2001 lauded the system of SCs as being “widely acknowledged to be a success” as they have became “a vital source of scrutiny. (vi) More recently. either to furnish them with information not readily available or to explain matters of complexity not within the committee’s terms of reference.5..an important contribution to greater openness in government”. despite its Labour-dominated ranks. the Transport Committee has brought out a number of critical reports which many viewed as sounding the death knell for the Ten Year Transport Plan conceived by John Prescott and as partly responsible for Stephen Byers stepping down as the Transport Secretary. (ii) As Griffith and Ryle noted. they had made the political process more accessible.” (iv) Standing Committees unlike SCs. (v) The Social Services Committee brought a report which was critical of the government-introduced Social Fund shortly before the 1992 General Election. . stand as a form of pre-legislative scrutiny which enables specialists to contribute to the legislative process by perusing draft Bills before they are presented in its proposed final form. (e) Some SCs would even have powers granted by the Standing Orders to establish sub-committees. (d) to appoint specialist advisers. it remains true that most Committee reports are unanimous and many are critical of government policy. (vii) The SCs ability to send for people and papers mark them out from any other artifice of securing the Executive’s accountability.5 Strengths of SCs (i) The then Leader of the House. The first of such sessions took place in July 2002 and was generally agreed to have gleaned important insights in particular into Mr. where this cannot be ensured. Following the July 2001 election. (iv) Similarly. Indeed. 10. (ii) The Liaison Committee has expressed concern about the system for nomination of members being “too much under the control of the Whips”. This results in there being no formal requirement that the government to co-operate with SC. (vi) The SC on Procedure’s recommendation that there should be power to compel ministers to attend and to give evidence was rejected by the government on the basis that SC should not enjoy the power to issue orders to ministers as such power should be exclusive to the Commons alone. as happened with the Scottish Affairs in 1987 when there were few backbench Tory MPs from Scotland to participate (Budge.and this motion was rejected in a large rebellion by Labour MPs. there was an impasse in the Employment Committee on whether or not British Coal should reinstate miners sacked during the 1984-1985 strike. both ministers and officials” . the SC is not formed.. Crewe. for example the Foreign Affairs Committee divided across party lines in a report on the sinking of the Argentine cruiser General Belgrano in the Falklands War. by the Liaison Committee. (iii) Party influences also make themselves felt in internal division on the committees. Mr Blair. with one Tory MP siding with Labour on this issue. the government sought to remove 2 chairs of SCs . Blair’s views on the internal running of his government. (v) However. a SC composed of the chairs of the departmental SCs.5.Gwyneth Dunwoody and Donald Anderson . (ix) Key recommendations made by the Liaison and Modernisation Committees were adopted by the Commons in 2002 and they include greater resources for SCs. this promise has been found by a study of the SC by Nevil Johnson as having secured “a satisfactory degree of co-operation from . bidding farewell to the previous convention that a PM is exempt from questioning by SCs. announced that he would make himself available for questioning.” On the whole however. including making available assistance by the National Audit Office and more support staff.. with members kept off or removed “on account of their views”. (vii) What SCs have is just an undertaking by the Leader of the House that every Minister “will do all in his or her power to co-operate with the new system of committees and to make it a success. once a year.6 Weaknesses of SCs (i) SCs derive their powers from the Commons and governments try to ensure that the membership therein reflects the balance between the parties. McKay and Newton).(viii) In 2002. an incident in July 2001 indicates that blatant attempts to keep known independentlyminded and critical MPs off SCs would spark off a backbench rebellion. permanence. (ix) In the aftermath of the Westland affair. Precedents were set when Lord Young . In any event. (xv) In the salmonella in eggs affair. (xii) In the Arms to Iraq affair.over the sale of Westland Helicopters . to decide whether or not she should give evidence. impartiality and neutrality. in particular the Director of Information. the government refused to allow witnesses from the DTI. Moreover. Dr Kelly was not questioned as to the government’s policy but rather his own role in the preparation of the dossier and his relationship with journalists. to give evidence to the SC on Defence. (x) The government’s justification for this was that the giving of evidence by a senior civil servant to a parliamentary committee would impinge upon the conduct of government and the relations between a minister and his civil servants. (xvi) When seeking to elicit information in the early 1990s from Ian and Kevin Maxwell. not Ms Currie. revealing him as the source for this information.successfully refused to answer select committee questions. the brothers refused. (b) Those civil servants concerned would be unable to explain or defend their actions. there are limits to it. relying on a claimed right to silence in the light of imminent criminal charges and the risk of . the Ministry of Defence refused to help to contact those recently retired officials whom the SC had wished to meet on the ground that retired officials are not normally given access to departmental papers. At least one member of the Committee felt that Dr Kelly had been “thrown to the wolves” as he was only “a relatively junior official”. to whom a leak of the Solicitor General’s letter had been attributed. The Hutton Inquiry subsequently cleared this decision to call for Dr Kelly as one which could not be “subject to valid criticism”. (xiv) In contravention of the Osmotherly Rules.(viii) Whilst for most parts co-operation is indeed extended.over the privatisation of Rover cars . in a decision criticised by Sir Richard Scott. Ms Edwina Currie only grudgingly appeared before the Select Committee on Agriculture after a heated exchange of letters which resulted in the SC chairman asserting that it was for the committee. Dr David Kelly committed suicide 2 days after being questioned by the Foreign Affairs Committee over claims by a BBC journalist that the government had greatly exaggerated Saddam Hussein’s military capabilities. in particular the 3 pillars of the civil service . it also saw it as unfair for them to be subjected to a second round of detailed questioning as they had earlier appeared before an internal inquiry. (xiii) In 2003. her evidence proved unhelpful just as she indicated them to be. Page107 (xi) According to Barnett 2 implications can be gathered from this episode: (a) That Parliament was neither able to ascertain the accuracy of statements made by the PM in the House nor those made by Leon Brittan in relation to the leaked letter.and Sir Leon Brittan . Margaret Thatcher. and request the House to enforce it. if they insisted on the brothers answering their questions. Ministers should normally accept such a request”. refused to attend the inquiry of the Foreign Affairs Committee into the Pergau Dam affair. The former PM. The committee chairman recommended for the Maxwells to be charged with contempt of parliament but no action was taken. (xxiii) Having secured their attendance. the Leader of the House gave a “formal undertaking” that the government would seek time for such a debate. the SC may find itself hampered by the Osmotherly Rules which were penned following the Arms to Iraq affair. The Social Security Committee was divided across party line on how hard to push. (xxv) Nonetheless. The Rules also provide that ministers retain the right to suggest an alternative official if they feel that the latter is better placed to represent them. (xx) This is not a problem exclusive to civil servants. they may also highlight those matters which a civil servant should not give evidence. which while providing that “where a SC indicates that it wishes to hear evidence from named civil servants. (xxii) Committees have however been heavy-hearted to invoke contempt proceedings. At least one Labour member was worried that. (xix) In 1984. being content to allow bad publicity as the chief sanction of such refusal to attend. Indeed.” . where the Committee does not agree with this. Page108 (xxiv) The basic rule would be that civil servants should give evidence “on behalf of” the minister and under his instructions. it may “issue an order for attendance. the government would not allow the Director of Government Communications Headquarters to give evidence to the SC n Employment which was enquiring into the trade union ban at GCHQ. (xxi) If a Committee is seriously dissatisfied with a refusal to divulge information. (xviii) The subsequent Scott Inquiry into the Arms to Iraq affair was critical of the fact that some witnesses attend committee hearings only to be untruthful or to paint only half the picture. in 1981.jeopardising their own fair trial. the matter could be put forward for debate in the House and a finding of contempt of Parliament would then be possible. (xvii) The SC on Trade and Industry inquiry examining the sale of equipment to Iraq during the conflict in the Gulf was frustrated by the alleged refusal of the A-G and others to give details of the information known to the DTI when the export license expired. it would play right into the hand of the Tories who had wanted more general restrictions on the right to silence. the SCs record in obtaining documents is where “most difficulties have arisen”. (d) “The absence of debate on the floor of the House in many cases will be justified by the pressure on the parliamentary timetable. It recommended that “the onus should be shifted onto the government to defend in the House its refusal to disclose information to a SC”. or indeed appear before them.” However. “no serious problem has arisen. Thus. They also have a much more marginal role in scrutinising legislation. There is no specific Parliamentary procedure which specifically provides for such debates. Sir Robin Butler.” This explains the “high degree of ministerial co-operation with committees” commonly seen. in the words of the Liaison Committee. if this had been approved by the minister. it may not be wise for a duplication of effort for “non-specialist Members of Parliament inexpertly attempting to re-analyse the information examined by the more specialised select committee Members. (xxix) The amount of reports published by SCs which will be debated on the floor of the Commons is only one-third. (xxx) Barnett however insists that there are 4 factors which mitigate this: (a) Successive governments have undertaken to respond to SC reports. which is the principal function of the parallel committees in some other parliaments.” (e) On many matters.6 PUBLIC ACCOUNTS COMMITTEE (“PAC”) . which was adopted by the then Head of the Civil Service. (xxviii) The ability of committees to elicit information from civil servants is further limited by the Armstrong Memorandum.(xxvi) In its second report. (xxvii) The Committee found that the government’s promises to make time for a Commons debate on refusals to provide requested documents not being properly honoured. they could only respond to committees.” (xxxi) The Modernisation Committee in 2002 commented that our SCs were “much poorer in the resources they command than in other parliaments and they have a weak record of stability of membership. more time has been devoted for debate on reports.” Page109 10. who had explained that the duty of civil servants to their ministers were similar to that owed by military personnel to their commanding officer. the SC on Trade and Industry stated that in the vast majority of previous Committees. (c) SC reports form part of the public record available to all. (b) A minister’s unaccommodating behaviour towards SCs may be the subject of assail by the media and “some cogent justification for his reticence will have to be forthcoming. although in recent times. 000 million from the estimated £175 million.7 STANDING COMMITTEES (i) Upon conclusion of the second reading of a Bill. (ii) The CAG enjoys a great degree of independence. clause by clause.(i) Scrutiny over national finances forms a vital clog in the machinery of the Common’s control of the executive and this clog is manifested as the PAC. the PAC has been given a boost. 10. (v) It has the power to “send for persons. (ii) Proposals for amendments to the Bill aired by Standing Committees may be rule out by the minister in charge of the Bill if they are: (a) irrelevant. papers and records” and to report from time to time.1 Strengths of the PAC (i) In the early 1980s. it will automatically “stand committed” to a Standing Committee for detailed scrutiny. being an officer of the House and not the government as well as being assisted by a staff of several hundreds. “scrupulously non-partisan”. backed by the non-partisan PAC” as a “powerful watchdog over the administration of government and the expenditure of public money.6. (b) beyond the scope of the Bill. as De Smith lauds. while the value of its investigations is greatly enhanced by the fact that the Comptroller and Auditor General (“CAG”) sits with it. He can only be removed from office for misbehaviour only on the successful moving of an address to both Houses of Parliament. as the committee may think fit. it is. save the Commons orders otherwise. One day per parliamentary session is specifically allocated for debates of its reports. it exposed the inadequate notice given to the House of the spiralling costs of the Polaris Enhancement Project which had ballooned to £1. (iii) Barnett states that “the independence of the CAG from the government. Its principal designation is to ensure that public money is being spent for purposes intended by parliament and that too. effectively and economically. By convention. (ii) The PAC has power to examine the accounts showing the appropriation of the sums granted by Parliament to meet public expenditure and of such other accounts laid before parliament. It managed to secure the government’s promise that in would in the future furnish the Commons with adequate financial information about defence costs. . the PAC chairman hails from the Opposition. (iii) Although the Commons political equilibrium is once again mirrored in the PAC’s composition.” 10. (iv) With the Government Resources and Accounts Act 2000. the myriad interests currently brought to bear upon proposals would be lost.2 Weaknesses (i) Deliberations at this stage move along party political lines. as Griffith and Ryle conclude. its membership is reflective of the Commons as a whole.(c) conflict with other proposed amendments. ineffective. This is justified on the basis that upon attaining a specialist composition. Page110 10. vague or spurious. (ii) Appointments are made by a Committee of Selection who will be advised by party whips. “has often tended to be devoted to political part san debate rather than constructive and systematic scrutiny”. (iii) Standing Committee.7. The political role of Opposition MPs may prevent them from undertaking constructive criticism. who may come from any party. 10. is appointed by the Speaker of the House and he enjoys the same powers as the latter in relation to selection of amendments for discussion and imposition of the Closure Motion. many Opposition amendments were designed to frustrate or embarrass the government or simply to apply time pressure rather than to enhance the quality of a Bill. being formed to examine a particular Bill and will stand down once that task has been concluded. Thus. unlike SCs. The Committees would risk becoming inward-looking and overly concerned with one subject to the expense of others. (iii) Thus. (d) conflict with the principle of the Bill. a style which is particularly unsuited to examining the factual and technical background to a Bill. . like SCs. The Chairman. the larger the government’s majority. Debates will be constricted and become too technical for the other Members and the public to fathom. or (e) unintelligible. the members might become too familiar with each other’s attitude. (iii) Such committees are not permanent ones.1 Membership (i) They may comprise between 16 to 50 MPs although 18 to 25 is the norm. standing committees will more often than not accept government amendments because “party discipline is largely maintained”.7. (ii) As the Modernisation Committee put it. (iv) Further. the committee stage (of which the Standing Committees play a vital role). It is argued that should Standing Committees turn permanent. the stronger its grip will be on the Standing Committee and the less likely amendments to a Bill may be moved. Again. are not specialists in their areas of remit. “governments with a firm majority will inevitably suffer fewer defeats in committee.2 Collective ministerial responsibility (“CMR”) 11. is “absolutely and irretrievably responsible” for it heedless of his/her participation in it. to the electorate. (iv) The doctrine has two aspects: (a) Collective ministerial responsibility. who. as Barnett submits. and (b) Individual ministerial responsibility 11. after a decision is arrived at. given “the pressure on parliamentary time and the reluctance of ministers to be ‘tied up’ in committee proceedings.1 Introduction 11.’ (iii) In Local Government Board v Arlidge it was held that the court may not intervene in matters for which a minister is accountable to Parliament. . remains a member of it.(v) As Barnett states.” Page111 Chapter11: MINISTERIAL RESPONSIBILITY CONTENTS: 11. it is unlikely that Special Standing Committees will become the standard form of procedure for scrutiny of Bills. through Parliament and parties. (ii) According to Marshall and Moodie ministerial responsibility means ministers being held responsible for the general conduct of government “and ultimately.1 INTRODUCTION (i) The convention of ministerial responsibility (“MR”) represents the vehicle by which political responsibility is delivered.3 Individual ministerial responsibility 11.2 COLLECTIVE MINISTERIAL RESPONSIBILITY (“CMR”) (i) According to Lord Salisbury the convention of CMR puts it that every member of Cabinet.” Nonetheless. (ii) It is essential for the government to close ranks and to display a united front before the Parliament and the public. (vi) Confidentiality of Cabinet discussion is protected by the prohibition against disclosure by members of Parliament. heedless of the final decision. the late Robin Cook and Clare Short handed in their resignation letters. Wilson’s prohibition of ministers from publicly squaring off in a publicly televised debate. Page112 (iv) This convention also covers decisions reached in the Cabinet Committee or the Inner Cabinet as well as to Parliamentary Private Secretaries . In addition rules regarding confidentiality of papers include the rule that government of the day may not release the papers of a successive government without consent of the PM. (b) making disclosures injurious to the country’s relations with other nations. Eric Helfer. Harold Wilson. (vii) On the issue of the publication of ministerial memoirs.the lowest rung on the ministerial ladder. Furthermore papers of the previous government may not be disclosed to government of different political persuasion. Tony Benn and Roy Jenkins openly flouted Mr. In 1975. Even so. (viii) The convention of CMR may be relaxed in certain circumstances (“Agreements to Differ”). under the banner of “agreement to differ”. again waived the convention in face of Cabinet division over UK’s continued membership of the EC rather than risk the convention being expressly “overlooked”. and (c) “publishing information destructive of the confidential relationships on which our system of government is based “. in disagreement as to PM Tony Blair’s decision to drag UK into the Iraq War.are bound to stand in support of it. (v) Records of Cabinet are also cloaked in secrecy from the public eye so as to allow the minister a peace of mind to air his views without having to fear the public reaction. the Radcliffe Committee Report stated that a minister “should be free to use his ministerial experience for the purpose of giving an account of his work”. all members of Cabinet . (b) Public dissent would not be countenanced. . A bickering government would only be viewed as a symptom of an ailing body hence attracting challenges to its authority to remain in office. Thus. subject to him/her not: (a) revealing anything that contravenes the requirements of national security. This is as encapsulated in the Ministerial Code. (iii) According to the convention: (a) When a decision has been reached in Cabinet.any many outside it . no resignations letters were tendered despite allegations and inquiries into serious defects in governmental administration.” To preserve the qualities of anonymity. these waivers allowed both camps to air their views and inform the electorate and to later mend the rift. nor for an overpayment of some £4 million to the Ferranti company due to lack of co-ordination with ministry of Aviation. rather than risk a public display of bitter Cabinet opposition which may lead to deep scarring. (iii) No heads rolled despite the killing of 52 people by security forces in Nyasaland in 1959 (the Colonoial Secretary Leonox – Boyd did not resign). commissioned after the Arms to Iraq Affair. (vi) Ms Edwina Currie resigned in 1989 over the furore caused by her claim that the majority of eggs in UK were contaminated by the salmonella virus. the Westland Helicopter saga also witnessed the resignation of Mr Leon Brittan for his leaking of the Solicitor-General’s letter. 11.3. between 1954 and 1982. over the lack of preparation of the British forces when the Argentineans attacked.1 Responsibility for the Department (i) In the Crichel Down Affair saw Sir Thomas Dugdale shouldering the blame for the flawed report for the acquisition of a piece of land prepared by his department and resigned though it was in no way attributable to him. found that: . neutrality and permanence of the Civil Service. whether he does it or not. Besides the fall of Mr Heseltine. In debate. IMR also dictates that a minister should be responsible for his or her personal conduct. (ii) Thereafter. which he denied. 11.(ix) Viewed positively. Page113 (v) It was only in 1983 with the Falkland saga that Lord Carrington resigned following allegations. (vii) The Scott Report. blames and praises alike fall upon the minister. (ii) In addition. (iv) Nor did James Prior N Ireland minister resign in 1984 following escape of terrorists from Maze prison Exchange in Parliament revealed distinguishing views about accountability. nor did Mr William Whitelaw resign over a breach of security which resulted in an intruder entering the Queen’s bedroom.3 INDIVIDUAL MINISTERIAL RESPONSIBILITY (i) Lord Morrison saw the convention IMR holding a minister “accountable to Parliament for anything he or his department does or for anything he has powers to do. Prior distinguished between responsibility for policy and failure of officials to follow orders and procedures. This has lead to distinction between “accountability” (i. considering Mrs Quinn to be his partner. (xi) “Since Lord Carrington’s resignation in 1982. Mr Blunkett had voluntarily admitted providing the ticket. that it involves matters of “high policy”. David Blunkett. taken together with his conduct relating to Mrs Quinn. the government produced public immunity certificates prohibiting the disclosure of documents which could have led to the acquittal of the defendants. the minister being accountable for his department) and “responsibility” (i.e.(a) Answers given by William Waldegrave in response to inquiries by MPs were not accurate and were apt to misled albeit unintentionally. was established to look into allegations that the Home Secretary. The money had been repaid and no further action was to be taken. resulted in his resignation. chaired by Sir Alan Budd. The Home Secretary was censured by the Standards and Privileges Committee for procuring a rail ticket for Mrs Quinn in 2002 at the time when she was pregnant with her first child. The government claimed the right to do so on grounds of public interest and that the case was a “class claim”. When the report was debated in the Commons. (c) Earlier at trial. several factors have loosened the grip of this convention. it could be seen that the matter remains “firmly in the political arena and dependant upon party political support and most importantly that of the PM. had used his position to ‘fast track’ an application for a permanent residency visa for the nanny of his former lover Kimberly Quinn. (x) According to Hilaire Barnett. From the David Blunkett episode. In addition. ministers have been resolutely reluctant to resign for errors by civil servants. David Blunkett denied personal involvement but took responsibility for the actions of his civil servants. The inquiry reported in December and on 15 December the Home Secretary resigned.” (Bradley and Ewing). there were no resignations. (viii) Despite such findings. a married woman who allegedly had Blunkett’s child and was expecting a second child in 2005. i.e. for acts in which he has a certain degree of personal culpability). there had recently been published a biography of Blunkett in which were quoted candid and damaging opinions about his Cabinet colleagues. The increasing size of governmental departments. The affair and the visa matter were not the only causes of Blunkett’s resignation. the short years of ministerial office and the complexity of government etc have rendered the pure doctrine unworkable (Barnett). Page114 . The inquiry found that correspondence relating to the allegation had come from the Home Secretary’s office. It was also found that the government had deliberately failed to “inform parliament of the current state of government policy on non-lethal arms sales to Iraq” (b) Changes made to the policy of arms export were also kept from Parliament.e. Those comments. the government survived by one vote. (ix) In 2004 an inquiry. 2 Responsibility for Personal Conduct (i) “The most elementary qualification demanded of a Minister is honesty and incorruptibility. (vi) The Minister for Northern Ireland. According to Prof Finer. This affair escalated into a full-scale judicial inquiry into ‘standards in public life’. bringing about his downfall. but the contempt of the Commons committed through his dishonesty over the affair. while chairing the inquiry into the Profumo scandal. who faces prosecution on charges of theft and fraud. had been involved in share-dealing in Anglia Television. Ms Christ ne Keeler. former Conservative Party Chairman.3. when it was alleged that Jeffrey Archer. resigned office after it had been revealed that Mr.” (Jennings). Recent ministerial resignations involving allegations of financial imprudence. Despite being an excellent Heritage Secretary. David Mellor. Lord Lambton resigned from office over his involvement with illegal drugs. voiced that there should be no inquiry into politicians’ private lives by security services other than where state security was under threat. Alan Amos and Michael Brown’s “friendship” with a male companion marked their fall. allegations were made that Members of Parliament had accepted payment for asking parliamentary questions. and to a tightening of the rules regulating the financial interests of all members of the House of Commons. shortly before Mr. A subsequent allegation was made that Mr. Michael Mates MP. Earl Jellicoe Leader of House of Lords was evicted from office over his involvement with prostitutes. not so much over his affair with a prostitute. Also in 1994. It was only when Ms. as noted above. . his fall from grace was secured by ensuing revelations that he and his wife had accepted the hospitality of a PLO official while on holiday. (v) In 1992. the then PM.11. first surfaced. (iv) When revelations as to Mr Cecil Parkinson’s affair with his secretary. revelations of Mr David Mellor’s relationship with an actress and his receipt of gifts came to light.although in each case there were additional factors involved in the resignations – include. did public and political support for him ebb. Mates accepted the loan of a car from Mr Nadir for his ex-wife’s use and he ultimately resigned despite claiming to have the full support of the Prime Minister. an inexpensive watch. Keays published a series of articles in the national press. Mates gave to the businessman Asil Nadir. Similarly. which contained allegations that Mr Parkinson wished to marry her. who became pregnant. (iii) Lord Denning. it is “a personal misadventure of the minister which raises such doubt about his personal prudence or integrity” warrants his resignation. Mrs Thatcher. (ii) In 1963. on whose Board of Directors his wife held a directorship. Nadir fled the United Kingdom. who resigned following a mixture of allegations. Sarah Keays. Mr John Profumo left office. the Heritage Secretary. the Tory party and his wife stood strongly behind him. (vii) Further embarrassment was caused to the government in 1994. one of which involved the receipt of a free holiday from a woman with Palestinian Liberation Organisation associations. Peter Mandelson had been a leading architect in making the Party ‘electable’ and a pivotal figure in the general election campaign. (x) In 2005 the resignation of the Work and Pensions Secretary. (xii) There have also been Instances of this convention being exercised in respect of “financial probity”: The law and custom of Parliament dictates that MPs must declare their financial interests in the Register of Members’ Interests and publicly declare in debate or committee proceedings of any interests they hold which may sway their impartiality. resigned. stating that: . and that the loan had not been disclosed. discussed above. While protesting that he had done nothing ‘wrong’. Secretary of State for Trade and Industry. was in part prompted by allegations concerning shares in a company which was due to bid for a government contract. Page115 (xiv) The Ministerial Code states that: (a) “Ministers must scrupulously avoid any danger of an actual or apparent conflict of interest between their Ministerial position and their private financial interests. (ix) Mandelson returned to ministerial office in 1999 as Secretary of State for Northern Ireland. when in December both Robinson and Peter Mandelson. (xv) In the 2005 Ministerial Code. (xi) The cash for question scandal of 1994 ensued in the tightening of rules regulating the financial interests of all members of the Commons. it was revealed that Mandelson had accepted a personal loan from Robinson to finance the purchase of a London Home. Failure to seek the advice of the Committee was one of the grounds on which David Blunkett. Ministers were advised to consult the Appointments Committee before accepting positions.(viii) 1998 saw culmination of the long running inquiry into the financial affairs of Geoffrey Robinson.a requirement breached by Mr Blunkett in 2005. the former Paymaster General.” (b) Ministers must consult the Advisory Committee on Business Appointments as to any business appointments they intend to take up within 2 years of leaving office . However. (xiii) Ministers of the Crown must give up any public appointments or directorships and divest themselves of any pecuniary interest which may conflict with their ministerial responsibility upon ascension to office. former Home Secretary. David Blunkett. The Code of 2007 makes this compulsory. resigned. only to resign again over allegations that interfered in a passport application of a wealthy Indian businessman who had contributed money to the Millennium Dome for which Mandelson had responsibility at the time. resigned. resigned in January 2008 following allegations that he accepted over £100. (xxi) The Work and Pensions Secretary. Innovation and Skills was formed by merging the Department of Business. He was awarded a peerage in order to return to Cabinet. Ruth Kelly MP. no hard and fast rule could be laid down to govern this sphere. Enterprise and Regulatory Reform.. there need to be clear enforceable rules. Ultimately. Ministers must seek advice. paragraph 7.” (xix) The Committee distinguished between rules regulating financial conduct and those regulating sexual conduct. (xx) Hilaire Barnett’s view is that when the standard of conduct is lowered and the esteem of a government damaged by lack of integrity. A new department has been created: the Department for Energy and Climate Change was established on 3 October 2008. whilst it was acknowledged that sexual improprieties may at time be relevant to the performance of a minister’s public duties.. As for the latter. . (xvii) According to Hilaire Barnett relatively few ministers and other Members of Parliament have fallen from grace as a result of imprudent (or dishonest) financial dealings. resigned her ministerial post unexpectedly in September 2008 to ‘spend more time with her family’. the PM should be endowed with the power to decide whether a minister has upheld the required standard.000 in donations which were not registered.’ Ministerial Code. Ministers will be expected to abide by the advice of the Committee. apart from unpaid appointments in non-commercial organizations. (xvi) In 2007 an Independent Adviser on Ministers’ Interests was introduced. Innovation and Skills. Lord Mandelson is Secretary of State for Business. about any appointments or employment they wish to take up within two years of leaving office.‘On leaving office. (xxii) The Transport Secretary. Gordon Brown brought the EU Trade Commissioner and twice-resigned former Cabinet minister Peter Mandelson back into Cabinet as Secretary of State for Business.25. (xviii) The Nolan Committee endorsed the view that the “public is entitled to expect very high standards of behaviour from ministers. as they have profound influence over the daily lives of us all. (xviii) In a Cabinet reshuffle in early October 2008. (xxiv) In June 2009 the Department for Business. Enterprise and Regulatory Reform (formerly the Department of Trade and Industry) and the Department for Innovation. Mr John Belcher lost both his ministerial and parliamentary seats amidst inquiry into allegations that he had received gifts offered with a view to securing favourable treatment in relation to licenses granted by the Board of Trade. Universities and Skills. then some action is needed. Peter Hain MP. They will oversee the publication of a report listing Ministers’ outside interests and will also investigate alleged breaches of the rules. In his defence Mr Hain claimed that he thought he had put in place adequate administrative arrangements to ensure compliance with the rules on registration. For the former. 2 The Human Rights Act 1998 12.2 THE HUMAN RIGHTS ACT 1998 . The ECHR had the power to rule that UK is in violation of the convention.Page117 Chapter12: THE HUMAN RIGHTS ACT 1998 CONTENTS: 12. Rights Brought Home. Page118 12. This suggestion was opposed by the then Conservative government on the basis that the domestic law afforded sufficient protection for individuals. In 1997.6 The Approach of English Courts to Convention Rights and Interpretation of Domestic Law 12. should they be elected.4 The European Court of Human Rights 12. located in Strasbourg.7 Who Can Bring an Action and Against Whom Can Actions be Brought? 12. the Labour opposition issued a consultation paper on their plans to incorporate Convention rights.1 INCORPORATION INTO UK LAW (i) The UK became a contracting party to the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1951. In 1966 the UK granted its citizens the right to petition the European Court of Human Rights (ECHR). (iii) The Human Rights Act 1998 (HRA 1998) incorporated the Convention (except for Art 13) into English law on October 2. 2000 under the mechanisms prescribed in the Act and not across the board.8 The Dramatic Effect of Article 6: Repositioning the Judiciary in the UK Constitution& observance of due process 12. (ii) Prior to 2000.1 Incorporation into UK Law 12. an individual could not assert his Convention rights through the domestic courts. though this had little impact on domestic law or legislation. In 1996. the New Labour Government published a white paper.5 The Approach of the European Court of Human Rights & Examples of the Convention’s Application in English Law 12.3 The Convention Rights 12. Judges of the UK were powerless to apply it. A Joint Parliamentary Committee on Human Rights has been created. A purposive approach to statutory interpretation will enable domestic courts to protect the rights of the citizen against abuse or excess of power by the State. Court of Appeal. and opinions or decisions of the Commission or the Committee of Ministers. House of Lords. The declaration of incompatibility does not affect validity and is not binding on the parties: Section 4 HRA 1998. (viii) When a new Bill is published. for example. on appeal or in judicial review proceedings. (ii) 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 account” judgments. then certain courts may make a declaration of incompatibility. Section 6 of the HRA 1998 makes it unlawful for any public authority including any court or tribunal. A minister can use a statutory instrument to amend offending primary legislation. the Crown (meaning the Government) is entitled to notice and to be joined as a party to the proceedings: Section 5 HRA 1998. decisions or declarations of the ECtHR.(i) Section 1 and Sch. Section 19 HRA 1998. This does not mean that the Court’s decisions are binding. primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. It was . or as a defence.1 of the HRA 1998 restate Conventions and Protocols as part of UK law with the exception of Art 13. or a ground of appeal or to found an application for judicial review. Privy Council and the Courts Martial-Appeal Court have this power. to act in a way incompatible with a Convention right. Article 13 would have given a remedy for violation in any court or tribunal. The ECtHR takes a highly purposive approach to legislative interpretation. Under Section 8 HRA 1998. The Government did not want to give citizens these powers. obliges the sponsoring minister to make a written statement that it is compatible or decline to make a statement but indicate that the Government wishes to proceed. damages or compensation may only be awarded by those courts or tribunals empowered to do. [contrast with the binding decisions of the European Court of Justice as provided by the European Communities Act 1972] (iii) Section 3 of the HRA 1998 states that so far as possible. (vii) Section 10 HRA 1998 provides for a fast track legislative procedure designed to remove the incompatibility. (iv) Any party to any legal proceedings can rely on a Convention right. This means. People can still apply to the ECtHR in Strasbourg but they will have to show that they have exhausted all domestic remedies. under Section 4 (2) HRA 1998. that it can be used to apply for a stay (stop) of proceedings. The Government felt that they could seek remedies in the higher courts. they may award anything appropriate within their jurisdiction. (v) Where courts cannot interpret a piece of legislation as compatible. (ix) The Act necessitated the biggest project in training judges and magistrates ever managed by the Judicial Studies Board. If a court or tribunal is satisfied of a violation. (vi) In any case where a court is considering making a declaration of incompatibility. Only the High Court. Freedom of thought. Page119 12. Art 11. Art 17. Some admit exceptions.1. Right to respect for private and family life. Prohibition of abuse of rights. Art 16. Art 12. Art 18. In order to enforce a Convention right. No punishment without law.Freedom of expression. (Not incorporated into English law) Art 14. Right to life. Prohibition of torture. Art 4. Note: Some rights are absolute. Restrictions on political activity of aliens. Right to marry. Right to a fair trial. Art 9. Art 13. Briefly. Freedom of assembly and association. Art 6. they are: Art 2. . Art 7. Right to liberty and security.3 THE CONVENTION RIGHTS (i) These are appended to the HRA 1998 as Sch. such as Art 2 and most are subject to restrictions to ensure respect for other rights and freedoms.obvious in 1998 that there would be an impact on precedent and existing judicial interpretations of statute and this has proven to be the case. Art 5. Limitation on use of restrictions on rights. Prohibition of slavery and forced labour. where they are spelled out in full. Art 3. Prohibition of discrimination. the Court of Appeal may consider itself not to be bound by previous binding precedents which are incompatible with Convention rights. such as Art 3. Art 8. Art 10. conscience and religion. Initially or at any time in proceedings. lawful arrest. them to apply the Convention. and those cases deemed admissible go to panels of seven judges. Page120 12. The film director asserted that his freedom of speech under Art 10 was infringed.5. Art 41 provides that the Court can award an applicant “just satisfaction” for pecuniary and non-pecuniary damage. (iii) Following a finding of a breach of the Convention. (ii) Three judges filter applications. but the Court held that such fundamental issues as blasphemy should be decided at the local level and UK was held not to be in violation of Art 10.5 THE APPROACH OF THE EUROPEAN COURT OF HUMAN RIGHTS & EXAMPLES OF THE CONVENTION’S APPLICATION IN ENGLISH LAW (i) ECHR has developed a principle called the margin of appreciation to allow for the cultural and social differences between Member States.1 Article 2: Right to Life (i) Article 2 protects the right to life. No derogation is allowed under Article 15. States are required to abolish the death penalty. use of self defence. The UK decided to ban the film Visions of Ecstasy under its blasphemy laws. The ECJ sits in Luxembourg and interprets Community law for the 25 Member States of the EU.4 THE EUROPEAN COURT OF HUMAN RIGHTS (i) Do not confuse the ECtHR with the ECJ. Lawful execution. In Wingrove v UK [1996]. a case may be referred to a Grand Chamber of 17 judges where a case raises a serious question of interpretation of the Convention or where there is a risk of departing from existing case-law. (ii) In McCann v UK (1995). (ii) Cases against any State before the ECtHR are of equal value to the English and Welsh courts in assisting. The ECtHR is not an institution of the EU. Her application was unanimously .12. the three IRA gunmen shot and killed [suspected of having planted a car bomb] in Gibraltar by the SAS resulted in a finding of a violation of Art 2. (iii) 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 Prosecutions (DPP) should be told by the courts to grant her husband immunity from prosecution in assisting her planned suicide. 12. the State is legally obliged (subject to incorporation of the Convention into domestic law) to make reparation for the consequences of the violation. It sits in Strasbourg. Where the domestic law affords only partial reparation. with most decision-making done on the papers. The ECtHR interprets and enforces the ECHR for the 46 countries that have ratified the Convention. use of force to quell a riot or prevent a prisoner’s escape are permitted. the State has a duty to ensure a reasonably prompt. as required by the Human Fertilisation and Embryology Act 1990. national governments had considerable autonomy – because in IVF treatment there was no international consensus. The Court declined to hold that that it ought to examine the balance of competing interests (hers and the father’s). The Court held that the embryos’ right to life was not engaged. effective investigation before an independent body with an opportunity for the relatives of the deceased to participate: R v SS for the Home Dept Ex P. (vii) Baby’s quality of life In NHS Trust v. there had been an investigation into the death by the Prison Service. The applicants complained that the relevant authorities had failed to protect the life of their son who was stamped on and kicked to death whilst sharing a cell at Colchester police station. going beyond maintaining ventilation. The High Court Family Division judge was not persuaded and denied the declaration. The relationship then finished and the father withdrew his consent to store the embryos. Both parties gave written consent.declared inadmissible. the police and the Commission for Racial Equality but the Minister had refused the family’s request for an independent public inquiry. In this case. that where a death in custody occurs. did not extend to a right to die. They examined the 1990 Act which made written consent mandatory. The Court stated that the right to life. MB (a child) and Mr & Mrs B (parents) [2006] EWHC 507. It was held that the Minister had not met minimum standards set down by the ECtHR in other cases involving deaths in custody in the UK. in the absence of any European consensus on when life commenced. They observed that several other countries gave either party the right to withdraw up to the moment of implantation. There was a wide margin of appreciation – in other words. . (vi) In Evans v UK (decided March 2006). the ECtHR had held that there had been a violation of Art 2 and Art 13. (iv) The House of Lords ruled in 2003. so the embryos would have to be destroyed. where the victim had been killed by his cellmate in Feltham Young Offender Institution. (v) In Edwards v UK [2002]. doctors treating an 18 month old baby who suffered from severe spinal muscular atrophy considered his quality of life was so poor and the burdens of living so great that it was unethical to keep ventilating him to keep him alive and they sought a declaration to this effect. Art 8 did apply and included the right to respect for all parties to decide when to become parents and a fair balance had to be struck between competing individual interests and society. the ECtHR rejected a case brought by Natalie Evans. however. the issue was within each state’s margin of appreciation. Article 2 placed a positive obligation on the Home Secretary to take appropriate steps to safeguard lives and the screening process for risky prisoners was inadequate. It was. as was his right under the Act. which could well be in the best interests of the child. She and her former partner had created embryos via IVF as she was about to have her ovaries removed because of cancer. acceptable to withhold cardiac resuscitation and antibiotics. Amin [2003]. Article 3 imposed positive and negative obligations on states to avoid “Inhuman and degrading treatment and punishment” but this did not extend to condemning the DPP’s refusal to grant her husband immunity from prosecution. because. amounted to degrading treatment.(viii) In R (L) v Secretary of State for Justice [2008] 3 WLR 1325 the House of Lords ruled that where a person died or was seriously injured while in state custody. (x) The Court of Appeal considered the procedural aspect of Article 2 in R (Smith) v Oxfordshire Assistant Deputy Coroner [2009] EWCA A soldier serving in Iraq lost his life as a result of hyperthermia (heat stroke) which he sustained while on duty at his army base. (ix) In R (Gentle) v Prime Minister Times LR 10 April 2008 a panel of nine law Lords unanimously decided that Article 2 (the right to life) did not impose a duty on the government to hold a public inquiry into whether it had obtained adequate legal advice on the legality of the war under international law before the invasion of Iraq. (ii) In Ireland v UK [1978] the ECHR held that the UK Government’s act of permitting the hooding of IRA suspects. the Iraqi prisoners in Abu Gharib). that a particular detained mental patient presented a real and immediate risk of suicide. it was necessary for the inquest into the deceased’s death to satisfy the requirements of Article 2. since questions had been raised as to whether there had been a systemic failure by the state to protect human life. Page121 12. In A v UK [1998].5. The Court of Appeal ruled that members of the Armed Forces were subject to UK jurisdiction wherever they were and that.2 Article 3: Inhuman and Degrading Treatment (i) Article 3 ensures freedom from torture or inhuman or degrading treatment. Article 2 imposed additional obligations on the hospital authorities to do all that was reasonably possible to prevent the patient from committing suicide. drink and sleep and forcing suspects to stand against a wall in an uncomfortable stance. the state was not only accountable for a substantive breach of its Article 2 duty. or ought to have known. No derogation is allowed under Article 15. [2009] 2 WLR 115. The UK’s failure to provide children with protection against serious longterm neglect and abuse was a breach of Art 3: Z v UK [2001] ECtHR. a stepfather hit a boy with a stick. the playing of loud continuous noise. the House of Lords held that where members of hospital staff knew. . This is an absolute duty and it includes degrading treatment (e. A recent ruling finds that smacking only is acceptable. (xi) In Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2008] UKHL 74. deprivation of food. but was also required to investigate the facts and explain how the death or serious injury occurred.g. (iii) The question of corporal punishment has often been raised under this article. the ECHR ruled that Art 3 had been violated. Singh v UK *1996+ ECtHR the treatment of the applicants. permitting an automatic denial of bail. then a prison. In the course of civil proceedings. Page122 12. (ii) In Stafford v UK *2002+ ECtHR. was a breach. (vi) In E v Chief Constable of the Royal Ulster Constabulary. [2008] 3 WLR 1208. they were unable to have the lawfulness of their continued detention reviewed by a court. She was detained in a police station. The fact that a politician rather than a judge kept S in prison went against the “spirit of the Convention” as too arbitrary. the negative duty was not to subject people to torture.(iv) Another area under this article is the minimum standards of treatment in custody. The positive duty was to prevent the infliction by third parties of inhuman or degrading treatment. which was an absolute duty. imposed both a positive and negative duty upon the state. after the expiry of the fixed ‘tariff’ part of their sentence. like Article 2. sentenced indeterminately “at Her Majesty’s pleasure”. she was committed to seven days’ imprisonment for contempt for refusing to answer questions. She was refused legal aid. the House of Lords considered the nature of the state’s obligations under Article 3. This was one of . the applicant was severely disabled and suffered from recurring kidney problems. subject to exceptions prescribed by law and Art 15 derogation in an emergency. the Home Secretary’s decision to keep S in prison longer than recommended by the Parole Board was held to be a breach of Art 5. She was forced to sleep in a wheelchair. was too cold and was not given appropriate help to use the toilet or to remain dressed in a dignified manner. The ECtHR found there was a violation of Art 3. as juveniles. although it was not deliberate. There was no violation of Article 3. The Court took the opportunity to review the authorities – both domestic and from the Court of Human Rights – relating to the state’s duty under Article 3. since. In Hussain v UK. breached Art 5. In relation to Article 3. One area of concern has been detention without a review of its lawfulness. The ECtHR has ruled in the case of Caballero v UK (2000) that S 56 of the Crime and Disorder Act 1998. the House of Lords ruled that the imposition of a mandatory life sentence without eligibility for parole. (v) In R (Wellington) v Secretary of State for the Home Department Times LR 12 December 2008. inhuman and/or degrading treatment. That duty could not be as absolute as the negative obligation because many factors had to be considered. did not amount to a violation of Article 3 such as to justify the refusal to extradite him to stand trial in the United States of America.3 Article 5: Liberty and Security (i) Article 5 protects the right to liberty and security of the person. That was a legitimate consideration. Price v UK [2001] ECtHR.5. In this case the police were concerned that increased action against the ‘protesters’ could lead to an escalation of violence elsewhere in Belfast. which would be imposed on a prisoner convicted of two offences of first degree murder. Lord Carswell recognized that Article 3. entry is unauthorized. 2001. Baroness Hale said “We have always taken it for granted that we cannot be locked up in this country without trial or explanation’. Soviet Russia in the Stalinist era. No other European country had done this in the wake of “9/11`. Oakington Reception Centre provided reasonable conditions. Their Lordships made a ruling of incompatibility. This caused some of the special Government-appointed advocates for the detainees to threaten to resign and caused some backbenchers to threaten trouble. laid down in Magna Carta. as required for derogation. in R (Saadi and others) v SS for the Home Dept [2002] UKHL 41. Seven Law Lords ruled that indefinite detention without trial was unlawful because it was a disproportionate interference with liberty (Art 5) and equality (Art 14). the Law Lords. Crime and Security Act 2001. on grounds not disclosed. is the stuff of nightmares.” The House of Lords were not all impressed by the Attorney’s argument that they. were an unelected and undemocratic body who should not second guess ministers. There were no similar powers over British citizens. did not cite the Convention so much as ancient liberties fundamental to the British constitution. In the ensuing days. Lord Hoffman went further. an Act passed swiftly after the terrorist destruction of the New York World Trade Centre on September 11. The Act again derogates from the requirements of the Convention. The State had a right to control entry and until it had authorized entry.a series of cases diminishing the power of the Home Secretary over sentencing. by the Home Secretary. Lord Scott said `Indefinite imprisonment. claiming the nation was not under threat. It allows British and foreign terrorist suspects to be placed under a control order (meaning house arrest). (vi) In March 2005. They asked why we are the only country in Europe which considers it necessary . associated with. it does not satisfy critics that it amounts to detention without trial. The new Home Secretary declined to release the suspects but announced he would await a decision by Parliament on the legislation. (iv) The House of Lords held. 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 the life of the nation”. the appellants challenged the lawfulness of their indefinite detention under the Anti-Terrorism. Opponents of the Bill. due for its annual renewal in spring 2005. Although this will be reviewed by a judge. Parliament passed the Prevention of Terrorism Act to replace the offending 2001 Act but it was ferociously debated. (iii) In Waite v UK [2002] ECtHR. that detaining asylum seekers while their claims were determined was not a breach of Art 5. including all civil liberties groups. (v) In A (FC) and others v SS for the Home Dept [2004] UKHL 56. such as habeas corpus. No other country in the Council of Europe allows a Government minister to determine sentence length for individuals. the Government were faced with what much of the media portrayed as a constitutional crisis. which enabled the internment without trial of foreign nationals whom the Home Secretary suspected were terrorists. the denial of an oral hearing by the Parole Board violated Art 5 (4) and the lack of compensation for this violated Art 5 (5). as discussed in the previous module. in civil and criminal proceedings. (iii) In Colder v UK [1975] ECtHR. He was questioned for 22 hours and 39 minutes over two days. The procedure followed in the claimant’s case had complied with domestic law and therefore the Secretary of State’s decision could not be quashed. S 34-37 of the Criminal Justice and Public Order Act 1994.8 below) (i) Article 6 ensures the right to a fair trial. Page123 12. the presumption of innocence applies to everyone charged with a criminal offence. A Declaration of Incompatibility was therefore granted. to defend himself in person or through legal assistance of his own choosing or to have free assistance when the interests of justice so require and he has insufficient means. five minimum rights are provided for those charged with a criminal offence: to be informed promptly of the nature and cause of the accusation in a language he understands and in detail. 3. He became eligible for parole and the Parole Board recommended that he be released on license. The conditions of detention under a control order are much more draconian than those of house arrest under the old apartheid regime in South Africa (vii) In R (Black) v Secretary of State for Justice [2008] 3 WLR 845 the Court of Appeal granted a Declaration of Incompatibility in relation to Section 35 of the Criminal Justice Act 1991. M had refused to say anything on solicitor’s advice after 48 hours in detention. ECtHR. (ii) The most dramatic impact of Art 6 was that it necessitated wholesale constitutional reform to the office of Lord Chancellor and the position of the Law Lords. The Court of Appeal ruled that he was entitled to have the lawfulness of his detention determined by a court of law.to do this.5. The claimant was serving a total of 24 years’ imprisonment. The Court held that Art 6 had not been violated. and also refused to ‘give evidence at trial. concerning the right to silence.4 Article 6: The Right to a Fair Trial (see also 12. to have free assistance of an interpreter if he cannot understand or speak the language used in court. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under equal conditions. to have adequate time and facilities for preparation of his defence. but stated that the . The claimant sought judicial review and claimed that his right to liberty was infringed. The Secretary of State refused to implement that recommendation. it was held that a prisoner should have access to a lawyer to allow him to defend proceedings involving a warder. There are three parts to this provision: 1. ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law 2. were examined by the ECHR. (iv) In Murray v UK (1996). The applicants argued they were severely hampered by lack of resources. however. Although the applicants were articulate and they had some help from pro bono (free) lawyers. (vi) Matthews v MOD [2003] UKHL 4 it was held that Armed forces’ Crown immunity was not incompatible with Art 6. not just legal advice. The ECHR held that such questioning and the use of evidence. in Allan v UK [2002] ECtHR. such as note-taking and photocopying.2) [2001] UKHL 62. judges must determine sentence not ministers In R(on the application of Anderson) v SS for the Home Dept *2002+ UKHL 46. the Home Secretary’s power to determine the length of a life sentence was . the use of covert audio and video recording devices in his cell and the visiting area and on another prisoner breached his Art 8 rights and the use of an informer to elicit incriminating statements breached his Art 6 right to silence. The claimant had wanted to bring an action for damages. obtained in this way. The trial length was a testament to their lack of skill and experience. civil or criminal that a litigant was not denied the opportunity to present his or her case effectively before the court and that he or she was able to enjoy equality of arms with the opposing side. although not guaranteed. (viii) On the issue of covert surveillance. in ruling that no claim could be made in tort against the armed forces.000 pages documentary evidence. The refusal of access to a lawyer was. (vii) On the issue of legal aid. a 3/2 majority of Law Lords expressed the view that this decision was a mistake but declined to apply the 1966 Practice Statement to overrule themselves in Lambert. (x) Another thorny issue under Art 6 has been that under the doctrine of separation of powers. the House of Lords ruled in R v Lambert [2001] UKHL 37 that the presumption of innocence in Art 6(2) did not apply retrospectively in appeals against convictions secured in trials conducted before the HRA came fully into effect. during his naval career. Nor was the law straightforward. after distributing leaflets attacking the fast food chain. (v) In Saunders v UK [1996] ECtHR. The facts were complex. a defendant in the Guinness fraud trial in 1990. at trial infringed Art 6. Lord Bingham felt himself bound by the common law. Extensive legal and procedural issues had to be resolved even before the trial started. they mainly acted alone. Page124 (ix) On the presumption of innocence. proved a violation arising out of interviews by Department of Trade inspectors. Ernest Saunders. in Steel and Morris v UK [2005] ECtHR it was held that there had been a breach of Art 6 because the applicants were denied legal aid. when he was required to answer questions without the right to silence. in defending themselves against a defamation action by McDonalds. a violation. involving 40.right to remain silent was of fundamental importance. They had been deprived of the opportunity to present their case effectively and there was inequality of arms. It was central to the concept of a fair trial. In R v Kansal (No. having suffered the effects of exposure to asbestos. If a lack of independence and impartiality on the part of the prosecutor had. The judge said there was compelling evidence against the defendant so he was not going to award costs in his favour. A Declaration of Incompatibility was made in respect of Section 82(4) (b) of the Care Standard Act 2000. (xiii) Art 6 (2): Presumption of innocence In Hussein v UK [2006] ECHR the ECtHR held that the presumption of innocence was violated if a statement of a public official reflected an opinion that a person charged with an offence was guilty. on the facts. Following previous ECtHR case law. informed the trial court that a key witness did not want to give evidence and the prosecution therefore offered no evidence. (xv) In R (Haase) v Independent Adjudicator Times LR 28 October 2008 the Court of Appeal ruled that. These orders involve a form of house arrest for anyone suspected of terrorism-related activity. Page125 . since the rule of law depended on it. the Crown. Damages would only be awarded in exceptional circumstances: R (Green field) v SS for the Home Department [2005] UKHL 14. (xi) Forcing litigating parties into alternative dispute resolution (ADR) (as discussed under the earlier module) was an unacceptable constraint on their right of access to the courts: Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576. In this case. (xiv) In Re MB [2006]. In this case. it was not necessary for the prosecutor to be independent and impartial. The Convention does not guarantee costs to an acquitted defendant. while Article 6 requires an independent and impartial tribunal. (xii) A finding of breach of Art 6 was normally “just satisfaction” in itself. then there could of course be a violation of Article 6. The European Court had been right to describe the complete functional separation of the judiciary from the executive as “fundamental”. Mr Justice Sullivan ruled that control orders.incompatible with Art 6. there was none. violated the right to fair trial. without the provision for first according them a hearing. (xvi) In R (Wright) v Health Secretary [2009] 2 WLR 267 the House of Lords ruled that the provisional inclusion of care workers on a list of people considered unsuitable to work with vulnerable adults. under the Prevention of Terrorism Act 2005 breach these Articles. It was the judge’s remarks that offended against Art 6(2). It also created a stigma which amounted to a violation of Article 8. the House of seven Law Lords held that the Secretary of State’s role was objectionable because he was not independent of the executive. unless he had been proven innocent. resulted in unfairness to the particular defendant. prosecuting. He said they were an “affront to justice” and “conspicuously unfair” and were in breach of Arts 6 and 8. See also Jain v Trent Strategic Health Authority Times LR 22 January 2009. 12. A Home Office Report of 2000 had said that problems in a change in the law could be overcome but the UK Government had not acted on it. at home and in police cells. (vii) A conviction for gross indecency under the Sexual Offences Act 1956 constituted an unnecessary interference with the right to respect for private life. The acts took place in the applicant’s home and did not involve physical harm. There had also been a breach of Arts 8 and 12. the Court had emphasised the importance of keeping the need for appropriate legal measures under review. Since 1986. concerning the question of homosexual consent. The very essence of the Convention was respect for human dignity and freedom. (ii) In Malone v UK [1984] ECtHR. protection of health or morals or the rights and freedoms of others. it was held that this should be the same as for heterosexual consent. Goodwin v UK [2002] ECtHR. It was unsatisfactory for post-operative transsexuals to live in an intermediate zone. while he was suspected of planning an armed robbery.12. (iii) Refusal to give a prisoner access to artificial insemination facilities did not breach Art 8. W was arrested on drugs charges in November 1986 and a forfeiture order came into effect in the following January.5. There was no evidence the tapes were available for wider distribution: ADT v. subject to exceptions in the interests of national security. The State could not bar a right to marry. in denying the applicants a right to marry someone the opposite of their new sex. prevention of disorder or crime. home and correspondence. UK [2000] ECtHR.assignment surgery. police had seized photos and videos of the applicant and other consenting men engaging in oral sex and mutual masturbation. There was little common ground on this. having regard to scientific and societal developments.6 Article 7: No Punishment Without Law In Welch v UK (1995). which involved telephone tapping by the police of a suspect. . was a violation of Arts 8 and 13: PG and JH v UK [2001]. Just because a minority of states permitted this it did not mean this fell within the margin of appreciation. The court held that this was retrospective and amounted to a violation of Art 7. Following a search of his premises. ECtHR. the ECHR held Art 8 was violated. public safety or economic well being of the State. so they had a wide margin of appreciation in determining the steps they had to take to comply: Dickson and Another v UK (18 April 2006) (iv) Covert surveillance of the accused. this was illogical. (v) In Lustig-Prean and Becket v UK and joined applications [1999].5. G had undergone gender re. In Sutherland v UK [1998] ECtHR. considered that military investigations into the sexuality of gay members of the armed forces and their subsequent dismissal were grave breaches. Since the surgery was provided by the State.7 Article 8: Private and Family Life (i) Article 8 provides a right to respect for family and private life. The Court held that it was a breach of Art 8 for the State not to recognise a change of legal gender. (vi) In I v U. between contracting states. the ECtHR. Covert surveillance is now regulated by statute. ” Where Art 8 was engaged. result was reached in Laskey. Jaggard and Brown v UK (1997). ritualistic beating and branding. The majority (3/2) held that. on the facts. This case arose from the Daily Mirror’s disclosure that. it was necessary to conduct a parallel analysis. the court must carry out a carefully focused and penetrating balancing exercise to reconcile the restrictions that the Art. The only issue before the Court was whether the interference was “necessary in a democratic society. (xii) In AB (Jamaica) v Home Secretary [2008] 1 WLR 1893 the Court of Appeal ruled that the government had acted unlawfully in relation to a person who had overstayed her visa and subsequently married a British citizen who had always lived in the United Kingdom. applying the principle of proportionality. as proportionality is a principle of English law. “it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. despite her denials. the prisoner. The House of Lords reached this conclusion by. including Human Rights cases. Prison visitors had been strip searched in 1997 because the authorities suspected that their relative.” said Baroness Hale. in private. (x) The House of Lords. They had been convicted under the Offences Against the Person Act 1861 which.” The Court observed that there was a significant degree of injury and wounding and the State authorities were entitled to consider the potential harm to health. and applying the proportionality test to each. In media cases where both articles were engaged. looking at the comparative importance of the rights being claimed in the individual case and at the justifications for interfering with or restricting each right. Daly [2001] UKHL 26. Page126 (xi) The House did not depart from this principle in Campbell v MGN [2004] UKHL 22. applying the common law but it was supported by the Art 8 (1) right to respect for correspondence: R v SS . in Wainwright v Home Office [2003] UKHL 53 took a restrictive approach to the issue of privacy. Lord Hoffman said there was nothing in the jurisprudence of the ECtHR which suggested the adoption of some high-level right of privacy.for the Home Dept Ex p. This involved another consenting group of homosexuals who. engaged in sadomasochistic maltreatment of the genitals with nettles and staples. “Put crudely. it was agreed. This was a very important case. . The Mirror had gone too far in the details they had published.8 and Art 10 rights impose on one another. This case is very important as the House ruled that the courts must apply a proportionality test in judicial review cases. had been dealing in drugs in prison. (ix) A policy that prisoners must be absent when privileged legal correspondence held in their cells was examined by prison officers was unlawful. was an interference in their right to respect for private life but it was carried out “in accordance with the law” and pursued a legitimate aim of “protection of health or morals”. The House held that there was no general tort of invasion of privacy at common law and Art 8 did not guarantee a right to privacy. supermodel Naomi Campbell was secretly attending meetings of Narcotics Anonymous.(viii) The opposite and somewhat surprising. as such. His rights should have been considered before a decision could be reached that it was reasonable and proportionate to expect him to immigrate to a foreign country in order to save his marriage. Lord Justice Sedley ruled that the Asylum and Immigration Tribunal and the Home Office had failed to address the correct issues. (xiii) In Liberty v United Kingdom Application No 58243/00. Neither judicial review nor an action in damages was an adequate available remedy since the absence of any need for the officer to show reasonable suspicion made it ‘difficult if not impossible’ to prove that the power had been improperly exercised. The applicants had complained to the Interception of Communications Tribunal. and that in relation to Article 8(2) the ‘principle of legality’ required the Court to address three questions. providing that a constable may stop and search a pedestrian in any area specified by him if he ‘considers it expedient for the prevention of acts of terrorism’ contained no requirement of necessity and therefore no requirement of any assessment of the proportionality of the measure. The Court ruled that Article 8(1) was engaged. Neither had considered the Article 8 rights of the husband. The breadth of discretion conferred on a police officer. Judgment 12 January 2010. These were: . who required him or her only to be looking for items which could be used in terrorism. The wording of Section 44. (xiv) In Gillan and Quinton v United Kingdom (Application No 4158/05). He was a British citizen and had an inalienable right to remain here. so as to provide adequate protections against abuse of power. Sections 44 to 47 of the Terrorism Act 2000 and the related Code of Practice did not comply with the requirements of legality. the House of Lords ruled that the Director of Public Prosecutions should be required to issue a policy identifying the facts and circumstances that he would take into account in considering whether to prosecute persons for aiding and abetting an assisted suicide abroad. without any requirement of having reasonable grounds for suspecting the presence of such articles. Times LR 11 July 2008 the Court of Human Rights ruled that Article 8 had been violated by the electronic intercepts operated by the Ministry of Defence between 1990 and 1997. The Court ruled that the domestic law at the relevant time had not indicated with sufficient clarity. was unnecessarily and unlawfully wide.The Home Office informed the claimant that she was to be removed from the United Kingdom and that her that her right to family life was not infringed since she and her husband could move to Jamaica to live. (xv) In R (Purdy) v Director of Public Prosecutions [2009] 3 WLR 403. In the Court of Appeal. The applicant was suffering from progressive multiple sclerosis and sought guidance on whether her husband would be prosecuted for assisting her to die should her life became unbearable. See also EM (Lebanon) v Secretary of State for the Home Department Times LR 24 October 2008. the Court of Human Rights found a violation of Article 8. the scope or manner of the exercise of very wide discretion conferred on the State to intercept and examine external communications. the tribunals finding that there was no contravention of the 1985 Interception of Communications Act (now mostly repealed by the Regulation of Investigatory Powers Act 2000). the Director of Public Prosecutions and the Investigatory Powers Tribunal but received no remedy. (b) whether the law or rule in question was sufficiently accessible to the individual and sufficient precise to enable him to understand its scope and foresee the consequences of his actions so that he could regulate his conduct without breaking the law.. As Baroness Hale put it: “.. it was not proportionate. Immigration and Asylum Act 2002) was clear. submitted that the wording of the legislation (Section 65 of the Immigration and Asylum Act 1999 and Section 84 of the Nationality. The House of Lords ruled in favour of the appellant. The Secretary of State. is that the whole is greater than the sum of its individual parts. referring ‘repeatedly’ to ‘the appellant’s human rights’ (and no one else’s). in considering if the right to respect for family life had been violated..Page127 (a) whether there was a legal basis in domestic law for the restriction. The test to be employed when deciding whether a claimant had a reasonable expectation of privacy so as to engage his Article 8 rights was ‘what a reasonable person of ordinary sensibilities would feel if placed in the same position as the claimant and faced with the same publicity. Central to the appeal was the issue of whether.” (xvii) Murray v Express Newspapers plc [2008] 3 WLR 1360. the central point about family life. [2009] HRLR 27. with whom that family life is enjoyed (at paragraph 4). The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others. In 2001. the applicant discovered that his leave to remain in the United Kingdom had expired. The Court of Appeal had ruled that it was the applicant’s right which was the principal consideration. . the decision-maker should take into account solely the right of the applicant or should also consider other family members who would be affected by the applicant’s removal from the country. See also AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32.’ The question of whether a person has a reasonable expectation of privacy is a broad question of fact.. by contrast. The Director of Public Prosecutions was under an obligation to clarify his position as to the factors to be taken into account in relation to prosecutions under the Suicide Act 1961. (c) whether (assuming the first two requirements were satisfied) the restriction was being applied in a way that was arbitrary because. (xvi) In Beoku-Betts v Secretary of State for the Home Department [2008] 3 WLR 166 the House of Lords considered the right to respect for family life. He claimed asylum and also the right to remain under Articles 3 and 8 the European Convention on Human Rights. [2009] 1 WLR 1385.. normally a spouse or minor children.. for example. The applicant submitted that the effect of his removal on all members of his family unit should be considered: the family unit as a whole and the impact on it had to be considered. seeking declarations that they were entitled to consult with their legal and medical advisers without being subject to covert surveillance and that the failure of the authorities to provide assurances that they would not be subject to surveillance was unlawful. is unlawful and in breach of Article 8. That. It is estimated that there are 800. The Court of Appeal (per Sir Anthony Clarke MR) stated that the law should protect children from intrusive media attention. there was a reasonable expectation of privacy. This provision ‘permits the covert surveillance of communications between lawyers and their clients. as explained by Baroness Hale (at paras 68 – 70). that RIPA was enacted in advance of the Human Rights Act coming into force.’ Accordingly. Page128 (xx) In R (Wood) v Commissioner of Police of the Metropolis [2009] 4 All ER 951. even though these may be covered by legal professional privilege and notwithstanding the various statutory rights of people in custody to consult privately with their lawyers. that covert surveillance which is carried out in accordance with the Act ‘shall be lawful for all purposes’. In this case there could be no justification for retaining the photographs once the meeting was over. Section 27(1) of RIPA. (xviii) In S & Marper v United Kingdom [2009] Crim LR 355 the Court of Human Rights ruled unanimously that the retention of DNA samples on police databases taken from people who are acquitted. which must be balanced against the publisher’s rights to freedom of expression under Article 10. . It was also accepted.000 DNA samples and a further 800. but different rights: the right of a person to consult a lawyer in private.000 fingerprint samples which require deletion. Section 28 of the Regulation of Investigatory Powers Act 2000 (RIPA) and the Code of Practice issued by the Home Secretary. (xix) In McE v Prison Service of Northern Ireland [2009] 2 WLR 782. The police argued that the claimant might have committed an offence at the meeting or could commit an offence at an event taking place some months later. The police had photographed the applicant and tried to obtain details of his identity at an annual general meeting of Reed Elsevier plc in 2005. The Court recognized that neither of these rights was unqualified. did not mean that the child had a guarantee of privacy. to achieve compliance with Article 8(2) of the Convention. undermines individual rights. the Court of Appeal considered the right to privacy. in part. the applicants brought judicial review proceedings. The case involved two related.In this case the claimants sought to protect the privacy of their child. Section 27(1) of RIPA provides. however. given its literal meaning. Rather. The claimant was an employee of the Campaign against Arms Trade. nor was there any reasonable basis for fearing that the claimant might commit future offences. and the right to legal professional privilege in connection with communications with one’s lawyer. They had also retained the photographs. At issue was the right to privacy guaranteed by Article 8 of the European Convention on Human Rights. or whose charges are dropped. The Court of Appeal ruled that the taking and retaining of photographs of an individual going about his lawful business required justification. qualifications and bona fides were not in question. allowing for personal circumstances to be relevant to the county court’s assessment of the reasonableness of the decision to seek a possession order. In light of his circumstances it would be disproportionate to deport him. He had not reoffended since his release in 2006. The European Court of Human Rights has begun consideration of the case of Max Mosley v United Kingdom. In this case. The central question. in a unanimous judgment. The applicant had been jailed for seven years for importing heroin. and the lack of an effective domestic legal remedy (Article 13). It was also agreed that the interference with their rights was ‘in accordance with law and pursued a legitimate aim’. the exercise of the power to seek a possession order was incompatible with a Convention right. Page129 . (xxiii) Kay and Others v United Kingdom Times Law Reports 18 October 2010 the European Court of Human Rights ruled. therefore. unanimously. and regarded as significant the fact that a minority of judges in that case were prepared to allow a challenge where. all tenants of public housing. that there had been a violation of Article 8. (xxii) In Khan v United Kingdom (Application No 47486/06) Times LR 3 February 2010. The minority approach in Kay was to be preferred and should be applied. having regard to the occupier’s personal circumstances. the applicants had no opportunity to have the proportionality of the action measured by an independent tribunal. Mosley was awarded £60. Article 8 had been violated. The applicant claims that the UK government failed to protect his right to respect for his private life (Article 8). had been dispossessed of their homes by the local authority following possession orders granted by the court. The Court referred to the ‘debate’ as to the correct interpretation of the House of Lords judgment in Kay v Lambeth London Borough Council. the Court of Human Rights ruled that the deportation of a foreign national who had lived most of his life and had strong family ties in the United Kingdom would violate Article 8. Article 8 required procedural safeguards to be in place for the assessment of the proportionality of the interference with rights. The application relates to the case of Mosley v News Group Newspapers Ltd (2008).000 in damages. should involve a risk of abuse. The government had failed to provide sufficient reasons why the correspondence. in which the court found that Mosleys rights had been violated by the publication of pictures and a video of the applicant engaging in sado-masochistic activities. The applicants. ruled that the monitoring by prison authorities of medical correspondence between a convicted prisoner and his external specialist doctor violated the right to respect for his correspondence. was whether the interference with their rights was proportionate to the aim pursued and therefore ‘necessary in a democratic society’.(xxi) In Szuluk v United Kingdom (Application No 36936/05) [2009] ECHR 845 the Court of Human Rights. with named doctors whose address. It as agreed by the parties that the properties in question were the applicants’ ‘homes’ and that there had been an interference with the applicants’ right to respect for their homes. the applicant refused to work certain hours and asserted that the reason for so doing was her religious beliefs. On the facts. Muslims and other people to their faith. in contravention of school uniform. to defend other values and principles. Conscience and Religion (i) To hold beliefs is an absolute right. won her right to wear a jilbab. whether the applicant had an effective remedy. which permitted pupils to wear a shalwar kameeze. . (iii) The ECtHR held there to be no breach of Art 9 in a ban placed on Islamic headscarves by the University of Istanbul. and equality: Leyla Sahin v Turkey [2004]. Jehovah Witnesses were accused of attempting to convert Jews.8 Article 9: Freedom of Thought. It is beyond question that such beliefs can be held. whether the UK government had a positive duty to require newspapers to give notice of their intent to publish in such circumstances. a Muslim in a school which was 79 per cent Muslim.The questions which the Court of Human Rights is to consider are: whether the state violated the applicant’s rights through failing to impose on the News of the World newspaper a legal duty to notify him of its intention to publish in advance so as to give him an opportunity to seek an injunction to prevent publication. but the methods by which they are conveyed can be subject to limitation. and whether such a duty would strike the correct balance between the applicant’s right to privacy and the right of the press to freedom of expression (Article 10). the Court held that her objection was not founded on her religious beliefs. violated the offender’s right to respect for their family lives. (iv) The CA reached the opposite conclusion in R (on the application of Begum) v Governors of Denbigh High School [2005] EWCA Civ 199. (xxiv) The Supreme Court in F and Thompson Case in 2010 ruled that placing the name of paedophiles and sex offenders on the Sex Offenders Register for life. as an emanation of the state. 12. whether the applicant can claim a violation of his Article 8 rights. but limitations are placed on how they are expressed. but simply on her dislike of working certain hours. including secularism. given that he had received damages from a domestic court. The CA held that the right approach was for a school.5. including the freedom of religion but restrictions could be placed on this freedom. with no opportunity for review. The appellant. It is his claim that the award of damages was not capable of restoring his privacy and therefore did not amount to an effective remedy. (ii) In Stedman v UK (1997). Turkey’s Constitutional Court guaranteed democratic values. In a press report. to start from the premise that they are limiting the pupil’s rights to freedom of religion and then to consider whether the limitation was justifiable. The issue was whether it was necessary in a democratic society to place a restriction on those Muslim girls who sincerely believed they should cover themselves more comprehensively. if necessary. the successful appeal by the McLibel two (discussed above) the ECtHR said the central issue on an Art 10 application was whether the interference with freedom of speech was necessary in a democratic society. including expression on matters of public interest . In a democracy. as a former member of the MI5 could make disclosures to others-the staff counsellor. which this failed to satisfy Islamic requirements. for example. The school had consulted parents and the local mosques. The school was fully justified in acting as it did. concern could be expressed to Government ministers. (ii) In R v ShayIer [2002] UKHL 11. journalists.In R (on the application of Begum) v. The school permitted the wearing of a shalwar kameez and there was no suggestion by those consulted. Her family had chosen the school for her in full knowledge of the uniform requirements. He mentioned that four out of six parent governors were Muslim. Headteacher and Governors of Denbigh High School [2006] UKHL 15. or one of three other security commissioners. police or DPP if unlawfulness was alleged. as was the head teacher. unthreatening and uncompetitive way. a balance will have to be struck in recognition of the rights of individuals. it must be directed to a legitimate purpose and must be proportionate in scope and effect. including the Imams of three local mosques. She wore the shalwar kameez for two years. the key question before the House of Lords was whether prosecution under the Official Secrets Act complied with Art 10 (2) freedom of expression. She and her brother had.9 Article 10 Freedom of Expression (i) This Article provides for freedom of expression. said the Lord Bingham. or the Attorney-General.5. The ban on disclosures was not absolute. instead. The two year interruption in her schooling was the result of her unwillingness to comply with a rule which the school was entitled to adhere to and her failure to secure prompt admission to another school where her religious convictions could be accommodated. decided that it was the school’s problem. Page130 12. a higher-ranking former civil servant. the publication of information in the public interest and so on: Camelot Group plc v Centaur Communications Ltd (1998). a limitation on or interference with the freedom of religion must be a) prescribed by law and b) necessary in a democratic society for a permissible purpose. to be justified under Art 9(2). that is. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive. Lord Bingham explained that. and this may often conflict with a right to privacy and the right to a fair trial. (iii) In Steel and Morris v UK. People sometimes had to suffer inconvenience for their beliefs. Political expression. Giving the leading opinion. the Law lords reversed the Court of Appeal’s decision. There were three schools in the area where the wearing of a jilbab was permitted and there was no evidence to show that there was any real difficulty in her attending a neighbouring school. If misbehaviour or maladministration was alleged. or two Parliamentary committees. In a democratic society even small and informal campaign groups.10 Article 11: Freedom of assembly and association This includes a right to join a trade union. such as The Law Society or the Bar. to which the pair belonged. This was done via the Gender Recognition Act 2004.11 Article 12: Right to Marry (i) One of the longstanding issues has been the assertion by trassexuals that a restraint on their right to marry infringes Art 12. Page131 12. and the Council of Civil Service Unions v Minister for the Civil Service (1985) (the GCHQ case) clearly shows that a ban. imposed by the Government on civil servants at the Cheltenham communications centre. The state was free under the margin of appreciation to provide such a remedy to the corporation but lack of procedural fairness gave rise to a breach of Art 6. However. the House of Lords ruled that a transsexual could not legally be recognised in her new gender so her marriage was void under the Matrimonial Causes Act 1973.5. The House was bound by this UK statute but declared UK law to be incompatible with the Convention. In Bellinger v Bellinger [2003] UKHL 21.12 Article 13: Effective Remedy . or those who had entered the United Kingdom illegally. In a campaign leaflet. the damages were disproportionate. Even a large multinational had a right to defend itself and it had a competing interest in protecting its commercial success. had to be able to carry on their activities effectively. was justified in the interests of national security and so was not in breach of this Article. a certain degree of exaggeration could be tolerated but in this case the allegations made against McDonalds were very serious and were presented as statements of fact rather than value judgments.5. 12. Also.required a high level of protection. Arts 8 and 12. requiring permission by the Home Office for marriage by people subject to immigration control. contravened Article 12 and 14 of the European Convention on Human Rights guaranteeing the right to marry and prohibiting discrimination on grounds of nationality or religion. from joining a trade union. like London Greenpeace.5. etc) Act 2004. a right to strike. (ii) In R (Baiai and Others) v Secretary of State for the Home Department [2007] 3 WLR 573 the Court of Appeal ruled that the statutory scheme Contained in Section 19 of the Asylum and Immigration (Treatment of Claimants. so there is no automatic right to join a trade or professional body. The fact that the burden of proof was on the defendants to prove the truth of their allegations was not incompatible with Art 10. 12. such rights are not without limitation. Note: The Government promised a Bill to give transsexuals legal recognition. to join political parties and other associations. the Police Complaints Authority was held not to provide an effective remedy to those adversely affected by the actions of the police. Four children. birth or other status. conceded the UK. but that the policy was lawful as it could be justified on policy grounds. property. (ii) In Z v Others v United Kingdom [2001] The Times. the House of Lords ruled that the policy of disentitling persons without accommodation from receiving a disability premium to which they would be entitled if they had accommodation was discrimination within Article 14 of the Convention. 2000).13 Article 14: Prohibition against Discrimination (i) Article 14 provides non-discrimination in relation to Convention rights on the grounds of sex. religion. A right to a welfare benefit fell within Article 1 of Protocol 1. or unlawful. 12. In the case of Govell v UK (1998). The ECtHR held that the United Kingdom had breached Art 3 (protection against torture. 12. race. provided such derogation is proportional and necessary to deal with the emergency. The government also aimed to encourage disabled homeless persons to take accommodation.] Page132 . the government’s view was that the homeless were less likely to need the supplement which was designed to assist with the costs of running a home. for the ‘secretary of state to take the view that he should be encouraging the disabled homeless to seek shelter and help’. the Government dealt with this problem by introducing the Welfare Reform and Pensions Act 1999. It was not unreasonable. (iii) In R (RJM) v Secretary of State for Work and Pensions Times LR 27 October 2008.14 rticle 15: Derogation (i) This Article permits derogation from Convention rights (except Art 3) in ‘war or other public emergency threatening the life of the nation’. colour. 31 May ECHR. who a local authority failed for a considerable time to protect against neglect and abuse. This was a much used provision by the UK in connection with terrorist activities in Northern Ireland.5.(i) Article 13 provides a right to an effective remedy. Note: No derogation is allowed under Article 15 in respect of Article 3 [which ensures freedom from torture or inhuman or degrading treatment. (ii) Bereaved fathers were equally entitled to the “widowed mother’s allowance”. association with a national minority. political or other opinion. However. in Cornwell v UK (ECtHR. national or social origin.5. language. In the long term. but this has not been incorporated by the Human Rights Act 1998. claimed that the United Kingdom had violated their human rights. inhuman or degrading treatment and punishment) and Art 13 (right to an effective remedy before a national authority) of the European Convention on Human Rights. In a case of incompatibility. They told the trial judge he could proceed with the case in the light of their ruling. (iv) In May 2001. In that event. stereotyped and unfounded prejudices ought to have no place in our legal system”. the courts may not act as legislators and grant new remedies for infringement of Convention rights unless the common law itself enables them to develop new rights and remedies. which cannot be avoided by interpretation under Section 3 (1). (c) Conclusion on purpose of the 1999 Act: “(t) here was a serious mischief to be corrected”. In the words of Lord Steyn: “It is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of Parliamentary sovereignty.” (ii) Lord Chancellor Irvine stated “In my view. the court has no power to strike down primary legislation but may (at the level of the High Court or above) make a declaration of incompatibility under S4. .6 THE APPROACH OF ENGLISH COURTS TO CONVENTION RIGHTS AND INTERPRETATION OF DOMESTIC LAW (i) The primary question here is whether the Convention allows Judges to make law. the judge had ruled this out because of the 1999 Act but considered that his ruling breached Art 6.. a man accused of rape wanted to bring evidence of his previous sexual relationship with the complainant. The case was R v A [2001] UKHL 25. the House of Lords was already asked to construe a new statute which appeared to conflict with Convention rights. outmoded beliefs about women and sexual matters lingered on. The law lords applied their interpretive duty under S3 of the HRA and gave proper regard to the protection of the complainant but effectively “read into” the statute protection for the accused under Art 6. Lord Steyn’s interpretive method was as follows: (a) He plunged straight into a purposive construction of the 1999 Act: in the criminal courts. restricting evidence and questioning about the victim’s sexual history. The House had to construe S41 of the Youth Justice and Criminal Evidence Act 1999.. The court may merely issue a declaration of incompatibility which then gives rise to a power to take remedial action: see Section 10. the courts may not disapply legislation. This has no effect on the outcome of the suit in which the issue is raised.12. This clearly goes well beyond the former use of the Convention to resolve ambiguities in statures and to avoid the effect of S3 there must be a clear indication of an intention incompatible with the Convention: R v A (No. (b) Statement of moral principle”’ such generalised. make a bold interpretation and allow this evidence in for the sake of protecting the accused under Art 6. nor does it require the government to take remedial action though a fast-track legislative procedure is available if it chooses to do so. This is a landmark precedent because the House was prepared to interpret and apply their own duty under S3 of the HRA. In this case. so far as it is possible to do so. It resulted in an absurdly low conviction rate in rape cases.” (iii) The 1998 Act gives the Convention “further effect” (in English law. In a pre-trial ruling. Under S3 the court is to read primary and subordinate legislation in a way compatible with Convention rights. to support his defence that she had consented. 2). It was much more radical than the ordinary method of interpretation which permitted a departure from language of an Act to avoid absurd consequences. (i.. S3 (1).e. the court was qualified to make its own judgment and had to do so. implying Parliamentary intent: the legislature. M. if alerted to the problem. appealed from a decision that he could not be awarded a statutory tenancy under the . (h) Two processes of interpretation had to be distinguished 1. English) methods of purposive and contextual interpretation might lead to the blanket ban on questioning a woman about her sexual history. (f) Statement of principle of interpretive duty.. the homosexual partner of the deceased tenant of a flat. (iv) The same bold approach. was adopted by the CA and then the House of Lords in Ghaidan v GodinMendoza [2001] EWCA Civ 1533 and [2004] UKHL 30. in enacting the HRA. (e) Applying what he called “common sense” a prior relationship between accused and accuser might be relevant to the issue of consent in rape. Parliament had adopted a legislative scheme which made an excessive inroad into the right to a fair trial. Parliament placed on a court a duty to strive to find a possible interpretation compatible with Convention rights. (g) It was well established that the guarantee of a fair trial under Art 6 was absolute. (i) In interpreting S3 of the 1998 Act he stated that the HRA S3 obligation went far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision. primary legislation had to be given effect in a way compatible with the Convention). The interpretative obligation of HRA. would not have wished to deny the accused the right to put forward a full defence by advancing probative material. in a criminal statute. The techniques to be used would not only involve the reading down of express language in a statute but also the implication of provisions. so far as possible. The only balancing permitted was in respect of what the concept of a fair trial entailed. In accordance with the will of Parliament. Ordinary (traditional. It was possible to read into S 41 of the 1999 Act the implied provision that evidence or questioning required to ensure a fair trial under Art 6 should not be inadmissible. it would sometimes be necessary to adopt an interpretation which linguistically might appear strained. A conviction obtained in breach could not stand. (k) Conclusion. based on his interpretation of the court’s duty under the HRA 1998: when a question arose as to whether.(d) Statement of problem before the House: the blanket exclusion of prior sexual history between the complainant and the accused posed an acute problem of proportionality. Page133 (J) Interpreting S4 of the HRA 1998: a declaration of incompatibility was a measure of last resort. 2. The new approach that the courts are required to take. of evaluating proportionality of the State’s action’s replaces the test of reasonableness”’ in judicial review cases. the House of Lords held that it was now settled that the Human Rights Act was not retrospective. Palmer (v) The impact of the Convention can also be observed on the judicial approach in judicial review cases. The former were not part of this country’s law. Deference to Parliament has a minor role to play. the ECtHR held that this was inadequate. 2. See also Beauline Properties v. where issues of constitutional importance. it was entitled to look at ministerial statements to determine the policy behind an Act.Rent Act 1977. the objective is sufficiently important to justify limiting a fundamental right. In Kingsley v UK (2001). Discrimination on grounds of sexual orientation was now an impermissible ground on the same level as any others under Art 14 and S3 of the Human Rights Act required that words should be read into the Rent Act. the House of Lords held that when the court was require to evaluate legislation under the HRA. He could not qualify as a “spouse” under the Act and thus did not enjoy the benefit granted to an unmarried heterosexual partner in the same position. The latter were. under Art 2. The reviewing court must ask itself whether: 1. arise. since the HRA has been in force is one of proportionality. the measures designed to meet the objective are rationally connected to it. This was made clear by the House of Lords in Daly [2001] UKHL 26. In the House of Lords. (viii) In the 2004 case of In Re McKerr. The reviewing court should not confine itself to examining the quality of the decision making process and not the merits. said the Court of Appeal. (vi) The traditional view in judicial review cases was that the courts declined to examine the merits of a decision. (vii) In Wilson v SS for Trade and Industry [2003] UKHL 40. there was no limit to the words that could be read in or out of a legislative measure. the means used are no more than necessary to accomplish the objective. based on the test laid down in Associated Provincial Picture Houses v Wednesbury Corporation (1948). such as discrimination. This was known as the Wednesbury test of irrationality or unreasonableness. The Court of Appeal held that the words defining “spouse” as “his or her wife or husband” should be read to mean “as if they were his or her wife or husband”. Lord Nicholls applied Pepper v Hart. saying that it removed from the law an irrational self-imposed judicial rule against consulting par material as an external aid to interpretation. In Daly and many other cases. and 3. Some earlier cases had failed to distinguish between rights created by the Convention and rights created by the Act by reference to the Convention. . the House of Lords has made it clear that the required test for judicial review. it was held that S3 was the core remedy provided by the HRA and the S4 declaration of incompatibility should only be a last resort. As long as it did not go against the grain of the legislative measure. provided it had been taken procedurally correctly and provided the decision-maker had taken account of all relevant factors and decided rationally. There is no comprehensive definition of a public authority in the Act but it includes a court or tribunal or “any person certain of whose functions are of a public nature”: Section 6(3) [but not Parliament].7. within its powers as it considers appropriate: Section 8(1). for judicial review.7. rather than having to go to the ECtHR in Strasbourg. Civil Procedure Rules were amended to enable “any person” to apply to file evidence or make representations at the judicial review hearing. taking account of all the circumstances of the case (including any other relief granted) such an award “is necessary to afford just satisfaction to the person to whom it is made: Section 8(3). The person deprived of their right can bring an action. Organs of central or local government and the police are obviously public authorities in the ordinary sense of that expression and the same may be true of many regulatory bodies and the BBC. to take into account the principles applied by the European Court of Human Rights and that body has quite frequently regarded the vindication of the right as sufficient. (ii) In Re Northern Ireland Human Rights Commission [2002] UKHL 25 the House of Lords welcomed third party intervention where such a body could assist the court or there was a danger that an important principle of law had not been brought to the attention of the court. or make such order. the authority was acting so as to give effect to or enforce those provisions. In some cases. . or in the case of provisions made under primary legislation which cannot be read in a way which is compatible with the Convention rights. the authority could not have acted differently because of primary legislation.Page134 12. as they had to do until 2000. a point which is of significance because in the latter case the Act does not apply to acts of the body which are of a private nature: S6(5): Aston Cantlow etc.2 The definition of public bodies (i) The basic principle is that it is unlawful 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 may bring proceedings in which a court “may grant such relief or remedy. The court directed. it may be difficult to decide whether a body is a public authority in this ordinary sense or only in extended sense quoted above.7 WHO CAN BRING AN ACTION AND AGAINST WHOM CAN ACTIONS BE BROUGHT? 12. usually in the High Court. Parochial Church Council v Wallbank [2003] UKHL Exception: S6 (1) does not apply to an act of a Public Authority if. The relief may include an award of damages but only if.1 Who Can Join in? (i) The White Paper proposing the Human Rights Act suggested “bringing rights home” to enable people to enforce their rights in our courts. but other interest groups and pressure groups would like to join in on public interest test cases. as detailed by S6 (2). on the issue of damages. 12. “That a body performs an activity which otherwise a public body would be under a duty to perform cannot mean that such performance is necessarily a public function. (iii) In the above case. This is not what the HRA intended. 604. One of the central issues has been the definition of a public authority. such as analysing blood samples. The court stressed that for Section 6. The tenancy was granted by the London Borough of Tower Hamlets (“Tower Hamlets’) pursuant to its duties as the local housing authority under the Housing Act 1996. pending a decision as to whether she was intentionally homeless. non-departmental public bodies and the courts and tribunals.(ii) Under S6 (3). If this were to be the position. The House of Lords held that Section 6(3) means that hybrid bodies. later still. The defendant moved into a local authority property. public authority’ is defined as including includes central and local government departments. The main authority here is Poplar v Donoghue [2001] 4 All ER. does not automatically change into a public act what would otherwise be a private act. the definition of a public authority and a public function should be given a generous interpretation. CA. the small hotel would be performing public functions and required to comply with the HRA. The provisions of the HRA would only apply if Poplar was a public body or performing public functions. and. the nature of the functions are inevitably public. the Secretary of State for the Environment. Section 6 should not be applied so that if a private body provides such services. A public body in order to perform its public duties can use the services of a private body. the court referred to Costello Roberts v United Kingdom [1993] 19 EHRR 112. The renting out of accommodation can certainly be of a private nature. The position under the HRA is necessarily more complex. then when a small hotel provides bed and breakfast accommodation as a temporary measure. Later. at the request of a housing authority that is under a duty to provide that accommodation. this principle is limited to a certain extent by the following argument. However. The case concerned a seven-year-old boy receiving corporal punishment from the headmaster of an . He was able to do so because the defendant was seeking a declaration of incompatibility. The fact that through the act of renting by a private body a public authority may be fulfilling its public duty. The property was later transferred to Poplar. Page135 The defendant was alleging a breach of Article 8 of the ECHR. Poplar was created as a housing association by Tower Hamlets in order to transfer to it a substantial proportion of the council’s housing stock. Transport and the Regions intervened in the proceedings. Tower Hamlets decided that the defendant had made herself intentionally homeless and Poplar were informed of this fact. proceedings for possession were begun. which have functions of a public and private nature are public authorities. but not in relation to acts which are of a private nature. The consequence would be the same where a hospital uses a private company to carry out specialist services. The respondents were arguing that the Parochial Church Council was a public authority. In other words. There would be no legal compulsion under the Act for a Housing Association to employ due process safeguards in determining whether or not someone had a right to housing. as it had nothing to do with the processes of either central or local government. it is limited by the argument that a body performing a public activity is not necessarily performing a public function. The House of Lords determined that a Parochial Church Council was not a governmental organisation. The House of Lords held that the Church was not a public authority. the Council was. including the headmaster of an independent school. If there were a breach of the Convention. however. The local authority would. Art. and the private organisation would not fall within the terms of the definition. sent a child to a private school. depriving the respondents of their possessions. in fact. in breach of the general principle of peaceful enjoyment set out in the first sentence of Protocol 1. (iv) Although the test for establishing that an institution is acting as a public body is broad. Furthermore. or against any class or group of persons which formed part of it. The case concerned ecclesiastical law. However. not escape its duties by delegating the performance to the private school. In enforcing the duty to repair the Church. The European Court made it clear that the State cannot absolve itself of its Convention obligations by delegating the fulfilment of such obligations to private bodies or individuals. it was not accountable to the general public for what it did and received no public funding. The statutory powers which it had been given by the Chancel Repairs Act 1932 were not exercisable against the public generally. (v) Aston Cantlow and Wilmcote with Billesley Parochial Chuch Council v Wallbank [2004]1 AC 546 is the most recent decision that relates to the definition of a public authority under the Act. It would remain a private body. The school would not be a hybrid body. This would allow them to show that the Council was bound by the Human Rights Act.1 ECHR. in order to fulfil its duties. These exercised both public functions and non-public functions and were not public authorities in respect of acts of a private nature. the fact that it did this would not mean that the private school was performing public functions. a public body can employ a private organisation. This again raises some difficult issues. Note: One of the consequences of this decision is that due process requirements under the Act will not apply to private bodies. or controlling the use of their property. The decision in Poplar thus remove certain bodies from the jurisdiction of the Act. . The appellant was not a core public authority and its status as part of the Church of England did not affect this conclusion. The House of Lords turned to the definition of hybrid public authorities. if a local authority. then the responsibility would be that of the local authority and not that of the school. and an obligation to repair the chancel of a church that was an obligation of the ownership of a particular property close to the church.independent school. The proceedings arose out of the Potters Bar rail crash in 2002. Network Rail Infrastructure Ltd. (Railtrack was NR’s previous name). [2007] The unsatisfactory outcome of this decision. Does it simply require the courts’ procedures to be Convention compliant. to act consistently with the European Convention on Human Rights.7.. save where primary legislation plainly says otherwise. or does it require the law applied by the courts. together with nursing or personal care. which leaves an estimated 300. 3. to give effect to the Convention principles? . 5.3 Does the Human Rights Act have a “Vertical” as well as “Horizontal” Effect? (i) The Human Rights Act 1998. 7. there had been no obligation on Railtrack to conduct its operations in a manner subservient to the public interest. had not been democratically accountable to government. [2006] EWHC 1133. under arrangements with local authorities under the National Assistance Act 1948 (and equivalent statutory provisions in Scotland and Northern Ireland) are taken to be exercising functions of a public nature for the purposes of the Human Rights Act 1998. (vii) On the ‘functions test – which is central to whether a body is a public body and therefore bound by the Human Rights Act – see the House of Lords’ decision in YL v Birmingham City Council and Others [2007] UKHL 27. the question arose as to whether Network Rail was a public body or public authority and could thus be the subject of proceedings under the 1998 Act. including the courts.000 elderly people living in private care homes unprotected by the Human Rights Act. is essentially caused by the undefined dividing line between public and private functions. requires every public authority. had not been publicly funded.Page136 (vi) In Cameron and Others v.. 12. 6.’s directors had been appointed by the company and their appointment had not been subject to government influence or control. The HC ruled that it was not because 1. there had been a clear commercial objective in Railtrack’s performance. R. Section 145 of the Health and Social Care Act 2008 now provides that private or voluntary bodies providing accommodation. R. 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 railway was not intrinsically a government activity. R. beyond those which regulate individuals. 2. 4. R. possessed no special powers or immunities. Note: Parliamentary intervention has mitigated the harshness of the above decision. “ Furthermore the broad approach would arguably be inconsistent with the doctrine of precedent since it would give a trial judge a “trump card” (at least where the matter in question had not been considered by a higher court in the context of the Convention) which would enable him to escape otherwise binding decisions. which must act in accordance with the convention in all cases. or is it primarily directed against the state and state bodies? Sir William Wade has argued an alternative view: the Act. (iv) The current indications are that the Act and the common law must generally continue to be treated as separate regimes and that even in a claim against a public authority it is possible that the common law may give an answer in favour of the defendant even though the opposite conclusion is reached under the Act. is required to do so in a way which is compatible with the Convention rights? Or is it enough that they simply give effect to the Convention rights by means of the mechanisms created by the Human Rights Act? Page137 The first approach would have very significant implications it would make the common law a subsidiary regime shaped by the Convention. against whom he was to be a witness in a criminal case. The Human Rights Act does not “incorporate” the Convention into English law and it is potentially misleading to say. in declaring and applying the common law. that is does: Re McKerr [2004] UKHL per Lord Hoffman. it is still a public authority which must not act in a way incompatible with the Convention. It was not the intention of the promoters of the Act to create this “full horizontal” effect – the Lord Chancellor said that the Act would not allow ”the courts to act as legislators and grant new remedies for infringement of rights or remedies. Despite the fact that the act of a court may not be subject to an award of damages. however. makes the courts ‘public authorities’. (v) Van Colle v CC Hertfordshire [2006] UKHL is an example of an English court applying the Convention (an only the Convention) via the Human Rights Act. There are. Does that mean that a court.(ii) Can the Act be used by private litigants. even in litigation between private individuals. at S 6(3). (iii) Although a court is a public authority for the purposes of the Act a claim in respect of a judicial act is only to be brought by way of appeal (or in some cases judicial review) and damages may not be awarded in respect of judicial acts done in good faith except with regard to wrongful detention under Art 5 (5) of the Convention: Section 9. The deceased was murdered by X. already examples of the English courts modifying common law tort doctrine in the light of the Convention in areas which may be regarded as being procedural rather than strictly substantive: Osman v UK It is also necessary to note that the Human Rights Act does not preclude a claimant who fails under English common or Statute law going to Strasbourg under the Convention. That may mean that at the end of the day a Convention right may be given a broader scope than it has under English law. in circumstances which Cox J held constituted a culpable failure . in other words. he refutes the notion that the courts themselves can act illegally. one of which was the subjectmatter of the legislation. Whether it makes a great deal of sense to have two parallel legal systems in this way must be debatable. and the House of Lords allowed the appeal. Lord NicholIs stated that the courts themselves are public authorities and. appealed. Mrs Wilson argued that a loan that she had taken from a pawnbroker and not repaid was unenforceable. (vi) Wadham argues that the Convention must be used to interpret all law before the courts. Venables and Thompson v Newsgroup Newspapers [2001]2 MR 1038 supports . The more the legislation concerned matters of broad social policy. who had been added to the proceedings. contrary to the Consumer Credit Act of 1974. The damages awarded to the deceased’s estate ( 15. the claim was brought solely under the Convention. In particular. bound by the HRA. The readiness of the court to depart from the views of the legislature depended on the circumstances. and notwithstanding Hill’s case. Page138 (viii) It has been argued that the courts have a duty to develop the common law in line with Convention rights by virtue of S6(3). a duty of care might have been owed. because the agreement did not contain all the prescribed terms. The Court of Appeal argued that the 1974 was incompatible with the rights guaranteed to the creditor by Art 6 (1) The Secretary of State. In approaching the issue of proportionality. Although Cox J was of the view that the relationship between the police and the deceased was such that. Her argument was that the 1974 Act made the agreement unenforceable. In other words. but falls short of being directly horizontal as the 1998 Act does not directly confer any new private rights on individuals when their Convention rights have been violated by a private party. the less ready a court would be to intervene. The Court of Appeal also made a declaration under S4 of the HRA. it is not possible for one private individual to sue another private individual for a tort of breach of the Convention. However. the court in this case must give effect to ‘the mandatory provisions of the Consumer Credit Act’ as specified by S 6 (2) (a) of the HRA. as they are bound by the terms of the Act of Parliament. Mrs Wilson was objecting to a fee for preparation of documents that she had been charged and which was not mentioned in the loan agreement.000) by way of just satisfaction for their distress seem to have been substantially more than would have been recoverable by any of them in the circumstances in a common law claim. The court would reach a different conclusion from the legislature only when it was apparent that the legislature had attached insufficient importance to a person’s Convention right. The House of Lords held that the court could consider the ‘proportionality of legislation’. (vii) In Wilson v First County Trust [2003] HRLR 33.by the police to afford the deceased protection for the purposes of Art 2. the Act could be described as indirectly rather than directly enforceable against private persons: that is.000) and his parents (35. therefore. courts should have in mind that theirs was a reviewing role. even at common law. On the same day. The 1998 Act was defended by lawyers such as David Pannick “An excuse for the incompetent. The case concerned two children who were convicted of the murder of another child. He wants the Government to overturn judges’ barmy rulings ” 15 May 2006. freed by the Parole Board concerned about his human rights. 3 and 8 of the ECHR were at risk. Most interestingly. Justice Sullivan supported a decision to allow Afghan hijackers to remain in the UK until it was safe for them to return home. In granting the injunctions. and where there are significant human rights issues at stake. and had to be balanced against Article 10. In the High Court. The Times. Tony Blair attacked the decision as “an abuse of common sense”. Given the notoriety of Venables and Thompson.8. The claimants’ rights under Articles 2.7.8 THE DRAMATIC EFFECT OF ARTICLE 6: REPOSITIONING THE JUDICIARY IN THE UK CONSTITUTION& OBSERVANCE OF DUE PROCESS 12. This probably means that the courts will refrain from employing the HRA in all but the most extreme cases. Note: What can we summarise from this argument? It would appear that the court will utilise the HRA in disputes between private parties only in exceptional circumstances. even though the defendant newspapers were not a public authority and the dispute was one between private parties. murdered a woman. 23 May 2006 Page139 12. a diversion for the ill-informed”. the court argued that it could protect confidential information in ‘exceptional cases where it was strictly necessary’. Mr. the court argued that: the ECHR applied in this case via the obligation on the courts in the Human Rights Act. with the media whipping up hostility to it after several cases and incidents. He criticised the failure of successive Home Secretaries to allow them leave as “conspicuous unfairness amounting to an abuse of power”. the Daily Mail reported this on the same page as “DVLA shreds the records of speeding and drunk drivers (because of their human rights)”. it was very likely that they would be seriously injured if the press did reveal their identities or whereabouts on their release from custody.1 The reform of the judiciary .4 The HRA 98 Act under attack The 1998 Act came under attack in May 2006.this argument. 12. “At last Tony Blair admits he needs to do something about the ludicrous Human Rights Act. The Sun agreed. This came four days after the news that a rapist. Venables and Thompson won the continuation of injunctions preventing newspapers from publishing information about them. constitutional reform to the role of Lord Chancellor. (ii) The fairness of the legal process has a particular significance in criminal cases but ‘trial rights’ but also be apply in other proceedings which deal with disputes between citizens and the state.8. Such rights can only be protected if the citizen has recourse to the courts and tribunals which are independent of the state and which resolve disputes in accordance with fair procedures. in the context of the Convention. (ii) It had become apparent that tripartite role of Lord Chancellor. but does not end with fair trial rights. casting severe doubt over the Chancellor’s position 12. under Art 6 (fair trial) for a member of the executive (government) to sit as a judge. A series of cases had made it clear that it was unacceptable. In such cases. (iii) English law. in itself. prior to the Human Rights Act.2 The concept of Due process and fair trial rights in English law (i) The closely-related principles of ‘due process’ and ‘the rule of law. effected by the Constitutional Reform Act 2005. are fundamental to the protection of human rights. the Law Lords and the rest of the judiciary. Article 6 provides only the procedural guarantees for the determination of tenable rights. 2001). holding significant power in all three organs of government.3 The implications of Art 6 ECHR to the concept of due process and fair trial rights. (i) To benefit from Article 6. The protection of procedural due process is not. provided no explicit general statement of rights in relation to the conduct of the legal process. The protection of human rights therefore begins with. two ‘minimum’ fair trial principles: (a) nobody can be a judge in their own case (nemo judex in causa sua) and (b) the right to be heard (audi alteram partem) These are the principles of natural justice and have evolved as the principles of administrative law when the court is reviewing the decision-making of an inferior tribunal or a public body. it may apply in cases where domestic law contains immunities or procedural bars that limit the possibility of bringing potential claims to court: Osman v UK. 12. the Convention provides a degree of ‘constraint or control’ on states’ abilities to remove civil rights from the jurisdiction of the court or to provide immunity to particular groups of persons. the applicant must have an arguable right under domestic law. (ii) In addition. sufficient to protect against human rights abuses but it is the fundamental stone for ‘substantive protection’ against state power.8. (Clayton and Tomlinson. Although Article 6(1) cannot be used to create a substantive civil right. the Courts have recognised an ‘implied right’ of access to the courts and a series of other ‘implied’ fair trial rights. Common law provides under the rules of natural justice. .(i) The most radical consequence of the importation of the Convention into UK law was. was untenable. 8. is entitled to a hearing by a tribunal free from actual or apparent bias’. the extent to which the disciplinary board was unbiased and able to judge the surgeon’s suspension objectively. The litigation concerned. The court held that there had been a breach of Article 6 by the tribunal that had considered H’s re-admission.. The court also pointed out that any limitation will only be compatible with Article 6(1) if it satisfies a legitimate aim. The Privy Council asserted that ‘a practitioner whose professional performance is called into question . The court’s reasoning was based on two grounds: (1) there was no right to challenge the tribunal’s decision.5. allegations were raised about the alleged failure of the police to protect right to life and lawfulness of restrictions on right of access to a court. and if there is a reasonable relationship of proportionality between the means employed and the aim sought. inter alia. Page140 (iii) Sadler v General Medical Council [2004] HRLR 8 This case concerned a surgeon who had been suspended from the job in a NHS Hospital. or the right to institute proceedings before a court in civil matters. (ii) Osman v United Kingdom [2000] 29 EHRR 245 In this case. however.12.. The ECHR found that the appellants had been deprived of the right of access to the court. The practitioner is also entitled to ‘such further protection as may be afforded by Art 6 as the disciplinary hearing involves the determination of his or her civil rights.4 Cases on Article 6 (see also 12. This right. The right to access can be made subject to limitations. These limitations are permitted by implication. and (2) the decision was not adequately reasoned. H had tried unsuccessfully to be reinstated. The ECHR went on to argue that Article 6 (1) embodies the ‘right to a court’. The ECHR went on to assert that it must be sure that the limitations applied by the state do not restrict the access of the individual to the court so that the essence of the right is limited.4 above) (a) The determination of civil rights (i) H v Belgium [1987] 10 EHRR 339 H was a Belgian citizen who had been struck off the roll of the Antwerp Bar. . although the final decision as to the observance of the Convention’s requirements rests with the Court. The appellants alleged that the UK government had deprived them of a right of action in negligence against the Police. since the right of access by its very nature calls for regulation by the State which enjoys a certain margin of appreciation in relation to the regulation of the right of access. is one aspect. is not absolute. of which the right of access. Moreover. The Privy Council allowed the appeal. The court also heard appeals from two other appellants. (ii) The role of the jury was again considered in R v Mirza [2004] HRLR 11 Mirza was convicted of indecent assault. The appellant was a woman who objected to being tried by an all-male jury in action for damages for assault. However. compulsorily included males on the register of potential jurors. His argument was based on a letter that had been written by one of the jurors and had been brought to the attention of the judge before he passed sentence. Rather like a lay magistrate. The court asserted that since juries are chosen at random from jury lists. The case concerned the extent to which the right to a fair hearing was coherent with the practice of Scottish District Courts. (c) Article 6 and the jury (i) Rojas v Berllaque [2004] LR 7 Privy Council Rojas v Berllaque was a case from Gibraltar heard by the Privy Council. the lay justice is advised by a court clerk.Such protection requires either that the decision-making body (in this case the committee) constitute an independent and impartial tribunal or. He appealed against conviction. and that the clerk was not sufficiently independent. The letters alleged that ‘most of the jurors were looking for a quick verdict and had therefore decided to give a guilty verdict to both defendants even though many thought that it might have been only one of them who had committed the offence. Consequently. a non-discriminatory method of compilation of those lists was an essential ingredient of a fair trial by jury. These courts are the equivalent of magistrates’ courts in England and Wales. that its processes be subject to control by an appellate body with full jurisdiction to reverse its direction. if not. and this infringed the right to a public hearing under the relevant article of the Convention. most juries were entirely male. The appellant sought a jury drawn at random from a list on which men and women had been included on an equal basis. as he lacked security of tenure. The relevant legislation. (b) Criminal procedure (i) The issue of fair trial rights has come before the Privy Council in the case Clark (Procurator Fiscal) v Kelly [2003] UKPC D1. The court did not accept the accused’s arguments. who is legally qualified. women were only to be included if they applied for inclusion. . However. Their appeals against their convictions for wounding offences were based on letters received by the Crown Court after the verdict but before sentencing. The issue that the court had to decide was whether this structure of the tribunal infringed the rights of the accused under Article 6 of the ECHR. The accused was contending that legal decisions were effectively taken by the clerk to the court. The letter alleged that the jury’s verdict was subject to racial prejudice. the advice to the lay justice was given in private. the Supreme Court Ordinance. the person who administers justice in a District Court is not legally qualified. 12. then the court would intervene. These exceptions related to the situation where the jury was alleged to be affected by extraneous influences’ (although this was not an issue in the present case). made the taking of hostages an offence under international law and punishable by the courts of the UK. A warrant for his arrest was issued by a British court under the Extradition Act of 1989. as such behaviour would ‘amount to a complete repudiation by the jury of their only function which. and there was an appeal to the House of Lords. if jurors were to continue to perform their vital function of safeguarding the liberty of every individual. The Taking of Hostages Act 1982.the Pinochet case (a) The first Pinochet case (i) General Pinochet was accused of various serious crimes (in Chile) against Spanish citizens by a Spanish court. The Queen’s Bench Division of the High Court held that the applicant was entitled to have the warrant quashed. The jurors’ letters were therefore inadmissible. or purported performance. anything said in the course of the jury’s deliberations while they were considering their verdict in their retiring room. and covered the acts of a head of state in his public capacity.5 The impact of Article 6 on the question of judicial bias . . The Court of Appeal did. that prohibited jury deliberations being admitted as evidence. holding that it was bound by R v Qureshi [2001] which had stated the rule of secrecy of jury deliberations after verdict. remit an important question of law to the House of Lords for determination: were the common law rules. The House of Lords went on to discuss the common law exceptions to the rule. or receive evidence about. of his official duties in Chile. Another problem was also considered: if it was alleged that ‘the jury as a whole declined to deliberate at all. Attempts to soften the rule to serve the interests of those who claimed that they were unfairly convicted should be resisted in the general public interest. but decided the case by other means such as drawing lots or by the ‘toss of a coin’. Pinochet claimed immunity under the State Immunity Act 1978. in breach of Article 6 if that evidence suggested that the jury was not impartial? Page141 The House of Lords decided that the general common law rule was that the court would not investigate. which enacted the International Convention Against the Taking of Hostages 1979. accusing him of using the power of the state to inflict severe pain or suffering on others and cause the taking of hostages and murder in the performance. and an international warrant was issued for his arrest. as the juror’s oath put it. The Criminal Justice Act 1988 also made the torture by public officials and persons acting in a public capacity a criminal offence.8. and the Spanish government requested his extradition. This Act provided for the immunity of a foreign head of state from the courts of the UK. however. within the jurisdiction of the Spanish government. He also made a claim for personal immunity as a head of state for acts performed as a head of state under the same Act. Pinochet entered the UK in 1998. Pinochet applied for the warrant for his arrest to be quashed. was to give a true verdict according to the evidence’.The Court of Appeal dismissed both the appeals. had the power to correct any injustice committed by any earlier order of the House. (iii) In Locabail (UK) Ltd v Bayfield Properties Ltd and another Locabail (UK) Ltd and Another v Waldorf Investment Corp and others [2000]. (b) The second Pinochet case (i) In R v Bow Street Metropolitan Stipendiary Magistrate and others. In relation to the facts of the present case. not actual bias.The House of Lords held that a claim to immunity by a head of state or a former head of state applied only to acts performed by him in the exercise of his function as head of state. The underlying principle is that the House will reopen a case where. as shown by the principles of international law. and where he would be automatically disqualified. and this included extradition. where there was a real danger or possibility of bias as in R v Gough (1993). and petitioned the House of Lords to set aside the order. The appeal was therefore allowed. The second rule was based on examination of all the relevant circumstances. he or she has been subjected to unfair procedure. . In short. the first being where the judge had an interest in the case which he decided. It is ‘of fundamental importance that justice should not only be done. as in Dimes v Grand Junction Canal (1852). but also applied to cases where the judge’s decision would lead to the promotion of a cause in which the judge was involved together with one of the parties. Ex parte Pinochet Ugarte No 2 [1999] 1 All ER 577. Acts of torture and hostage taking could not be regarded as functions of a head of state. the applicant could not claim immunity from the criminal process. but should manifestly and undoubtedly be seen to be done’ (R v Sussex Justices. The court distinguished the two rules relating to disqualification. The House of Lords held that: the principle that a judge was automatically disqualified from hearing matter in his own cause was not restricted to cases in which he had pecuniary interest in the outcome. McCarthy *1924+ 1 KB 256). Lord Browne Wilkinson argued that the central principle was that the House of Lords. This is far narrower than saying that the principle is one whereby the House varies or rescinds an order because it is thought that that order was made wrongly. Amnesty international [AI] had been granted leave to intervene in the proceedings before the House of Lords restored the warrant. The essential feature is this notion of unfair procedure. the argument rests on the assertion not that there was actual bias. at 585. It followed that since the acts of torture and hostage taking with which the applicant had been charged were offences under UK law. through no fault of the party in question. The applicant (Pinochet) then discovered that one of the Law Lords in the majority was a director and chair of Amnesty International Charity Limited [A1CL]. the Court of Appeal reconsidered the issue of judicial bias. Page142 (ii) In Ex parte Pinochet No2 [1999] 1 All ER 577. we are concerned with apparent bias. but that there was a ‘real danger or reasonable apprehension or suspicion’ of bias. as the ultimate court of appeal. ex p. 4 Illegality 13. which concerned the publication by the Recorder who adjudicated in a personal injury case. of articles which were allegedly in favour of the claimants and against the insurers. the court ruled that.7 The basis for judicial review 13. nevertheless. ruled that a litigant had the right not to have his case adjudicated by a judge who knew one of the witnesses. and that such publications could further rather than hinder the administration of justice.8 Remedies . it was always inappropriate for a judge to use intemperate language about subjects on which he had adjudicated or would have to adjudicate.In relation to the circumstances surrounding one of the Locobail cases. taking a broad commonsense approach. The applicant’s counsel had advised that the judge was unlikely to be biased.5 Procedural impropriety 13. The magazine contained a greater variety of articles than those relied on buy the applicant.’ Page143 Chapter13: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION CONTENTS: 13. The appeal was allowed and a retrial ordered. (v) 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 a Jewish association whose magazine expressed partisan views against Palestinian causes did not in itself imply that the judge shared such views so as to raise the possibility of bias and lack of impartiality when dealing with an immigration appeal by a Palestinian activist. The Court ruled that such advice should not have been given as it influenced the applicant’s decision.6 Exclusion of judicial review 13.3 Irrationality 13. A judge read a ‘great deal of material which was designed to influence them. (iv) In Smith v Kvaerner Cementation Foundations Ltd [2006] 2 All ER 593 the Court of Appeal.2 Ground for judicial review 13. The decision would be set aside. a lay observer with knowledge of the facts could not have excluded the possibility that the Recorder was biased. While it was not inappropriate for a judge to publish in his area of expertise.1 Introduction 13. but which they were trained to analyse and to accept reject or use as appropriate. It is through judicial review that the legality of the powers by public bodies is tested. and whether the decision-making process requires the use of natural justice. subject to changes which have been brought by the Human Rights Act 1998.13. If the decision of a private body is being challenged in court. Page144 13. the remedy lies in private law. It is designed to ensure that public bodies. to ensure four objectives: (a) that Acts of parliament have been correctly applied. (c) That the decision-maker has acted fairly. The principal question to be addressed here is whether the person (e.1 What is a ‘public body’ for the purposes of judicial review? (i) Judicial review is only available to test the lawfulness of decisions made by public bodies and is a public law remedy. In R v City Panel on Take-overs and Mergers exparte Datafin Ltd (1987). a Minister) or a public body has acted intra vires or ultra vires. there exist procedures by which such decision may be challenged in the courts. Judicial review is concerned with the legality of the decision made. and their rights adversely affected.g. (ii) The Human Rights Act 1998 extends the scope of judicial review in that any failure on part of a public body in respect of human rights is subject to review by courts. the Take-over Panel had dismissed a . not the merits of the particular decision. (ii) Whether the body is a private one or a public is sometimes is a matter for the court to decide. (iv) If an individual or a body of persons is aggrieved by an administrative decision. (vi) In essence. (iii) The powers conferred on public bodies may be by an Act of Parliament. Thus judicial review may thus be regarded as an aspect of parliamentary sovereignty. judicial review exemplifies the application of the rule of law in a democratic society. (v) From one aspect the courts by reviewing delegated law making ensures that Parliament’s will is observed. (b)That discretion conferred by statute has been lawfully exercised. (d) That the exercise of power by a public body does not violate human rights. In this respect. the courts seek by judicial review.1 INTRODUCTION (i) Judicial review represents the means by which the courts control the exercise of governmental power.1. which exercise law-making power or adjudicatory bodies act within their powers. the court ruled that it had no jurisdiction. If the body in question is exercising public law functions or the exercise of its functions have public law consequences. the Court of Appeal rule that the High Court ought not entertain an application for permission to apply for judicial review of the decision of the judge in the county court where the applicant had failed to pursue the alternative remedy of an appeal. (v) In R (Sivasubramaniam) v Wandworth County Court [2003]. (iii) In R v Disciplinary Committee of the Jockey Club ex parte Aga Khan (1993). The bidder applied for judicial review. . This was because the power of the club was derived from the agreement between the parties and was a matter for private rather than public law. In the case of judicial review. (ii) Judicial review is concerned solely with the manner in which the decision-maker has applied the relevant rules.1. The appeal may be made both on the law and the facts. public authorities are defined as including courts and tribunals and ‘any person certain of whose functions are of a public nature. (v) Under Section 6 of the Human Rights Act 1998. which would have been exercised by a government Department. Although the court stated that there were no grounds for judicial review. It was subject to judicial review. (per Lord Brightman in Chief Constable of North Wales Police v Evans [1982]). Judicial review is not an appeal from a decision. (iv) In R (on the application of Julian West) v Lloyd’s of London *2004+ the Court of Appeal ruled that decisions taken by Lloyd’s of London were not amenable to judicial review either on the basis that it was performing a governmental function or because or was a public authority within the meaning of Section 6(1) of the Human Rights Act 1998. despite its lack of statutory or prerogative power. the role of the courts in judicial review is to exercise a supervisory and not an appellate jurisdiction.2 The distinction between judicial review and appeal (i) The role of the courts in appellate jurisdiction is to review the case decided in the court below. where successful. a successful case will usually result in the previous decision being nullified or quashed but no new decision will be put in its place. (iii) In short. it is necessary to look at the nature of the power. 13. but a review of the manner in which the decision was made. then it may be sufficient to bring the body under the reach of judicial review.complaint by a bidder. In Marcicv Thames Water [2003]. Instead the body will be directed to predetermine the case according to the correct rules and procedure. it will usually result in a new decision being substituted for the previous decision. Lloyd J stated that in some cases if the source of the power is unclear. its is thus procedural in nature. it affirmed the fact that the Panel was a public body. the applicant in this case sought judicial review of the Jockey Club’s decision to disqualify his winning horse from a race failing a dope test. (iv) In the case of appeals. Thus the review here is the substance of the decision. According the decision were of a private and not public nature. because it was a body exercising public functions analogous to those. a privatised water a sewage company was held to be a public body under Section 6. The decisions were solely concerned with the commercial relationship between the applicant and Lloyd’s and were governed by contracts into which the applicant had entered. 4 The concept of ‘justiciability’ This is a concept.. 13. (ii) In Nottinghamshire County Council v Secretary of State for the Environment (1986). It can be recalled that in R v Secretary of State for the Home Department ex parte Northumbria Police Authority (1988) it was stated that the powers under the Police Act 1964 could co-exist with the prerogative power to keep the peace. (a) Matters of public policy (i) Matters of high policy are for determination by the executive and not the judiciary and any attempt by the courts to control the decision would be regarded as a violation of the separation of powers. (ii) In the earlier chapter the royal prerogative was discussed in detail. Matters such as the exercise of the prerogative power and most importantly issue of national security. the House of Lords held that the court should not intervene to quash guidance drafted by the Secretary of State. (iii) Also in R v Secretary of State for the Home Department ex parte Fire Brigades Union and Others (1995) the Court of Appeal (whose decision was upheld by the House of Lords) held that the Home .. This application must be within three months from the date when the grounds of application first arose: Section 31 of the Supreme Court Act 1981.3 Leave for judicial review and the outcome of judicial review An aggrieved individual must seek leave to apply for judicial review.not judicial judgement.save in exceptional circumstances of clear want of jurisdiction. (discussed later).1. these are matters of political judgement for him and the House of Commons. and matters of high policy are matters the courts normally regard as non-justicable. but rather the matter to be decided was whether the subject matter of the application was justiciable or not. (i) In Council for Civil Service Unions v Minister for Civil Service (1985) the House of Lords made it clear that the source of power was not determinative of whether the courts would review.1.. Lord Scarman stated: “. improper motive or manifest absurdity..This procedural hurdle represents the need to filter out unmeritorious cases at earlier stages. (b) The royal prerogative and judicial review. Page145 13. or procedural irregularity amounting to a denial of a fair hearing.. on the authority of Parliament. (iii) In R v Parliamentary Commission for Administration ex parte Dyer (1994) it was held that matters of national policy were not open to challenge before the courts other than on the basis of bad faith. They are not for judges. Matters of national economic policy were for political. which defines the judges’ view of the suitability of the subject matter to be judicially reviewed. ‘procedural impropriety’.. in the House of Lords.. a market stallholder had had his licence revoked for urinating in public. namely.Secretary could not – as long as the statutory provisions as to compensation existed under the Criminal Justice Act 1988.judicial review under this head also covers (in addition to the requirements of natural justice) failure by an administrative tribunal to observe the procedural rules expressly laid down in the legislative instrument by which its jurisdiction is conferred.. I have in mind particularly the possible adoption in the future of the principle of proportionality’ which is recognised in the administrative law of several of our fellow members of the European Community....exercise the power under the prerogative to implement the new scheme. until and unless Parliament incorporated the European Convention into domestic law.1 The doctrine of proportionality (a) Pre Human Rights Act 1998 cases. It was not lawful to attempt to use prerogative in order to avoid exercising a statutory duty.2 GROUND FOR JUDICIAL REVIEW (i) In Council for Civil Service Unions v Minister of State for Civil Service (1985) (hereinafter referred to as the GCHQ case) Lord Diplock. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it” (c) “ .. whist it was a distinctive head for review under the European Convention of Human Rights. I mean ‘Wednesbury’ unreasonableness.” 13.. Lord Denning quashed the . (iii) There are however cases where the courts have tacitly used the doctrine of proportionality without making explicit reference to it.” (b) “By ‘irrationality’. It was also accepted that the further ground of judicial review. irrationality and procedural impropriety. stated that the grounds of judicial review could be classified under there heads..” (d) “ . such as ‘proportionality. I mean that the decision-maker must understand correctly the law that regulates his decision making power and give effect to it.2. In R v Barnsley Metropolitan Borough Council ex parte Hook (1976). (i) This confines the limits of the exercise of power to means which are proportional to the objective to be pursued. illegality. might emerge.. Page146 13... (ii) Lord Diplock stated: (a) “By ‘illegality’. (ii) In R v Home Secretary ex parte Brind (1991) the House of Lords was not prepared to accept proportionality as a distinctive head for review. The reviewing court should not confine itself to examining the quality of the decision making process and not the merits. based on the test laid down in Associated Provincial Picture Houses v Wednesbury Corporation (1948).the loss of the licence-was disproportionate to the offence.decision. Page147 13. (b) The doctrine of proportionality under the Human Rights Act 1998 (i) The traditional view in judicial review cases was that the courts declined to examine the merits of a decision. the ECtHR held that this was inadequate. The new approach that the courts are required to take. (i) In Kingsley v UK [2001]. identifying the following differences: (c) the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck. the means used are no more than necessary to accomplish the objective. the House of Lords has made it clear that the required test for judicial review. 2. Lord Steyn examined the differences between reasonableness and proportionality. partly on the basis that the penalty. not merely whether it is in the range of rational or reasonable decisions. since the HRA has been in force is one of proportionality. the objective is sufficiently important to justify limiting a fundamental right. This was known as the Wednesbury test of irrationality or unreasonableness.2. which is outside or in excess of powers of decision making bodies. of evaluating proportionality of the State’s action’s replaces the test of reasonableness”’ in judicial review cases. provided it had been taken procedurally correctly and provided the decision-maker had taken account of all relevant factors and decided rationally. The reviewing court must ask itself whether: 1.2 The traditional doctrine of ultra vires (i) Ultra vires refers to action. In Daly and many other cases. (ii) In R v Hull University Visitor ex parte Page (1993). (iii) This was made clear by the House of Lords in R (Daly) v Secretary of State for Home Department [2001] UKHL 26. the measures designed to meet the objective are rationally connected to it. and 3. (d) the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. . Lord Browne Wilkinson adopted the traditional language of ultra vires:” If the decision-maker exercises his powers outside the jurisdiction conferred. (ii) The impact of the Convention can be observed on the judicial approach in judicial review cases. The House of Lords held that the council had no power to enter into ‘interest rate swaps’ which were purely speculative in nature. Because of this the concept of ultra vires is nowadays regarded by many as an inadequate basis for judicial review. the Council attempted to increase its revenue through financial investments. nor could a charge be levied on the public without statutory authority. where an asylum seeker enters a third country from another Member State. which. the Home Office notified the applicant that he would be returned to Greece (deemed to be a safe country: Schedule 3 to the Asylum and Immigration (Treatment of Claimants. had claimed asylum in Greece. (ii) As will be seen later. for success. when an application involves an alleged violation of a Convention right. (iv) In Hazell v Hammersmith and Fulham Council (1992). and for the control of power. The Council had misconstrued its powers and accordingly acted ultra vires. the local planning authority implemented a scheme of charging L 25 for informal consultation between corporation officers and property developers. Lord Hoffmann stated that when a court is hearing an application for judicial review. (iii) In R v Richmond Upon Thames Council ex parte McCarthy and Stone Ltd (1992). Accordingly. the court’s approach must differ. an Afghan national. 13. That application was rejected and he travelled to the United Kingdom and again claimed asylum.2. When judges rule on ‘unreasonableness’ or as Lord Diplock classifies the concept of ‘irrationality’ they come close to ruling on the merits of a particular decision. Such speculation was inconsistent with statutory borrowing powers conferred on local authorities. (iii) In Secretary of State for the Home Department v Nasseri [2009] 2 WLR 1190 the House of Lords explained the correct (and differing) judicial approaches to applications for judicial review and a challenge based on an alleged infringement of a Convention right. Dawn Oliver in ‘Is the Ultra Vires Rule the basis of Judicial review’ (1987) states that judicial review has moved on from the ultra vires rule to concern for the protection of individuals. on certain aspects of decision-making. However. he acting ultra vires his powers and therefore unlawfully.3 Difficulties with the traditional ultra vires doctrine (i) The doctrine of ultra vires cannot explain adequately the judges’ power to rule. Mr Nasseri. as they do. were dependent upon the fluctuation in interest rates. its focus is on whether the decision maker reached a decision according to law: it is concerned with the decisionmaking process rather than the merits of the decision. Under an EC Regulation.which is procedurally irregular or is Wednesbury unreasonable. The applicant sought judicial review of the removal decision and sought a declaration that the provisions in Schedule 3 were incompatible with Article 3. The focus is not on whether the . the concept of ‘error of law’ does not fit easily with the concept of ultra vires. etc) Act 2004). The House of Lords held that the imposition of the charge was unlawful as it was neither incidental to the planning function of the local authority. that Member State is solely responsible for determining the application. in adopting a policy of paying higher wages than the national average for its workers was unreasonable..so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.. for the discretion of the council was limited by law-it was not free to pursue a socialist policy at the expense of rate-payers.. The applicants argued that the imposition of the condition was unreasonable and ultra vires the corporation’s powers.” 13. The House of Lords held that the condition imposed was unreasonable. Page148 13. an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong. or reached a decision..1 ‘Wednesbury’ unreasonableness (i) The terms irrationality and Wednesbury unreasonableness appear to be used interchangeably together with words like ‘arbitrary and capriciousness’.’ (v) In Secretary of State for Education and Science v Tameside Metropolitian Borough Council (1977).2. but on whether or not the applicant’s Convention rights have been violated. Lord Hoffmann went on to state that: “. the secretary of State for Education directed a newly elected local authority to implement plans. Depending on the magnitude of the irrelevant considerations. The House of Lords ruled that. The test propounded in that case was whether the authority had acted. irrespective of the wording of the statute.decision-making process is defective.3 Traditional terminology and classificatory difficulties The headings of judicial review as stated in the GCHQ case or as classified earlier under the ultra vires doctrine will sometimes overlap. The authority when granting a Sunday licence imposed a condition that no children under the age of 15 years should be admitted. he or she may also act irrationally.’ (iii) In Roberts v Hopwood (1925) the council. (ii) In Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1988) the Local authority had the power to grant licences for the opening of cinemas subject to such conditions as the authority ‘thought fit’ to impose. the council had a duty to act ‘reasonably’ and its discretion was limited by law. in a manner ‘so unreasonable that no reasonable authority could ever have come to it. A decision-maker may act ultra vires by taking into account irrelevant considerations. when breach of a Convention right is in issue..3. devised by . (iv) In the GCHQ case Lord Diplock regarded unreasonableness as entailing a decision ‘..3 IRRATIONALITY 13. The wording of the section was objective: ‘if the secretary of State has reasonable grounds to believe’. which had to determine the extent of the Secretary of State’s discretion under Section 68 of the Education Act. (vi) In R v Secretary of State for the Home Department ex parte Brind (1991) the House of Lords reexamined the reasonableness of the exercise of the Home secretary’s discretion to issue a notice banning the transmission of representatives of the Irish republican Army and its political party Sinn Fenn.1 Onerous conditions attached to decision (i) A decision by an authority may also be unreasonable if conditions are attached to the decisions which are difficult or impossible to perform. M’s mother and sister had been killed in a rail accident. planning permission was tied to conditions.a predecessor council. the secretary of State’s decision was unlawful. . The Secretary of State that the new authority would not be able to organise the necessary system of selective entry required for grammar schools in time for the new academic year. The decision was held to be Wednesbury unreasonable: the Minister should have given reasons for departing from the Commission’s recommendations and had failed to take into account the potential benefit of representation for a party representing the travelling public. The conditions were that Royco Homes make properties constructed available for occupation by those on the Council’s housing waiting list. The Secretary of State’s power was to direct an authority as to the exercise of its powers if he was satisfied that the authority was acting unreasonably. (ii) In R v Hillington London Borough Council ex parte Royco Homes Ltd (1974). despite a recommendation from the Legal Services Commission that it be granted. Times LR 9 March 2007. The matter went to the House of Lords.4. and further for ten years the houses be occupied by persons subject to security of tenure under the Rent Acts. and as a result. At the election there had been a change in the political composition of the council. Applying the Wednesbury reasonableness test to the decision of the local authority to retain grammar schools. Page149 13. to introduce comprehensive schooling and abolish grammar schools. the House of Lords ruled that the authority had not acted unreasonably. and that the authority was therefore unreasonable. (vii) R (Main) v Minister for Legal Aid [2007] EWHC 742. Despite the issue involving a denial of freedom of expression. which resulted in a change of policy. the court ruled that exercise of the Home Secretary’s power did not amount to unreasonable exercise of discretion. The conditions were held to be onerous and held to be ultra vires.4 ILLEGALITY 13. The Minister for Legal Aid refused funding. The coroner considered that legal aid funding was necessary to assist M on the grounds that rail safety issues were of significant public interest. Some of these were subsequently varied.the court may invalidate the entire decision or sever the bad part. which in part were designed to ensure others did not use the demonstration as a cover for terrorist activities.19 The Court ruled that the objective behind the conditions. as these were unworkable they were ultra vires for lack of clarity. 13. The court held that the decision was good in relation to the associations and trade unions consulted but bad in relation to the Mushroom Growers association. In Agricultural Horticultural and Foresty Industry Training Board v Aylesbury Mushrooms Ltd.2 ‘Errors of law’ and ‘errors of fact’ (i) An error of law may take several forms. For example. An error of law will be reviewed by the courts. (1972). provided ‘a perfectly reasonable and proportionate justification for imposing appropriate conditions. Haw challenged the conditions as being ultra vires or incompatible with Articles 10 and 11 of the European Convention on Human Rights on the grounds that they were unreasonable or insufficiently clear. Applying Carltona v Works Commissioner [1943] 2 All ER 560 the Court ruled that where delegation was inevitable.3 ‘Errors of law on the face of the record’ .4. there would be an implied power to delegate. The conditions included restrictions on the size of the site. but in part bad-perhaps because attaching onerous conditions to planning permission. The police had imposed a number of conditions on Brian Haw’s demonstration (which had been ongoing since 2001) in Parliament Square.’ However.(iii) Where an authority makes a decision which is in part good.671). (ii) An error of fact is an error. where an authority is under a duty to provide ‘accommodation’. which the courts are more reluctant to review. the question arises whether the quality of what they have provided amounts in law to accommodation. This is because the decision maker has all the factual information at hand on which to base the decision. (iv) Imposition of conditions were held to be ultra vires in Director of Public Prosecutions v Haw [2007] EWHC 1931 (Admin) Times LR 11 September 2007 (Textbook p. The Board failed to consult the Mushroom Growers Association. ensuring that no items could be used to conceal other items and requirements to report to the police if 20 or more persons were to be present. There may however be some errors of fact that are so fundamental in nature that they cause a decision to be unlawful. The Court also ruled that the Commissioner of Police could delegate his statutory power to impose conditions on demonstrations. its supervision. and the Board had a duty to reconsider their decision after consultations with the Association. Page150 13. An authority may wrongly interpret a word to which a legal meaning is attributed.4. the Training Board was under a mandatory statutory duty to consult certain organisations and trade unions before reaching a decision. ’ (iv) In R v Monopolies and Mergers Commission ex parte South Yorkshire Transport Ltd (1993) the phrase ‘substantial’ became the subject matter of judicial review although it was held by the House of lords that the MMC had directed itself properly as to the meaning of substantial. (ii) This is normally when the authority has correctly interpreted its powers but used them towards the wrong objective. On the other hand rent tribunal’s findings as to the state of ... and accordingly Anisminic could neither establish that it was the owner nor successor in title to the property. he will reach a decision. the Compensation Board ruled that it had no power to grant compensation to Anisminic. In Anisminic Ltd v Foreign Compensation Commission (1969) the Compensation Commission had the power to distribute a compensation fund to British companies and persons suffering loss as a result of property being sequestrated by the Egyptian Government. If a decision-maker bases his decision on a misunderstanding of the factual situation of the case.makes a purported determination in a case of kind which it has no jurisdiction to inquire. which is wrong. The House of Lords held the decision of the Board to be ultra vires. the court would only intervene if the decision falls outside what the court regards as reasonable. For example a rent tribunal which has the power to reduce the rent of a dwelling house and mistakenly finds that the property is a dwelling house when it is in fact a business premises... The decision made by the Board was so wrong that in law it amounted to not a decision at all. and nothing in the Act prohibited a court of law from reviewing what was in law a nullity. The House of Lords ruled that: ‘If the inferior tribunal. The Act provided that compensation was payable to applicants who satisfied the test of being either the owner or ‘successor in title’ to the property. resulted in the Commission acting outside its jurisdiction. as a result of its misconstruing the statutory description . In Perilly v Tower Hamlets Borough Council (1973) the local authority believederroneously-that it was obliged to consider applications for stall licences in a street market in the order in which they were received. (iii) There are however other cases in which an authority misunderstands the powers which it has been granted and accordingly acts ultra vires. its purported determination is a nullity. had held a licence for some 30 years. Lord Mustill ruled that where a statute provides broad criteria over the meaning of a word which reasonable persons may reasonably agree. The effect of this was to deny a licence to Perilly even though his mother. even if the decision-maker was acting inside jurisdiction. (v) Errors of fact are more complex. Accordingly. The ouster clause according to the House of Lords was ineffective because the ruling of the Compensation Board being so wrong in law. by then deceased. The Egyptian Government had however sold the property to a third party. 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.(i) Errors on the face of the record. The court may intervene in such instances because the tribunal’s finding affects its decision. The Act also stated that: ‘The determination by the Commission of any application made to them under this Act shall not be called into question in any court of law’. The licence granted to an incoming applicant in preference to Perilly was set-aside by the court. (intra vires). under the Agricultural marketing Act 1958. (vi) The question to be asked is whether the mistake of fact is one. The Corporation was held to have acted ultra vires the statute. the standard of proof was a high degree of probability and not just reasonable grounds for his decision.4 Using powers for the wrong purpose (i) Powers conferred must be used for the purpose for which they were granted. South-Eastern dairy farmers complained that the Milk Marketing Board had fixed prices in a manner prejudicial to farmers in that region.4. Fisheries and Food (1968). a committee of investigation was established to make enquiries if the Minister ‘so directed’. The railway Company which owned stock in adjacent buildings claimed that the power had been used improperly. On this point the House of Lords held that it could. milk. (ii) In Westminister Corporation v London and North Western Railway Company (1905) the Corporation had power to provide public conveniences and had constructed them midway under the street with access gained by means of a subway. The Corporation decided to open a laundry on a commercial basis. The House of Lords disagreed. In Attorney General v Fulham Corporation (1921) the authority was empowered under statute to establish washhouses for non-commercial use of local residents. The second was on the standard of proof the immigration officer was required to discharge. the House of lords was required to rule on two questions: the first question was whether the phrase ‘illegal immigrant’ in the Immigration Act 1971 covered a person who had been granted permission to enter the country through fraud or deception as well as the person who entered secretly. (vii) In E v Secretary of State for Home Department [2004] the applicants claimed that the Immigration Appeal Tribunal (IAT) which had refused leave to appeal to the Court of Appeal had erred in not taking into account evidence which had become available since the hearing before the IAT but before making the decision whether to allow an appeal. Page151 13. The evidence supported the applicant’s claims that they would be at risk if they returned to their country of origin. and the defaults of the landlord will not affect its decision in any way and are thus immune from challenge. The House of Lords held that since the liberty of a person was at involved. The . In R v Secretary of State for the Home Department ex parte Khawaja (1984). The minister refused to refer the matter to the committee of investigation. into complaints made to the Minister about the operation of. (iii) In Padifield v Minister of Agriculture. the terms of tenancy. stating that ‘the primary object of the Council was the construction of the conveniences with the requisite and proper means of approach thereto and exit therefrom. The Court of Appeal ruled that the IAT should reconsider the decision to take account of the evidence where there was a serious risk of injustice because the evidence had not been considered.repair of the property. which is central to the decisionmakers power of decision. amongst other products. farmers challenged the Minister’s decision. The House of Lords granted an order of mandamus requiring the Minister to consider properly whether he should exercise his discretion to refer. The result was a hollow victory to farmers since the incoming Minister, having referred the matter to the committee, which upheld the complaint, rejected the committee’s recommendations. (iv) In R v Secretary of State for foreign and Commonwealth Affairs ex parte the World Development Movement (1994) Times 11 November, the government was held to have acted unlawfully in relation to aid money paid to Malaysia. In 1988, the United Kingdom Government signed an agreement with the Malaysian Prime minister, Mahathir Mohamed, for the sale of arms valued at L 1.3 billion. In 1989, Britain offered L 234 million towards the building of the Pergau dam. In 1991, under the premiership of John Major, the deal went ahead despite warnings from officials that the project was uneconomical and a waste of public funds. The monies were paid out of the Overseas development Administration budget. Under international law any linkage between aid monies and arms sales is prohibited. While the government denied this, the House of Commons Foreign Affairs Committee inquiry concluded that the government had in effect made such a link. Legal proceedings were instituted by the World development Movement which felt that a vast sum of public money was being devoted to subsidising a project which was a misuse of funds which should have been rightfully channelled for the relief of poverty. The High Court ruled that the Foreign Secretary had acted unlawfully, in part because the project was ‘economically unsound’ and also because the aid did not promote the development of a country’s economy as required by law. As a result of this some L55 million already spent on the project had to be returned to the ODA by the government. (v) In Porter v Magill [2002] the House of Lords ruled that the power to sell property to tenants in the hope of gaining party political advantage at an election was unlawful. It was argued that provided that some proper purpose was being pursued, the decision was not unlawful. The House of Lords disagreed: the power had to be used for its intended purpose- and that was not to secure an electoral advantage. Page152 13.4.5 Irrelevant considerations in decision making (i) In R v Somerset County Council ex parte Fewings (1995) the local authority decided to ban staghunting on land owned by the council and designated for recreational purposes. Here the motivation behind 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 relevant statutory provisions, and had not considered, as it was required to do, whether a ban of hunting would be for general public benefit. (ii) In Wheeler v Leicester County Council (1985) the House of Lords thoroughly examined the concepts of unreasonableness and of fairness and the interaction between bad faith, unreasonableness and procedural impropriety. In 1984 the Rugby Football Union announced a tour of South Africa, with a team including three members of the Leicester Football Club. At the time the Government was opposed to any sports links with South Africa and the Leicester County Council was opposed to the proposed tour. The Club’s response was that although it was anti apartheid, they were not constrained from playing in South Africa as a result of government 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 playing field for a 12 month period. The Club sought judicial review. The House of Lords held that the Council had acted unreasonably in the Wednesbury sense or had been in fundamental breach of the duty to act fairly. It further went on to add that the council’s use of the statutory power was a misuse of power. The council could not properly use its statutory powers of management or any other statutory powers for the purpose of punishing the club when the club had done no wrong. Accordingly, a political policy-however morally justified – could not provide the lawful basis on which to deprive the club of engaging in its lawful activities. (iii) In R (Friends of the Earth) v Secretary of State for Business, Enterprise and Regulatory Reform; R (Help the Aged) v Secretary of State for Environment, Food and Rural Affairs Times LR 13 October 2009, the Court of Appeal ruled that it was not unlawful for government ministers to consider ‘reasonable practicability’, at least to some extent by reference to departmental budgets, when taking steps to implement specific targets, including eliminating fuel poverty. See the November 2009 Newsletter. 13.4.6 Failure to take relevant considerations into account (i) This occurs when an authority fails to take into account relevant considerations or takes into irrelevant considerations which materially affect the decision reached and may be held to be acting ultra vires. (ii) In Roberts v Hopwood (1925) the local authority was empowered to pay its workers ‘as it thought fit’ When the council decided to pay wages 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 its ratepayers overrode its desire to better the lot of workers. (iii) In Bromley London Borough Council v Greater London Council (1983), the Greater London Council wishing to increase passenger numbers and thereby reduce traffic congestion by decreasing fares on public transport, sought to pay for this by seeking a higher level of subsidy for London Transport by increasing the rates payable by ratepayers in London. The House of Lords Greater London Council to be acting ultra vires and had used its powers for the wrong purpose. They had to act in the interests of all constituents and not only constituents who were users of London Transport. (iv) Where the irrelevant considerations do not affect the outcome of the decision, the court may hold that the authority is acting intra vires. In R v Broadcasting Complaints Commission ex parte Owen(1985), the Broadcasting Authority which had the duty of ensuring fairness in the allocation of broadcasting time for political parties at election time, refused to consider a complaint that a political party had been given too little broadcasting time. The decision was challenged in the courts. However, while the Commission had some good reasons for not considering the complaint, it had also erred by giving weight to an irrelevant consideration, namely, that the task would be too burdensome. The court nevertheless held that the Commission had acted within its lawful discretion. (v) In R v Cambridge Health Authority ex parte B [1995] the Court of Appeal held that the courts could not make judgments about how health authorities decide to allocate a limited budget. The health authority had refused to fund further chemotherapy or a second bone marrow transplant for a ten year old with only a few weeks to live. Notwithstanding that decisions relating to human life had to be treated with greatest seriousness, the court could not substitute its judgment about the allocation of financial resources for that authority. (vi) In R (Walker (David)) v Secretary of State for Justice Times LR 6 February 2008, the Court of Appeal ruled that the Secretary of State had acted unlawfully in failing to let prisoners serving indeterminate sentences for public protection show the Parole Board by the expiry of their minimum terms that it was no longer necessary to confine them. The Secretary of State had acted unlawfully in failing to provide measures to allow and encourage prisoners serving indeterminate sentences of public protection. It was possible for dangerous prisoners both to cease to be dangerous and to show that they had ceased to be dangerous. There had been a systematic failure on the part of the Secretary of State to put in place the resources necessary to implement the scheme of rehabilitation necessary to enable the relevant provisions of the Criminal Justice Act 2003 to function as intended. Page153 13.4.7 Fettering discretion (i) 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 discretion at all. (ii) In H Lavender & Sons Ltd v Minister of Housing and Local Government (1970) the applicant sought planning permission to extract sand and gravel from high grade agricultural land. The local planning authority refused it and the applicant appealed to the Minister of Housing and Local Government who being persuaded by the Minister of Agriculture that such land be preserved for agricultural purposes, dismissed the appeal. The decision was set aside. The Minister was entitled to have a policy but in this instance the Minster’s decision had been based solely on another Minister’s objection. The Minister did not therefore open his mind to the application and thereby fettered his discretion as the Minster of Agriculture had no power to determine such matters. 13.4.8 Unauthorised delegation (i) Where powers are conferred by statute, the general rule is that they may not be delegated unless the delegation is authorised by law. It is however accepted that where the statute has conferred powers on the minister, the powers are exercisable on his behalf by the personnel of his Department. (ii) In Local Government Board v Arlidge (1915) it was stated: ‘a minister cannot do everything himself’. The court however held that while a minister could lawfully delegate his power of determination to subordinate, he remained constitutionally and personally accountable to Parliament for the conduct of his Department. (iii) In Carltona v Works Commissioners (1943), the Commissioners were given powers, under wartime regulations, to requisition property. Carltona’s property was requisitioned, the order being signed on behalf of the Commissioners by a civil servant with the rank of assistant secretary. Lord Greene MR stated: ‘... the decision of the officer is the decision of the Minister; the Minister is responsible to Parliament. If the Minister delegated to a junior officer, he would have to answer to Parliament’. (iv) In Barnard v National Dock Labour Board (1953), disciplinary powers delegated by Statute to the London Dock board were sub-delegated to a port manager. The delegation was held to be ultra vires. (v) In Oladehinde v Secretary of State for the Home Department (1990) the question of authorised delegation came before the House of Lords. The applicants wished to challenge notices of intention to deport them. Immigration inspectors issued the notices. The applicants argued that the powers under the Immigration Act 1981 were conferred upon the Secretary of State and could not be delegated. The House of Lords dismissed the appeal. The Act provided specific matters, which could not be delegated by the Minister, and the court would not infer further restrictions. Provided that officers of suitable grading and experience took the decision, they were unchallengeable. Page154 13.5 PROCEDURAL IMPROPRIETY 13.5.1Under statute (i) Failure to comply with procedures laid down by statute may invalidate a decision. The courts distinguish between those procedural requirements which are mandatory, the breach of which will render a decision void and those which are directory which may not invalidate the decision taken. (ii) In Bradbury v Enfield London Borough Council (1967) the Education Act 1944 provided that if a local authority intends to establish new schools or cease maintaining existing schools, notice must be given to the Minister, following which public notice must be given in order to allow interested parties to comment. The Council breached the requirement of public notice and the plaintiffs sought an injunction. Lord Denning held that the Council had breached with the procedural requirement of notice. the merest appearance or possibility of bias will suffice. (iv) In R (BAPIO Action Ltd and another) v Secretary of State for the Home Department and another [2008] UKHL 27. Rather than use that procedure. If there had been proper consultation a different decision might have been reached. .5. The fundamental dictate of justice is that those affected by decision-makers should be dealt with in a fair manner. On the basis of the possibility of bias. of bias on the part of a justice or a member of a tribunal. Furthermore. (a) The rule against bais: nemo judex in causa sua. It was accepted that the magistrates neither sought advice nor were given advice by the Clerk during their retirement. (iii) In R v Sussex Justices ex parte McCarthy (1924) the applicant had been charged with dangerous driving and convicted. In Dimes v Grand Junction Canal Ltd (1852) Lord Cottonham LC held shares in the canal company involved in litigation. he applied for judicial review on the basis of bias on part of the Clerk. (i) It is not necessary to show that actual bias existed. The Guidance was invalid. In Bromley London Borough Council v Greater London Council (1983) the fact that all the judges of the Court of Appeal were themselves both taxpayers and users of public transport in London did not disqualify them from hearing the case. 13.2 Breach of natural justice The rules of natural justice are common law rules. The Clerk had retired with the magistrates when they were considering their verdict. In R v Gough (1993) The House of Lords stated that test was whether there was a real likelihood. [2008] 2 WLR 1073. The House of Lords set aside the decision in which he had adjudicated.” (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 receive the fines. McCarthy’s conviction was quashed. in the sense of a real possibility.(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 without the consultation required by statute. the Guidance was also inconsistent with the legitimate expectations generated by the Secretary of State for the Home Department in relation to NHS training positions and amounted to an unfair exercise of power. the House of Lords ruled that the failure of the Secretary of State to amend the Immigration Rules under the procedure prescribed by S3 Immigration Act 1971 was unlawful. the Secretary of State had proceeded by way of Guidance. (iv) A financial interest in a case which does not go beyond the financial interest of any citizen does not disqualify judges from sitting. Nevertheless. On discovering that the Clerk to the Magistrates’ Court was a solicitor who had represented the person suing McCarthy for damages. In R v Sussex Justices ex parte McCarthy (1924) it was stated: “Justice should not only be done but should manifestly and undoubtedly be seen to be done. Accordingly the decision was unlawful. (vi) In R v Bow Street Metropolitian and Stipendary magistrate ex parte Pinochet Ugarte [1999] extradition proceedings of the former Chilean head of State was challenged on the basis that one of the law Lords. it was always inappropriate for a judge to use intemperate language about subjects on which he had adjudicated or would have to adjudicate. Locabail (UK) Ltd and Another v Waldorf Investment Corp and others [2000]. and where he would be automatically disqualified. taking a broad commonsense approach. and that such publications could further rather than hinder the administration of justice. The Times. (vii) In Locabail (UK) Ltd v Bayfield Properties Ltd and another. In relation to the circumstances surrounding one of the Locobail cases. While it was not inappropriate for a judge to publish in his area of expertise. as in Dimes v Grand Junction Canal (1852). . There counsel for the church requested that he disqualify himself as a result of eight previous cases involving the Church on which he sat. Lord Hoffman. It was accepted that there was no actual bias but there were concerns that the public perception might be that a senior judge was biased (apparent bias). The decision would be set aside. The second rule was based on examination of all the relevant circumstances. (viii) 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 adjudicated by a judge who knew one of the witnesses. the charitable pressure group which works on behalf of political prisoners around and which had been allowed to present evidence in court. The court distinguished the two rules relating to disqualification. the court ruled that. as did Lord Denning MR in Ex parte Church of Scientology of California (1978). a lay observer with knowledge of the facts could not have excluded the possibility that the Recorder was biased. 21 Feb 1978. As a result the proceedings were abandoned and reheard by a new bench of seven judges (who nevertheless came to the same decision). of articles which were allegedly in favour of the claimants and against the insurers. The Court ruled that such advice should not have been given as it influenced the applicant’s decision. where there was a real danger or possibility of bias as in R v Gough (1993). The appeal was allowed and a retrial ordered. the Court of Appeal reconsidered the issue of judicial bias. had links with Amnesty International. nevertheless. which concerned the publication by the Recorder who adjudicated in a personal injury case. The applicant’s counsel had advised that the judge was unlikely to be biased.Page155 (v) Where a judge feels that he has a bias against one of the parties to litigation he may disqualify himself from sitting on a case. the first being where the judge had an interest in the case which he decided. (ix) 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 a Jewish association whose magazine expressed partisan views against Palestinian causes did not in itself imply that the judge shared such views so as to raise the possibility of bias and lack of impartiality when dealing with an immigration appeal by a Palestinian activist. The 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.’ (b) The right to a fair hearing: audi alteram partem. (i) It is a fundamental requirement of justice that when a person’s interests are affected by a judicial or administrative decision, that he or she have the opportunity both to know and to understand any allegations made, and to make representations to the decision-maker to meet the allegations. For example it may include one or more of the following: 1. The right to be given notification of a hearing 2. The right to be given indications of any adverse evidence 3. The right to be given opportunity to respond to the evidence 4. The right to an oral hearing 5. The right to legal representation at a hearing 6. The right to question witnesses Page156 (ii) Earlier the courts were prepared to hold that the rules of natural justice were less rigorous in case of exercise of powers by those bodies which exercised ‘quasi judicialor administrative’ functions. In Nakkuda Ali v Jayaratne (1951) The P/C held that there was no duty to give a hearing to a dealer when his licence was under consideration-and was revoked-because the statute made no express provision and the court concluded that that there was duty on the licecing board to act judicially. (iii) The tide turned with the case of Ridge v Baldwin (1964) where procedural fairness was insisted upon by the courts irrespective of the type of body determining a question. Ridge the Chief Constable of Brighton, had been suspended from duty following charges of conspiracy to obstruct the course of justice. Despite Ridge having been cleared of any allegations against him, the judge made comments which were critical of Ridge’s conduct. Subsequently, Ridge was dismissed from the force. Ridge was not invited to attend the meeting at which the decision to dismiss him was reached, although he was later given an opportunity to appear before the Committee which confirmed its earlier decision. Ridge appealed to the Home Secretary who dismissed the appeal. Ridge then sought a declaration that his dismissal was ultra vires on the basis that the Committee had violated the rules of natural justice. 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 have been exercised and cannot now be exercised until the watch committee have informed the constable of the grounds on which they propose to proceed and given him an opportunity to present his case in defence...” (iv) In Re Pergamon Press Ltd (1971), the right to a fair hearing was successfully challenged. Directors of two companies refused to answer questions unless given a judicial-style hearing. The court ruled, however, that although the inspectors appointed to investigate the companies were under a duty to act fairly, this must be weighed against the interests of good administration. 13.5.3 The duty to act ‘fairly’ and the concept of legitimate expectation (i) Irrespective of the body in question, there exists a duty to act fairly. In Re HK (an infant) (1967) it was held that whilst immigration officers are not obliged to hold a hearing before deciding an immigrant’s status, they were nevertheless under an obligation to act fairly. The duty to give a hearing will be higher if a ‘legitimate expectation’ has been created in the mind of the complainant by the public body concerned. (ii) A legitimate expectation will arise in the mind of the complainant whenever he or she is led to understand-by words or actions of decision-maker-that certain procedures will be followed in reaching a decision. (iii) 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 group rely upon a policy or guidelines which have previously governed an area of executive action. (iv) In R (Bhatt Murphy (a firm) and Others) v Independent Assessor: R (Niazi and Others) v Secretary of State for the Home Department Times LR 21 July 2008 The Secretary of State had announced that a discretionary scheme of compensation for victims of miscarriages of justice would be withdrawn and that a less generous basis for the assessment for legal costs would be introduced. Laws LJ stated that the power to change policy was constrained by the 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 policy which substantially affected a person or group, it would normally be required to consult before making a change in the policy. Failure to comply with these requirements would amount to unfairness such as to constitute an abuse of power. In relation to the changes introduced in this case, there was nothing which was capable of creating a legitimate expectation. Page157 (a) The giving of assurances (i) In AG for Hong Kong v Ng Yuen Shiu (1983) the applicant had been an illegal immigrant for some years. He was eventually detained and an order made for deportation. The Director of Immigration had given a public undertaking that illegal immigrants such as the applicant would not be deported without first being interviewed. The assurance was also given that each case would be treated on its merits. The Privy Council held that although there was no general right in an alien to be have a hearing in accordance with the rules of natural justice, nevertheless, a legitimate expectation had been created in the mind of the applicant. Accordingly, the breach of requirement of fairness justified the order of his removal from Hong Kong to be quashed. (ii) Fairness may also involve the due consultation of interested parties before their rights are affected by decisions. In, the corporation had given undertakings to taxi drivers to the R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association (1972) effect that their licences would not be revoked without prior consultation. When the corporation acted in breach of its undertaking, the court ruled that it had a duty to comply with its commitment to consultation. (b) The existence of policies and/or guidance (i) In R v Secretary of State for the Home department ex parte Asif Mahmood Khan (1984) , the Home Office had published a circular stating the criteria to be used for determining whether a child could enter the United kingdom. When the applicant sought to bring his nephew in, entry was refused. It was held that the Home secretary had acted ultra vires: he had created a legitimate expectation and was not free to employ different criteria. (ii) The concept of legitimate expectation based on procedural guidelines may also be seen in the case of Council of Civil Service Unions v Minister of Civil service (1985), where it was clear that had issues of national security not been involved the courts would have protected the legitimate expectations of employees at GCHQ not to have their right to be members of trades union removed without consultation. (c) The right to make representations Where there exists no right to an oral hearing, it may well is that opportunity to make written submissions will satisfy the requirements for justice and fairness. In Lloyd v McMahon (1987) the local government councillors were in breach of their statutory duty to set the level of local rates. When the district auditor came to determine the issue, the applicants claimed the right to an oral hearing. The court disagreed, holding that since the auditor had given notice of the case against them and had considered written representations from them, he had acted fairly and accordingly lawfully. (d) Admissibility of evidence and attendance of witnesses. In R v Army Board of the defence Council ex parte Anderson (1991), the applicant for judicial review had made allegations of racial discrimination, which resulted in him taking absence without leave. Members of the Board considered his allegation of discrimination on the basis of circulated papers, and did not meet for the purpose of reaching its decision. The complainant had requested, but had been refused, an oral hearing, and had also requested, but refused the disclosure of documents relating to his case. The Board decided that although there was some prima facie evidence of discrimination, it was insufficient to warrant either an apology or compensation. Counsel for the Board reverted to the distinction between administrative and judicial functions. Taylor LJ held that the distinction was unnecessary. He cited four principles that applied to the standard of fairness required in a hearing such as that of the Board. 1. there must be proper hearing of the complaint and the board must consider all relevant evidence before reaching its conclusion. 2. the hearing does not have to an oral hearing in all cases. What the board cannot do is to have an inflexible policy not to hold oral hearings. The board fettered its discretion and failed to consider the requirements for an oral hearing in the present case on its own merits. 3. the opportunity to have evidence tested in cross-examination will be dependant on the decision to have an oral hearing although it is possible to have an oral hearing simply to hear submissions. 4. On duty to disclose documents, the complaint should be shown all the documents unless public interest immunity is claimed. (e) The availability of legal representation. (i) This will depend on the nature of the hearing and the nature of the rights affected. There is no general right to legal representation. Where the proceedings are before a tribunal, the right to be represented is at the discretion of the tribunal. (ii) The Royal Commission on Legal Services states the general principle that it is desirable that every applicant before any tribunal should be able to present his case in person or to obtain representation. The essential criteria for representation are that the tribunal should not adopt a rigid policy but rather should exercise a genuine discretion in relation to the availability of representation. Page158 13.5.4 The failure to give reasons (i) In Bren v AEU (1971) Lord Denning stated the giving of reasons is ‘one of the fundamentals of good administration’. Accordingly, a decision-maker will be under a ‘general duty’ to give reasons, and any departure from the requirement to give reasons will require sound justification. Where an authority fails to give reasons for a decision, which is challenged subsequently by judicial review, the court may consider that there were no good reasons whatsoever for the decision: per Lord Keith in R v Trade secretary ex parte Lonhroplc (1989) (ii) At common law there is no general duty to give reasons. Page159 13. whether by court or administrative bodies.1 Attempts to exclude judicial review totally (i) In R v Medical Appeal Tribunal ex parte Gilmour (1957) the statute provided that ‘the decision of any medical question by a medical appeal tribunal.. (c) ‘Conclusive evidence’ clauses. the failure to give reasons adversely affected the concept of fairness.6. the Court of Appeal while stating that there was no general duty to give reasons held that the Civil service Appeal Board-which determined the applicant’s compensation for unfair dismissal. the possibility of their successfully applying for judicial review would be frustrated.is final. The House of Lords laid down two justifications for the requirement that information be given. sought information as to the basis on which the decision concerning their mandatory detention had been reached. in a language which he or she understands. In R v Civil Service Appeal Board ex parte Cummingham (1991). (iii) In R v Secretary of State for the Home Department ex parte Doody (1993) the applicants who were serving mandatory life sentences. (iv) In R v Secretary of State for Home Dept ex arte Al Fayed [1997]. 13.6 EXCLUSION OF JUDICIAL REVIEW A number of different statutory means are employed in an attempt to limit the availability of judicial review. (a) Clauses which are intended to prevent any challenge. Article 6. (v) The giving of reasons. assumes increased importance in light of the Human Rights Act 1998. Second. Fairness demanded that the Board give reasons. the reasons for the arrest. The courts have however developed the exceptions. First if reasons were not given to the applicants. the Court of Appeal ruled that the Home Secretary had a duty to indicate to the applicant the area (s) of concern on which he was basing his refusal to grant naturalisation in order that the applicant may have an opportunity to allay the Home Secretary’s concerns.. (b) Clauses which are designed to limit review to a specified time period. Article 5 of the Convention (the right to liberty and security) expressly states that persons arrested shall be informed promptly.was under a duty to give reasons. The Court . protects the right to a fair trial. The tribunal made an error of law. in the same manner as required for an industrial tribunal. 6. In Smith v East Elloe Rural District Council (1956). it did not apply as the clerk acted in bad faith. the court had the power to review the FCC’s decision which it declared null and void. Lord Denning stated: “the remedy of certiorari is never to be taken away by any statute except by the most clear and explicit words.. (ii) A similar view was taken by the Court of Appeal in R v Secretary of State for the Environment ex parte Ostler (1976). (iii) In Anisminic v Foreign Compensation Board (1969) The Foreign Compensation Act provided that the decisions of the FCC ‘shall not be called in question in any court of law’. She argued that despite the time limit. The House of Lords ruled that the jurisdiction of the courts was not ousted. The House of Lords destroyed the distinction between errors of law within jurisdiction (previously regarded as non-reviewable) and errors of law which took the decision-maker outside its jurisdiction. were not of such a fundamental nature as to deprive the court of jurisdiction. 13. It does not mean without recourse to certiorari. (iv) Similarly in Pearlman v Keepers and Governors of Harrow School [1979] the Court of Appeal ruled that the misinterpretation of the provisions of the Housing Act 1974 by the county court amounted to a jurisdictional error which nullified the court’s decision Lord Denning MR stated that the distinction between errors which entail an excess of jurisdiction and an error made within jurisdiction should be abandoned. Mrs Smith did not do so. Accordingly.. 13.3 Exclusion of review by conclusive evidence clauses (i) Parliament may effectively oust the jurisdiction of the courts by inserting a clause into a statute which provides that a subordinate piece of legislation shall have effect ‘as if enacted in this Act’ or that an .held that the jurisdiction of the court was not ousted by the statutory words. The Industrial relations Act 1967 in Malaysia provides that the award of the court shall be ‘final and conclusive’. The Privy Council while citing Gilmour with approval distinguished between an error which affected the jurisdiction of the Court to make a determination and decisions which. The House of Lords by a majority rejected this view and upheld the time limit clause. That only means that ‘without appeal’. be questioned in any legal proceedings whatsoever. In the latter case. (ii) In South East Asia Fire bricks v Non-Metallic Mineral Products Manufacturing Employees’ Union (1981) the ouster clause succeeded. If not challenged within that period the order ‘shall not. a challenge to the validity of a compulsory purchase order was limited under statute to a six week period after the confirmation of the order. whilst in error. The effect of the Anisminic case is drastic. Lord Denning in this case distinguished between a time limitation for review and a total exclusion of review. The decision reveals the judicial emphasis on the rule of law.6. The word ‘final’ is not enough. This was because FCC had acted outside its jurisdiction by misinterpreting the statute. the ouster clause would be effective.2 Time limits on judicial review (i) A statute may provide that there should be no challenge by way of judicial review other than within a specified time period. At first instance standing should be considered when leave to apply is sought.2 The standing to apply for judicial review (a) The sufficient interest test. (“locus standi”) (i) In R v Inland revenue Commissioners ex parte National Federation of Self –Employed and Small Businesses(1982) The House of Lords approach was that the question of standing should be examined in two stages. (ii) In R v Register of Companies ex parte Central bank of India (1986) such a clause in the Companies Act 1985 effectively ousted the jurisdiction of the courts.1 The Supreme Court Act 1981 (i) The basis for judicial review lies in Section 31 of the Supreme Court Act 1981 and the Rules of The Supreme Court Order 53.7. cranks and other mischiefmakers’. If leave is granted the court may-when the merits of the acse are known-revise its original decision and decide that after all the applicants do not have sufficient interest. Page160 13. Mohamed and Ali Al Fayed have been granted leave to seek judicial review of The Home Office’s refusal to grant them British citizenship. (iv) The right of an individual to challenge the action of a body in the interests of society generally is more restrictive. which they were denied in a matter affecting their individual liberty.7 THE BASIS FOR JUDICIAL REVIEW 13. 13. (ii) In Schmidt v Secretary of State of Home Affairs (1969) students who entered the country as ‘students of scientology’ challenged the decision of the Home Office not to allow them to stay once the permitted period of stay had expired. (ii) Section 31(3) states that no application for judicial review shall be made unless leave of the High Court has been obtained in accordance with the rules of the court. in which they allege they have been denied natural justice. At that stage the court is concerned to ensure that ‘it prevents abuse by busybodies.7. and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates. In Gouriet v Union of Post Office Workers (1978) the House of Lords ruled that where . The students had ‘legitimate expectations’ that they would be allowed to make representations to the Home Office.order by a designated Minister shall be ‘conclusive evidence that the requirements of this Act have been complied with and the order has been duly made and is within the powers of this act’. (iii) Most recently. The case concerned the employment of casual labour on newspapers. The WDM argued that the Secretary of state had exceeded his powers. In R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association (1972) the Liverpool Corporation had the duty of licensing taxis and fixing the number of licences to be granted. the Federation lacked sufficient interest to challenge the particular wrongdoing alleged. but the application was dismissed on the basis that the issue was non-justicable. where the workers frequently adopted false names and paid no income tax. (vii) Similarly. (vi) On the standing of pressure groups. The IRC entered into an agreement with relevant trade unions that if the workers filled in tax returns for the previous two years the IRC would not pursue the tax due for previous years. He was held to have sufficient standing. leave for judicial review was sought. Page161 (viii) In IRC v National Federation of Self-Employed and Small Businesses (1982) the test for standing of other pressure groups was stated. the WDM sought judicial review of the Foreign Secretary’s decision to grant financial aid to Malaysia for the building of the Pergau Dam. . (ix) In R v Secretary of State for Foreign and Commonwealth Affairs ex parte Word Development Movement [1995]. (v) In R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg (1994) the applicant sought judicial review of the government’s ratification of the treaty of the European Union without parliamentary consent.an individual was not asserting any private right and whose right was only that as member of the public in relation to public rights. 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. Note: Both the above cases concerned challenge to decisions affecting their own members. in Royal College of Nursing v Department of Health and Social Security (1981) the Royal college had sufficient standing to challenge a departmental circular concerning the role of nurses in abortions. When the Corporation announced that the number of licences was to be increased. The WDM played a prominent role in giving advice and assistance in relation to aid and had consultative status with the United Nation’s bodies. The House of Lords added that if the IRC had acted with impropriety there would have been standing in a taxpayer to challenge its unlawful acts. IRC contended that the Federation did not have sufficient interest. The court held that WDM had sufficient interest. without consulting the Operators’ Association. It was held that the Association had sufficient standing. it depends on whether the group has its interests adversely affected by administrative decision-making. The National Federation (an association of taxpayers) argued that the IRC had no power to enter into the agreement ang sought judicial review. (f) Damages pursuant to Section 8 of the Human Rights Act 1988. (b) The ‘Exclusivity Principle’ In O’Reilly v Mackman (1983) it was held that if that if an individual’s rights are infringed in private law it is not a proper subject for judicial review. (d) Declaration . prohibitory or mandatory and a re used to prevent a Minister or administrative body from acting unlawfully. That test-which is the same as the test applied under the European Convention of Human Rights – is narrower than standing in other judicial review proceedings. Its effect is to nullify any previous decision.(x) The Human Rights Act 1998 introduced a new basis for ‘standing’. (e) Injunctions . . It also excludes representative bodies and interest groups taking action on behalf of their members. In M v Home Office (1993) it was held that injunctions could lie against Ministers of the Crown.this is a statement of the legal position of the parties. (b) Prohibition . which is incompatible with the statement of law made by the court.8 REMEDIES (a) Certiorari – it is an order which quashes the original decision. (c) Mandamus .an order which prevents a body from making a decision which would be capable of being quashed by a certiorari. 13.an order which compels an authority to act.these may be interim or permanent. It is therefore protective in nature. Section 7 of the Act provides that only a ‘victim’ of an act of a public body may make a claim.