PUBLIC LAW STUDY MANUAL RABINDER SINGH

CONTENTS: 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

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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 Kingdoms 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 Darnels 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.

(vii) Jury trial is available. (viii) For redress of grievances Parliament ought to meet frequently. 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. (d) The Act of Settlement 1700 This Act provided for the line of succession to the throne, 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. It also provided for security of tenure for the judiciary during good behaviour, ending the power of the Crown to dismiss judges at will. For example, 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, he was dismissed from the Bench. (e) The Treaty of Union 1706 This treaty united England and Scotland under a single Parliament of Great Britain. It however preserved the laws which concerned Scottish private rights. 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, the European Community (Amendment) Act 1986, and the Treaty of European Union (the Maastricht Treaty) 1992 which gives effect to the United Kingdoms entry into the European Community. This will continue to have immense significance for the constitution of the United Kingdom. Much recently there has been some devolution of power to Wales, Scotland and Northern Ireland with the establishment of State Assemblies. The Human Rights Act 1998 will have a great impact on certain human rights issues and on judicial role in statutory interpretation and precedent.

Page4 1.4.2 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.

(ii) The judiciary has no power to question the validity of an Act of Parliament. However, delegated or secondary legislation may be subject to judicial review. This is to ensure that organisations (Ministers, Local Authorities, public bodies exercising public functions, tribunals etc) act within the powers conferred on them by an Act of Parliament. In other words, they must act intra vires. (iii) Under the concept of Parliamentary Privilege, in relation to the conduct of its business, Parliament claims many privileges and immunities. For example, a Member of Parliament is free from any threat of the law of defamation by any person harmed by the exercise of free speech. Furthermore, 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. (b) The State and the Individual (i) The Human Rights Act 1998 has a substantial impact on a citizens right in enforcing certain fundamental rights and freedoms under the European Convention on Human Rights. (ii) At common law, cases like Entick v Carrington (1765) provide some protection. 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. (iii) At the other end of the spectrum was the case of Liversidge v Anderson (1942). In this case it was held by the House of Lords that the Home Secretarys 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.

1.5 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. There is no special procedure being prescribed for the repeal or amendment of legislation of constitutional importance. (ii) Before the Republic of Ireland joined the EC, a constitutional amendment had to be approved by referendum of the people. In UK, while the ECA 1972 was debated at length in Parliament, it was passed by the same procedure just as any other piece of legislation. (though there was an arrangement that members of the ruling party could differ in the voting the whip system was relaxed). (iii) Referendums were held prior to the devolution of powers to Scotland, Wales and Northern Ireland not as a matter of constitutional requirement but rather due to political expediency. In the Cabinet-style of government of the UK, 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. This is what Lord Hailsham termed as the elective dictatorship. Absent a writ

en constitution, there are no legally enforceable constitutional limits which bind this elective dictatorship. (iv) It is surprising to note that the some of the more important institutions, like the Cabinet, do not draw their authority from the law. In turn, many important rules which govern the government are not rules of law at all - as conventions, they are political by birth and remarkably, only owe their existence to the continued acquiescence of those whom they bind.

Page5 (v) A written Constitution would serve as a check and balance mechanism over the potential arbitrariness by Parliament. The Human Rights Act 1998 only offers nominal protection of human rights and certainly not on the scale envisaged of a written constitution. (vi) With the supremacy of Parliament, the HRA 1998 is not immune to express repeal. In the High Court, Mr. Justice Sullivan supported a decision to allow Afghan hijackers to remain in the UK until it was safe for them to return home. He criticised the failure of successive Home Secretaries to allow them leave as conspicuous unfairness amounting to an abuse of power. Tony Blair attacked the decision as an abuse of common sense. The Sun agreed, At last Tony Blair admits he needs to do something about the ludicrous Human Rights Act. He wants the Government to overturn judges barmy rulings... 15 May 2006. (vii) According to Lord Woolf, 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, 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. (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. The present task of having to peruse through the jungle of legislations is no small feat for an ordinary citizen. (x) Despite the efforts of the Labour government, much still remains to be clarified, such as the stand on the use of royal prerogatives, the monarchy, and the convention of ministerial responsibility in particular and the footing on which conventions stand in general.

1.6 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.

(ii) Such an exercise would consume much time and money. If a Constitutional Commission were to be employed to do the detailed work on a possible draft, involving the appointment of an independent body, consulting widely, the use of expert committees, publication of consultation documents, and consequent referendums, then millions of pounds would be needed. All these costs would not be justifiable if the end product is only to bring together whatever documents which are already on the books, albeit in scattered form. (iii) According to Rodney Brazier, the UK has been given rather more of a written constitution by the addition of sixteen Acts of Parliament which, in whole or in part, add to the constitution... There has been an exponential growth of constitutional statute law since 1997... (iv)The historical reason for the absence of a written constitution is that Britain has never been the subject of alien rule since 1066. As can be seen from most Commonwealth countries a written constitution is the legacy of foreign rule (say the Malaysian Federal Constitution, the South Africa Act 1909, the British North America Act 1867- now the Constitution Act 1867- 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.g. Japans pacifist constitution). (v)In Portugal, Spain and Greece, new constitutions have been adopted to mark the transition from dictatorship to democracy. Such constitutions are termed as reactive - meaning it is reacting against a certain past, say, a dictatorship or occupation. (vi) Notwithstanding 2 World Wars, Britain has been stable and has had a responsible government. By and large, constitutional principles have been abided by. As such, as the saying goes, if it isnt broken, dont fix it.

Page6 (vii) William Hague once said that there was no need for a written constitution as we already have internal stability and democratic accountability, and Britain has been well served by its unwritten constitution. (viii) A written constitution would inevitably draw the judiciary into the political arena as judges would then have to decide on political issues. This is no more clearly seen than in the case of the US judiciary, notably its decisions on the issue of the separation of State and the Church. This would compromise on their neutrality. (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 - capital punishment, abortion, racial discrimination - these are issues which the US Supreme Court has resolved, and which we rightly expect parliament to resolve.

(x) Moreover, in the process of doing so, 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. (xi) This would be an affront to democracy. 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. (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, all constitutions leave important things unsaid. 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. The codification of the constitution would freeze these rules and practices from sprouting as they are now in the most common of forms: conventions. If this is so, 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. Such flexibility results, in part, 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). (xv) However, it appears conventions may also be obviated for less than worthy reasons. For e.g., as Prof Finer pointed out, 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, a compliant minister and a clamorous party. Should this convention be enshrined in a new constitution in more certain terms, its offenders would certainly no longer be able to escape with impunity. (xvi) The less-than-clear demarcation of powers within the political system has ultimately been proven to be a blessing, allowing for the powers of the Monarchy and the House of Lords to be diminished over time.

Page7 Chapter2: CONSTITUTIONALCONVENTIONS CONTENTS: 2.1 What Are Conventions? 2.2 Examples of Conventions 2.3 The binding nature of conventions 2.4 Purposes of Conventions

2.5 Who is bound by conventions? 2.6 Effect of Breaching a Convention 2.7 Differences between Conventions and Laws 2.8 The courts and conventions 2.9 Should We Codify Conventions? 2.10 The May 2010 general Elections and the interim period was there breach of a convention?

2.1 WHAT ARE CONVENTIONS? (i) They are rules of practice applicable to the 3 organs of the State. According to Sir Ivor Jennings in The Law and the Constitution: Constitutional conventions provide the flesh which clothe the dry bones of the law; they make the legal constitution work; they keep in touch with the growth of ideas. (ii) In essence it has been stated that constitutional conventions form the most significant class of nonlegal constitutional rules. 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 ...understandings, habits or practices which, though they may regulate the... conduct of several members of the sovereign power... are not in reality laws at all since they are not enforced by the courts. (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...or by the presiding of officers in the Houses of Parliament.

Page8 2.2 EXAMPLES OF CONVENTIONS (i) Acts of Parliament are technically enacted by the Queen in Parliament the Crown, Commons and Lords. The Queen has the legal right to refuse to give the Royal assent to Bills passed by the House of Commons and Lords. By convention, the Queen must assent to such Bills unless advised to the contrary by her government. (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. Another related convention here is that the Prime Minister should be a member of the House of Commons.

(iii) The government must maintain the confidence of the House of Commons. If a vote of confidence on a matter central to government policy is lost, the government must resign or advise the Queen to dissolve Parliament. (iv) The Sovereign should dissolve Parliament only on the PMs request. 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, can the Sovereign not dissolve Parliament even though the PM requests this after having lost the confidence of the Commons, as in convention (iii) above and invokes convention (ii) calling upon the new leader to show evidence of his support in the Commons. Note: Even in the case of a written constitution, there may still exist doubts. A recent stark reminder is the constitutional crisis in Perak. 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. The decision of the Federal Court stated that the appointment was valid. (v) Ministers of the Crown are individually and collectively responsible to Parliament. (Ministerial Responsibility) (vi) Ministers must be members of either the House of Commons or the House of Lords. (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. (viii) Parliament must be summoned to meet at least once a year. (ix) Judges shall not play an active part in political life. Further, members of Parliament shall not criticise the judiciary. (x) The opinion of the law officers of the Crown is confidential. (xi) The Sovereign should act on the advice of her ministers, as tendered through the PM. (xii) Finance Bills must originate from the Lower House. (superceded by the Parliamentary Act of 1911) (xiii) Civil servants must be politically neutral.

2.3 THE BINDING NATURE OF CONVENTIONS (i) If conventions are rules prescribing conduct, then they impose an obligation, though not legal, on those who are regulated by the rule. 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, than that failure will give rise to legitimate criticism.

(ii) Thus putting this jargon into simple terms, the conduct of deviating from accepted conduct would be said to be unconstitutional rather than illegal. Thus the obligation to follow the standard of conduct is accepted by those whose conduct is regulated by the convention. (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. Example: Some Asians drink tea in the afternoon. Drinking tea would be the habit. 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. A practice on the other hand, though requiring a justification for departure, does not acquire the binding characteristic of a rule. (iv) Conventions also differ from legal rules. A legal rule is identifiable and certain will normally be found in an Act of Parliament or a judicial decision. Conventions are less certain in their origins. (v) A legal rule will normally have a settled meaning as it may have been subject to statutory interpretation earlier. The meaning of a non-legal rule may change with times. The change of a legal rule needs a legal process such as overruling or legislation amending or revoking it, to change it. In this respect conventions are more flexible. (vi) In summary, a convention is a non-legal rule which imposes an obligation on those bound by the convention, breach or violation of which will give rise to legitimate criticism: and that criticism will generally take the form of an accusation of unconstitutional conduct.

Page9 2.4 PURPOSES OF CONVENTIONS (i) According to Marshall and Moodie: The purpose of having conventions is to define the use of constitutional discretion ... non-legal rules regulating the way in which legal rules shall be applied. (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. (iii) OHood Phillips: Conventions are a means of bringing about constitutional developments without formal changes to the law.

2.5 WHO IS BOUND BY CONVENTIONS? (i) For example, it is a convention under doctrine of collective responsibility of Ministers to Parliament that all members of Cabinet speak in public with a united voice and furthermore, in order to reinforce

public confidence in government, cabinet members may not disclose the contents of Cabinet discussions. (ii) For collective cabinet responsibility, 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. (iii) This doctrine was put under strain during Mrs.Thatchers government (1979-1989). She deviated slightly from the convention. 1. The first was that increasing use was made of decision-making by a small group of cabinet members, an inner Cabinet whose decisions were under the convention of collective responsibility made binding on all other members, even though they had not participated in the decision-making process. 2. 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 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. The effect of this practice was to reduce the power and influence of the Chancellor of the Exchequer, Nigel Lawson. In fact in consequence of this he resigned.

Page10 2.6 EFFECT OF BREACHING A CONVENTION (i) A V Dicey argued that a breach of a convention may lead to a breach of law. For example, if Parliament, in breach of convention, did not meet annually, the consequence would be that money granted on an annual basis by Parliament for the maintenance of the armed forces would not be forthcoming. Accordingly, 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, without Parliaments consent, is unlawful. (ii) Sir Ivor Jennings opined that a breach of convention could result in political chaos. 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. 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, the government introduced the Parliament Bill 1911 which eventually became the Parliamentary Act 1911. From this example, it is evident that when a breach of a convention is deemed sufficiently serious, Parliament may place the convention on a statutory basis. (iii) In 1975, the convention of collective ministerial responsibility was breached. The Labour Government was divided on the continued membership of the European Community. It was decided that the matter be put to the electorate in a referendum. The cabinet itself was deeply divided on the issue and the Prime Minister decided to lift the convention of collective responsibility in order to

facilitate full and free public debate. The convention was however set aside only for this purpose and remain effective for all other matters before Cabinet. Upon resolution of the issue, the convention was reinstated. No adverse consequences arose there were criticisms that such a move was unconstitutional. (iv) However, when the PM from 1916-1918, Llyod George dissolved Parliament without consulting and informing his colleagues in Cabinet and thus, for all purposes and intent, breaching a convention, there was no consequence for him at all. (v) Madzimbamuto V Lardner-Burke: It is said that it would be unconstitutional for the UK Parliament to act contrary to conventions. But that does not mean that it is beyond the power of Parliament to do these things. If Parliament chose to do any of them, the courts could not hold the Act of Parliament invalid.

2.7 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. On the other hand, there are a set of rules consisting of conventions, understandings, habits or practices which though may regulate the conduct of the Executive, are in reality not laws as they are not legally enforceable - these are what he termed as constitutional morality. (ii) If conventions are not accepted by those to whom it purportedly binds, then it simply vanishes. For laws per se, breach of it does not result in us questioning its validity. It survives on and its existence simply does not rest upon general acquiescence. (iii) According to Hilaire Barnett, sources of law are identifiable and certain e.g. Acts of Parliament and case laws. The origins of conventions are by large vague and definitely historical. As such, their scope lacks proper demarcation. (iv) Correspondingly, it would be more difficult to promulgate laws compared to conventions as the latter has to go through certain definite processes (e.g. primary laws would have to go through the parliamentary process). Conventions may be more easily adopted or dropped as no strict processes have to be abided by. (v) Laws are legally enforceable and breaches of it entails in an illegality and sanction. Courts may not enforce conventions but may accord them with recognition (A-G V Jonathan Cape; Manuel V A-G). Consequences of a breach of convention rest upon the importance of the convention itself. (vi) As can be seen from the doctrine of ministerial responsibility, conventions may also be waived when the situation demands it. This would not be true of a law however.

Page11 2.8 THE COURTS AND CONVENTIONS (i) Generally, the courts have no jurisdiction to adjudicate upon conventions as they are non-legal rules. The court may however, give recognition to a convention when deciding a case. (ii) In AG v Jonathan Cape Ltd (1976), the executors of the late Richard Crossman, a former Cabinet Minister, decided to proceed with the publication of the diaries he had kept while in government. The Diaries included records of Cabinet discussions which, under the doctrine of collective ministerial responsibility, may never be revealed other than under conditions specified by law or on the authority of the Cabinet Secretary. The government sought an injunction to restrain publication on the basis that Cabinet meetings are, by convention, confidential and that The Diaries accordingly represented a breach of confidentiality. The court recognised the convention but could not enforce it. The court however ruled that unless national security was involved, an eight to ten year embargo was the maximum period that such material would be protected. In reaching judgement, Lord Widgery CJ evaluated the doctrine of collective responsibility finding that there was ...overwhelming evidence that the doctrine...is generally understood and practised and equally strong evidence that it is on occasion ignored. He stated that for the AG to succeed three matters had to be established: (a) that such publication would be in breach of convention; (b) that the public interest required that the publication be restrained; and (c) that there are no other facts of the public interest contradictory of and more compelling than that relied in. Accordingly, the injunction was refused. (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). The principal question before the Supreme Court of Canada was whether, as a matter of law, the constitution of Canada could be changed without the consent of the Provinces and whether this consent was required as a matter of convention. 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, but that convention could not be enforced by a court of law. (iv) Similarly, 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, although important as a convention, had no effect in limiting the power of the UK Parliament.

2.9 SHOULD WE CODIFY CONVENTIONS? 2.9.1 Arguments for (i) As Hilaire Barnett pointed out, for rules of such importance to be ill-defined, uncertain in application and unenforceable by the courts is, at best, anomalous, and at a worst, a threat to the principle of government according to law. (ii) Codification would add clarity to the qualities possessed by conventions. As Hilaire Barnett puts it, unlike laws, conventions do not go out with a bang but instead adapt in amoeba-like fashion to meet constitutional needs of the time. This begs the question: if we are not even sure that it exists, how are we to enforce it? (iii) For example, when Lord Irvine was the LC, he insisted on his right to sit as a judge, but when Lord Falconer was appointed to the office, he declared that he would not do so. (iv) If many legal rules have an open texture, 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. (Bradley and Ewing) (v) Codification would provide greater insight into conventions and thereby act as some check on the power of the government. By crystallizing them as statutory force, they would be given the force of law thereby securing their effective enforcement unlike the haphazard present. (vi) For citizens, their only recourse would be political action - a complaint to the MP, a letter to the press, demonstrations and protests. For a member of the executive, he may take up the issue in Parliament. 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.

Page12 2.9.2 Arguments against i. There may be reasons for not codifying a convention. Firstly, it is difficult or even disadvantageous to define a number of important conventions. This is because some conventions are vague e.g. Ministerial Responsibility and the working of the Cabinet system. ii. Codification will import an element of certainty at the expense of flexibility. Informal modifications keep the constitution in touch with contemporary political thinking. Codification would inhibit this and stultify one of the purposes of conventions, that is, to keep the convention up to date. iii. There may be situations in the future where some conventions ought, in the public interest be waived and some varied. Codification would make this difficult as an Act of Parliament would have to be

passed every time to change a convention and would take up unnecessary Parliamentary time and expense. iv. So long as conventions are regularly observed there would be no sound or apparent reason for codifying them. For example, the convention that lay Peers cannot sit in the Lords when it sits as a Judicial Chamber was always complied with. v. Their unwritten nature cloaks them with flexibility, enabling new conventions to be adopted, as well as antiquated ones to be discarded, with little fuss and thereby keeping the law up-to-date. vi. Given that parliamentary time is at a premium, this quality of conventions would ensure that the most important aspects of the UK constitution are kept abreast with times at no cost to Westminsters legislative agenda. In turn, this means that they are adept at meeting changing circumstances with speed, something written law cannot boast of. They allow for the exercise of discretion where circumstances call for it. E.g. waiver of the doctrine of collective ministerial responsibility. This would be lost with codification. vii. Codification would drag the judiciary into the political arena as it would require them to adjudicate on matters which are essentially political. Not only would their impartiality be compromised, so would the concept of separation of powers. viii. In May 2006, 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. ix. It ought to be noted that in a written constitution, 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.

Page13 2.10 THE MAY 2010 GENERAL ELECTIONS AND THE INTERIM PERIOD - WAS THERE BREACH OF A CONVENTION? (i) UK had its general elections in May 2010. 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

In essence, UK faced a hung Parliament. (ii) After the results were announced, Gordon Brown remained in office at No. 10 Downing Street. In fact during the press conference outside No. 10 Downing Street, he stated that he was willing to talk to Nick Clegg after he had his negotiations with David Cameron of the Conservatives. (iii) Gordon Brown was somewhat optimistic that if talks between the Liberal Democrats and Conservations (on the possibility of a loose coalition) failed, 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. (iv) If such were the case, he would have to also get the support of some of the minority parties to touch that figure. Otherwise, he would have to contend with a minority loose coalition government with the Liberal Democrats exceeding the Conservative figure (307) by only 5 seats. 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, paving the way for another general election. In fact to lure the Liberal Democrats to his side he suggested that if they teamed up, there would be immediate legislation for proportional representation. (v) In the next few days that followed, there was an air of uncertainty in British politics in the absence of a loose coalition between the Conservatives and Liberal democrats, who had the legitimate right to form the government? The minority Conservative or Labour. In such instance, how long could Gordon Brown remain in No. 10 Downing Street as sitting Prime Minister. 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. (vi) Nevertheless, this uncertainty was cleared after some of the negotiation proposals by the Conservatives were agreed upon by the Liberal Democrats and thereafter, Nick Clegg obtained his partys sanction for adoption of the proposals and this facilitated the lose coalition between Conservatives and the Liberal Democrats. (totaling 364 seats). 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.

Page15 Chapter3: THE RULE OF LAW CONTENTS: 3.1 Introduction 3.2 Has the 1st Postulate Been Observed?

3.3 Has the 2nd Postulate Been Observed? 3.4 Has the 3rd Postulate Been Observed? 3.5 The rule of law as a broad political doctrine 3.6. 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)

3.1 INTRODUCTION (i) According to A.V. Dicey, alongside with the notion of Parliamentary sovereignty, the rule of law is one of the twin pillars of the British Constitution. (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. (b) No man is above the law - whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. Note: Be you ever so high, the law is above you. (Thomas Fuller) (c) General principles of the constitution ... are with us as a result of judicial decisions determining the rights of private persons in particular cases brought before the courts. Note: This reveals Diceys belief that the common law affords greater protection to the citizens than a written constitution.

Page16 3.2 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, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Dicey stated: a man may with us be punished for a breach of law, but he can be punished for nothing else. (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, as an aid of construction, Article 7 to interpret the Immigration Act 1971 to only have prospective effect. The same had also been pronounced in Phillips v Eyre (1870).

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 applicants 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 persons 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 Secretarys 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 Diceys 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) Diceys 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 citizens 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 Diceys faith in the common law as the primary legal means of protecting the citizens 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 individuals 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 detainees 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 executives 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.

(ix) According to TRS Allan, he states that the third postulate is none other than the principle of statutory interpretation. The rule of law is in the keeping of the courts for in interpreting statutes, 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. The cases of D v NSPCC, Ridge v Baldwin, Anisminic and recently R v A, represents evidence of this.

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, the freedom of the humblest citizen shall prevail. (xi) Ultimately, the courts protection may have to bow down to Parliaments supremacy: the retrospective War Damages Act. The court cannot fill the gaps left by legislation (compare Lord Denning MRs view in Magor and St Mellons RDC v Newport Corp *1965]. 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. (xii) The case of GCHQ demonstrates that the courts refrain from reviewing on matters of high policy or non-justiciable matters, notably matters of national security. Even under the HRA, the courts may not rule an Act of Parliament to be invalid. What it may merely do is to issue a declaration of incompatibility, leaving it to the Parliament to correct the situation. The courts are toothless to adjudge on the validity of an Act. (compare Lord Hope vis-a-vis Lord Steyns views in R v A). (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. Parliament may yet legislate contrary to fundamental principles of human rights. The only impediment in the way of Parliament doing so would be the political costs it would incur in the process. 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. (xiv) That Parliament has became the determinant of rights and freedoms is beyond doubt, such as with the Equal Pay Act, Sex Discrimination Act, Race Relations Act, and more recently, the HRA, the Equality Act and the Gender Equality Act as well delegated legislation under ECA 1972 due to Section 2(4) ECA 1972.

3.5 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. 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?

(ii) One attempt to ascertain the values inherent in the system of law was made by Lon Fuller, who argued that the enactment of secret laws would be contrary to the essential nature of a legal system, 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. He called this the inner morality of law. (iii) Joseph Raz argues that the term rule of law should be limited to formal values associated with the legal system. Thus, laws should be prospective, open, certain and capable of guiding human conduct; judges should be independent and the courts accessible; and litigants should receive a fair hearing. (iv) Among British judges there is an important vein of belief in the values to be upheld in a legal system. The nature of these values can be discovered from judicial decisions and from a growing body of articles and lectures by judges. Today these values include those inherent in the European Convention on Human Rights.

Page20 3.6 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. It is also a formidable challenge, since Sir Davids scholarly reputation is so high as to discourage comparison. But the great range of his achievement - as legal scholar, university leader, head of house, public servant and loyal son of Wales - gives the lecturer a broad range of subject matter from which to choose, without straying into fields Sir David has not adorned. In choosing to address the Rule of Law - a big subject for a lecture - my best hope must be that Sir David will himself be provoked into giving us, at greater length, his considered reflections on the subject. The Constitutional Reform Act 2005 provides, in Section 1, that the Act does not adversely affect the existing constitutional principle of the rule of law or the Lord Chancellors existing constitutional role in relation to that principle. This provision, the Attorney-General has suggested, illustrates the importance attached to the rule of law in the modern age, which is further reflected in the oath to be taken by Lord Chancellors under Section 17(1) of the Act, 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, or the Lord Chancellors existing constitutional role in relation to it. 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, and it is true that the rule of law has been routinely invoked by judges in their judgments. But they have not explained what they meant by the expression, and well-respected authors have thrown doubt on its meaning and value. 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. John Finnis has described the rule of law as *t+he name commonly given to

the state of affairs in which a legal system is legally in good shape. 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. No intellectual effort need therefore be wasted on this bit of ruling-class chatter. Jeremy Waldron, commenting on Bush v Gore in which the rule of law was invoked on both sides, 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, but have contrasting convictions about what it is. The authors of the 2005 Act may or may not have known of these critical academic opinions. But they can scarcely have been unaware that Diceys exposition of the rule of law, first propounded in 1885, had attracted considerable controversy over the years which had elapsed since then. So it seems unlikely that the meaning of the existing constitutional principle was thought so clear as to obviate the need for definition. 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, and preferred to leave the task of definition to the courts if and when occasion arose. If so, one has considerable sympathy with that view; 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. But the statutory affirmation of the rule of law as an existing constitutional principle and of the Lord Chancellors existing role in relation to it does have an important consequence: that the judges, in their role as journeymen judgment-makers, are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential equivalent of motherhood and apple pie, even if they were inclined to do so. They would be bound to construe a statute so that it did not infringe an existing constitutional principle, if it were reasonably possible to do so. And the Lord Chancellors conduct in relation to that principle would no doubt be susceptible, in principle, to judicial review. So it is not perhaps premature to attempt to define what, in this country, today, is meant by the existing constitutional principle of the rule of law, recognising of course - 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.

Page21 The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts. I doubt if anyone would suggest that this statement, even if accurate as one of general principle, could be applied without exception or qualification. There are, for instance, some proceedings in which justice can only be done if they are not in public. But it seems to me that any derogation calls for close consideration and clear justification. And

I think that this formulation, of course owing much to Dicey, expresses the fundamental truth propounded by John Locke in 1690 that Where-ever law ends, tyranny begins, and also that famously stated by Thomas Paine in 1776. That in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But I do not think the scope of the existing principle can be adequately understood without examining its implications, which may be conveniently broken down into a series of sub-rules. I have identified eight such rules, which I shall briefly discuss. There is regrettably little to startle in any of them. More ingenious minds could doubtless propound additional and better sub-rules, or economise with fewer. First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), 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, and the European Court of Human Rights has also put the point very explicitly: ... 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 ... 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 - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Obvious this point is, but not, I think, trivial. Given the legislative hyperactivity which appears to have become a permanent feature of our governance - in 2004, some 3500 pages of primary legislation; in 2003, nearly 9000 pages of statutory instruments - the sheer volume of current legislation raises serious problems of accessibility, despite the internet. And this is compounded by the British tradition of parliamentary draftsmanship which, for all its technical virtuosity, depends so heavily on cross-reference and incorporation as on occasion to baffle. The accusing finger cannot however be fairly pointed at legislators alone: the length, complexity and sometimes prolixity of modern common law judgments, particularly at the highest level, raise problems of their own. These problems could, at least in theory, be mitigated if the House of Lords were to give a single opinion, a solution advocated from time to time and raised with me by the late Lord Brightman, very shortly before he died, with reference to the lengthy opinions of the House in R (Jackson) v Attorney General. This is a serious argument, recently echoed by Chief Justice Roberts of the United States in an address to the American College of Trial Lawyers, but not one which I would in general accept, for very much the reasons given by Lord Reid, addressing the Society of Public Teachers of Law, in 1971. 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. 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, however

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 laws 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 Diceys 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 Diceys 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 LJs 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 Rochesters cook, who had not been tried, of high treason: he had put poison into the porridge in the bishops 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 Sommersetts 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 Diceys 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 Razs 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 Courts 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

different countries take different views on the morality as well as the efficacy of the death penalty. It is open to a state to acknowledge, as some have, that a penalty is cruel and unusual treatment or punishment within the meaning of its Constitution, and nonetheless to assert that it is authorised by that Constitution as lawful. There is, I would accept, an element of vagueness about the content of this sub-rule, since the outer edges of fundamental human rights are not clear-cut. But within a given state there will ordinarily be a measure of agreement on where the lines are to be drawn, and in the last resort (subject in this country to statute) the courts are there to draw them. The rule of law must, surely, require legal protection of such human rights as, within that society, are seen as fundamental. My fifth sub-rule is that means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. 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, in the last resort, to go to court to have their rights and liabilities determined. This is not a rule directed against arbitration and more informal means of dispute resolution, all of which properly resorted to and fairly conducted, have a supremely important contribution to make to the rule of law. Nor is it a rule requiring every claim or defence, however spurious and lacking merit, to be guaranteed full access to the process of the law. What it does is to recognise the right of unimpeded access to a court as a basic right, protected by our own domestic law, and in my view comprised within the principle of the rule of law. If that is accepted, then the question must be faced: how is the poor man or woman to be enabled to assert his or her rights at law? Assuming, as I would certainly wish to do, the existence of a free and independent legal profession, the obtaining of legal advice and representation is bound to have a cost, and since legal services absorb much professional time they are inevitably expensive. The old gibe about the Ritz Hotel is one that cannot be ignored.

Page25 For many years, of course, this problem was addressed through the civil Legal Aid scheme established in 1948, a bold, imaginative and somewhat under-celebrated reform of the Attlee post-war government. Although subject to well-known defects, the scheme did bring legal redress within reach of the less welloff. But, as we know, the cost of the scheme rose exponentially, and this led to its curtailment. Whether conditional fees, various pro bono schemes and small claims procedures have filled the gap left by this curtailment I do not myself know. Perhaps they have, and advice and help are still available to those of modest means who deserve it. But I have a fear that tabloid tales of practitioners milking the criminal legal aid fund of millions, and more general distrust of lawyers and their rewards, may have enabled a valuable guarantee of social justice to wither unlamented. Lurking in the background is another point which, at a certain point, must concern adherents of the rule of law. Successive British governments have insisted that the civil courts, judicial salaries usually aside, should be self-financing: the cost of running the courts should be covered by fees recovered from litigants. The judges for their part have accepted that those using the courts may generally be called on

to contribute specifically to the cost of the service - resort to the law being less universal than that to the doctor - but have never, I think, accepted the full recovery principle, regarding the provision of courts as one of the essential functions of a liberal democratic state. 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. The rule of law plainly requires that legal redress should be an affordable commodity. That it should also be available without excessive delay is so obvious as to make any elaboration unnecessary. My sixth sub-rule expresses what many would, with reason, regard as the core of the rule of law principle. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers. This sub-rule reflects the well-established and familiar grounds of judicial review. It is indeed fundamental. For although the citizens of a democracy empower their representative institutions to make laws which, duly made, bind all to whom they apply, and it falls to the executive, the government of the day, to carry those laws into effect, nothing ordinarily authorises the executive to act otherwise than in strict accordance with those laws. (I say ordinarily to acknowledge the survival of a shrinking body of unreviewable prerogative powers). The historic role of the courts has of course been to check excesses of executive power, a role greatly expanded in recent years due to the increased complexity of government and the greater willingness of the public to challenge governmental (in the broadest sense) decisions. Even under our constitution the separation of powers is crucial in guaranteeing the integrity of the courts performance of this role. The British Government, through one entity or another, is very frequently involved in litigation. It is usually successful, but not invariably so. When unsuccessful it is displeased, 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. In the past the convention was that ministers, however critical of a judicial decision, and exercising their right to appeal against it or, in the last resort, legislate to reverse it retrospectively, forebore from public disparagement of it. This convention appears to have worn a little thin in recent times, as I think unfortunately, since if ministers make what are understood to be public attacks on judges, the judges may be provoked to make similar criticisms of ministers, and the rule of law is not, in my view, well served by public dispute between two arms of the state. Some sections of the press, with their gift for understatement, have spoken of open war between the government and the judiciary. This is not in my view an accurate analysis. But there is an inevitable, and in my view entirely proper, tension between the two. There are countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live. Such tension exists even in quiet times. But it is greater at times of perceived threats to national security, since governments understandably go to the very limit of what they believe to be their lawful powers to protect the public, 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. This is a fraught area, since history suggests that in times of crisis governments have tended to overreact and the courts to prove somewhat ineffective watchdogs. In our country and in the United States, decisions have been made of which neither country can be proud. The cautionary words of Justice William Brennan of the United States Supreme Court in 1987 remain pertinent:

Page26 There is considerably less to be proud about, and a good deal to be embarrassed about, 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 ... After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along. So to my seventh and penultimate sub-rule: that adjudicative procedures provided by the state should be fair. The rule of law would seem to require no less. The general arguments in favour of open hearings are familiar, 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. Application of this sub-rule to ordinary civil processes is largely unproblematic, once it is remembered that not all decisions are purely judicial. As the Chief Justice of Australia has pointed out, the rule of law does not mean rule by lawyers. 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, whether in the context of a formal criminal charge or in other contexts such as deportation, precautionary detention, recall to prison or refusal of parole. What in such contexts does fairness ordinarily require? First and foremost, I suggest, that decisions are made by adjudicators who, however described, 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, free of any extraneous influence or pressure, and impartial in the sense that they are, so far as humanly possible, open-minded, unbiased by any personal interest or partisan allegiance of any kind. In addition, 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; that a person potentially subject to any liability or penalty should be adequately informed of what is said against him; that the accuser should make adequate disclosure of material helpful to the other party or damaging to itself; that where the interests of a party cannot be adequately protected without the benefit of professional help which the party cannot afford, public assistance should so far as practicable be afforded; 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. In the strictly criminal context, two of these principles in particular have raised questions. The first concerns disclosure, 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. This problem, when it arises, calls for the exercise of very careful judgment by the trial judge. But as the law now stands, material need not be disclosed if in no way helpful to the defence; if helpful to the point where the defence would be significantly prejudiced by non-disclosure, the prosecutor must either disclose or abandon the prosecution. Questions have also arisen concerning statutory offences defined so as to place a reverse

burden on the defendant. These are not in themselves objectionable, but may be so if the burden is one which a defendant, even if innocent, may in practice be unable to discharge. I do not think these solutions, even if not ideal, infringe the rule of law. 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, put before the adjudicator as a basis for decision, should not be disclosed to that person or to any legal representative authorised by that person to represent him. Any process which denies knowledge to a person effectively, if not actually, accused of what is relied on against him, and thus denies him a fair opportunity to rebut it, must arouse acute disquiet. But these categories reflect the undoubted danger of disclosing some kinds of highly sensitive information, and they have been clearly identified and regulated by Parliament, which has judged the departure to be necessary and attempted to limit its extent. 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; a minority (which included myself) strongly dissented. There the matter rests. All would probably agree that this is difficult terrain.

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, the law which whether deriving from treaty or international custom and practice governs the conduct of nations. I do not think this proposition is contentious. Addressing a joint session of Congress in September 1990 after the Iraqi invasion of Kuwait, the first President Bush said that a new world was emerging, A world where the rule of law supplants the rule of the jungle.A world in which nations recognize the shared responsibility for freedom and justice. A world where the strong respect the rights of the weak ... America and the world must support the rule of law. And we will. President George W Bush, in his State of the Union Address of 29 January 2002, speaking of the international, not the domestic, scene, echoed the same sentiment: But America will always stand firm for the non-negotiable demands of human dignity: the rule of law; limits on the power of the state; respect for women; private property; free speech; equal justice; and religious tolerance. British statesmen today would, I think, share this belief. It was not always so. On the outbreak of war in 1914 the German Chancellor told the Reichstag: Gentlemen, we are in a state of necessity, and necessity knows no law. Our troops have occupied Luxembourg and perhaps are already on Belgian soil. That is contrary to international law. The wrong we thus commit we will endeavour to repair directly our military aim is achieved.

Defending the British blockade of Germany, known to be of doubtful legality, Mr Asquith was not deterred by legal considerations: In dealing with an opponent who has openly repudiated all the restraints, both of law and of humanity, we are not going to allow our efforts to be strangled in a network of juridical niceties. I shall not for obvious reasons touch on the vexed question whether Britains involvement in the 2003 war on Iraq was in breach of international law and thus, if this sub-rule is sound, of the rule of law. 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, 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. First, Sir Anthony Eden, prime minister in 1956, appears to have treated legal considerations as at best peripheral. Echoing Asquith, but with much less justification, 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 ... At a later stage of the crisis, the prime minister specifically instructed that Sir Gerald Fitzmaurice, the very distinguished Legal Adviser to the Foreign Office, who had strongly and consistently advised that the British action was unlawful, should not be informed of developments: Fitz is the last person I want consulted, he said. The lawyers are always against our doing anything. For Gods sake, keep them out of it. This is a political affair. So far as I know, no similar sentiments were ever expressed by Mr Blair. Secondly, and although in 1956 as in 2003 it was the function of the Law Officers to tender legal advice to the Government, in 1956 they were never formally consulted before the ultimatum to Egypt was delivered. Instead, the Government relied on the advice of the Lord Chancellor, who in turn relied on an ambiguous footnote in an article by Professor Waldock, on which, however, Waldock was never approached. In 2003, so far as is known, 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, and some two years later his more detailed earlier opinion reached the public domain. There seems to me to be room to question whether the ordinary rules of client privilege, appropriate enough in other circumstances, should apply to a law officers opinion on the lawfulness of war: it is not unrealistic in my view to regard the public, those who are to fight and perhaps die, rather than the government, as the client. If the government is sued for damages in negligence for (say) injuries caused by an army lorry or a mishap in a military hospital, I see no reason why the ordinary rules of client professional privilege should not apply. The governments position as a defendant would be greatly and unfairly weakened if this were not so. An opinion on the lawfulness of war, the ultimate exercise of sovereign power, involving the whole people, seems to me to be quite different. And the case for full, contemporaneous, disclosure seems to me even stronger when the Attorney General is a peer, not susceptible to direct questioning in the elected chamber. But this is not an accepted view, and we know that in 2003 the Attorney Generals advice supported the proposed action.

Page28 Thirdly, and surprisingly with memories of Nuremberg relatively fresh, it does not appear that the service chiefs in 1956 called for any assurance that the invasion would be lawful. In 2003, as is well known, they did. The fourth distinction is the most striking of all. Although not formally consulted on the lawfulness of the proposed intervention in 1956, the Law Officers learned what was in the air and expressed the clear view that it could not be justified in law. But despite this they supported the Governments action. Writing to the Prime Minister on 7 November 1956, the Attorney General, Sir Reginald ManninghamBuller QC, said ... I support and have supported the Governments actions though I cannot do so on legal grounds. After a meeting the next day he wrote again, on behalf of himself and the Solicitor General, Sir Harry Hylton-Foster QC: Although I support what we have done and have said so publicly, we cannot, as you know, agree with the statements made on behalf of the Government that we were legally entitled so to act. 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. It would no doubt be nave 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. But I do not think that, save perhaps in extremis, the government of such a state would embark on a course which it acknowledged to be blatantly unlawful, 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. To do either would pay scant respect to the existing constitutional principle of the rule of law. There has been much debate whether the rule of law can exist without democracy. Some have argued that it can. 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 governed and the governor, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy. The individual living in society implicitly accepts that he or she cannot exercise the unbridled freedom enjoyed by Adam in the Garden of Eden, before the creation of Eve, and accepts the constraints imposed by laws properly made because of the benefits which, on balance, they confer. The state for its part accepts that it may not do, at home or abroad, all that it has the power to do but only that which laws binding upon it authorise it to do. If correct, this conclusion is reassuring to all of us who, in any capacity, devote our professional lives to the service of the law. For it means that we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame which animates and enlightens the society in which we live. [The Rt. Hon Lord Bingham of Cornhill KG, House of Lords, 16th November 2006].

Page29 Chapter4: SEPARATION OF POWERS

CONTENTS: 4.1 Meaning of separation of powers 4.2 Importance of the Doctrine 4.3 Executive and Judiciary 4.4 Legislature and Executive 4.5 Judiciary and Legislature 4.6 Reform

4.1 MEANING OF SEPARATION OF POWERS (i) This doctrine is traceable to Aristotle and its clearest exposition could be found in Montesquieus De LEspirit des Lois. 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, for example, that ministers should not sit in Parliament , that is composition should not be the same; (b) that one organ of government should not control or interfere with the work of another, for example, that the executive should not interfere in judicial decisions; (c) that one organ of government should not exercise the functions of another, for example, that ministers should not have legislative powers. (ii) According to Hilaire Barnett, 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. The UK doctrine is one of check and balance.

4.2 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. (ii) According to Montesquieu: There would be no liberty if the same body of men exercised all the 3 powers of the legislature, the judiciary and the executive. 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.

(iii) Perhaps the Queen is the greatest offender of this doctrine. The Queen is the fountain of justice, the courts of law being her courts. As the Queen in Parliament, she is part of the legislature. At the same time, she is the head of the executive. Yet, given her symbolic role, in practice it has little significance.

Page30 4.3 EXECUTIVE AND JUDICIARY 4.3.1 Separation of Powers Not Being Observed (a) On Composition: (i) Whilst the courts are the Queens courts, judicial functions are exercised by the judges. The Judicial Committee of the Privy Council is in form an executive organ, but in fact it is an independent court of law. (ii) The Lord Chancellor, who is a member of the Cabinet, 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. This departure from the separation of powers came to be seen as incompatible with independence of the judiciary. Under the Constitutional Reform Act 2005, the Lord Chancellor remains a Cabinet minister with executive functions in connection with the system of justice, but has lost the right to sit as a judge. But he still retains a role over the selection of the members of the Judicial Appointments Commission. (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, it must be emphasized that they do not sit to judge the case. (b) On Function (i) Many disputes arising out of public services are resolved not in courts but rather by tribunals. (ii) As Drewry noted, judges have often been called on by the government to preside over royal commissions, departmental committees and inquiries. Notable examples include the Arms for Iraq affair, the Profumo affair and the BSE chapter. 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. A very recent example would be the Hutton Inquiry and Butler Inquiry. (iii) In Easterbrook v UK, it was held that the separation of power between the executive and the judiciary was breached when the Home Secretary, albeit guided by judicial opinion, fixed the tariff for a prisoner sentenced to life imprisonment. 4.3.2 SOP Being Observed

(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, but because they do the work of adjudication required more efficiently than the courts. (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. (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. In M v Home Office, the House of Lords held that ministers and civil servants were subject to the contempt jurisdiction of the courts. (b) On Influence and Control: (i) Bradley and Ewing: Although judges are appointed by the executive, judicial independence of the judiciary is secured by law, by constitutional custom, and by professional and public opinion. (ii) One essential function of the judiciary is to protect the citizen against unlawful acts of government agencies and officials. 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. Within the EU, the Court of Justice must ensure that the acts of Community organs comply with the treaties on which the Community system is based. (iii) Following the case of GCHQ, the court claimed the power to review the exercise of executive power, irrespective of whether it is statutory or prerogative by nature. Yet, it ruled that the courts would not rule on non-justiciable matters, which involve high policy that should be left to the hands of the executive. Judicial review is concerned with the process by which executive decisions are made and not the merits of those decisions.

Page31 4.4 LEGISLATURE AND EXECUTIVE 4.4.1 SP Not Being Observed In 1867, Baghot wrote that the efficient secret of the constitution lies in the close union, the nearly complete fusion, of the legislative and executive powers. (a) On Composition:

(i) There is the strong convention that ministers also double up as members of either House of Parliament. Shadowing this would be their responsibility to Parliament for their acts as ministers. (ii) Further, by convention, the PM must be a member of the Commons. According to Bagehot the connecting link (between executive and Parliament) is the Cabinet. Lord Hailsham famously termed this domination of the legislature by the executive as the elective dictatorship. (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. (ii) Yet, as long as the Government wields the confidence of the Commons, which it usually does, it has a decisive say in the workings of the Commons. (iii) In 1978, 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. (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. It is worth noting that the governments legislative agenda does not succeed all the time. In 1986, despite enjoying a strong parliamentary majority, the government was forced to abandon it legislative plans to deregulate Sunday trading due to parliamentary pressure. (v) In 2003-2004 sessions, in spite of having a significant majority in the Commons, the government won a vote on its Higher Education Bill by a majority of just 5 votes. 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, but it does not ensure that fully accountable government is achieved. (c) On Functions: (i) Delegated legislation - 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; as can be seen in ECA 1972. (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. (iii) Blackstone thought that the total separation of the 2 might lead to the legislature dominating the executive.

Page32 4.4.2 SP Being Observed Bagehots 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. As Amery wrote: Government and Parliament, however closely intertwined and harmonized, are still separate and independent entitles, fulfilling the two distinct functions of leadership, direction and command on the one hand, and of critical discussion and examination on the other. (a) On Composition: (i) Whilst the LC was previously both a politically appointed member of the Cabinet and the Speaker of the HOL, with the CRA 2005, he will no longer wear the latter hat. (ii) Section 2 House of Commons Disqualification Act 1976 allows no more than 95 ministers to sit and vote in the House of Commons. Yet, in spite of this the 95 ministers, when considered with their loyal Parliamentary Private Secretaries, generally ensures that the government would enjoy the support of 120 MPs. (iii)Furthermore, save for ministers, most of the members of the Executive (e.g. the civil service, the armed forces and the police) are disqualified from the Commons. Police officers and some civil servants are also restricted from taking part in political activities. Only ministers exercise a dual role as key figures in both Parliament and the executive.

4.5 JUDICIARY AND LEGISLATURE 4.5.1 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. At the same time, as the Queen in Parliament, she is a member of the legislature. (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. (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, 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. This duty may require the courts to disapply an Act of Parliament which clashes with rights in Community law. Under the Human Rights

Act 1998, the superior courts may declare an Act of Parliament to be inconsistent with European Convention rights but may not refuse to apply it. (iii) In recent years, in the heat of the war on terror, we have seen the withering of the long-standing convention that ministers do not criticize the judiciary or judicial decisions. A v Secretary of State. In 2003, Mr David Blunkett reacted angrily to the decision in R (Q) &Ors v Secretary of State for Home Department [2003]. (iv) In 2005, after noting that the each tightening of terrorism laws have met with fierce opposition in the courts, the PM, Tony Blair said that should legal obstacles arise in the future, the government will legislate further including, if necessary, amending the HRA in respect of the interpretation of the ECHR. Note: He stepped down as PM without ever carrying this into effect. 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 Labours 1997 election manifesto to bring in the Human Rights Act if elected into power.

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. The Parliament also has the sovereign power to regulate its composition and procedure. It is for the Parliament to determine the procedure by which an Act of Parliament should come into being. (ii) The very doctrine of stare decisis bequeaths upon the court a quasi-legislative power, albeit narrower than the ability of Parliament to legislate. Well-known examples include R v R[1990] ; Knuller v DPP [1973]; and Shaw v DPP [1962]. (iii) Because of the doctrine of precedent, the judicial function of declaring and applying the law has a quasi-legislative effect. The ability of the judges to create law by their decisions is narrower than the ability of Parliament to legislate, since Parliament may readily change established rules of law. However, there is much scope for judicial lawmaking in relation to individual liberties and the principles of public law. Decisions in these areas may be welcomed as bringing old law up to date (for example, by reversing the rule that a married man cannot, in law, rape his wife: R v R.) (iv) An important instance of this occurred when in Conway v Rimmer [1968] the House of Lords held that the courts might overrule a ministers claim on grounds of public interest immunity to withhold evidence in civil litigation.

(v) In Magor& St Mellons Rural District Council V Newport Corporation, Lord Simonds criticized Lord Dennings broad gap filling attitude to statutory interpretation as a naked usurpation of the legislative function. 4.5.2 SOP Being Observed (a) On Composition: (i) All members of the judiciary are disqualified from the Commons. (ii) Previously, all Law Lords received life peerages so that they take part, to some extent, to the HOLs legislative business. In Davidson v Scottish Ministers (2005), it was held that the Lords participation in debates on legislations would give rise to, in the mind of the fair-minded and informed observer, 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. (iii) Part 3 of the CRA 2005 put an end to this by creating a new Supreme Court for the UK, separate from the HOL. In future, all Supreme Court justices will not be entitled to receive life peerages. Nonetheless, in recent years, 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. (iv) Our proposal for the creation of a Supreme Court is supported by the most basic principles of the separation of powers. (Lord Woolf, in his speech at the British Institute of International and Constitutional Law Seminar). (v) This is reinforced by the exclusion of the LC from the Supreme Court. In 2003, Lord Falconer declared that he would not sit in appeals before the HOL. (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. 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.

Page34 (b) On Influence and Control: (i) The doctrine of legislative supremacy prevents the courts from reviewing the validity of legislations. In one sense, 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) Even the HRA 1998 was drafted consciously so as to reflect Parliaments supremacy. (iii) S3 CRA 2005 imposes a duty upon the LC and other government ministers to uphold judicial independence.

(iv) The Act of Settlement held that judicial salaries should be ascertained and established, suggesting that judicial salaries should be fixed by statute and not left to executive discretion which may result in judges seeing their salaries trimmed as a punishment for unpopular decisions. The governing Act at present is the Judges Remuneration Act 1965. (v) Similarly, their tenure is protected by S11 (3) Supreme Court Act (for High Court and COA judges); S6 Appellate Jurisdiction Act 1876 (for Law Lords); and S33 CRA 2005 (for future Supreme Court Justices). Art 6 also provides an indirect guarantee of judicial independence. (vi) By statute judges of the superior courts may be removed by the Crown on an address from both Houses, but only once since the Act of Settlement has Parliament exercised the power of removal. The rules of debate in the Commons protect judges from certain forms of criticism. (vii) It is a rule of Parliamentary Practice that save the discussion is based on a substantive motion, conduct of a judge or judges in general must not be questioned. 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. (viii) While the courts may examine acts of the executive to ensure that they conform with the law, the doctrine of legislative supremacy denies the courts the power to review the validity of legislation. The judges are under a duty to apply and interpret the laws enacted by Parliament. The effect of their decisions may be altered by Parliament both prospectively and also, if necessary, retrospectively. In one sense, therefore, the courts are constitutionally subordinate to Parliament, but the courts are bound only by Acts of Parliament and not by resolutions of each House, which may have no legal force. See however, the European Communities Act 1972.

4.6 REFORM (i) In 2007 the government divided the Home Office into two departments, creating the Ministry of Justice. The Ministry assumed the responsibilities formerly undertaken by the Department of Constitutional Affairs and is responsible for the Courts Service, the Judicial Appointments Commission, the Tribunals Service and Legal Aid. (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. The Ministry of Justice also sponsors the Parole Board, the body which considers whether it is safe for prisoners to be released into the community or whether, on grounds of dangerousness, they should remain in prison. The Parole Board was established in 1968. It became an independent Nondepartmental Government Body in 1996 pursuant to the Criminal Justice and Public Order Act 1994. Judicial doubts have been expressed concerning the independence of the Parole Board: see R (Girling) v Parole Board [2005] EWHC 546; [2006] 1 WLR 1917.

(iii) The Supreme Court established under the Constitutional Reform Act 2005, commenced operation in October 2009. 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. (iv) Note that the Government of Wales Act 2006 confers enlarged legislative power on the Welsh Assembly. It also separates the executive from the legislature by making it clear that the Welsh Assembly Government is separate from the National Assembly. While the 2006 Act confers power to enact primary legislation, these provisions can only come into force following approval in a referendum of the people.

Page35 Chapter5: THE ROYAL PREROGATIVE CONTENTS: 5.1 Introduction 5.2 Prerogative Today 5.3 A brief summary of the prerogative 5.4 Controls on Prerogative 5.5 Should Prerogatives Be Put On A Statutory Footing?

5.1 INTRODUCTION (i) Dicey in Law of the Constitution defines the prerogative as: the residue of discretionary or arbitrary authority, which at any time is legally left in the hands of the Crown... Every act which the executive can lawfully do without the authority of an Act of Parliament is done in virtue of this prerogative... (ii) According to Hilaire Barnett, five points about the prerogative have to be noted. (a) First these powers are inherent in, and peculiar to the Crown. (b) Secondly, the powers derive from common law; (c) These powers are residual. (d) Thirdly, the majority of these powers are exercised by the executive government in the name of the Crown. (e) No Act of Parliament is necessary to confer authority on the exercise of these powers.

(iii) In BBC v Johns *1965+ Lord Diplock stated It is 350 years and a civil war too late to broaden the Queens prerogatives With the establishment of Parliamentary supremacy, all that is left of the Crowns prerogative powers are those left untouched by Parliament.

Page36 5.2 PREROGATIVE TODAY (i) The constitutional issue to be considered here is the relationship between statute and prerogative and the control, judicial or political, of the prerogative. Under the United Kingdoms constitutional monarchy, the Queen is part of the legislature: Parliament comprises of the Crown, Lords and the Commons. The Queen is the fountain of justice - and while the Queen has no power to make laws, or suspend laws or to act in judicial capacity, the entire administration of justice is conducted in the name of the Crown. (ii) Crowns powers are now mostly exercised by the executive in the name of the Crown. The Crown retains important residual powers of these, the dissolution of Parliament and appointment of the Prime Minister are the most significant. The personal prerogatives include the grant of honours such as the Order of Merit, Orders of the Garter and Thistle. According to Bagehot in the English Constitution the sovereign has three other rights-the right to be consulted, the right to encourage, the right to warn. (iii) Another prerogative notion still exists till today i.e. The Crown never dies, the Crown is never an infant and the Crown can do no wrong, thus placing the Queen outside the jurisdiction of the courts and guaranteeing immunity from protection in her own courts. (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 Majestys government or Her Majestys judges in her name. (b) The existence and the scope of a purported prerogative power is subjected to the scrutiny of the courts (see the GCHQ case.) Note that this is not equivalent to control of the prerogative but only its purported exercise.

5.3 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

(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, and to royal fish and swans

Page37 5.3.1 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. Firstly, 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. Thirdly, whether by refusing to assent to a Bill contrary to the advice of the Prime Minister, the Crown can indirectly force dissolution. It has been suggested that a royal dissolution in our times would not merely be unpolitical; it would be unconstitutional (BS Markensis-The theory and practice of Dissolution of Parliament). Sir Ivor Jennings states that since dissolution requires acquiescence of ministers the Queen is unable to achieve dissolution without advice.

(i) Dicey has a different view. He says that dissolution is allowable, or necessary, whenever the wishes of the legislature are, or may fairly be presumed to be, different from the wishes of the nation. The last occasion on which the Crown - on its own initiative - dissolved Parliament was by William IV in 1835. 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, forced it out of office only to be replaced by an unsuccessful successor. Dicey recognised that the King wrongly interpreted the will of the nation in this instance. (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. The Queen would then have to exercise a personal choice. According to Geoffrey Marshal, the Queen would have ample grounds for refusing provided an alternative leader of the majority was in sight. 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, at the time of publication, before the federal Court of Malaysia. Note however, that the State of Perak, Malaysia, has a written constitution. The central issue is when the leader loses confidence and who decides on this. (c) Dissolution following the refusal of Royal Assent In legal theory the Queen has the right her assent to bills but by convention, assent has always been given, the only exception being during the reign of Queen Anne in 1704. Doubt exists as to whether the Queen can refuse the Royal Assent, dissolve Parliament against the governments will, and dismiss the government. (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. (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, who under normal circumstances will be the leader of the political party which secures the greatest number of parliamentary seats in the general election. (ii) The difficult position arises however where the election produces no outright winner, resulting in no one party having an overall majority-a hung Parliament arises. E.g. in 1974 the Conservative party lost the General Election by a small number of seats and could command no overall majority. Prime Minister did not tender his resignation but entered into negotiations with other political parties in order to form a coalition government. When these failed Mr Heath resigned and the Queen invited the Leader of the Labour party to become the Prime Minister. See also the 2010 elections (under 2.10 previous chapters).

(iii) There is however no duty on the Prime Minister to recommend the man to be sent for. It is theoretically the sovereign who decides whom to send for and invite to form a government. (f) Prerogative of mercy This has two aspects the power to grant pardons and the power to enter into nolle prosequi. On proceedings on indictment, the Attorney General, in the name of the Crown can enter into a nolle prosequi the effect of which stops the legal proceedings. This power is not subject to control by the courts- R v Comptroller of Patents. (1899). (g) Law Enforcement (i) For many legal proceedings, the consent of the AG is required. The AG has discretion whether or not to institute proceedings. In Gouriet v Union of Post Office Workers (1978) this discretion was tested. The Court of Appeal held that there was no power to review the exercise of the AGs decision. Lord Denning MR, 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. On Appeal to the House of Lords, Lord Wilberforce stated that ... he need not give reasons...

Page38 (h) The granting of honours The Queen has the personal right to confer the Order of Garter, the Order of Tistle, the Royal Victoria Order and the Order of Merit. Otherwise the conferring of Honours is by the Queen acting on the advice of the Prime Minister. (i) The regulation of the Civil Service This control is vested in the Crown and civil servants, like Ministers, are servants of the Crown. However the appointment is subject to good behaviour although in practice will not be dismissed other than for misconduct. (Fulton Committee Report).Although salaries and other benefits are by virtue of statute most part of the Civil Service is governed under the prerogative. (j) Regulation of the Armed Forces Members of the armed forces are regulated under the royal prerogative. The Sovereign is Commanderin-Chief of the armed forces whose control, organisation and disposition are within the prerogative and cannot be questioned in any court of law- China Navigation Co. Ltd v AG (1932); Chandler v DPP (1964). 5.3.2 The Prerogative and foreign affairs (a) Acts of State - Acts of state in relation to foreign affairs. This is an act of the executive as a matter of policy performed in the course of its relations with another State, including its relations with the subjects of that State, unless they are temporarily within the allegiance of the Crown. It includes the

recognition of foreign States and government, diplomatic relations- including the sending of diplomats and the reception of foreign diplomats-declarations of war and peace and the annexation or cession of territory. (b) Declarations of war and peace: Where a declaration of war has been made, the status of nationals of the enemy state within the United Kingdom is altered. If the Secretary of State for the Foreign Office issues a certificate to the effect that a state of war exists, this must be accepted by the courts- R v Botrill, ex parte Kuechenmeister (1947) (c) Annexation and cession of territory- The Crown also has the power to alter the limits of British territorial waters - R v Kent JJ ex parte Lye (1967) (d) Issue of Passports (i) The conventional classification of the right to issue and withhold passports is that of Crowns prerogative. At common law citizens have the right to enter and leave the realm. Nevertheless it is extremely difficult in practice to travel without a passport, which is issued under the prerogative. (ii) In R v Foreign Secretary ex parte Everett (1989), the court for the first time held that the granting and withholding passports was subject to judicial review by the courts. (e) Treaty- making powers (i) The power to enter into treaties under international law is a feature of the sovereignty of the state and it is generally regarded that such a power is an emanation of the prerogative. Accordingly a Treaty being a creature of international law cannot alter national law without being given effect by an Act of Parliament - 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. The treaty-making power of the executive was challenged in R v Secretary of State ex parte Rees-Mogg (1994). In February 1991 the Heads of Government of the Member States of the European Community signed the Treaty of Unionthe Maastricht treaty. The Treaty was to come into effect on ratification by the member states. Under constitutional practise in UK a treaty need only be approved by Parliament if it requires a change in legislation or the grant of public money. The issue raised in this case was whether the government had the power to ratify the said treaty without the approval of the House of Commons. It was clear that there was substantial opposition to the treaty on all sides of the House. The Prime Minister announced that the Treaty would be ratified under the prerogative thus avoiding the risk of parliamentary disapproval. The Queens Bench Division refused to grant an application for judicial review: the matter was within the prerogative of the Crown. In the long-run the Bill bringing the Treaty into effect in the law of the United Kingdom was passed by the Commons and the Lords.

Page39 5.4 CONTROLS ON PREROGATIVE 5.4.1 Judicial (by judicial review) (i) In Ex p Fire Brigades Union, the act of the Home Secretary introducing a scheme radical different to that of the Criminal Injuries Compensation Scheme obligated by the Criminal Justice Act 1988, claiming to act under royal prerogative, was held to be ultra vires. Further, he did not have an unfettered discretion as to whether to implement the statutory scheme and he could not, through the use of prerogative, defeat the purpose of the statute. (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, by prerogative order terminated the rights of workers at the Government Communications Headquarters (GCHQ) to belong to trade unions. The Union sought judicial review claiming that they had a legitimate expectation to be consulted prior to their rights to membership being withdrawn. The House of Lords accepted that the terms and conditions of the employment of civil servants were within the prerogative powers of the Crown. Their Lordships accepted that the employees had a legitimate expectation to be consulted before their rights were affected. Nevertheless this was overridden in the interests of national security. 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. There were however prerogatives the exercise of which was not justiciable. These included matters such as the appointment of Ministers, dissolution of Parliament, grant of honours, 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. (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. (iv) In A-G v de Keysers Royal Hotel *1920+, 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, the statute would prevail in line with the doctrine of legislative supremacy. The prerogative would thereby fall into abeyance waiting to be awakened once the statute has been repealed. (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. 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. What the Secretary of State could not do

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.

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 Act 1964 set out the respective powers of the Home Secretary, the Police Authorities and the Chief Constable of police with regard to, inter alia, the supply of equipment to the police forces. The Secretary of State issued a circular that he would be making available supplies of riot-control equipment to the police forces, irrespective of the approval of the police authorities. The Northumbria Police Authority sought judicial review on the legality of the circular. The Home Secretary argued that he had the power under the prerogative to issue the weapons. 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. It accepted that the Police Act 1964 had left unaffected the prerogative powers to keep the peace. It was also stated that the prerogative powers to take all reasonable steps to preserve the Queens 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. Note: This case is indicates that there is a difference between updating a prerogative and creating a new one. Thus no new prerogatives can be created and the existing ones cannot be broadened in any way by the courts. (vii) However, the exercise of a number of prerogatives does not fall under judicial control. The prerogative of mercy has traditionally been viewed as unreviewable by the courts. Mercy is not the subject of legal rights. It begins where legal rights end. (Lord Diplock, De Freitas v Benn) The power of nolle prosequi is also not subject to the courts control (R v Comptroller of Patents). (viii) If the Secretary of State for Foreign and Commonwealth Affairs issues a certificate to the effect that a state of war exists, this must be accepted by the courts (R v Botrill ex p Kuechenmeister). (ix) In R v Jones (Margaret) [2006] 2 All ER 741, 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 Court ruled that it could not. The relevant statutes were domestic and Parliament could not have intended that international law could affect its operation. Moreover, since foreign affairs and the deployment of armed forces were conducted under the royal prerogative, the court would not inquire into such areas. 5.4.2 How effective then are the political controls on prerogatives?

(i) As Hilaire Barnett notes, there are 2 principal means whereby Parliament may curtail the use of prerogatives. Firstly, abolish the prerogative and place it on a statutory basis, as with the Bill of Rights and the Treasure Act. Secondly, through its scrutiny mechanisms, call the government to answer for its use of prerogatives. (ii) As with other acts of government, prerogatives are subject to the full array of parliamentary procedure such as Question Times, debates and select committees. (iii) However, 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. Examples would include the dissolution of parliament, the disposition of the armed forces, government contracts, judicial appointments, investigations by the Director of Public Prosecutions the grant of honours as well as the broad notions of national security, confidentiality and public interest. Duncan v Cammel Laird [1942. (iv) In the furore over the manner in which PM Tony Blair dragged UK into the Iraq war, it was said by Ron Bailey that going to war is one of the most important decisions a country can take, but our democratically elected parliament has no formal right to debate the issue, as the prime minister uses the royal prerogative to make the decision,. (v) Conventions would appear to be another political means whereby the exercise of prerogatives could be regulated. Whilst it is constitutional theory that the Queen may appoint whomsoever she pleases to the office of PM, by convention, she must appoint the person who commands a majority in the Commons.

Page41 5.5 SHOULD PREROGATIVES BE PUT ON A STATUTORY FOOTING? (i) Given UKs unwritten constitution, there is no agreed text as to the prerogative. Thus, 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, rests upon the attitudes of the courts. This is paradoxical in a modern democracy (Barnett). (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). (iii) As Barnett highlights, given the difficulties lying on the path to the exercise of the Crowns prerogative power to dissolve Parliament according to its own initiative, its existence is, accordingly, in doubt. (iv) Markesinis questions whether the Crown has the right to refuse dissolution of the Parliament on the PMs request - if it ever existed. On the other hand, 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.

(v) In Ex p Northumbria Police, it was bewildering that the courts found the alleged prerogative powers of the Home Secretary existed. This stands uneasily with Lord Camdens assertion in Entick v Carrington that if there existed authority for the lawful exercise of power, it would be found in the books. (vi) The process of putting prerogatives on statutory terms would clearly define the nature and scope of prerogatives. Even if the very existence of prerogatives in their present unwritten form could somehow be determined accurately, the manner of their exercise remains questionable. (vii) Although the power of the Crown to dissolve Parliament on its own initiative exists in legaltheoretical terms, 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. 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. An exercise in putting prerogative on statutory footing would present an opportunity to eradicate such anomalies. (viii) In July 2006, the House of Lords Committee on the Constitution published a report entitled Waging War: Parliaments Role and Responsibility which had examined the nature of the executives powers in relation to the fundamentals of peace and war, 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. Parliaments 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. In lieu, it proposed that that there should be a parliamentary convention determining the role Parliament in this sphere. Note: This bears some resemblance to the so-called Ponsonby rule, which helps to ensure that Parliament is informed of treaties that the government intends to ratify. (ix) Back in 1988, Tony Benn introduced a Private Members Bill to place prerogative powers under statutory authority. In 2005, unhappy with the way PM Blair brought UK into the Iraq War, 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. Both Bills fell in parliament.

Page43 Chapter6: PARLIAMENTARY SOVEREIGNTY CONTENTS: 6.1 Introduction 6.2 No limit on subject matter

6.3 No Parliament can bind its successors nor could it be bound by its predecessors 6.4 Effectiveness The Political Significance Of Parliamentary Supremacy 6.5 Modern Challenges To Parliaments Supremacy 6.6 Are there constitutional statutes which are not subject to repeal? 6.7 The Judiciarys role in the doctrine of Parliamentary Sovereignty 6.8 Traditional Challenges to parliamentary Sovereignty

6.1 INTRODUCTION (i) The Courts cannot question the validity of an Act of Parliament: Pickin v British Railways Board [1974]. Furthermore, the court may not inquire behind the parliamentary roll - if legislation has passed through the proper parliamentary procedure, the court must give effect to it viz. the enrolled Bill rule. See also Edinburgh & Dalkeith Railways v Wauchope (1842). (ii) According to Dicey, parliamentary sovereignty means that Parliament has the right to make or unmake any law whatever. This simply means that there is no limit on the subject matter on which Parliament may legislate.

6.2 NO LIMIT ON SUBJECT MATTER (i) With His Majestys Declaration of Abdication Act 1936, the Parliament had legislated to alter the succession to the throne. The Parliament Acts of 1911 and 1949 also resulted in a shift of power between the 2 Houses. (ii) Parliament also has the power to grant independence (e.g. Nigeria Independence Act 1960 and Zimbabwe Independence Act 1979). By legislation, such as via the Colonial Laws Validity Act 1865 and Statute of Westminster 1931, Parliament may further limit its own powers in relation to dependant territories. (iii) Parliament is free to legislate retrospectively, the more famous examples being the War Damages Act 1961 and the War Crimes Act. 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, the Continental Shelf Act 1964 and the Criminal Justice Act 1988. (iv) Treaties can only take effect under the authority of an Act of Parliament (Treacy v DPP; R v Kelly [1998]; 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

party (Cheney v Conn).This required the Parliament to pass the ECA to secure UK entry into the EC notwithstanding the signing of the EC Treaties.

Page44 6.3 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, it must, in the words of Austin, be illimitable. For a body to be sovereign yet subordinate to another is a contradiction in terms. Note: the very fact that Parliament may not bind its successors could also be seen as a limitation on its supremacy. (ii) The doctrine of implied repeal: Vauxhall Estates v Liverpool Corporation [1932] and Ellen Street Estates v Minister of Health [1934], whereby should a later statute be inconsistent but not expressly repeal an earlier one, the court would apply the former as the latest expression of Parliaments will and deem the latter as impliedly repeal.

6.4 EFFECTIVENESS - THE POLITICAL SIGNIFICANCE OF PARLIAMENTARY SUPREMACY (i) Viewing Jennings example of Parliament legislating to ban smoking on streets of Paris, 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. The criterion of effectiveness is an important constraint on Parliaments powers - albeit extra-legal, sovereignty is by the possibility of popular resistance. (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. In fact by his principles of non- violence, passive resistance and civil disobedience, his ideals when put into effect, put a serious dent on the sovereignty of British rule in India. (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. At the same time, it is limited from without by the instinct of subordination viz. law cannot ultimately go against the will of the governed. (iv) Thus though Parliament is free to enact laws which violate UKs international obligations arising from treaties and membership of certain international bodies such as the UN and the EU. Nonetheless, in practice, it would not. a. In some constitutions (e.g. the Republic of Ireland and Australia), constitutional amendments may only take effect if they are approved by referendums. In other constitutions (Denmark and Switzerland),

legislative proposals may be subject to referendum. In UK however, such practice of direct democracy only takes place on an ad hoc basis and even then, does not impinge on Westminsters supremacy. b. It must be recognized that the electorates power is great at the time of general election but weak during a governments term of office, particularly when the government enjoys a strong majority. The electorate is only able to exercise their influence sporadically, i.e. at the ballot box. c. During the governments term of office, the task of scrutinizing the government is left to Parliament and its array of scrutinizing mechanisms. It is through Parliament that the electorates will for the most part find expression. d. This effect though depends much on the political parties, media, economic and social interest groups and other means by which public opinion is formed and expressed. Moreover, 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. Nonetheless, with the current impetus for reform in the House of Lords especially with the proposals for elected Lords, this may yet be another legitimate check on the power of the Commons to pass legislation.

Page45 6.5 MODERN CHALLENGES TO PARLIAMENTS SUPREMACY 6.5.1 Devolution (i) The Scotland Act, Government of Wales Act and Northern Ireland Act 1998 have establish a system of self-government, in varying degrees, for Scotland, Wales and Northern Ireland respectively whereby Westminster remains free to legislate over reserved matters with devolved powers now matters of the devolved governments competence. (ii) Given that such powers are bequeathed by Westminster, their continued existence rests upon Parliaments will and could just as easily be retracted. 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. (iii) With the birth of Northern Ireland came along the Northern Ireland Assembly. With the escalation of unrest in 1960s and the 1970s, power was returned to Westminster. 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. 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. .

6.5.2 The European Communities Act 1972: (see under EC Law in Chapter 7) 6.5.3 The HRA 1998 (i) The manner in which the ECHR was incorporated via HRA was designed in such a manner as to preserve Westminsters sovereignty. In outlining its scheme for the HRA, the government denied that it was transferring power from future Parliaments to the courts. (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. (iii) Thereafter, following S 10 HRA, 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. (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. 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. Thus seen, the supremacy of Westminster in legislating remains unchallenged by the HRA. (v) Section 19 HRA requires that a minister in charge of a Bill in either House, before second reading, make a statement to the effect that either the Bill does comply with Convention rights or that, although such a statement could not be made, the government nevertheless wishes to proceed with the Bill. (vi) Nonetheless, 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; it falls short of immunizing such rights from legislative changes. As Judge LJ said in 2001, 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.

Page46 (vii) Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The HRA 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. (Lord Hoffman, Ex p Simms). (viii) What may be said however is that judges now have greater liberty in the exercise of statutory interpretation? Formerly, they concentrate on interpreting the latest will of Parliament. Now, the HRA has taken the centre stage in acting as the yardstick against which all governmental actions are measured. To this extent, it may be seen that Parliaments supremacy has taken a dent. See R v A *2001+, Lord Steyns views; see also Ghaidan v Godin-Mendoza [2001] EWCA. (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? Wouldnt that be judicial

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. (x) In addition, the HRA may be seen as the latest challenge to the doctrine of implied repeal. Following the duty of interpretation of S3 HRA, 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. (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, the appellants challenged the lawfulness of their indefinite detention under the Anti -Terrorism, Crime and Security Act 2001, an Act passed swiftly after the terrorist destruction of the New York World Trade Centre on September 11, 2001, which enabled the internment without trial of foreign nationals whom the Home Secretary suspected were terrorists. There were no similar powers over British citizens. The Government had derogated from (opted out of) its obligations under Art.5, as provided for by the Convention where there is a public emergency threatening the life of the nation. No other European country had done this in the wake of 9/11`. 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). Lord Hoffman went further, claiming the nation was not under threat, as required for derogation. Baroness Hale said We have always taken it for granted that we cannot be locked up in this country without trial or explanation. Lord Scot said `Indefinite imprisonment, on grounds not disclosed, is the stuff of nightmares, associated with. Soviet Russia in the Stalinist era. The House of Lords were not all impressed by the Attorneys argument that they, the Law Lords, were an unelected and undemocratic body who should not second guess ministers. Their Lordships made a ruling of incompatibility. In the ensuing days, the Government were faced with what much of the media portrayed as a constitutional crisis. The new Home Secretary declined to release the suspects but announced he would await a decision by Parliament on the legislation, due for its annual renewal in spring 2005. This caused some of the special Government-appointed advocates for the detainees to threaten to resign and caused some backbenchers to threaten trouble. (xii) In March 2005, Parliament passed the Prevention of Terrorism Act to replace the offending 2001 Act but it was ferociously debated. Opponents of the Bill, including all civil liberties groups, did not cite the Convention so much as ancient liberties fundamental to the British constitution, such as habeas corpus, laid down in Magna Carta. The Act again derogates from the requirements of the Convention. It allows British and foreign terrorist suspects to be placed under a control order (meaning house arrest), by the Home Secretary. Although this will be reviewed by a judge, it does not satisfy critics that it amounts to detention without trial. They asked why we are the only country in Europe which considers it necessary to do this. (xiii) The HRA came under attack in May 2006, with the media whipping up hostility to it after several cases and incidents. In the High Court, Mr. Justice Sullivan supported a decision to allow Afghan

hijackers to remain in the UK until it was safe for them to return home. He criticised the failure of successive Home Secretaries to allow them leave as conspicuous unfairness amounting to an abuse of power. Tony Blair attacked the decision as an abuse of common sense. At last Tony Blair admits he needs to do something about the ludicrous Human Rights Act. He wants the Government to overturn judges barmy rulings... The Sun, 15 May 2006. (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, 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, and where there are significant human rights issues at stake. This probably means that the courts will refrain from employing the HRA in all but the most extreme cases. Isnt 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 6.6 ARE THERE CONSTITUTIONAL STATUTES WHICH ARE NOT SUBJECT TO REPEAL? (i) Traditionally, no statutes are free from the clutches of the doctrine of implied repeal. 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; Macarthys v Smith). (ii) With the HRA, it has been voiced by Lord Hoffman in ex p Simms that in the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. (iii) In Thoburn v Sunderland CC, on a principled basis, Laws LJ distinguished between ordinary statutes and constitutional statutes. Constitutional statutes those which: (a) condition the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges of diminishes the scope of fundamental constitutional rights. (iv) The Magna Carta, the Bill of Rights, the Acts of Union, the HRA, the Scotland Act, the Government of Wales Act and the ECA clearly belongs to this family. 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. The ordinary rule of implied repeal does not satisfy this test. Ordinary statutes on the other hand may be impliedly repealed.

6.7 THE JUDICIARYS ROLE IN THE DOCTRINE OF PARLIAMENTARY SOVEREIGNTY

(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, 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. (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. (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).

Page48 6.8 TRADITIONAL CHALLENGES TO PARLIAMENTARY SOVEREIGNTY 6.8.1 Grants of Independence (i) Where Westminster has conferred partial competence on a subordinate legislature, the question is whether Westminster could revoke that grant of power. (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. (iii) In British Coal Corporation v R *1935+, it was accepted by the Privy Council that whilst Westminsters power remained in theory unimpaired and that as a matter of abstract law S 4 could be repealed, in practice it could not be as legal theory must march alongside practical reality. (iv) The South African High Court in Ndlwana v Hofmeyer proclaimed that such a restriction amounted to a fetter on Westminsters legislative might as freedom once conferred cannot be revoked. Note: These 2 cases are simply demonstrate that Parliament is not bound by any legal constraints. What may exist are really political or extrinsic constraints. 6.8.2 The Manner and Form Argument (i) The Parliament may have set down particular procedures for enacting legislation i.e. the manner and form of enacting a piece of law. Thus, perhaps contrary to the doctrine of implied repeal, an earlier Parliament may lay down a manner of legislating which will bind its successors thereby compromising on the sovereignty of the latter. (ii) The cases of A-G v Trethowan, 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. As

Cantilevres CJ pointed out in Harris, a distinction lies between a truly sovereign legislative body, such as the UK Parliament and a legislative body which was less than sovereign. (iii) In each of the cases, the legislatures of New South Wales, South Africa and Ceylon, being established by an Act of the truly sovereign UK Parliament, must comply with the constitutional laws in force, specifically the manner and form of legislating as prescribed by the earlier law. Failure to do so would empower the judiciary to declare a legislative act void. (iv) From Ranasinghe, 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. (v) According to Prof Heustons new view of sovereignty, 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 legislatures area of power. (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. Westminster however does not face such controlling powers. There is no legislature superior to it, although this might no longer be the case with entry into the EU.

Page49 6.8.3 Redefinition Theories (i) Alternatively, Parliament may require, say, a referendum be held, before legislation could be enacted. In doing so, Parliament is said to have redefined its composition to include not only the Queen in Parliament, the Commons and the Lords but also the electorate. Such redefinition may be seen to be effected by Parliament Act 1911, the Life Peerages Act 1958, and more recently, the House of Lords Act 1999. (ii) More recently, referendums have been used in relation to the devolution to Scotland and Wales; 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; as well as in 1975 to decide on UKs continued membership of the EC. (iii) However, referendums, as conceived in the UK, do not impinge upon Parliaments sovereignty as the result of a referendum is only morally, and not legally, binding upon the government. (iv) Prof Mitchell saw that with S4 of the Statute of Westminster, Parliament has redefined itself in a manner which excludes its power to legislate for the Dominions. 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, to

use such powers would be wholly inconsistent with the powers of legislation conferred on the legislature of Ceylon. (v)It was also held by Lord Sankey LC in British Coal Corporations case that indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard S4 of the statute. But that is theory and has no relation to realities.

Page51 Chapter7: EUROPEAN COMMUNITY LAW CONTENTS: 7.1 Institutions of the EC 7.2 Sources of Community Law 7.3 Article 234 of the Treaty (formerly Article 177) 7.4 The Question of Legal Supremacy: The ECJs View 7.5 The Question of Legal Supremacy: The UK Courts View 7.6 The Working Principles of Community Law 7.7 The Concept of State Liability 7.8 Recent response by Parliament on the issue of Parliamentary sovereignty, Rule of law and supremacy of EC law

7.1 INSTITUTIONS OF THE EC (i) The 5 principal institutions of the EC, alongside the common foreign and security policy as well as police and judicial cooperation in criminal matters, constitute of the 3 pillars of the EU. As listed by Art 7 of the EC Treaty. 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)

(d) ECJ (e) Court of Auditors

Page52 7.2 SOURCES OF COMMUNITY LAW (i) The primary sources of Community law would be the Treaties, as amended. Note: They would be referred to as Treaty Articles or Treaty provisions. (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, 1979, 1985) (c) Budgetary Treaties 1970, 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, and includes both interpretation of primary and secondary source of legislations by the ECJ. They comprise of, 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). They have direct effect and there is no need for incorporation by MS. (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 may require members states to take measure (legislative or other) to achieve the common objective. (vi) Decisions: Binding in its entirety upon the MS to whom it is addressed. (vii) Recommendations and opinions: No binding force.

(viii) Other sources of law, whilst not legally binding, have a significant impact on the working of the EC and the EU. They include: (a) Procedures for self-regulation formulated by institutions of the Union. (b) International agreements entered into by the Council between the EC and non-EU states on behalf of MS.

7.3 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. The ECJ has time and again ruled that Community law has supremacy and that it be uniformly applied within Member States. (ii) According to Article 234 courts or tribunals may refer a question, 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. (iii) A reference becomes mandatory when the question of Community law is before a court or tribunal of last resort, i.e. court or tribunal from which there is no further appeal does not always mean the House of Lords, in many cases, the appeal structure will end lower in the hierarchy, or leave to appeal may be needed and be refused. (iv) the English Court of Appeal, in Bulmer u Bollinger [1974], 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 - a court must feel that it cannot reach a decision unless a reference is made; (b) the decision of the question must be conclusive to the case - not just a peripheral issue; (c) even if the court considers a reference to be necessary, regard must still be paid to the delay involved, the expense, the difficulty of the point of law, and the burden on the ECJ.

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, then no reference need be made. (vi) The ECJ has considered the circumstances under which courts should refer, and the doctrine of acte clair, in the Cilfit case(1983). 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. The Court ruled that:

(a) there is no duty to refer where a question of Community law was irrelevant that is, if the interpretation can have no effect on the outcome of the case; (b) there is no duty of refer when the question is one substantially the same as one previously answered by the ECJ; (c) there is no need to refer where no real doubt about the law exists. The national court must, however, be satisfied that the matter is equally obvious to courts of other Member States and to the ECJ. To this limited extent, the doctrine of acte clair is endorsed. (vii) In Cilfit, the ECJ emphasised that the purpose of Article 177 (now Article 234 of the EC Treaty), 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. (viii) Though national courts have some discretion as to whether to refer a matter to the ECJ, this only relates to interpretation of Community law. As to questions of validity only the ECJ has the sole power to rule on whether a measure of Community law is invalid. (ix) According to Article 234 of the EC Treaty, the questions which may be referred are: (a) interpretation of the treaties; (b) the validity and interpretation of acts of institutions of the Community: regulations, directives, etc; (c) the interpretation of statutes of bodies established by acts of the Council. (x) Once the ECJ accepts jurisdiction and gives a ruling, the matter is then returned to the domestic court for application.

7.4 THE QUESTION OF LEGAL SUPREMACY: THE ECJS VIEW (i) The ECJ claims that Community law is supreme over national law. This claim carries the following implications: (a) Community law confers rights on individuals to which national law must give effect; (b) national law cannot prevail over Community law; (c) the effectiveness of Community law must be the same in all Member States - it cannot vary in effect from one Member State to another; (d) courts of Member States must follow the interpretation of laws given by the ECJ or, where there is no authority, and under certain conditions, must refer the matter to the ECJ under Article 234 of the Treaty;

(e) where the ECJ gives a ruling, Member States are under an obligation to amend their national laws so as to conform to Community law. (ii) The ECJ in Luxembourg has consistently asserted the supremacy of Community law over national laws as by becoming signatories to the treaties; MS have shackled their own legislative competence in Community matters, ceding supreme law-making powers on these matters to the law-making institutions of the EC [Costa v ENEL; Van Gend en Loos; Simmenthal; Internationale Handelgesellschaf v EVST (1970)]. Such supremacy is necessitated by the aim to attain uniformity throughout the Community.

Page54 (iii) The EVST case: Under Community law, in order to export produce, the company was required to obtain a licence, for which a permanent deposit had to be paid. If the goods were not exported within the licence period, the deposit was to be forfeited. The company paid the deposit, failed to complete the export, and forfeiture was made. The firm sued the agency involved for return of the deposit, arguing that the forfeiture was contrary to the Constitution of the Federal Republic of Germany. Since the retention of the deposit was contrary to the Federal Constitution, it could not, according to German law, be lawful under the law of the Community. The matter was referred to the ECJ under Article 177 (now Article 234). The ECJ declared that giving effect to rules or concepts of national law contained even within the constitution of a state, for the purposes of judging the validity of Community measures, would have an adverse effect on the uniformity and efficacy of 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. (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. ... member states have limited their sovereign rights, albeit within limited fields, 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, the ECJ in Simmenthal (1976-1980) ruled that regulations take precedence over both previous and subsequent domestic law. Simmenthal imported beef from France into Italy. Under Italian legislation of 1970, fees for veterinary and health checks had to be paid by the importer at the frontier. 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

on beef imports. The national court ordered the Ministry to return the money. The minister pleaded that the domestic 1970 Act was binding unless and until set aside by the Italian Constitutional Court. The Italian court was thus faced with a conflict between Article 12, as it then was, of the Treaty and a later Italian statute. A reference was made under Article 177 (now Article 234), 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, without waiting for the Constitutional Court to declare it invalid. The ECJ held that regulations take precedence over previous and subsequent domestic legislation and that a national court, whatever its position or role in the national judicial hierarchy, must set aside any provision which conflicts with community law and apply Community law in its entirety, without waiting until the domestic legislation had been set aside by the Constitutional Court. (vi) In the ERTA (1971) case, Member States were further robbed of their power to enter into international agreements, a basic attribute of sovereignty. The EC reasoned, looking at the legal personality of the EC and the exercise of Community competence since 1969, such power has come to reside solely in the hands of the Community institutions. (vii) In summary, the ECJ has declared the existence of a new legal order, one to which Member States have limited their sovereign rights by transferring these to the Community. These rights include even the protection of constitutionally guaranteed individual rights. 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. Finally where the Community has the power to act on behalf of Member States in the making of international agreements, Member States have lost that capacity. (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; (c) The principle of direct effect, both vertical and horizontal (d) The principle of indirect effect (e) The concept of state liability Note: Pursuant to Article 10 (Formerly Article 5), 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

Page55 7.5 THE QUESTION OF LEGAL SUPREMACY: THE UK COURTS VIEW (i) In UK, the reception of EC laws is as under the ECA 1972. Nothing in the European Communities Act (ECA) 1972 entrenches its provisions, that is, to make them immune from amendment or repeal. There is no statement in the Act purporting that EC law is a higher form of law, or that the Act cannot be repealed, or could be repealed but only by some specified manner and form. S2 (1) provides that directly applicable Community laws shall be enforceable in the UK courts. It is also designed to ensure that such measures take precedence over national laws. S2 (4) promotes the primacy of Community law, albeit silently. It serves as a rule of construction to the courts to interpret law in accordance with the requirements of Community law. Together, 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. (ii) As such, S2 is an attempt by one Parliament to fetter the continuing supremacy of another by providing that, while future Parliaments may legislate in breach of Community law, the courts must (to the extent of any inconsistency) deny it any effect. (Bradley and Ewing) (iii) By S2(2), regulations may be introduced by a designated minister for the purpose of implementing Community obligations save for those purposes enumerated in Schedule 2. Although this power has been widely construed (Ex p UNISON), 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]. (iv) According to Laws LJ, Factortame (No 1) had effectively accepted that S2 (4) could not be impliedly repealed albeit the point was not argued. In this way, the common law had carved an exception to the doctrine of implied repeal which extends to all constitutional statutes. 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. (v) Initially, 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. In Blackburn v AG [1971], the Plaintiff sought a declaration that the government, by signing the Treaty of Rome, would surrender part of parliaments sovereignty which it could not do so as no parliament could bind another. To this, Lord Denning responded that even if the treaty is signed, it is elementary that the courts take no notice of it until embodied in an Act of Parliament. (vi) Again, in Ex p McWhirter, Lord Dennings reply to the contention that joining the EC was contrary to the Bill of Rights 1689, which declared that all powers of government are vested in the Crown and

Parliament could not, thus, by means of a Treaty, transfer those rights was that even though the Treaty of Rome has been signed, it has no effect as far as the courts are concerned until implemented by Act of Parliament. (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 Parliaments consent.

Page 56 (viii) The ECA has gained recognition as a constitutional statute, hence immunising it from the doctrine of implied repeal (Thoburn v Sunderland CC; Garland v BRE; Macarthys v Smith). (ix) Initially UK courts proved defiant to ECs encroachment into Westminsters supremacy. In Macarthys v Smith (1981), Mrs Smith was employed by Macarthys as a stockroom manageress. The man who had previously held the position had been paid a higher wage than Mrs Smith. The applicable domestic legislation was the Equal Pay Act 1970, as amended by the Sex Discrimination Act 1975, which provided, inter alia, that men and women employed in the same job should be paid equal amounts. The Act was silent, however, 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. The relevant point for interpretation, therefore, was whether men and women, employed at differing times for the same job, were required to be paid equally. The matter was referred by the Court of Appeal to the ECJ under Article 177 (now Article 234). The ECJ held that Article 119 required equal pay for men and women whether they were employed contemporaneously or in succession. On receiving the judgment of the ECJ, the Court of Appeal ruled in favour of Mrs Smith. Lord Denning stated: ...In construing our statute, we are entitled to look to the Treaty as an aid in its construction: and even more, not only as an aid, but as an overriding force. If on close investigation it should appear that our legislation is deficient - or is inconsistent with Community law - by some oversight of our draftsmen then it is our bounden duty to give priority to Community law. Such is a result of Section 2(1) and (4) of the European Communities Act 1972... Thus far, I have assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations under the Treaty. 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...

(x) Article 119 was considered by the House of Lords in Garland v British Rail Engineerin [1983]. In British Rail made concessionary travel facilities available to the children of male employees reaching retirement, but not to the children of women reaching retirement. The question was whether this policy amounted to discrimination contrary to Article 119, as it then was, of the Treaty, 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 House of Lords referred the matter to the ECJ, which ruled that the policy amounted to discrimination contrary to Article 119, and that Article 119 must prevail. (xi) In Duke v GEC Reliance Ltd [1988], the House of Lords considered the construction of Section 6(4) of the Sex Discrimination Act 1975. The plaintiffs claim for damages based on unequal treatment was for a period prior to parliaments amendment of the Sex Discrimination Act to bring English law into line with the requirements of Community law. The House of Lords declined to give retrospective effect to the amendment in light of parliaments express decision not to amend the Act retrospectively. (xii) In Litster v Forth Dry Dock Ltd (1990), 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 domestic regulation had been introduced for the purpose of complying with the directive and, accordingly, the House of Lords was complying with its duty under Section 2(4) of the ECA 1972 to give effect to Community. (xiii) In Webb v EMO Cargo (UK) Ltd (1992), the issue of dismissal on the basis of pregnancy was considered in relation to the ECs Directive on Equal Treatment. The English Trades Union Reform and Employment Rights Act 1993 provides that dismissal on the grounds of pregnancy is unfair. However, in Webb v EMO Cargo (UK) Ltd (1992), the Court of Appeal ruled, and the House of Lords affirmed, that a woman who was dismissed from employment because of her pregnancy was not unlawfully dismissed, since - comparing her- to a man with a temporary physical disability who would also have been unable to work - the man would also have been dismissed.

Page57 Under Article 177 (now Article 234), a reference was made to the ECJ. The ECJ ruled that English law was inadequate and held, first, that pregnancy was not a pathological condition to be compared with illness and, secondly, that a pregnant womans inability to work was temporary and not permanent. Accordingly, the dismissal had amounted to sex discrimination. The Court ruled that the Article precludes dismissal of an employee who is recruited for an unlimited term with a view, initially, to replacing another employee during the latters maternity leave and who cannot do so, because, shortly after recruitment, she is herself found to be pregnant. (xiv) The House of Lords, 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 ECJs ruling and that in the case where a woman was engaged for an indefinite period, 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

circumstance relevant to her case, being a circumstance that could not be present in the case of the hypothetical man. (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). In 1970, the Council of Ministers passed a regulation relating to the common organisation of the market in fishery products, basically that there should be equal access for the fishing vessels of all Member States to the fishing grounds of fellow Member States. In 1983, due to fears of over-fishing caused by such open access, the Council established, by way of regulation, a system for the conservation and management of resources. This entailed, in part, setting limits to the amount of fish to be caught in certain periods by way of total allowable catches - the allocation of total allowable catches being fairly distributed among the Member States by way of national quotas. The quotas were based on the number of ships flying the flag of a Member State or registered in a Member State. In 1988, the United Kingdom Parliament passed the Merchant Shipping Act and enacted fresh merchant shipping regulations. 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; or wholly owned in the United Kingdom, with 75 per cent of shareholders and directors in the United Kingdom; or part owned, with 75 per cent of owners in the United Kingdom; and, further, that vessels be effectively operated from the United Kingdom. Registration would be lost with effect from 31 March 1989 until vessel owners could satisfy the government that they were eligible for registration. As a result, Factortame, which did not comply with these stringent requirements, challenged the domestic requirements as incompatible with EC law, 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. The Divisional Court wanted to refer the matter to the ECJ under Article 177 (now Article 234) - 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. The Divisional Court, in 1990, 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). 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. On appeal to the House of Lords, the decision of the Court of Appeal was upheld: injunctive relief against the Crown was not within the courts jurisdiction. Two constitutionally significant factors arose in Factortame. First, whether the court could protect alleged rather than established rights under Community law; secondly, whether - contrary to all previous precedent - the provisions of Community law could confer jurisdiction on the English courts to grant injunctive relief against the Crown.

The ECJ, in its preliminary ruling on the first point (Case 213/89), held that the offending provisions of the Merchant Shipping Act should be suspended, pending a full determination of Factortames claim, 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. The ECJ reverted to its decision in Simmenthal (1979), 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. Article 5 of the EC Treaty (now Article 10) imposes an obligation, as has been seen above, to ensure the legal protection which is provided for under the principle of direct effect.

Page58 (xvi) The House of Lords in R v Secretary of State for Transport ex parte Factortame (No 2) accepted the ECJs ruling and granted interim relief. Curiously, 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. This limitation of sovereignty had been accepted voluntarily by the ascension of UK into the EC. To apply this rule is merely to recognise the supremacy of Parliament to make any laws. Note: This is merely recognition of the 1972 Parliaments sovereignty to the detriment of its successors. 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, something that was supposed to be constitutionally impossible. (xvii) While legal action being pursued by Factortame was in progress, a separate action was commenced by the Commission, alleging that the United Kingdom was in breach of its Treaty obligation, 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 ECJ held that an interim order could be granted, 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. (xviii) R v Secrctary of State for Transport ex parte Factortame (No. 5) (2000), The House of Lords ruled that the United Kingdoms breach of community law was sufficiently serious as to warrant damages; this would give rise to a right to obtain redress in the national courts for damage caused by the breach.

(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. The fact that a reference was made meant that the English courts were uncertain as to the question in issue. Accordingly, it would be inappropriate to prejudge the issue by granting injunctive relief at an interim stage. The CA also admonished of the difficulties in disapplying domestic legislation. A distinction lies between a major piece of primary legislation and a minor piece of legislation (or subordinate legislation). The courts have to thread the former with greater circumspection compared to the latter. Interim orders would only be granted in the most compelling circumstances. As the issues there were less clear-cut than in Factortame, the CA declined to grant an injunction. (xx) In Ex p Equal Opportunities Commission, the House of Lords boldly granted a declaration to the effect that national law was inconsistent with Community law. It however fell short of ruling that the national provisions were void and rather confined its ruling to the compatibility issue. (xxi) In Crehan v Entrepreneur Pub Co (CPC) (Office of fair Trade intervening) (3), 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, where the legal and factual context of a case was not completely identical to that considered by the Commission, there was no risk of adoption of conflicting decisions. Accordingly, 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.

Page59 (xxii) Of course it would be beyond doubt that theoretically, in a show of Parliamentary supremacy, UK could easily legislate to leave the Community and thus recover those part of sovereignty ceded to the EC. Nonetheless, legal theory must march alongside political reality and the scenario of UK leaving the EC is certainly an unimaginable scenario, any more than claims that Westminster could legislate to regain sovereignty over former colonies. (xxiii) As the aims and objectives of the Union have expanded, so too has the law of the Community. The ECJ, through its dynamic approach, has ensured the supremacy of Community law over domestic law, to the extent that the ECJs early statement that the Community represents a, unique legal order is now a reality which touches on increasingly wide aspects of domestic law. (xxiv) The Court of Justice has been highly influential in furthering the equality of women in the workplace. However, pure equality is not always attainable. A further exception to equality was shown in Cadman v Health and Safety Executive, Equal Opportunities Commission, intervenor Case C-17/05; Times LR 6 October 2006.

The ECJ ruled that whenever there was evidence of discrimination, it was for the employer to prove that the practice at issue was justified by objective factors unrelated to any discrimination based on sex. 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. In its case law, the ECJ had recognized that rewarding, in particular, experience acquired by a worker that enabled him to perform his duties better constituted a legitimate objective of pay policy. In the instant case, the disparity in pay was justified. (xxv) The limits to formal equality were also apparent in Rutherford v Secretary of State for Trade and Industry [2006] UKHL 19; [2006] 4 All ER 577. 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. The applicants claimed that the provisions were discriminatory in that more men than women worked over the age of 65. The House of Lords ruled that the purpose of Article 141 was to provide for equal pay for men and women doing equal work, not to guarantee equality throughout working lives which ended at different ages.

Page60 7.6 THE WORKING PRINCIPLES OF COMMUNITY LAW 7.6.1 The Principle of Direct Effect (i) It has been noted that Art 249 cloaks regulations with direct applicability. What remains unanswered then is the questions of what is the legal consequence of this applicability - would such measure have direct legal effect over individuals? If yes, this principle of direct effect means that an individual may invoke such measures as conferring direct rights, which may be relied on in his national courts. (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, the case of Van Gend en Loos established that if a Treaty provision is to confer individual enforceable rights (viz. it has direct effect), it must: (a) Indicate that it applies not just to MS but also to individuals within the state; and (b) that the provision must be clear and precise; and (c) that provision must be unconditional and unqualified and not subject to any further measures on the part of the MS; AND

(d) that provision must be one which does not leave any substantial latitude or discretion to MS. The ECJ considered Article 12 (Now Article 25) of EC Treaty. Found that the article was clear and unconditional and, therefore, it required no legislative intervention by member states and a member state had no power to subordinate it to its own law. (iv) In respect of REGULATIONS As a general principle, because of its nature and its purpose within the system of sources of Community law, a regulation has direct effect and is, as such, capable of creating individual rights which national courts must protect (Leonesio V Italian Ministry of Agriculture). 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, by which they became part of law of a MS without further intervention by MS. (v) In respect of DIRECTIVES, Despite Art 249 leaving room for MS as to the manner of implementation of directives, the ECJ has nonetheless found that directives are capable of having direct effect as without it; individuals would not be able to rely on it before the national courts hence emasculating the usefulness of directives: Van Duyn V Home Office). The case involved a directive which had been issued under Article 48, which provides for free movement of workers between member states. The ECJ held that, in some cases, Directives as well as Regulations and Treaty Provisions may have direct effect depending on their subject matter, wording, clarity and whether or not member state action is required as a prerequisite to implementation. It was held that since Art 39 of the EC Treaty (formerly Art 48) in question was not subject to any exception or condition, and by its nature did not require intervention on the part of the EC or the MS, it follows that it was directly effective. Where a directive is not precise, and a right insufficiently defined, it will not have direct effect (Gibson v East Riding of Yorkshire Council [1999]), nor will it have direct effect if its implementation date has not passed (Pubblicio Ministero v Ratti [1979]). Such effect could be dichotomized into horizontal and vertical. 7.6. 2. Horizontal Effect (i) A measure cloaked with horizontal effect confers an enforceable obligation which entitles an individual to pursue his/her rights, not directly against a MS, but horizontally against institutions, organizations or individuals within the MS, other than emanations of the state.

(ii) In Defrenne v SABENA [1978], the horizontal effect of Treaty Provisions was confirmed. It was held that the principle of direct effect of Treaty Articles entitles individuals to rely on them, against both public and private sector employers, even where that Article has not been implemented by the State. (iii) In Faccini Dori v Recreb [1994], the ECJ declined to broaden the principle of direct effect of directives to all parties, be they public or private. The view that directives have no effect vis--vis private bodies was reaffirmed. However, 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, 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. (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, a member state which has not adopted the implementing measures required by the Directive in the prescribed period, may not rely, as against individuals, on its own failure to perform the obligation which the directive entails. (vi) In CIA Security v Signalson [1996] ART 8 and 9 of Directive 83/189, which required MS to notify the Commission of all draft technical regulations, and, except in particularly urgent cases, suspend their adoption and implementation until the requirement of notification has been complied with, was adjudged to have direct effect as they were unconditional and sufficiently precise in terms of their context. Such directives may be relied on against any national provision not in line with it. Note: CIA Security however undercuts the clear rule against horizontal effect of directives as enunciated in Faccini Dori. (vii) Where previously an individual who suffers from the failure of the MS could only claim compensation for this, they could now rely on CIA Security to claim that the directive in question is unenforceable, even in proceedings against private parties. (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.

Page61 7.6. 3. Vertical Effect (i) In essence, an EC measure having this effect allows it to be directly enforceable by an individual against a MS, such as could be seen in Van Duyn. (ii) With vertical effect, EC law imprints a duty on the MS to comply and confers enforceable right on the citizen. Ergo, the MS is left responsible to the citizen for the enforcement of his/ her Community rights.

(iii) Directives (the Van Duyn type) enjoy vertical, but not horizontal, effect. 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. (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. In Marshall, it was held that an Area Health Authority was deemed to be a public (as opposed to private) body and accordingly, bound by Community law. The ECJ made it clear that in principle, a directive could not, of itself, create obligations for non-state actors. (v) In Foster v British Gas, 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... whatever its legal form so long as it is providing public service under the control of the state and for that purpose, has special powers beyond individuals. Thus, British Gas was a public body against which a directive might be enforced. (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. Rolls Royce, although under the control of the state as it was then a nationalised body, had not been responsible for providing a public service. It was merely entasked to provide defence equipment to the state. 7.6.4 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. Thus whether the member state has adopted law to implement an EC Directive Von Colson v Land Nordrhein Wolstfalen [1984] or not. Marleasing SA [1990], 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. (ii) In Marleasing, the ECJ ruled that this principle of interpretation could be applied as between private parties, in effect giving horizontal direct effect under a different name.

Page62 7.7 THE CONCEPT OF STATE LIABILITY (i) Since the state is encumbered by the Art 10 duty, a failure to fulfil it by the implementation date gives rise to state liability, as witnesses in Francovich and Bonifaci v Italy. (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, Italy was nonetheless under an obligation to implement the directive

under the then Art 5 of the EC Treaty. Accordingly, since Italy failed in its duty, it was under a duty to compensate individuals for losses thus suffered. For compensation to be available to the victim, (a) the directive must have individual rights; and (b) the content of those rights can be identified on the basis of the provision of the directive; and (c) there is a causal link between the states failure and the damage suffered by individuals affected. (iii) Per Brasserie du Pecheur SA V Federal Republic of Germany and ex p Factortame (No 4), as affirmed in Ex p British Telecommunications and Dillenkofer, 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; (b) the rule of law breached was intended to confer rights upon individuals; (c) the breach is sufficiently serious, defined as a manifest and grave disregard of the limits on the MS discretion; and (d) There is a causal link tying the breach to the losses suffered. (iv) The scope of state liability is neither limited to the failure to implement directives nor to the absence of direct effect. In Brasserie and Factortame, they concerned loss accruing from the breach of Treaty provisions which were directly effective. (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. The same principles apply when considering the liability of a public body as when considering the liability of the state (Haim v Kassenzahnarztliche). (vi) Equally, a MSs highest court is in principle liable for error in interpretation but only where it manifestly infringed the applicable law (Kobler v Republic of Austria). (vii) The concept of state liability was examined in Traghettidel Metiterraneo SpA (in liq) v Italy Case C224-1; [2004] All ER EC 23. The Court stressed the exceptional nature of state liability: ...state liability can be incurred only in the exceptional case where the national court adjudicating at last instance has manifestly infringed the applicable law. Manifest infringement is to be assessed, inter alia, in the light of a number of criteria, such as the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, 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...

Page63 7.8 RECENT RESPONSE BY PARLIAMENT ON THE ISSUE OF PARLIAMENTARY SOVEREIGNTY, 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, empty words or hidden agenda?] 7.8.1 Summary At the Conservative Party Conference in October 2010, William Hague announced the governments 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. On Thursday 11th November 2010 William Hague introduced the European Union Bill to the House of Commons for its first reading. Clause 18 of the Bill contains the much anticipated sovereignty clause. Great speculation has surrounded this clause as, if it materializes into a statute; there is the possibility that, 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. This article will consider the speculation surrounding the creation of such a clause. It will also consider the potent al consequences upon the UK constitution of such a clause, the purpose of enacting it and whether such a clause is necessary. 7.8.2 The Article by Richard Glancey William Hague stated that a European Union bill would be introduced to Parliament in the autumn of 2010. 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. Part of the coalition agreement between the Conservatives and the Liberal Democrats was to explore this issue, but the Conservatives appeared to be going ahead with introducing a bill. The justification for such a clause is that due to the UK not having a written constitution, 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. Rather, this matter is governed by an unwritten doctrine of the UK constitution the Sovereignty or Supremacy of Parliament. Mr Hague said: A sovereignty clause on EU law will place on the statute book this eternal truth: what a sovereign parliament can do, a sovereign parliament can also undo...It will not alter the existing order in relation to EU law. But it will put the matter beyond speculation... And it will be in line with other EU states, like Germany who in a different constitutional framework give effect to EU law through their own sovereign act ...This clause will enshrine this key principle in the law of the land.

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, the rights, powers, liabilities, obligations, restrictions, 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. 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. 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. 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. The words by virtue of an Act of Parliament cover UK subordinate legislation made under Acts, and because of the particular context of this clause, also covers Acts and Measures of the devolved legislatures in exercise of the powers conferred on them by the relevant UK primary legislation. 105. This reflects the dualist nature of the UKs constitutional model under which no special status is accorded to treaties; the rights and obligations created by them take effect in domestic law through the legislation enacted to give effect to them. Although EU Treaties and judgments of the EU Courts provide that certain provisions of the Treaties, legal instruments made under them, and judgments of the EU Courts have direct application or effect in the domestic law of all of the Member States, such EU law is enforceable in the UK only because domestic legislation, and in particular the European Communities Act 1972, makes express provision for this. This has been clearly recognized by the Courts of the UK. As Lord Denning noted in the case of Macarthys Ltd v. Smith (*1979+ 1 WLR 1189): Community law is part of our law by our own statute, the European Communities Act 1972. 106. 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. 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 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 UKs legal system independent of statute.

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107. In the Metric Martyrs case (Thoburn v. Sunderland City Council [2002] EWHC 195 (Admin)), attempts were made, but rejected, 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. It was argued that, in effect, the law of the EU includes the entrenchment of its own supremacy as an autonomous legal order, and the prohibition of its abrogation by the Member States. This argument was rebutted by the High Court, who noted that Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the European Communities Act 1972. 109. This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The rights and obligations assumed by the UK on becoming a member of the EU remain intact. 110. 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. (emphasis added). 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. The doctrine has existed for centuries and, as part of the common law, has been governed by the Judiciary. Putting it upon a statutory footing is therefore a major constitutional shift ; the consequences of this need to be considered. In order to assess the potential impact of putting the doctrine on a statutory footing, we need to first of all define the doctrine. 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. Given the vital role the judiciary has played in the development of the doctrine, we also need to consider how the judiciary would react to such a change to fully appreciate the potential impact of the sovereignty clause. 7.8.3 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. As the ultimate law making body Parliament can legislate howsoever it wishes. 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 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; and, further, 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, 1885: 40). Dicey did not create this doctrine he merely observed its existence and commented upon it. His theory has been the most influential upon this doctrine and is invariably used as the starting point for learning

the doctrine. As we shall later see, Diceys theory has faced many subsequent challenges; nevertheless, it is a good place to start. From Diceys theory three principles can be established: 1. Parliament can make any laws regardless of content or territorial extent 2. Parliament cannot be bound by its predecessors or bind its successors 3. No body, including the courts, can challenge the validity of an Act of Parliament 7.8.4 Parliament Can Make Any Laws Regardless of Content or Territorial Extent For Dicey, his theory was concerned with legal validity, rather than practical reality or politics. 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, 1963: 170) According to Jennings and Dicey, yes it would. As long as the law was contained in an Act of Parliament, it would be a valid law. Its enforceability (this law would clearly not be enforceable in reality) was a separate question to the actual validity of the Act. (For a vivid practical illustration of this dichotomy see the case of Madzimbamuto v Lardner Burke [1969] 1 AC 645, and for an academic exploration of the this issue see Allan, 1985). According to the traditional doctrine of Parliamentary Supremacy, there are no limits upon Parliament as to the content of laws that it passes, nor are there are territorial limits upon their laws. Cases such as Mortensen v Peters (1906) 8 F (J) 93 and Cheney v Conn [1968] 1 WLR 242 aptly illustrate this principle.

Page65 7.8.5 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. This means that a Parliament cannot be bound by its predecessors nor can it bind its successors, as their successors could simply repeal any of the previous Parliaments attempts to bind the future one. 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. 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, 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. Such a debate is not the focus of this essay however. Interested readers can look further at Diceys comments and consider other academic comments by those such as Sir Ivor Jennings (Jennings, 1963) and Sir William Wade (Wade, 1955) as a good starting point. 7.8.6 No body, including the courts, 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. There is no other body within the UK that can legislate contrary to or go against and challenge

laws of the UK Parliament. There is no higher source of law than that which Westminster Parliament enacts. Classic authority for this principle can be seen in cases such as Edinburgh & Dalkeith Railway v Wauchope (1842) 8 CL&F 710, Pickin v British Railways Board [1974] AC 765, R v Jordan [1967] Crim LR 483 and Jackson v AG [2005] UKHL 56, [2006] 1 AC 262, where challenges to Acts of Parliament on both procedural and substantive grounds failed. The courts have not entertained any assertions that they have the power to decide not to apply an Act of Parliament for any reason. The courts have said they can do nothing other than apply an Act of Parliament, regardless of what it says or how it was enacted (as long as it is an Act of Parliament). The encapsulation of these three principles is known as the traditional doctrine of Parliamentary Supremacy. 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. 7.8.7 The Roots of the Supremacy of Parliament The Supremacy of Parliament is a doctrine of the UK constitution. As the UK does not have a written or codified constitution setting out the legal framework of the organs of the state, a different scheme has developed though time which does establish such a framework. The rules of the UK constitution can be found in various sources such as Acts of Parliament, decisions of the judiciary and constitutional conventions. In addition to these sources the UK also has a number of doctrines that underpin the constitution. These doctrines include the Rule of Law, the Separation of Powers and the Supremacy of Parliament. As a doctrine, the Supremacy of Parliament has a long history. It has survived for at least 320 years. There is no exact starting date at which we can point to for the creation of this doctrine, but the general consensus is that the main thrust of the doctrine can be seen after the Glorious Revolution of 1688. 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. It re-established the Monarchy as a constitutional Monarchy and set out that Parliament was the ultimate law making power. It put an end to the ability of the Monarch to create laws without the consent of Parliament. There is evidence to suggest the doctrine is older than this though. For example the Kings Bench in the case of Heath v Pryn 86 E.R. 11; (1669) 1 Vent. 14 refused a challenge to an Act of Parliament saying that as long as it had been enacted by the King, the Commons and the Lords together, 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). As a doctrine its roots are not to be found in any Act of Parliament. It has no written source. Some of the leading English judges (Lord Steyn for one, more of which will be discussed below), believe that it is a construct of the common law. Given the history and roots of the doctrine of Parliamentary Supremacy, it is a significant development of major constitutional importance to attempt to put such a doctrine upon a statutory footing. The Conservatives proposal to put the doctrine on a statutory footing is specifically to address the concerns

about the impact of the European Communities Act 1972 upon the Supremacy of the UK Parliament. We therefore need to consider for a brief moment the European Communities Act 1972.

Page66 7.8.8 The European Communities Act 1972 The European Communities Act 1972 (ECA) came into force on 1st January 1973. The purpose of the Act was to bring what is now the EU treaty (originally the Treaty of Rome, the latest version has incorporated the changes brought about by the Lisbon Treaty) into domestic law. Section 2 of the Act sets out that laws created by the EU is to be enforceable in domestic courts. 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. 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. Section 2 has greatly impacted upon the traditional doctrine of Parliamentary Supremacy as per Dicey as all three of his principles have been affected: 7.8.9 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, the EU now creates the law for those areas. This means that within those specific areas, the UK cannot legislate however it wishes, it has to do what the EU says. The UK would be breaching domestic (ECA) and international law (the treaty itself) if it did not do so. 7.8.10 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. This is an attempt by the 1972 Parliament to bind its successors - an attempt that has worked thus far. If the UK Parliament in 2010 enacts legislation that contravenes EU law then the UK courts must give primacy, or supremacy, to EU law. The 1972 Parliament has, in this regard, bound the 2010 Parliament from legislating how it wishes. 7.8.11 No body, including the courts, can challenge the validity of an Act of Parliament Courtesy of Section 2 of the ECA, domestic courts are not only empowered, but are under a duty, to give supremacy to EU law in domestic courts. 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. 7.8.12 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. A very brief overview of the facts is as follows. All shipping vessels have a registered nationality. The flag that a vessel flies is the national flag of the vessels nationality. Within the EU there were fishing quotas allocated to different member states. Factortame was a company which owned a large fleet of Spanish vessels. These vessels were obtaining Spanish quotas then re-

registering (legitimately) as British vessels and obtaining British quotas. This was known as quota hopping. British fisherman complained about this. The end result was that the UK passed the Merchant Shipping Act 1988 (MSA). This Act changed the rules about registration of vessels and it was intended to prevent the problem as identified by the British fishermen. Factortame issued a claim in the High Court in England challenging the validity of the MSA, saying it breached numerous aspects of EU law. The High Court sent a reference to the European Court of Justice (ECJ) asking them for assistance upon the matter. 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, preventing the MSA from operating and impacting upon them. They said that if they waited two years they would be bankrupted by that time, so they needed interim relief in the meantime. The problem the High Court was faced with in doing this was the MSA was an Act of Parliament, and could they disapply the provisions of an Act? The problem also ran deeper than this, as in addition, there was another Act of Parliament, the Crown Proceedings Act 1947 (CPA), Section 21 of which specifically said that the UK Courts could not grant an injunction against the crown. The High Court, very bravely some may say, 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. This means that the High Court disapplied the provisions of two Acts of Parliament the CPA and the MSA. This is in complete opposition to Diceys third principle, that the courts cannot challenge an Act of Parliament the High Court did. The Secretary of State for Transport appealed against the High Courts decision to the Court of Appeal. The Court of Appeal reversed the High Courts decision, saying the High Court were wrong in law to do as they had done, as they did not have the power to do so the CPA expressly said they did not have the power to do so. Factortame then appealed to the Appellate Committee of the House of Lords against the Court of Appeals decision. Ultimately, the House of Lords re-instated the High Courts decision and granted the interim injunction (R v Secretary of State for Transport, ex parte Factortame Ltd [1991] 1 AC 603). 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 decision confirmed the proposition that the ECA had adversely affected the traditional doctrine of Parliamentary Supremacy. (For a recent exploration of the traditional doctrine as it stands today, see Gordon, 2009.)

Page67 7.8.13 Recent Developments to the Traditional Doctrine Departing from the realm of EU influence upon domestic law, but relevant to the area nonetheless, is the case of Jackson v Attorney General [2005] UKHL 56, [2006] 1 AC 262. 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. The case concerned a challenge to the validity of the

Hunting Act 2004 by a group of pro-hunters. The challenge failed, but the judges felt an important issue had been raised about the limits of Parliamentary Supremacy. A number of the judges made some significant obiter dicta comments about this. 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, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, 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. Lord Steyns views were not isolated. Lord Hope, at para 104, continued: I start where my learned friend Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified. Although these comments are obiter dicta, they do indicate most acutely the attitude of the judiciary regarding Parliamentary Supremacy: they created the doctrine they can amend the doctrine. 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 7.8.14 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. The wording of the clause is of crucial importance as the impact of the clause is dependent upon how it is worded. We now know what the actual wording of the clause is. However, the Bill has yet to be debated upon and the clause, if it survives at all, may be changed significantly in its passage through Parliament. It is therefore worthwhile considering the speculation as to how the clause might end up being 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. Such a clause would serve very little

purpose and would not really make any practical difference to anyone. It was thought that it would be unlikely that the clause would be at this extreme of the spectrum. 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. The strong clause would expressly state that Westminster Parliament enjoys absolute supremacy over EU law. 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 this is legally possible, it would not be politically desirable for the UK to create such a strongly worded clause. This would be a rebuff to the EU. (It is interesting to remember that the original draft of the EU Constitution, which was never ratified, contained a supremacy clause within it at Article I-6 stating the EU law had primacy over member states domestic law). A number of issues arise from such a strong clause. It would cause political uproar amongst EU member states. 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). A treaty is binding in international law but in international law only. The EU is unlikely to try to enforce the UK to comply with its treaty obligations through the court process. The consequences of the UK breaching its obligations would be political turmoil. The UKs relations with the other EU states would be severely damaged. A practical consequence of this would be major harm to the UK economy. It was considered patently obvious that the UK would not go down this route. It was therefore considered much more likely that the clause would lie somewhere in the middle of the spectrum as outlined above. What would such a middle-ground clause contain? In order to preserve international relations, whilst at the same time not being too weakly worded as to be ineffective, the new clause would have to state that ultimately, Westminster Parliament maintains supremacy in theory, but the general nature of the UKs relationship with the EU is that the EU enjoys supremacy for as long as the UK allows them to. The clause could make it clear that the UK has, in effect, contracted out Supremacy to the EU, but, as contractor, the contract could be rescinded at any time and Supremacy recalled back to the UK. Perhaps the clause would say that the UK could, in exceptional circumstances and as a last resort, 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. Perhaps the new clause would ask for a Ministerial Statement to be put at the beginning of such legislation setting out the legislations relationship with EU law, similar to Ministerial Statements required by S 19 of the Human Rights Act 1998 in respect of an Acts compatibility with the European Convention of Human Rights and Fundamental Freedoms. But the question remains, 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. So why bother with such a clause? That is a good question. Even more conjecture is required to consider a possible answer to that question. Perhaps the Conservative party want to try and win over EU sceptics within the UK by giving

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. This argument says that having matters written down in clear, precise language, is better than leaving matters to unwritten, unclear, and disputed theory. There is clearly merit with such an argument. Those who would like to see the UK constitution itself be codified into a single document need no convincing of such an argument. Such people argue that with clarity comes certainty and ownership over the subject matter, endowing citizens with a deeper engagement with government and politics not an undesirable outcome. But perhaps the purpose goes somewhat further than that. At paragraph 106 of the commentary upon the clause, set out above, it says the purpose of enacting the clause is to stop the doctrine of the Supremacy of Parliament being eroded by the judiciary. This is a major statement. This means that the clause is an assertion of power, of renewed supremacy of Parliament over the courts. Perhaps this is in reaction to the comments by the judiciary in the Jackson case as set out above. If this is the true purpose of the clause then that is of much more concern. It is an attempt to give the government, through Parliament, total constitutional control. The doctrine of the separation of powers attempts to equalize state power amongst three branches: the executive (government); the legislative (Parliament); and the judiciary (the courts) (see Montesquieus Spirit of the Laws (1748) for the classic account of this doctrine). Whilst the UK has never truly abided by the doctrine of the separation of powers, it has been influential in the UK constitution (see for example Lord Mustills comments about the doctrine in R v Home Secretary, Ex p Fire Brigades Union [1995] 2 AC 513, at 567). If this is the purpose of the clause then it will skew power even more towards the legislative and executive than it already is. In the UK, due to the way Parliament works, the executive dominates the legislative. A government needs a majority in the House of Commons to get into office. The current coalition government, as long as it sticks together, outnumbers all opposition, so it can get through any measures it wants through Parliament by the fact of sheer numbers alone. 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. If this is the purpose behind the clause, as the commentary suggests it is, then that is of genuine concern.

Page69 7.8.15 After the Speculation - 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. It is therefore leaving a lot more detail unsaid as opposed to tackling the matter directly. If one looks at the explanatory notes and the commentary upon the clause, they outweigh the actual clause by a huge margin: the clause itself amounts to approximately 50 words; the explanatory notes and commentary amount to more than 850 words. This illustrates there is a lot more intention underlying the clause itself than is expressly stated in the clause. The clause falls somewhere between the weak and the middle ground as set out above. It seems to be stating the obvious and very little else. What is the point of enacting such a clause? Parliament is aware

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 McCarthys Ltd v Smith *1979+ ICR 785, Pickstone v Freemans *1989+ AC 66 and R v Sec of State for Transport, Ex p Factortame (No.2) [1991] 1 AC 603). One answer is that such a clause is aimed at EU sceptics, who have little or no knowledge of the common law doctrine of Parliamentary Supremacy, and serves to reassure them that the UK still retains its sovereignty. The Bill is leaving much unsaid in order not to offend the EU. It therefore serves the purpose of allaying EU sceptics whilst at the same time keeping on good terms with the EU. It is therefore analogous to a double agent trying to keep both sides happy. Contrary to this though are the comments in the commentary upon the clause (set out above). 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. They may have something to say in response to this. 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. It does serve to show UK citizens and any other interested parties that the UK maintains Parliamentary Supremacy. Without such a clause the matter was still certain, 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. 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, this defeats the object of achieving total clarity. Perhaps the proposed clause does not achieve the right balance of being sufficiently certain on one hand whilst maintaining EU relations on the other. Perhaps it is being too cautious and more clarity could be afforded. If the clause does survive its passage through Parliament, whatever its final wording is, a key matter remains to be explored. 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. This begs the question of how would the judiciary react to such a request? Upon first glance this appears unproblematic as the judiciarys 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. However, there is a deeper issue contained within this matter. 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, thereby overturning centuries of tradition. It is therefore pertinent to ask how the judiciary would react to such a sovereignty clause. Before we do this, it is worth considering the debates upon the Bill that have taken place on the floor of the House of Commons.

Page70 7.8.16 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. It was an extensive debate, lasting for five hours and thirty minutes. The main focus

for debate was whether an amendment proposed by William Cash should be incorporated into clause 18. Mr Cash wanted the following to be added to the clause: The sovereignty of the United Kingdom Parliament is hereby reaffirmed. And with a further amendment adding: and not by virtue of a common law principle. In this fascinating debate Mr Cash clearly states that the purpose of his proposed amendment is not for clarity for citizens or MPs, but to prevent the Judiciary from weakening the doctrine any further, and he refers to the passages of Lord Steyn et al in the Jackson case, discussed above, as evidence as to why this is needed. Mr Cash wanted not just a clause at the strong end of the spectrum as set out above, but a clause that in addition to this expressly removes the jurisdiction of the doctrine from the judiciary, placing it beyond their reach. This would have been a major change to not just the clause, but to the doctrine of Parliamentary Supremacy itself. This would be putting the doctrine clearly upon a statutory footing which would amount to Parliament giving itself its own powers. There are clear arguments about the legitimacy of such an approach. Ultimately, after hours of trying to persuade the House to adopt the proposed amendments, the amendments were rejected by 314 votes to 39. 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. 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, who state that it is a common-law doctrine, therefore trying to put the doctrine upon a statutory footing would be more likely to cause judicial activism than trying to prevent it. On 7th December 2010 the European Scrutiny Committee produced a report upon the EU Bill (The EU Bill and Parliamentary sovereignty, House of Commons Paper No 633-I. Their conclusion in respect of clause 18 is very clear it is not needed. They state that it merely says what the current situation is, and by attempting to put such matters on a statutory footing will invite litigation and potential problems, which for something that is not necessary in the first place, is unwise. The government responded to the European Scrutiny Committees report on the 10th January 2011. They rejected the Committees concerns and restated that the clause is necessary as it achieves clarity in an area that may become problematic in the future. 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, and the clause will prevent that from happening. Out of all of this, the concerns that clause 18 is potentially dangerous and that there may be agendas behind it, are not unfounded. We now need to turn to what the potential reaction of the judiciary would be to clause 18.

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7.8.17 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. They feel they have ownership of the doctrine as they said that the doctrine is judge made, and as such, it can be altered by the judiciary. 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 Parliaments control via an Act of Parliament. 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. This legitimacy would be questioned if the doctrine was put on a statutory footing. One possible response to this is that such concerns will not materialize under the current proposals. The new clause merely states that EU law takes effect in the UK only by virtue of an Act of Parliament, thereby asserting supremacy without expressly addressing the doctrine or putting it on a statutory footing. The biggest concern is the purpose underlying the enactment of the clause. The explanatory notes to the clause do state that the doctrine is being put on a statutory footing though, so this does raise concerns about the impact of this upon the doctrine itself and it is worthwhile considering them, especially given the recent attacks upon the traditional doctrine of Parliamentary Supremacy from all quarters. Putting the doctrine upon a statutory footing would not be legitimate for the reasons mentioned above it would be giving oneself power by ones own assertion this is neither possible nor legitimate. It is also worthwhile remembering Lord Hopes comments in Jackson where he was considering (again, obiter dicta) the relationship between the doctrine of Parliamentary Supremacy and the Rule of Law. At para 107 he said: The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. 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 Parliaments legislative sovereignty. 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 Parliaments legislative power. If Parliament tried to legislate contrary to the Rule of Law then the Courts are saying it is in their power, and in accord with the UK constitution, for them to prevent them from doing so. The new sovereignty clause, as interpreted by the commentary, is asserting that Lord Hope is wrong and that Parliamentary Supremacy is the ultimate controlling factor. 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. When commenting upon the Separation of Powers in the UK, Sir William

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, 2001). He felt the UK needs some level of cross-over between bodies to act as a check and a balance. Putting Parliamentary Supremacy within the control of Parliament via an Act of Parliament would fall foul of this. Parliament would be too powerful, and the Courts may, given Lord Hopes comments, 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. If the clause does survive its passage through Parliament, there is scope for a clash between the clause with its underlying purpose and the judiciary. 7.8.18 Conclusion In light of what has been outlined above, 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. The fact that they are intending to put a sovereignty clause in the bill though, and due to the explanatory notes saying that Parliamentary Supremacy is to be put on a statutory footing, in conjunction with the commentary upon the clause stating the underlying purpose, does give rise to legitimate concerns about the impact of the clause upon the UK constitution. 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, whilst rarely exercised, need to be protected. Giving Westminster Parliament ultimate law making power without allowing the judiciary to review that position would contravene the rule of law. 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, 5 U.S. (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. Whilst some may think that all this is a far cry from what the current proposals are in the EU Bill, we need to keep these matters in mind to make sure that it stays that way, and significant changes do not materialize under the radar. 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. This would be an attempt to answer the question raised by Lord Denning in McCarthys Ltd v Smith *1979+ ICR 785, 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. 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. I do not however envisage any such situation.

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This situation has never arisen. If such a situation did, then the UK Parliament would be reliant upon, and expect, the domestic courts to follow the UK Act using the doctrine of the Supremacy of Parliament. The EU Bill is confirmation that some people do not feel confident leaving matters to an unwritten doctrine. They would rather that the situation be spelled out expressly for the avoidance of doubt. If such a circumstance arose, and we did not have a sovereignty clause, the response of the Courts would almost certainly be the same as if there were such a clause in place. What then is the point of the EU Bill? If the answer is the short and simple one: to achieve clarity and certainty, then that would be a welcome situation. If, however, the purpose is something else, and is an assertion of ultimate constitutional control, then there are legitimate concerns about such a clause. That is why it is imperative that we all keep a close eye on the clauses passage through Parliament.

Page73 Chapter8: THE ELECTORAL SYSTEM CONTENTS: 8.1 Introduction 8.2 The franchise 8.3 The Constituencies and the Boundary Commissions 8.4 The election process 8.5 Voting systems (refer to pages 338-343 Hilare Barnett) 8.6 Case for and against reforming the simple majority system 8.7 The May 2010 General Elections 8.8 Recent reform

8.1 INTRODUCTION (i) In a democratic State the electoral process exercises determining power over those who hold political office. It is the electorate, which confers the power to govern, and calls government to account. (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, subject to limited restrictions; (b) that the value of each vote cast is equal to that of every other vote;

(c) that the conduct of the election campaigns is regulated to ensure legality and fairness; (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.

Page74 8.2 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, one vote. 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. (ii) Under Section 1, 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, Wales and Scotland), citizenship, voting age (now 18 years and over), and not being subject to legal incapacity. There is also provision for postal voting by those living overseas. (iii) The register is prepared once a year by the registration officer of each constituency. Except for Northern Ireland, no period of residence is necessary. Any objection to the inclusion or exclusion of any person in or from the register must be made by 16 December, which is heard by the registration officer. Appeal lies from his determination to the County Court and thereafter, on a point of law, to the Court of Appeal. There is provision for judicial review. The register comes into force on 16 February and remains in force for 12 months. (iv) The meaning of residence for electoral purposes was considered by the Court of Appeal in Fox v Stirk (1970). The question before the court was whether two students who took up residence in their university town a few days before the qualifying date, and who might spend as little as 26 weeks a year in residence in those towns, 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. The court held that a person could, for these purposes, be regarded as a resident in more than one place at a time. However, it is a criminal offence for a person to vote in more than one constituency, even though his name appears in the electoral register for each constituency. (v) Service voters-members of the armed forces, whether serving at home or abroad, crown servants and British Council staff overseas, and their spouses-shall be registered as if they were living at the address at which, but for the service, they would be normally be resident. (vi) The following persons are not entitled to vote, even if their names appear on the electoral register: (a) Aliens, excluding citizens of the Republic of Ireland; (b) Minors (persons under 18 years of age);

(c) Peers and peeresses in their own right (Irish peers may vote); (d) Convicted persons undergoing sentences in penal institutions; (e) Persons convicted of corrupt or illegal practises at elections. The former are disqualified for voting five years, the latter for five years in the constituency in question; (f) Those who for reasons of mental illnesses, sub normality, drunkenness or other infirmity, lack at the moment of voting to understand what they are about to do. It is for the presiding officer at the polling station to decide whether or not a person lacks such a capacity.

8.3 THE CONSTITUENCIES AND THE BOUNDARY COMMISSIONS (i) The United Kingdom is divided for electoral purposes into 659 constituencies or voting areas. 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. (an election in a single constituency, conducted as a result of the seat falling vacant during the life of a Parliament.) (ii) Four permanent Boundary Commissions for England, Wales, Scotland and Northern Ireland have been created under the House of Commons (Redistribution of Seats) Act 1949 and 1958. 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. The duty of the Commission is to review and report to the Home Secretary, the representation within constituencies, the reports being submitted not less than eight or more than 12 years from the date of the submission of the last report. (Section 3 of the Parliamentary Constituencies Act 19126 as amended by the Boundary Commissions Act 1992). (iii) When a Commission has decided to recommend changes, notice must be given in the constituencies affected and representations invited. A local inquiry may have to hold. The Secretary must lay the Boundary Commission report in Parliament together with a draft Order in Council for giving effect, with or without modifications, to its recommendations. The draft order must then de approved by resolutions in each House before the final order is made by the Queen in Council. (iv) As a basic principle, each constituency should have the same number of voters within it to ensure that all votes have equal value. The Boundary Commission is however, entitled to depart from the strict application of this principle if special geographical considerations including in particular the size, shape and accessibility of a constituency so require.

Page75 (v) Parliamentary constituencies shall, as far as is practicable, follow local government boundaries and local ties and any inconvenience caused the proposed alteration must also be considered. The ideal size

of each constituency is found by dividing the total electorate in each Commission area by the number of constituencies in that area. Because of the population distribution in for example the Highlands of Scotland or rural Wales, this formula may be departed from. 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. (vi) In practice, this means that an individual vote in Scotland or Wales is more powerful than an individual vote in other parts of the United Kingdom, as because of the smaller constituency population, fewer votes are required to elect a member. In other words, the weight, which your vote carries, varies according to where a voter lives. The principle of one man, one vote, one value seems to be departed from and if viewed strictly, not all votes have the same value as some electors are more equal than others. (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 R v Home Secretary ex parte McWhirter (1969) the Labour Party feared the loss of up to ten constituencies as a result of the Commissions recommendations. The Home Secretary laid the report before Parliament, without the draft Orders in Council which were necessary to implement the changes. 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. The Home Secretary introduced the House of Commons Redistribution of Seats Bill, implementing some of the recommendations regarding large urban areas, but not the remaining. The House of Lords introduced amendments, which the Home Secretary rejected. The Home Secretary then suggested compromise amendments, which the Lords again rejected. Subsequently the Home secretary introduced the draft Orders in Council, leaving the Lords amendments intact, but inviting the House of Commons to reject the Orders. The application for mandamus was withdrawn. In 1970, however, the incoming Conservative Government reintroduced and passed the Orders. (viii) In R v Boundary Commission for England ex parte Foot (1983), the Labour Party, having being aggrieved by the Boundary Commissions proposals instituted legal proceedings. 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. The Court of Appeal rejected the argument relying on the considerable discretion built into the rules by the Parliamentary Constituencies Act 1986. It felt that there was insufficient evidence to show that in compiling its report the Commission had failed to take into account relevant considerations, or conversely had taken into account irrelevant considerations. 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. Judicial inquiry in this matter comes very close to questioning a matter, which is more appropriately dealt with in Parliament (separation of powers) and thereby infringing the privileges of Parliament.

Page76 8.4 THE ELECTION PROCESS 8.4.1 General elections General elections must be held every five years, the maximum life of any Parliament. (Section 7 of the Parliament Act 1911). The Prime Minister controls the timing of General Elections, although the dissolution of Parliament lies within the prerogative of the Crown. A royal proclamation dissolves Parliament and orders the issue of writs for the election of a new Parliament. 8.4.2 By-elections By-elections take place following the death or retirement of a Member of Parliament. Any Member of Parliament may put down a motion to the House, which if successful, orders the Speaker to make a warrant for the issue of a writ commencing the election procedure. There is a limit laid down by law as to the time period in which a by-election must be held. In 1973 a Speakers Conference recommended that the motion initiating the by-election process should be within three months of the vacancy arising. 8.4.3 Eligibility of candidates (i) Under the House of Commons Disqualification Act 1975, certain categories of persons are ineligible for election and others are disqualified under the Act. Under Section 1 of the Act, 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, Commissions, Tribunals and other bodies whose members are appointed by the Crown. (ii) In addition, a number of restrictions on eligibility apply: (a) Persons under the age of 21: While the age of majority is 18, the eligibility for election to Parliament does not arise until the age of 21. Note: The Electoral Administration Act 2006, Section 17, reduces the age of qualification for election to the House of Commons or a local authority, and election to Mayor, Mayor of London and Assembly Members of the Greater London Authority from 21 to 18.

(b) Peers: Members of the House of Lords or persons succeeding peerage are not eligible for office. Under the Peerage Act 1963, a person succeeding to a peerage has a limited right to disclaim his peerage. If a member of the House of Commons succeeds to a peerage, he has one month in which to disclaim his peerage or resign from the House of Commons. (c) Persons suffering from mental illness: mental illness is a common law disqualification. If an alreadyelected Member of Parliament is authorised to be detained on grounds of mental illness, the Speaker of the House is notified and following confirmation of the illness. The Members seat is declared vacant (Section 141 of the Mental Health Act). (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. (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. (f) Persons convicted of treason are disqualified until pardon or the sentence has expired. (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. If the corrupt practice only comes to light after the election, the Member may be disqualified from sitting in Parliament. The disqualification commences from the date of the report of the Election Court on the practices and will last, 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 8.4.4 The conduct of election campaigns (i) The Representation of the People Act 1983 governs the law relating to election campaigns; controlling both the amounts of expenditure and the manner in which it can lawfully be spent; proscribing certain unlawful practices and providing challenges to the legality of a campaign. It should be noted that while the law regulates the conduct of constituency campaigns, it virtually ignores regulation of the national political party campaigns (ii) In an age of mass communication and everincreasing personality politics in terms of political party leaders, the absence of regulation at national level- other than via broadcasts controls is a matter for concern. (a) Expenditure

(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. Each candidate is obliged to appoint an election agent. (ii) This is to maintain fairness between candidates and providing a mechanism for accountability as to election expenses. All accounts relating to the election expenses must be reported within 21 days of the election result, to the returning officer. Section 76 of the act permits the Secretary of State to set and raise the permitted amounts of expenditure, in line with inflation. (iii) Any expenditure exceeding the prescribed limits amounts to a corrupt practice under Section 75(1). Expenditure on national party election broadcasts is met from central Party funds. Broadcasting is confined to broadcasts made by the British Broadcasting Corporation and Independent Broadcasting Authority. No broadcast may be made without the consent of the participating candidate. (iv) Several challenges to expenditure have been presented to the courts. In R v Tronoh Mines Ltd (1952).Tronoh Mines placed an advertisement in The Times urging voters to vote socialist. The company and the Times were charged under the Act. The court held that the expenditure had been incurred with a view to promoting the interests of a party generally, rather than an individual candidate; that the advantage incurred was incidental and not direct, and accordingly, the expenditure did not fall within Section 75. (v) In DPP v Luft (1977), an anti -fascist group had distributed pamphlets in three constituencies urging voters not to vote for National Front (extreme right-wing candidates). 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. 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. (vii) In Grieve v Douglas Home (1965) Alec Douglas-Homes 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. The court held that no offence had been committed by the candidate, BBC or IBA. 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. (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. (1998) the Times 23 Feb European Court of Human Rights. The applicant in this case was an anti abortion campaigner. During the 1992 general elections she had distributed 25,000 leaflets at the cost of L10, 000 in the Halifax parliamentary constituency outlining the views of the various parliamentary candidates on abortion. The applicant was, in due course, 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 1983 Act imposed a limit of L5 on such unauthorised expenditure. As a result of the summons being issued out of time, the applicant was in fact acquitted of the Section 75 charges, but nevertheless lodged

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. The Commission referred the application to the European Court of Human Rights after attempts at a friendly settlement with the government failed.

Page78 The Court held that the operation of Section 75 of the 1983 Act amounted to violation of the applicants rights under Article 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, namely equality between candidates seeking election. 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. In these circumstances, 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. 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. 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. (b) Broadcasting and elections (i) No broadcast may be made other than through the BBC or IBA. 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. 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. (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. The BBC is not controlled by statute but by Royal Charter and is under a duty to preserve impartiality. Judicial review will lie if either body infringes these rules. (iii) The general duty of fairness was raised by Rt Hon David Owen MP in R v Broadcasting Complaints Commission exparte Owen (1985). David Owen had complained to the Commission that the allocation of time to various parties, principally the Social Democratic party was unjust or unfair under Section 54 of the Broadcasting Act 1981. 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, but that the Commission had acted lawfully in allocating time on the basis of the number of seats won rather than votes cast.

(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, every other candidate in the constituency must consent to the broadcast. In Marshall v BBC (1979) the candidate, having refused to participate in a debate, was filmed while canvassing in the streets. On the challenge to the legality of the broadcast, it was held that no offence had been committed. To take part in a constituency item means to take an active part in. (v) In R v British Broadcasting Corporation and Another, ex parte Referendum Party (1997). 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 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. The applicant party was adversely affected by the adoption of such an approach because, despite the fact that it was fielding some 547 candidates, it had never before contested in a general election and therefore had no track record of electoral support. The application was dismissed. 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. 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, was sufficiently governmental in nature (due to the BBCs 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. (c) Disputed Elections (i) Any challenge to an election campaign must be made within three weeks of the result being declared. The complaint can be made by a registered elector, an unsuccessful candidate or their nominees. Such challenges go to the Election Court, a Divisional Court of the Queens Bench Division of the High Court. The court has a power to order a recount; declare corrupt or illegal practices; disqualify a candidate from membership of the House of Commons and declare the runner-up duly elected or to order a fresh election. (ii) In Re Parliamentary Election for Bristol South East (1964), Tony Benn MP, who had recently succeeded to a peerage stood for re-election. The election was declared void and awarded to the runner-up. In Ruffle v Rogers (1912) the election papers were incorrectly counted and affected the outcome of the election. The election was declared void but the court made clear that had the miscount not affected the result, the election would have been upheld.

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8.4.5 Political Party funding (i) In the United Kingdom there is no provision for State aid for political parties. Payments are, however, 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, up to a fixed maximum for any one party. Parties are dependent upon the support of the membership, more importantly from companies and trades unions. Approximately 30% of the Conservative party funds come from companies whereas 55% of the labour party funds come from trade unions donations. (ii) In late 1997, the Labour Party leader Tony Blair and also the new Prime Minister was questioned in Parliament over his close association with Marlborough Co. 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. He effectively stonewalled the question in Parliament during the Prime ministers Question time in particularly by William Hague. (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. The Committee intended to examine the issue to political party funding in its second inquiry but the intention was blocked by the Prime Minister. As a result, the opportunity for independent judicial scrutiny of the probity of party funding was lost. (iv) In 2007 following an enquiry chaired by Sir Hayden Phillips, the Party funding report made a number of recommendations. These included: (a) A cap on donations and loans of L 50,000 (b) Spending controls with an overall single limit on expenditure of L 150 million to be spread over the life of Parliament; (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. (vi) The Electoral Commission has recommended that there be established a national register of electors to replace or supplement the current local registers. Individual registration would be required, 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. Voters would have to provide a signature, their date of birth and national insurance number. The aim is to reduce the possibility of electoral fraud. (vii) The Electoral Commissions Annual Report 20078, reveals that in 2007 the Labour Party received 20.4 million in donations, the Conservative Party, 21 million and the Liberal Democrats 3.2 million. (viii) Concern continues to surround donations to political parties from overseas donors who have companies registered in the United Kingdom. Such donations are lawful provided that they comply with

the 2000 Act. Section 54 of the Political Parties, 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. (ix) The Political Parties and Elections Bill 20078 and 20089 aims to strengthen the regulatory powers of the Electoral Commission by giving it new powers of investigation and the option of civil sanctions. It will also place further requirements on political parties and donors to clarify the source of donations.

Page80 8.5 VOTING SYSTEMS (refer to pages 338-343 Hilare Barnett) 8.6 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), hence strong, stable government (vi) Clear mandate, 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, only the winner relative to the second placed candidate being elected (iii) Two-party dominance, little representation Of smaller parties (e.g. UK the third party, 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

Proportional Representation Systems: Advantages (i) More votes count so greater, wider representation of views, 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; 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), perhaps of marginal or extreme stance, 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. Reformers argue that the status quo results in a government that does not represent the majority of the voters wishes. The Liberal Democrats have been arguing for reform for many years, and they are not alone in this. Lord Hailsham, former Conservative Lord Chancellor and Cabinet minister, questioned the democratic basis of the current system. (ii) The case for reform is focussed on the principle of democracy and equality in voting power. For democracy to have real meaning, it is argued that the government of the day, and the composition of the legislature as a whole, must reflect the wishes of the electors. (iii) Under such a system, it can be argued that the government would have enhanced authority to pursue its electoral mandate. In answer to the charge that proportional representation can result in weal government, reformers argue that less extreme, rather than weak, government would be the result.

(iv) The simple majority system invariably favours a two party system, and leaves little room for the adequate representation of smaller parties. 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), but that overall popularity does not translate into a proportionally related number of parliamentary seats. (v) One explanation for this result is that votes for the Liberal Democrats are spread fairly evenly over the United Kingdom, and not concentrated in one geographic area. (vi) The simple majority system generally, although not invariably, produces a government with a strong parliamentary majority which is able to implement its electoral programme without undue hindrance. (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. As a result, minority parties with few seats and relatively small electoral support may hold a disproportionate amount of power. (viii) As a consequence of this dependence, governments are also subject to the risk of defeats on motions of no confidence, thus producing general political insecurity and the potential for frequent elections. (ix) Under the current system, it is generally the case that the elected government always depending upon its majority in parliament relatively free to implement its electoral programme. Under proportional representation, where less strong government is the frequent result, 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. (x) There also exist doubts as to the effects of a reformed system on the convention of collective ministerial responsibility; Under current constitutional arrangements, the convention of collective responsibility requires that the Cabinet speaks with one voices in order to maintain parliamentary, and electoral, confidence. The rule accordingly requires that, where a decision has been made by the Cabinet, 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. (xi) Such a show of unity would prove difficult to sustain in coalition or minority governments. The doctrine of individual ministerial responsibility might also prove more difficult to adhere to, particularly where a minister felt unable to support and pursue a policy with which he or she disagreed on political principle- governments become less cohesive and, as a result, less commanding of the confidence of the people. (xii) Irrespective of the proportion of votes won in an election, the Member of Parliament, once duly elected, and irrespective of the proportion of votes won in an election, and irrespective of political party, represents each and every one of his or her constituents in parliament. A member is thus able to gain a detailed knowledge of his or her constituency, its geography, industry and economy, environment

and populace. With large constituencies, such a detailed working knowledge of an area becomes more difficult, with the added possibility that a Member is less effective in his representation of that constituency in Parliament. (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, once in office, the government appointed Liberal peer Lord Jenkins Commission reported in October 1998, and recommended a novel, if complex, solution. The Commission, wanting to retain single member constituencies but also inject a greater degree of proportionality into the system, opted for a mixed system made up of the alternative vote and regional list systems. (xiv) A system of proportional representation was used in May 1999 for elections to the European Parliament; for elections to the Scottish Parliament and National Assembly for Wales the additional member system was used; and for elections to the Northern Ireland Assembly the single transferable vote system was used. (xv) The unresolved issue is the voting system for elections to the United Kingdom Parliament. The government had promised to hold a referendum on the matter and as seen above, the Jenkins Commission recommended a mixed system of voting. The government has however deferred both issues. Despite the experimentation with the reform, the government appears unconvinced of wholesale reform of the system employed for elections to the Westminster Parliament.

Page82 8.7 THE MAY 2010 GENERAL ELECTIONS 8.7.1 The verdict (i) UK had its general elections in May 2010. The number of seats each party has after all 650 had been declared were as follows. Conservatives 307 Labour 258 Liberal Democrats Others 28 In essence, UK faced a hung Parliament. (ii) All three of the main parties lost in one sense or another. After 13 years in government, Labour was branded by the electorate as a movement unfit for office. The simple fact was that it was a disaster for Labour, a party that so recently seemed invincible. 57

(iii) For the Lib Dems, Nick Clegg brought a freshness and dynamism to the campaign which caught David Cameron and Gordon Brown off guard. But once he started to dwell publicly upon his coalition demands before a single vote was counted he was asking for trouble. His only hope of a comeback is as a matured junior partner in a bipartisan or multi-party alliance. (iv) The Tory failure, though deeply traumatic for the party, was the least toxic. They had longed for at least a modest majority, and believed that such an outcome was well within their grasp. To gain 117 seats in one day needed to give Cameron a one-seat majority was always going to be extraordinarily difficult. (v) The electorate knew that it wanted rid of Gordon Brown. But it was not prepared to give the next prime minister an unambiguous endorsement. Instead, its verdict was fragmented, localized, disaggregated. 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. (vi) If anything, Camerons problem was that his credibility as a change maker. If anything, he did not modernize his party enough, or deliver the change message with sufficient consistency. (vii) Even now, after 13 years of New Labour, of reckless spending leading to prodigious debt, of educational failure, of sleaze and spin and social collapse, the voters were still not sure that they could trust the Tories with a Commons majority. (viii) In the wake of this election, the Conservative Party is entering one of the most perilous periods in its history, a moment of great opportunity and great danger. It will be scrutinized more vigorously and comprehensively than it ever was in the 13 years of New Labour government. But it lacks a true mandate and the authority with which such a vote of confidence invests a partys ideas. (ix) The electoral result was a self fulfilling prophecy for Nick Cleggs Liberal democrats, who had been always clamoring for proportional representation rather than first past the post system which was retained in the May 2010 general elections. The result may have somewhat different if the proportional representation system was adopted.

Page83 8.7.2 How David Cameron became Prime Minister (i) After the results were announced, Gordon Brown remained in office at No. 10 Downing Street. In fact during the press conference outside No. 10 Downing Street, he stated that he was willing to talk to Nick Clegg after he had his negotiations with David Cameron of the Conservatives. (ii) Gordon Brown was somewhat optimistic that if talks between the Liberal Democrats and Conservations (on the possibility of a loose coalition) failed, 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. (iii) If such were the case, he would have to also get the support of some of the minority parties to touch that figure. Otherwise, he would have to contend with a minority loose coalition government with the Liberal Democrats exceeding the Conservative figure (307) by only 5 seats. 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, paving the way for another general election. In fact to lure the Liberal Democrats to his side he suggested that if they teamed up, there would be immediate legislation for proportional representation. (iv) The next scenario was more promising, that is for the Liberal Democrats to team up with the Conservatives to form a loose coalition bring the tally 364, getting the desired majority and ousting Labour for good as well as the sitting Prime Minister, Gordon Brown. (v) In the next few days that followed, there was an air of uncertainty in British politics in the absence of a loose coalition between the Conservatives and Liberal democrats, who had the legitimate right to form the government? The minority Conservative or Labour. In such instance, how long could Gordon Brown remain in No. 10 Downing Street as sitting Prime Minister. 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. (vi) Nevertheless, this uncertainty was cleared after some of the negotiation proposals by the Conservatives were agreed upon by the Liberal Democrats and thereafter, Nick Clegg obtained his partys sanction for adoption of the proposals and this facilitated the lose coalition between Conservatives and the Liberal Democrats. In fact after the initial discussion with the Tories, Nick Clegg followed up with discussions with the Labour power brokers. (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, to an agreed timetable, to enable his party to start its own coalition talks with the Lib Dems. In truth, informal negotiations between senior Labour and Lib Dem figures had already been going on for at least two days. Mr Brown had even met Mr Clegg face to face. (viii) As Labour set up its five-strong negotiating team (Lord Mandelson, Lord Adonis, Harriet Harman, Ed Balls and Ed Miliband) and prepared to open formal discussions with the Lib Dems, the Tories were seriously spooked. Cries of betrayal rang out in Conservative Campaign Headquarters and candidates from the previous weeks election were put back on standby for a snap return to the polls in case a Liblab pact, which would depend on a flimsy alliance with smaller parties and would risk defeat with every parliamentary vote, became a reality. (ix) When talks began on Tuesday the Lib Dem team (David Laws, Danny Alexander, Chris Huhne and Andrew Stunell) was astonished to hear the lengths to which Labour was prepared to go to keep the

Tories out of power. We offered them the moon on a stick, a source close to the Labour negotiating team said. We were prepared to give up pretty much everything.

Page84 (x) What were the Lib Dems demands? According to one Labour source, these included a shift from the current first-past-the-post voting system to the multi-preference Alternative Vote without a referendum and, bizarrely, a shift to Conservative plans for cutting the deficit, including an immediate 6 billion of Whitehall savings, instead of the Lib Dems own. (xi) It did not take long, however, for the talks to begin falling apart. Lib Dems claimed after the breakdown that they believed Labour never intended to enter into a coalition and that some members of Labours negotiating team simply wanted to make life as difficult as possible for the Conservatives. (xii) Thereafter senior cabinet ministers such as Andy Burnham, the former health secretary, joined some of Labours 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. The game was up. (xiii) The Lib Dems now had nowhere to go except back to the Tories. Despite this, 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. Cameron was bending over backwards and then bending even more. It was more than we dared hope for one Liberal Democrat spokesman said. (xiv) There was one final chapter. 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. Even though the Queen had approved it (and Mr Cameron was already inside No 10), the Lib Dem Federal Executive had not. Shortly after midnight on Wednesday morning, however, this august body did so and a very British transfer of power was complete. (xv) As such Labours 13 years in power drew to their close and Gordon Brown departed from No. 10 Downing Street as well as from the office of Prime Minister. He has and audience with the Queen and tendered his resignation. As a matter of convention, due to the majority of support David Cameron was named and appointed the Prime Minister. (xvi) As part of the coalition agreement, the Conservatives have, pursuant to demands from Liberal Democrats, undertaken to put to a referendum the alternative vote system. Thus it remains to be seen when the referendum of the people is sought and if given the go ahead, this may pave the way for a proportional representation system in contrast to the current first past the post system. 8.7.3 The common policies (i) The Prime Minister insisted that the two parties agreed on most policies, even as he unveiled an agreement that put off many decisions by establishing independent reviews and commissions.

(ii) The Tories promised to scrap the Human Rights Act, a law that the Lib Dems have defended. The coalition text confirmed that the issue would be reviewed, as would Tory plans to assert the supremacy of Parliament over the European Union. (iii) Other issues put under review included: local government finance; public sector pensions; reform of the House of Lords; rights to flexible working; control orders for terrorist suspects; and sentencing in English courts. (iv) Mr Cameron shifted his position on several other issues important to Right-wing Tories, including shelving promises to cut inheritance tax and give tax breaks to married couples, and proposing increases in capital gains tax. (v) Civil Liberties: Human freedoms, which have been abused and eroded, will be restored in keeping with Britains tradition of freedom and fairness. In particular, the Government will introduce a Freedom Bill, scrap the ID cards scheme, halt new biometric passports, review libel laws to protect freedom of speech, and regulate the widespread use of CCTV. 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. (vi) Europe: In an attempt to meld the two parties differing stances on Europe, Britain would play a leading role in an enlarged European Union, but no further powers should be transferred to Brussels without a referendum. The Government promises to limit the application of the Working Time Directive in the UK, which sets maximum working hours, and introduce a so-called referendum lock to ensure that any future proposed transfer of power must be subject to a referendum. Britain will not join the euro in this Parliament, and the possibility of a United Kingdom Sovereignty Bill, stressing the ultimate authority of Parliament, will be explored.

Page85 8.8 RECENT REFORM 8.8.1 Introduction The governments Constitutional Reform and Governance Act 2010 represents the most recent constitutional reform. The Act established a statutory basis for the appointment and management of the civil service, and introduced a new parliamentary procedure for the approval (ratification) of treaties. Constitutional reform proposals currently before Parliament include the following. (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. i) The Fixed-term Parliaments Bill was introduced in the House of Commons in July 2010. The Bill provides for fixed days for parliamentary elections, ordinarily to be held on the first Thursday in May

every five years. The first such election would be on 7 May 2015. The dissolution of Parliament will occur automatically under the provisions of the Bill, thus removing the power of the Crown to dissolve 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. The power would be exercisable by statutory instrument, subject to the affirmative procedure, and is designed to cater for short-term crises which require postponement. iii) The Bill provides for the holding of early parliamentary general elections. These would be triggered by a vote of no confidence unless the House, within a period of 14 days, passes a motion expressing confidence in the government. An early election could also be triggered if at least two-thirds of all MPs vote in favour of an early election. iv) The Report stage of the Bill is due in the House of Commons on 15 September 2010. (b) The Identity Documents Bill which will repeal the former governments identity card scheme. (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 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. (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. (e) The Identity Documents Act 2010 received the Royal Assent in December. The Act abolishes the need for Identity Cards and the national register. (f) The Terrorism Asset-Freezing Act 2010 received the Royal Assent on 17 December. The Act replaces the previous temporary Act which was due to expire at the end of December. The Act was the response to the Supreme Courts ruling in HM Treasury v Ahmed and Others decided in January 2010.

Page86 8.8.2 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).

The Act applies to the whole of the United Kingdom. It is intended to strengthen the regulatory role of the Electoral Commission by making it clear that the Commissions functions are to monitor and to regulate compliance with the requirements relating to donations to political parties. Section 2 of the 2009 Act substitutes a new Section 146 of the 2000 Act, providing powers to enable the access to information relating to donations. These include the power, under warrant, to enter premises and inspect and copy documents. Section 3 inserts a new Section 147 to the 2000 Act, imposing civil sanctions for breach of the Act. On the composition of the Commission, Section 5 provides for four Commissioners to be nominated by the largest political parties. In order to ensure that the nominated Commissioners are in a minority, Section 6 amends Section 1 of the 2000 Act, increasing the minimum number of Commissioners from five to nine and the maximum number of Commissioners from nine to ten. Section 9 of the 2009 Act requires donors to make a formal declaration of donations over 7,500 to either national or local parties. It is a criminal offence to make a false declaration (Section 9(5)). Section 10 prohibits donations over 7,500 from non-resident donors. Donors must be resident, ordinarily resident and domiciled in the United Kingdom for income tax purposes in the tax year in which the donation was made. The same provisions relate to loans and other financial benefits/ transactions. The 2009 Act also provides for restrictions on expenditure by those persons who are not yet candidates for election. The provisions only apply when a Parliament has run for over 55 months before it dissolves, the time to be counted from the day on which Parliament was first appointed to meet. The 2009 Act, Section 24, amends the parliamentary election rules (PERs) found at Schedule 1 to the 1983 Act, providing that candidates for election may choose that their home address does not appear on the ballot paper at the election. Part 4 of the 2009 Act amends the Electoral Administration Act 2006 in relation to Co-ordinated On-line Record of Electors Schemes (CORE). Section 28(3) of the 2009 Act inserts a new Section 3A into the 2006 Act, which enables the Secretary of State to establish a corporation sole to be the CORE keeper. The result of the May 2010 general election was: Party: (i) Conservative: Number of seats=306, Percentage of vote=36.0, Percentage of seats=47.0 (ii) Labour: Number of seats=258, Percentage of vote=29.0, Percentage of seats=40.0 (iii) Liberal Democrat: Number of seats=57, Percentage of vote=23.0, Percentage of seats=9.0 (iv) Others: Number of seats=28, Percentage of vote=12.0, Percentage of seats=4.0 (v) Vacant seat: Number of seats=1 (vi) Total: Number of seats=650, Percentage of vote=100.0, Percentage of seats=100.0 The percentage of eligible voters voting (the turn-out) was 65.1 per cent.

In order to have a clear majority and the right to form a government, a political party needed to secure parliamentary 326 seats. However, as the figures above show, the May 2010 general election, for the first time since 1974, resulted in a hung Parliament -- one in which no political party had a clear majority of seats in Parliament. As a consequence, there was no political party leader who could claim the right to be appointed Prime Minister and form a government. Where, as in 1974 and 2010, there is no clear winner of a general election, the incumbent Prime Minister, by convention, remains in post until a political agreement can be reached as to which party, or parties, should form a government. Also by convention, 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. The fundamental requirement is that any prospective government can command the confidence of the House of Commons. Normally, but not invariably, 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. In the May 2010 election, as seen above, the Conservative Party won more seats (306) than any other party, but was twenty seats short of the necessary majority (326 seats). Several options presented themselves. As the governing party immediately before the general election, the Labour Party could have sought an alliance with the Liberal Democrat Party and other minority parties in the attempt to create a majority. However, 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. Alternatively, the Conservative Party could seek an alliance with the Liberal Democrat Party which would give it a clear majority of seats (306 + 57 = 363).

Page87 As a further alternative, had both the Labour Party and Conservative Party failed in their attempt to form an alliance with other parties the Conservative Party, having the largest number of seats, could have governed as a minority government. After five days of negotiations, 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 Leader of the Conservative Party took office as Prime Minister with the Leader of the Liberal Democrat Party becoming Deputy Prime Minister. The Liberal Democrat Party has five Cabinet members. To promote certainty and stability, 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 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.

The coalition government established in May 2010 agreed that there should be a reduction in the number of constituencies, from 650 to 600, and that there should be greater equality in the number of voters in each constituency. In May 2010 there were 45,610,369 registered electors and 650 constituencies, giving an electoral quota of 70,170 (the number of registered voters divided by the number of constituencies). 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). 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. 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. On the voting system, the Bill provides for a referendum to be held on 5th May 2011. If supported by a majority and accepted by Parliament, the Alternative Vote would become the established system for general elections. However, there are arguments for and against the Alternative Vote system. The Jenkins Commission, established by the former Labour government and reporting in 1998, rejected the Alternative Vote as the preferred system. 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; it offered more choice to voters who would list candidates in order of preference; there would be no need for boundary changes and it could be introduced without delay; a Member of Parliament would have the support of a majority of the voters in his or her constituency. However, the Commission stressed that AV does not eliminate disproportionality in the result and that it operates unpredictably. Applying research into the 1997 general election, the Commission stated that if AV had applied, Labour would have won 452 seats rather than 419 under the Simple Majority system; the Conservatives would have won 96 seats rather than the 165 under the Simple Majority system and the Liberal Democrats 82, rather than the 46 under the Simple Majority system. Under other research it was established that the Conservatives who won 30.7 per cent of votes would have won 202 seats under a proportional system of voting. However, 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 14.6 per cent less than half their entitlement under a proportional representation system). For these reasons, the Jenkins Commission rejected AV and opted instead for AV-Plus, a mixed system involving the election of a majority of MPs by the AV system, with disproportionality being corrected by a minority being elected under a regional list system.

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, currently set out in Schedule 2 of the Parliamentary Constituencies Act 1986.

Page88 Under the 2010 Bill, Clause 9 sets out the new Rules for Redistribution which will replace Schedule 2 of the Parliamentary Constituencies Act 1986. Rule 1 provides that the number of constituencies will be 600; Rule 2 restricts the size of constituencies to within five per cent of the electoral quota (with limited exceptions to provide for special considerations); Rule 3 provides that each constituencies must be wholly within one of the four parts of the United Kingdom (England, Scotland, Wales, Northern Ireland); Rule 4 provides that no constituency may be more than 13,000 square kilometres; Rules 5 sets out the considerations the Boundary Commission may take into account: special geographical considerations and local government boundaries; Rule 6 provides that there are two preserved constituencies to which Rule 2 will not apply (Orkney and Shetland and the Western Isles); Rule 7 makes special provision for Northern Ireland which has a relatively small electorate; Rule 8 sets out the procedure for calculating the number of constituencies in each country (the SainteLogue method used for calculating European Parliamentary constituencies). Under the proposed redistribution of seats, England will have 503 constituencies (minus 30 seats); Wales 30 seats (minus 10); Scotland 52 (minus 7) and Northern Ireland 15 (minus 3). It is proposed that there should be regular redistributions every five years, with the first taking place by October 2013. 8.8.3 Further developments After prolonged opposition in the House of Lords, the Parliamentary Voting System and Constituencies Bill finally received the Royal Assent on 16 February 2011. A referendum on whether to introduce the Alternative Voting system for general elections will be held on 5 May 2011, unless the Minister regards it as impossible or impracticable for it to be held on that date. If that is the case he is to stipulate the date on which it is to be held, which must be no later than 31 October 2011 (Section 1(2). The question to be asked is:

At present, the UK uses the first past the post system to elect MPs to the House of Commons. Should the alternative vote system be used instead? If a majority of votes are cast in favour of the change, the Minister must make an order bringing the alternative vote into effect. 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). 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, giving greater emphasis to equality in voter numbers within constituencies than was the case under the 1986 Act. Section 10 of the Parliamentary Voting System and Constituencies Act 2011 amends Section 3 of the Parliamentary Constituencies Act 1986, making reviews more frequent and more certain. The Boundary Commissions are now required to submit reports on boundary changes: (a) before 1 October 2013, and (b) before 1 October of every fifth year after that.

Page89 The new rules on the distribution of seats are as follows: Schedule 2 to the 1986 Act Number of constituencies 1. The number of constituencies in the United Kingdom shall be 600. Electorate per constituency 2 (1) The electorate of any constituency shall be: (a) no less than 95% of the United Kingdom electoral quota, and (b) no more than 105% of that quota. 3 (1) Each constituency shall be wholly in one of the four parts of the United Kingdom. 4 (1) A constituency shall not have an area of more than 13,000 square kilometres. (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, and (b) the Boundary Commission concerned is satisfied that it is not reasonably possible for the constituency to comply with that rule.

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, including in particular the size shape and accessibility of a constituency; (b) local government boundaries as they exist on the most recent ordinary council-election day before the review date; (c) boundaries of existing constituencies; (d) any local ties that would be broken by changes in constituencies; (e) the inconveniences attendant on such changes. In addition the Boundary Commission for England may take into account the constituency boundaries for European elections. 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. A majority of the Committees members must be Members of the House of Commons (Section 14). The Electoral Commission, Established under the Political Parties, Elections and Referendums Act 2000, as amended by the Electoral Administration Act 2006 and the Political Parties and Elections Act 2009. Is an independent body set up by statute; (i) the Commission maintains the Register of Political Parties; (ii) maintains and monitors donations and loans to political parties; (iii) investigates alleged breaches of the rules relating to donations; (iv) draws on the Register of Members Interests for data on donations; (v) oversees the conduct of elections and referendums; The Commission is accountable to Parliament through the Speakers Committee, 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.

Page90 8.8.4 Recent case law (i) In Watson v Woolas [2010] EWHC 2702; Times LR 16 November 2010, the petitioner contested the result of the election in the constituency of Oldham East and Saddleworth (OES) at which he had stood

as a candidate for the Liberal Democrat Party. The action was brought under Section 120 of the Representation of the People Act 1983 (the RPA). The respondent won the seat by 103 votes. 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, and was guilty of an illegal practice contrary to Section 106 of the RPA 1983. Section 106 provides that it is an offence to publish, ... for the purpose of affecting the return of any candidate at the election, ... any false statement of fact in relation to the candidates personal character or conduct unless they believed it was true and had reasonable grounds to do so. The Election Court (of the Queens Bench Division), sitting in the constituency, found for the petitioner. The Election Court ruled that the respondent had been personally guilty of an illegal practice, 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 respondent sought judicial review of this decision. The Administrative Court refused the application, on the well-established principle that the High Court cannot subject itself to judicial review of its decisions. The respondent then appealed, arguing that the Election Court, although of High Court status, enjoyed less power than the High Court and that, accordingly, the decision of the Election Court could be judicially reviewed. Mr Woolas also argued that the decision violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. This, however, was rejected by the Court. 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. Section 106 of the RPA was also designed to protect the reputation of candidates, a right which was also covered by Article 8 of the Convention (the right to privacy). Section 106 did not interfere with statements which were true, but only with statements which were untrue, and for which there was no reasonable belief. That restriction was proportionate to the legitimate aim of the section. (ii) In R (Woolas) v Watkins (2010), the Court ruled that High Court judges sitting as judges in the Election Court, although having the same powers as the judges of the High Court, exercised the more limited jurisdiction conferred under the Representation of the People Act 1983. Furthermore, the Court ruled that while Parliament intended that a lawful decision of the election court was to be final (and therefore not reviewable), Parliament could not have intended that a decision that had been made on a wrong interpretation of the law could not be challenged. (iii) In R (Electoral Commission) v City of Westminster Magistrates Court *2010+ 3 WLR 705; the Supreme Court ruled, by a majority of four to three, 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.

(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. The decision leaves open the question of whether certain prisoners may be subject to restrictions. (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, must bring forward legislation within six months of the judgment becoming final to reform the law. (vi) In R (Chester) v Secretary of State for Justice Times LR 17 Jan 2011, 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. Jaws LJ accepted that section 3 of the Representation of the People Act 1983, which disenfranchises prisoners, was repugnant to Article 3 of the Protocol 1 of the Convention. However, his Lordship said that amending the law would be controversial, and that the controversy would be one not about the law, but about social policy. The responsibility for reform was a political responsibility and remained with the government not the judiciary.

Page91 Chapter9: HOUSE OF LORDS CONTENTS: 9.1 Membership 9.2 Functions 9.3 The Case for Bicameralism (Two Houses of Parliament) 9.4 The Case for an Elected Lords 9.5 The Case for Unelected Lords 9.6 The Impetus for Reforms 9.7 Hereditary Peers 9.8 The Reforms

9.1 MEMBERSHIP

(i) Historically, membership of the Lords was confined to Hereditary Peers and the representatives of the Church of England. In 1867, with the passage of the Appellate Jurisdiction Act, Lords of Appeal in Ordinary were appointed to conduct judicial business of the House. (ii) Despite the active role the Law Lords have played in debates, inter alia, about the reform of the legal profession and human rights, and the undoubted knowledge they bring to such debates, their very presence in an element of the legislature represents an anomaly and a blot on the doctrine of separation of powers. This will change when the CRA 2005 comes into effect with the founding of the Supreme Court of the UK. (iii) Life Peers were ushered in 1958 with the Life Peerages Act. Such appointments are irrevocable; whilst a Hereditary Peer may disclaim his right under the Peerages Act 1963, a Life Peer could not. With that, the current complexion of the House as one which is exclusive to lineage (Hereditary Peers) or appointment (bishops, Law Lords, Life Peers) took form. (iv) Although Canada similarly shares a nominated second chamber, nomination remains an uncommon method of composition when second chambers of other countries are characteristically elected, either directly (such as in Australia and in the USA) or indirectly (as in France and Germany).

Page92 9.2 FUNCTIONS (i) The bicameral structure of Westminster places the HOL as the upper house of Parliament. Major functions of the Lords include: (a) scrutinising, amending and approving law-making proposals which have been passed by the Commons; (b) Bills may also be initiated in the Lords; (c) as a debate chamber; (d) scrutiny of the government; (e) scrutiny of European legislation, both primary and secondary. (f) scrutiny and reporting of Bills and draft Bills for their compatibility with the ECHR; and (g) with its Delegated Powers and Regulatory Reform Committee, the Lords keeps watch over delegated legislation

9.3 THE CASE FOR BICAMERALISM (TWO HOUSES OF PARLIAMENT)

(i) The selective and detailed approach of the House of Lords Committee and its various subcommittees is widely admired throughout the EU. 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. This in its turn has done much to enhance the reputation generally, and among the institutions of the EU in particular, of the system of scrutiny of EU legislation at Westminster. (Lord Hope) (ii) As a debating chamber, the Lords enjoy greater individual freedom than the Commons where party whips exerts a strong presence. The independence of the HOL also stems from the fact that its large train of cross-benchers, judges and bishops do not take the party whip. That the Lords are unelected means that once appointed, they do not continue to hold their seats neither at the governments mercy nor the electorates liking. As such, they have no qualms in debating unpopular issues which the government would not have risked airing in the Commons. Moreover, free from the governments tight legislative agenda, issues may be discussed with greater depth, the consideration being the Lords perception of public interest. (iii) In the five weeks since Parliament reassembled before Christmas in 2005, the Commons has not been able to secure a debate on Iraq/Afghanistan; but the Lords has done so, with participation by four former foreign or defence secretaries, four chiefs of defence staff , two former chairmen of the Commons Foreign Affairs Committee and plenty more. (iv) Save for the Law Lords, members of the HOL do not receive a salary but is paid only a daily attendance allowance and reimbursed for their travel costs. Attending peers also receive allowances for overnight stays away from home, as well as for secretarial and research assistance.

Page93 9.4 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, and be seen to be, democrat c and representative. This points towards a process of election, whether direct or indirect. The clearest example of an appointed second chamber is the Canadian Senate, to which members are effectively appointed by the prime minister. For this among other reasons it is not a popular body. Proposals for its reform were first made within seven years of its creation, and have continued ever since. (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. It is in part the introduction of life peers which explains the revival of the House of Lords. (Barnett) (iii) There is then really no guarantee that peers appointed to the Lords would possess the necessary credentials to excel as a legislator, or even the appetite for it. A proliferation of the backwoodsmen syndrome is likely.

(iv) As Jack Straw noted in the Queens Speech debate in 1998, in an average session when the conservatives have been in power, there have been 13 defeats of government business in (the Lords). In an average session when Labour has been in power, the figure has been five times that - on average, 60 defeats. (v) The absence of elections leaves the Lords in destitute of legitimacy and mandate to act as legislators. In the first session of a Labour -dominated Parliament, which included a part of 1997 and most of 1998, the then heavily Tory-flavoured Lords rejected Labour bills thirty-nine times. (vi) The House of Lords Bill was expected to face a tough fight in the House of Lords. Several Lords threatened to disrupt the Governments other bills if they continued with the plan to abolish the hereditaries right to sit in the House of Lords. In a thriving democracy, this scenario of an electedchamber being frustrated by an unelected one is nothing short of unacceptable.

9.5 THE CASE FOR UNELECTED LORDS (i) The unelected nature of the Lords had been heralded as the source of their independence. With over 170 cross benchers who pledge allegiance to none, the independence of the Lords has been further fastened. Introduction of elections would displace this very source of independence. (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 loss of office at the next election. (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. On the other hand, a significant number of amendments stemming from the Lords represent changes of principle. (iv) The independence of the Lords has helped it to challenge the government, both Tory and Labour, when the Opposition find themselves helpless in face of a large parliamentary majority in the governments hands. (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. (vi) In what was described as the biggest government upset in the Lords since 1988, the Lords inflicted a major defeat on the governments Broadcasting Bill by voting to deny Sky Television exclusive rights to the 8 most important sporting events of the year. (vii) The year 2000 saw the Lords breaking a (contested) convention by rejecting a piece of delegated legislation - the Greater London Authority (Election Expenses) Order 2000. Labour also tasted defeat in

its Criminal Justice (Mode of Trial) Bill which had sought to remove the right of defendants to choose jury trial in either way offences. (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. (ix) The proposed creation of an incitement of religious hatred offence in the Anti -Terrorism, Crime and Security Bill was repeatedly rejected in the Lords and was eventually dropped altogether. (x) Hadfield had observed that elections might result in a House wholly dominated by political parties, and depending on the ballot box, the same party might wrest control in both Houses, as can be witnessed in Canada and Ireland. Should this materialise, the very reason for reforming the House - to provide a democrat c and legitimate check on the work of the Commons - would be atrophied. (xi) Hadfield had also noted that elections might also result in 2 different parties gaining control of 1 House each, creating the prospect of a legislative deadlock. Both will then claim a mandate for their actions and each claiming a superior mandate to the other. (xii) If both Houses are democratically accountable and representative, 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. (David Feldman) (xiii) Counter arguments are that The prime minister must command a majority in the Commons, not the Lords. A vote of no confidence in the Commons is fatal, in the Lords not. Political power will continue to reside in the Commons and, as a result, political talent will be concentrated there. The spotlight of media attention will continue to focus on the Commons, not the Lords. (xiv) Should the Lords be subjected to a more proportional voting system, and then curious glances would be cast on the legitimacy of the Commons - surely the Lords would boast of a superior mandate! As such, 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.

Page94 9.6 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. Whilst it is possible for members of other faiths to be appointed to the Lords by being made a Life Peer, this is no where near

an automatic entitlement to a guaranteed number of places. Historically justifiable, such representation is however no longer tenable in age where the values of multiculturalism and secularism pervade. (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. As a result, the PM enjoys great patronage. To address such criticisms, Mr Blair establishes the HOL Appointments Commission which is a non-statutory, non-departmental public body, attached to the Cabinet Office. (iv) Statistically, it has been noted that approximately one third of former government ministers will receive life peerages. Peerages are conferred by the Crown on the advice of the Prime Minister. 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. Currently, there is no formal mechanism by which a balance between the parties can be established and maintained against the wishes of the Prime Minister. (v) If the Prime Minister insists that the working life peers should reflect the political partys strength in the House of Commons, as did Margaret Thatcher and as was the case with the Conservative government being in power for a continuous period of 18 years, there is an inbuilt bias in appointments. (vi) This was the stark reality the Labour Government had to face when it took over in 1997. In order to overcome the political imbalance, the Prime Minister appointed an unprecedented number of life peers, intended to be working peers, actively participating in the work of the Upper House. 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. (see below). (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. Was the decision to delay the second stage a political one, i.e. to fortify the Labour bias in the House of Lords? (viii) Nonetheless, it remains the case that ultimately, it is the PM who makes the final recommendation to the Queen who by convention would rarely question such nominations. The current cash for peerage affair nicely illustrates the fact that the Commission has not helped to lessen the PMs powers of patronage.

Page95 9.7 HEREDITARY PEERS (i) With the House of Lords Act 1999 (HLA), hereditary Peers are no longer entitled to membership of the Lords. Where there were 1,295 members in 1999, only 695 survived the following year. (ii) Peers, both hereditary and life, are spared from accountability to the electorate. Whilst MPs are voted in on account of merits, peers are largely viewed as hacks of the PM, more so with the ongoing

cash for honours saga. Unlike MPs, peers do not hold the electorates mandate but curiously, still brandishes legislative powers. 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.

9.8 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, as a first step, the voting rights of the hereditary peers. The governments ultimate objective was to as stated in its election manifesto was to replace the current House of Lords with a newly elected second chamber, elected under a system of proportional representation. (ii) This was accomplished by the House of Lords Act 1999. Pursuant to this, the right of members of the Royal family to vote in the House of Lords was removed. While it had been intended to remove the rights of all hereditary peers to sit and vote, threats to the House of Lords Bill from the Majority of the conservative hereditary peers persuaded the government to allow 92 peers to remain. (iii) In the deal brokered by Viscount Cranborne, the then Conservative leader of the Lords, the remaining hereditary peers would be elected by the hereditary peers themselves. (iv) In essence by the HLA 1999: a. It trimmed the HOL by evicting 655 hereditary peers from the chamber. b. With the Weatherill amendment, all but 92 remained. It was envisaged that these 92 would eventually be phased out by natural wastage. (v) Thereafter, the Wakeham Commission was set up. a. It proposed that there should be no major changes to the chambers powers or to its functions, although it should take on additional responsibility for scrutinizing constitutional matters and for reflecting the devolution settlement. b. The chambers members should largely be appointed with only 12% to 35% elected to represent the nations and regions. c. They would serve longer terms of office, and there would be a new statutory appointments commission to choose the appointed members. d. Discontent was abounding as to the suggestion that the chamber is to stay largely unelected. A poll in September 2000 found that 78% expressed a preference for a majority elected element in the reformed House. e. Nonetheless, the government broadly welcomed the Wakeham proposals. The Labour 2001 general election manifesto included a commitment to implement the Wakeham proposals in the most effective

way possible, to reform the House to be more representative and democratic and specifically to remove the remaining hereditary peers.

Page96 (vi) The governments White Paper, The House of Lords: Reform, Cm 7027, was published on 7 February 2007. Introducing the White Paper, The Rt Hon Jack Straw MP stated that the Lords should neither be a rival nor a replica of the Commons, but nor should it simply rubber stamp government proposals. 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, with a proposed 20 per cent non party political element and 30 per cent appointed party political representation. Elections would be held at the same time as European Parliament elections in 2014, 2019 and 2024. Retired Law Lords should be appointed as part of the non-political cohort. Appointments will be made by a statutory appointments Commission. (viii) The existing conventions which regulate relations between the two Houses should continue. The government proposes a two-stage consideration of the proposals. First a paving motion, then a free vote on the various options for the elective and non-elective elements based on an alternative vote system. (ix) On 14 July 2008 the government published its White Paper, An Elected Second Chamber, further reform of the House of Lords, 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). The White Paper is the result of cross-party discussions designed to reach wide-ranging consensus on the issue of reform. (x) The major provisions include:

(a) a 100 or 80 per cent elected chamber the voting system for elections will be either first-past-thepost, 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, possibly to around 430 (f) new members will be elected in thirds, 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, a statutory Appointments Commission will be established (k) appointments would be made on the basis of an individuals willingness to take part in the work of the chamber (l) the name of the second chamber will change, possibly to the Senate. (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. The White Paper states that whereas in the 19971998 session, the 19981999 session and 19992000 session the government suffered 39, 31 and 39 defeats in the Lords respectively, in the 20012002 to 20062007 sessions the government suffered an average of 60 defeats per session. The government intends that the reformed second chamber should complement rather than rival the Commons, and does not foresee any major change in the powers of the House of Lords. The Parliament Acts and current conventions would remain. (xii) The previous Labour governments Constitutional Reform and Governance Bill 2008 2009 to 2009 2010 represented the most recent proposals for constitutional reform. This is a wide-ranging Bill covering a number of different areas, many of which were considered in the Green Paper, The Governance of Britain 2007. In summary, 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

(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, 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. (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. (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. Nonetheless pressure from its Liberal Democratic allies, especially Nick Cleggs commitment to reform of the House of Lords coupled with electoral reform. 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. 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, 27 of them being Conservative, 15 Liberal Democrats and ten Labour peers. The total number of peers is now 792. 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. There are over 200 crossbenchers. 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. All parties are agreed that the powers of a reformed Upper House should not rival the power of the House of Commons. The Leaders Group on Members Leaving the House chaired by Lord Hunt of Wirral, has made recommendations relating to voluntary retirement and leave of absence of Members of 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. Anyone failing to respond would be automatically granted leave of absence. A return to active membership would require a three month period of notice. On retirement, it is recommended that there should be arrangements established to enable peers to retire permanently from the House.

Page99 Chapter10: PARLIAMENTARY SCRUTINY OF THE EXECUTIVE CONTENTS:

10.1 Introduction 10.2 Debates 10.3 Early Day Motions (EDMs) 10.4 Question time 10.5 Select Committees 10.6 Public Accounts Committee (PAC)

10.1 INTRODUCTION (i) The close fusion between the executive and the legislature was described by Bagehot as the effective secret of the British constitution. (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, almost all the terms of almost all (government) Bills are settled (iii) J.S. Mill has said, the proper office of a representative assembly is to watch and control 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. (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.

10.2 DEBATES (i) The major part of Parliamentary business is at the hands of the government. Alongside QTs, debates take centre stage in the exercise of scrutinising the executive. (ii) Although a greater share of general debates will be decided by the government, the opposition has 20 days on which it can dictate the subject matter. The provision of 20 Opposition Days ensures that the Opposition can dictate the business of the day, pressing the government to debate matters it would otherwise prefer not to address. (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. Bradley and Ewing observe, Opposition Days do not necessarily satisfy the needs of backbenchers of scrutinising ministers.

Page100 10.2.1 Daily Adjournment Debates (i) At the end of the days business, under Standing Orders, backbenchers are given the opportunity to initiate a short debate on a matter of their choosing. (ii) These debates last 41/2hours in total, with 2 long debates of 90 minutes each and 3 short debates of 30 minutes each. This thus affords more time for questioning ministers than QTs. (iii) Competition for debate is keen and to grasp this opportunity, Members take part in a ballot held in the Speakers Office. A successful Member may speak for 15 minutes on the chosen subject and the relevant minister is given 15 minutes for reply. (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. 10.2.2 Emergency Debates (i) Standing Orders provide that any Member may apply to the Speaker to raise an urgent matter for debate. If granted, 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. (ii) Due to the disruption they bring to the strict parliamentary timetable, only matters deemed to be urgent national importance may be thus raised. Understandably, successful applications are sparse; the norm being 1 or 2 per session. 10.2.3 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. (ii) When a debate on the Iraq War came up on 24 Jan 2007, the PM chose to address the Confederation of British Industry (CBI) rather than attend the first House of Commons debate on Iraq, despite the intervention having cost Britain her 130th serviceman. (iii) Mr Blair has defended himself by saying that he will inform MPs on progress there in the near future. In the aftermath of Mr. Blair skipping the debate on Iraq, Downing Street has defended him by saying that it is normal for the PM to be absent from adjournment debates. (iv) CBI Conferences are organised months ahead, as is Mr Blairs diary so it is bewildering why a little rescheduling was not done. (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, preferring to speak to big business. It is a shocking negation of his responsibilities.

(vi) William Hague, the shadow foreign secretary, called it unthinkable that an Atlee, a Churchill, a Callaghan or a Thatcher would not be here to debate at a time of war. (vii) This shows the true price of missing a vital debate: a media barrage with no legal consequences. If this is the case, then no matter how forceful the artifice of debate is, it may simply be sidestepped by not at ending one in the first place! (viii) After that six-hour debate on Iraq, rebel Labour MPs failed in a bid to stage a symbolic show of defiance over the governments Iraq policy. Their attempts to force a vote were scuttled. (ix) As Erskine May noted long ago, adjournment debates are not followed by a vote of the House. Moreover, there is no means of probing behind ministerial statements.

Page101 10.3 EARLY DAY MOTIONS (EDMS)

(i) Any MP may table an EDM, on any subject matter, subject to a few procedural rules. Tablingan EDM not only enables the Member to air his view and request a debate, but also helps him to gauge the strength of feeling in the House over the said matter.
(ii) An EDM may be tabled by one Member or by several, and other Members may add their names in support. Once tabled, an EDM remains current for the duration of the parliamentary session. (iii) As with other motions, they must be worded in parliamentary language, not relate to a sub judice matter and must be no more than 250 words long. 10.3.1 Strengths of EDMs (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. (ii) The 1988 EDM tabled by Tory front-benchers, Norman Tebbit and Michael Heseltine successfully caused Kenneth Baker, the then Secretary of State for Education, to amend the Education Reform Bill. (iii) More recently, rebel Labour MPs tabled an EDM to debate the recent Carter review into the legal aid service. In the 2000-2001 sessions, 1854 EDMs were tabled. (iv) The rules and restrictions on EDMs are sparse in number. EDMs may be tabled on any subject, subject to that matter not being sub judice. (v) Hilare Barnett notes that they provide an important outlet for the expression of views across party lines. According to her, EDMs represents an expression of the mood of the House across a whole spectrum of issues which places pressure on the government to respond.

10.3.2 Weaknesses of EDMs EDMs yield very little debates. The 1979 EDM according to Barnett, is a rarity both in terms of resulting in a debate and in bringing down a government.

10.4 QUESTION TIME 10.4.1 Ministerial QT (i) QT, as the Standing Orders provide, are held from 2.35pm to 3.30pm on every Monday, Tuesday and Thursday. (ii) After 3.30pm, 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. (iii) Appearing on a rota to be decided by the government, minister from several departments may field questions. This ensures that most departments are featured in QT at least once every 3 to 4 weeks. In the main, departments may refuse to answer a question if the cost of doing so exceeds the advisory cost limit of 600 for written answers. No such ceiling exists however in relation to oral answers. (iv) The Speaker would call the first Member listed on the Order of Business who will then ask the questions. Thereafter, the Member may ask a supplementary question and when that has been answered, the Speaker may call on other Members to ask their supplementary questions. (v) A Member is allowed only 2 supplementary questions each. Time allocated for supplementary questions is at the Speakers discretion. Such supplementary questions provide an avenue whereby a Member may forward a question for which no notice has been given. 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. (vi) Questions may be forwarded to ministers for either oral or written answers. 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. (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. It is for the minister to decide whether and how to reply to questions.

Page102 (viii) An individual MP may have 8 questions pending at any one time during a period of 10 sitting days, and not more than 2 on any 1 day, of which not more than 1 may be addressed to any 1 minister.

(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, (a) from the 2 previously, now MPs are allowed up to 5 written questions on any 1 day; (b) reductions were made to the number of questions for oral answer printed on the Order Paper; (c) MPs may now electronically table questions; and (d) oral questions may be put to junior ministers. (e) As an experiment, MPs may now question several ministers on policy areas for which they have overlapping responsibility. 10.4.2 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. (ii) Questions put to a PM here simply request that the PM lists his engagements for the day. The open question averts the possibility - given the notice requirement - that a supplementary question put to the PM will be politically stale (Barnett). They provide what Barnett calls the neutral peg on which to hang a supplementary and real, question. (iii) A supplementary question may concern any matter for which the PM carries responsibility or matters which do not fall within any individual ministers responsibility. 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. (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. (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. (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. This is where the Prime Minister can be most critically tested... Success or failure on these occasions can greatly strengthen or seriously weaken the political standing of the two protagonists. (iii) That QTs are televised ads to the potency as this ensures that MPs are subjected to full public gaze.

(b) Weaknesses: As with ministerial QT, convention again fences up a large swathe of area from being the subject of questions e.g. the exercise of the royal prerogative, stonewalling.

Page103 10.4.3 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. (ii) They relate to matters which in the Speakers opinion, of an urgent character, and relate either to matters of public importance or to arrangement of business. (Standing Orders). They provide the avenue by which matters of urgency could be raised for immediate discussion right after the conclusion of QTs. (iii) The disclosure that the attorney general, Lord Goldsmith, believed intervention in Iraq would be unlawful less than two weeks before the invasion which came in the resignation letter of Elizabeth Wilmshurst, deputy legal adviser at the Foreign Office, who resigned in protest at the war, forced Jack Straw, the foreign secretary to answer an urgent question from the shadow attorney general, Dominic Grieve. (iv) They assume priority over other parliamentary business and because of this, 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. (v) The Speaker commands the absolute discretion as to whether to allow the said question to be forwarded. Of course, by their very nature, permission to put such questions is rare and few. 10.4.4 Strengths of QTs Generally (i) There is no denying as to the dynamism QTs bring to the scrutiny role of Parliament. In the short 2004-2005 session which lasted a mere 6 months, 23, 730 questions were forwarded which translates to 10% of parliamentary time. (ii) QT is pre-eminently a device for emphasizing the individual responsibility of ministers (Chester and Bowring).Sir Chester points out that many decisions in a department will be taken at a low level without the ministers actual accord or knowledge. (iii) The tabling of a question which queries this decision and the investigation that follows will bring the decision to the ministers attention. The minister will have to then justify that decision (and as a result bring it to the publics gaze) or modify departmental policy if that was not the result intended.

10.4.5 Weaknesses of QTs Generally (i) The breadth of matters which may not form the subject of a question impairs the effectiveness of QTs. Only questions on matters resting squarely with a ministers responsibility may be put to that minister and even then, convention dictate that a range of issues may not be asked, and they include, inter alia: (a) questions bringing the Sovereign directly before parliament or questions reflecting on the Sovereign; (b) questions concerning issues on which the PM has given advice to the Crown in respect of the royal prerogative; (c) questions which have been previously put, or on which a minister has previously refused to answer, or to which the answer is a matter of public record; (d) defence and national security; (e) trivial or irrelevant questions; and (f) questions on matters which are sub judice. (ii) Sir Scott had considered these categories as in need of serious and urgent revision. As can be seen, these matters are mostly matters which fall as prerogative powers. As it is, being matters which are nonjusticable following the case of GCHQ, they are now once again left beyond the purview of Parliament. Lacking both political and judicial controls over them, this means that, de facto, the executive may exercise them in any fashion as it wishes free from prying eyes, save perhaps those of the media. (iii) Persistent complaint from MPs monitored and publicised by reports from the Public Administration Committee, that answers are often partial, that they disregard part(s) of the question, or that they are given late. (iv) The enactment of the Freedom of Information Act 2000 is littered with wide-ranging exemptions, even broader than those ensconced in the Code. In particular, there is a class exemption in relation to all information relating to the formulation or development of government policy.

Page104 (v) Moreover, 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, as made possible by the notice requirements. (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 its views or to boast its accomplishments via planted questions.

(vii) Indeed, it is not mandatory for the ministers to answer the questions thus posed. An answer to a question cannot be insisted upon, if the answer be refused by a Minister. (Erskine May) (viii) An answer to a question cannot be insisted upon if the answer is refused by the minister; 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. (x) By contrast, 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 questioners known interests and concerns in an attempt to foresee and prepare the minister for possible supplementaries. (xi) To even out this, 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. To date, this has not been realised.

10.5 SELECT COMMITTEES 10.5.1 The Structure (i) Select Committees include: (a) Those that relate to the running of the Commons itself; (b) Those that relate to the procedures of the House; (c) Departmentally-related SCs which play an investigative and reporting function. The current system of such committees was established in 1979 following the recommendations of the SC on Procedure. They are responsible for examining matters within the Department to which they are entrusted and to report to the House. (d) at any one time, ad hoc SCs set up to investigate and report on a specific matter. (ii) Another Select Committee is the Liaison Committee. This committee, established in 1967, shoulders the task of co-ordinating the work of SCs. 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. (iii) The function of the Liason Committee is to: (a) consider general matters relating to the work of SCs; and (b) to give such advice relating to the work of SCs as may be sought by the HOC Commission.

(iv) The Joint Committees. There also exist a number of joint SCs composed of members drawn from both Houses, the most notable of which is the Joint Committee on Human Rights with a remit which includes the examination of proposed legislation.

Page105 10.5.2 Membership of SCs (i) Unlike Standing Committees, membership of SCs lasts the life of a parliament. This promotes stability of membership and thereby affords an opportunity for Members to develop expertise in the subject matter. (ii) The majority of Committees have 11 members. Each has a permanent staff of around 3 to 4 members. By convention, membership is largely limited to backbenchers. (iii) The Leader of the House, the government Deputy Chief Whip and the Financial Secretary to the Treasury represent the only ministers who are members. Opposition front-benchers are not appointed to SCs. (iv) Political party whips exercise great influence, if not total, control, over membership. Party whips make nominations to the Committee of Selection, itself a SC, which in turn reports to the House for approval. (v) The strength of each political party in the Commons is largely mirrored in the membership of SCs. Chairmanship of the committees does not invariably fall to Members of the ruling party - it is open to any Member of any party. (vi) It is the result of negotiation between the government and the Opposition. Once a decision has been made, it is for the committee members, under the advice of the whips, to formally elect the chairman. Committees are serviced by Commons clerks and they may appoint specialist advisers. 10.5.4 Workings of the SCs (i) It is for the SCs themselves to determine, within the boundaries of the work of the department, what subject matter to inquire into and to decide what evidence it needs to aid its examination. No governmental approval is needed. Accordingly, every aspect of government administration is potentially susceptible to inquiry. (ii) It is not unusual for committees to vote on party lines though this may be justifiable in respect of highly controversial matters. Upon the conclusion of an inquiry, an authoritative, unanimous report will be drawn up to be presented to parliament. (iii) Powers of SCs (a) to send for persons, papers and records;

(b) to sit notwithstanding any adjournment of the House; (c) to adjourn from place to place; (d) to appoint specialist advisers, either to furnish them with information not readily available or to explain matters of complexity not within the committees terms of reference. (e) Some SCs would even have powers granted by the Standing Orders to establish sub-committees.

Page106 10.5.5 Strengths of SCs (i) The then Leader of the House, the Rt Hon Norman St. 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...an important contribution to greater openness in government. (ii) As Griffith and Ryle noted, there are clear indications that the existence of select committees has affected the way government business is conducted... 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. (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, analysis and ideas; they had made the political process more accessible; and they had provided a much-needed climate of Parliamentary accountability. (iv) Standing Committees unlike SCs, 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. Despite the allegations of partisanship in SCs, it remains true that most Committee reports are unanimous and many are critical of government policy. (v) The Social Services Committee brought a report which was critical of the government-introduced Social Fund shortly before the 1992 General Election. (vi) More recently, 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. (vii) The SCs ability to send for people and papers mark them out from any other artifice of securing the Executives accountability.

(viii) In 2002, Mr Blair, bidding farewell to the previous convention that a PM is exempt from questioning by SCs, announced that he would make himself available for questioning, once a year, by the Liaison Committee, a SC composed of the chairs of the departmental SCs. The first of such sessions took place in July 2002 and was generally agreed to have gleaned important insights in particular into Mr. Blairs views on the internal running of his government. (ix) Key recommendations made by the Liaison and Modernisation Committees were adopted by the Commons in 2002 and they include greater resources for SCs, including making available assistance by the National Audit Office and more support staff. 10.5.6 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. Indeed, where this cannot be ensured, the SC is not formed, as happened with the Scottish Affairs in 1987 when there were few backbench Tory MPs from Scotland to participate (Budge, Crewe, McKay and Newton). (ii) The Liaison Committee has expressed concern about the system for nomination of members being too much under the control of the Whips, with members kept off or removed on account of their views. (iii) Party influences also make themselves felt in internal division on the committees, 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. (iv) Similarly, there was an impasse in the Employment Committee on whether or not British Coal should reinstate miners sacked during the 1984-1985 strike, with one Tory MP siding with Labour on this issue. (v) However, an incident in July 2001 indicates that blatant attempts to keep known independentlyminded and critical MPs off SCs would spark off a backbench rebellion. Following the July 2001 election, the government sought to remove 2 chairs of SCs - Gwyneth Dunwoody and Donald Anderson - and this motion was rejected in a large rebellion by Labour MPs. (vi) The SC on Procedures 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. This results in there being no formal requirement that the government to co-operate with SC. (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. On the whole however, this promise has been found by a study of the SC by Nevil Johnson as having secured a satisfactory degree of co-operation from ... both ministers and officials

(viii) Whilst for most parts co-operation is indeed extended, there are limits to it. Precedents were set when Lord Young - over the privatisation of Rover cars - and Sir Leon Brittan - over the sale of Westland Helicopters - successfully refused to answer select committee questions. (ix) In the aftermath of the Westland affair, the government refused to allow witnesses from the DTI, in particular the Director of Information, to whom a leak of the Solicitor Generals letter had been attributed, to give evidence to the SC on Defence. (x) The governments 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, in particular the 3 pillars of the civil service - permanence, impartiality and neutrality. Moreover, 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.

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. (b) Those civil servants concerned would be unable to explain or defend their actions. (xii) In the Arms to Iraq affair, in a decision criticised by Sir Richard Scott, 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. (xiii) In 2003, 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 Husseins military capabilities, revealing him as the source for this information. (xiv) In contravention of the Osmotherly Rules, Dr Kelly was not questioned as to the governments policy but rather his own role in the preparation of the dossier and his relationship with journalists. 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. The Hutton Inquiry subsequently cleared this decision to call for Dr Kelly as one which could not be subject to valid criticism. (xv) In the salmonella in eggs affair, 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, not Ms Currie, to decide whether or not she should give evidence. In any event, her evidence proved unhelpful just as she indicated them to be. (xvi) When seeking to elicit information in the early 1990s from Ian and Kevin Maxwell, the brothers refused, relying on a claimed right to silence in the light of imminent criminal charges and the risk of

jeopardising their own fair trial. The Social Security Committee was divided across party line on how hard to push. At least one Labour member was worried that, if they insisted on the brothers answering their questions, it would play right into the hand of the Tories who had wanted more general restrictions on the right to silence. The committee chairman recommended for the Maxwells to be charged with contempt of parliament but no action was taken. (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. (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. (xix) In 1984, 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. (xx) This is not a problem exclusive to civil servants. The former PM, Margaret Thatcher, refused to attend the inquiry of the Foreign Affairs Committee into the Pergau Dam affair. (xxi) If a Committee is seriously dissatisfied with a refusal to divulge information, the matter could be put forward for debate in the House and a finding of contempt of Parliament would then be possible. Indeed, in 1981, the Leader of the House gave a formal undertaking that the government would seek time for such a debate. (xxii) Committees have however been heavy-hearted to invoke contempt proceedings, being content to allow bad publicity as the chief sanction of such refusal to attend. (xxiii) Having secured their attendance, the SC may find itself hampered by the Osmotherly Rules which were penned following the Arms to Iraq affair, which while providing that where a SC indicates that it wishes to hear evidence from named civil servants, Ministers should normally accept such a request, they may also highlight those matters which a civil servant should not give evidence.

Page108 (xxiv) The basic rule would be that civil servants should give evidence on behalf of the minister and under his instructions. 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. (xxv) Nonetheless, where the Committee does not agree with this, it may issue an order for attendance, and request the House to enforce it.

(xxvi) In its second report, the SC on Trade and Industry stated that in the vast majority of previous Committees, no serious problem has arisen. However, in the words of the Liaison Committee, the SCs record in obtaining documents is where most difficulties have arisen. (xxvii) The Committee found that the governments promises to make time for a Commons debate on refusals to provide requested documents not being properly honoured. It recommended that the onus should be shifted onto the government to defend in the House its refusal to disclose information to a SC. (xxviii) The ability of committees to elicit information from civil servants is further limited by the Armstrong Memorandum, which was adopted by the then Head of the Civil Service, Sir Robin Butler, who had explained that the duty of civil servants to their ministers were similar to that owed by military personnel to their commanding officer. Thus, they could only respond to committees, or indeed appear before them, if this had been approved by the minister. (xxix) The amount of reports published by SCs which will be debated on the floor of the Commons is only one-third, although in recent times, more time has been devoted for debate on reports. There is no specific Parliamentary procedure which specifically provides for such debates. (xxx) Barnett however insists that there are 4 factors which mitigate this: (a) Successive governments have undertaken to respond to SC reports. (b) A ministers 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. This explains the high degree of ministerial co-operation with committees commonly seen. (c) SC reports form part of the public record available to all. (d) The absence of debate on the floor of the House in many cases will be justified by the pressure on the parliamentary timetable. (e) On many matters, 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. (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. They also have a much more marginal role in scrutinising legislation, which is the principal function of the parallel committees in some other parliaments.

Page109 10.6 PUBLIC ACCOUNTS COMMITTEE (PAC)

(i) Scrutiny over national finances forms a vital clog in the machinery of the Commons control of the executive and this clog is manifested as the PAC. (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, as the committee may think fit. (iii) Although the Commons political equilibrium is once again mirrored in the PACs composition, it is, as De Smith lauds, scrupulously non-partisan, while the value of its investigations is greatly enhanced by the fact that the Comptroller and Auditor General (CAG) sits with it. (iv) With the Government Resources and Accounts Act 2000, the PAC has been given a boost. By convention, the PAC chairman hails from the Opposition. (v) It has the power to send for persons, papers and records and to report from time to time. Its principal designation is to ensure that public money is being spent for purposes intended by parliament and that too, effectively and economically. One day per parliamentary session is specifically allocated for debates of its reports. 10.6.1 Strengths of the PAC (i) In the early 1980s, it exposed the inadequate notice given to the House of the spiralling costs of the Polaris Enhancement Project which had ballooned to 1,000 million from the estimated 175 million. It managed to secure the governments promise that in would in the future furnish the Commons with adequate financial information about defence costs. (ii) The CAG enjoys a great degree of independence, being an officer of the House and not the government as well as being assisted by a staff of several hundreds. He can only be removed from office for misbehaviour only on the successful moving of an address to both Houses of Parliament. (iii) Barnett states that the independence of the CAG from the government, backed by the non-partisan PAC as a powerful watchdog over the administration of government and the expenditure of public money.

10.7 STANDING COMMITTEES (i) Upon conclusion of the second reading of a Bill, it will automatically stand committed to a Standing Committee for detailed scrutiny, clause by clause, save the Commons orders otherwise. (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; (b) beyond the scope of the Bill;

(c) conflict with other proposed amendments; (d) conflict with the principle of the Bill; or (e) unintelligible, ineffective, vague or spurious. (iii) Such committees are not permanent ones, being formed to examine a particular Bill and will stand down once that task has been concluded. It is argued that should Standing Committees turn permanent, the members might become too familiar with each others attitude. 10.7.1 Membership (i) They may comprise between 16 to 50 MPs although 18 to 25 is the norm. Again, like SCs, its membership is reflective of the Commons as a whole. (ii) Appointments are made by a Committee of Selection who will be advised by party whips. The Chairman, who may come from any party, 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. (iii) Standing Committee, unlike SCs, are not specialists in their areas of remit. This is justified on the basis that upon attaining a specialist composition, the myriad interests currently brought to bear upon proposals would be lost. The Committees would risk becoming inward-looking and overly concerned with one subject to the expense of others. Debates will be constricted and become too technical for the other Members and the public to fathom.

Page110 10.7.2 Weaknesses (i) Deliberations at this stage move along party political lines. Thus, the larger the governments majority, the stronger its grip will be on the Standing Committee and the less likely amendments to a Bill may be moved. (ii) As the Modernisation Committee put it, the committee stage (of which the Standing Committees play a vital role), has often tended to be devoted to political part san debate rather than constructive and systematic scrutiny, a style which is particularly unsuited to examining the factual and technical background to a Bill. (iii) Thus, as Griffith and Ryle conclude, standing committees will more often than not accept government amendments because party discipline is largely maintained. (iv) Further, 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. The political role of Opposition MPs may prevent them from undertaking constructive criticism.

(v) As Barnett states, governments with a firm majority will inevitably suffer fewer defeats in committee. Nonetheless, as Barnett submits, given the pressure on parliamentary time and the reluctance of ministers to be tied up in committee proceedings, it is unlikely that Special Standing Committees will become the standard form of procedure for scrutiny of Bills.

Page111 Chapter11: MINISTERIAL RESPONSIBILITY CONTENTS: 11.1 Introduction 11.2 Collective ministerial responsibility (CMR) 11.3 Individual ministerial responsibility

11.1 INTRODUCTION (i) The convention of ministerial responsibility (MR) represents the vehicle by which political responsibility is delivered. (ii) According to Marshall and Moodie ministerial responsibility means ministers being held responsible for the general conduct of government and ultimately, through Parliament and parties, to the electorate. (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. (iv) The doctrine has two aspects: (a) Collective ministerial responsibility; and (b) 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, who, after a decision is arrived at, remains a member of it, is absolutely and irretrievably responsible for it heedless of his/her participation in it.

(ii) It is essential for the government to close ranks and to display a united front before the Parliament and the public. A bickering government would only be viewed as a symptom of an ailing body hence attracting challenges to its authority to remain in office. (iii) According to the convention: (a) When a decision has been reached in Cabinet, all members of Cabinet - any many outside it - are bound to stand in support of it; (b) Public dissent would not be countenanced. Thus, in disagreement as to PM Tony Blairs decision to drag UK into the Iraq War, the late Robin Cook and Clare Short handed in their resignation letters.

Page112 (iv) This convention also covers decisions reached in the Cabinet Committee or the Inner Cabinet as well as to Parliamentary Private Secretaries - the lowest rung on the ministerial ladder. (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, heedless of the final decision. This is as encapsulated in the Ministerial Code. (vi) Confidentiality of Cabinet discussion is protected by the prohibition against disclosure by members of Parliament. (vii) On the issue of the publication of ministerial memoirs, 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, subject to him/her not: (a) revealing anything that contravenes the requirements of national security. 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. Furthermore papers of the previous government may not be disclosed to government of different political persuasion. (b) making disclosures injurious to the countrys relations with other nations; and (c) publishing information destructive of the confidential relationships on which our system of government is based . (viii) The convention of CMR may be relaxed in certain circumstances (Agreements to Differ). In 1975, Harold Wilson, under the banner of agreement to differ, again waived the convention in face of Cabinet division over UKs continued membership of the EC rather than risk the convention being expressly overlooked. Even so, Eric Helfer, Tony Benn and Roy Jenkins openly flouted Mr. Wilsons prohibition of ministers from publicly squaring off in a publicly televised debate.

(ix) Viewed positively, rather than risk a public display of bitter Cabinet opposition which may lead to deep scarring, these waivers allowed both camps to air their views and inform the electorate and to later mend the rift.

11.3 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, whether he does it or not. To preserve the qualities of anonymity, neutrality and permanence of the Civil Service, blames and praises alike fall upon the minister. (ii) In addition, IMR also dictates that a minister should be responsible for his or her personal conduct. 11.3.1 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. (ii) Thereafter, between 1954 and 1982, no resignations letters were tendered despite allegations and inquiries into serious defects in governmental administration. (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), nor for an overpayment of some 4 million to the Ferranti company due to lack of co-ordination with ministry of Aviation, nor did Mr William Whitelaw resign over a breach of security which resulted in an intruder entering the Queens bedroom. (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. In debate, Prior distinguished between responsibility for policy and failure of officials to follow orders and procedures.

Page113 (v) It was only in 1983 with the Falkland saga that Lord Carrington resigned following allegations, which he denied, over the lack of preparation of the British forces when the Argentineans attacked. Besides the fall of Mr Heseltine, the Westland Helicopter saga also witnessed the resignation of Mr Leon Brittan for his leaking of the Solicitor-Generals letter. (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. (vii) The Scott Report, commissioned after the Arms to Iraq Affair, found that:

(a) Answers given by William Waldegrave in response to inquiries by MPs were not accurate and were apt to misled albeit unintentionally. 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. (c) Earlier at trial, the government produced public immunity certificates prohibiting the disclosure of documents which could have led to the acquittal of the defendants. The government claimed the right to do so on grounds of public interest and that the case was a class claim, i.e. that it involves matters of high policy. (viii) Despite such findings, there were no resignations. When the report was debated in the Commons, the government survived by one vote. (ix) In 2004 an inquiry, chaired by Sir Alan Budd, was established to look into allegations that the Home Secretary, David Blunkett, had used his position to fast track an application for a permanent residency visa for the nanny of his former lover Kimberly Quinn, a married woman who allegedly had Blunketts child and was expecting a second child in 2005. The inquiry reported in December and on 15 December the Home Secretary resigned. The inquiry found that correspondence relating to the allegation had come from the Home Secretarys office. David Blunkett denied personal involvement but took responsibility for the actions of his civil servants. The affair and the visa matter were not the only causes of Blunketts resignation. 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. Mr Blunkett had voluntarily admitted providing the ticket, considering Mrs Quinn to be his partner. The money had been repaid and no further action was to be taken. In addition, there had recently been published a biography of Blunkett in which were quoted candid and damaging opinions about his Cabinet colleagues. Those comments, taken together with his conduct relating to Mrs Quinn, resulted in his resignation. (x) According to Hilaire Barnett, several factors have loosened the grip of this convention. The increasing size of governmental departments, the short years of ministerial office and the complexity of government etc have rendered the pure doctrine unworkable (Barnett). This has lead to distinction between accountability (i.e. the minister being accountable for his department) and responsibility (i.e. for acts in which he has a certain degree of personal culpability). From the David Blunkett episode, 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. (xi) Since Lord Carringtons resignation in 1982, ministers have been resolutely reluctant to resign for errors by civil servants. (Bradley and Ewing).

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11.3.2 Responsibility for Personal Conduct (i) The most elementary qualification demanded of a Minister is honesty and incorruptibility. (Jennings). According to Prof Finer, it is a personal misadventure of the minister which raises such doubt about his personal prudence or integrity warrants his resignation. (ii) In 1963, Mr John Profumo left office, not so much over his affair with a prostitute, Ms Christ ne Keeler, but the contempt of the Commons committed through his dishonesty over the affair. Similarly, Lord Lambton resigned from office over his involvement with illegal drugs. Earl Jellicoe Leader of House of Lords was evicted from office over his involvement with prostitutes. (iii) Lord Denning, while chairing the inquiry into the Profumo scandal, voiced that there should be no inquiry into politicians private lives by security services other than where state security was under threat. (iv) When revelations as to Mr Cecil Parkinsons affair with his secretary, Sarah Keays, who became pregnant, first surfaced, the then PM, Mrs Thatcher, the Tory party and his wife stood strongly behind him. It was only when Ms. Keays published a series of articles in the national press, which contained allegations that Mr Parkinson wished to marry her, did public and political support for him ebb, bringing about his downfall. (v) In 1992, revelations of Mr David Mellors relationship with an actress and his receipt of gifts came to light. Recent ministerial resignations involving allegations of financial imprudence- although in each case there were additional factors involved in the resignations include, as noted above, David Mellor, the Heritage Secretary, who resigned following a mixture of allegations, one of which involved the receipt of a free holiday from a woman with Palestinian Liberation Organisation associations. Despite being an excellent Heritage Secretary, 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. Alan Amos and Michael Browns friendship with a male companion marked their fall. (vi) The Minister for Northern Ireland, Michael Mates MP, resigned office after it had been revealed that Mr. Mates gave to the businessman Asil Nadir, who faces prosecution on charges of theft and fraud, an inexpensive watch, shortly before Mr. Nadir fled the United Kingdom. A subsequent allegation was made that Mr. Mates accepted the loan of a car from Mr Nadir for his ex-wifes use and he ultimately resigned despite claiming to have the full support of the Prime Minister. (vii) Further embarrassment was caused to the government in 1994, when it was alleged that Jeffrey Archer, former Conservative Party Chairman, had been involved in share-dealing in Anglia Television, on whose Board of Directors his wife held a directorship. Also in 1994, allegations were made that Members of Parliament had accepted payment for asking parliamentary questions. This affair escalated into a full-scale judicial inquiry into standards in public life, and to a tightening of the rules regulating the financial interests of all members of the House of Commons.

(viii) 1998 saw culmination of the long running inquiry into the financial affairs of Geoffrey Robinson, the former Paymaster General, when in December both Robinson and Peter Mandelson, Secretary of State for Trade and Industry, resigned. Peter Mandelson had been a leading architect in making the Party electable and a pivotal figure in the general election campaign. However, it was revealed that Mandelson had accepted a personal loan from Robinson to finance the purchase of a London Home, and that the loan had not been disclosed. While protesting that he had done nothing wrong, resigned. (ix) Mandelson returned to ministerial office in 1999 as Secretary of State for Northern Ireland, 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. (x) In 2005 the resignation of the Work and Pensions Secretary, David Blunkett, discussed above, was in part prompted by allegations concerning shares in a company which was due to bid for a government contract. (xi) The cash for question scandal of 1994 ensued in the tightening of rules regulating the financial interests of all members of the Commons. (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. (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.

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. (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 - a requirement breached by Mr Blunkett in 2005. (xv) In the 2005 Ministerial Code, Ministers were advised to consult the Appointments Committee before accepting positions. Failure to seek the advice of the Committee was one of the grounds on which David Blunkett, former Home Secretary, resigned. The Code of 2007 makes this compulsory, stating that:

On leaving office, Ministers must seek advice... about any appointments or employment they wish to take up within two years of leaving office, apart from unpaid appointments in non-commercial organizations. Ministers will be expected to abide by the advice of the Committee. Ministerial Code, paragraph 7.25. (xvi) In 2007 an Independent Adviser on Ministers Interests was introduced. They will oversee the publication of a report listing Ministers outside interests and will also investigate alleged breaches of the rules. (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. 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. (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. (xix) The Committee distinguished between rules regulating financial conduct and those regulating sexual conduct. For the former, there need to be clear enforceable rules. As for the latter, whilst it was acknowledged that sexual improprieties may at time be relevant to the performance of a ministers public duties, no hard and fast rule could be laid down to govern this sphere. Ultimately, the PM should be endowed with the power to decide whether a minister has upheld the required standard. (xx) Hilaire Barnetts view is that when the standard of conduct is lowered and the esteem of a government damaged by lack of integrity, then some action is needed. (xxi) The Work and Pensions Secretary, Peter Hain MP, resigned in January 2008 following allegations that he accepted over 100,000 in donations which were not registered. 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. (xxii) The Transport Secretary, Ruth Kelly MP, resigned her ministerial post unexpectedly in September 2008 to spend more time with her family. (xviii) In a Cabinet reshuffle in early October 2008, Gordon Brown brought the EU Trade Commissioner and twice-resigned former Cabinet minister Peter Mandelson back into Cabinet as Secretary of State for Business, Enterprise and Regulatory Reform. He was awarded a peerage in order to return to Cabinet. (xxiv) In June 2009 the Department for Business, Innovation and Skills was formed by merging the Department of Business, Enterprise and Regulatory Reform (formerly the Department of Trade and Industry) and the Department for Innovation, Universities and Skills. Lord Mandelson is Secretary of State for Business, Innovation and Skills. A new department has been created: the Department for Energy and Climate Change was established on 3 October 2008.

Page117 Chapter12: THE HUMAN RIGHTS ACT 1998 CONTENTS: 12.1 Incorporation into UK Law 12.2 The Human Rights Act 1998 12.3 The Convention Rights 12.4 The European Court of Human Rights 12.5 The Approach of the European Court of Human Rights & Examples of the Conventions Application in English Law 12.6 The Approach of English Courts to Convention Rights and Interpretation of Domestic Law 12.7 Who Can Bring an Action and Against Whom Can Actions be Brought? 12.8 The Dramatic Effect of Article 6: Repositioning the Judiciary in the UK Constitution& observance of due process

12.1 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), located in Strasbourg. The ECHR had the power to rule that UK is in violation of the convention, though this had little impact on domestic law or legislation. (ii) Prior to 2000, an individual could not assert his Convention rights through the domestic courts. Judges of the UK were powerless to apply it. In 1996, the Labour opposition issued a consultation paper on their plans to incorporate Convention rights, should they be elected. This suggestion was opposed by the then Conservative government on the basis that the domestic law afforded sufficient protection for individuals. In 1997, the New Labour Government published a white paper, Rights Brought Home. (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.

Page118 12.2 THE HUMAN RIGHTS ACT 1998

(i) Section 1 and Sch.1 of the HRA 1998 restate Conventions and Protocols as part of UK law with the exception of Art 13. Article 13 would have given a remedy for violation in any court or tribunal. The Government did not want to give citizens these powers. The Government felt that they could seek remedies in the higher courts, 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, decisions or declarations of the ECtHR, and opinions or decisions of the Commission or the Committee of Ministers. This does not mean that the Courts decisions are binding. [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, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. Section 6 of the HRA 1998 makes it unlawful for any public authority including any court or tribunal, to act in a way incompatible with a Convention right. (iv) Any party to any legal proceedings can rely on a Convention right. This means, for example, that it can be used to apply for a stay (stop) of proceedings, or as a defence, or a ground of appeal or to found an application for judicial review. If a court or tribunal is satisfied of a violation, they may award anything appropriate within their jurisdiction. Under Section 8 HRA 1998, damages or compensation may only be awarded by those courts or tribunals empowered to do. (v) Where courts cannot interpret a piece of legislation as compatible, then certain courts may make a declaration of incompatibility, under Section 4 (2) HRA 1998. Only the High Court, Court of Appeal, House of Lords, Privy Council and the Courts Martial-Appeal Court have this power. The declaration of incompatibility does not affect validity and is not binding on the parties: Section 4 HRA 1998. 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. (vi) In any case where a court is considering making a declaration of incompatibility, the Crown (meaning the Government) is entitled to notice and to be joined as a party to the proceedings: Section 5 HRA 1998. (vii) Section 10 HRA 1998 provides for a fast track legislative procedure designed to remove the incompatibility. A minister can use a statutory instrument to amend offending primary legislation. People can still apply to the ECtHR in Strasbourg but they will have to show that they have exhausted all domestic remedies. (viii) When a new Bill is published, Section 19 HRA 1998, 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. A Joint Parliamentary Committee on Human Rights has been created. (ix) The Act necessitated the biggest project in training judges and magistrates ever managed by the Judicial Studies Board. The ECtHR takes a highly purposive approach to legislative interpretation. It was

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. In order to enforce a Convention right, the Court of Appeal may consider itself not to be bound by previous binding precedents which are incompatible with Convention rights.

Page119 12.3 THE CONVENTION RIGHTS (i) These are appended to the HRA 1998 as Sch.1, where they are spelled out in full. Briefly, they are: Art 2. Right to life. Art 3. Prohibition of torture. Art 4. Prohibition of slavery and forced labour. Art 5. Right to liberty and security. Art 6. Right to a fair trial. Art 7. No punishment without law. Art 8. Right to respect for private and family life. Art 9. Freedom of thought, conscience and religion. Art 10.Freedom of expression. Art 11. Freedom of assembly and association. Art 12. Right to marry. Art 13. (Not incorporated into English law) Art 14. Prohibition of discrimination. Art 16. Restrictions on political activity of aliens. Art 17. Prohibition of abuse of rights. Art 18. Limitation on use of restrictions on rights. Note: Some rights are absolute, such as Art 3. Some admit exceptions, such as Art 2 and most are subject to restrictions to ensure respect for other rights and freedoms.

12.4 THE EUROPEAN COURT OF HUMAN RIGHTS (i) Do not confuse the ECtHR with the ECJ. The ECJ sits in Luxembourg and interprets Community law for the 25 Member States of the EU. The ECtHR is not an institution of the EU. The ECtHR interprets and enforces the ECHR for the 46 countries that have ratified the Convention. It sits in Strasbourg. (ii) Three judges filter applications, with most decision-making done on the papers, and those cases deemed admissible go to panels of seven judges. Initially or at any time in proceedings, 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. (iii) Following a finding of a breach of the Convention, the State is legally obliged (subject to incorporation of the Convention into domestic law) to make reparation for the consequences of the violation. Where the domestic law affords only partial reparation, Art 41 provides that the Court can award an applicant just satisfaction for pecuniary and non-pecuniary damage.

12.5 THE APPROACH OF THE EUROPEAN COURT OF HUMAN RIGHTS & EXAMPLES OF THE CONVENTIONS 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. In Wingrove v UK [1996], The UK decided to ban the film Visions of Ecstasy under its blasphemy laws. The film director asserted that his freedom of speech under Art 10 was infringed, 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. (ii) Cases against any State before the ECtHR are of equal value to the English and Welsh courts in assisting, them to apply the Convention.

Page120 12.5.1 Article 2: Right to Life (i) Article 2 protects the right to life. Lawful execution, use of self defence, lawful arrest, use of force to quell a riot or prevent a prisoners escape are permitted. States are required to abolish the death penalty. No derogation is allowed under Article 15. (ii) In McCann v UK (1995), 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. Her application was unanimously

declared inadmissible. The Court stated that the right to life, did not extend to a right to die. 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 DPPs refusal to grant her husband immunity from prosecution. (iv) The House of Lords ruled in 2003, that where a death in custody occurs, the State has a duty to ensure a reasonably prompt, 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. Amin [2003]. In this case, where the victim had been killed by his cellmate in Feltham Young Offender Institution, there had been an investigation into the death by the Prison Service, the police and the Commission for Racial Equality but the Minister had refused the familys request for an independent public inquiry. 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. (v) In Edwards v UK [2002], the ECtHR had held that there had been a violation of Art 2 and Art 13. 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. 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. (vi) In Evans v UK (decided March 2006), the ECtHR rejected a case brought by Natalie Evans. She and her former partner had created embryos via IVF as she was about to have her ovaries removed because of cancer. Both parties gave written consent, as required by the Human Fertilisation and Embryology Act 1990. The relationship then finished and the father withdrew his consent to store the embryos, as was his right under the Act, so the embryos would have to be destroyed. The Court held that the embryos right to life was not engaged, because, in the absence of any European consensus on when life commenced, the issue was within each states margin of appreciation. 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. There was a wide margin of appreciation in other words, national governments had considerable autonomy because in IVF treatment there was no international consensus. They examined the 1990 Act which made written consent mandatory. They observed that several other countries gave either party the right to withdraw up to the moment of implantation. The Court declined to hold that that it ought to examine the balance of competing interests (hers and the fathers). (vii) Babys quality of life In NHS Trust v. MB (a child) and Mr & Mrs B (parents) [2006] EWHC 507, 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. The High Court Family Division judge was not persuaded and denied the declaration. It was, however, acceptable to withhold cardiac resuscitation and antibiotics, going beyond maintaining ventilation, which could well be in the best interests of the child.

(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, the state was not only accountable for a substantive breach of its Article 2 duty, but was also required to investigate the facts and explain how the death or serious injury occurred. (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. (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. The Court of Appeal ruled that members of the Armed Forces were subject to UK jurisdiction wherever they were and that, since questions had been raised as to whether there had been a systemic failure by the state to protect human life, it was necessary for the inquest into the deceaseds death to satisfy the requirements of Article 2. (xi) In Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2008] UKHL 74; [2009] 2 WLR 115, the House of Lords held that where members of hospital staff knew, or ought to have known, that a particular detained mental patient presented a real and immediate risk of suicide, Article 2 imposed additional obligations on the hospital authorities to do all that was reasonably possible to prevent the patient from committing suicide.

Page121 12.5.2 Article 3: Inhuman and Degrading Treatment (i) Article 3 ensures freedom from torture or inhuman or degrading treatment. No derogation is allowed under Article 15. This is an absolute duty and it includes degrading treatment (e.g. the Iraqi prisoners in Abu Gharib). (ii) In Ireland v UK [1978] the ECHR held that the UK Governments act of permitting the hooding of IRA suspects, the playing of loud continuous noise, deprivation of food, drink and sleep and forcing suspects to stand against a wall in an uncomfortable stance, amounted to degrading treatment. (iii) The question of corporal punishment has often been raised under this article. A recent ruling finds that smacking only is acceptable. In A v UK [1998], a stepfather hit a boy with a stick; the ECHR ruled that Art 3 had been violated. The UKs failure to provide children with protection against serious longterm neglect and abuse was a breach of Art 3: Z v UK [2001] ECtHR.

(iv) Another area under this article is the minimum standards of treatment in custody. Price v UK [2001] ECtHR, the applicant was severely disabled and suffered from recurring kidney problems. In the course of civil proceedings, she was committed to seven days imprisonment for contempt for refusing to answer questions. She was detained in a police station, then a prison. 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. She was refused legal aid. The ECtHR found there was a violation of Art 3, although it was not deliberate. (v) In R (Wellington) v Secretary of State for the Home Department Times LR 12 December 2008, the House of Lords ruled that the imposition of a mandatory life sentence without eligibility for parole, which would be imposed on a prisoner convicted of two offences of first degree murder, 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. (vi) In E v Chief Constable of the Royal Ulster Constabulary, [2008] 3 WLR 1208, the House of Lords considered the nature of the states obligations under Article 3. The Court took the opportunity to review the authorities both domestic and from the Court of Human Rights relating to the states duty under Article 3. Lord Carswell recognized that Article 3, like Article 2, imposed both a positive and negative duty upon the state. In relation to Article 3, the negative duty was not to subject people to torture, inhuman and/or degrading treatment, which was an absolute duty. The positive duty was to prevent the infliction by third parties of inhuman or degrading treatment. That duty could not be as absolute as the negative obligation because many factors had to be considered. In this case the police were concerned that increased action against the protesters could lead to an escalation of violence elsewhere in Belfast. That was a legitimate consideration. There was no violation of Article 3.

Page122 12.5.3 Article 5: Liberty and Security (i) Article 5 protects the right to liberty and security of the person, subject to exceptions prescribed by law and Art 15 derogation in an emergency. The ECtHR has ruled in the case of Caballero v UK (2000) that S 56 of the Crime and Disorder Act 1998, permitting an automatic denial of bail, breached Art 5. One area of concern has been detention without a review of its lawfulness. In Hussain v UK, Singh v UK *1996+ ECtHR the treatment of the applicants, sentenced indeterminately at Her Majestys pleasure, as juveniles, was a breach, since, after the expiry of the fixed tariff part of their sentence, they were unable to have the lawfulness of their continued detention reviewed by a court. (ii) In Stafford v UK *2002+ ECtHR, the Home Secretarys decision to keep S in prison longer than recommended by the Parole Board was held to be a breach of Art 5. The fact that a politician rather than a judge kept S in prison went against the spirit of the Convention as too arbitrary. This was one of

a series of cases diminishing the power of the Home Secretary over sentencing. No other country in the Council of Europe allows a Government minister to determine sentence length for individuals. (iii) In Waite v UK [2002] ECtHR, 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). (iv) The House of Lords held, in R (Saadi and others) v SS for the Home Dept [2002] UKHL 41, that detaining asylum seekers while their claims were determined was not a breach of Art 5. The State had a right to control entry and until it had authorized entry, entry is unauthorized. Oakington Reception Centre provided reasonable conditions. (v) In A (FC) and others v SS for the Home Dept [2004] UKHL 56, the appellants challenged the lawfulness of their indefinite detention under the Anti-Terrorism, Crime and Security Act 2001, an Act passed swiftly after the terrorist destruction of the New York World Trade Centre on September 11, 2001, which enabled the internment without trial of foreign nationals whom the Home Secretary suspected were terrorists. There were no similar powers over British citizens. The Government had derogated from (opted out of) its obligations under Art 5, as provided for by the Convention where there is a public emergency threatening the life of the nation. No other European country had done this in the wake of 9/11`. 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). Lord Hoffman went further, claiming the nation was not under threat, as required for derogation. Baroness Hale said We have always taken it for granted that we cannot be locked up in this country without trial or explanation. Lord Scott said `Indefinite imprisonment, on grounds not disclosed, is the stuff of nightmares, associated with. Soviet Russia in the Stalinist era. The House of Lords were not all impressed by the Attorneys argument that they, the Law Lords, were an unelected and undemocratic body who should not second guess ministers. Their Lordships made a ruling of incompatibility. In the ensuing days, the Government were faced with what much of the media portrayed as a constitutional crisis. The new Home Secretary declined to release the suspects but announced he would await a decision by Parliament on the legislation, due for its annual renewal in spring 2005. This caused some of the special Government-appointed advocates for the detainees to threaten to resign and caused some backbenchers to threaten trouble. (vi) In March 2005, Parliament passed the Prevention of Terrorism Act to replace the offending 2001 Act but it was ferociously debated. Opponents of the Bill, including all civil liberties groups, did not cite the Convention so much as ancient liberties fundamental to the British constitution, such as habeas corpus, laid down in Magna Carta. The Act again derogates from the requirements of the Convention. It allows British and foreign terrorist suspects to be placed under a control order (meaning house arrest), by the Home Secretary. Although this will be reviewed by a judge, it does not satisfy critics that it amounts to detention without trial. They asked why we are the only country in Europe which considers it necessary

to do this. 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. The claimant was serving a total of 24 years imprisonment. He became eligible for parole and the Parole Board recommended that he be released on license. The Secretary of State refused to implement that recommendation. The claimant sought judicial review and claimed that his right to liberty was infringed. The Court of Appeal ruled that he was entitled to have the lawfulness of his detention determined by a court of law. The procedure followed in the claimants case had complied with domestic law and therefore the Secretary of States decision could not be quashed. A Declaration of Incompatibility was therefore granted.

Page123 12.5.4 Article 6: The Right to a Fair Trial (see also 12.8 below) (i) Article 6 ensures the right to a fair trial. There are three parts to this provision: 1. in civil and criminal proceedings, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law 2. the presumption of innocence applies to everyone charged with a criminal offence; 3. 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; to have adequate time and facilities for preparation of his defence; 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; 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 free assistance of an interpreter if he cannot understand or speak the language used in court. (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, as discussed in the previous module. (iii) In Colder v UK [1975] ECtHR, it was held that a prisoner should have access to a lawyer to allow him to defend proceedings involving a warder. (iv) In Murray v UK (1996), ECtHR, S 34-37 of the Criminal Justice and Public Order Act 1994, concerning the right to silence, were examined by the ECHR. M had refused to say anything on solicitors advice after 48 hours in detention. He was questioned for 22 hours and 39 minutes over two days, and also refused to give evidence at trial. The Court held that Art 6 had not been violated, but stated that the

right to remain silent was of fundamental importance, although not guaranteed. The refusal of access to a lawyer was, however, a violation. (v) In Saunders v UK [1996] ECtHR, Ernest Saunders, a defendant in the Guinness fraud trial in 1990, proved a violation arising out of interviews by Department of Trade inspectors, when he was required to answer questions without the right to silence. The ECHR held that such questioning and the use of evidence, obtained in this way, at trial infringed Art 6. (vi) Matthews v MOD [2003] UKHL 4 it was held that Armed forces Crown immunity was not incompatible with Art 6. Lord Bingham felt himself bound by the common law, in ruling that no claim could be made in tort against the armed forces. The claimant had wanted to bring an action for damages, having suffered the effects of exposure to asbestos, during his naval career. (vii) On the issue of legal aid, 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, in defending themselves against a defamation action by McDonalds, after distributing leaflets attacking the fast food chain. It was central to the concept of a fair trial, 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. The applicants argued they were severely hampered by lack of resources, such as note-taking and photocopying, not just legal advice. The facts were complex, involving 40,000 pages documentary evidence. Nor was the law straightforward. Extensive legal and procedural issues had to be resolved even before the trial started. Although the applicants were articulate and they had some help from pro bono (free) lawyers, they mainly acted alone. The trial length was a testament to their lack of skill and experience. They had been deprived of the opportunity to present their case effectively and there was inequality of arms. (viii) On the issue of covert surveillance, in Allan v UK [2002] ECtHR, 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.

Page124 (ix) On the presumption of innocence, 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. In R v Kansal (No.2) [2001] UKHL 62, 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, judges must determine sentence not ministers In R(on the application of Anderson) v SS for the Home Dept *2002+ UKHL 46, the Home Secretarys power to determine the length of a life sentence was

incompatible with Art 6. Following previous ECtHR case law, the House of seven Law Lords held that the Secretary of States role was objectionable because he was not independent of the executive. The European Court had been right to describe the complete functional separation of the judiciary from the executive as fundamental, since the rule of law depended on it. (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. (xii) A finding of breach of Art 6 was normally just satisfaction in itself. Damages would only be awarded in exceptional circumstances: R (Green field) v SS for the Home Department [2005] UKHL 14. (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, unless he had been proven innocent. In this case, the Crown, prosecuting, informed the trial court that a key witness did not want to give evidence and the prosecution therefore offered no evidence. The judge said there was compelling evidence against the defendant so he was not going to award costs in his favour. The Convention does not guarantee costs to an acquitted defendant. It was the judges remarks that offended against Art 6(2). (xiv) In Re MB [2006], Mr Justice Sullivan ruled that control orders, under the Prevention of Terrorism Act 2005 breach these Articles. These orders involve a form of house arrest for anyone suspected of terrorism-related activity. He said they were an affront to justice and conspicuously unfair and were in breach of Arts 6 and 8. (xv) In R (Haase) v Independent Adjudicator Times LR 28 October 2008 the Court of Appeal ruled that, while Article 6 requires an independent and impartial tribunal, it was not necessary for the prosecutor to be independent and impartial. If a lack of independence and impartiality on the part of the prosecutor had, on the facts, resulted in unfairness to the particular defendant, then there could of course be a violation of Article 6. In this case, there was none. (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, without the provision for first according them a hearing, violated the right to fair trial. It also created a stigma which amounted to a violation of Article 8. A Declaration of Incompatibility was made in respect of Section 82(4) (b) of the Care Standard Act 2000. See also Jain v Trent Strategic Health Authority Times LR 22 January 2009.

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12.5.6 Article 7: No Punishment Without Law In Welch v UK (1995), W was arrested on drugs charges in November 1986 and a forfeiture order came into effect in the following January. The court held that this was retrospective and amounted to a violation of Art 7. 12.5.7 Article 8: Private and Family Life (i) Article 8 provides a right to respect for family and private life, home and correspondence, subject to exceptions in the interests of national security, public safety or economic well being of the State, prevention of disorder or crime, protection of health or morals or the rights and freedoms of others. (ii) In Malone v UK [1984] ECtHR, which involved telephone tapping by the police of a suspect, the ECHR held Art 8 was violated. In Sutherland v UK [1998] ECtHR, concerning the question of homosexual consent, it was held that this should be the same as for heterosexual consent. (iii) Refusal to give a prisoner access to artificial insemination facilities did not breach Art 8. There was little common ground on this, between contracting states, 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, 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. (v) In Lustig-Prean and Becket v UK and joined applications [1999], the ECtHR, considered that military investigations into the sexuality of gay members of the armed forces and their subsequent dismissal were grave breaches. (vi) In I v U, Goodwin v UK [2002] ECtHR, G had undergone gender re- assignment surgery. The Court held that it was a breach of Art 8 for the State not to recognise a change of legal gender. Since the surgery was provided by the State, this was illogical. The very essence of the Convention was respect for human dignity and freedom. There had also been a breach of Arts 8 and 12, in denying the applicants a right to marry someone the opposite of their new sex. Just because a minority of states permitted this it did not mean this fell within the margin of appreciation. The State could not bar a right to marry. It was unsatisfactory for post-operative transsexuals to live in an intermediate zone. 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. Since 1986, the Court had emphasised the importance of keeping the need for appropriate legal measures under review, having regard to scientific and societal developments. (vii) 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 applicants home and did not involve physical harm. There was no evidence the tapes were available for wider distribution: ADT v, UK [2000] ECtHR.

(viii) The opposite and somewhat surprising, result was reached in Laskey, Jaggard and Brown v UK (1997). This involved another consenting group of homosexuals who, in private, engaged in sadomasochistic maltreatment of the genitals with nettles and staples, ritualistic beating and branding. They had been convicted under the Offences Against the Person Act 1861 which, it was agreed, 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 only issue before the Court was whether the interference was necessary in a democratic society, 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. (ix) 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. This case is very important as the House ruled that the courts must apply a proportionality test in judicial review cases, including Human Rights cases, as proportionality is a principle of English law. (x) The House of Lords, in Wainwright v Home Office [2003] UKHL 53 took a restrictive approach to the issue of privacy. Prison visitors had been strip searched in 1997 because the authorities suspected that their relative, the prisoner, had been dealing in drugs in prison. This was a very important case. 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, as such. Lord Hoffman said there was nothing in the jurisprudence of the ECtHR which suggested the adoption of some high-level right of privacy.

Page126 (xi) The House did not depart from this principle in Campbell v MGN [2004] UKHL 22. This case arose from the Daily Mirrors disclosure that, despite her denials, supermodel Naomi Campbell was secretly attending meetings of Narcotics Anonymous. Put crudely, said Baroness Hale, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Where Art 8 was engaged, the court must carry out a carefully focused and penetrating balancing exercise to reconcile the restrictions that the Art.8 and Art 10 rights impose on one another, applying the principle of proportionality. In media cases where both articles were engaged, it was necessary to conduct a parallel analysis, 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, and applying the proportionality test to each. The majority (3/2) held that, on the facts, The Mirror had gone too far in the details they had published. (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.

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. In the Court of Appeal, Lord Justice Sedley ruled that the Asylum and Immigration Tribunal and the Home Office had failed to address the correct issues. Neither had considered the Article 8 rights of the husband. He was a British citizen and had an inalienable right to remain here. 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. See also EM (Lebanon) v Secretary of State for the Home Department Times LR 24 October 2008. (xiii) In Liberty v United Kingdom Application No 58243/00; 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 applicants had complained to the Interception of Communications Tribunal, the Director of Public Prosecutions and the Investigatory Powers Tribunal but received no remedy, 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 Court ruled that the domestic law at the relevant time had not indicated with sufficient clarity, so as to provide adequate protections against abuse of power, the scope or manner of the exercise of very wide discretion conferred on the State to intercept and examine external communications. (xiv) In Gillan and Quinton v United Kingdom (Application No 4158/05), Judgment 12 January 2010, the Court of Human Rights found a violation of Article 8. Sections 44 to 47 of the Terrorism Act 2000 and the related Code of Practice did not comply with the requirements of legality. The wording of Section 44, 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 breadth of discretion conferred on a police officer, who required him or her only to be looking for items which could be used in terrorism, without any requirement of having reasonable grounds for suspecting the presence of such articles, was unnecessarily and unlawfully wide. 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. (xv) In R (Purdy) v Director of Public Prosecutions [2009] 3 WLR 403, 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. 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. The Court ruled that Article 8(1) was engaged, and that in relation to Article 8(2) the principle of legality required the Court to address three questions. These were:

Page127 (a) whether there was a legal basis in domestic law for the restriction. (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. (c) whether (assuming the first two requirements were satisfied) the restriction was being applied in a way that was arbitrary because, for example, it was not proportionate. 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. (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. In 2001, the applicant discovered that his leave to remain in the United Kingdom had expired. He claimed asylum and also the right to remain under Articles 3 and 8 the European Convention on Human Rights. Central to the appeal was the issue of whether, in considering if the right to respect for family life had been violated, 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 applicants removal from the country. The Court of Appeal had ruled that it was the applicants right which was the principal consideration. 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. The Secretary of State, by contrast, submitted that the wording of the legislation (Section 65 of the Immigration and Asylum Act 1999 and Section 84 of the Nationality, Immigration and Asylum Act 2002) was clear, referring repeatedly to the appellants human rights (and no one elses). The House of Lords ruled in favour of the appellant. As Baroness Hale put it: ... the central point about family life... is that the whole is greater than the sum of its individual parts. The right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed (at paragraph 4). See also AS (Somalia) v Secretary of State for the Home Department [2009] UKHL 32; [2009] HRLR 27; [2009] 1 WLR 1385. 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. The question of whether a person has a reasonable expectation of privacy is a broad question of fact... (xvii) Murray v Express Newspapers plc [2008] 3 WLR 1360.

In this case the claimants sought to protect the privacy of their child. The Court of Appeal (per Sir Anthony Clarke MR) stated that the law should protect children from intrusive media attention. That, however, did not mean that the child had a guarantee of privacy. Rather, there was a reasonable expectation of privacy, which must be balanced against the publishers rights to freedom of expression under Article 10. (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, or whose charges are dropped, is unlawful and in breach of Article 8. It is estimated that there are 800,000 DNA samples and a further 800,000 fingerprint samples which require deletion. (xix) In McE v Prison Service of Northern Ireland [2009] 2 WLR 782, the applicants brought judicial review proceedings, 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. At issue was the right to privacy guaranteed by Article 8 of the European Convention on Human Rights, Section 28 of the Regulation of Investigatory Powers Act 2000 (RIPA) and the Code of Practice issued by the Home Secretary. The case involved two related, but different rights: the right of a person to consult a lawyer in private, and the right to legal professional privilege in connection with communications with ones lawyer. The Court recognized that neither of these rights was unqualified. It was also accepted, as explained by Baroness Hale (at paras 68 70), that RIPA was enacted in advance of the Human Rights Act coming into force, to achieve compliance with Article 8(2) of the Convention. Section 27(1) of RIPA provides, in part, that covert surveillance which is carried out in accordance with the Act shall be lawful for all purposes. This provision permits the covert surveillance of communications between lawyers and their clients, 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. Accordingly, Section 27(1) of RIPA, given its literal meaning, undermines individual rights.

Page128 (xx) In R (Wood) v Commissioner of Police of the Metropolis [2009] 4 All ER 951, the Court of Appeal considered the right to privacy. 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. They had also retained the photographs. The claimant was an employee of the Campaign against Arms Trade. 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 Court of Appeal ruled that the taking and retaining of photographs of an individual going about his lawful business required justification. In this case there could be no justification for retaining the photographs once the meeting was over, nor was there any reasonable basis for fearing that the claimant might commit future offences.

(xxi) In Szuluk v United Kingdom (Application No 36936/05) [2009] ECHR 845 the Court of Human Rights, in a unanimous judgment, 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. The government had failed to provide sufficient reasons why the correspondence, with named doctors whose address, qualifications and bona fides were not in question, should involve a risk of abuse. Article 8 had been violated. (xxii) In Khan v United Kingdom (Application No 47486/06) Times LR 3 February 2010, 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. The applicant had been jailed for seven years for importing heroin. He had not reoffended since his release in 2006. In light of his circumstances it would be disproportionate to deport him. (xxiii) Kay and Others v United Kingdom Times Law Reports 18 October 2010 the European Court of Human Rights ruled, unanimously, that there had been a violation of Article 8. The applicants, all tenants of public housing, had been dispossessed of their homes by the local authority following possession orders granted by the court. 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. It was also agreed that the interference with their rights was in accordance with law and pursued a legitimate aim. The central question, therefore, was whether the interference with their rights was proportionate to the aim pursued and therefore necessary in a democratic society. The Court referred to the debate as to the correct interpretation of the House of Lords judgment in Kay v Lambeth London Borough Council, and regarded as significant the fact that a minority of judges in that case were prepared to allow a challenge where, having regard to the occupiers personal circumstances, the exercise of the power to seek a possession order was incompatible with a Convention right. The minority approach in Kay was to be preferred and should be applied, allowing for personal circumstances to be relevant to the county courts assessment of the reasonableness of the decision to seek a possession order. Article 8 required procedural safeguards to be in place for the assessment of the proportionality of the interference with rights. In this case, the applicants had no opportunity to have the proportionality of the action measured by an independent tribunal. The European Court of Human Rights has begun consideration of the case of Max Mosley v United Kingdom. The applicant claims that the UK government failed to protect his right to respect for his private life (Article 8), and the lack of an effective domestic legal remedy (Article 13). The application relates to the case of Mosley v News Group Newspapers Ltd (2008), 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. Mosley was awarded 60,000 in damages.

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The questions which the Court of Human Rights is to consider are: whether the state violated the applicants 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; whether the UK government had a positive duty to require newspapers to give notice of their intent to publish in such circumstances, and whether such a duty would strike the correct balance between the applicants right to privacy and the right of the press to freedom of expression (Article 10); whether the applicant can claim a violation of his Article 8 rights, given that he had received damages from a domestic court; whether the applicant had an effective remedy. 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. (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, with no opportunity for review, violated the offenders right to respect for their family lives. 12.5.8 Article 9: Freedom of Thought, Conscience and Religion (i) To hold beliefs is an absolute right, but limitations are placed on how they are expressed. In a press report, Jehovah Witnesses were accused of attempting to convert Jews, Muslims and other people to their faith. It is beyond question that such beliefs can be held, but the methods by which they are conveyed can be subject to limitation. (ii) In Stedman v UK (1997), the applicant refused to work certain hours and asserted that the reason for so doing was her religious beliefs. On the facts, the Court held that her objection was not founded on her religious beliefs, but simply on her dislike of working certain hours. (iii) The ECtHR held there to be no breach of Art 9 in a ban placed on Islamic headscarves by the University of Istanbul. Turkeys Constitutional Court guaranteed democratic values, including the freedom of religion but restrictions could be placed on this freedom, if necessary, to defend other values and principles, including secularism, and equality: Leyla Sahin v Turkey [2004]. (iv) The CA reached the opposite conclusion in R (on the application of Begum) v Governors of Denbigh High School [2005] EWCA Civ 199. The appellant, a Muslim in a school which was 79 per cent Muslim, won her right to wear a jilbab, in contravention of school uniform, which permitted pupils to wear a shalwar kameeze. The CA held that the right approach was for a school, as an emanation of the state, to start from the premise that they are limiting the pupils 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.

In R (on the application of Begum) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15, the Law lords reversed the Court of Appeals decision. Giving the leading opinion, Lord Bingham explained that, to be justified under Art 9(2), 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, that is, it must be directed to a legitimate purpose and must be proportionate in scope and effect. The school was fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. He mentioned that four out of six parent governors were Muslim, as was the head teacher. The school had consulted parents and the local mosques. The school permitted the wearing of a shalwar kameez and there was no suggestion by those consulted, including the Imams of three local mosques, which this failed to satisfy Islamic requirements. Her family had chosen the school for her in full knowledge of the uniform requirements. She wore the shalwar kameez for two years. People sometimes had to suffer inconvenience for their beliefs. She and her brother had, instead, decided that it was the schools problem. 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. 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.

Page130 12.5.9 Article 10 Freedom of Expression (i) This Article provides for freedom of expression, and this may often conflict with a right to privacy and the right to a fair trial, for example. In a democracy, a balance will have to be struck in recognition of the rights of individuals, journalists, the publication of information in the public interest and so on: Camelot Group plc v Centaur Communications Ltd (1998). (ii) In R v ShayIer [2002] UKHL 11, the key question before the House of Lords was whether prosecution under the Official Secrets Act complied with Art 10 (2) freedom of expression. The ban on disclosures was not absolute, said the Lord Bingham, as a former member of the MI5 could make disclosures to others-the staff counsellor, a higher-ranking former civil servant, or the Attorney-General, police or DPP if unlawfulness was alleged. If misbehaviour or maladministration was alleged, concern could be expressed to Government ministers, or two Parliamentary committees, or one of three other security commissioners. (iii) In Steel and Morris v UK, 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. Political expression, including expression on matters of public interest

required a high level of protection. In a democratic society even small and informal campaign groups, like London Greenpeace, to which the pair belonged, had to be able to carry on their activities effectively. In a campaign leaflet, 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. The fact that the burden of proof was on the defendants to prove the truth of their allegations was not incompatible with Art 10. Even a large multinational had a right to defend itself and it had a competing interest in protecting its commercial success. 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. Also, the damages were disproportionate. 12.5.10 Article 11: Freedom of assembly and association This includes a right to join a trade union, a right to strike, to join political parties and other associations. However, such rights are not without limitation, so there is no automatic right to join a trade or professional body, such as The Law Society or the Bar, 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, from joining a trade union, was justified in the interests of national security and so was not in breach of this Article. 12.5.11 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. In Bellinger v Bellinger [2003] UKHL 21, 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. The House was bound by this UK statute but declared UK law to be incompatible with the Convention, Arts 8 and 12. Note: The Government promised a Bill to give transsexuals legal recognition. This was done via the Gender Recognition Act 2004. (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, etc) Act 2004, requiring permission by the Home Office for marriage by people subject to immigration control, or those who had entered the United Kingdom illegally, 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.

Page131 12.5.12 Article 13: Effective Remedy

(i) Article 13 provides a right to an effective remedy, but this has not been incorporated by the Human Rights Act 1998. In the case of Govell v UK (1998), the Police Complaints Authority was held not to provide an effective remedy to those adversely affected by the actions of the police. (ii) In Z v Others v United Kingdom [2001] The Times, 31 May ECHR. Four children, who a local authority failed for a considerable time to protect against neglect and abuse, claimed that the United Kingdom had violated their human rights. The ECtHR held that the United Kingdom had breached Art 3 (protection against torture, 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. 12.5.13 Article 14: Prohibition against Discrimination (i) Article 14 provides non-discrimination in relation to Convention rights on the grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. (ii) Bereaved fathers were equally entitled to the widowed mothers allowance, conceded the UK, in Cornwell v UK (ECtHR, 2000). In the long term, the Government dealt with this problem by introducing the Welfare Reform and Pensions Act 1999. (iii) In R (RJM) v Secretary of State for Work and Pensions Times LR 27 October 2008, 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, but that the policy was lawful as it could be justified on policy grounds. A right to a welfare benefit fell within Article 1 of Protocol 1. However, the governments view was that the homeless were less likely to need the supplement which was designed to assist with the costs of running a home. The government also aimed to encourage disabled homeless persons to take accommodation. It was not unreasonable, or unlawful, for the secretary of state to take the view that he should be encouraging the disabled homeless to seek shelter and help. 12.5.14 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, provided such derogation is proportional and necessary to deal with the emergency. This was a much used provision by the UK in connection with terrorist activities in Northern Ireland. Note: No derogation is allowed under Article 15 in respect of Article 3 [which ensures freedom from torture or inhuman or degrading treatment.]

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12.6 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. 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. In a case of incompatibility, which cannot be avoided by interpretation under Section 3 (1), the courts may not disapply legislation. The court may merely issue a declaration of incompatibility which then gives rise to a power to take remedial action: see Section 10. (ii) Lord Chancellor Irvine stated In my view, 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... (iii) The 1998 Act gives the Convention further effect (in English law. Under S3 the court is to read primary and subordinate legislation in a way compatible with Convention rights, so far as it is possible to do so. 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. 2). In that event, 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. This has no effect on the outcome of the suit in which the issue is raised, nor does it require the government to take remedial action though a fast-track legislative procedure is available if it chooses to do so. (iv) In May 2001, the House of Lords was already asked to construe a new statute which appeared to conflict with Convention rights. This is a landmark precedent because the House was prepared to interpret and apply their own duty under S3 of the HRA. The case was R v A [2001] UKHL 25. The House had to construe S41 of the Youth Justice and Criminal Evidence Act 1999, restricting evidence and questioning about the victims sexual history. In this case, a man accused of rape wanted to bring evidence of his previous sexual relationship with the complainant, to support his defence that she had consented. In a pre-trial ruling, the judge had ruled this out because of the 1999 Act but considered that his ruling breached Art 6. 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. They told the trial judge he could proceed with the case in the light of their ruling, make a bold interpretation and allow this evidence in for the sake of protecting the accused under Art 6. Lord Steyns interpretive method was as follows: (a) He plunged straight into a purposive construction of the 1999 Act: in the criminal courts, outmoded beliefs about women and sexual matters lingered on. (b) Statement of moral principle such generalised, stereotyped and unfounded prejudices ought to have no place in our legal system. It resulted in an absurdly low conviction rate in rape cases; (c) Conclusion on purpose of the 1999 Act: (t) here was a serious mischief to be corrected.

(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. (e) Applying what he called common sense a prior relationship between accused and accuser might be relevant to the issue of consent in rape. (f) Statement of principle of interpretive duty, based on his interpretation of the courts duty under the HRA 1998: when a question arose as to whether, in a criminal statute, Parliament had adopted a legislative scheme which made an excessive inroad into the right to a fair trial, the court was qualified to make its own judgment and had to do so. (g) It was well established that the guarantee of a fair trial under Art 6 was absolute. A conviction obtained in breach could not stand. The only balancing permitted was in respect of what the concept of a fair trial entailed. (h) Two processes of interpretation had to be distinguished 1. Ordinary (traditional, English) methods of purposive and contextual interpretation might lead to the blanket ban on questioning a woman about her sexual history. 2. The interpretative obligation of HRA, S3 (1). (i.e., so far as possible, primary legislation had to be given effect in a way compatible with the Convention). (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. Parliament placed on a court a duty to strive to find a possible interpretation compatible with Convention rights. It was much more radical than the ordinary method of interpretation which permitted a departure from language of an Act to avoid absurd consequences. In accordance with the will of Parliament, in enacting the HRA, it would sometimes be necessary to adopt an interpretation which linguistically might appear strained. The techniques to be used would not only involve the reading down of express language in a statute but also the implication of provisions.

Page133 (J) Interpreting S4 of the HRA 1998: a declaration of incompatibility was a measure of last resort. (k) Conclusion, implying Parliamentary intent: the legislature, if alerted to the problem, would not have wished to deny the accused the right to put forward a full defence by advancing probative material. 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. (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. M., the homosexual partner of the deceased tenant of a flat, appealed from a decision that he could not be awarded a statutory tenancy under the

Rent Act 1977. 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. Deference to Parliament has a minor role to play, said the Court of Appeal, where issues of constitutional importance, such as discrimination, arise. 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 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. In the House of Lords, 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, there was no limit to the words that could be read in or out of a legislative measure. See also Beauline Properties v. Palmer (v) The impact of the Convention can also be observed on the judicial approach in judicial review cases. The new approach that the courts are required to take, of evaluating proportionality of the States actions replaces the test of reasonableness in judicial review cases. This was made clear by the House of Lords in Daly [2001] UKHL 26. (vi) The traditional view in judicial review cases was that the courts declined to examine the merits of a decision, provided it had been taken procedurally correctly and provided the decision-maker had taken account of all relevant factors and decided rationally. This was known as the Wednesbury test of irrationality or unreasonableness, based on the test laid down in Associated Provincial Picture Houses v Wednesbury Corporation (1948). In Kingsley v UK (2001), the ECtHR held that this was inadequate. The reviewing court should not confine itself to examining the quality of the decision making process and not the merits. In Daly and many other cases, the House of Lords has made it clear that the required test for judicial review, since the HRA has been in force is one of proportionality. The reviewing court must ask itself whether: 1. the objective is sufficiently important to justify limiting a fundamental right; 2. the measures designed to meet the objective are rationally connected to it; and 3. the means used are no more than necessary to accomplish the objective. (vii) In Wilson v SS for Trade and Industry [2003] UKHL 40, the House of Lords held that when the court was require to evaluate legislation under the HRA, it was entitled to look at ministerial statements to determine the policy behind an Act. 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. (viii) In the 2004 case of In Re McKerr, under Art 2, the House of Lords held that it was now settled that the Human Rights Act was not retrospective. 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 former were not part of this countrys law. The latter were.

Page134 12.7 WHO CAN BRING AN ACTION AND AGAINST WHOM CAN ACTIONS BE BROUGHT? 12.7.1 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, rather than having to go to the ECtHR in Strasbourg, as they had to do until 2000. The person deprived of their right can bring an action, usually in the High Court, for judicial review, but other interest groups and pressure groups would like to join in on public interest test cases. Civil Procedure Rules were amended to enable any person to apply to file evidence or make representations at the judicial review hearing. (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. 12.7.2 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, or make such order, within its powers as it considers appropriate: Section 8(1). The relief may include an award of damages but only if, 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 court directed, on the issue of damages, 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. 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]. 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. In some cases, it may be difficult to decide whether a body is a public authority in this ordinary sense or only in extended sense quoted above, 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. Parochial Church Council v Wallbank [2003] UKHL Exception: S6 (1) does not apply to an act of a Public Authority if, as detailed by S6 (2), the authority could not have acted differently because of primary legislation; 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 was acting so as to give effect to or enforce those provisions.

(ii) Under S6 (3), public authority is defined as including includes central and local government departments, non-departmental public bodies and the courts and tribunals. One of the central issues has been the definition of a public authority. The main authority here is Poplar v Donoghue [2001] 4 All ER, 604, CA. The defendant moved into a local authority property, pending a decision as to whether she was intentionally homeless. The tenancy was granted by the London Borough of Tower Hamlets (Tower Hamlets) pursuant to its duties as the local housing authority under the Housing Act 1996. The property was later transferred to Poplar. Poplar was created as a housing association by Tower Hamlets in order to transfer to it a substantial proportion of the councils housing stock. Tower Hamlets decided that the defendant had made herself intentionally homeless and Poplar were informed of this fact. Later, proceedings for possession were begun, and, later still, the Secretary of State for the Environment, Transport and the Regions intervened in the proceedings. He was able to do so because the defendant was seeking a declaration of incompatibility.

Page135 The defendant was alleging a breach of Article 8 of the ECHR. The provisions of the HRA would only apply if Poplar was a public body or performing public functions. The court stressed that for Section 6, the definition of a public authority and a public function should be given a generous interpretation. However, this principle is limited to a certain extent by the following argument. 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. A public body in order to perform its public duties can use the services of a private body. Section 6 should not be applied so that if a private body provides such services, the nature of the functions are inevitably public. If this were to be the position, then when a small hotel provides bed and breakfast accommodation as a temporary measure, at the request of a housing authority that is under a duty to provide that accommodation, the small hotel would be performing public functions and required to comply with the HRA. This is not what the HRA intended. The consequence would be the same where a hospital uses a private company to carry out specialist services, such as analysing blood samples. The position under the HRA is necessarily more complex. The House of Lords held that Section 6(3) means that hybrid bodies, 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 renting out of accommodation can certainly be of a private nature. The fact that through the act of renting by a private body a public authority may be fulfilling its public duty, does not automatically change into a public act what would otherwise be a private act. (iii) In the above case, the court referred to Costello Roberts v United Kingdom [1993] 19 EHRR 112. The case concerned a seven-year-old boy receiving corporal punishment from the headmaster of an

independent school. 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, including the headmaster of an independent school. However, if a local authority, in order to fulfil its duties, sent a child to a private school, the fact that it did this would not mean that the private school was performing public functions. The school would not be a hybrid body. It would remain a private body. The local authority would, however, not escape its duties by delegating the performance to the private school. If there were a breach of the Convention, then the responsibility would be that of the local authority and not that of the school. (iv) Although the test for establishing that an institution is acting as a public body is broad, it is limited by the argument that a body performing a public activity is not necessarily performing a public function. In other words, a public body can employ a private organisation, and the private organisation would not fall within the terms of the definition. The decision in Poplar thus remove certain bodies from the jurisdiction of the Act. Note: One of the consequences of this decision is that due process requirements under the Act will not apply to private bodies. This again raises some difficult issues. 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. (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. The case concerned ecclesiastical law, 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. The respondents were arguing that the Parochial Church Council was a public authority. This would allow them to show that the Council was bound by the Human Rights Act. In enforcing the duty to repair the Church, the Council was, in fact, depriving the respondents of their possessions, or controlling the use of their property, in breach of the general principle of peaceful enjoyment set out in the first sentence of Protocol 1, Art.1 ECHR. The House of Lords held that the Church was not a public authority. The House of Lords turned to the definition of hybrid public authorities. These exercised both public functions and non-public functions and were not public authorities in respect of acts of a private nature. The House of Lords determined that a Parochial Church Council was not a governmental organisation, as it had nothing to do with the processes of either central or local government. Furthermore, it was not 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, or against any class or group of persons which formed part of it. The appellant was not a core public authority and its status as part of the Church of England did not affect this conclusion.

Page136 (vi) In Cameron and Others v. Network Rail Infrastructure Ltd. [2006] EWHC 1133, 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. The proceedings arose out of the Potters Bar rail crash in 2002. The HC ruled that it was not because 1. 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; 2. there had been a clear commercial objective in Railtracks performance. (Railtrack was NRs previous name). 3. there had been no obligation on Railtrack to conduct its operations in a manner subservient to the public interest; 4. R. had not been democratically accountable to government; 5. R.s directors had been appointed by the company and their appointment had not been subject to government influence or control; 6. R. possessed no special powers or immunities, beyond those which regulate individuals; 7. R. had not been publicly funded. (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; [2007] The unsatisfactory outcome of this decision, which leaves an estimated 300,000 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. Note: Parliamentary intervention has mitigated the harshness of the above decision. Section 145 of the Health and Social Care Act 2008 now provides that private or voluntary bodies providing accommodation, together with nursing or personal care, 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. 12.7.3 Does the Human Rights Act have a Vertical as well as Horizontal Effect? (i) The Human Rights Act 1998... requires every public authority, including the courts, to act consistently with the European Convention on Human Rights. Does it simply require the courts procedures to be Convention compliant, or does it require the law applied by the courts, save where primary legislation plainly says otherwise, to give effect to the Convention principles?

(ii) Can the Act be used by private litigants, or is it primarily directed against the state and state bodies? Sir William Wade has argued an alternative view: the Act, at S 6(3), makes the courts public authorities, which must act in accordance with the convention in all cases, even in litigation between private individuals. (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. Despite the fact that the act of a court may not be subject to an award of damages, it is still a public authority which must not act in a way incompatible with the Convention. Does that mean that a court, in declaring and applying the common law, 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. 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. 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. The Human Rights Act does not incorporate the Convention into English law and it is potentially misleading to say, that is does: Re McKerr [2004] UKHL per Lord Hoffman. (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. There are, however, 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. (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. The deceased was murdered by X, against whom he was to be a witness in a criminal case, in circumstances which Cox J held constituted a culpable failure

by the police to afford the deceased protection for the purposes of Art 2. Although Cox J was of the view that the relationship between the police and the deceased was such that, even at common law, and notwithstanding Hills case, a duty of care might have been owed, the claim was brought solely under the Convention. The damages awarded to the deceaseds estate ( 15,000) and his parents (35,000) 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. Whether it makes a great deal of sense to have two parallel legal systems in this way must be debatable. (vi) Wadham argues that the Convention must be used to interpret all law before the courts, 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. In other words, the Act could be described as indirectly rather than directly enforceable against private persons: that is, it is not possible for one private individual to sue another private individual for a tort of breach of the Convention. (vii) In Wilson v First County Trust [2003] HRLR 33. Mrs Wilson argued that a loan that she had taken from a pawnbroker and not repaid was unenforceable, because the agreement did not contain all the prescribed terms, contrary to the Consumer Credit Act of 1974. In particular, 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. Her argument was that the 1974 Act made the agreement unenforceable. The Court of Appeal also made a declaration under S4 of the HRA. 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, who had been added to the proceedings, appealed, and the House of Lords allowed the appeal. Lord NicholIs stated that the courts themselves are public authorities and, therefore, bound by the HRA. However, he refutes the notion that the courts themselves can act illegally, as they are bound by the terms of the Act of Parliament; in other words, 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. The House of Lords held that the court could consider the proportionality of legislation. In approaching the issue of proportionality, courts should have in mind that theirs was a reviewing role. The court would reach a different conclusion from the legislature only when it was apparent that the legislature had attached insufficient importance to a persons Convention right. The readiness of the court to depart from the views of the legislature depended on the circumstances, one of which was the subjectmatter of the legislation. The more the legislation concerned matters of broad social policy, the less ready a court would be to intervene.

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). Venables and Thompson v Newsgroup Newspapers [2001]2 MR 1038 supports

this argument. The case concerned two children who were convicted of the murder of another child. Venables and Thompson won the continuation of injunctions preventing newspapers from publishing information about them. In granting the injunctions, the court argued that it could protect confidential information in exceptional cases where it was strictly necessary. Given the notoriety of Venables and Thompson, it was very likely that they would be seriously injured if the press did reveal their identities or whereabouts on their release from custody. Most interestingly, the court argued that: the ECHR applied in this case via the obligation on the courts in the Human Rights Act, even though the defendant newspapers were not a public authority and the dispute was one between private parties. The claimants rights under Articles 2, 3 and 8 of the ECHR were at risk, and had to be balanced against Article 10. 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, and where there are significant human rights issues at stake. This probably means that the courts will refrain from employing the HRA in all but the most extreme cases. 12.7.4 The HRA 98 Act under attack The 1998 Act came under attack in May 2006, with the media whipping up hostility to it after several cases and incidents. In the High Court, Mr. Justice Sullivan supported a decision to allow Afghan hijackers to remain in the UK until it was safe for them to return home. He criticised the failure of successive Home Secretaries to allow them leave as conspicuous unfairness amounting to an abuse of power. Tony Blair attacked the decision as an abuse of common sense. The Sun agreed, At last Tony Blair admits he needs to do something about the ludicrous Human Rights Act. He wants the Government to overturn judges barmy rulings 15 May 2006. On the same day, the Daily Mail reported this on the same page as DVLA shreds the records of speeding and drunk drivers (because of their human rights). This came four days after the news that a rapist, freed by the Parole Board concerned about his human rights, murdered a woman. The 1998 Act was defended by lawyers such as David Pannick An excuse for the incompetent, a diversion for the ill-informed, The Times, 23 May 2006

Page139 12.8 THE DRAMATIC EFFECT OF ARTICLE 6: REPOSITIONING THE JUDICIARY IN THE UK CONSTITUTION& OBSERVANCE OF DUE PROCESS 12.8.1 The reform of the judiciary

(i) The most radical consequence of the importation of the Convention into UK law was, constitutional reform to the role of Lord Chancellor, the Law Lords and the rest of the judiciary, effected by the Constitutional Reform Act 2005. (ii) It had become apparent that tripartite role of Lord Chancellor, holding significant power in all three organs of government, was untenable, in the context of the Convention. A series of cases had made it clear that it was unacceptable, under Art 6 (fair trial) for a member of the executive (government) to sit as a judge, casting severe doubt over the Chancellors position 12.8.2 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, are fundamental to the protection of human rights. 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. (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. The protection of procedural due process is not, in itself, sufficient to protect against human rights abuses but it is the fundamental stone for substantive protection against state power. The protection of human rights therefore begins with, but does not end with fair trial rights. (Clayton and Tomlinson, 2001). (iii) English law, prior to the Human Rights Act, provided no explicit general statement of rights in relation to the conduct of the legal process. Common law provides under the rules of natural justice, 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. 12.8.3 The implications of Art 6 ECHR to the concept of due process and fair trial rights. (i) To benefit from Article 6, the applicant must have an arguable right under domestic law. Article 6 provides only the procedural guarantees for the determination of tenable rights. Although Article 6(1) cannot be used to create a substantive civil right, 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. In such cases, 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. (ii) In addition, the Courts have recognised an implied right of access to the courts and a series of other implied fair trial rights.

12.8.4 Cases on Article 6 (see also 12.5.4 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. H had tried unsuccessfully to be reinstated. The court held that there had been a breach of Article 6 by the tribunal that had considered Hs re-admission. The courts reasoning was based on two grounds: (1) there was no right to challenge the tribunals decision; and (2) the decision was not adequately reasoned. (ii) Osman v United Kingdom [2000] 29 EHRR 245 In this case, 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. The appellants alleged that the UK government had deprived them of a right of action in negligence against the Police. The ECHR found that the appellants had been deprived of the right of access to the court. The ECHR went on to argue that Article 6 (1) embodies the right to a court, of which the right of access, or the right to institute proceedings before a court in civil matters, is one aspect. This right, however, is not absolute. The right to access can be made subject to limitations. These limitations are permitted by implication, 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, although the final decision as to the observance of the Conventions requirements rests with the 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. The court also pointed out that any limitation will only be compatible with Article 6(1) if it satisfies a legitimate aim, and if there is a reasonable relationship of proportionality between the means employed and the aim sought.

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. The litigation concerned, inter alia, the extent to which the disciplinary board was unbiased and able to judge the surgeons suspension objectively. The Privy Council asserted that a practitioner whose professional performance is called into question ... is entitled to a hearing by a tribunal free from actual or apparent bias. 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.

Such protection requires either that the decision-making body (in this case the committee) constitute an independent and impartial tribunal or, if not, that its processes be subject to control by an appellate body with full jurisdiction to reverse its direction. (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 case concerned the extent to which the right to a fair hearing was coherent with the practice of Scottish District Courts. These courts are the equivalent of magistrates courts in England and Wales. Rather like a lay magistrate, the person who administers justice in a District Court is not legally qualified. However, the lay justice is advised by a court clerk, who is legally qualified. 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, and that the clerk was not sufficiently independent, as he lacked security of tenure. Moreover, the advice to the lay justice was given in private, and this infringed the right to a public hearing under the relevant article of the Convention. The court did not accept the accuseds arguments. (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 appellant was a woman who objected to being tried by an all-male jury in action for damages for assault. The relevant legislation, the Supreme Court Ordinance, compulsorily included males on the register of potential jurors. However, women were only to be included if they applied for inclusion. Consequently, 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. The Privy Council allowed the appeal. The court asserted that since juries are chosen at random from jury lists, a non-discriminatory method of compilation of those lists was an essential ingredient of a fair trial by jury. (ii) The role of the jury was again considered in R v Mirza [2004] HRLR 11 Mirza was convicted of indecent assault. He appealed against conviction. 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. The letter alleged that the jurys verdict was subject to racial prejudice. The court also heard appeals from two other appellants. Their appeals against their convictions for wounding offences were based on letters received by the Crown Court after the verdict but before sentencing. 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.

The Court of Appeal dismissed both the appeals, holding that it was bound by R v Qureshi [2001] which had stated the rule of secrecy of jury deliberations after verdict. The jurors letters were therefore inadmissible. The Court of Appeal did, however, remit an important question of law to the House of Lords for determination: were the common law rules, that prohibited jury deliberations being admitted as evidence, 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, or receive evidence about, anything said in the course of the jurys deliberations while they were considering their verdict in their retiring room. 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, if jurors were to continue to perform their vital function of safeguarding the liberty of every individual. The House of Lords went on to discuss the common law exceptions to the rule. 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). Another problem was also considered: if it was alleged that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or by the toss of a coin, then the court would intervene, as such behaviour would amount to a complete repudiation by the jury of their only function which, as the jurors oath put it, was to give a true verdict according to the evidence. 12.8.5 The impact of Article 6 on the question of judicial bias - 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, and an international warrant was issued for his arrest. Pinochet entered the UK in 1998, and the Spanish government requested his extradition. A warrant for his arrest was issued by a British court under the Extradition Act of 1989, 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, or purported performance, of his official duties in Chile, within the jurisdiction of the Spanish government. The Taking of Hostages Act 1982, which enacted the International Convention Against the Taking of Hostages 1979, made the taking of hostages an offence under international law and punishable by the courts of the UK. The Criminal Justice Act 1988 also made the torture by public officials and persons acting in a public capacity a criminal offence. Pinochet claimed immunity under the State Immunity Act 1978. This Act provided for the immunity of a foreign head of state from the courts of the UK, and covered the acts of a head of state in his public capacity. 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 applied for the warrant for his arrest to be quashed. The Queens Bench Division of the High Court held that the applicant was entitled to have the warrant quashed, and there was an appeal to the House of Lords.

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. Acts of torture and hostage taking could not be regarded as functions of a head of state, as shown by the principles of international law. It followed that since the acts of torture and hostage taking with which the applicant had been charged were offences under UK law, the applicant could not claim immunity from the criminal process, and this included extradition. The appeal was therefore allowed. (b) The second Pinochet case (i) In R v Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte No 2 [1999] 1 All ER 577. Amnesty international [AI] had been granted leave to intervene in the proceedings before the House of Lords restored the warrant. 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], and petitioned the House of Lords to set aside the order. 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, but also applied to cases where the judges decision would lead to the promotion of a cause in which the judge was involved together with one of the parties. It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done (R v Sussex Justices, ex p. McCarthy *1924+ 1 KB 256).

Page142 (ii) In Ex parte Pinochet No2 [1999] 1 All ER 577, at 585, Lord Browne Wilkinson argued that the central principle was that the House of Lords, as the ultimate court of appeal, had the power to correct any injustice committed by any earlier order of the House. The underlying principle is that the House will reopen a case where, through no fault of the party in question, he or she has been subjected to unfair procedure. 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. The essential feature is this notion of unfair procedure. In relation to the facts of the present case, the argument rests on the assertion not that there was actual bias, but that there was a real danger or reasonable apprehension or suspicion of bias. In short, we are concerned with apparent bias, not actual bias. (iii) In Locabail (UK) Ltd v Bayfield Properties Ltd and another Locabail (UK) Ltd and Another v Waldorf Investment Corp and others [2000], the Court of Appeal reconsidered the issue of judicial bias. The court distinguished the two rules relating to disqualification, the first being where the judge had an interest in the case which he decided, as in Dimes v Grand Junction Canal (1852), and where he would be automatically disqualified. The second rule was based on examination of all the relevant circumstances, where there was a real danger or possibility of bias as in R v Gough (1993).

In relation to the circumstances surrounding one of the Locobail cases, 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, taking a broad commonsense approach, 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, and that such publications could further rather than hinder the administration of justice, nevertheless, it was always inappropriate for a judge to use intemperate language about subjects on which he had adjudicated or would have to adjudicate. The appeal was allowed and a retrial ordered. (iv) 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 applicants counsel had advised that the judge was unlikely to be biased. The Court ruled that such advice should not have been given as it influenced the applicants decision. The decision would be set aside. (v) In Helow v Secretary of State for the Home Department Times LR 5 November 2008 the House of Lords ruled that a judges 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 buy 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.

Page143 Chapter13: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION CONTENTS: 13.1 Introduction 13.2 Ground for judicial review 13.3 Irrationality 13.4 Illegality 13.5 Procedural impropriety 13.6 Exclusion of judicial review 13.7 The basis for judicial review 13.8 Remedies

13.1 INTRODUCTION (i) Judicial review represents the means by which the courts control the exercise of governmental power. It is designed to ensure that public bodies, which exercise law-making power or adjudicatory bodies act within their powers. Judicial review is concerned with the legality of the decision made, not the merits of the particular decision. (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. (iii) The powers conferred on public bodies may be by an Act of Parliament. The principal question to be addressed here is whether the person (e.g. a Minister) or a public body has acted intra vires or ultra vires, and whether the decision-making process requires the use of natural justice. (iv) If an individual or a body of persons is aggrieved by an administrative decision, and their rights adversely affected, there exist procedures by which such decision may be challenged in the courts. It is through judicial review that the legality of the powers by public bodies is tested. In this respect, 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 Parliaments will is observed. Thus judicial review may thus be regarded as an aspect of parliamentary sovereignty. (vi) In essence, subject to changes which have been brought by the Human Rights Act 1998, the courts seek by judicial review, to ensure four objectives: (a) that Acts of parliament have been correctly applied. (b)That discretion conferred by statute has been lawfully exercised; (c) That the decision-maker has acted fairly. (d) That the exercise of power by a public body does not violate human rights.

Page144 13.1.1 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. If the decision of a private body is being challenged in court, the remedy lies in private law. (ii) Whether the body is a private one or a public is sometimes is a matter for the court to decide. In R v City Panel on Take-overs and Mergers exparte Datafin Ltd (1987), the Take-over Panel had dismissed a

complaint by a bidder. The bidder applied for judicial review. Although the court stated that there were no grounds for judicial review, it affirmed the fact that the Panel was a public body. It was subject to judicial review, despite its lack of statutory or prerogative power, because it was a body exercising public functions analogous to those, which would have been exercised by a government Department. Lloyd J stated that in some cases if the source of the power is unclear, it is necessary to look at the nature of the power. If the body in question is exercising public law functions or the exercise of its functions have public law consequences, then it may be sufficient to bring the body under the reach of judicial review. (iii) In R v Disciplinary Committee of the Jockey Club ex parte Aga Khan (1993), the applicant in this case sought judicial review of the Jockey Clubs decision to disqualify his winning horse from a race failing a dope test; the court ruled that it had no jurisdiction. 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. (iv) In R (on the application of Julian West) v Lloyds of London *2004+ the Court of Appeal ruled that decisions taken by Lloyds 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. The decisions were solely concerned with the commercial relationship between the applicant and Lloyds and were governed by contracts into which the applicant had entered. According the decision were of a private and not public nature. (v) Under Section 6 of the Human Rights Act 1998, public authorities are defined as including courts and tribunals and any person certain of whose functions are of a public nature. In Marcicv Thames Water [2003], a privatised water a sewage company was held to be a public body under Section 6. 13.1.2 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. The appeal may be made both on the law and the facts. Thus the review here is the substance of the decision. (ii) Judicial review is concerned solely with the manner in which the decision-maker has applied the relevant rules; its is thus procedural in nature. (iii) In short, the role of the courts in judicial review is to exercise a supervisory and not an appellate jurisdiction. Judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. (per Lord Brightman in Chief Constable of North Wales Police v Evans [1982]). (iv) In the case of appeals, where successful, it will usually result in a new decision being substituted for the previous decision. In the case of judicial review, a successful case will usually result in the previous decision being nullified or quashed but no new decision will be put in its place. Instead the body will be directed to predetermine the case according to the correct rules and procedure. (v) In R (Sivasubramaniam) v Wandworth County Court [2003], 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,

save in exceptional circumstances of clear want of jurisdiction, or procedural irregularity amounting to a denial of a fair hearing.

Page145 13.1.3 Leave for judicial review and the outcome of judicial review An aggrieved individual must seek leave to apply for judicial review. (discussed later). 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.This procedural hurdle represents the need to filter out unmeritorious cases at earlier stages. 13.1.4 The concept of justiciability This is a concept, which defines the judges view of the suitability of the subject matter to be judicially reviewed. Matters such as the exercise of the prerogative power and most importantly issue of national security, and matters of high policy are matters the courts normally regard as non-justicable. (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 Nottinghamshire County Council v Secretary of State for the Environment (1986), the House of Lords held that the court should not intervene to quash guidance drafted by the Secretary of State, on the authority of Parliament. Lord Scarman stated: ... these are matters of political judgement for him and the House of Commons. They are not for judges.... (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, improper motive or manifest absurdity. Matters of national economic policy were for political- not judicial judgement. (b) The royal prerogative and judicial review. (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, but rather the matter to be decided was whether the subject matter of the application was justiciable or not. (ii) In the earlier chapter the royal prerogative was discussed in detail. 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. (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

Secretary could not as long as the statutory provisions as to compensation existed under the Criminal Justice Act 1988- exercise the power under the prerogative to implement the new scheme. It was not lawful to attempt to use prerogative in order to avoid exercising a statutory duty.

Page146 13.2 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, in the House of Lords, stated that the grounds of judicial review could be classified under there heads, namely, illegality, irrationality and procedural impropriety. It was also accepted that the further ground of judicial review, such as proportionality, might emerge. (ii) Lord Diplock stated: (a) By illegality... I mean that the decision-maker must understand correctly the law that regulates his decision making power and give effect to it... (b) By irrationality, I mean Wednesbury unreasonableness. 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) ... procedural impropriety...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. (d) ... 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... 13.2.1 The doctrine of proportionality (a) Pre Human Rights Act 1998 cases. (i) This confines the limits of the exercise of power to means which are proportional to the objective to be pursued. (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, whist it was a distinctive head for review under the European Convention of Human Rights, until and unless Parliament incorporated the European Convention into domestic law. (iii) There are however cases where the courts have tacitly used the doctrine of proportionality without making explicit reference to it. In R v Barnsley Metropolitan Borough Council ex parte Hook (1976), a market stallholder had had his licence revoked for urinating in public. Lord Denning quashed the

decision, partly on the basis that the penalty- the loss of the licence-was disproportionate to the offence. (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, provided it had been taken procedurally correctly and provided the decision-maker had taken account of all relevant factors and decided rationally. This was known as the Wednesbury test of irrationality or unreasonableness, based on the test laid down in Associated Provincial Picture Houses v Wednesbury Corporation (1948). (ii) The impact of the Convention can be observed on the judicial approach in judicial review cases. The new approach that the courts are required to take, of evaluating proportionality of the States actions replaces the test of reasonableness in judicial review cases. (iii) This was made clear by the House of Lords in R (Daly) v Secretary of State for Home Department [2001] UKHL 26. Lord Steyn examined the differences between reasonableness and proportionality, identifying the following differences: (c) the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is in the range of rational or reasonable decisions; (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. (i) In Kingsley v UK [2001], the ECtHR held that this was inadequate. The reviewing court should not confine itself to examining the quality of the decision making process and not the merits. In Daly and many other cases, the House of Lords has made it clear that the required test for judicial review, since the HRA has been in force is one of proportionality. The reviewing court must ask itself whether: 1. the objective is sufficiently important to justify limiting a fundamental right; 2. the measures designed to meet the objective are rationally connected to it; and 3. the means used are no more than necessary to accomplish the objective.

Page147 13.2.2 The traditional doctrine of ultra vires (i) Ultra vires refers to action, which is outside or in excess of powers of decision making bodies. (ii) In R v Hull University Visitor ex parte Page (1993), Lord Browne Wilkinson adopted the traditional language of ultra vires: If the decision-maker exercises his powers outside the jurisdiction conferred,

which is procedurally irregular or is Wednesbury unreasonable, he acting ultra vires his powers and therefore unlawfully. (iii) In R v Richmond Upon Thames Council ex parte McCarthy and Stone Ltd (1992), the local planning authority implemented a scheme of charging L 25 for informal consultation between corporation officers and property developers. 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, nor could a charge be levied on the public without statutory authority. The Council had misconstrued its powers and accordingly acted ultra vires. (iv) In Hazell v Hammersmith and Fulham Council (1992), the Council attempted to increase its revenue through financial investments, which, for success, were dependent upon the fluctuation in interest rates. The House of Lords held that the council had no power to enter into interest rate swaps which were purely speculative in nature. Such speculation was inconsistent with statutory borrowing powers conferred on local authorities. 13.2.3 Difficulties with the traditional ultra vires doctrine (i) The doctrine of ultra vires cannot explain adequately the judges power to rule, as they do, on certain aspects of decision-making. 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. (ii) As will be seen later, the concept of error of law does not fit easily with the concept of ultra vires. Because of this the concept of ultra vires is nowadays regarded by many as an inadequate basis for judicial review. 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, and for the control of power. (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. Mr Nasseri, an Afghan national, had claimed asylum in Greece. That application was rejected and he travelled to the United Kingdom and again claimed asylum. Under an EC Regulation, where an asylum seeker enters a third country from another Member State, that Member State is solely responsible for determining the application. Accordingly, 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, etc) Act 2004). The applicant sought judicial review of the removal decision and sought a declaration that the provisions in Schedule 3 were incompatible with Article 3. Lord Hoffmann stated that when a court is hearing an application for judicial review, 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. However, when an application involves an alleged violation of a Convention right, the courts approach must differ. The focus is not on whether the

decision-making process is defective, but on whether or not the applicants Convention rights have been violated. Lord Hoffmann went on to state that: ... when breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong... 13.2.3 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. A decision-maker may act ultra vires by taking into account irrelevant considerations. Depending on the magnitude of the irrelevant considerations, he or she may also act irrationally.

Page148 13.3 IRRATIONALITY 13.3.1 Wednesbury unreasonableness (i) The terms irrationality and Wednesbury unreasonableness appear to be used interchangeably together with words like arbitrary and capriciousness. (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 authority when granting a Sunday licence imposed a condition that no children under the age of 15 years should be admitted. The applicants argued that the imposition of the condition was unreasonable and ultra vires the corporations powers. The House of Lords held that the condition imposed was unreasonable. The test propounded in that case was whether the authority had acted, or reached a decision, in a manner so unreasonable that no reasonable authority could ever have come to it. (iii) In Roberts v Hopwood (1925) the council, in adopting a policy of paying higher wages than the national average for its workers was unreasonable, 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 House of Lords ruled that, irrespective of the wording of the statute, the council had a duty to act reasonably and its discretion was limited by law. (iv) In the GCHQ case Lord Diplock regarded unreasonableness as entailing a decision ...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. (v) In Secretary of State for Education and Science v Tameside Metropolitian Borough Council (1977), the secretary of State for Education directed a newly elected local authority to implement plans, devised by

a predecessor council, to introduce comprehensive schooling and abolish grammar schools. At the election there had been a change in the political composition of the council, which resulted in a change of policy. The Secretary of States power was to direct an authority as to the exercise of its powers if he was satisfied that the authority was acting unreasonably. 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, and that the authority was therefore unreasonable. The matter went to the House of Lords, which had to determine the extent of the Secretary of States discretion under Section 68 of the Education Act. The wording of the section was objective: if the secretary of State has reasonable grounds to believe. Applying the Wednesbury reasonableness test to the decision of the local authority to retain grammar schools, the House of Lords ruled that the authority had not acted unreasonably, and as a result, the secretary of States decision was unlawful. (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 secretarys discretion to issue a notice banning the transmission of representatives of the Irish republican Army and its political party Sinn Fenn. Despite the issue involving a denial of freedom of expression, the court ruled that exercise of the Home Secretarys power did not amount to unreasonable exercise of discretion. (vii) R (Main) v Minister for Legal Aid [2007] EWHC 742; Times LR 9 March 2007. Ms mother and sister had been killed in a rail accident. The coroner considered that legal aid funding was necessary to assist M on the grounds that rail safety issues were of significant public interest. The Minister for Legal Aid refused funding, despite a recommendation from the Legal Services Commission that it be granted. The decision was held to be Wednesbury unreasonable: the Minister should have given reasons for departing from the Commissions recommendations and had failed to take into account the potential benefit of representation for a party representing the travelling public.

Page149 13.4 ILLEGALITY 13.4.1 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. (ii) In R v Hillington London Borough Council ex parte Royco Homes Ltd (1974), planning permission was tied to conditions. The conditions were that Royco Homes make properties constructed available for occupation by those on the Councils housing waiting list, and further for ten years the houses be occupied by persons subject to security of tenure under the Rent Acts. The conditions were held to be onerous and held to be ultra vires.

(iii) Where an authority makes a decision which is in part good, but in part bad-perhaps because attaching onerous conditions to planning permission- the court may invalidate the entire decision or sever the bad part. In Agricultural Horticultural and Foresty Industry Training Board v Aylesbury Mushrooms Ltd. (1972), the Training Board was under a mandatory statutory duty to consult certain organisations and trade unions before reaching a decision. The Board failed to consult the Mushroom Growers Association. 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, and the Board had a duty to reconsider their decision after consultations with the Association. (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.671). The police had imposed a number of conditions on Brian Haws demonstration (which had been ongoing since 2001) in Parliament Square. Some of these were subsequently varied. The conditions included restrictions on the size of the site, its supervision, 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. 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.19 The Court ruled that the objective behind the conditions, which in part were designed to ensure others did not use the demonstration as a cover for terrorist activities, provided a perfectly reasonable and proportionate justification for imposing appropriate conditions. However, as these were unworkable they were ultra vires for lack of clarity. The Court also ruled that the Commissioner of Police could delegate his statutory power to impose conditions on demonstrations. Applying Carltona v Works Commissioner [1943] 2 All ER 560 the Court ruled that where delegation was inevitable, there would be an implied power to delegate. 13.4.2 Errors of law and errors of fact (i) An error of law may take several forms. An authority may wrongly interpret a word to which a legal meaning is attributed. For example, where an authority is under a duty to provide accommodation, the question arises whether the quality of what they have provided amounts in law to accommodation. An error of law will be reviewed by the courts. (ii) An error of fact is an error, which the courts are more reluctant to review. This is because the decision maker has all the factual information at hand on which to base the decision. There may however be some errors of fact that are so fundamental in nature that they cause a decision to be unlawful.

Page150 13.4.3 Errors of law on the face of the record

(i) Errors on the face of the record, that is evidence from the documentation that the decision-maker has made a wrong decision in law-will cause the judges to rule that the decision was defective, even if the decision-maker was acting inside jurisdiction. (intra vires). (ii) This is normally when the authority has correctly interpreted its powers but used them towards the wrong objective. In Perilly v Tower Hamlets Borough Council (1973) the local authority believederroneously-that it was obliged to consider applications for stall licences in a street market in the order in which they were received. The effect of this was to deny a licence to Perilly even though his mother, by then deceased, had held a licence for some 30 years. The licence granted to an incoming applicant in preference to Perilly was set-aside by the court. (iii) There are however other cases in which an authority misunderstands the powers which it has been granted and accordingly acts ultra vires. In Anisminic Ltd v Foreign Compensation Commission (1969) the Compensation Commission had the power to distribute a compensation fund to British companies and persons suffering loss as a result of property being sequestrated by the Egyptian Government. 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. The Egyptian Government had however sold the property to a third party, and accordingly Anisminic could neither establish that it was the owner nor successor in title to the property. Accordingly, the Compensation Board ruled that it had no power to grant compensation to Anisminic. 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 House of Lords held the decision of the Board to be ultra vires. The decision made by the Board was so wrong that in law it amounted to not a decision at all. The ouster clause according to the House of Lords was ineffective because the ruling of the Compensation Board being so wrong in law, resulted in the Commission acting outside its jurisdiction, 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, as a result of its misconstruing the statutory description ...makes a purported determination in a case of kind which it has no jurisdiction to inquire, its purported determination is a nullity... (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. Lord Mustill ruled that where a statute provides broad criteria over the meaning of a word which reasonable persons may reasonably agree, the court would only intervene if the decision falls outside what the court regards as reasonable. (v) Errors of fact are more complex. If a decision-maker bases his decision on a misunderstanding of the factual situation of the case, he will reach a decision, which is wrong. 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 court may intervene in such instances because the tribunals finding affects its decision. On the other hand rent tribunals findings as to the state of

repair of the property, the terms of tenancy, and the defaults of the landlord will not affect its decision in any way and are thus immune from challenge. (vi) The question to be asked is whether the mistake of fact is one, which is central to the decisionmakers power of decision. In R v Secretary of State for the Home Department ex parte Khawaja (1984), 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. On this point the House of Lords held that it could. The second was on the standard of proof the immigration officer was required to discharge. The House of Lords held that since the liberty of a person was at involved, the standard of proof was a high degree of probability and not just reasonable grounds for his decision. (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. The evidence supported the applicants claims that they would be at risk if they returned to their country of origin. 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.

Page151 13.4.4 Using powers for the wrong purpose (i) Powers conferred must be used for the purpose for which they were granted. In Attorney General v Fulham Corporation (1921) the authority was empowered under statute to establish washhouses for non-commercial use of local residents. The Corporation decided to open a laundry on a commercial basis. The Corporation was held to have acted ultra vires the statute. (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 railway Company which owned stock in adjacent buildings claimed that the power had been used improperly. The House of Lords disagreed, 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. (iii) In Padifield v Minister of Agriculture, Fisheries and Food (1968), under the Agricultural marketing Act 1958, a committee of investigation was established to make enquiries if the Minister so directed, into complaints made to the Minister about the operation of, amongst other products, milk. South-Eastern dairy farmers complained that the Milk Marketing Board had fixed prices in a manner prejudicial to farmers in that region. The minister refused to refer the matter to the committee of investigation. The

farmers challenged the Ministers 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 committees 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 countrys 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 Councils 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 Clubs 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 councils 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 Minsters decision had been based solely on another Ministers 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. Carltonas 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.

(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. If there had been proper consultation a different decision might have been reached. Accordingly the decision was unlawful. (iv) In R (BAPIO Action Ltd and another) v Secretary of State for the Home Department and another [2008] UKHL 27; [2008] 2 WLR 1073, 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. Rather than use that procedure, the Secretary of State had proceeded by way of Guidance. Furthermore, 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 Guidance was invalid. 13.5.2 Breach of natural justice The rules of natural justice are common law rules. The fundamental dictate of justice is that those affected by decision-makers should be dealt with in a fair manner. (a) The rule against bais: nemo judex in causa sua. (i) It is not necessary to show that actual bias existed; the merest appearance or possibility of bias will suffice. In R v Gough (1993) The House of Lords stated that test was whether there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or a member of a tribunal. In R v Sussex Justices ex parte McCarthy (1924) it was stated: Justice should not only be done but should manifestly and undoubtedly be seen to be done. (ii) In Dr Bonhams case (1609) Lord Coke held that members of a board which determined the level of physicians fines could not impose and receive the fines. In Dimes v Grand Junction Canal Ltd (1852) Lord Cottonham LC held shares in the canal company involved in litigation. The House of Lords set aside the decision in which he had adjudicated. (iii) In R v Sussex Justices ex parte McCarthy (1924) the applicant had been charged with dangerous driving and convicted. On discovering that the Clerk to the Magistrates Court was a solicitor who had represented the person suing McCarthy for damages, he applied for judicial review on the basis of bias on part of the Clerk. The Clerk had retired with the magistrates when they were considering their verdict. It was accepted that the magistrates neither sought advice nor were given advice by the Clerk during their retirement. Nevertheless, McCarthys conviction was quashed. On the basis of the possibility of bias. (iv) A financial interest in a case which does not go beyond the financial interest of any citizen does not disqualify judges from sitting. 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.

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, as did Lord Denning MR in Ex parte Church of Scientology of California (1978), The Times, 21 Feb 1978. There counsel for the church requested that he disqualify himself as a result of eight previous cases involving the Church on which he sat. (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, Lord Hoffman, had links with Amnesty International, the charitable pressure group which works on behalf of political prisoners around and which had been allowed to present evidence in court. 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). As a result the proceedings were abandoned and reheard by a new bench of seven judges (who nevertheless came to the same decision). (vii) In Locabail (UK) Ltd v Bayfield Properties Ltd and another; Locabail (UK) Ltd and Another v Waldorf Investment Corp and others [2000], the Court of Appeal reconsidered the issue of judicial bias. The court distinguished the two rules relating to disqualification, the first being where the judge had an interest in the case which he decided, as in Dimes v Grand Junction Canal (1852), and where he would be automatically disqualified. The second rule was based on examination of all the relevant circumstances, where there was a real danger or possibility of bias as in R v Gough (1993). In relation to the circumstances surrounding one of the Locobail cases, 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, taking a broad commonsense approach, 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, and that such publications could further rather than hinder the administration of justice, nevertheless, it was always inappropriate for a judge to use intemperate language about subjects on which he had adjudicated or would have to adjudicate. The appeal was allowed and a retrial ordered. (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 applicants counsel had advised that the judge was unlikely to be biased. The Court ruled that such advice should not have been given as it influenced the applicants decision. The decision would be set aside.

(ix) In Helow v Secretary of State for the Home Department Times LR 5 November 2008 the House of Lords ruled that a judges 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 persons 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 Ridges 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 immigrants 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. The courts have however developed the exceptions. In R v Civil Service Appeal Board ex parte Cummingham (1991), 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 applicants compensation for unfair dismissal- was under a duty to give reasons. Fairness demanded that the Board give reasons, in the same manner as required for an industrial tribunal. (iii) In R v Secretary of State for the Home Department ex parte Doody (1993) the applicants who were serving mandatory life sentences, sought information as to the basis on which the decision concerning their mandatory detention had been reached. The House of Lords laid down two justifications for the requirement that information be given. First if reasons were not given to the applicants, the possibility of their successfully applying for judicial review would be frustrated. Second, the failure to give reasons adversely affected the concept of fairness. (iv) In R v Secretary of State for Home Dept ex arte Al Fayed [1997], 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 Secretarys concerns. (v) The giving of reasons, whether by court or administrative bodies, assumes increased importance in light of the Human Rights Act 1998. Article 5 of the Convention (the right to liberty and security) expressly states that persons arrested shall be informed promptly, in a language which he or she understands, the reasons for the arrest. Article 6, protects the right to a fair trial.

Page159 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; (b) Clauses which are designed to limit review to a specified time period; (c) Conclusive evidence clauses. 13.6.1 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...is final. The tribunal made an error of law. The Court

held that the jurisdiction of the court was not ousted by the statutory words. Lord Denning stated: the remedy of certiorari is never to be taken away by any statute except by the most clear and explicit words. The word final is not enough. That only means that without appeal. It does not mean without recourse to certiorari. (ii) In South East Asia Fire bricks v Non-Metallic Mineral Products Manufacturing Employees Union (1981) the ouster clause succeeded. 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, whilst in error, were not of such a fundamental nature as to deprive the court of jurisdiction. In the latter case, the ouster clause would be effective. (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. The House of Lords ruled that the jurisdiction of the courts was not ousted. Accordingly, the court had the power to review the FCCs decision which it declared null and void. This was because FCC had acted outside its jurisdiction by misinterpreting the statute. The effect of the Anisminic case is drastic. 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. The decision reveals the judicial emphasis on the rule of law. (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 courts 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. 13.6.2 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. In Smith v East Elloe Rural District Council (1956), 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. If not challenged within that period the order shall not... be questioned in any legal proceedings whatsoever. Mrs Smith did not do so. She argued that despite the time limit, it did not apply as the clerk acted in bad faith. The House of Lords by a majority rejected this view and upheld the time limit clause. (ii) A similar view was taken by the Court of Appeal in R v Secretary of State for the Environment ex parte Ostler (1976). Lord Denning in this case distinguished between a time limitation for review and a total exclusion of review. 13.6.3 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

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. (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.

Page160 13.7 THE BASIS FOR JUDICIAL REVIEW 13.7.1 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. (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; 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. 13.7.2 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. At first instance standing should be considered when leave to apply is sought. At that stage the court is concerned to ensure that it prevents abuse by busybodies, 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. (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. The students had legitimate expectations that they would be allowed to make representations to the Home Office, which they were denied in a matter affecting their individual liberty. (iii) Most recently, Mohamed and Ali Al Fayed have been granted leave to seek judicial review of The Home Offices refusal to grant them British citizenship, in which they allege they have been denied natural justice. (iv) The right of an individual to challenge the action of a body in the interests of society generally is more restrictive. In Gouriet v Union of Post Office Workers (1978) the House of Lords ruled that where

an individual was not asserting any private right and whose right was only that as member of the public in relation to public rights. (v) In R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg (1994) the applicant sought judicial review of the governments ratification of the treaty of the European Union without parliamentary consent. He was held to have sufficient standing, but the application was dismissed on the basis that the issue was non-justicable. (vi) On the standing of pressure groups, it depends on whether the group has its interests adversely affected by administrative decision-making. 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. When the Corporation announced that the number of licences was to be increased, without consulting the Operators Association, leave for judicial review was sought. It was held that the Association had sufficient standing. (vii) Similarly, 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. Note: Both the above cases concerned challenge to decisions affecting their own members.

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 case concerned the employment of casual labour on newspapers, where the workers frequently adopted false names and paid no income tax. 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. The National Federation (an association of taxpayers) argued that the IRC had no power to enter into the agreement ang sought judicial review. IRC contended that the Federation did not have sufficient interest. The House of Lords ruled that the court had been correct in granting leave at the first stage but on the facts at the second stage, the Federation lacked sufficient interest to challenge the particular wrongdoing alleged. 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. (ix) In R v Secretary of State for Foreign and Commonwealth Affairs ex parte Word Development Movement [1995], the WDM sought judicial review of the Foreign Secretarys decision to grant financial aid to Malaysia for the building of the Pergau Dam. The WDM argued that the Secretary of state had exceeded his powers. The court held that WDM had sufficient interest. The WDM played a prominent role in giving advice and assistance in relation to aid and had consultative status with the United Nations bodies.

(x) The Human Rights Act 1998 introduced a new basis for standing. Section 7 of the Act provides that only a victim of an act of a public body may make a claim. 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. It also excludes representative bodies and interest groups taking action on behalf of their members. (b) The Exclusivity Principle In OReilly v Mackman (1983) it was held that if that if an individuals rights are infringed in private law it is not a proper subject for judicial review.

13.8 REMEDIES (a) Certiorari it is an order which quashes the original decision. (b) Prohibition - an order which prevents a body from making a decision which would be capable of being quashed by a certiorari. It is therefore protective in nature. (c) Mandamus - an order which compels an authority to act. (d) Declaration - this is a statement of the legal position of the parties. Its effect is to nullify any previous decision, which is incompatible with the statement of law made by the court. (e) Injunctions - these may be interim or permanent, prohibitory or mandatory and a re used to prevent a Minister or administrative body from acting unlawfully. In M v Home Office (1993) it was held that injunctions could lie against Ministers of the Crown. (f) Damages pursuant to Section 8 of the Human Rights Act 1988.