.

?

Legislation: CONSTITUTIONAL REFORM ACT 2005

The Constitutional Reform Act 2005 was an Act of the UK Parliament that was divided into 3 parts. The first reformed the office of Lord Chancellor, the second created and set the framework for a UK Supreme Court and the third regulates the appointment of Judges. Previously, the highest court in the land had been the Appellate Committee of the House of Lords, and the Lord Chancellor (a minister) was also head of the Judiciary. This meant that the highest court of appeal in the UK was within the House of Lords, and thus it was suspected that appeals would be subject to political influence. 

The creation of the Supreme Court was aimed to achieve a clearer Separation of Powers between the legislature and the judiciary. The Court has its own building, the Middlesex Guildhall, on the other side of Parliament Square, separate from Parliament. When the Supreme Court was created eleven of the twelve Justices of the Supreme Court were recruited from the previous top judges (the Law Lords). Though they retain their titles they cannot sit or vote in the House of Lords. Future recruits will not be given peerages. Previously, judges were appointed by the Queen on the advice of the Lord Chancellor, which made those appointments appear subject to political influence.The CRA created the Judicial Appointments Commission. This independent commission proposes a candidate, and the Secretary of State for Justice can only say Yes/No. This should increase the feeling that judicial appointments are being made on merit rather than on political grounds. 

This meant that a constitutional situation in which the separation of powers was blurred was revised by the CRA. The historical mixture of legislative, judicial and executive power ran contrary to the requirements of Article 6 (p.1) of the ECHR. A judicial officer having legislative or executive power is likely not to be considered sufficiently impartial to provide a fair trial.

 

1 of 61

M V HOME OFFICE [1993]

Summary: A claim by a trafficking victim for damages for unlawful detention and for a failure to carry out a prompt and effective investigation into the circumstances of her entry into the UK was not an abuse of process. Contrary to the submission of the Home Office, this was not the same claim that had been, or ought to have been, made in judicial review proceedings brought by the claimant while she was in detention. The Home Office applied to strike out as an abuse of process the action brought against it by the claimant. The claimant was an Albanian national. In the summer of 2013, having been rped and forced into prostitution, she was trafficked into the UK via Italy and France. She was taken to an immigration removal centre on 9 July 2013. On 10 July 2013, she made a claim for asylum. In August, the Home Office refused the claim and certified it on Dublin II grounds, the claimant having arrived via Italy. In September 2013, the claimant made an application for judicial review, which was unsuccessful. She was released from detention on 10 October 2013. On 15 June 2015, she issued the instant action. She claimed damages for unlawful detention and for a failure to carry out a prompt and effective investigation into the circumstances of her entry into the UK, which she said would have identified her as a victim of trafficking at a much earlier stage than was in fact the case (the Home Office accepted that she was a victim of trafficking in January 2016). She relied on breaches of ECHR art.4art.5 and art.8. The Home Office sought to strike out the claim on the basis it was the same claim that was, or ought to have been, made in the judicial review proceedings. As an alternative, the Home Office sought summary judgment on certain of the claimant's claims which it said had been presented outside the one-year time limit in the Human Rights Act 1998 s.7(5).

Held: Application refused.

(1) It would not be appropriate to strike out the claim. It was clear that the thrust of the judicial review was directed to the certification. It was true that the detention was also challenged but that challenge was tangential to the main focus of the application. Further, the challenge was not based on the claimant's status as a potential victim of trafficking. Although trafficking had been raised in correspondence, the time and resources devoted to it by the Home Office were minor. It could not realistically be said that the Home Office was being required to re-defend the claim two years on. Still less was the court being required to reconsider it. On the contrary, the court had not yet considered it at all. As to whether the instant claim could have been made within the judicial review proceedings, the following points were relevant: the application for judicial review was prepared by a solicitor who was very recently instructed, lacked a complete set of correspondence and was unable to speak to the claimant; the application had been prepared under significant pressure of time; the claimant lacked the understanding necessary to appreciate the significance of her being a potential victim of trafficking; indeed, on the evidence she did not even realise that her experiences might so qualify her, a state of ignorance that the Home Office's own guidance credited as commonplace and plausible; further, she had not had the assistance of an interpreter. Given those factors, it was unsurprising that the claimant did not challenge her detention on the grounds now relied on. That could not be described as culpable on her part. By contrast, there would appear to be legitimate criticism of the Home Office for its failure to refer her case to the National Referral Mechanism. Lastly, the human rights said to have been infringed included those under arts 4 and 5, which were among the most important and fundamental rights in the ECHR. It would be an injustice to the claimant if a claim based on those rights were to be shut out (see paras 19-23 of judgment). (2) The claimant had sought an extension of time in respect of those claims which were caught by the one-year time limit in s.7(5). It could not be said that that application had no real prospect of success. The delay was relatively short and its effect on the cogency of the evidence would be negligible. The claimant's very difficult circumstances invited sympathy. It was also very relevant that certain human rights claims (for example, the claim for a declaration of breaches of arts 4 and 8) and the claim for wrongful imprisonment would be going forward anyway. In the circumstances, it would not be appropriate to accede to the alternative application for summary judgment (paras 25-26).

2 of 61

R V LOOSELY [2001]

Whilst in English law entrapment is not a substantive defence, where a defendant to criminal proceedings can show entrapment the court may stay the proceedings as an abuse of process, or it may exclude evidence pursuant to s 78 of the Police and Criminal Evidence Act 1984. Of those two remedies the grant of stay, rather than the exclusion of evidence at the trial, should, as a matter of principle, normally be regarded as the appropriate response in a case of entrapment. A prosecution founded on entrapment would be an abuse of the court’s process.

Police conduct which brings about state-created crime is unacceptable and improper. In deciding whether conduct amounts to state-created crime, the overall consideration is whether, having regard to all the circumstances of the case, the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute.

The nature of the offence; the reason for the particular police operation; the nature and extent of police participation in the crime; and the defendant’s criminal record will be particularly relevant to that question. Neither the judicial discretion conferred by s 78 of the 1984 Act, nor the court’s power to stay proceedings as an abuse of the court, has been modified by art 6 of the European Convention on Human Rights. There is no appreciable difference between the requirements of art 6, or the Strasbourg jurisprudence on art 6, and the English law as it has developed in recent years.

A case considering the implications of entrapment. Lord Nicholls: '.. every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state...'

3 of 61

JACKSON V ATTORNEY GENERAL [2005]

Summary

There was power to amend the Parliament Act 1911 to the extent of the amendment contained in the Parliament Act 1949 and, accordingly, the Hunting Act 2004 was validly made in accordance with the provisions of the 1911 and 1949 Acts.

Abstract

The appellant members of the Countryside Alliance (C) appealed against a decision ([2005] EWHC 94, Times, January 31, 2005) that the Parliament Act 1949 had been validly made under the power contained in the Parliament Act 1911 to enact legislation without the consent of the House of Lords and that the Hunting Act 2004 had been validly made under the 1949 Act. The 2004 Act became an Act of Parliament without the assent of the House of Lords pursuant to the provisions of the 1911 Act, as amended by the 1949 Act. The 1911 Act had restricted the ability of the House of Lords to delay the enactment of legislation by providing that after a period of two years had elapsed in the circumstances described in the 1911 Act, a Bill could become an Act of Parliament without it being passed in the House of Lords. The 1949 Act had amended the 1911 Act by reducing the two year period to one year. C opposed the 2004 Act and challenged the validity of the 1949 Act on the grounds that it had not been permissible as a matter of law to rely on the provisions of the 1911 Act to enact the 1949 Act and that the 1911 Act could only have been lawfully amended with the consent of the House of Lords. The Administrative Court dismissed C's application. C argued that (1) legislation passed under the 1911 Act was not primary but delegated or subordinate legislation and the Administrative Court had erred in describing legislation passed under the 1911 Act as "more akin to primary legislation"; (2) the Administrative Court had erred in holding inapplicable the established principle that powers given by an enabling Act could not be enlarged or modified save by express words of authorisation; (3) on its proper interpretation, s.2(1) of the 1911 Act did not authorise the House of Commons to remove or attenuate the conditions on which its law making power was granted.

Held, dismissing the appeal, that (1) whether the 1949 Act was primary or delegated legislation was not decisive. There were differences between the traditional powers of Parliament when legislating and its powers when legislating under the 1911 Act. The effect of the 1911 Act was susceptible to judicial analysis. The authority of the 1949 Act purported to be derived from the 1911 Act. The latter Act, by s.3, expressly envisaged the possibility that the validity of subsequent Acts enacted pursuant to its provisions might be subjected to judicial scrutiny. The use to which the 1911 Act could be put was limited. It could not be used to make fundamental constitutional changes. Reducing the delaying power from two years to one was not such a change. (2) Section 2(1) was wide enough to embrace a Bill which amended s.2 itself. There was no established constitutional principle which denied a power of amendment of the earlier statute in the absence of an express conferral of such a power. The 1911 Act could be modified by legislation made in accordance with that Act. (3) There was nothing in the language of s.2(1) which prevented the amendment made by the 1949 Act. The relatively modest changes made to the 1911 Act by the 1949 Act did not fall outside the scope of the 1911 Act. When the 1911 Act was debated in the Lords and Commons, each House plainly understood that the 1911 Act would be open to amendment in the manner adopted by the 1949 Act and for over 50 years the 1949 Act had been treated as valid by Parliament, the Crown and the public. There was power to amend the 1911 Act to the extent of the amendment contained in the 1949 Act, and the modification of the 1911 Act by the 1949 Act was legally effective.

4 of 61

PICKIN V BRITISH RAILWAYS BOARD (1974)

The courts have no power to examine proceedings in Parliament to determine whether the passing of an Act, public or private, had been obtained by irregularity or fraud. The Board were successors in title to the company owning land on which a railway line ran. By the Bristol and Exeter Railway Act 1836 s.259 if the railway should be abandoned the land would vest in the owners of the adjoining land. In 1968 Parliament passed the British Railways Act 1968, a private Act, cancelling the effect of Bristol and Exeter Railway Act 1836 s.259.

From the early 1960's use of the line was discontinued in stages, the track being taken up in 1969. P, who had bought part of the relevant adjoining land to obtain locus standi, sought a declaration that he owned the land to the middle of the track. The Board applied to strike out that part of P's pleading which alleged that the British Railways Act 1968 was ineffective since it contained a false recital and its passing had been obtained by the Board's misleading Parliament.

Held: Allowing the Board's appeal and ordering the striking out, that P's allegations could only be established by examining the procedure by which Parliament passed the Act, which examination, of either public or private Acts, the court was not empowered to entertain. 

5 of 61

MADZIMBAMUTO V LARDNER-BURKE [1969]

In 1923 Southern Rhodesia came under the protection of the Crown and became known as the Colony of Southern Rhodesia. By 1961 it had become an established convention for the Parliament of UK not to legislate for Southern Rhodesia on matters within the competence of the legislative assembly of Southern Rhodesia except with the agreement of Southern Rhodesia. In the latter year a new Constitution was granted (the ‘1961 Constitution’). In that Constitution it was provided, inter alia, that ‘no person shall be deprived of his personal liberty save as may be authorised by law’ but that ‘nothing contained in any law shall be held to be inconsistent with or in contravention of’ that provision ‘to the extent that the law in question makes provision with respect to the taking during any period of public emergency of action for the purpose of dealing with any situation arising during that period’. A ‘period of public emergency’ was defined as meaning, inter alia, any period not exceeding three months during which a state of emergency had been declared to exist by proclamation. It also provided that any person aggrieved by any determination of the High Court relating to an alleged contravention of those provisions could appeal to Her Majesty in Council. The 1961 Constitution also provided, subject to specially entrenched provisions and the right of Her Majesty in Council to amend, etc, nine specified sections, for the amendment of the Constitution by the legislature. The Emergency Powers Act 1960, of Southern Rhodesia remained in force under the 1961 Constitution. It enabled the Governor to proclaim a state of emergency which could remain in force for three months only. Whilst the proclamation was in force regs could be made by the Governor making provision for summary arrest or detention of any person. A state of emergency under the Act of 1960 was proclaimed (validly) on 5 November 1965, and regs were made under the Act.

On 6 November 1965, the first respondent made an order for the detention of appellant's husband. On 11 November Mr Smith, the Prime Minister and his Ministerial colleagues issued a unilateral declaration of independence to the effect that Southern Rhodesia was no longer a Crown colony but an independent sovereign state. On the same day, the Governor issued a statement on behalf of Her Majesty that Mr Smith and other government Ministers and deputy Ministers ceased to hold office and called on all citizens to refrain from acts which would further the objectives of the illegal authorities but added that it was the duty of all citizens to maintain law and order and to carry out their normal tasks. On 16 November, by the Southern Rhodesia Act 1965, the Parliament of UK declared that it had responsibility and jurisdiction for Southern Rhodesia as theretofore and providing for Her Majesty by Order in Council to make such provision as appeared to be necessary or expedient in consequence of any unconstitutional action. The Southern Rhodesia Constitution Order 1965 (the ‘Order in Council’) was made under that Act. It declared that any instrument made or act done in promulgation of any Constitution for Southern Rhodesia (except as authorised by Act of Parliament) was void; it provided, inter alia, that no laws could be made nor business transacted by the legislative assembly of Southern Rhodesia and that any law made in contravention of the order was void. The dismissal of the Prime Minister and other Ministers was ignored and a new Constitution (the ‘1965 Constitution’) adopted; thereafter the usurping government proceeded on the basis that the 1965 Constitution had superseded the 1961 Constitution. The state of emergency proclaimed on 5 November 1965, came to an end on 4 February 1966, and steps were taken under the 1965 Constitution to prolong it. The Emergency Powers (Maintenance of Law and Order) Regulations 1966 (the ‘emergency powers regulations’), were made by the Officer Administering the Government (a post created by the 1965 Constitution) and under these the first respondent made an order continuing the detention of appellant's husband. Appellant thereupon questioned the legality of her husband's detention in the courts; no objection to appellant's title to raise these proceedings was made at any stage. On the question of the legality of the order for detention made under the emergency powers regs: Held the emergency powers regulations made in Southern Rhodesia after 11 November 1965, had no legal validity, force or effect, and any detention order made thereunder was legally invalid because (i) there was nothing in the 1961 Constitution which could be interpreted as a grant of limited sovereignty and hence Southern Rhodesia Act 1965, and the Order in Council, had full legal effect in Southern Rhodesia; (ii) concepts of de facto and de jure government were inappropriate in dealing with the legal position of a usurper within the territory of which he had acquired control, and whilst the legitimate government was trying to regain control it was impossible to hold that the usurping government was for any purpose a lawful government; nor could the Statute of 1495 (11 Hen 7, c 1) be invoked to support the proposition that a usurping government in control must be regarded as a lawful government; (iii) even if there were a principle, depending on implied mandate from the lawful Sovereign, which recognised the need to preserve law and order in territory controlled by a usurper, such principle could not override the legal rights of the Parliament of UK to make such laws as it thought proper for a territory under the sovereignty of Her Majesty in the Parliament of UK; and the Order in Council prevented any purported law made by any person or body in Southern Rhodesia from having any legal effect; (iv) the position with regard to administrative acts was similar; the Prime Minister and his colleagues had been dismissed from office and the terms of the Order in Council which prevented the lawful appointment of new Ministers could not be overridden by the Governor's statement; (v) the emergency powers regs, made by the Officer Administering the Government, an office created by the 1965 Constitution which was itself void by reason of the Order in Council, were therefore invalid.

Held: That the legal effect in Southern Rhodesia of the Southern Rhodesia Act 1965 and the Order in Council made pursuant to it, was to confirm the power of the United Kingdom Parliament to legislate for Southern Rhodesia, and was also to nullify all administrative and legislative acts of the usurping government in that country; (2) that usurping government now in control of that country cannot be regarded as the lawful government thereof for any purpose; (3) that the courts of that country were not entitled to recognise the usurping government for any purpose on the ground that it was necessary to do so for the preservation of law and order; and (4) that the appellant's husband, who was detained in prison there under the authority of regulations made by the usurping government, was unlawfully detained.

6 of 61

CHENEY V CONN [1968]

It is not possible to declare a statute void on the ground of alleged illegality of its purpose, for if this were possible the supremacy of Parliament would be denied. A taxpayer appealed against certain assessments on the ground that the Government was applying part of the taxes for the years in question in the construction of nuclear weapons. He contended that such use conflicted with the Geneva Conventions incorporated in the Geneva Conventions Act 1957 and conflicted with international law. The Special Commissioners dismissed his appeal and the taxpayer appealed further. Held, dismissing his further appeal, (1) that the 1957 Act's title and preamble (which referred to incorporation of the Geneva conventions) were not part of the law of the United Kingdom; (2) that there was no clash between the statutory content of the 1957 Act and the Finance Act 1964(under which the tax in question was chargeable); and (3) that a statute could not be challenged on the grounds that its purpose was illegal.

7 of 61

R (MILLER) V SECRETARY OF STATE FOR EXITING THE EU

The UK entered the European Economic Community – which later became the European Union (‘EU’) – in 1973. European law took effect through the European Communities Act 1972 (‘1972 Act). In 2015, a referendum under the auspices of the European Union Referendum Act 2015 produced a majority in favour of leaving the EU. The issue for the court was what legal steps needed to be taken to initiate the process of leaving. The core question was whether Government ministers could give formal notice without a new Act of Parliament. The court expressly stated that the case had nothing to do with any of the political issues surrounding withdrawal from the EU.

Also raised in the case was the impact on the devolved administrations of Wales, Scotland and Northern Ireland. The ‘devolution issues’ raise the question of whether consultation or agreement of the devolved institutions would be necessary before notice to leave the EU could lawfully be given.

The main issue in determining the case was whether the SoS could bring about changes in domestic law by exercising his powers at international level and this raises two potentially conflicting principles. The first is that the SoS generally can enter or exit treaties without the need for a fresh Act of Parliament. The second is that the Secretary of State cannot normally exercise any powers he has if it would result in a change in UK domestic law unless he has authorisation from an Act of Parliament. The question is whether the second principle prevents the SoS from giving notice to the EU until a new Act authorises that to happen.

8 of 61

BURMAH OIL V LORD ADVOCATE [1965]

There is no general rule that the royal prerogative can be exercised without compensation. No compensation is payable for damage done in battle, but this applies only to military operations and not to the destruction of property to prevent it falling into the hands of an advancing enemy. In 1942 the G.O.C. Burma ordered the appellant's oil installations there to be destroyed to prevent them falling into the hands of the advancing Japanese who would have found them of great strategic value. The appellant sued for compensation.

Held: (Viscount Radcliffe and Lord Hodson dissenting), that the appellant was entitled to compensation as this was not battle damage and (unanimously) the Public Authorities Protection Act 1893,s.1 , was no defence. (Decision of First Division of Court of Session, 1963 S.L.T. 261 reversed; De Keyser's Royal Hotel Ltd, Re [1920] A.C. 508, [1920] 5 WLUK 46 applied). Note: the War Damage Act 1965 subsequently overruled this decision which has been superseded.

9 of 61

ELLEN STREET ESTATES LTD. V MINISTER OF HEALTH [19

Two Acts were in conflict with regard to the terms of compensation following the compulsory purchase of land. The 1919 Act had laid down certain rules for the compulsory purchase of land and had stated that any other Act inconsistent with those rules shall have no effect. In 1925 the Housing Act was then passed. Its terms were  inconsistent with the 1919 Act.

Maugham LJ held that it was impossible for the legislature to bind itself in terms of future legislation. Therefore, if Parliament makes it perfectly obvious they wish to repeal the earlier Act, it must have effect and the later Act shall be implemented. Therefore, the later Act was valid, and took precedence, despite the provision in the 1919 Act.

10 of 61

THOBURN V SUNDERLAND CITY COUNCIL [2003]

Summary

The Weights and Measures Act 1985 s.1, which as originally enacted had provided for the continued use of either imperial or metric measures, had not impliedly repealed the European Communities Act 1972 s.2(2) to the extent that the latter empowered the provision of subordinate legislation which was inconsistent with it; the 1972 Act was a constitutional statute which could not be impliedly repealed.

Abstract

In four appeals the issue before the court concerned the introduction in accordance with the policy of the European Union of compulsory systems of metric weights and measures. In three of the appeals the appellants had been convicted for selling produce using non metric measures. In the fourth appeal the appellant challenged the imposition of conditions on his street trading licence relating to his use of metric weights and measures. By virtue of Council Directive 80/181 Art.1 , as amended by Council Directive 89/617 , together with Chapter IV of the Annex, the continued use of imperial measures for trade in goods loose in bulk was only permitted until December 31, 1999. Prior to the amendment, the Weights and Measures Act 1985 had permitted the continued use of imperial and metric measures for such goods. The Units of Measurement Regulations 1994 had amended the 1985 Act so that the use of imperial measures was permitted in relation to such goods as either a primary or a supplementary indicator until January 1, 2000. However, thereafter the use of the pound as a primary indicator of weight was forbidden. The arguments before the court related to the doctrine of implied repeal and, in particular, whether the 1985 Act had impliedly repealed the European Communities Act 1972 s.2(2) to the extent that the latter empowered the provision of subordinate legislation which was inconsistent with it. Held: Dismissing the appeals, that the 1985 Act, as originally enacted, had not impliedly repealed s.2(2) of the 1972 to the extent that the latter empowered the provision of subordinate legislation which was inconsistent with it. The appropriate analysis of the relationship between EC and domestic law required regard to four propositions: (1) each specific right and obligation provided under EC law was by virtue of the 1972 Act incorporated into domestic law and took precedence. Anything within domestic law which was inconsistent with EC law was either abrogated or had to be modified so as to avoid inconsistency; (2) the 1972 Act was a constitutional statute which could not be impliedly repealed; (3) the common law recognised a category of constitutional statutes, and (4) the fundamental legal basis of the United Kingdom's relationship with the EU rested with domestic rather than European legal powers. In the instant case, since the amendments to the 1985 Act no longer permitting the use of the pound as a primary indicator had been lawful, the four appeals had to be dismissed.

11 of 61

H V LORD ADVOCATE [2013]

Summary

The extradition of the parents of six young children to the United States to face drugs charges was not incompatible with either their rights or the rights of their children under the European Convention on Human Rights art.8. The children's art.8 rights were outweighed by the overwhelming public interest in giving effect to the extradition request.

Abstract

The appellants (H and W) each appealed against a decision of the High Court of Justiciary ([2011] HCJAC 77, 2011 S.C.L. 978) upholding an order for their extradition to the United States. H and W were a married couple who had been living in Scotland with their six children, four of whom were under 10. All the children had been placed on the child protection register as a result of allegations that H had sexually abused other children. The US had requested H and W's extradition on charges of conspiracy and the unlawful importation of chemicals used to manufacture methamphetamine. A sustained and deliberate course of unlawful conduct was alleged and the charges were serious, punishable by substantial terms of imprisonment. H and W fought the extradition application on the basis that it would lead to the breakdown of the family and would be incompatible with their rights under the European Convention on Human Rights art.8. The sheriff rejected that argument and sent the case to the Scottish Ministers, who ordered H and W's extradition. The High Court of Justiciary rejected H and W's appeals. By that time, W had ended her relationship with H and the two eldest children were reluctant to see him. The issues were (i) whether the appeals were competent; (ii) whether the children's art.8 rights were outweighed by the strength of any other considerations.

Held

Appeals dismissed. (1) The appeals were competent. There was no appeal to the instant court from a decision of the High Court of Justiciary under the Extradition Act 2003 s.103. However, the question of whether H and W's extradition was compatible with art.8, and thus whether the Scottish Ministers had the power under the Scotland Act 1998 s.57(2) to order it, was a devolution issue within the meaning of Sch.6 para.1(d) of the 1998 Act. Section 116 of the 2003 Act did not exclude the right of appeal to the Supreme Court on a devolution issue and in those circumstances an appeal lay to the instant court under Sch.6 para.13 of the 1998 Act (see paras 4, 24-34 of judgment). (2) The reasoning in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 A.C. 166, [2011] 2 WLUK 49, though concerned with deportation rather than extradition, was relevant to how issues about the rights of children should be dealt with in the context of an application for their parents' extradition, ZH applied. Extradition cases did not fall into a special category which diminished the need to examine carefully the way the process would interfere with the individual's right to respect for his family life. The approach to art.8 rights in extradition cases was not radically different from that adopted in deportation or expulsion cases. In both types of case great weight had to be given to the public interest in giving effect to a request for extradition: the more serious the offence, the greater the weight. Where the family life of children was involved, their best interests were a primary consideration and the question was whether their art.8 rights were outweighed by the strength of any other considerations. While that was the starting point, it did not mean that the decision-maker had to examine the interests of the children at the very beginning of the exercise, R. (on the application of HH) v Westminster City Magistrates' Court [2012] UKSC 25, [2013] 1 A.C. 338, [2012] 6 WLUK 423 considered. It simply ensured that the best interests principle was not seen as having a reduced importance when there were other important compelling considerations that had to be respected (paras 47-50). (3) In the instant case there was the prospect of H and W being kept apart from their children and, perhaps, the children from each other for a very long time. The children's family relationship with H had effectively come to an end, and the prospect of their ever resuming family life together was remote. The argument that it would be contrary to their best interests for him to be extradited was very weak, while the treaty obligation requiring effect to be given to the extradition request was compelling. H's appeal therefore failed (paras 52-55). (4) W's case was more difficult. There was no doubt that it was in the children's best interests to continue to live with her, but were she to be extradited then there was a risk that they would be taken into care. Cases such as the instant one, where the parents of young children were both at risk of being extradited, were so exceptional as to require the court to be satisfied that the interests of justice could not equally well be served by prosecuting H and W in the United Kingdom, Norris v United States [2010] UKSC 9, [2010] 2 A.C. 487, [2010] 2 WLUK 676 considered. The issue was one of proportionality: the more compelling the interests of the children, the more important it would be for the alternatives to extradition to be carefully examined. In the circumstances, it would not be appropriate for H and W to be tried in the UK; the proper forum was the US. The children's best interests, even taken together with W's own art.8 right, were not strong enough to overcome the overwhelming public interest in giving effect to the extradition request. The order for W's extradition was therefore not incompatible with her Convention rights and her appeal also failed.

12 of 61

R (HS2 ACTION ALLIANCE LTD.) V SECRETARY OF STATE

Summary

Safeguarding directions made by the Secretary of State for Transport in relation to the high speed rail project HS2 did not constitute a plan or programme which set the framework for future development consent within the meaning of Directive 2001/42 art.3(2). Accordingly, the secretary of state had not erred in failing to assess the directions under the regime for strategic environmental assessment before their adoption.

Abstract

The first claimant campaign group (H) and the second claimant local authority (X) applied for judicial review of safeguarding directions made by the defendant secretary of state in relation to Phase 1 of a proposed new high speed rail project, HS2. The proposed new rail network would link cities across England and, if built, would transform the environment. H vigorously opposed the proposals, as did X whose areas were crossed by the proposed route. In June 2014, the secretary of state issued safeguarding directions to "protect the planned railway route from conflicting development before construction starts". Their aim was to "ensure that new developments along the route do not impact on the ability to build or operate HS2 or lead to excessive additional costs". Under the directions, any applications for planning permission would be assessed by the interested party company (C), and the secretary of state had the power to restrict the grant of planning permission. It was H and X's case that the directions fell within the scope of Directive 2001/42 art.3(2) and art.2(a) because they constituted a plan or programme setting the framework for future development consent and were required both by legislative and administrative provisions. They argued that the directions ought to have been subject to a strategic environmental assessment before their adoption. The court was required to determine whether (i) the directions were a plan or programme which set the framework for future development consent; (ii) the directions were required by legislative or administrative provisions; (iii) if both of those issues were decided in H and X's favour, the directions ought to be quashed.

Held

Application refused. (1) The crucial issue was whether the directions could properly be said to set the framework for the future development consent of relevant projects. That issue divided into two questions: (a) whether the directions were a plan or programme setting the framework for the future development consent of the HS2 project itself; (b) whether they were a plan or programme setting the framework for the future development consent of any other project. The answer to both questions was "no". In the light of the decision in R. (on the application of Buckinghamshire CC) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 W.L.R. 324, [2014] 1 WLUK 434, it could not be said that the directions constituted or functioned as a framework for the subsequent consideration and determination of any proposal for development, including the HS2 project itself, or that they prevented the likely effects of any proposed development on the environment being taken into account when relevant decisions were made. The directions were a manifestation of the project as a zone of safeguarded land for Phase 1. No doubt the directions demonstrated the Government's belief that the safeguarded land provided a viable route for the railway and sufficient land to enable its construction. However, they did not represent the evolution of the HS2 project into a plan or programme setting the framework for future development consent. They adjusted the procedures for making planning decisions, providing formal arrangements for C to be consulted and ultimately for the secretary of state to intervene in the process by restricting the grant of planning permission. They were not, however, a framework of policy or criteria constraining the discretion of the decision-maker in the making of the decision. It would be the HS2 project itself, as it was at the relevant time, which informed C's response to consultation and the intervention of the secretary of state in the process, if he did intervene. The directions added to the existing provisions of statute and regulations which governed development control decision-making. They did not override the requirements in the Planning and Compulsory Purchase Act 2004 s.38(6) and the Town and Country Planning Act 1990 s.70(2), and did not displace the existing statutory arrangement for consultation on applications for planning permission. Furthermore, the fact that directions had been put in place as a procedural mechanism to safeguard the HS2 project was capable of being a material consideration when a planning decision was made. However, their status as such did not elevate them to the position and role of a plan or programme under art.3. They did not constitute a "framework of planning policy". Nor did they prejudice any process of environmental assessment, and the absence of a strategic environmental assessment for the directions did not perpetuate a gap in environmental protection (see paras 44-57 of judgment). (2) In the light of the judgment in Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale (C-567/10) EU:C:2012:159, [2012] 2 C.M.L.R. 30, [2012] 3 WLUK 731, in view of conclusions expressed in Buckinghamshire on the analogous question in previous proceedings, and in the absence of any convincing argument to the contrary, the directions were "required" in the relevant sense, both by legislative and administrative provisions, Bruxelles considered and Buckinghamshire applied. They were issued under, and thus "regulated by", legislative provisions, namely s.74(1) of the 1990 Act and the Town and Country Planning (Development Management Procedure) (England) Order 2010 arts 16(4)25(1) and 29(6) (paras 63-64). (3) If the court had concluded that the directions were subject to the requirements of the Directive, it would have exercised its discretion and made an order to quash them. The secretary of state would not have been able to rely on art.11 of the Directive to avoid the requirement for an assessment (paras 67-74).

13 of 61

MACCORMICK V LORD ADVOCATE [1953]

The petitioners sought an interdict against the publication of a proclamation entitling Her Majesty as, inter alia, "Elizabeth the Second of the United Great Britain." The Court of Session, Inner House, held that the Royal Titles Act 1953 had no proper bearing upon the issue in controversy; that there was nothing explicit in the Union with Scotland Act 1707 Art.1 which prohibited the use or the adoption of the numeral, "the Second," complained of; that the action was incompetent as it had not been shown that the court had authority to entertain the issues raised; and that, in any case, the petitioners had no title or interest to present the petition.

14 of 61

ATTORNEY GENERAL FOR NEW SOUTH WALES V TRETHOWAN [

At the time this appeal from the High Court of Australia was heard, New South Wales, Australia, was a colony of the British Empire. Its law-making institutions were subject to, inter alia, the provisions of the Colonial Laws Validity Act 1865 of the Imperial Parliament at Westminster, and its own Constitution Act 1902, as amended. In narrow terms, we are concerned with the consequences flowing from the introduction of s. 7A into the 1902 Act by the Constitution (Legislative Council) Amendment Act 1929.

The Court was asked to assess whether a provision in s. 7A of the Constitution Act 1902 was capable of preventing the passage of Bills passed after its introduction where those Bills did not comply with the terms of that provision. In 1930 two Bills were introduced to the legislature of New South Wales that sought to abolish the jurisdiction’s Legislative Council in a two-stage process. The first Bill repealed the provisions of s. 7A and the second Bill abolished the Council. The 1902 Act said such action could only be authorized if approved by a referendum. It was contended by the appellants that the two-stage process was lawful.

Looking more widely, this note addresses two interconnected parliamentary sovereignty issues. First, is it possible for a legislature to bind the actions of a future legislature by specifying the manner (way) and the form (e.g. construction of words) required to repeal legislation? Secondly, what questions does this raise about the possibility of entrenching legislation in the United Kingdom?

Sankey LC thought s. 5 of the Colonial Laws Validity Act 1865 clear and decisive in this context. Section 5 of the 1865 Act allowed that: 'Every representative legislature shall … have … full power to make law respecting … such legislature … provided that such laws shall have been passed in such manner and form as may … be required. (emphasis added)

Therefore, Sankey LC concluded, if the conditions of the proviso (the ‘manner and form’ element) were not complied with, this would undermine the legality of any attempt to pass laws affecting the legislature.

The Court agreed that the legislature of New South Wales had the capacity to enact the 1929 Act, which introduced s. 7A into the 1902 Act, viewing those provisions as ‘completely enacted’ in accordance with s. 5 of the 1865 Act. As such, s. 7A validly introduced new requirements for the passage of legislation affecting the legislature as covered by s. 5 of the 1865 Act. In consequence, any attempt to introduce a non-compliant Bill for signature by the Governor would, thereafter, be unlawful if it did not comply with the new manner and form provisions incorporated at s. 7A in the 1902 Act. This meant that the two Bills introduced in 1930 to abolish the Council could not be valid until they complied with s. 7A.

15 of 61

VAN GEN DEN LOOS V NEDERLANDSE ADMINISTRATIE DER B

A Member State's duty under Art.12 not to introduce new customs duties or to increase existing duties creates a corresponding right upon individual citizens of the Member State, which they can enforce in national courts. The Tariefcommissie, a Dutch administrative tribunal, made a reference to the European Court under the Treaty of Rome 1957 Art.177. Held: Art.12 has direct application within a Member State and enures to the benefit of individual citizens, and (2) in determining whether customs duties have been increased, one must take into account duties applied at the date of the Treaty entering into force. Such an increase can result from a rearrangement of the tariff.

16 of 61

WEBB V EMO AIR CARGO (UK) LTD [1995]

W was engaged by E to replace a pregnant employee during M's maternity leave, it being envisaged that W would continue to work for E after the return of M. Shortly after her appointment, it was discovered that W was pregnant, and E dismissed her. W claimed that her dismissal was contrary to the Sex Discrimination Act 1975 s.1. The House of Lords sought, before final disposal of the appeal, a ruling from the Court of Justice of the European Communities on a question concerning Council Directive 76/207, as to whether it was discriminatory for an employer to dismiss a female employee in such circumstances, if the employer would not have appointed her had he known of her pregnancy, and would similarly have dismissed a male employee engaged for the same purpose who required leave of absence for medical or other reasons.

The court ruled that Art.2(1) read with Art.5(1) precluded the dismissal of an employee who was recruited for an unlimited time with a view initially to replacing an employee on maternity leave but who could not do so because, shortly after her recruitment, she had herself been found pregnant. Held: Allowing W's appeal, and remitting the case to the industrial tribunal to assess compensation, that the Sex Discrimination Act 1975 s.1(1)(a) and s.5(3) were to be interpreted consistently with the ruling of the ECJ as meaning that the fact that it was pregnancy that caused W's temporary unavailability at a time when she knew her services were particularly required was a circumstance relevant to her case that could not be present in the case of the hypothetical man.

17 of 61

R V SECRETARY OF STATE FOR TRANSPORT EX P. FACTORT

Summary

Appeal against determination that UK government liable to compensate Spanish fisherman following enactment of Merchant Shipping Act 1988 and allied legislation which breached Community law; contention that imposition in 1988 Act of conditions relating to nationality, domicile and residence not sufficiently serious to found a liability in damages when considered in the light of the national interest in protecting fish quotas and the need to clarify relevant community legislation; imposition of relevant conditions constituted manifest and grave disregard of UK discretion equating to sufficiently serious breach. This case is the basis for the term"Factortame".

Abstract

The Secretary of State appealed against a decision that the breaches of EC law found following a reference to the ECJ ([1992] Q.B. 680), committed by the UK by the imposition of nationality, domicile and residence conditions under the Merchant Shipping Act 1988 on those wishing to register to fish in UK waters, were sufficiently serious to allow the applicants, owners and managers of Spanish trawlers who were thereby precluded from registration, to pursue a claim for damages against the UK Government. The Secretary of State contended that the breach was not sufficiently serious to render the Government liable, since by enacting the legislation the Government was exercising a wide discretion provided for by Community law in the application of the quota system under the common fisheries policy and the action taken was necessary to alleviate serious economic problems in the UK fishing industry. Further, that the legal position on this issue was unclear at the time in question. The Secretary of State argued that the Government could legislate with the aim of protecting national quotas and that the action taken was objectively justifiable in the absence of a serious abuse of its powers under Community law. Held, dismissing the appeal, that the breach was sufficiently serious to render the UK government liable to pay damages to those individuals who had suffered loss as a consequence of the breach. The EC Treaty Art.7 (repealed by the Treaty of Amsterdam) was a directly applicable unambiguous Treaty provision, intended to confer rights on individuals and the UK government had adopted the legislation deliberately, after seeking legal advice, in blatant disregard of the Commission's opposition. Furthermore, the decision to use primary legislation, which could not be challenged in domestic courts, and the speed at which the Act became effective, pointed to the seriousness of the breach as did the fact that the consequences flowing from the Act were almost certain to have a serious impact on Spanish fishermen. The restrictions on residence extended to the shareholders and directors of companies owning fishing vessels, rather than just to the working fisherman, and that was clearly discrimination which could not be justified. The fact that the government had imposed restrictions on nationality, residence and domicile was evidence that it had exceeded what was necessary to achieve its aim, notwithstanding that the Government was acting in good faith in seeking to protect national quotas, Brasserie du Pecheur SA v Germany (C-46/93) EU:C:1996:79, [1996] Q.B. 404, [1996] 3 WLUK 59 considered.

18 of 61

GHAIDAN V GODIN-MENDOZA [2004] 2 AC 557

Summary

It was possible under the Human Rights Act 1998 s.3 to interpret the Rent Act 1977 Sch.1 para.2 so that it was compliant with the rights set out in the Human Rights Act 1998 Sch.1 Part I. The court was required to depart from the interpretation of para.2 enunciated in Fitzpatrick v Sterling Housing Association Ltd [2001] 1 A.C. 27, and para.2 should be read, and given effect to, as though the survivor of a homosexual couple living together was the surviving spouse of the original tenant.

Abstract

The instant appeal against a decision of the Court of Appeal ([2002] EWCA Civ 1533, [2003] Ch. 380) was concerned with the survivorship rights of cohabiting same sex couples in respect of statutory tenancies. The focus of the appeal was the interpretation of the Rent Act 1977 Sch.1 para.2 . Paragraph 2 provided for the succession rights of surviving spouses and those who lived together as husband and wife. According to Fitzpatrick v Sterling Housing Association Ltd [2001] 1 A.C. 27, [1999] 10 WLUK 902 this did not apply to cohabiting same sex couples. The issue for determination was how para.2 should be interpreted in the light of the Human Rights Act 1998 . Held, dismissing the appeal (Lord Millett dissenting), that para.2 violated Sch.1 Part I Art.14 of the 1998 Act taken together with Art.8. There was no justification for the difference in treatment of heterosexual and same sex couples. Pursuant to the power contained in s.3(1) of the 1998 Act, para.2 of the 1977 Act was to be interpreted to comply with the 1998 Act. Therefore the difference in treatment was eliminated. Such an interpretation was consistent with para.2's underlying social policy of providing security of tenure, Fitzpatrick considered.

19 of 61

A AND OTHERS V SECRETARY OF STATE FOR THE HOME DEP

The House of Lords decided that s 23 of the Anti-terrorism, Crime and Security Act 2001 was unlawful under the Human Rights Act 1998 in that it discriminated against non-nationals. Lord Bingham also found the detentions to be a violation of article 26 of the ICCPR and “so inconsistent with the United Kingdom’s other obligations under international law within the meaning of article 15 of the European Convention (on Human Rights)”. There was no need for a discussion of justiciability given the statutory context and while the decision was that the detention of non-nationals was incompatible with the European Convention because it was disproportionate and discriminatory, the Lords placed weight on Britain’s obligations in international law generally.

Lords Hope, Scott, Rodgers and Nicholls agreed with Lord Bingham on the international law point and Baroness Hale found the legislation to be “inconsistent with our other obligations under international law from which there has been no derogation, principally art 14 of the European Convention.“ Lord Hoffmann did not express a view on the discrimination point. He confined his judgment to a finding that the terrorist threat did not threaten “our institutions of government or our existence as a civil community” and, as such, the power of detention was “not compatible with our constitution”. He acknowledged that it was only because of the Human Rights Act that the court had the power to question an Act of Parliament. He was not prepared to investigate the international law sources, basing his decision on British constitutional history, conveniently in this case updated by the Human Rights Act.

In reaching their decision, their Lordships also found that the United Kingdom was not entitled to derogate from article 5 of the European Convention as the government had not proved that the exigencies of the situation warranted such a derogation. In doing so they disagreed with the Court of Appeal and refused to defer to the Secretary of State. Lord Bingham, in particular, rejected the Attorney General’s submission based on the distinction between democratic institutions and the courts. In his Lordship’s words: “The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as somehow undemocratic.” Lord Bingham was, of course, operating within the statutory context but his words may find echoes in future debates about the extent to which UK state action on defence and foreign affairs remains truly non-justiciable. The decision is also significant in demonstrating again that UK courts have little difficulty in dealing with international law sources. 

20 of 61

SMITH V SCOTT [2007]

Abstract

S, a person who wished to be placed on the electoral register, applied to his local electoral registration officer who, on receipt of the information that the applicant was a convicted prisoner, acted in terms of the Representation of the People Act 1983 s.3(1) and refused to include his name in the Register of Electors. S appealed to the sheriff on the basis that the decision breached his human rights. The sheriff refused the appeal. S appealed and the sheriff stated a case, asking whether it was correct to refuse S's appeal and esto it was, whether it was correct not to grant a declarator that the terms of s.3(1) Act were incompatible with the applicant's rights under the Human Rights Act 1998 Sch.1 Part II Art.3, whether by virtue of s.4 of the 1998 Act or at common law. The secretary of state was joined as a party to the proceedings, who fully accepted both the decision in Hirst v United Kingdom (74025/01) (2006) 42 E.H.R.R. 41, [2005] 10 WLUK 84, and that the Scottish Parliament was a legislature for the purposes of Art.3. S submitted that (1) if there was some "possible" interpretation of s.3(1) which would remove the incompatibility identified in Hirst, the court should adopt it and allow the appeal which was possible, with the principles enunciated by the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 A.C. 557, [2004] 6 WLUK 427 in mind; (2) if reading down was not possible, the appeal would be refused but the court should make a declaration of incompatibility; (3) if the court did not take that course, it should give such remedy as was open to it within its powers at common law or under any statute. X, the secretary of state, submitted that (1) it was not possible for s.3(1) to be read down; (2) it was not competent for the court to make a declaration of incompatibility, and in any event, the court should not exercise its discretion to do so; (3) it was not competent for the court to grant declarator at common law that s.3(1) was incompatible with the Convention.

Held

Appeal dismissed. Held, answering the questions in the affirmative, dismissing the appeal and making a declaration of incompatibility, that (1) s.3(1) would not be "read down" in the manner proposed where it clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences, there was no "grain of the legislation" which could properly serve as a starting point for any interpretation designed to clothe some of the prisoners with voting rights, and to read down the section would depart substantially from a fundamental feature of the legislation. (2) It was competent for the court to make a declaration of incompatibility where no sound reason had been suggested as to why Parliament might not have wished the court to have such a power and by applying a generous and purposive construction to s.4 of the 1998 Act and having regard to the status and constitution of the other courts listed in s.4(5), the expression "Court of Session" might properly be construed as extending to any court in Scotland consisting of judges of the Court of Session, and sitting in their capacity as such; (3) as X accepted the decision in Hirst, it followed that, as regards convicted prisoners, no election in the United Kingdom to any legislature would be compatible with the Convention, and as the Scottish Parliament was a legislature for the purposes of Art.3, the matter was of some urgency given that the next election was due in May 2007. Therefore, the court should not merely observe that s.3(1) of the 1983 Act was incompatible with the Convention but should make a formal declaration of incompatibility to that effect, Hirst followed and Ghaidan considered.

21 of 61

ST HELEN’S BOROUGH COUNCIL V MANCHESTER PRIMARY CA

It was for the primary care trust acting on behalf of the Secretary of State for Health and not for the local authority to decide whether the care needs of a woman with dissociative identity disorder were primarily for health care or for care which a social services authority should provide. The trust was required to define in its decision the services which the social services authority was required to provide to the woman, whose mental and psychological conditions required constant and expensive care. It was not satisfactory for the two parties to resolve the issue by costly litigation, since the money for the care and the litigation all came from the public purse.

The Court of Appeal so held on an appeal by the claimant, St Helens Borough Council, from a decision of Beatson J in the Administrative Court on 7 September 2007 [2007] EWHC 2391 (Admin)! dismissing the claimant’s claim for judicial review of a decision taken on 30 November 2006 by a panel appointed by the defendant, the Manchester Primary Care Trust, that the needs of the patient, PE, were not primarily for health care and that, except for physiotherapy and other specific health care matters, the trust should not fund the care.

MAY LJ said the judicial review jurisdiction was flexible but not entirely unfenced. The court did not often make a factual decision which the primary decision maker had not made. His Lordship reviewed the statutory framework and held that the Secretary of State had the power to determine whether the local social services authority or the primary care trust should provide PE’s continuing care. There was a dividing line between health care and community care, but by common consent no gap. The dividing line, in an individual case, depended on whether the individual’s needs were primarily health care needs, or by contrast whether they were such as a local authority could be expected to provide.

The 2006 Act dominated, but the local authority’s responsibilities were limited to those set out in s 21 of the 1948 Act. The social services authority did not have an equivalent or equivalently structured decision making process which could hold its own against that of the Secretary of State, through the primary care trust, under the 2006 Act. The trust’s decision could be challenged by way of orthodox judicial review and the court was not required to determine the conflicting substance of two decisions of equivalent standing.

22 of 61

CCSU V MINISTER FOR CIVIL SERVICE [1984]

Council of Civil Service Unions v Minister for the Civil Service

The court will not intervene to review the decision of a minister where the requirements of national security outweigh other matters. Since 1947 staff employed at GCHQ had been permitted to be members of trade unions. In December 1983 the Minister, with no prior consultation, peremptorily altered the conditions of service, forbidding membership of a union. The applicants sought judicial review on the ground of unfairness due to failure to consult. Glidewell, J. granted the application and declared the instruction to be invalid. The Court of Appeal allowed the Minister's appeal. Held, dismissing the appeal that (1) executive action based on common law or the use of a prerogative power was not therefore immune from review; but (2) the requirements of national security outweighed those of fairness, which was a matter for the executive to weigh and decide.

23 of 61

ATTORNEY-GENERAL V FULHAM CORPORATION [1921]

The Metropolitan borough of Fulham was a statutory body created under London Government Act 1899 (c 14) (repealed), and an Order in Council made pursuant to that Act, and was not a common law corporation. Pursuant to its powers under the Baths and Washhouses Acts 1846 (repealed) to 1878 (repealed), to establish baths, washhouses and open bathing places, it established a washhouse in which there were about sixty separate troughs or places at which persons coming there had facilities for washing their clothes, bringing their own soap and other requisites and there was an additional place in which boiling water was supplied, and which performed the function of a copper.

The persons bringing the clothes to be washed, boiled and blued them in the troughs and dealt with them in the appropriate manner, the only manual or artificial assistance supplied by the corporation being thenceforth given by the corporation’s employees. The clothes-bringers placed the washed clothes in wringers, which were stopped and started and only allowed to be worked by the corporation’s attendant. The clothes were then placed on clothes-horses and pushed in and out of a hot-air drying cupboard, and were then mangled, in ordinary mangles worked by the clothes bringers, or in a box-mangle, worked by or under the direction of another attendant of the corporation. The clothes-bringers then took away their clothes.

This scheme, which was not complained of, was carried on until 1920, when a new washing scheme was started by the corporation on the recommendation of one of its committees. A public notice was issued by the corporation inviting persons to become its customers in a new enterprise, and setting out a new scheme under which a person desiring to benefit by it was to purchase a bag which would contain about 28 lb of clothes, bring the bag and its contents to the washhouse, and call for them when washed.

Alternatively, customers could at a small additional charge have their bags collected and returned by the corporation’s van. The bag and clothes were left with a person in the washhouse office who gave a receipt for them, and from that time until their return to the customer the bag and clothes passed entirely out of the customer’s control, being washed, wrung, rough-dried and mangled by the employees of the corporation alone: Held the new scheme was not authorised by Baths and Washhouses Acts 1846 (repealed) to 1878 (repealed), and the corporation must be restrained from continuing to carry it out.

In every case it is for a corporation ... to show that it has affirmatively an authority to do particular acts; but ... in applying that principle, the rule is not to be applied too narrowly, and the corporation is entitled to do not only that which is expressly authorised, but that which is reasonably incidental to or consequential upon that which is in terms authorised (Sargent J).

24 of 61

VINE V NATIONAL DOCK LABOUR BOARD [1957]

Per Lord Somervell of Harrow (Viscount Kilmuir L.C. and Lord Keith of Avonholm concurring): "In deciding whether a 'person' has power to delegate, one has to consider the nature of the duty and the character of the person. Judicial authority normally cannot, of course, be delegated. . . . There are . . . many administrative duties which cannot be delegated. Appointment to an office or position is plainly an administrative act. If under a statute a duty to appoint is placed on the holder of an office, whether under the Crown or not, he would normally, have no authority to delegate. . . . I am . . . clear that the disciplinary powers, whether 'judicial' or not, cannot be delegated." The Dock Workers (Regulation of Employment) Order 1947 Art.16(2), provides: "Where a registered dock worker available for work fails to comply with any of the provisions of the scheme [for the employment of registered dock workers] . . . the local board may . . . (c) give him seven days' notice of termination of employment . . ."

The plaintiff, a dock labourer employed in the reserve pool by the defendants, the National Dock Labour Board, under the scheme set up by the Dock Workers (Regulation of Employment) Order, 1947, was allocated work with a stevedoring company but failed to report to them. A complaint lodged with the defendants was heard by a disciplinary committee appointed by the local dock labour board, who upheld the complaint and, purporting to act under Art.16(2)(c) of the order, gave the plaintiff notice to terminate his employment with the defendants. His appeal to a tribunal set up under the scheme was dismissed. He brought proceedings against the defendants claiming damages for wrongful dismissal and a declaration that his purported dismissal was illegal, ultra vires and void. Ormerod J. awarded him damages and granted a declaration. The Court of Appeal held that damages were a sufficient remedy and that a declaration should not be granted.

Held, on appeal, (1) the decision of the disciplinary committee was a nullity because the duty of the local board was too important for it to be able to delegate it without an express power to do so, which there was not; (2) although the jurisdiction to give a declaratory judgment was to be exercised cautiously, in the present case damages would not be an adequate remedy and the declaration should be granted; (3) as regards the quantum of damages there was no such error of principle as to call for interference. Barnard v National Dock Labour Board [1953] 2 Q.B. 18, [1953] 3 WLUK 145 approved.

25 of 61

ANISMINIC LTD V FOREIGN COMPENSATION COMMISSION [1

The Foreign Compensation Act 1950 s.4(4) does not preclude the court from inquiring whether an order of the Commission is a nullity. A Co applied to the Foreign Compensation Commission claiming it was entitled to share in the Egyptian Compensation Fund in respect of certain property sequestrated by Egypt in 1956. The Commission provisionally determined that A had failed to establish a claim under the relevant Order. A Co brought an action for declarations that the provisional determination was a nullity and that A Co was entitled to participate in the fund. A Co contended that the Commission had misconstrued the Order in finding that an Egyptian organisation to whom A Co had sold the property in 1957 was A Co's successor in title.

On A Co's appeal to the House of Lords, held (Lord Morris of Borthy-Gest dissenting), 1) that s.4(4) of the Act (which says that the determination by the Commission of any application made to them under the Act shall not be called in question in any court of law) should not be construed as including everything which purported to be a determination but was not in fact one because the Commission had misconstrued the Order defining its jurisdiction; 2) (Lord Pearce dissenting) that the Commission had acted outside its jurisdiction when it considered whether A Co had a successor in title and so misconstrued Art.4 of the Order. Appeal allowed. Declarations accordingly. (Decision of Court of Appeal [1967] C.L.Y. 2088 reversed; Smith v East Elloe Rural DC [1956] A.C. 736, [1956] 3 WLUK 110 distinguished; Davies v Price [1958] 1 W.L.R. 434, [1958] 2 WLUK 83 disapproved).

26 of 61

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX P KHAWAJA [1984]

27 of 61

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX P. DOODY [1994]

28 of 61

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESB

Summary

Where a public authority making a decision had only taken into account the matters it ought to have taken into account, the court could still interfere with the decision where it was so unreasonable that no reasonable authority could ever have come to it. This case is the basis for the terms "Wednesbury reasonableness" and "Wednesbury unreasonableness".

Abstract

The appellant cinema proprietor (P) appealed against a decision (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 1 All E.R. 498) that a condition imposed by the respondent local licensing authority on the grant of permission for Sunday performances at the cinema was not ultra vires. The local authority was empowered by the Sunday Entertainments Act 1932 s.1 to licence cinema performances "subject to such conditions as the authority think fit to impose". Taking into account the well-being and physical and moral health of children likely to visit the cinema, it imposed a condition that no child under 15 should be admitted to such performances, whether accompanied by an adult or not. P brought an action for a declaration that the condition was ultra vires, but its action was dismissed. P argued that the local authority had acted unreasonably in imposing the condition.

Held

Appeal dismissed. (1) The court was entitled to investigate the local authority's actions to see whether it had taken into account matters which it ought not to have taken into account, or had failed to take into account matters which it ought to have taken into account. If that question was answered in the local authority's favour, it might still be possible to say that although it had kept within the matters it ought to have considered the conclusion reached was so unreasonable that no reasonable local authority could ever have come to it. In those circumstances the court could interfere with the discretion. The court's power to interfere was not as an appellate authority to override the decision of a local authority, but as a judicial authority which was only concerned to see whether the local authority had contravened the law by acting in excess of its powers. (2) In the instant case, the matter dealt with by the condition was one which a reasonable authority would be justified in considering when deciding what condition should be attached to the grant of the licence. (3) (Obiter) The decision of the majority in Theatre De Luxe (Halifax) Ltd v Gledhill [1915] 2 K.B. 49, [1914] 12 WLUK 68 had put much too narrow a construction on the licensing power given by the Cinematograph Act 1909, Theatre de Luxe considered.

29 of 61

R V SONEJI & BULLEN [2006]

Summary

Non compliance with the terms of the Criminal Justice Act 1988 s.72A(3) did not deprive the court of its duty to consider the making of a confiscation order

Abstract

The Crown appealed against a decision ([2003] EWCA Crim 1765, [2004] 1 Cr. App. R. (S.) 34) quashing confiscation orders that had been imposed on the respondents (S) following their pleas of guilty to an offence of conspiracy to convert property and to remove it from the jurisdiction knowing or suspecting that it represented the proceeds of criminal conduct. The Court of Appeal had quashed the confiscation orders on the basis they had been made more than six months beyond the date of conviction, contrary to the Criminal Justice Act 1988 s.72A(3) . The Court of Appeal had certified two points of law of general public importance. The first was whether the court's common law jurisdiction to adjourn confiscation proceedings was subject to a mandatory time limit of six months from the date of conviction save where "exceptional circumstances" were present. The second was whether, once the court had assumed jurisdiction under s.71 of the Act, its jurisdiction thereafter was extinguished by a failure to comply with the provisions of s.72A of the Act or any common law requirements relating to the postponement or adjournment of the proceedings. S submitted that (1) a strict approach to the construction of s.72A should be adopted; (2) a purposive approach would render wholly ineffective the Parliamentary intent of providing for a specific time limit; (3) injustice had been caused by the delay of the confiscation procedures. Held, allowing the appeal, that (1) the approach of the Court of Appeal, in finding that the judge's failure to consider or make a finding of "exceptional circumstances" deprived the court of jurisdiction to make a confiscation order, had been incorrect. When interpreting statutory provisions, the approach of distinguishing between mandatory requirements and directory requirements should not be applied, as it served to deflect attention from the real issue of whether an act done in breach of the legislative provision was invalid, Project Blue Sky Inc v Australian Broadcasting Authority 194 C.L.R. 355 considered. The question concerned the process of making confiscation orders and not the definition of crimes, so that the context required a purposive interpretation of the language of the provision and the scope and object of the whole statute. Emphasis ought to be on the consequences of non compliance, Wang v Inland Revenue Commissioner [1994] 1 W.L.R. 1286, [1994] 7 WLUK 236 and Attorney General's Reference (No.3 of 1999) [2001] 2 A.C. 91, [2000] 12 WLUK 367 applied. (2) Parliament's intention of a specific time limit would not be rendered ineffective. Where necessary, the courts could vindicate the scheme adopted by Parliament by the abuse of process jurisdiction. (3) The argument of prejudice was overstated and there had been no significant prejudice. Approximately six months of the two year delay was due to the need for the court to resolve points, raised by S, about jurisdiction to make the orders. There had been no suggestion of the Crown or court authorities acting in bad faith. The potential prejudice was decisively outweighed by the countervailing public interest in not allowing a convicted offender to escape conviction for what were no more than bona fide errors in the judicial process. (4) There was no common law jurisdiction to adjourn confiscation proceedings. The possibility of coexisting powers was ruled out by s.72A(3) of the Act. (5) The requirement of "exceptional circumstances" in s.72A(3), when looked at in the present context, should not be interpreted too narrowly. The court should comply with the six month requirement wherever possible, but, for example, listing difficulties could amount to "exceptional circumstances".

30 of 61

MCINNES V ONSLOW-FANE [1978]

In an application, as distinct from the forfeiture category of case, which involves no imputations of dishonesty or deprivation of statutory right, the courts will not normally require the observance of natural justice in the determination of the application. Per curiam: The courts must be slow to allow any implied obligation to be fair to be used as a means of bringing before the courts honest decisions of bodies exercising jurisdiction over sporting and other activities. The plaintiff had at times held various licences in relation to boxing and its promotion. All his licences were withdrawn in 1973. Five subsequent applications for a manager's licence were refused. The plaintiff sought a declaration that the board had acted in breach of natural justice in failing to inform him of the case against him or to grant an oral hearing. Held, the board was under a duty to reach an honest, unbiased conclusion. This case was in the application rather than forfeiture or even expectation class, not involving any slur on character, and the board therefore were not under an obligation to give reasons or grant an oral hearing. ( Nagle v Fielden [1966] 2 Q.B. 633, [1966] 2 WLUK 73 followed; Enderby Town Football Club v Football Association [1971] Ch. 591, [1970] 10 WLUK 23 considered).

31 of 61

R V CIVIL SERVICE APPEAL BOARD EX P. CUNNINGHAM [1

The Board appealed against the grant of judicial review of its decision to award C GBP 6,500 compensation following 23 years service as a prison officer and the failure of the Board to give reasons for that decision, (Times, June 13, 1990). The Board objected to giving reasons claiming: (1) It would have an adverse effect on the informality of the proceedings; and (2) It would encourage applicants to rely on a body of precedent. Held: Appeal dismissed. The issue was whether natural justice required the Board to give reasons for its decision, Lloyd v McMahon [1987] 1 A.C. 625 applied in so far as the court could impose a common law duty to provide reasons. As the Board's character was one of an independent public law body with a judicial function (from which there was no right of appeal) fairness required it to give outline reasons to show how it was directing its mind, R. v Immigration Appeal Tribunal Ex p. Khan (Mahmud) [1983] Q.B. 790, [1983] 1 WLUK 934 applied, (McCowan, L.J. dissenting). The Board's objections to giving reasons were unconvincing as an industrial tribunal did not lack formality because of its duty to give reasons and to be consistent with each applicant. The judge had been correct to hold that C had a legitimate expectation that reasons would be given, (Legatt, L.J. dissenting) as the Minister for the Civil Service had made assurances that a civil servant had the right to apply to a tribunal "analagous" to an industrial tribunal and receive equivalent treatment under the same law.

32 of 61

R (CITIZENS UK) V SECRETARY OF STATE FOR THE HOME

Summary

An expedited process adopted by the secretary of state to assess the eligibility of unaccompanied asylum-seeking children to be transferred to the UK from France had breached the common law duty of fairness because the reasons given for adverse decisions under the process were inadequate.

Abstract

A non-governmental organisation appealed against a decision upholding the legality of an expedited process adopted by the secretary of state to assess the eligibility of unaccompanied asylum-seeking children to be transferred to the UK from France. The children had travelled to a camp near Calais intending to seek asylum in the UK. The French authorities announced that the camp was to be demolished. An expedited process was agreed between the British and French governments to determine the eligibility for transfer to the UK of 2,000 unaccompanied children. The process was said to be an accelerated version of the procedure under Regulation 604/2013 (known as Dublin III). The secretary of state accepted that there were likely to be children who had close family links to the UK and would therefore be eligible for transfer under Dublin III. Following assessments, the secretary of state refused to transfer to the UK over 500 children who claimed to have family members in the UK. Refusal decisions were communicated to the French authorities via a spreadsheet with a short word or phrase explaining refusal. There was an opportunity to ask for a reconsideration. A judge refused the NGO's judicial review claim, finding that the process had not breached Dublin III, because Dublin III had not applied; it had not breached the common law duty of fairness; and it had not breached the procedural protections offered by ECHR art.8.

Held

Appeal allowed. Applicability of Dublin III - An application for international protection was not the same as an intention to make such an application after a person had been transferred to another Member State. An application usually had to be made in accordance with Dublin III. That meant that an unaccompanied minor would have to make an application in France. If it then transpired that the mandatory criteria for a transfer to the UK set out in art.8 of Dublin III were satisfied, that process would be followed. However, the expedited process was not a procedure under Dublin III, R. (on the application of RSM (Eritrea)) v Secretary of State for the Home Department [2018] EWCA Civ 18, [2018] 1 W.L.R. 5489, [2018] 1 WLUK 204 applied. The adoption of the procedure had not been precluded by the existence of Dublin III. Asylum was within the shared competence of the EU and the Member States, not an exclusive EU competence: nothing prevented two Member States from adopting a process to sit alongside Dublin III (see paras 46-51 of judgment). Common law duty of fairness - The duty applied notwithstanding the expedited process being discretionary, R. (on the application of Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 W.L.R. 3213, [2006] 10 WLUK 296 applied. The context was one in which the duty applied as a matter of principle. The critical issue was whether the circumstances in which the secretary of state was operating had sufficiently modified the duty so as to relieve her from the usual requirements of procedural fairness. The most important concern was the sparseness of the reasons given for adverse decisions. While the reason was obvious in some cases, in others it was not straightforward. There were cases where in principle, a person could have been a relevant family member, but the secretary of state had not believed that the relationship was established on the evidence. In those cases, were the process an ordinary administrative decision-making process, the law would require more than had been given. Fairness would not have been complied with. The person affected could not know how to achieve a different outcome when the reconsideration process took place and they had no realistic prospect of challenging the decision. The fact that it had been open to the children to proceed under Dublin III, with its safeguards, did not make the reasons adequate. A requirement of fairness under a later decision-making stage did not mean fairness was not required earlier; fairness was required at all stages. The Dublin III process could not be insulated from what happened in the expedited process. Some children could have given up and never made a formal Dublin III application after an adverse expedited decision. There had been no practical impediment to giving more detailed reasons: the evidence showed that the secretary of state had written down reasons which went beyond what was communicated to the children. The process failed to comply with the common law requirements of procedural fairness (paras 85-102). ECHR art.8 - It was unnecessary to address the procedural requirements potentially arising under art.8. They could not give greater rights than the common law in the instant context (para.103). Duty of candour - The secretary of state had disclosed significant further evidence after the hearing before the judge. She had failed to inform the judge that the reasons for adverse decisions had been sparse, not because of the urgency of the situation or because that was what the French authorities had demanded, but because the UK authorities had not wanted to give more reasons because of a perceived risk of legal challenge to the decisions. That had been a serious breach of the duty of candour and co-operation that applied to parties in judicial review proceedings, R. (on the application of Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin), [2018] A.C.D. 91, [2018] 5 WLUK 312 applied. There was no suggestion of bad faith (paras 105-106, 168-170).

33 of 61

DIMES V GRAND JUNCTION CANAL PROPRIETORS (1852)

In 1796, small areas of four fields connected to the Manor of Rickmansworth and held in copyhold by a tenant were sold to the Grand Junction Canal (GJC) Company for the purposes of constructing the GJC. In 1797, the GJC opened to traffic. In 1831, Dimes became Lord of the Manor and sought, by various means, to take ownership of the land previously sold to the GJC. As part of this effort, he barred the Canal and ‘threatened wholly to stop the navigation’ unless GJC paid him £5,000 (at 761). Dispute over the land continued.

Dimes discovered that the Lord Chancellor, who had adjudicated on various parts of the case, held 92 shares in the GJC Company. He sought to have all of the Lord Chancellor’s decisions reversed and, in the interim, issued actions in trespass to people using the Canal. The Lord Chancellor refused to rehear the cases and the actions in trespass were blocked with injunctions. Dimes again sought to prevent the use of the GJC by, among other things, ‘plac[ing] a chain across the canal, and [digging] a deep trench across the towing-path’ (at 766). Dimes was arrested on the strength of an order signed by the Lord Chancellor.

Eventually, Dimes was able to bring the case to the House of Lords, with a view to getting the decision of the Lord Chancellor voided.

Decision

This case is unusual because it is a rare example of a judge holding a pecuniary interest in a case upon which they have adjudicated. It is an example of the principle nemo judex in causa sua (‘no one should be a judge in his own cause’), which Lord Campbell said ‘should be held sacred’ (at 793). Lord Campbell, remarking on the need for this principle to be honoured in both the lower courts and the highest courts in the country, went on to say (at 793) that:

We have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside.

34 of 61

PORTER V MAGILL [2002]

35 of 61

R V PANEL ON TAKE-OVERS AND MERGERS EX PARTE DATAF

Facts

This case concerned whether the Panel on Take-overs and Mergers could be considered a body exercising public functions, such that it was capable of being subject to judicial review. It is an essential requirement of judicial review that the decision subject to review issues from a public body, a body exercising public law functions, or having public law consequences, or some combination of these.

The Panel’s role was to oversee the activities of the City of London. It lacked a ‘statutory, prerogative or common law’ basis for its powers and was not bound ‘in a contractual relationship with the financial market’ (Donaldson MR, at 825). The Master of the Rolls goes on to say that this might be an oversimplification (at 834–5, 838), but that at most the Panel can be said to ‘be supported and sustained by a periphery of statutory powers’ (at 835; see also Lloyd LJ, at 849). From this ambiguous position, it produced the City Code on Take-overs and Mergers and, through this, it ‘exercises immense power de facto’ (at 826) in relation to matters within the purview of the Code. The principle public law question to be determined, therefore, was the status of the Panel.

The facts of the particular takeover in question—by Datafin, of another company, McCorquodale—are not dealt with in this note (but, for details, see 828–34).

Decision

Donaldson MR remarked (at 835) that:

[N]o one could have been in the least surprised if the panel had been instituted and operated under the direct authority of statute law, since it operates wholly in the public domain … Its lack of a direct statutory base is a complete anomaly.

This statement from Donaldson MR indicated that he was strongly inclined to find that the Panel could be subjected to judicial review—and, indeed, this was his conclusion (at 838–9).

However, it is in the judgment of Lloyd LJ that we find the Master of the Rolls’ conclusions unpacked in more detail. Lloyd LJ observes that, beyond the ‘extremes’ of clearly statutory or clearly contractual sources of power, one must ‘look not just at the source of the power but at the nature of the power’ (at 847) to ascertain whether it is essentially a private or a public law duty which is being fulfilled (at 847, 848). Lloyd LJ then elaborates, explaining that we must ask whether ‘the body in question is exercising public law functions, or if the exercise of its functions have public law consequences’ (at 847; see also Nicholls LJ, at 850–1, 852).

The whole Court agreed that the Panel was indeed performing a public duty (see, for example, Nicholls LJ, at 851), and that the nature of its power was necessarily public, and had public law consequences. The somewhat anomalous, complex origins of its power were not relevant to such a determination.

36 of 61

O’REILLY V MACKMAN [1983]

Where a plaintiff complains of an infringement of his public law rights he must as a general rule, proceed by way of application for judicial review and not by way of declaratory action. Per curiam: in all proceedings for judicial review started since 1977 the grant of leave to cross-examine deponents is governed by the same principles as it is in actions begun by originating summons: it should be allowed whenever the justices of the particular case so requires. The four plaintiffs were prisoners in Hull Prison. They were charged with disciplinary offences before the Board of Visitors which found the charges proved in each case and imposed penalties. Three of the plaintiffs brought actions by writ in the Queen's Bench Division against the Board alleging that it had acted in breach of the Prison Rules and the rules of natural justice and claiming a declaration that the board's findings were void. The fourth plaintiff started similar proceedings in the Chancery Division. The defendants in all four cases applied to strike out the proceedings, and the judge dismissed the applications. His decision was reversed by the Court of Appeal which struck out the proceedings on the ground that they were an abuse of the process of the court and that the plaintiffs' only proper remedy was by way of judicial review under the Rules of the Supreme Court Ord.53 . Held, dismissing their appeal, that since all remedies for the infringement of rights protected by public law could be obtained on an application for judicial review, as a general rule, it would be contrary to public policy and an abuse of the process of the court for a plaintiff complaining of a public authority's infringement of his public law rights to seek redress by ordinary action. Accordingly it was an abuse of the court to allow the actions to proceed and thereby avoid the protection afforded to statutory tribunals ( R. v Board of Visitors of Hull Prison Ex p. St Germain (No.1) [1979] Q.B. 425, [1978] 10 WLUK 19 approved).

37 of 61

GILLICK V WEST NORFOLK AND WISBECH AREA HEALTH AUT

Summary

Doctors could, in exceptional circumstances, give contraceptive advice and prescriptions to girls under 16 without parental consent. However, in order to do so the doctor had to be satisfied that the girl had the legal capacity to consent to medical examination and treatment and sufficient maturity and intelligence to understand its nature and implications. This case is the basis for the term "Gillick competence".

Abstract

The second appellant department appealed against the grant of a declaration ([1985] 2 W.L.R. 413) sought by the respondent mother (G) that certain departmental guidance was unlawful. The department had issued guidance to doctors that they could, in exceptional circumstances, give contraceptive advice and prescriptions to girls under 16 without the consent of the girls' parents. The issue for determination was whether doctors could lawfully take that action.

Held

Appeal allowed. (Lords Brandon and Templeman dissenting) A girl under the age of 16 had the legal capacity to consent to medical examination and treatment, including contraceptive treatment, if she had sufficient maturity and intelligence to understand the nature and implications of the treatment. The rights of parents to determine such matters ended when a child achieved sufficient intelligence and understanding to make her own decision, Hewer v Bryant [1970] 1 Q.B. 357, [1969] 6 WLUK 58 approved, Agar-Ellis (No.2), Re (1883) 24 Ch. D. 317, [1883] 7 WLUK 114 disapproved, R. v Howes 121 E.R. 467, [1860] 11 WLUK 123 applied and R. v D (Ian Malcolm) [1984] A.C. 778, [1984] 6 WLUK 166 followed. A judgement had to be made of what was best for a particular child. Parents were the best judges of that in the majority of cases but there might be circumstances where it was desirable, in a girl's best interests, that a doctor was entitled to give contraceptive advice and treatment without the permission or even knowledge of the parents. In such circumstances the doctor had to be satisfied that (a) the girl understood his advice; (b) he could not persuade her to tell or allow him to tell her parents; (c) she was likely to have sexual intercourse with or without contraceptive treatment; (d) unless she received such advice or treatment her physical or mental health was likely to suffer; and (e) her best interests required such advice or treatment without the knowledge or consent of her parents.

38 of 61

WANDSWORTH LONDON BOROUGH COUNCIL V WINDER [1985]

The defendant was the secure tenant of property owned by the plaintiff authority. The plaintiff issued proceedings in 1982 for arrears of rent, which the defendant defended on the basis that the increases were of no effect since (a) the authority had not considered the relative means of the rate payers as a group and tenants as a group; (b) the increase was higher than any increase in the private sector which would have been phased and (c) the increase was grossly in excess of the rate of inflation. The defendant also counterclaimed seeking a declaration to this effect. The authority sought to strike out the defence and counterclaim on the basis that they should have been the subject of judicial review proceedings. These proceedings failed in the House of Lords (see Wandsworth LBC v Winder (No.1) [1985] A.C. 461, [1984] 11 WLUK 270). The county court proceedings were then transferred to the Chancery Division. Held, giving judgment for the plaintiff and dismissing the counterclaim, that (1) the authority have a very wide discretion in fixing rents; the measure is reasonableness, and they are under no duty to subsidise or not to subsidise rents; (2) the authority were not obliged to take into account the relative means of the rate payers as a group and of the tenants as a group nor were they obliged to take account of the phasing provisions which operated in the private sector; (3) the authority were not obliged to regard the rate of inflation as an overriding consideration, and an increase of 37 per cent was not perverse.

39 of 61

R V SECRETARY OF STATE FOR THE ENVIRONMENT EX PART

40 of 61

R V INLAND REVENUE COMMISSIONERS EX P. PRESTON [19

Facts

There was an arrangement between newspapers and printing houses located on Fleet Street to employ casual workers. It emerged that these workers were providing false names when collecting pay for this work, making it impossible to determine how much tax was owed by any individual worker.

The then Inland Revenue—now Her Majesty’s Revenue and Customs Service (HMRC)—became aware of this arrangement and reached an agreement with the employers, the employee unions, and the workers to pay the preceding two years of tax owing—notwithstanding the fact that the evasion had been going on for considerably longer—and to pay the full amount of tax owed from then on (at 634–5). The terms of this agreement came to the attention of the National Federation of the Self Employed and Small Businesses, which sought a review of the legality of the arrangement.

The principle issues in the case were whether the Federation had sufficient interest (locus standi) to bring the action, and when an assessment of standing should be made.

Decision

Although there are tensions between the reasoning of the opinions given by their Lordships as to when a consideration of standing should occur (discussed below), all were agreed that, in this instance, the Federation did not have standing. Lord Fraser concluded that all those who pay their income tax may feel a ‘sense of grievance’ (at 646) at the arrangement reached between the Inland Revenue and the workers who had been evading tax. As such, there was no discernible difference between any ordinary taxpayer, the Federation, or the Federation’s members: all could be said to have a grievance that ‘might be felt just as strongly by any honest taxpayer’ (at 646).

Lord Diplock preferred to dismiss the claim on the merits—there being no illegality proven—but agreed that the consequence of this was that the Federation could not be said to have a sufficient interest (at 644).

From a policy point of view, the court was also unwilling to allow detailed examination of the managerial and policy decisions of the Inland Revenue, which all agreed was the province of Parliament.

41 of 61

R V SECRETARY OF STATE FOR FOREIGN AFFAIRS, EX P W

The question of legal standing is not to be treated as a preliminary issue but is to be taken in the context of the whole case. Once the court has determined that that particular conduct is within the statutory purpose, the weight to be given to competing factors is a matter for the Secretary of State. A British consortium sought aid and trade provision for a project to construct a hydro-electric power station on the Pergau river. Despite advice from the Overseas Development Administration that the project was an abuse of the overseas aid programme in that it was uneconomic and was not a sound development project, the Secretary of State decided to approve support for the project and the UK and Malaysian Governments signed a financial agreement. The applicants, a non-partisan pressure group, sought an assurance from the Secretary of State that no further funds for the project would be furnished, but he refused to give such an assurance. The applicants sought judicial review of the Secretary of State's decision to grant funding and to refuse to withhold outstanding payments.

Held, granting the application, that (1) that since standing went to jurisdiction it was not to be treated as a preliminary issue but was to be taken in the legal and factual context of the whole case; (2) the merits of the challenge were an important factor when considering standing and significant factors in support of the conclusion that the applicants had sufficient interest for the purposes of the application were the importance of vindicating the rule of law, the importance of the issue raised, the likely absence of any other responsible challenger, the nature of the breach of duty against which relief was sought and the prominent role of the applicants in giving advice, guidance and assistance regarding aid (R. v Inland Revenue Commissioners Ex p. National Federation of Self Employed and Small Businesses Ltd [1982] A.C. 617, [1981] 4 WLUK 105, R. v Secretary of State for Social Services Ex p. Child Poverty Action Group [1990] 2 Q.B. 540, [1988] 10 WLUK 79, R. v Secretary of State for Foreign and Commonwealth Affairs Ex p. Lord Rees-Mogg [1994] Q.B. 552, [1993] 7 WLUK 393 applied); (3) it was for the court to determine on the evidence whether particular conduct was within the purpose of the Overseas Development and Co-operation Act 1980 but, once it was so determined, the weight to be given to competing factors was a matter for the Secretary of State; and (4) the power under the Act to furnish assistance related to economically sound development and, although the Secretary of State was entitled when making decisions whether to grant assistance under the Act to take into account political and economic considerations, on the evidence, no developmental promotion purpose within s.1 existed at the time the financial agreement was signed and the Secretary of State's decision was therefore unlawful.

42 of 61

R V STRATFORD-UPON-AVON DISTRICT COUNCIL EX PARTE

SADC refused planning permission for an application to use a barn on green belt land for maggot production. L successfully appealed to the Secretary of State, stressing that the proposal did not involve an extension to the building. Permission was granted subject to a condition that "no new buildings shall be erected within the area of the existing farm buildings". It became apparent to L that an alteration to the layout that had been considered would be required, and meetings were held with SADC's planning officer who indicated that there were likely to be no planning objections to L's proposals. However, SADC's planning director decided that the condition covered all buildings and advised that permission for the extension should be refused. SADC issued a breach of condition notice and L was summoned to appear at the magistrates' court for failing to comply. L sought judicial review of SADC's decisions, submitting that the Secretary of State had intended to restrict the condition to farm buildings and had omitted the word "farm" from the condition due to a clerical error. Held, dismissing the application, that as there had been no application to rectify any supposed error in the condition it was safe to proceed on the basis that the Secretary of State had meant to impose the condition as set out in the decision letter. L's failure to challenge the decision within six weeks was not attributable to any action on the part of the council and that L had not demonstrated any unlawfulness on the part of SADC or its officers. Top

43 of 61

R V KNOWSLEY MBC

44 of 61

S AND MARPER V UNITED KINGDOM [2008]

Summary

The blanket and indiscriminate nature of the powers of retention of the fingerprint and DNA material of any person suspected but not convicted of a criminal offence was a disproportionate interference with the person's right to respect for private life and could not be regarded as necessary in a democratic society.

Abstract

The applicants (S and M) complained that the retention by the authorities of their fingerprints, cellular samples and DNA profiles after criminal proceedings against them had respectively resulted in acquittal or been discontinued violated their rights under the European Convention on Human Rights 1950 art.8. S and M had both had their fingerprints and DNA samples taken after S had been arrested and charged with attempted robbery and M was charged with harassment of his partner. S was subsequently acquitted and the proceedings against M were discontinued. Each applicant asked for his fingerprints and DNA samples to be destroyed, but in each case the police refused. S and M applied unsuccessfully for judicial review and their appeals to the Court of Appeal and the House of Lords were dismissed, upholding complaint from R. (on the application of S) v Chief Constable of South Yorkshire [2004] UKHL 39, [2004] 1 W.L.R. 2196, [2004] 7 WLUK 672. S and M submitted that (1) the retention of their fingerprints, cellular samples and DNA profiles interfered with their right to respect for private life as they were crucially linked to their individual identity and concerned a type of personal information that they were entitled to keep within their control; (2) the retention of fingerprints, cellular samples and DNA profiles were not justified under art.8 because the purposes for which the retention could be justified were vague and open to abuse. They further maintained that the retention was disproportionate because of its blanket nature, irrespective of the offences involved and the particular circumstances of the alleged offender.

Held

Complaint upheld. (1) Given the nature of personal information contained in cellular samples, their retention per se had to be regarded as interfering with the right to respect for the private lives of the individuals concerned. DNA profiles contained substantial amounts of unique personal data and while that information could be considered objective and irrefutable, their processing through automated means allowed the authorities to go well beyond neutral identification. Whilst fingerprints did not contain as much information as cellular samples or DNA profiles, they too contained unique information about the individual concerned, allowing his or her identification with precision in a wide range of circumstances, and were thus capable of affecting his or her private life. Retention of that information without the consent of the individual concerned could not be regarded as neutral or insignificant. (2) The retention of the fingerprints, cellular samples and DNA profiles had a clear basis in domestic law and pursued a legitimate aim. However, it failed to achieve a fair balance between the respective public and private interests. The power of retention was of a blanket and indiscriminate nature, capable of application irrespective of the nature or gravity of the offence, or the personal circumstances of the suspected offender. The retention was of unlimited duration and there existed only limited possibilities for an acquitted individual to have the data destroyed. Further, there was no mechanism for independent scrutiny of the decision-making process to retain the data. The mere retention and storing of personal data by public authorities was to be regarded as having a direct impact on the private life of the individual concerned, regardless of whether subsequent use was made of the data. A particular concern was the risk of stigmatisation, in that innocent individuals were treated in the same way as convicted persons, which raised an issue as to their perception of the presumption of innocence. Having regard to the obligation imposed by the Police and Criminal Evidence Act 1984 s.64(3) to destroy the fingerprints and samples of volunteers at their request, there would have to be weighty reasons to justify such a difference in treatment of persons such as S and M compared with that of other unconvicted people. The retention of data in the case of minors was especially harmful, given their special situation and the importance of their development and integration in society. Accordingly, there had been a disproportionate interference with the rights of S and M under art.8.

45 of 61

R V HOWELL [1982]

Abstract

There is a breach of the peace wherever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. Police were called to a noisy all-night party, they told the merry-makers to go home, or they would be arrested for breach of the peace. The West Indians present complained of prejudice, there was pushing and shoving, and a few people were arrested for breaches of the peace. D was noisy and abusive to the police, and refused to go home. An officer tried to arrest D and was punched in the face. D was convicted of an assault upon the officer. He appealed on the ground, inter alia, that there had been no breach of the peace, no valid arrest, and therefore no assault. Held, dismissing the appeal, that there was a breach of the peace whenever harm was actually done or was likely to be done to a person or in his presence to his property or a person was in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. There was a power of arrest by a constable or any other person without warrant, when such a breach of the peace was committed in the presence of the person making the arrest, or where the arrester reasonably believed that such a breach would be committed in the immediate future, or where such a breach had been committed already and it was reasonably believed that a renewal was threatened. (R. v Podger [1979] Crim. L.R. 524, [1979] 1 WLUK 348 overruled) Top

46 of 61

ROBERTS V CHIEF CONSTABLE OF CHESHIRE CONSTABULARY

R was arrested on suspicion of conspiracy to burgle at 10.50 pm on July 30, 1992 and taken to a police station where his detention was authorised at 11.25 pm. At 1 am on July 31 he was transferred to another police station where at 1.45 am his continued detention was authorised. At 7.45 am a police inspector reviewed R's detention and authorised his further detention. R's case was again reviewed at 5.20 pm and at 6.55 pm he was released without charge. R subsequently brought an action against the Chief Constable, claiming damages for false imprisonment. The judge found in R's favour on the basis that the police had failed to comply with the Police and Criminal Evidence Act 1984 s.34(1) and s.40, which required that they carry out a review of the detention of a person held without charge not later than six hours after his detention was first authorised. Since a review of R's detention should have taken place before 5.25 am, the judge ruled that R's detention after that time was unlawful and he was thereby entitled to damages of GBP 500. The Chief Constable appealed, arguing, in reliance upon Clerk & Lindsell on Torts (17th ed. 1995, paras.16-119 and 16-120), that at 5.25 am there were grounds which justified R's continued detention and therefore it was not unlawful. Held, dismissing the appeal, that the passage in Clerk & Lindsell on which the Chief Constable relied had to be read in conjunction with a reference to para.16-119 in the Third Cumulative Supplement to the 17th ed., which suggested that continued detention in the circumstances which arose in the instant case might amount to false imprisonment. The police's failure to review R's detention in accordance with the mandatory statutory provisions rendered the detention unlawful, and it was irrelevant that the detention would have been lawful if a review had taken place or that there were grounds justifying continued detention. When no review was carried out at 5.25 am R was entitled to his liberty, and being deprived of it without lawful excuse rendered his continued detention false imprisonment.

47 of 61

FUNKE V FRANCE [1993]

Customs officers searched and seized papers at F's house in order to obtain particulars of overseas assets held by F and F's wife. Although the seizures did not result in criminal proceedings under financial dealings regulations, they did lead to proceedings for disclosure of documents and for interim orders. As a consequence of these disclosure proceedings, F was convicted of failing to provide customs authorities with statements of his overseas bank accounts. F alleged that of the European Convention on Human Rights 1950 Art.6(1), Art.6(2) and Art.8 had been violated.

Held, that (1) F's conviction secured by the customs authorities, in order to obtain documents which they believed existed, was an attempt to compel F to provide evidence of other offences he had allegedly committed. F's conviction was an infringement of his right to stay silent and not to incriminate himself, which was a right protected by Art.6(1). Accordingly, Art.6(1) had been infringed. In view of that finding it was unnecessary to consider the alleged failure to have a trial within a reasonable time and alleged infringement of the presumption of innocence contrary to Art.6(1) and (2); (2) the search and seizures interfered with F's rights to respect for his private life, home and correspondence contrary to Art.8 because (a) the customs authorities had very wide powers when conducting searches and seizures, (b) in the absence of any requirement of a judicial warrant the restrictions and conditions provided for in law were insufficient for the interferences in F's right to have been strictly proportionate to the legitimate aim pursued and (c) the customs authorities never brought a complaint against F alleging an offence against financial dealings regulations; and (3) France was ordered to make an award of compensation, costs and expenses.

48 of 61

O'HALLORAN AND ANOTHER V UNITED KINGDOM [2007]

Summary

The requirement under the Road Traffic Act 1988 s.172 to identify the driver of a vehicle in the event of a speeding offence flowed from a general regulatory regime relating to the use of motor cars and was sufficiently limited not to amount to a breach of the right to silence and the privilege against self-incrimination for the purposes of a violation of the European Convention on Human Rights 1950 art.6(1) .

Abstract

The complainants (H and F), who had been convicted of road traffic offences, complained that they had been compelled to give incrimination evidence in breach of the right to remain silent and the privilege against self-incrimination, which they maintained was in violation of their right to a fair trial under the European Convention on Human Rights 1950 art.6(1) . H and F's vehicles had been separately photographed by speed cameras whilst being driven above the prevailing speed limit. Both H and F received notices of intended prosecution which required them, as registered keepers of the vehicles, to identify the driver of the vehicle at the relevant time, failing which each would be guilty of an offence under the Road Traffic Act 1988 s.172 . H confirmed that he had been the driver of his vehicle at the relevant time. At his subsequent trial for speeding, his application to exclude the confirmation of his identity, on the ground that his right to silence and privilege against self-incrimination had been infringed, was dismissed and he was convicted. F failed to identify the driver of his vehicle and was convicted of an offence under s.172 of the 1988 Act. H and F argued that the right to remain silent and the right not to incriminate oneself were absolute rights, the very essence of which was destroyed by any form of direct compulsion to require an accused person to make self-incriminatory statements against his will.

Held

Complaints dismissed. (Judges Pavlovschi and Myjer dissenting) Although the circumstances of H and F's cases and the offences of which they had been convicted were different, the essential issue was whether the coercion of a person charged with a speeding offence to make statements which incriminated him, or could lead to his incrimination, was compatible with art.6. Although the compulsion imposed in the context of s.172 and the underlying speeding offences were both "criminal", the compulsion flowed from a general regulatory regime relating to the use of motor cars, Brown v Stott [2003] 1 A.C. 681, [2000] 12 WLUK 108 applied. Moreover, the degree of compulsion was limited and subject to adequate safeguards, Weh v Austria (38544/97) (2005) 40 E.H.R.R. 37, [2004] 4 WLUK 238 applied. Given the potential for motor cars to cause grave injury, those who kept and drove them had to be taken to have accepted certain responsibilities under that regime, which included an obligation to provide information upon request as to the identity of the driver of a vehicle suspected of involvement in a road traffic offence. In all the circumstances, there was no breach of art.6. (Per Judge Pavlovschi) It was contrary to the spirit of the Convention to allow Member States to apply such a wholesale statutory deprivation of fundamental rights to car owners and drivers in the field of criminal law and procedure; any driver faced with criminal prosecution and trial should enjoy all the guarantees provided by art.6, regardless of how heavy a burden that entailed.

49 of 61

O’LOUGHLIN V CHIEF CONSTABLE OF ESSEX [1998]

Abstract

Following an incident in which a neighbour's car windscreen was smashed by O's wife, police officers gained forcible entry to O's home and used force to restrain O before arresting him. The trial judge, giving judgment for O and awarding damages of GBP 7,785 for, inter alia, assault, ruled that there was insufficient evidence to go to the jury that any officer had informed O that they wished to gain access to the property in order to arrest his wife and that, despite O's abusive behaviour, there was no justification for officers gaining forcible entry without announcing their intentions. The Chief Constable appealed. Held, dismissing the appeal, (Thorpe, L.J. dissenting), that a police officer exercising the power conferred upon him by the Police and Criminal Evidence Act 1984 s.17 and s.117 to enter a home using reasonable force, should, unless it was impossible, impracticable or undesirable to do so, give the occupant of the property reasons for his seeking to gain access. At common law, it was recognised that in order for an arrest without warrant to be lawful, reasons should be given, Christie v Leachinsky [1947] A.C. 573, [1947] 3 WLUK 45 considered, and Parliament clearly had that obligation in mind when conferring the power of entry on the police under the Act.

50 of 61

FLOCKHART V ROBINSON [1950]

If a person indicates the route, plans the route, or points out the route by which other persons are to go, he is "organising" a procession within the meaning of the Public Order Act 1936 s.3(4) . The appellant was charged with having organised a public procession of a political character contrary to an order then in force prohibiting such processions. He had walked along the pavement of Piccadilly followed by some 150 members of the political organisation of which he was a supporter. At a traffic stop this body of people had formed itself into a procession and had moved along and stopped in accordance with direction signals given by the appellant who headed the procession.

Held, the appellant had organised a procession in contravention of s.3(4) of the Public Order Act, 1936.

51 of 61

R (ON THE APPLICATION OF LAPORTE) V CHIEF CONSTABL

Summary

The police had not acted lawfully in preventing coach passengers reaching the site of a demonstration because it could not be concluded that a breach of the peace was "imminent" at the time the coaches were stopped. The action was an interference with the protesters' rights under the Human Rights Act 1998 Sch.1 Part I Art.10 and Sch.1 Part I Art.11 and was disproportionate.

Abstract

The appellant (L) appealed against a decision ([2004] EWCA Civ 1639, [2005] Q.B. 678, [2005] C.L.Y. 3341) that the respondent chief constable had acted lawfully in preventing coach passengers, of which she was one, from reaching the site of a demonstration. The chief constable cross-appealed against the decision that he had acted unlawfully in escorting the coaches away from the site and back to London. L had been in one of three coaches taking passengers from London to RAF Fairford in Gloucestershire in order to join an anti-war demonstration. The police, believing that the protesters were members of a hard-core anarchist group, stopped the coaches and searched them. It was found that only eight of the 120 passengers were members of the anarchist group. The chief superintendent (X) had concluded that a breach of the peace was not, at that time, imminent, but decided to send the coaches back to London with a police escort in order to prevent a breach of the peace occurring at RAF Fairford when the passengers disembarked. The Divisional Court and the Court of Appeal held that the police had acted lawfully in preventing the coaches from reaching RAF Fairford on the basis that a breach of the peace was likely to occur there, but had acted unlawfully in forcibly returning the coaches to London. L submitted that the chief constable had interfered with her rights under the Human Rights Act 1998 Sch.1 Part I Art.10 and Sch.1 Part I Art.11, and that while the interference was for a legitimate purpose it was not prescribed by law, because it was not warranted under domestic law. L further argued that the interference was not necessary in a democratic society because it was premature and indiscriminate, and was accordingly disproportionate. The chief constable argued that the true principle of domestic law was that the police could do whatever they judged to be reasonable to prevent a breach of the peace, and that there was no absolute requirement that a breach of the peace must be imminent before the power to take reasonable steps arose, although questions of imminence would be relevant to what was reasonable.

Held

Appeal allowed, cross-appeal dismissed. (1) There was nothing in domestic authority to support the proposition that action short of arrest could be taken when a breach of the peace was not so imminent as would be necessary to justify arrest. X did not think, when he stopped the coaches, that a breach of the peace was imminent. He was right to reach that conclusion. The action he took, however well intentioned, was unlawful, Albert v Lavin [1982] A.C. 546, [1981] 12 WLUK 56 followed, Moss v McLachlan (1985) 149 J.P. 167, [1985] 1 WLUK 376 distinguished, Humphries v Connor (1864) 17 I.C.L.R. 1, [1864] 1 WLUK 121 and Steel v United Kingdom (24838/94) (1999) 28 E.H.R.R. 603, [1998] 9 WLUK 214 considered. The test of the lawfulness of X's actions was not one of reasonableness, but of imminence. The reasonable apprehension of an imminent breach of the peace was an important threshold requirement that must exist before any preventive action was permissible at common law. In the instant case, no breach of the peace was or could reasonably be apprehended to be imminent when the coaches were stopped and searched. (2) Where a reasonable apprehension of an imminent breach of the peace existed then the preventive action taken must be reasonable or proportionate. The police must take no more intrusive action than appeared necessary to prevent the breach of the peace. Even if any preventive action had been justified against anyone on the coaches, the action taken was unreasonable and disproportionate. X should have explored other options when he realised that the coach passengers did not pose an imminent threat to the peace. The police had failed to discharge the burden of establishing that the actions they took were proportionate and constituted the least restriction necessary to the rights of freedom of speech and freedom of peaceful assembly. (3) It was not reasonable for the police to believe that there would be disorder once the coaches reached RAF Fairford. Extensive precautions had been put in place there. (4) (Obiter) Wherever possible, the focus of preventive action should be on those about to act disruptively, not on peaceful protesters. However, preventive action against an innocent person could be taken where it was reasonably apprehended that there was no other possible means of avoiding an imminent breach of the peace, O'Kelly v Harvey (1883) L.R. 14 Ir. 105 considered.

52 of 61

R (BEER) V HAMPSHIRE FARMERS MARKET LTD [2004]

Summary

Respondent was trout farmer - Respondent was not allowed to participate in Farmers' Markets Programme - Programme organised by Hampshire Farmers Markets Limited - Company's registered office was at appellant's offices - Company was public authority within meaning of Human Rights Act 1998, s 6 and therefore its decisions were amenable to judicial review.

Abstract

H, a local authority, appealed against a decision allowing B's application for judicial review of a decision by HFM, a limited company established by H. B contended that the decision refusing him a licence to participate in farmers' markets, whereby local produce was sold to the public from sites owned by local authorities, was susceptible to judicial review. H asserted that the consensual nature of the relationship between stallholders and HFM, along with the fact that it was not performing a statutory function, militated against such a finding. Held, dismissing the appeal, that it was significant that had such a decision been reached by H, it would have been susceptible to judicial review. However, unless the source of the power exercised provided an answer it was necessary to consider the nature of the power to see whether the decision had a sufficient public element, R. v Panel on Takeovers and Mergers Ex p. Datafin Plc [1987] Q.B. 815, [1986] 12 WLUK 69 applied. Although the markets were neither creatures of statute nor founded by charter, they operated from publicly owned land to which the public had open access, Poplar Housing & Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] Q.B. 48, [2001] 4 WLUK 491 applied. Furthermore, H had created HFM to carry out the same functions as that which H had previously carried out, R. (on the application of Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366, [2002] 2 All E.R. 936, [2002] 3 WLUK 642 and Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 A.C. 546, [2003] 6 WLUK 664 applied. H had also assisted HFM by providing it with offices and administrative and legal support. On the facts, therefore, the public element outweighed the consensual relationship between HFM and its stallholders, with the result that HFM's decision was that of a public authority pursuant to the Human Rights Act 1998 s.6 and susceptible to judicial review.

53 of 61

BANK MELLAT V HM TREASURY (NO 2) [2013]

Summary

Measures taken by the Treasury under the Counter-Terrorism Act 2008 Sch.7 Pt 3 para.13 to restrict the access of an Iranian bank and its UK subsidiaries to the UK financial markets on the ground that it posed a significant risk to national security by providing banking services to those involved in the development or production of nuclear weapons in Iran were arbitrary and disproportionate as well as being unlawful because of a failure to give prior notice and an opportunity to make advance representations.

Abstract

The appellant Iranian bank (B) appealed against a decision ([2011] EWCA Civ 1) upholding measures taken by the respondent Treasury to restrict B's access to financial markets in the United Kingdom. The Treasury had imposed the restriction because B had been identified as having assisted Iran's nuclear weapons programme by providing banking and financial services to entities involved with them. The Treasury had made a direction under the Counter-Terrorism Act 2008 Sch.7 Pt 3 para.13 prohibiting all persons operating in the UK financial sector from having any commercial dealings with B or its UK subsidiaries. The direction was laid before Parliament in October 2009 and came into force three days later. B applied under s.63 of the Act to set the order aside. It relied on a substantive argument that the order was irrational and disproportionate, and that the Treasury had failed to give adequate reasons for making it and/or its reasons were vitiated by irrelevant considerations or mistakes of fact. It also relied on a procedural argument that the Treasury had failed to give it an opportunity to make representations before making the order, as required by common law and by the European Convention on Human Rights 1950 art.6 and protocol 1 art.1. The High Court and the Court of Appeal dismissed B's appeals under both heads.

Held

Appeal allowed. (1) (Lords Neuberger, Hope, Dyson and Reed dissenting) The essential question raised by B's substantive objections was whether the interruption of commercial dealings with B in the UK's financial markets bore some rational and proportionate relationship to the statutory purpose of hindering the pursuit by Iran of its weapons programmes. There were two serious difficulties about the conclusions of the courts below: first, they did not explain, let alone justify, the singling out of B, and second, their justification for the order was different to that advanced by ministers when the direction was laid before Parliament. The order had initially been explained as being attributable to specific concerns about B. However, both lower courts found that justification was not in any problem specific to B, but in a problem with Iranian banks generally. They considered the direction to be the only reasonably practicable means of ensuring that the facilities of an Iranian bank with international reach would not be used to facilitate Iran's weapons programme, yet the direction made no attempt to place restrictions on every Iranian bank, only on B. That was an arbitrary and irrational decision, as well as being a disproportionate measure. B's substantive challenge to the order was therefore made out (see paras 19-20, 24, 26-27 of judgment) (Per Lords Neuberger, Hope, Dyson and Reed) The Treasury had a wide margin of appreciation and sufficient grounds had been shown for making the direction only against B (paras 64-130, 132-133, 165-177, 197-201). (2) (Lords Hope, Reed and Carnwath dissenting) B ought to have received notice of the Treasury's intention to make the direction and to have been given an opportunity to make representations. Those were among the oldest principles of public law. The only ground on which it could be said that the Treasury had no duty to consult B in advance was that such a duty was statutorily excluded. It was not enough for the Treasury to argue that the statutory right of recourse to the courts provided by s.63 was enough to satisfy any duty of fairness; it was not implicit in s.63 that the right of recourse to the courts was the sole guarantee of fairness, nor was it implicit that what the common law would otherwise require to achieve fairness was excluded. The Treasury also failed in its argument that the direction was required to be made in subordinate legislation, which was not an area where the courts could imply a duty of fairness or prior consultation; the lawfulness of a statutory power to make delegated legislation was reviewable by the courts. A statutory instrument was an instrument of the minister, who was empowered by the enabling Act to make it. The fact that it required the approval of Parliament did not alter that. The focus of the court was therefore on his decision to make it, not on Parliament's decision to approve it, Edinburgh DC v Secretary of State for Scotland 1985 S.C. 261, [1985] 6 WLUK 215 considered. The Treasury's direction designating B was unlawful for want of prior notice or any procedure enabling it to be heard in advance. It was unnecessary to consider whether a duty of prior consultation arose by virtue of art.6 of the Convention (paras 28-29, 33-49). (Per Lords Hope, Reed and Carnwath) There was no provision in Sch.7 for a designated person to be given a hearing before the order was made and, although the absence of such a provision did not automatically mean that Parliament had not intended there to be any such entitlement, it was a pointer towards such an intention. It was not for the courts to re-write the scheme intended by Parliament (paras 55-63, 134-159).

54 of 61

ATTORNEY GENERAL V NEWS GROUP NEWSPAPERS [1987]

55 of 61

ATTORNEY-GENERAL V ENGLISH [1983]

56 of 61

DOUGLAS V HELLO! LTD (NO1) [2001]

57 of 61

VENABLES AND THOMPSON V NEWS GROUP NEWSPAPERS LTD

58 of 61

CAMPBELL V MIRROR GROUP NEWSPAPERS LTD [2004]

59 of 61

MURRAY (BY HIS LITIGATION FRIENDS) V EXPRESS NEWSP

60 of 61

MOSLEY V NEWS GROUPS NEWSPAPERS [2008] EWHC 1777 (

61 of 61

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Rule of Law resources »