Public and Administrative Law Cases

This was the 'metric martyrs' case where Laws LJ spoke of a class of 'constitutional statutes.' 

"Ordinary statutes may be impliedly repealed. Constitutional statutes may not...A constitutional statute can only be repealed. or amended in a way which significantly effects its provisions tpuching fundamental rights or otherwise the relation between citizen and state, by unambiguous words on the face of the later statute."

Entick's house was searched and ransacked by Carrington who argued that a warrant from a government minister was valid authority to do so. There was no statutory provision or court order for it, but the practice of issuing such executive warrants had existed for over 70 years. The court led by Lord Camden said:

"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. By the laws of England, every invasio of provate property, be it ever so minute is trespass... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgement."

Regulation 18B of the Defence Regulations 1939 were emergency regulations that permitted the Home Secretary to intern people if he had reasonable cause to believe that they had 'hostile associations'. Anderson interned Liversidge, who gave a fake name, under this regulation.

The majority endorsed the subjective basis of the power given to the minister.

In Lord Atkin's dissenting view the majority had abandoned their responsibility to investigate and control the executive, which he said was more "executive minded than executive."

This case was on the deliberation of a new constitution for Canada, it adressed the purpose of constitutional conventions:

"The main purpose of constitutional conventions is to ensure that the legal framework of the Constitution will be operated in accordance with the prevailing constitutional values or principles of the period."

For example, the democratic principle is the pivot of the convention relating to responsible government. 

The Attorney-General sought restraint on the publication of certain materials in the diary of Richard Crossman, a former cabinet minister, submitting that the protection from disclosure of Cabinet papers was based on collective responsibility.

The court refused the injunction.

The convention of Collective Responsibility was indirectly upeheld.

The Court considered the impact of the Freedom of Information Act upon the 'Law Officers Convention'.

The Law Officers Convention is that the fact and content of Law Officer's opinions remains confidential unless the Officers consent otherwise.

Owen wrote to Her Majesty's Treasury asking to see 'Councel's Opinion supporting Mr Gordon Brown's decleration of the Financial Services and Markets Bill's compatibility with the HRA 1998. 

This was not released. The court affirmed that Parliament had intended weight should be given to the Convention in the Freedom of Information Act.

The Upper Tribunal ordered the disclosure of certain correspondance between Prince Charles and 17 government departments under the Freedom of Information Act. 

The key finding was that disclosure would be in the public interest, in part because the correspondance at issue did not fall under any constitutional convention.

The chamber applied the Jenning's criteria for constitutional conventions:

1. a)  What are the precedents?

2. b)  Did the actors believe they were bound by a rule?

3. c)  Is there a reason for the rule? 

It found that the education convention (that the heir to the throne is entitled and bound to be instructed in and about the business of government) failed on the third limb, there was no reason why Prince Charles should engage in advocacy correspondance as part of the education convention.

It was found that statute prevails over the prerogative.

The UK government requisitioned a hotel for soldiers.

The Defence of the Realm Consolidation Act 1914 allowed for compensation instead. 

When the hotel owners asked for compensation, the UK government claimed they were exercising prerogative powers.

Restatement of De Keyser's Royal Hotel.

It concerned the tort-based payment for paid under the Criminal Injuries Compensation scheme created in 1964 under prerogative powers which is now governed by the Criminal Justice Act 1988.

There had been no commencement date at the time of the case but Home Secretary Micheal Howard introduced a different tariff based scheme instead of the above mentioned tort based payment.

It was held that the minister had an absolute jurisdiction of when to activate the statutory scheme; but he could not meanwhile, as long as the Act remained in force, introduce a scheme so at odds with Parliament's will.

The government's supply of riot equipment to chief constables outside the procedure stipulated by the Police Act; statute and prerogative were found to be coexisting.

and also the case of R (Alvi) v Secretary of State for the Home Department 2012.

In these two cases the Supreme Court held that the ancient royal prerogative to control the entry of aliens had been displaced by statutory limitations, rejecting the statutory limitations, rejecting the ** bold argument that because immigration control was a matter of royal prerogative she was under no obligation to lay any rules before parliament at all.

Instead, Parliament intended by the 1971 Act that changes to immigration requirements must comply with the terms of that Act.

This case is similar to ex parte Fire Brigades Union. 

The CPAG challenged the failure of the government to establish a Child Poverty Commission, as required by Section 9 of the Child Poverty Act 2010

Singh J held:

"Parliament had enacted a law, namely the 2010 act, to create the Child Poverty Comission and requiring the secretaries of state to obtain its advice within 12 months of the enactment of the act. The secretaries of state decided not to do that. They have good reason, but they were not entitled to ignore or not comply with the law.

Judicial Review

The courts define the existance and extent of a prerogative power. 

Judicial Review

No new prerogatives to be created after 1689

Judicial Review

The civil aviation treaty was used to justify removal of landing rights at Heathrow; the prerogative cannot be employed to defeat a statutory right.

Judicial Review

The prerogative power relating to passports may be reviewed.

Ex parte Blackburn 1971

Ex parte Molyneaux 1986

Ex parte Rees-Mogg 1994

Wheeler v ** for Foreign and Commonwealth Affairs 2008

All these cases found that the royal prerogative power of forming treaties is non-justiciable.

The European Court of Human RIghs ruled that the right to a fair trial was violated by the participation in a planning decision of the Deputy Bailiff of Guernsey, who was both a senior judge  in the Guernsey Royal Court and a senior member of Guernsey's legislative body, the States of Deliberation.

The seperated powers require the seperation of personnel. 

The Lord Chancellor held shares in a canal company involved in litigation. The House of Lords ruled that the Lord Chancellor should have disqualified himself from sitting. Even though it was accepted that he was not influenced by the interets, the court ruled that it was of the upmost importance that 'the maxim that no man is to be judge in his own cause should be held sacred'.

The House of Lords overturned its own previous decision relating to the extradition of General Pinochet to face allegations of human rights violations during his period as Head of State in Chile. Lord Hoffmann who had participated in the earlier decision, held office as a Director of Amnesty International which had been allowed to present evidence. 

The earlier decision was ser aside because it gave rise to an appearance of bias.

Judges are immune from legal action relating to their judicial function and have absolute priviledge in relation to court proceedings.

Lord Phillips, president of the Supreme Court explains:

"The citizen must be able to challenge the legitimacy of executive action through an independent judiciary. Because it is the executive that exercises the power of the state and because it is the executive, in one form or another, that is the most frequent litigator in the courts, it is from executive pressure or influence that judges require particularly to be protected.

The House of Lords rejected the approach of Lord Denning on the Court of Appeal who stated that where there are apparent gaps in legislation, the courts should fill the gaps.

Lord Simmonds called this a 'naked usurpation of the legislative function under the guise of interpretation'.

Parliamentary resolution has no legal status, Parliament is only supreme when it legislates.

The Acquisition of Land Act 1919 stated that:

"The provisions of the Act or order by which the land is authorised to be acquired shall have effect subject to this Act, and so far as inconsistent Act those provisions shall cease to have or shall not have effect."

The claimants argued that compensation for land compulsarily acquired shall have effect subject to this act not the Housing Act of 1925 as a result of these words in the old statute.

No parliament can bind or be bound. 

A similar argument to Vauxhall Estates.

"The legislature cannot according to our constitution, bind itself as to the form of subsequent legislation."

"All that a court of justice can do is look to the Parliamentary roll, if from that it should appear that a bill has passed both houses and achieved the royal ascent, no court of justice can inquire into the mode in which it was introduced into parliament, nor into what was done previous to its introduction, or what passed in parliament during its progress in its various stages through both houses."

"If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it, but, so long as it exists in law, the courts are bound to obey it."

"The principle of the unlimited sovereignty of Parliament is a distictively English principle which has no counterpart in Scottish constitutional law."

Legislation passed in 1978 establishing differential treatment in the redudancy money paid to full time and part time workers breached article 141 and the Equal Treatment Directive as discriminatory treatment for which there was no objective justification. The Minister's argument was that it was designed to ehance work opportunities for part time employeed had not been mad eout and it was not enough for the Minister to simply assert that justification.

In the EOC case we see that a Minister of the Crown is required by one of the crown's courts to provide an explanation of the sovereign conduct, which the court decides is not sufficiently justified.

The issue in Rossminster was that the Taxes Managament Act 1970 allowed officers of the Board of Inland Revenue, acting under a search warrant, to enter premises at any time to sieze things believed to relate to tax fraud. The warrant issued for the search did not appear to give valid reasons why papers should be seized.

Rossminster challenged the legality of the warrant because it did not appear to have a valid reason, as the law demands that 'the search warrant is issued by a judge who must be satisfied that there are legal grounds that an offense in relation to tax has been committed'.

The issue in the case was that the plaintiff had his phone tapped into, by what he felt were unconstitutional means, as they were not routed in common law. This called into question whether or not the government could be classed as a private citizen.

Malone put forward the argument that the ability of government to tap into phones was not enshrined in common or statute law.

The court's response to these arguments was that, like a citizen, everything is permitted except what is expressly forbidden. This is the UK principle of 'negative liberties'.

The issue in this case was that Spanish fisherman alleged that the Merchant Shipping Act 1988 was incompatible with EC law. This was fully tried in the courts of the UK, including the House of Lords, which then was the highest court in the land.

The court found that no national court had the power to suspend the operation of an Act of Parliament due to its constitutional status and supremacy of parliament.

However, the ECJ disagreed with this view point and found that a national court, which. in a case before it concerning EC law, considers the sole obsticle, which recludes it from granting interim relief is a rule of national law, must set aside the rule. The House of Lords therefore granted an order restraining the ** from enforcing the legislation.

The issue in this case was an allegation of discrimination in the execution of the Rent Act. This act stated that in the case of the death of a protected tenant, his or her surviving spouse becomes statuary tenant by succession. However, the HoL found that this did not apply to same sex couples. 

1.The case is about three severely disabled men who want (or wanted) to die. 

2.Tony Nicklinson and Paul Lamb together argued that the law should permit them to have help with ending their lives in England or Wales. They sought a declaration under section 4 of the Human Rights Act 1998 that the present law on assisted suicide is incompatible with their right to respect for their private lives. Separately, Martin sought clarification of the Director of Public Prosecutions’ policy that governs when she will prosecute people for the offence of assisting a suicide. He also wanted confirmation that a stranger, such as a carer, who provided compassionate help would not ordinarily be prosecuted. The existing policy, and the DPP’s practice, is compassionate help from family or friends, for example with travel to Dignitas, is very unlikely to be prosecuted if there are no worrying features to the case. But the written policy does not make clear the position of helpers who are not family and friends, such as carers or doctors.

Both cases relied upon Article 8 of the European Convention on Human Rights, the right to respect for private life. They built on previous jurisprudence establishing that choosing to end one’s life to avoid indignity and distress engages Article 8 and, accordingly, any interference with that right must be necessary, proportionate and in accordance with law that is sufficiently clear and foreseeable in its operation.

3.    The Supreme Court formally rejected all three claims. But this does not reflect the result, which was in fact a substantial success for all three claimants:

1. On the law criminalising assistance with suicide:

(a) The Court decided that it was empowered to declare the statute incompatible with Article 8 ECHR. But, exceptionally, before making such a declaration, the Supreme Court has first given Parliament the opportunity to consider legislating, to allow those involved in this case, and others like them, to end their lives.

(b) The Supreme Court made it clear that it expects Parliament to debate legislation ‘in the near future’ and, if it did not properly do so, the courts may then issue a declaration of incompatibility.

(c) Several of the Justices gave guidance on how a new legislative scheme might work, including suggesting that it would be unsatisfactory to limit it to those who were terminally ill, and that the High Court should be empowered to determine individuals’ applications to be permitted assistance to die.

2. On the DPP’s policy governing when she will, and when she will not, prosecute for the offence of assisting a suicide:

(a) The Court documented and took account of an unexpected statement made by the DPP, through her counsel, during the Supreme Court hearing. The statement was a major clarification of the DPP’s policy, namely that an individual member of a profession, or a professional carer, who does not have previous influence or authority over the person wishing to die, and who is brought in for the simple purpose of assisting the suicide after a person has reached his or her own settled decision to end his or her life, and who provides services that a family member would not be prosecuted for providing, would be most unlikely to be prosecuted. The DPP had never previously said this.

(b) Accordingly, the DPP’s policy does not mean what she intends it to mean, and it is therefore her duty to review her written policy. If she does not, the court’s powers could be invoked to require appropriate action.

Supremacy of Parliament – no judicial challenge of Act of Parliament allowed]
C, a railway enthusiast, bought a few yards land adjoining a disused railway line for ten shillings in 1969. C's intention appears to have been to gain ownership of part of the railway line when it ceased to be used by the railway company.  An 1836 Act stated that in such circumstances the railway land reverted to the ownership of adjoining land owners; Mr Pickin had made himself such an owner. The British Railways Board subsequently claimed it owned the land by virtue of a private Act of Parliament passed in 1968, which cancelled the reversion clause of the 1836 Act.

Mr Pickin sought a declaration that the Act was ineffective on the grounds that the Board had mislead Parliament and that the standing orders of each House (requiring landowners to be notified by a notice in a local newspaper) had not been complied with.

Held: Mr Pickin's claim rejected.

Lord Reid:

"the idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution."

The Countryside Alliance, which represented pro-hunt campaigners who wished to continue foxhunting, argued the legislation used to force the ban through in England and Wales - the 1949 Parliament Act - was illegal. The government last November used the Parliament Act to push the hunting ban through following continuous opposition to a ban in the House of Lords. The ban made hunting with dogs a criminal offence. 

Held: Lord Bingham of Cornhill for their Lordships said it was valid. 

Nine of the 12 Law Lords, rather than the usual 5 heard the case because of its constitutional importance. 

Legislation passed using the Parliament Acts is not subordinate legislation but primary legislation. 

The authority of Picken v British Rail is not doubted by the instant case, which has only proceeded at the invitation of the Attorney General. Picken, was an enquiry into the workings of Parliament where it was said that Parliament had been misled and so, had proceeded on a false basis, the instant case was not such an enquiry. The instant case firstly asked if Acts that created the Hunting Act were “enacted law”. Secondly, a question of law had been raised which had to be resolved by either the courts or Parliament, and because Parliament could not do so it was up to the courts. 

Hunting ban upheld

The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.

Held: The exercise of a prerogative power of a public nature may be, subject to constraints of national security and the like, as susceptible to review as that of a statutory power. The controlling factor in determining whether the exercise of a power by a body is subject to judicial review is not in its source but its subject matter. Challenges to the lawfulness of subordinate legislation or administrative decisions and acts may take under the headings of illegality, procedural impropriety and irrationality

The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they were incompatible with the ECHR, and also on the ground that they were disproportionate in going beyond the established doctrine of reasonableness.

Held: The Convention was not part of UK law, and the words of the Act were clear and prevailed, though in a case of ambiguity, the court may have regard to the treaty obligations of the United Kingdom in seeking to resolve that ambiguity. In resolving ambiguities in domestic legislation the Courts presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it.

The district auditor for Poplar Council had surcharged council members for making payments of a minimum wage of £4 a week to their lowest grade of workers. This was notwithstanding that the cost of living had fallen during the year from 176% to 82% above its pre-First World War level. The council was motivated by the belief that it ought to act as a model employer towards its employees. The sum was fixed not by reference to any of the factors which go to determine a scale of wages, but by reference to some other principle altogether.
Held: The surcharge was upheld. The councillors had not fixed on the sum as wages at all and had acted unreasonably. In fixing £4 they had fixed it by reference to a matter which they ought not to have taken into account and to the exclusion of those elements which they ought to have taken into consideration in fixing a sum which could fairly be called a wage.

A pressure group was treated as the victim in a human rights violation.

In the context of judicial review, the judges are concerned "not with the decision but with the decision-making process".

There was no limit in the legislation on the grounds on which the power to cancel a permit was to be used, the cancellation in point went beyond the scope of the discretion conferred.  The judgment of Rand J makes some interesting remarks about the control of discretionary power.

The grounds on which such interference can be based include where the authority misdirects itself in law, fails to take into account relevant considerations or takes into account irrelevant considerations, acts in bad faith, or takes a decision that no reasonable body could have come to.  This last ground requires something overwhelming; it is not simply whether the court considers the decision to be unreasonable.

One of the issues before the Houses of Lords was the standard of judicial review in such cases.  The House of Lords held that the court could substitute its view for the decision of the immigration officer as to whether a person was an ‘illegal entrant’.  The court’s duty is to decide whether there was sufficient evidence to justify the immigration officer’s belief.  They were not limited to asking whether a reasonable immigration officer could have reached that conclusion i.e. whether there was some evidence on which immigration officer could have based his decision.  This is an example of a type of case in which the Wednesbury standard of review does not apply, given the different context in point, namely the detention of an alleged illegal immigrant.

The majority’s conclusion was that although the exercise of prerogative was reviewable, the decision to prevent resettlement was not an abuse of power. It was also decided by the same majority that the islanders did not have a legitimate expectation of resettlement because the Government’s statements in 2000 did not amount to a clear and unambiguous promise. 

This case confirms that judicial review of governmental action applies regardless of the source of the power impugned (statute, common law or prerogative power), but that judges cannot interfere with the exercise of a discretionary power if they would need to decide a non-justiciable issue in order to apply the grounds of review.

The CND asked the court to declare that the Prime Minister would be acting contrary to international law if he sent troops to Iraq without a United Nations Security Council Resolution specifically authorising it.  The Court refused to make such a declaration, because the international law issue was non-justiciable.  It is not the role of English judges to make a declaration of their opinion on a point of international law where this is not necessary for the determination of a dispute under English law.  Furthermore, considering the international law issue would be contrary to the national interest.

The Law Lords held that the Director of the SFO had a very broad (but not unfettered) discretionary power, that the possibility of a danger to British lives and national security (if the Saudis were to stop cooperating in opposing terrorism) was a relevant consideration in the exercise of his discretion, and that it was lawful for the Director of the SFO to defer to the Government on the nature of the risk.

A number of local authorities sought judicial review of the decision to designate, on various grounds, all of which were rejected.  As regards abuse of power, Lord Bridge indicated there could be no grounds for challenge short of bad faith, improper motive or manifest absurdity.

In addition, the fact the rate-capping decisions could only take effect with House of Commons approval seemed to make the House of Lords reluctant to interfere.  This case is an example of massive deference by the judiciary, where the Wednesbury approach is unsuitable due to the context.

The Local Education Authority (LEA) had a statutory duty to provide ‘suitable education’ for children who by reason of illness would not otherwise have received it.  Beth Tandy was one such child, and was provided with home tuition accordingly.  The LEA decided to cut the hours of teaching Beth received from five to three in order to save money.  The House of Lords quashed this decision, on the ground that the LEA had taken into account an irrelevant consideration (the availability of financial resources).  ‘Suitable education’ within the statute indicated a standard to be determined purely by educational considerations.  Lord Browne-Wilkinson indicated that to permit the LEA to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways would be to downgrade a statutory duty to a statutory power.

Cambridge Health Authority decided not to fund potentially life-saving treatment for a young girl.  The girl’s father sought judicial review of this decision.  The Court of Appeal found that the Health Authority had acted lawfully in its refusal.  One of the considerations the authority was entitled to take into account was its budget.  Difficult judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients, and the court defers to the Health Authority on those judgments.  This case can be distinguished from ex p Tandy, as in that case, the LEA had a duty to abide by a standard that does not depend on resources.  Here, the Health Authority has a wide discretion to distribute resources among competing needs, none of which it has a duty to meet.

Planning permission was sought, and refused, to change the designated ‘use’ of part of a building to allow a redevelopment.  Judicial review was sought of the planning inspector’s decision.  The judge quashed the decision, as he could see no good reason why planning permission should not be granted.  The Court of Appeal overturned this decision, holding that the judge had entered into the planning merits, and thereby exceeded his powers.  Planning judgments were for the planning authorities and not the courts, and although the judges may have different opinions to that of the planning inspector, his decision revealed no legal error.  Facts were found and a legitimate planning judgement applied to them in the context of the relevant planning policies.  There was a clear justification for the inspector’s conclusion.

Lord Phillips MR distinguished the functions of Parliament (legislation) and the functions of the court (determining the legality of subordinate legislation).  Requiring subordinate legislation to be approved by each House does not transfer to Parliament the role of determining legality.  The Court then went on to consider that the order was one no reasonable Home Secretary could have made, even having regard to the considerable margin of appreciation due to the Home Secretary.    

Prior to the coming into force of the Human Rights Act 1998, the Director of Public Prosecutions (DPP) consented to the prosecution of the applicants under a provision that the trial judge ruled to be incompatible with the presumption of innocence (Article 6(2) ECHR).  The applicants sought judicial review of the DPP’s decision.  The House of Lords rejected an argument that the applicants had a legitimate expectation that they would not be prosecuted for an offence incompatible with Article 6(2).  Furthermore, absent dishonesty, bad faith or an exceptional circumstance, the courts would refuse to entertain a judicial review application where the complaint could be raised within the criminal trial and appeal process.  This case stands as authority for the proposition that absent the exceptional circumstances indicated, a decision of the DPP to consent to a criminal prosecution is not amenable to judicial review.

Manning was killed while in custody.  A coroner’s jury found his death to be an unlawful killing.  The Director of Public Prosecutions decided not to prosecute the prison officers involved, as it was thought there was no realistic prospect of a conviction.  The Court quashed this decision, on the grounds of a failure to take into account relevant considerations, applying a higher test than that in the Code for Crown Prosecutors, and failing to give adequate reasons.  Lord Bingham explained that the power to review the decision not to prosecute is to be used sparingly. However the standard of review should not be set too high, as judicial review is a citizen’s only form of redress against a decision not to prosecute.  The Court emphasised that its decision meant the DPP had to reconsider the matter, but did not decide whether or not a prosecution should follow.

Diane Pretty, who suffered from a terminal illness, asked the Director of Public Prosecutions to undertake not to prosecute her husband if he assisted her to kill herself, and the DPP refused.  She sought judicial review of that refusal, relying on various Convention rights.  The House of Lords dismissed her appeal.  First, her suggested interpretation of the Convention rights was incorrect.   Secondly, the DPP had no power to undertake not to prosecute a crime that had yet to be committed.  The executive had no power to dispense with laws or their execution without Parliamentary consent.  The DPP’s discretion whether or not to consent to prosecution arises only in the circumstances of a specific offence i.e. on the basis of past events. 

A professional behaviour committee of a medical school decided that a student was not fit to practise, and ought to be expelled.  The school’s vice-chancellor upheld the decision.  The student sought judicial review of that decision, on various grounds.  The court dismissed the claim for judicial review, and indicated that in this sort of decision, a large degree of deference ought to be shown to the school.  The staff (unlike the court) are academically and medically qualified, and they had the advantage of seeing and hearing the witnesses and the student

The Ministry of Defence set up a criminal injuries compensation scheme for servicemen who were victims of crimes of violence abroad.  The criteria of the scheme excluded injuries caused in war zones.  Walker challenged the Ministry’s decision not to pay him compensation under the scheme after he was injured in Bosnia, on the basis of incorrect interpretation of the scheme, Wednesbury unreasonableness and frustration of a legitimate expectation.  The House of Lords rejected Walker’s appeal.  As regards ‘irrationality’, the Lords rejected Walker’s contention that the situation in Bosnia could not be rationally distinguished from Northern Ireland (where the scheme applied).  The House of Lords deferred to the Government, because Walker was challenging a decision about how to spend money, and because of the Military’s expertise and responsibility in assessing the conditions of troops abroad.

The Court affirmed that Foreign Office conduct in the exercise of its prerogative power to protect British citizens was in principle reviewable, so long as the subject-matter was justiciable.   This case confirms that judicial review of governmental action applies regardless of the source of the power being exercised.

The House of Lords held that the Home Secretary’s blanket policy allowing prison staff, in the absence of prisoners, to examine purported legal correspondence to ensure it was bona fide, was unlawful.  This case is an example of the principle of legality at work: a grant of administrative power phrased in general terms will be read down so that it must be exercised in manner compatible with certain basic values (here, the common law right to confidentiality of privileged legal correspondence) in order to be exercised lawfully.

The Ministry of Defence set up a criminal injuries compensation scheme for servicemen who were victims of crimes of violence abroad.  The criteria of the scheme excluded injuries caused in war zones.  Walker challenged the Ministry’s decision not to pay him compensation under the scheme after he was injured in Bosnia, on the basis of incorrect interpretation of the scheme, Wednesbury unreasonableness, and frustration of a legitimate expectation.  The House of Lords rejected Walker’s appeal.  Walker clarified the law, but it was decided on well-established principles. The courts will interfere with an administrative decisions in a very broad sense of ‘administrative’. The courts have a discretion to interfere if such a decision is procedurally unfair, or if it is based on a misinterpretation of the law or , if it is so unreasonable that no reasonable authority could make it.

The House of Lords decided that, in setting the minimum period to be served by an adult mandatory life-sentence prisoner (the tariff period) under s 29 Crime (Sentences) Act 1997, the Home Secretary is carrying out a sentencing function.  Since sentencing is part of the ‘trial’ for Article 6(1) ECHR purposes, tariff-fixing must be carried out by an independent and impartial tribunal, which the Home Secretary is not.  The House thus issued a s 4 Human Rights Act declaration of incompatibility with respect to s 29, and refused to use s 3 Human Rights Act to reword the Home Secretary’s tariff-setting power as a duty to follow the trial judge’s recommendation. 

A statutory bereavement allowance (by way of deduction from income tax liability) was payable only to widows.  A widower claimed that the refusal of the Inland Revenue to give him a similar allowance affected his Article 1 Protocol 1 ECHR right (to peaceful enjoyment of possessions) and breached Article 14 ECHR (non-discrimination).  The House of Lords inter alia rejected the claimant’s argument that s 3 Human Rights Act could be used to extend the statutory provision for bereavement allowance so as to include widower.

The House of Lords considered the compatibility of certain statutory powers of the Environment Secretary regarding planning matters with the Article 6(1) ECHR (see pp 173-6 for an outline of the planning process). The Lords held that there was no breach of Article 6(1).  Where administrative decisions concerning civil rights were taken by elected officials subject to supervision by the courts in judicial review, regard must be had to both stages.  The question was whether the reviewing court had sufficient control to ensure Article 6(1) compliance.  Where the decision is one of administrative policy (such as planning), the present supervisory jurisdiction over legality and procedures is adequate to ensure Article 6(1) is complied with.

This case highlights the far-reaching judicial role ushered in by the Human Rights Act.  The House of Lords held that in deciding appeals on Convention grounds (Article 8) against refusals of leave to enter or remain, the appellate immigration authorities (including the Immigration Appeal Tribunal (IAT)) are not limited to a secondary function of reviewing the rationality and procedural propriety of the primary decision-maker’s decisions.  The IAT must decide for itself whether refusal of leave would prejudice family life in a manner sufficiently serious to amount to an Article 8 breach, taking into account all the factors weighing in favour of refusal.  There is no additional requirement that a case should be ‘exceptional’. 

Mandatory life sentence prisoners sought judicial review, on grounds of procedural unfairness, of the Home Secretary’s decision in setting the ‘tariff’ period they must serve before being considered for parole.  The House of Lords quashed the tariff decisions.  The Home Secretary must afford prisoners the opportunity of making written representations before he sets the tariff. He must inform them of the factors to be taken into account, including the judicially recommended tariff.  His reasoning must be disclosed, including reasons for any departure from the judge’s recommendation.  Lord Mustill considers the principles governing the duty of procedural fairness: their flexible nature, their dependence on context and the recent trend towards greater openness in administrative decision-making.

oberts, a convicted murderer eligible for release on licence, brought a process challenge against the Parole Board and the special advocate scheme it had employed in a ‘closed’ parole hearing in order to determine whether his detention was still necessary.  The House of Lords found that the invention of the scheme was within the powers of the Parole Board.  If the Parole Board could lawfully withhold evidence from the prisoner, a special advocate scheme could only enhance the rights of the prisoner.  The dissenting minority considered that the access of the prisoner to an adversarial hearing could not be detracted from unless explicitly authorised by statute.

Using the Human Rights Act and the Court of Appeal’s decision in In re Medicaments and Related Classes of Goods 2001, Lord Hope concludedthat ‘The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’

The case shows how far the House of Lords will go to avoid a public perception of bias in a tribunal or court: there is no reason to think that there was unfair in the decision. Lord Hardie had no interest in the outcome, and had presumably told the House of Lords what he considered the law to be. The decision suggests that a judge’s view as to the law can sometime make it unlawful for him to decide a case.

There is a class of case which concern interests so highly regarded by the law (such as personal liberty) that fairness requires reasons are to be given as of right.  This case was in that class, although there would be no duty where the giving of reasons would be likely to cause serious harm to health.  Sedley LJ indicated that the same duty to give reasons could be seen to flow from the protection of personal autonomy in Article 8 of the ECHR.

The Revenue refused a claim to a tax benefit from Unilever on the ground that it was made outside the two-year statutory time limit. But the Revenue had established a practice of not enforcing the limit; they had allowed late claims thirty times over a period of 25 years. The Court of Appeal held that the refusal was unlawful in the circumstances. The case is authority for the proposition that such a decision can be struck down for substantive unfairness, but only if it is ‘so unfair as to amount to an abuse of power’.