- Created by: Francesca Marks
- Created on: 30-04-15 12:34
Aroney 'Reserved Matters, Legislative Purpose and Referendum on Scottish Independence' 2014- 'the scottish government asserted that the Scottish Parliament had the unilateral authority to call a referendum on Scottish Independence, but the British Government denied this, insisting only the UK parliament had this authority, a view with which the HoL Select Committee on Constitution agreed.' 'This much is logically entailed by the doctrine of PS and indeed such power is affirmed by the Scotland Act itself.' 'However these undoubted legal powers are also effectively subject to the Sewel Convention, which stipulates the UK will not legislate in relation to devolved matters without its consent.' 'Accordingly any UK statute which made provision for a Scottish Referendum would have to be premised on the agreement of Scottish Parliament.' 'No doubt the capacity to authorise a referendum is vested in the UK parliament acting in cooperation with Scotland.' 'the Scotland Act calls the legislature a parliament suggesting a body of the highest authority.' 'English Parliament was soverign and this sovreignty was inherited by the Parliament of the UK. On this view it is solely pursuant to the authotiy of the British Parliament that the modern Scottish Parliament was brought into existence and legislative powers conferred onto it.' 'UK is better unstood as a kind of union state rather than a unitary state.' Giving Scottish commons representation in the new parliament didnt give veto or stop UK's representitives legislating for Scotland.
'The UK is certainly not a modern federal state. The Treaty and Acts of Union are not fundamental laws in the sense in which written constitutions are understood.''The political impetus for Scottish Devolution may have come from the Constitional Convention but the legal status of the Act due to its enactment by the UK Parliament.' 'S28(1) of Scotland Act confers a general power to 'make laws'. Doesnt limit to certain specific matters. Limited through list of 'reserved powers'. 'Importantly the scotland act confers general power upon the Scottish Parliament subject to reservations.' Limitations are very extensive. Parliament can still make laws concerning matters devolved to Scotland as implied by the doctrine of PS and confirmed in the Act itself. By virtue of the Sewel Convention both British and Scotland Parliaments possess legislative powers that are literally general but in the final analysis constitutionally limited. S29 declares an act of Scottish P is not law so far as any provision of the act is outside the legislative competence of the parliament and it is out of the competence if it is a reserved matter. Cant make law related to the Union of the two kingdoms. To see if validly enacted have to have three distinguishable inquiries 'the interpretation of meaning and scope of the reserved matters, the characterisation of Scottish law and the determination whether the law, as characterised falls within the Scottish Parliaments legislative powers as interpreted.'
S29(3) says whether an act 'relates to a reserved matter is to be determined by reference to the purpose of the provision having regard to its effect in all the circumstances.'
'Lord Sewel was explicit that the intention of the provisions was to ensure that if the purpose of Scottish law is a devolved one then it is not outside the legislative competence merely because it 'incidently affects a reserved matter.'' Different approaches to identification of the relevant purpose of the law were adopted in Martin and Imperial Tabacco. Does SP have the legislative power to authorise an independence referendum? 'several features of the Scotland act are relevant to construing the scope of the Union as a reserved matter.' 'It is true some of the reserved matters in the SA are subject to important exceptions, but these have no relevant operations in relation to the union as a reserved matter. The key issue would be whether referendum power extended to holiding of a referendum on Scottish Independence given that the Union is a reserved matter. The reserved matter and the developed power would have to be read together and the crucial question would be the scope of each. As SA stands there is no relevant express limitation on the scope of the union as a reserved matter, and there are intersexual reasons to adopt a wide interpretation which extends beyond the preservation of the bare existence of the union. It is very possible to read the reserved matter of the union so widely it captures the law and renders it ultra vires.'
Turpin and Tomkins- UK is union of England, Scotland, Wales and NI in a single state. Has a union constitution, as not traditionally unitary or federal. Federalism: essential features that central and regional gov have limited powers and the govs are independent of each other.
A unitary constitution can be 'quasi federal' if has splits. US is federal. 'No constitution is an entirely realistic description of what actually happens.' Finer. Federalism allows autonomy and diversity in a system of shared power whilst keeping sufficient authority at the centre to uphold common standards. Never been a serious consideration to make UK federal due to dominant position of England. Devolution in 1998 for Scotland, Wales, and NI were not designed to make UK federal. Main agreement is 'memorandum of understanding' which provides for a Joint Ministerial Committee as a consultive forum for the four administrations. Considers matters of overlapping interest or responsibilities or attempts to resolve intergovernmental disputes. Three multilateral overarching agreements (Concordats) which deal with EU business cooperation, international relations and financial assistance to industry. Not legally binding. 'In polictical terms these settlements are significantly close to the federal end of the continum than their predecessors in the Northern Ireland Act 1920 and the abortive Scotland Act 1978'- Walker.
Scotland: joined UK in 1707 in Treaty and Acts of Union. Parliament can alter Scottish Law. PS shows that an Act of Parliament is valid even if it violates fundamental provisions in the Union legislation. MacCormick v Lord Advocate 1953 and Gibson v Lord Advocate 1975. Scotland Act established a uni cameral, law making SP and Scottish Administration. Has fixed terms of 4 years. If SC decides they have passed law outside their legislative competance they have the opportunity to reconsider it. Cant submit original bill for assent if ruled ultra vires.
Scottish Gov has to act compatibly with EU law. Still Sec of State for Scotland in English Cabinet, but most functions have gone to Scottish ministers. Scotland has 59 MP's. There have been calls to stop Scots voting on matters devolved to their own country in 2000 by Frank Field and again in 2006. Westminster can only legislate on devolved matters with Scotlands permission, need a Sewel motion. First 6 years saw 52 discussed. Scottish Grand Committee debate reserved matters but rarely meets. Select Committee on Scottish Affairs scrutinises the work of Scotland Offices including relations with Scottish Parliament.
Wales: 40 MP's in HoC. Over represented should have 33 seats. No change due to devolution b down to 30 seats under Parliamentary Voting System and Constitutencies Act 2011. Welsh Grand Committee considers bills and other matters exclusive to Wales. Also Select Committee on Wales examines expenditure, admin and policy of Welsh office. Executive devolution only. Unicameral assembly for Wales. Has 60 members with no executive. Mainly just do so could catch up with Scotland. Government of Wales Act 2006- 3 main aims- effect formal separation of powers between the executive and legislative branches of the assembly, to reform electoral arrangements and to enhance the legislative powers of the assembly.Orders in council mechanism where parliament may confer advanced legislative powers in relation to specified subject mattersin devolved fields. Led to complex section 5 which is hard to navigate.
Northern Ireland- had a devolved government from 1920-72. The unionist party had a majority for the whole period. After 1972 powers were transferred to the SoS for NI. Direct rule in 1972-4. Attempted assembly in 1973 but brought down in a year after a strike. Belfast/Good Friday agreement made to make arrangements for devolution of legislative and executive powers to an elected NI assembly. Referendum held in 1998 and 71% agreed with agreement. Assembly elected in 1998. Political fall out led to direct control in 2002-7. Used order in councils. Devolution under Northern Ireland Act 1998 was to give legal effect to the substantive provisions under Belfast agreement. Assembly has 108 members elected for 4 years. Has power of primary legislation in respect of all transferred matters, so matters that are not reserved. Reserved matters in S3 are not within assembly competence but can do criminal justice, public order and consumer safety. Parliament can still make laws for NI. Has NI Human Rights Commission. Advises assembly if bills are compatible with human rights.
Local government: have wideranging powers of responsibility. To reduce load on the centre, provides opportunities for democratic choice and popular participation in areas, to achieve more responsive and rational decision making though institutions that know the area. Structure: Acts of 1888 established local government. In 1995 46 new local unitary authoritites were made and 9 more in 2009. Two tier structure of district and county remains in place.
Functions: consumer protection, culture and entertainment, public transport etc. Owe existence to statute and power can be taken away. All expenditure requires statutory authorisation. Powers through Local Government Act 1971 S111. No constitution which fixes boundaries of cental and local government so can be shifted. Tend to want to restrict local gov, get money subject to ministerial approval. Scotland devolution made no provision directly affecting structure or functions of local authorities.
Trench 'The government of Wales Act 2006' 2006- described as 'a process not an event.' Doesnt deliver changes to the electoral system. It doesnt increase the size of the assembly or give power for primary legislation. Would need a referendum for this. While commission envisaged a Scottish model it is more just a framework for future devolution. Act creates a strong executive as most legislation making powers are to the Assembly Government. Assembly cant really control executive. Increased distance between ministers and assembly, with no ministers on assembly committees and its hard to hold them to account. Transfer of legislative functions: creates scope to increase legislative functions and thus National Assemblys power. Stage 1: new approach to framing legislation to confer 'wider and more permissive powers' for Assembly. Stage 2: involves transfer of powers on particular matters in one of 20 fields such as health, education or local gov. Stage 3: transfer to the Assembly of legislative in the same 20 fields outright.
S2+3 dealt with in act, S2 in effect on royal assent and 3 after referendum. Stage 1: framework legislation. Foundations remain an internal govenment document, capable of being changed if the approach of UK gov changes. Seems slim foundation of constitutional element. Wider and more permissive drafting may mean no consistency. Eg of 20 bills using the framework approach in 2005-6 only 3 used the 'framework powers' approach. Stage 2: provides for orders in council to be made conferring legislative functions regarding matters on national assembly. Considerable power and maybe poorly equipped to deal with it. No specialist legislation drafters. Order in councils transfer the power. Risk resulting in confusion of constitutional issues raised in the conferring of powers with the political ones arising from the Assembly Governments proposed policy. Assembly accountable to parliament, not its electorate. At the moment its not possible to say which legislative powers are conferred onto the assembly and which arent. Act is a framework but provides little guidance. Stage 3: referendum shows the act postponing decisions. Decision given to SoS as he determines date after request from national assembly. Question isnt specified but if won it would transfer all 20 fields. SoS still pivotol role. Makes standing orders for new assembly, varies dates of general elections, decides whether request for legislative powers should be submitted to parliament. Acts as God Father of Wales' constitutional arrangements. His powers overlap with Parliament so cant tell whether executive or legislature are responsible at UK level.
Towards a constitutional settlement: act is a political tool. For devolutionists theres prospect of new legislative powers and powerful legislature. For anti devolutionists there was the promise nothing could happen without consent of 2/3rds of assembly. Creates framework for the future whilst working out what the devolopments should be and how they should be dealt with. Attempt to avoid hard questions.
McCrudden 'Northern Ireland...' - agreement establishes a unique constitutional settlement that differs significantly from the other two, because it is embodied in an international agreement between two soverign countries. In Britain consitution is an outward manifestation of substantial consent. Dont have the consent in NI it has been necessary to attempt to construct consent in part on the basis of constitutional guarentees. Agreement provides constitution for NI that is based on ideological constitutionalism. NI assembly elected by proportional representation. 108 members. Full executive and legislative authority in matters of 6 NI departments. NI Act 1998 and NI Assembly Act 1998 provided basis legal framework. Committment by the parties to the principle of consent and acceptence by the BG that it was willing to relinquish parts of the UK went beyond the institutinoal innovations of the agreement. In constitutional terms these provisions are of considerable significance since they impose legal obligations on the SoS in domestic law to enter into negotiations with Ireland in certain contexts. Meant to be a peace agreement where all participants 'reaffirmed their committment to the total disarmament...
British Irish council set up to 'promote harmonious and mutually beneficial development of the totality of relationships among the people of these islands.' Suspension in 2000 by SoS needed new UK legislation to enacted: NI Act 2000. Provided for executive responsibilitiy to go back to sec of state and legislative power to go back to order in councils. Suspension showed UK willing to go outside acts procedures. Seen as ultimate constitutional authority of Westminster. The agreement has limited the ability of the UK parliament to alter the constitution of NI as set out in the agreement without the consent of the legislature. Has NI Human Rights Commission with an enforcement role. Operation has become contentious as failed to make good proposals for bill of rights. Electoral support for the agreement: given the rules for operating the assembly and the executive, teh agreement must attract the support of the majorities of the electorate in both communities or it will die. Four year review of agreement provided. The agreement 'remains the only viable political framework that is capable of securing the support of both communitiies in NI. We are determined that its wide ranging provisions will continue to be implemented.' Govs agreed funamentals of agreement must remain and were not open to negotiation.
Elliot and Thomas- defined by Dicey as 'residue of discretionary or arbitrary authority legally left in the hands of the crown the remaining portion of the crowns original authority.' 'Every act which the executive government can lawfully do without the authority of an Act of Parliament is done in the virtue of the prerogative.' Lloyd- 'the term prerogative should be confined to those powers which are unique to the crown.'
Turpin and Tomkins- appointment of prime minister- queen can legally chose whoever but is governed by the consitutional convention that she must chose the person who can form a government of confidence in HoC. Mostly done by parties now. Some say she may have a say if parites cannot reach a conclusion of government in a hung parliament. Robert Hazell- 'the golden rule is not to draw the monarchy into contraversy or political negotiations.'
Dismissal of ministers: legal power overlaid by convention. In practise fate of ministers in PM's hands. Dismissal of gov may be an option of last resort but also is likely to generate contraversy.
Dissolution of parliament: only in request from PM, now constitutional convention. Fixed Term Parliaments bill will abolish this prerogative. Power to prorogue parliament, suspend proceedings, on ministers advice for a couple of days normally at the end of each parliamentary session will remain. No dissolution in 100 years.
Royal Assent- necessary for bill to become an act. No refusal since 1707. Constitional convention that she will give assent. (only wont if PM says) 'There is no prerogative power that can in the normal conditions of political life be exercised independently by the monarch.'
Some parts of Civil Service are in prerogatives. Orders in Council are done under prerogative, which are equivilant to primary legislation. Government has full power under prerogative to legislate for the few remaining colonies and to create new courts of common law.
Elliot and Thomas- some powers are declare war, control army, sign treaties, grant mercy, passports and international relations. Never been given permission by parliament.
Bradley and Ewing- some prerogatives can only be exercised if gov are away of parliamentary support. Crown may declare war but parliament only can give supplies. Where treaty envisages change in domestic law parliament can frustrate it by refusing to pass necessary legislation. Crown can pardon offenders but Home Sec may seek advice of Criminal Cases Review Commission.
What are legal restraints on the powers? Turpin and Tomkins- Case of Proclamations 1611 established the crown has no power to change the general law.
Civil service made under prerogative Orders in Council but Constitutional Reform and Governance Act 2010 put it on a statutory footing. Used to be able to use to extend jurisdiction on land it hadnt previously but now under Territorial Sea Act 1987.
Elliot and Thomas- power of judicial review that can distinguish if the power exists and to what extent. Goes as far back as 17th C in Royal De Kesyer. Seems reluctance to review prerogative powers as 1) seems constitutionally improper to interfer but Bancoult showed in principle exercises of it are reviewable. 2) concerned the subject matter of many powers. Some areas such as power to make representations to foreign governments has limited scope for judicial review. (Abassi) said 'Highly unlikely any decision of the Foreign and Commonwealth office as to whether to make a representation on a diplomatic level will be imtimately connected with decisions relating to this countries foreign policy.'
Bradley and Ewing- statutes do not bind the crown unless statute is express or by necessary implication. Lord Keith 'crown is not bound by statutory provision unless there can somehow be gathered from the terms of the relevant Act an intention to that effect'
Taming the Prerogative- courts will not recognise the existence of new prerogative powers. Cannot question whether the crown used its powers wisely.
Have been challenges such as in Bentley where it was held 'some aspects of the exercise of the Royal prerogative are amenable to the judicial process.' In Everett said the passport power is open to judicial review. This was reinforced by the HRA which gives greater review powers. Under the HRA Orders in Council made under prerogative are deemed to be primary legislation and must be read and given effect in a way that is compatible with ECHR. Court can declare them incompatible. A more likely source of challenge is A6 under which it is unlawful for a public authority to act in a way which is incompatible. Many PP's dealing with issues such as defence of the realm and security so the courts take caution of claims under HRA. Abassi said the British gov has no duty to take positive action to prevent violations of human rights that take place outside the jurisdiction. Ponsenby Rule, states any treaty which requires ratification now needs to be laid before Parliament 21 days before its ratified.
Turpin and Tomkins- how do they work with Parliamentary soverignty and rule of law? The courts could determine existence and extent of prerogative and whether its use had been restricted by statute. In Blackburn Denning said minister negotiating and signing a treaty 'exericise the prerogative of the crown. Their actions in doing so cannot be challenged or questioned by the courts.' The court can intervene to correct 'absense and abuse.' RoL requires these powers are grounded in law. In 17th C constitutional settlement it established the powers were subject to law and there were no powers that couldnt be controlled by statute.
Parliament cannot create new prerogative, although it may confer on the crown new rights or powers which may be very similar in character to prerogative powers.
Turpin and Tomkins- why was GCHQ significant? Lordships said the prerogative was reviewable. Lord Brightman and Fraser said this as the power exercised was delegated to minister by prerogative Order in Council and it must be an implied condition of any delegation that the power should be exercised fairly, which is a matter for review. Majority were of the opinion that even direct exercise of PP was reviewable. Review must relate to a matter that is justicable and must affect the 'private rights or legitimate expectations of other persons.'- Diplock. Lord Roskill said unable to see 'any logical reason why the fact that the source of the power is prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory.' In this case the prerorgative power wasnt excluded so were open to review. Held it was overriden by requirements of national security.
Elliot and Thomas- judicial review in line with the powers of normal review- respect for legitmate expectations, natural justice and reasonableness that are enforced by judicial review. Scarman 'if the subject matter in respect of which the prerogative is exercised is judicible that is to say it is a matter upon which the court can adjudicate, the exercise of power is subject to
review in accordance with the principles developed in respect of the review of the exercise of the statutory power.'
HC Public Administration Select Committee on the Reform of The Prerogative- proposed no changes to the queens constitutional prerogatives. Main powers- treaties, diplomacy, ambassdors, governance of overseas territories, armed forces, removing ministers, civil service, passports and pardons. Ministers are accountable to parliament for use of prerogative powers but only after the event. Going to war: most important, believe parliament should be more involved. Lord Hurd said thinks they should have explicit parliamentary approval. If sending people to be killed should be by elected people. William Hague said should be 'simple and flexible' to ensure house could discuss military action. Treaties: Ponsenby Rule limited prerogative. House not required to debate it. Lester said should be given more scruitiny by parliament as effect lives. Hague suggested hearings with select committees, with a vote in the HoC, with possibility of amendment. Civil service- Hague thinks like Congress, Parliament should be able to approve all major gov reorganisations. Public appointments- Parliament should be more involved with hearings and maybe a committee. Passports- Lester said shouldnt be unregulated by parliament. Privy Council- Hague thinks should be subject to democratic control of Parliament. Parliament should have right to know which powers are being exercised. Need accountability. Pragmatic approach so constitution can evolve.
Constitutional Reform Act and Fixed Term Parliaments Act 2010/11- FTP codified the power to call an election whenever PM wishes. Power to dissolve parliament been overruled by statute. Polling day has to be first thursday in may each 5 years and Parliament disolves 17 days before. Cant change this. In CRA power to ratify treatites was codified. 'now laid before parliament a copy of the treaty.' Now taken out of executives hands. Sometimes doesnt apply but if it doesnt it has to be shown to parliament immediately after its signed. Statute for much of the civil service, diplomatic service and establishing most of Civil Service Commision. This is small reforms as doesnt say anything on armed forces etc. Piecemeal legistlation- chipping away at the powers. Could use a sunset clause where all powers become redundent after a certain point and need to legislate to keep them.
Bradley and Ewing, Turpin and Tomkins, and Elliot and Thomas- What is the test for judicial review? Must have reasonable concern with the matter in the claim. Sufficient interest been approached in a generous manner, if can establish a case that deserves to suceed standing will not get in the way. Allows 'public interest challenges'. Law Commission 1976 can up with 'sufficient interest' test which gave courts discretion to decide. Seniour Courts Act 1981 which provides a court may not grant permission 'unless considers a claimant has sufficient interest in the matter to which the application relates.' Denning 'the court would not listen to a mere busy body who was interfering in things which did not concern him'. England has a more liberal approach to standing but stil is strict. Associational standing- group or corporation 'claiming on the behalf of identifiable individuals who are its members or whom it claims to represent'. Eg Greenpeace were able to 'mount a carefully selected, focused, relevant and well argued challenge.' Suggests courts will scruitinise organisations credentials to ensure they have reason to argue the case and isnt simply interfering.
Public interest: can do it on purely public interest eg Pergua Dam. If purported to be or effected by a decision simply because it would be in the public interest to comment on its legality. Wouldnt be easy on these grounds. Appropriate in this case as i) seriousness of allegations (£200 million of public money), ii) strength of claimants case iii) absense of alternative challenger (all tax payers effected equally) and the expert and informed character of the claimant.
Case law on test: R v Inland Revenue Commissioners said had to be resolved in relation to what was known by the court of the matter under review. Basis of modern law is Fleet Street causals case. Said standing is not to be assessed as a purely preliminary matter separate from case susbstance but to be judged with in the 'legal and factual context of the case'. Addressed with strength and seriousness. Suggested by Cane this was the end of standing as an independent requirement.
Fusion technique- where courts fuse standing with merits, may say rejected case due to standing but really due to lack of merit. If strong case you are likely to get standing.
What does court take into account to consider standing? Appropriateness of group bringing the claim. Normally an NGO cant bring a claim on behalf of victims but could in Greenpeace. Consider if public interest issue. Public as a whole might have an interest in ensuring that governmnet authorities respect the principles of good administration.
Victim test under HRA- Law of European Human Rights- if violates a convention right they must show they are a 'victim' of the violation. Harder than sufficient interest. Created under S7. Meaning of victim is in A34 of ECHR. Doesnt permit representitive bodies unless they themselves are a victim. Brought by 'a person, non governmental organisation, or group
of individuals claiming to be a victim of the violation.' Need to be directly effected even if effects are only temporary. Klass v Germany shows when may claim to be a victim of a violation occasioned by the mere existence of secret measures without having to show they effected him. This has been narrowed in later rulings though, now have to establish 'reasonable' liklihood of interference. In Open Door considered any woman of child bearing age may have been adversly affected by the ban meaning class size was opened up again. In the case of potential victims will accept applications when complain there will be an interference with Convention rights if the state has already decided to take certain steps against them and the interference only requires execution of that decision. Often in deportation cases. Need reasonable and convincing evidence of likilihood the violation will occur. Mere suspiscion is insufficient. An applicant will be deprived of victim status if national authorties acknowledge the breach of convention and then afforded the appropriate redress. Compensation must be satisfactory. In a case in Italy the damages were only 10% of what the court would have awarded and so was still considered a victim. NGO's must show they were affected by the measure. Cant normally claim to be a victim of a measure that affected the rights of their members.
What are the constitutional implications of standing? Lord Reed in Walton v Scottish Ministers standing may encompass a wider 'constitutional functino of maintaining rule of law.' Admin law may deal with upholding standards of good governance. Courts want accountable use of
executive power and they percieve, pursuant to the notion of legal constitutionalism, a significant role for the judiciary in the enterprise.
The UK may be looking towards a victim test.
I would say HRA may be too narrow as sometimes a company may much more equipped to bring the claim and may have the money given its had to go to Europe. I would say that it is appropriate though given its a european one that it is more stringent so that less claims come in and costs less and takes less time. I like the english allowance of NGO's. I also think it is beneficial that you can fight on public interest so as to prevent tyrannical government. More accountability. If domestic threshold was too high may lead to citizens not being able to challenge government. This is key for a democratic and liberal democracy. Could lead to legislating from the bench and lack of parliamentary soverignty.
MoJ Proposals said too low a threshold. Between 2007-11 had 50 judicial review cases lodged by NGO's. About 20 given permission a year, 13 heard at final hearing and 6 won. Want 'direct and individual concern.' Clear that any new test wouldnt require any actual damage. A potential future interest will be fine. Court may allow third parties to submit evidence, appear at the hearing or intervene if a stricter approach was taken, instead of bringing cases.
Bradley and Ewing- court must decide whether to uphold or set aside the decision of a public authority. Done in the High Court. Covention rights apply to all public authorities is respect of their function. A body with mixed public and private functions is regarded as public only in relation to functions that are of a public nature. Validity fo a statutory instrument may be challenged on a) content of the substance of the instrument was ultra vires the parent act or b) that the correct procedure hasnt been taken in making the instrument. Chances of success depend on the parent act. S3 to interpret in line with the Convention really widens the scope of challenge. There is a presumption that Parliament didnt intend delegated powers to be exercised for certain purposes unless by express words or necessary implication that has clearly authorised them. Court can declare a statutory instrument invalid which has a retrospective effect in the absense of Parliament allowance. Dont strike down lightly, need to apply reasonableness- where an act may be so unreasonable that Parliament cannot be taken to have authorised it under the act in question.
Elliot and Thomas- Demarcation of powers reflects important policy issues. Minister must ask himself if a jurisdictional question- do I have the power to do this? 1) he must address the meaning of the terms in the statute. Question of the law. Courts will have final say. Judges can susbstitute their meaning of the statute over the ministers.
Amnisic 'it cannot be for the commission to determine the limits of its powers'- Lord Reid. When there are contraversial issues of policy there is a strong argument for saying they shouldnt be made by independent bodies but should be made by politically accountable government decision makers. Undemocratic if left to the courts. ECHR said that A6 is only likely to apply when a public body is making a determination concerning an 'assertable right.'
Independent decision maker- Alconbury said circumstances as long as decision of minister was open to review by a 'court of full jurisdiction.' Curative principle that subsequent judicial review can make up for lack of independence in original decision. 'Fact finding functions' whether the function can be performed by an independent body or by political body. Politicians can make the decision as long as there is judicial oversight but ideally by independent bodies.
The right to be heard: fairness is required whenever an administrative decision affects rights, interest or legitimate expectation, but what fairness is depends on the circumstances. Can range from written representation to a criminal trial. Depends on the implications on the individual. If seen to lose something important would need higher level of fairness. Ensured each individual is accorded the procedural rights that are necessary and appropriate to his case. Fairness can be compromised eg Parliament doesnt allow national security material to be disclosed in criminal trials under Justice and Security Act 2013.
Review and Wednesbury
Turpin and Tomkins- decisions can be vitated by 'unreasonableness'. Comes from Associated Pictures where Greene said 'it is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever come to it then the courts can interfere.' Its not what the courts think is unreasonable themselves. High standard. Often tried to be used but not often sucessful. Cant be applied to all cases depends on the 'nature and purpose of the enabling legislation.'- Phillips. Laws said 'constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of whats at stake.' Smith showed where constitutional rights are at stake the test is intensified. Proportionality: exercise of discretionary power 'maintains a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose which it pursues.' Courts reluctant to use it although incorporated in International Traders Ferrys. In Daly said domestic courts should use it in matters concerning Convention rights. Apply the test in Lord Steyns opinion. Not an established ground of review and use Wednesbury instead.
Irvine 'Theory and Practise of Wednesbury review' 1996- applications for judicial review has risen. Court must not substitute its opinion for that of the decision maker- its not an appellate court. Only rule on the legality of the decision nad not its correctness. Rules on how it was reached rather than the merits of the decision.
Constitutional basis for judicial review. 1) constitutional imperative: public authorities get their powers from parliament which intended that it would be exercised by the authority in which it is entrusted. This is due to the levels of expertise and knowledge. 2) lack of judicial expertise: courts are ill equipped to make decisions in the place of designated authority. Even more true when about policy and the further into policy it is the less courts should intervene. 3) democratic imperative. Elected public authorities get their authority from their electoral mandate. Electoral system is a safeguard against unreasonable use of powers since they have to submit themselves and their decisions to the electorate at reasonable intervals. This reduces to a doctrine of judicial restraint in deference to the sovereignty of parliament.
Substantive principles of judicial review. Lord Greene in Wednesbury said concerned with if a public authority has acted in excess of the powers which Parliament has given it. Substantive principles of judicial review according to him are 1) decision maker has broad discretion on teh factors which are to be taken into account before the decision is made, that can only be restricted if the statute requires a particular matter may or may not be considered. 2) weight ought to be given to each principle is a mattter of discretion and will only be struck down if so unreasonable no one else wouldve done it. If substituted decisions it would be 'a wrongful usurpation of power by the judiciary.' Attack of stricteness of W.
Arguments for a lower threshold- in fundamental rights cases. In Brind said that 1) must acknowledge the fundamental right and 2) decided whether there is an important competing public interest which justifies its restriction. Only happens if the right is unquestionably fundamental. Some think courts should be able to exercise controls over merits of decisions if fundamental rights are at stake. Would lead to dangerous territory. Higher threshold: decisions of economic policy. Merits of the decision are for the decision maker. Natural justice: it is for the court to decide whether the duty to act fairly arises. Content of duty is variable. Legitimate expectation- duty to act fairly. May give rise to the right to be consulted before a decision is taken and also to locus standi for the purpose of challenging the decision. Statutory interpretation is only a matter for the courts. European effects: proportionality. Some say invite review of merits and to a standard way lower than wednesbury. Only used when domestic cases relate to European convention.
Le Sueur 'The rise and ruin of unreasonableness' courts make a secondary decision. Basic distinctions between domestic law and convention rights. Judicial review guarding against violations of parliamentary inetntion or principle embedded in common law. HRA enacted to give further effect to rights and freedoms under ECHR. Convention rights used in about half of all claims. Daley said they should use proportionality not irrationality.
Development of anxious scrutiny: this lowers the threshold of unreasonableness. The more the interference the more justification the court will require. Should the varying degrees be seen as a spectrum or different categories? Common sense approach should be taken. Courts role is one of review of error of law. Defendant needs to show justification. Challenge is to achieve enhanced review without turning to merits or proportionality. The law seems to have remained static, the last big innovation was the variable intensity of review. Options 1) common law on rationality may continue to evolve 2) irrationality may be replaced with proportionality. 3) legislation may be introduced so as to restrict unreasonableness as a ground of judicial review.
Elliot and Thomas- unreasonable is something exceptional, bordering on the absurd. Hands off approach due to democratic grounds and instutional ground in economic policy issues. For some the wide discretion of Wednesbury is both its greatest strength and weakness. Some have criticised circularity and unstructured (may not pin point exactly what was wrong). Proportionality: 1) may be more intense and discretion by decision maker will be smaller. A decision that is reasonable eg Smith may be disproportionate. 2) more structured. May soon be applicable in non rights English cases. Would be better than opaque Wednesbury. Some are reluctant as see it on the merits. Allan argues that deference means they effectively refuse to decide if something is lawful.
Clayton 2002- HRA designed to enhance human rights within parliamentary sovereignty attracted praise. Courts have considerable epertise in applying S3. Need to find meaning of legislation. Reading in and reading down: read in convention rights (by implying words into the statute) or to read down (apply narrow interpretation to ensure it remains valid). Dont often read in (R v A). Reading down more often. R v Lambert. A number of declarations of incompatiblity have been made. (R v Mental Health Review and R v International Transport Roth). Interpretation v Legislation- tensions. Proper limits showed in Re S where Nicholl said 'that where a court is being asked to give meaning which is substantially different from an Act of Parliament it is likely to have crossed the boundary between interpretation and amendment.' Difficulties in applying S3 are exaggurated. Just shouldnt distort statutory language. HoL said cannot be invoked if convention compliant interpretation is contrary to the express statutory words. Very different from the parliamentary intention test.
Klug 2003- Lord Sedley suggests proportionality will have deepest effect on law as a result of the HRA. Nichol said HRA is a 'unique constitutional instrument designed to enable parliament and government as well as courts to participate in givng further effect to fundamental rights.' When do judges create legislation? 1) convention rights are extremely broad so the distinction blurs, not like UKs detailed legislation. 2) ECoHR has developed 'margin of apprectiation'
where there are no go areas for the Strasbourg court. In R v A Lord Steyn said unless clear limiation on convention rights is stated in its terms it should be impossible to interpret an act compatibly with Convention rights. Lord Hope said should look at meaning and purpose of the act as a whole. For Laws judicial deference is one of the ways of resolving tension between parliamentary sovereignty and fundamental rights. Spectrum of deference ranging from A5 and 6 with not much and national security and ecnomic matters they are unlikely to touch. Klug thinks the latter should be done by Parliament with a Human Rights Select Committee. Brown said 'courts role under HRA is the guardian of human rights. It cannot abdicate this responsibility.' S4 shows dialogue approach where the instutitutions of state influence each other rather than the judiciary being a police. Jack Straw said 'parliament and judiciary must engage in serious dialogue about the operation and development of rights in the bill, this dialogue is the only way in which we can ensure the legislation is a living development that assists our citizens.' May not happen as S4 only seen as last resort or expansion, rather than means of maintaining exisiting separation in the function of the legislation and the courts.
Gearty 2002- 1) the breadth of S3- some increase in the power of the courts as compared with the legislature. Courts have been invited by parliament to exercise this new constitutional power. Legislation is not only to be read with convention rights but to be given effect in a compatible way. S4 procedure clearly envisages acts having survived S3 analysis
with their validity intact and a capacity for the continuing operation and enforecement. S6 is also important, the general duty on public authorities to act compatibly with convention rights does not apply to an act if 'as the result of one or more provisions of primary legislation the authority could not have acted differently.' In Brown the court recognised 'the need for a fair balance between the general interest of the community and the personal rights of the individual.'
Turpin and Tomkins- Not all substantive provisions were brought in eg not A13. S6 governs relationship between Convention rights and government by providing 'it is unlawful for a public authority to act in a way which is incompatible with a Convention right.' Case law from ECoHR isnt incorporated. S10 allows ministers to make orders amending violative legislation. S19 requires them to make a statement saying if compatible or not. Dont have to give reasons though. Lord Sedley said the act brought about a 'constitutional shift' away from the conception of rights as mere residual liberties. A2,3,4,5 and 7 are absolute rights and shouldnt be overridden in any circumstances. A6 while right to fair trial is absolute, may be balanced with the interests of the wider community. Qualified rights can be restricted by states on a specified ground. A8-11 can be limited if the restrictions prescribed by law, if necessary in a democratic society and it serves a certain prescribed aim. The interests and morals of the public. Reflects aim of the convention to strike a balance between interests in a democratic society and fundamental rights with emphasis on the latter.
Positive and negative obligations- Public authorities are under a negative obligation not to infringe the right and a positive duty to take appropriate action to ensure the convention right is protected. Domestic courts have found a positive obligation in A2 in Osman. Fredman 'has articulated a basic value of our written constitution, namely that the state is responsible for preventing destitution which arises as consequence of a statutory regime.'
Scope of protection: Public authority can break convention rights if under primary legislation so as to 'preserve parliamentary sovereignty.' A public authority cant be a victim of a breach. NGO's can have their rights breached. Convention rights have horizontal effectiveness between private persons as well as being vertical for actions against public authorities.
Strasbourg case law: S2 must take into account the relevant decisions of the ECoHR when making a decision. No obligation to follow it. In Ullah said 'should in the absense of some special circumstances, follow any clear and consistent jurisprudence of the Strasbourg court. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time. In Horncastle wrote 70 pages about how common law was better than a blanket reliance on Strasbourg. Pinnock 2010 'the court is not bound to follow every decision of the ECHR. Not only would it be impractical to do so, it would sometimes be inappropriate.
Future of HRA: 2010 all major parties said theyd repeal it and replace with British Bill of Rights. Said that it doesnt place enough empahsis on responsibilities and public interest. Cons worried that it was basically enforcing European Law. Also wanted traditional british liberties such as right to trial by jury included. An independent commission was made in 2011 by the LibDems to investigate the creation of a British Bill of Rights.
European Human Rights law: Developed by Council of Europe, not the EU. ECHR is enforced by the European Court of Human Rights. In Hirst 2006 siad blocking rights of prisoners to vote is unlawful may impact on parliamentary soverignty. Government didnt change the law due to backlash so issue remains unsolved. Been bound since 1950's and in 2000 could fight domestically. Not all rights are incorporated in HRA. Over use of S3 will lead to HRA becoming a restriction on Parliamentary sovereignty. Lord Steyn in R v A said the only limit was when the provision in question expressly contradicted a convention right. Others didnt go as far.