judicial review Flashcards
McGonnell v UK (2000) 30 EHRR 209
Key point
Article 6(1) ECHR is only concerned with whether there is an objective appearance of independence and impartiality, not whether the tribunal was subjectively biased or prejudiced
Facts
In 1988 a draft Detailed Development Plan was under consideration which would affect the applicant’s land in Guernsey by excluding it from residential use
In 1990, the States of Deliberation, the Guernsey legislature, presided over by the Deputy Bailiff, Mr Graham Dorey, debated and adopted the Detailed Development Plan
Three years later the applicant made a formal application for a change of use for his land
His application was rejected and applicant appealed to the Royal Court comprising the Bailiff, Sir Graham Dorey, and seven Jurats
The applicant appealed to the European Court of Human Rights for breach of his right to a hearing by a independent and impartial tribunal was denied, on the basis that as the Bailiff held judicial, legislative and executive roles, he was not impartial and independent
Held (European Court of Human Rights)
There was a violation of Article 6(1) ECHR
The mere fact that the deputy bailiff presided over the States of Deliberation when the zoning plan was adopted in 1990 was capable of casting doubt on his impartiality
Judgment
“The court can agree with the government that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts as such. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the court is faced solely with questions of whether the bailiff had the required ‘appearance’ of independence, or the required ‘objective’ impartiality.”: [51]
Commentary
The Court rejected the argument that when he acted in a non-judicial capacity in that he merely occupied positions rather than exercising function
The fact that, as Deputy Bailiff, he had presided over the States of Deliberation when the development plan was adopted was capable of casting doubt on his impartiality when he subsequently determined the planning appeal as sole judge of law in the case
- The concepts of independence and objective impartiality are closely linked
- In addition, the case law requires the body to present “an appearance of independence”, and there must be sufficient guarantees “to exclude any legitimate doubt” as to the impartiality of the judge
- Both subjective impartiality (of individual judges) and objective impartiality (providing sufficient guarantees)
- “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence
Entick v Carrington (1765) 19 St Tr 1030
Key points
The state may do nothing unless permitted by the law as defined in statute by Parliament and common law by the Courts
Facts
In 1762, chief messenger Nathan Carrington and three other men broke into John Entick’s house, causing significant damage and seizing numerous items
They were on the orders of the Earl of Halifax, a Secretary of State, to search for seditious papers allegedly written by Entick
Entick sued for trespass
Held (Court of the King’s Bench)
Held in Entick’s favour – despite the warrant of the Secretary of State, the otherwise unlawful action could not be rendered lawful
Lord Camden
“If it is law, it will be found in our books. If it is not to be found there, it is not law.”
The action was justified by no legal authority – neither statute nor precedent, nor principle
He rejected the argument that the warrants were lawful simply because there had been no prior legal challenge
Broadly, the State may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law
His reasoning cited John Locke: “The great end, for which men entered into society, was to secure their property.”
Commentary
In the UK, the executive derives its power from either statute or royal prerogative, which is the residue of the Crown’s powers not regulated by statute and based on the common law, such as the power to conduct foreign policy and declare war – it is for the courts to determine the scope of executive power derived from both these sources: see CCSU
This case was decided less than a century following the Glorious Revolution and the independence of the judiciary, when the Crown had become less powerful but the scope of its powers remained unclear
Entick represents assertion of judicial power that formed an early stepping stone in the establishment of the limits of executive authority, one of the most important features of the rule of law
Dicey: “… the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary or discretionary powers of constraint.”
This case was also the inspiration for the Fourth Amendment of the US Constitution, which protects people from unreasonable searches and seizures by the government
M v Home Office [1994] 1 AC 377
Key point
The Courts can enforce the law against the Crown and its ministers through the grant of injunctions
Facts
M, a citizen of Zaire, came to the UK seeking asylum
M was deported by the Home Office contrary to Garland J’s injunction ordering M’s return
The Court of Appeal found Kenneth Baker, in the capacity of the Home Secretary, in contempt of court on the basis of non-compliance of the injunction
Held (House of Lords)
Appeal dismissed; courts can grant injunctions (both final or interim) against the Crown; ministers of the Crown are not immune to contempt proceedings
For the first time, a minister of the Crown, the Home Secretary, was held in contempt of court
Lord Templeman
“My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.”
The court may find ministers in contempt in both their personal and official capacities, however, in the present case, the Home Secretary was acting in his official capacity, on advice which he was entitled to accept and under a mistaken view as to the law.
“The judges cannot enforce the law against the Crown as Monarch because the Crown as Monarch can do no wrong but judges enforce the law against the Crown as executive and against the individuals who from time to time represent the Crown.”
Lord Woolf
Section 31(2) of the Supreme Court Act 1981 gave the court jurisdiction on applications for judicial review to grant injunctions against ministers and other representatives of the Crown
While contempt proceedings are personal and punitive (thus usually inappropriate against the Crown and its representatives), when used in limited circumstances, are necessary as part of the court’s jurisdiction to protects its orders
Commentary
This case exemplifies equality under law, a key component of the rule of law
The coercive power of the courts particularly important to allow the judiciary to fulfil their constitutional role of preventing the abuse of executive power
- R (Corner House) v Director of Serious Fraud Office [2008] UKHL 60
Key Point
To suspend investigations on the ground of threats from a foreign government is within the scope of discretion of the Director of the Serious Fraud Office to investigation corruption under s1(3) Criminal Justice Act 1987
Facts
The Director as authorised under s1(3) Criminal Justice Act 1987, had been investigating allegations of corruption against a UK company which had been the main contractor for a valuable arms deal between the Government of the UK and the Kingdom of Saudi Arabia
The Director proposed to investigate certain Swiss bank accounts for evidence of untoward payments to Saudi officials
The Saudi authorities threatened that if the investigation was carried out, they would pull out of their counter-terrorism co-operation arrangements with the UK, thus risking “British lives on British streets”
After meeting with the ambassador to Saudi Arabia to discuss the threats, the Director decided to halt the investigation
Corner House sought judicial review of this decision on the basis that it was unlawful for such a threat to influence his decision
The Divisional Court quashed the decision, holding that
The Director had not independently exercised the powers under the 1987 Act and
The Director had not sufficiently appreciated the damage to the rule of law by submitting to the threat
The Director can only submit to such threats if left with no other choice
Held (House of Lords)
Appeal allowed; the Director’s decision had been lawful
Lord Bingham of Cornhill
Failure to exercise discretion
The Director of the SFO, is a public official appointed by the Crown but independent of it, similar to the Director of Public Prosecutions: [30]
What the Director had decided was that, in his judgment, the public interest in saving lives outweighed the public interest in pursuing the contracting company to conviction: [35]
The decision did not amount to a surrender by the Director discretionary powers to a third party although he consulted the ambassador and the Attorney General: [41]
The issue was “not whether his decision was right or wrong, nor whether the Divisional Court or the House agrees with it, but whether it was a decision which the Director was lawfully entitled to make.”: [41]
In the opinion of the House the Director’s decision was one he was lawfully entitled to make: [42]
Commentary
The decision in this case can be criticised on several grounds
As the Divisional Court points out, the independence of the Director and thus the rule of law is undermined if the Director gives in to foreign threats and pressure from the government
Spencer, ‘Fiat justicia, ruatque concordia cum Arabe?’ C.L.J. 2008, 67(3), 456-458 points out that if kleptocrats and tyrants are convinced that the UK government and the Prime Minister could not stop the investigation if they chose to, they would not try to pressure the UK government to do so, much like how they do not pressure the UK government to censor the UK press as they know the press is not controlled by the UK government
Craig v HM Advocate [2022] UKSC 6
- there is a clear expectation that the executive will comply with a declaratory order, and that it is in reliance on that expectation that the courts usually refrain from making coercive orders against the executive and grant declaratory orders instead.
- The Government’s compliance with court orders, including declaratory orders, is one of the core principles of our constitution, and is vital to the mutual trust which underpins the relationship between the Government and the courts
R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262,
Key Points
Obiter comments indicated that parliamentary sovereignty was subject to limitations and an Act of Parliament can be disapplied by the courts if it conflicts with the rule of law
Facts
The Parliament Act 1911 removed the power of the House of Lords (HL) to veto any Bill passed by the House of Commons. and limited the maximum time HL could delay a Bill was two years, unless it was a Money Bill or Bill to extend Parliament duration
The Parliament Act 1949 reduced the duration of delay from 2 years to 1 year.
The Parliament Act 1949 was passed using the procedure in the 1911 Act, this meant the 1911 Act was effectively being used to amend itself
The Hunting Act 2004 had been passed to make unlawful the use of dogs to hunt wild animals
The HL would not accept the Hunting Act 2004, and so it had been passed using the procedure under the Parliament Acts of 1911 and 1949
The appellants challenged the validity of the Hunting Act 2004 on the ground that the Parliament Act 1949 was invalid, and that because the Hunting Act 2004 had been passed using the procedure under that Act, it was also invalid
The argument was that any legislation passed under the procedure in the 1911 Act was effectively secondary legislation, and since the 1949 Act would thus be secondary legislation, it could not amend its parent legislation, the 1911 Act
Held (House of Lords)
Appeal dismissed; both the Parliament Act of 1949 and the Hunting Act 2004 were held to be valid.
The 1949 Act was primary legislation, as the wording of the 1911 Act unambiguously referred to the creation of “an Act of Parliament” (s. 1(1) of the Parliament Act 1911); the 1911 Act ought to be considered a parallel path to introduce Acts of Parliament
Lord Hope
“…the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”: [107]
“…the courts have a part to play in defining the limits of Parliament’s legislative sovereignty.”: [107]
Baroness Hale
“…the courts will […] decline to hold that Parliament had interfered with fundamental rights unless it has had made its intention crystal clear.”: [159]
Lord Steyn
“…in exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”: [102]
Commentary
The judgments in this case were the first express statements from judges in official capacity that courts might consider striking down legislation should they contradict constitutional principles
Based on the judgments it is clear that the judges now consider the principle of parliamentary sovereignty to be subject to limitations imposed by the competing constitutional principle of rule of law
Baroness Hale emphasised usage of the principle of legality in statutory interpretation and did not take as radical a stance as Lord Hope and Lord Steyn did in endorsing the outright disapplication of Acts of Parliament based
R (Purdy) v Director of Public Prosecutions [2009] UKHL 45
Key point
The principle of legality in articles of the ECHR requires any interference with Convention rights to have a legal basis in domestic law, for the law or rule to be accessible and precise, and for the law and rule to be applied in a non-arbitrary and proportionate manner
For a law or rule to be accessible and precise, the executive will have ensure that the scope of discretion under the law and the manner of its exercise are indicated with sufficient clarity – this might necessitate the promulgation of office-specific policies by prosecutors identifying the factors they will take into account when exercising prosecutorial discretion
Facts
P’s husband intended to her travel to Switzerland to attain physician-assisted suicide would be illegal under s.2(1) Suicide Act 1961 with a potential penalty of 14 years
P sought information on whether her husband would be prosecuted if he helped her travel to Switzerland, as s.2(4) SA allows the Director of Public Prosecutions to decide when to bring charges under s.2(1)
DPP has never exercised his discretion to under s2(4) Suicide Act to prosecute such conduct, but has only ever published his official reasoning for his decision in one previous case
P argued that she should be entitled to information on factors the DPP will take into account to exercise his discretion under s2(4) under her article 8 ECHR right to respect for private and family life
Held (House of Lords)
Appeal allowed
Art.8(2) ECHR places a duty on the DPP to promulgate a policy on the factors it will take into account in deciding whether to prosecute under s.2(4) Suicide Act 1961
Lord Hope of Craighead
Principle of legality under article 8(2)
The requirement of article 8(2) that there should be no interference with the right under article 8(1) except such as was in accordance with the law required the court to consider:
whether there was a legal basis in domestic law for any such interference,
whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law, and
whether the law or rule was being applied in a way which was arbitrary or disproportionate: [40]
‘A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary’: [41]
Current case
The Code for Crown Prosecutors issued by the DPP will ‘normally provide sufficient guidance to Crown Prosecutors and to the public as to how [prosecutorial] decisions should or are likely to be taken’: [53]
However, in dealing with prosecution under the s.2(4) Suicide Act 1961, the Code itself does not satisfy the article 8(2) requirements of accessibility and foreseeability: [54]
‘I consider that the offence of aiding and abetting the suicide of another under section 2(1) Suicide Act 1961 is unique in that the critical act – suicide – is not itself unlawful, unlike any other aiding and abetting offence. For that reason, I have decided that many of the factors identified in the Code in favour or against a prosecution do not really apply in this case‘: [50]
’I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies’: [56]
Commentary
‘Even after the adoption of guidelines, the blanket ban is not truly mitigated by the uncertain prospect of failure to prosecute; considering the high risks involved—long-term deprivation of liberty, social stigma attached to a criminal conviction and jeopardizing one’s future employability and livelihood—this is an insufficient corrective to the general ban.’: The blanket ban on assisted suicide: between moral paternalism and utilitarian justice, Dr Carmen Draghici, E.H.R.L.R. 2015, 3, 286-297, p.292
R v Lord Chancellor, ex parte Witham [1998] QB 575 (QB)
R v Lord Chancellor, ex parte Witham [1998] QB 575 (QB)
Facts
* The Lord Chancellor, in a purported exercise of his powers under section 130 of the Supreme Court Act 1981, increased court fees and removed fee waivers for low-income litigants through a statutory instrument known as The Supreme Court Fees (Amendment) Order 1996.
* The 1996 order removed sections 5(1) and (3) of the Supreme Court Fees Order 1980 which relieved litigants in person in the receipt of income support from fees and conferred on the Lord Chancellor the power to exceptionally reduce or remit fees on the grounds of undue financial hardship.
* The applicant, who was in receipt of income support, was unable to pursue proceedings for defamation as a result of the new order.
* The applicant brought judicial review proceedings, seeking a declaration that section 3 of The Supreme Court Fees (Amendment) Order 1996 was ultra vires section 130 of the Supreme Court Act 1981 and therefore unlawful.
Legal Issue
* Whether the Lord Chancellor’s actions were beyond the scope of the statutory power conferred on him by the 1981 Act due to implied limitations on this power.
* Whether limiting the right to court was in conflict with common law principles and Article 6 of the ECHR
Judgment (Laws LJ, Rose LJ agreeing)
* Accepted submissions that the increased fees as a result of the Lord Chancellor’s decision inhibited access to courts in fact.
* The right to access court was a recognised constitutional right in common law.
* ‘Indeed, the right to a fair trial, which of necessity imports the right to access of court, is as near to an absolute right as any which I can envisage.’
* Common law has accorded a ‘special weight’ to this right.
* The meaning of constitutional right: cannot be abrogated by the executive unless it is ‘specifically so permitted by Parliament’.
* There was nothing in section 130 that enabled the Lord Chancellor to this effect.
* Therefore, the court declared the decision was unlawful.
* Informed by the principle of legality and confirmed the notion that fundamental rights cannot be abrogated by executive action unless explicitly permitted in statute.
Ratio for the decision
Therefore, because i) the right to access courts was a constitutional right recognised by common law and ii) the wording of section 130 did not provide express permission to abrogate this right, then: the decision of the Lord Chancellor which did in fact inhibit access to courts was ultra vires.
Obiter
* In theory, rights could also be abrogated by necessary implication, but this may be a ‘class of no members’
R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68, [2014] AC 453
Key point
Parliamentary sovereignty means that the coming into force of the Jobseekers (Back to Work Schemes) Act 2013 retrospectively validates the Employment, Skills and Enterprise Scheme
Facts
The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 required unemployed people who are claiming Jobseekers allowance to undertake unpaid work experience on pain of losing their benefits
The policy was successfully challenged by Caitlin Reilly, an unemployed geology graduate, and Jamieson Wilson, an unemployed driver, in the Court of Appeal on a number of grounds including that the authorising regulations were invalid and that they were incompatible with Article 4 of the ECHR (prohibition of forced labour)
The government appealed to the Supreme Court
Before the appeal was heard by the Supreme Court, Parliament passed the Jobseekers (Back to Work Schemes) Act 2013 which retrospectively validated the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations
Held (Supreme Court)
Appeal allowed; before the case was heard by the Supreme Court, the scheme was retrospectively validated by the Jobseekers (Back to Work Schemes) Act 2013
Lord Neuberger and Lord Toulson
Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 had been ultra vires as they did not offer any description of the scheme as required by 17A Jobseekers Act 1995 and they did not meet notification requirements in regulation 4(2)(c)(e) of 2011 regulations
A common law duty of fairness required that the claimants should be provided with sufficient information about the schemes to enable them to make meaningful representations to the decision-maker before a notice requiring their participation was served upon them “…there was a failure to provide either Ms Reilly or Mr Wilson with adequate, accurate information about the schemes in relation to themselves before they were informed that their participation was required”: [76]
The schemes did not constitute compulsory labour and therefore do not engage Article 4: “To amount to a violation of article 4, the work had to be not only compulsory and involuntary, but the obligation to work, or its performance, must be “unjust”, “oppressive”, “an avoidable hardship”, “needlessly distressing” or “somewhat harassing”…we do not consider that the imposition of the work condition in this case, intended as it was to support the purpose for which the conditional benefit was provided, met the starting point for a possible contravention of article 4”: [89-90]
However, the appeal was allowed as the Jobseekers (Back to Work Schemes) Act 2013 had altered the law and retrospectively validates the 2011 regulations as well as sanctions imposed on benefit claimants under its regime
Commentary
In Reilly (no. 2) [2016] EWCA Civ 413, the Court of Appeal found that the Jobseekers (Back to Work Schemes) Act 2013 was incompatible with Article 6(1) of the European Convention of Human Rights and the rule of law in that it had interfered with ongoing legal proceedings in favour of the government
R (Evans) v Attorney General [2015] UKSC 21, [2015] AC 1787
Key Facts:
1) Journalist Rob Evans sought disclosure of correspondence between Prince Charles and government
departments (2004-2005) under the Freedom of Information Act 2000 (FOIA) and Environmental
Information Regulations 2004 (EIR).
2) The Upper Tribunal ruled in favor of partial disclosure, citing public interest.
3) Attorney General overruled the Tribunal’s decision using a certificate under section 53 FOIA, claiming
"reasonable grounds."
4) Evans challenged this decision via judicial review on two grounds “ namely (i) the reasons given by the
Attorney General were not capable of constituting reasonable grounds within the meaning of
section 53(2) of the FOIA 2000, and/or (ii) because the advocacy correspondence was concerned with
environmental issues, the Certificate was incompatible with Council Directive 2003/4/EC
Judgment
Supreme Court(majority): The Attorney General’s use of section 53 to override the Upper Tribunal’s decision
was invalid and unlawful.
Reasoning: Majority - 5
Lord Neuberger:
1. Judicial Authority: Highlighted that judicial decisions, especially from tribunals and courts, must be
binding and respected by all, including the executive.
2. Rule of law:He argued that allowing a government minister to override such decisions undermines the
constitutional separation of powers and threatens the rule of law.
3. Circumastances The FOIA section 53 veto could only be validly used in exceptional circumstances,
such as when new evidence emerges or there is a material change in circumstances, neither of which
applied in this case.
4. Held that “reasonable grounds” required a substantive justification beyond simple disagreement with a
court decision.
Lord Kerr: (agreeing with Lord Neuberger)
1. Compatibility with EU Law: Focused on the inconsistency of the veto with EU law, particularly the
Aarhus Convention and Directive 2003/4/EC. These require decisions on environmental information to
be final and binding on public authorities.
2. Independence of the Judiciary: Underscored that the Attorney General’s intervention ignored the
tribunal’s expertise and independence, which was particularly concerning given the tribunal’s thorough
fact-finding process. Judicial decisions are not merely advisory and cannot be disregarded.
Baroness Hale:
1. Weight of Tribunal Decisions: Stressed that the Upper Tribunal had conducted a meticulous analysis of
the case, weighing public interest and applying relevant legal standards.
2. Criticized the Attorney General for failing to engage meaningfully with the tribunal’s reasoning and for
dismissing its judgment without addressing its findings.
3. Separation of Powers: Argued that the veto blurred the lines between the executive and judicial
branches, allowing the former to usurp the latter’s role. This, she noted, was contrary to the
constitutional principles that underpin the FOIA and the rule of law.
Lord Reed: ( agreeing with Lord Neuberger)
1. Executive overreach: Emphasized that the Attorney General’s use of the veto amounted to executive
overreach. It allowed the government to avoid the consequences of an independent judicial process,
undermining public trust in the legal system.
2. Standards of Reasonableness: Argued that for the veto to be reasonable, the Attorney General needed to
provide compelling reasons why the tribunal’s decision was wrong. The Attorney General’s certificate,
however, failed to do this.
Lord Mance:
1. Proportionality: Focused on the lack of proportionality in the Attorney General’s decision. The
Attorney General had not provided a cogent explanation for why the public interest in non-disclosure
outweighed the tribunal’s findings.
2. Reasonable grounds: Must require “a higher hurdle than mere rationality”
Dissenting- 2
Lord Wilson:
1. Purpose of Section 53: This power was intended to address decisions where the executive reasonably
believes the public interest lies in maintaining confidentiality, even when courts disagree. (Paragraphs
168–172)
- Reasonable Grounds: The "reasonable grounds" standard, in his view, does not require agreement with
the tribunal’s conclusions but simply a defensible justification based on public interest. - Judicial and Executive Balance: Judicial intervention, in his view, should not diminish the scope of the
Attorney General’s discretion.
Lord Hughes: ( dissenting in part) - Parliament’s intention: He emphasized that this power was not implied but explicitly conferred, and its
scope could not be artificially restricted. For example, the statute did not limit the veto to cases of new
evidence or clear errors in law, and any attempt to impose such limitations would misinterpret the
legislative intent. (Paragraphs 154–156) - Rule of law: While acknowledging the importance of the rule of law, Lord Hughes emphasized that
respecting the rule of law includes honoring Parliament’s legislative decisions.He noted that it is not
inherently contrary to the rule of law for a statute to grant a member of the executive the power to
override a court decision if that is what the statute explicitly permits. (Paragraph 154) - Public interest: Lord Hughes argued that disclosing this information could harm the Prince’s ability to
perform his constitutional role as monarch. He deferred to the Attorney General’s judgment on this
matter, noting that an experienced politician may be better placed than a court to assess the public’s
reaction and the potential damage of constitutional monarchy
R (Unison) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409
*R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605
grounds of judicial review?
- Judges initially accepting bureaucrat role up to 1960 : implement state power ? (ultra vires grounds of review)
- Denning: set out germ principles for judicial review, some taken from French Admin code
- Lord Diplock in CCSU – decision founded from distinguishing between rules of private and public law
- Illegality, procedural impropriety, and irrationality
- Decisions which do not satisfy first (i.e. within Parliament’s will) may still fulfil the second and third – therefore the last two are founded on different constitutional principle(s)
- Fourth: proportionality? Would require a policy judgement?
- In place of Wednesbury’s obscurity, a set of clearer principles are being articulated: principles of rationality, certainty, equality, perhaps proportionality, along with explicit recognition of human rights.
(Jowell)
R (Simms) v Secretary of State for the Home Department [2002] 2 AC 115, Lord Hoffmann at 130-131
- In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
Unison and Lord Chancellor
- Access to justice/vindication of ROL
- UKSC quashed LC decision: statutory grant of power did not extend to setting fees to obstruct access to justice
- Incentivizing dispute resolution = lawful aims
- UKSC effectively holds that LC is wrong, but is this what Parl intended?
- Parl authorises LC to decide but UKSC makes decision unlawful
- Attempt to uphold ROL made it difficult for LC to know what position was lawful ie threatening ROL
Evans v AG
- Access to Prince letters
- Freedom of Information Act
- AG exercised power to block disclosure (overturn tribunal decision)
- Majority granted application to stop block
- ROL required this interpretation
- Always unlawful for minister to take own view of public interest
- Dissenting Lord Hughes: ROL must not always prevail in court
- ROL limiting power of all institutions
- Hard to square with PSOV and traditional statutory interpretation
