Tutorial Two: Institutional Independence

Question 1

Separation of Powers - cases & acts

Answer 1

1. Case of Proclamations (1611) 12 Co Rep 74 (Lord Coke)
2. Prohibitions del Roy (1607) 77 ER 1342, 12 Co Rep 64 (Lord Coke)
3. R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC 513
4. R (on the application of Miller) v The Prime Minister [2019] UKSC 41
5. Pepper v Hart [1993] AC 593
6. Fixed Term Parliament Act 2011

Question 2

Judicial Independence and the Judicial Role - cases & acts

Answer 2

1. Magna Carta 1215, cl 39 and 40
2. ECHR Article 6
3. Constitutional Reform Act 2005, ss 3, 23-27, 32-33, 137.
4. McGonnell v United Kingdom (2000) 30 EHRR 209 (noted: Cones [2000] PL 166)
5. R v Anderson [2002] 4 All ER 1089.

Question 3

Political Controls and Parliament: Parliamentary Privilege - cases & acts

Answer 3

1. Bill of Rights 1689, art 9.
2. The Strauss case (1958) 21 MLR 465.
3. A v United Kingdom (2003) 36 EHRR51
4. R v Chaytor [2010] UKSC 52

Question 4

Separation of Powers - Case of Proclamations

Answer 4

> Case of Proclamations (1611) 77 ER 1352, 12 Co rep 74.
Could the monarch (James I) prohibit new buildings or making of wheat?
Could the monarch by his proclamation change existing law without parliamentary consent?
Outcome: the Royal Prerogative didn’t allow the outlawing of previously legal actions without Parliament’s consent.
Sir Coke: “the King hath no prerogative but that which the law of the land allow him.”
New laws should be left at hands of Parliament, not one person.
Confirmed that English law consisted of the common law, statutory rules & custom only - didn’t include monarch’s proclamations.
Coke: “The King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm…”

Question 5

Separation of Powers - Prohibitions Del Roy

Answer 5

> Prohibitions Del Roy [1607] 12 Coke Reports 63 77 ER 1342.
The King may sit in the King’s Bench but merely to consult the trained Justices and not to adjudicate a case.
However, he could make judgement in HL with approval from the Lords there.
Based on precedent: no king deemed to act as judge since Norman conquest, since this is function of the courts.
Cases should be tried in England’s Courts of Justice by those trained and experienced in the law.
This case laid the foundation for the separation of powers between the Crown, whose powers are now exercised through its ministers, and judiciary in England.
Cases must be tried in courts of law, and not by the King.
Coke: “not to be decided by natural reason but by artificial reason & judgement of law, which law is an art which requires long study & experience.”

Question 6

Separation of Powers - R v Home Secretary, ex p Fire Brigades Union

Answer 6

> R v Secretary of State for the Home Department, Ex parte Fire Brigades Union [1995] 2 AC 513.
Can the executive use prerogative powers with the actual effect that an AoP (leg) could be prevented from coming into force? Duty or option?
Provisions of the Criminal Justice Act 1998 were subject to caveat that they were only to come into effect on appointment of the secretary of state.
HS’ actions = unlawful.
Lord Mustill: “It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive & the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever law it thinks right. The executive carried on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed…”

Question 7

Separation of Powers - R (Miller) v The Prime Minister

Answer 7

> R (on the application of Miller) v Prime Minister [2019] UKSC 41.
Was the lawfulness of PM’s advice to the Queen justiciable?
What are the limits to the power to advise the Queen to prorogue Parliament?
Did this prorogation have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification?
PM’s advice to Her Majesty was unlawful, void and of no effect allowing Parliament to reconvene.
Prorogation of Parliament is justiciable.
Whilst ‘the courts cannot decide political questions…all important decisions made by the executive have a political hue to them…the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries.”
The exercise of gov. power must be founded upon lawful authority, the courts having the power to strike down as unlawful where power is exercised without appropriate authority. This reflects the principle of the rule of law, which dates back to the Magna Carta. E.g. the Case of Proclamations.
Power musn’t only be exercised with appropriate lawful authority but it must also be exercised in such a way that doesn’t frustrate the work of Parliament, the sovereignty of that Parliament being a principle at the very heart of UK constitutional law. E.g FBU.
SC - prorogation: prevented passing of laws and prevented opportunity for parliamentary accountability. Less scrutiny.
Judgement rooted in well-established constitutional principle. Both the rule of law and parliamentary sovereignty underpin many of the court’s findings demonstrating uncodified UK system can ensure the proper and appropriate use of power, subject to democracy, accountability and prevailing const. norms.

Question 8

Separation of Powers - Pepper v Hart

Answer 8

> Pepper v Hart [1993] AC 593.
Following this decision, if primary legislation is ambiguous or obscure, the courts may take account of statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation.
Previously, using the Hansard in this way would have been considered a breach of Parliamentary privilege.
HL had to decide if teacher at private school had to pay tax on perk he received in the form of reduced school fees. Teacher sought to rely upon statement in Hansard made at time the Finance Act was passed. Previously courts not allowed (Davis v Johnson).
Lord Griffiths: “The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislations and are prepared to look at much extraneous material that bears upon the background against which legislation was enacted.”

Question 9

Judicial Independence and the Judicial Role - Magna Carta

Answer 9

> Magna Carta 1215 clauses 39 and 40.
39: “No free man shall be seized, imprisoned, dispossessed, outlawed, exiled, or ruined in any way, nor in any way proceeded against, except by the lawful judgement of his peers and the law of the land.”
40: “To no one will we sell, to no one will we deny or delay right or justice.”

Question 10

Judicial Independence and the Judicial Role - ECHR

Answer 10

>ECHR Article 6.
>"Right to a fair trial"
>"Independent and impartial tribunal"
>"Innocent until proven guilty according to law"
>"Language which he understands"

Question 11

Judicial Independence and the Judicial Role - Constitutional Reform Act list

Answer 11

> Constitutional Reform Act 2005, ss 23-27, 32-33, 137.

Question 12

Judicial Independence and the Judicial Role - Constitutional Reform Act 2005, ss 3

Answer 12

3. GUARANTEE OF CONTINUED JUDICIAL INDEPENDENCE: Lord Chancellor, other ministers of the Crown and those with responsibility for matters relating to judiciary/administration of justice must uphold independence of judiciary.

Question 13

Judicial Independence and the Judicial Role - Constitutional Reform Act 2005, ss 23-27

Answer 13

23. Supreme Court established.
24. Lords of Appeal in Ordinary become judges of the SC, senior Lord of Appeal in O - President of the Court, 2nd senior LoAiO - Deputy President of the Court.
25. High qualifications/experience required for appointment as judge.
26. Selection for members of SC. Selection Commission.
27. Selection process. Commission members have to fulfill particular requirements.

Question 14

Judicial Independence and the Judicial Role - Constitutional Reform Act 2005, ss 32-33

Answer 14

32. Judges of SC have to take oath of allegiance and judicial oath.
33. Judge of SC holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament.

Question 15

Judicial Independence and the Judicial Role - Constitutional Reform Act 2005, ss 137

Answer 15

137. Parliamentary disqualification. If member of HL holds judicial office he can’t sit or vote in HL, committee of that House, or Joint Committee of both Houses.
     137 A). LJC and LC must take steps to increase diversity.

Question 16

Judicial Independence and the Judicial Role - McGonnell v United Kingdom

Answer 16

> McGonnell v UK (2000) 30 EHRR 289.
McGonnell owned land in Guernsey and applied for planning permissions. Bailiff (president of Guernsey’s legislative body) presided over his planning application.
Art. 6 - needs to be independent and impartial tribunal so ECtHR found lack of objective impartiality as bailiff sat in both legislative and executive positions.
Bailiff is the President of the Royal Court and sat at Royal Court of Guernsey. Had presided over the States of Deliberation when Detailed Development Plan No. 6 was adopted.
“The court is faced solely with questions of whether the bailiff had the required ‘appearance’ of independence, or the required ‘objective’ impartiality”.

Question 17

Judicial Independence and the Judicial Role - R v Anderson

Answer 17

> R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46.
Under s.29 of the Crime (Sentences) Act 1997, the Secretary of State could decide, on advice of trial judge, the LCJ and departmental officials, the minimum period necessary to be served by a prisoner before he was released on licence.
Anderson argued his tariff should have been decided by the judiciary (like cases of those sentenced to discretionary life sentences) and that the SoS in deciding his tariff as a member of the executive, breached his right to a fair and independent hearing under Art. 6 of ECHR.
HL allowed appeal: SoS’s procedure for fixing the tariff for mandatory life sentence effectively made him perform a judicial function.
Tariff fixing = legally same as sentencing therefore should be covered by Art. 6.
As a member of executive, SoS shouldn’t have fixed tariff, so s.29 of 1997 Act was declared incompatible with HRA 1998.
Lord Bingham: “The European Court observed (paragraph 36):”This is not a matter of form but impinges on the fundamental principle of separation of powers and detracts from a necessary guarantee against the possibility of abuse…” The European Court was right to describe the complete functional separation of the judiciary from the executive as “fundamental”, since the rule of law depends on it.”

Question 18

Political Controls and Parliament: Parliamentary Privilege - Bill of Rights

Answer 18

> Bill of Rights 1689, art. 9.
“The Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament.”
Does this not included prorogation as ‘proceeding’ and so exclude it from judicial review? Miller 2.

Question 19

Political Controls and Parliament: Parliamentary Privilege - The Strauss Case

Answer 19

> Re Parliamentary Privileges Act 1770 (The Strauss Case) [1958] AC 331; (1958) 21 MLR 456.
An MP sent letter to a minister, passed onto Head of British Electricity that made allegations against the company.
London Electricity Board threatened to sue MP in libel by calling attention to the Parliamentary Privilege Act 1770, which says any person may prosecute an action or suit in any court against any person, even if entitled to Parliamentary privilege, i.e. MP.
Bill of Rights Art. 9. Freedom of speech/debates. So MPs protected under Bill if acting in context of ‘proceedings in Parliament.’
Privy Council held that Parliamentary Privileges Act 1770 couldn’t be used to threaten MPs for actions or positions taken during ‘proceedings of Parl.’, as per art. 9 of BoR.
Lord Denning disagreed (“The Strauss Case” [1985] Public Law 80), arguing for wider interpolation of the 1770 act. Interprets act to entitle anyone to bring an action against an MP without it being impeached under any privilege reading the 1770 act literally.

Question 20

Political Controls and Parliament: Parliamentary Privilege - A v UK

Answer 20

> A v The United Kingdom [2002] ECHR 811, (2003) 36 EHRR 51, 13 BHRC 623.
A’s MP named her, gave her precise address and made derogatory remarks about her and her kids’ behaviour. MP called them “neighbours form hell”, a phrase which went on to be quoted in newspaper.
ECHR found in 6-1 majority, member of public’s inability to sue MP for defamatory words spoken in Parl. was justified as proportionate way of promoting legitimate aim of protecting free speech in Parl. in public interest and regulating relationship between legislature and judiciary.
Does Parl. privilege infringe one’s right to a fair hearing and right to private life?
Strasbourg Court held that Parl. privilege is compatible with Convention rights in ECHR, in particular right to fair hearing under Article 6.
Held: restrictions on Convention rights contained in articles 6 s 1, 8, 13 & 14 can be legitimately justified by principle of Parl. privilege.
Judge Costa: “immunity enjoyed by MPs…serves an interest that is so important as to justify the denial of access to a court to seek redress.” “Irrespective of the seriousness of interference with applicant’s private and family life.”