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Public Law - Notes

Public law (University of London)

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Codification

Introduction
UK had uncodified constitution / uncodified doesn't mean unwritten (it's always written somewhere) /
both legal and non-legal sources of constitution

Definition
Nature of UK constitution - uncodified, flexible, monarchical, unitary/quasi-federal

Purpose of constitution - per samuel finer and anthony king; - set of [most important] rules, regulating the
relationship between - (1) parts of government, and (2) government and citizen, determining their (1)
power, (2) function, (3) duty.

Historical account - continuity of common law, no great breaks, no need to get a fresh start.
Sources - Acts, Judicial decision, Royal prerogative, Constitutional convention, Parliamentary rules
By nature scattered – judicial decision, royal prerogative

Status quo - uncodified but largely written.

Analysis
Theoretical benefits - Rule of law enshrined: accessible, clear, well-defined, relatively stable, - Enforceable:
Increase in judicial power - Entrenchable: Stability

Practically though - If it works don't fix it - Impingement on parliamentary sovereignty - unflexible: great
change in recent 20 years - would not cover everything (Anthony King - even Capital C constitutions -
sometimes important thing as electoral system) - Brexit - Devolution

Historical examples: Instrument of government by Oliver Cromwell - Government: Cabinet manual (not well
received by Lords) - Academic: Bognador

Conclusion
entail a lot of constitutional changes: may or may not be favorable - lack cross-party support for any one
particular definition of one particular issue - no parliamentary time - possibility of bias towards ruling party

lots of impending changes

general distrust of judiciary by politicians

--> all in all, more theoretical and academic than practical in the present day UK.

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Prerogative power

Introduction
One of the peculiarity of British constitution; In the name of the Queen

Definition
Blackstone - special power "over and above:" all people, inherent in the "regal dignity"
Dicey - Residual discretionary power
Barnett - [1] Inherent and peculiar to the crown [2] Common law thus legal power; [3] Residual; [4] Largely
exercised by executive in the name of crown; [5] No requirement for authorization by the parliament by an
act

Historically - much stronger -

Summon, prorogue and suspend parliament: Charles I
Legislate by proclaimation: James I
Establish courts - Court of Star Chamber (Torture)
Taxation: case of ship money

But now - much weaker - cannot be broadened - overriden by acts of parliament

BBC v Johns, per lord diplock:

350 years and a civil war too late to broaden the scope of the royal prerogative
A-G v de Kayser's Royal Hotel
Fell into abeyance whenever it's governed by an Act of Parliament; until repealing
R v SSHD ex p Northrumbia police authority
Through interpretation, supply of arms ? broadening of prerogative to keep peace

Categorization of prerogatives -
Domestic - further divided into constitutional, executive and personal
constitutional - assent to legislation, summoning of parliament, dissolution of parliament [fixed term
parliament act 2011], PM appointment - esp in Hung parliament [2010 coalition govt]
executive - keep peace, defence of realm, ...
personal - right to swan and sturgeons, etc.
Foreign affairs [war, peace, treaty, ...]

Categorization of controls -
Legal - through parliament, through court
Political – parliament

Analysis
Judicial control - Judicial review - Suprevisory not appeal - limited - Further restriction by Criminal Justice
and Courts Act 2015 [Note - not in statute book!]

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- whether reviewable - eg De Freitas v Benny per Lord Diplock regarding prerogative of mercy - mercy lies
where legal rights ends - case of Bentley [eventually R v Bentley] - R v Comptroller of Patents
- whether justiciable - GCHQ case (national security) - ex parte Rees-Mogg (foreign affair) - Chandler v DPP
(armed force)
- whether effective - could be empty victory

Parliamentary control
- Question time - Debates - Select committee; - but - plead confidentiality, matters outside parliamentary
discussions - e.g. granting of honours with respect to cash for peerage scandel in labour govt - limitations:
written ...
- Constitutional convention - always assent to bills passed by both house and certified, always appoint PM
according to party-political - always appoint judges as recommended by the PM - use of armed force, ?
evolving convention to consult parliament: BUT - non-legal forces
- Legislation: fell into abeyance (AG v de Kayser's Royal Hotel)

options for reform:

- Pragmatic approach: piecemeal legislation
--> Lord Hurd; only to improve areas which needs improvement, lack of parliamentary time, whether
worthwhile;
- Radical approach: sunset clause, listing of all
--> Lord Lester: rule of law; piecemeal may be insufficient; some area esp embrassing area may be not
moving at all.

Conclusion
- limited power both by nature, by judicial control, and by parliamentary control.
- historically, attempts by even respectable members in the parliament eg the late Tony Benn MP failed
(1988, private member bill)
- increasing legislation over areas previously done by prerogative - CRAG act 2010; but note previous
attempts (prime minister office role and function bill 2001, constitutional renewal bill 2008) - failed.
- many official/unofficial attempts in listing out, but government unlikely willing to limit its power
- now politicans more keen in allowing conventional than legal control: (constitutional renewal bill 2008
failed) but 2014 parliament vote against syria involvement

- pragmatic nature of UK politics - status quo unlikely to change - piecemeal improvement in problem area
(as perceived by the ruling party) will continue

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EU and parliament sovereignty

Introduction
1 UK constitutional firmly grounded in the sovereignty of the parliament
dicey: its the dominant characteristics of uk political institutions
- right to make or unmake any law
- nobody have right to override or set aside legislation of parliament
from this, derive 3 rules
- parliament as supreme law making body
- parliament cannot bind predecesor or sucessor
- nobody to question validity of an act

2 Legal as opposed to political sovereignty

- Political sovereignty - sovereignty lies in people, holds power on trust of the people, can be taken away
- Legal sovereignty - only loss under 2 condition, 1. parliament decide to give it up, 2. judge refuse to
acknowledge the laws

Definition
1. EU law
Sources of EU law - 1. treaty, 2. regulation, 3. directive, 4. decision.
On accession - member state transfer sovereignty to EU in some area but not others (referred to as
competence of the EU)

2. EU law in the eyes of the CJEU

- supreme to previous local legislation: Van Gend en Loos; Costa v ENEL;
- supreme to constitutional document: Internationale Handelgesellschaft
- supreme to subsequent local legislations: Simmenthal

3. EU law in member state:

3 types of legal implications
--> directly applicable: legally effective, no need legislation in state legislature
--> directly effective: enforceable against state
--> indirect effect
2 types of relationships
--> vertical (state-person)
--> horizational (person-person)

Direct effect of:

- TEU provisions: van Gend en Loos [vertical] De Frenne v SABENA [horiz]
- Regulations: Commission v Italy
- Directives: van Duyn v Home Office [vertical]; Marshall v Southampton AHA [where no horizontal effect
claimed]

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Indirect effect:
- von Colson v Land Nordrhein-Westfalen
- Marleasing

State liability - 4 consideration: 1. responsible 2. intended, 3. serious, 4. causal link

- Factortame
- Basserie du Pecheur v Germany

How UK courts give effect to it?

- Reference to CJEU (Bulmer v Bollinger per Lord Denning)
- Disapplication of local law (Thoburn v Sunderland CC)
- Note implied repeal, which is a demonstration of parliamentary sovereignty per Wade - Thoburn v
Sunderland City Council - Sir John Laws - constitutional statutes cannot be repealed (Note application of
same principle in H v Lord Advocate by supreme court)

Theoretical considerations
- Craig: 2 views - 1. construction; 2. revolution. - construction = EC Act s2 inserted into everything passed
later on until it's repealed; - revolution = new parliament bound by old parliament;
- Wade: parliamentary sovereignty altered by revolution after 1972 act succeeded in binding merchant
shipping act 1988
- Sir John Laws: support construction rules - citing Lord Bridge in first Factortame case
- Allan - no difference in Anisminic and Factortame - both narrow interpretation of sovereignty when judges
restricted the application

Analysis
- depends on the construction - legislative supremacy is supreme only in legal sense - example by Sir Leslie
Stephens - able to make law that put to death all blue-eyed babies, and by Sir Ivor Jennings - ban smoking
in Paris - the limit is political and practicality
- In a strict construction, can consider EU law working only on the consent of the parliament - they are
made effective by EC act 1972 - UK still a dualism country in its constitution
- In theory, UK parliament can explicitly repeal part or all of EC act 1972 and EU act 2011 - only limited by
politics
- EU act 2011 contain s parliamentary supremacy clause - which Hague see as an confirmation and
affirmation. but can also be seen as the expression of guilty conscience by the government/drafters, as in
the "rule of law" clause in CRA 2005
- Unlikely given ability of CJEU to fine UK; and also international relationships - more likely after a
referendum as in present state

Conclusion
- sovereignty of parliament in UK - foundation of UK constitution - but is eroded from various sides -- EU
law, Strasbourg jurisprudence
- attempts in maintaining the foundation, but largely only theoretical and nominal, rather than practical

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Constitutional conventions – codification – future

Introduction

Constitutional convention – most significant class of non-legal rules in constitution

Supplement legal rule: Jenning – provide flesh which clothes dry bones of the law

Definition

Dicey - Conventions, understanding, habits or practices / regulate the conduct of several members of the
sovereign power / not in reality laws at all / not enforced by courts
Marshall and Moodie – rules of constitutional behavior considered to be binding by those who operate the
constitution but not enforced by the law corrts

What conventions? Examples:

- Queen, in exercise of royal prerogative – royal assent; appointment of prime minister;
- Government: Ministerial responsibility – Collective, Individual
- Judges: Not to play a political life
- House of Lords – not to delay finance bills and bills with democratic mandate from election promises

Convention as distinguished from habits – understanding – practice – law

- convention is regular, normative, obligatory, and constitutional
- habits are regular but not necessarily normative
- understandings are not necessarily regular
- practice is regular, normative, obligatory but do not result in charge of unconstitutional conduct
- laws are enforced by the court

How do convention arise? Do convention change?

- understanding become practice, practice consciously adopted and recognized become convention
- Jennings: normativity of practice by authority
- convention change: examples – 1 confidence – before 1960, defeat on major policy requires resignation of
whole cabinet – but due to small majority in 1960-1970, agree to resign only with defeat in motion of
confidence;; 2 unanimity – used to be absolute, but 1932 on trade tariff, 1975 labour on EU, 2010-2015
coalition, 2016 Brexit – first, an exception; now, a rule of exception; 3 resignation of administration: james
prior – no resignation; responsibility and accountability was same; now different; finally, 4, use of arms –
war prerogative and deployment of troops

Analysis

What role do conventions play?

- Example – collective ministerial responsibility – individual ministerial responsibility
Collective: (1) Confidence, (2) Unanimity, (3) confidentiality

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- Confidence of the house – provides legitimacy of the cabinet and ministers in general
- Unanimity – provides the appearance of a strong government
- Confidentiality – provides for a forum that cabinet members can freely express themselves
Individual
- Responsibility for personal conduct
- Accountability and Responsibility for government departments – different – why**

Breach of convention
- largely political: no legal enforcement, e.g. – A-G v Jonathan Cape; Reference re amendment of the
constitution of Canada;
- but sometimes, may lead to change in power – Parliament Act 1911 which was enacted in response to
delay of finance bill in 1908-10. The King threatened to create labour peers

What is the implication of codification?

- become clear – rule of law;
- upheld by the courts – though, quaere justiciable
- breach of convention become breaches of law – eliminate a class of constitutional rules

Why not?
- Provide flexibility – Jenning argues constitution is kept modern by conventions
- Discretion can be exercised
- Conventions can be developed – even if codified, some new convention emerge, need to start over again

What way?
- Justiciable – codify + legally binding - ? acceptable, whether clear agreement, ? making new rules
- Not justiciable - largely has been done, ministerial code

Conclusion

Constitutional conventions remains a set of rules that are binding to constitutional actors, changing in the
evolution of history, and self-policing, in that despite the lack of legal enforcement, the political
enforcement of conventions remains strong as the constitutional actors are largely political.

With respect to codification, unlikely given the reality (pragmatism, time, etc.)

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Rule of law

Introduction

Rule of law as a catchphrase – often said to have a strong history citing Aristotle, Magna carta – Aristotle
refers to rule by law rather than rule of law; and magna carta governs the rule of law for barons rather than
for commoners

Rule of law remains the ideal for law and government; both procedurally and substantially

Definition

Theoretical bases
Stems from natural law – Socartes, Cicero ;; Christian natural law: St Thomas Aquinas;; Sir Edward Coke
Through social contract theory – Hobbes, Paine, Locke
Towards right to disobey law: Gandhi, martin luther king – Dworkin: should not prosecute

Modern definition
[1] Dicey – 1 – no one punished – unless breach of law – found in ordinary court applying ordinary law –
and not discretion – 2 – no one is above the law and law applied equally – 3 – rights of people governed by
the judgements of court of law ie common law // Criticisms of Dicey – Sir Ivor Jennings – Dicey concerns
with politics rather than reality, need state regulated by law // TRS Allan – courts have duty to construe the
words of statute
[2] Fuller-Hart debate – Fuller: Morality in law // Hart: Morality more important than obeying law in
circumstances such as Nazi Germany
[3] Joseph Raz – thin version of rule of law – human rights not included,
[4] Dworkin – right-based approach
[5] Bingham – 8 rules: CCDEFGHI – Civil [without undue delay & cost] – Clarity [accessible, intelligible –
laws] – Discretion [application of law not discretion] – Equality [under law] – Fair [trial] – Government
[exercise power fairly, in good faith, and for the purpose conferred] – Human rights [protection] –
International obligations

Analysis

How is it upheld in modern day UK?

- divide into 5 sections
[1] Law – clear, accessible, intelligible; exercise of law not discretion; equality under law
policy wise -- parliamentary scrutiny of legislation, professional drafters, legislation available online,
(piecemeal) codification of royal prerogative; Waddington v Miah – interpretation to prevent retrospective
criminal effects; A v SSHD – equality, M v Home Office – contempt by Home Secretary

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BUT – legislation remains complex for individuals because of nature of UK legislation [as opposed to
continental ones], legal advice not cheap; modern society requires a lot of discretionary power – eg. PACE
1984; parliament sometimes pass retrospective legislation – War Damages Act;
[2] Government – exercise of power fairly, in good faith, and for the purpose conferred – availability of JR,
ombudsman, tribunals, etc – and common law – eg Entick v Carrington
BUT – not necessarily effective, judgement for claimant still high in JR proceedings; Ouster clauses (though
construed restrictively); Criminal Justice and Courts Act 2015 – limitation on JR;
JR – Congreve v Home Office; Porter v Magill
BUT – Inquiries – Chilcot, not release till now (hearings, 2009-2011)
[3] Human Rights- HRA 1998 and proportionality; References to ECtHR;
BUT – electoral promise to repeal HRA 1998; Malone v MPC, R v Sang, R v IRC ex p Rossminster
BUT – Hirst v UK – so far…
[4] Courts – Civil matter – Woolf reform, but quaere success; Fair trial – Pinochet, Locabail
BUT – decrease in civil matter funding, removal of legal aid for many categories – eg only severe disability
of neonate from obstetric or neonatal malpractice would be funded, etc.
[5] International obligations – van Gend en Loos, Factortame;
BUT – R(Corner House Research) v Director of SFO – government surrender to threats by UAE

Conclusion

- As expressed by Lord Bingham – well received – endorsed by Council of Europe

- Not necessarily static – eg 3rd rule of Dicey now less defensible; human rights now enshrined in written
documents (ECHR, UDHR, etc) and protected by domestic law (HRA 1998)
- Remains the cornerstone of British Constitution
- An ideal for government and legal system

- provide legitimacy for executive, legislature

- upheld by judiciary

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Separation of powers

Introduction

Aristotle – politics – deliberative, officials, judicial elements

Locke – Legislative, executive, federative
Montesquieu – L’Esprit des Lois – no separation of power no liberty, all would be loss

Definition

What are these powers?

- legislature – makes law, represent citizen, scrutinize the government – debate, committee, holds
government to account – motions of confidence – who? Members of parliament, commons; lords;
- executive – makes policy, initiate legislation, executes policies, administers the state, enforce the law,
protect the realm – who? Cabinet members, ministers, junior ministers, ? PPS
- judiciary – interpret the law, apply the law, appellate and supervisory jurisdiction, chair inquiries – judges
magistrates

Status quo in UK
- Montesquieu’s SOP – not the case in UK. Probably idealized in his part.
- Bagehot - Close union and almost complete fusion of executive and legislature:
- Lord Hailsham – Elective dictatorship
- Strong judicial independence
- Ministers are all members of parliament; Government had a lot of say in legislation – both primary and
secondary; the legislature had little say;
- Parliament exercise legislative function but also determine its own affairs
- Courts makes law as they develop the common law
- Magistrates exercises administrative function as they grant license

Prior to CRA 2005

- LC – head of judiciary, member of cabinet, speaker of house of lords
- Constitutional problem – Erik Jurgens – comments in Council of Europe, after McGonnell v UK
- House of Lords – Law lords also sit in legislature (though themselves observed the rules)

BUT – instead of strict separation of power – checks and balances

Analysis

Executive-Legislature
- House of Commons disqualification Act 1975 (limit on ministerial appointments)
- Opposition – a government in waiting – shadow ministers

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- Question time, debate, scrutiny of legislation, select committee, parliamentary ombudsman; motion of no
confidence

Executive-judiciary
- Convention on criticism, but Catgate (Theresa May), “Judges are out of touch” David Blunkett
- Judicial review of executive action, but – government introduced legislation – CJCA 2015 – compromise JR
- Magor and St Mellons RDC v Newport Corporation – House of lords rejected approach of Lord Denning –
Fill in the gaps – as naked usurpation of legislative function – but – R(Jackson) Lord Steyn, Lord Hope
- Inquiries

Judiciary-Legislature
- Legislature makes law courts interpret them
- Barrier never crossed – not inquire into proceedings – not question the validity of primary legislation
- Rules of statutory interpretation – often against the will of legislature – eg ouster clauses construed
narrowly;; indirect effect by HRA 1998 due to courts as public bodies which need to uphold human rights
(never intended);; theft act – appropriation—construed in a very wide manner;; all these “necessary to
uphold justice”
- Deference to parliament – things better considered by Legislature eg Nicklinson

Judiciary independence
- institutional independence
- Security of tenure, funding from consolidated fund service, CRA require LC to uphold it
- Appointment – now regulated by CRA 2005
- Duport Steel v Sirs

Conclusion

Undergoing a renaissance in separation of power

from functional (eg law lords in house of lords are careful not to involve themselves in political debates of
legislation leading to disqualification or need to recuse in courts)
to formal (law lords moved to supreme court, separate from house of lords)

still more of a strengthening of judicial indepdnence rather than separating legislature-executive

legislature-executive still total fusion per Bagehot

elective dictatorship per Hailsham still true nowadays

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EU – Institutions – Balance of power

Introduction
EU – established after WW2, devastated
Control of raw material of war; Nuclear power; Economic development
Collective peace and prosperity at cost of transfer of some sovereignty
Conceptually – Churchill, not accepted in UK
UK accession, 1973

Traditional separation of power – Aristotle, Montesquieu

More ideal than real; Problem with efficiency

Definition

Established under TEU

Bodies of EU
The European Council
Constituent = Head of states + Preseident
Function = De facto executive – Macro and political decisions, less than formal
Council of Ministers
Constituent = Minister from each country depending on subject matter
Assisted by COREPER = Permanent representatives
Function = Represent national interest
Legislative – shared with EP, supranational;
Executive – Foreign and security, intergovernmental;
European Parliament
Constituent = Democratically elected – proportional system – recent low turnout
Function = Legislative + Advistory; can censure the commission
European Commission
Constituent = Commissioner from each country; appointed by European Council, approved by EP
Function = Executive – Directorate General, Portfolio, Cabinet;; Default of treaty obligations; Legislative
– proposals of legislation, formulate proposals to implement treaty objectives
Court of Justice of The European Union

Analysis
Balance of power – not just tripartite instutional power, but also represent different interest

Interest in EU: [1] Union, [2] Member states, [3] EU Citizens

[1] Union – European Commission, paid to think Europe
[2] Member States – The European Council, Council of Ministers
[3] Citizens – European Parliament

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Legislative –Initiated by Commission [EU interest], Passed by Council of Ministers [Member state interest]
and European Parliament [EU citizen interest], Comitology
Executive – European Council – political direction, European Commission – civil service equivalent, enforce
law; Council of Ministers – intergovernmental on foreign and security policies

Relative independence of Judiciary

Democratic legitimacy of institution –

European Council – Head of states – Generally had democratic legitimacy
European Parliament – Democratically elected – However, turnout rate low
Council of Ministers – Accountable to national parliament
European Commission – More problematic – theoretically, can be removed en bloc by the parliament, but
in actual incident, unable to do so in 1999 – eventually resigned

Conclusion

Very similar to UK
Conflict of interests
Historical European thinking

Many decision informally made e.g. in dinners

Lack of transparency – but improving

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Role of Parliament in Legislation

Introduction

Typical course: Subject becomes an issue; Issue listed on agenda; Investigated and decided to legislate;
Followed by legislation and implementation

Technically, 3 parties – Queen in parliament, = Queen, Commons, Lords

Schwartz – 3 kinds of parliament – [1] policy-making/transformative, [2] policy-influencing, reactive, arena,

[3] little or no policy effect
Blackburn and Kennon – UK is reactive kind

Definition

Consultation – Formal or informal – Formal, then consider code of practice, [1] at time that influence of
outcome is possible, [2] for reasonable period of time > 12 weeks, [3] state clear scope and impact, [4]
accessibility and little burden, [5] respond to result – also to ensure knowhow of consultation is passed to
others

Debate of draft bill – Still uncommon

1 – Formal reading, provide explanatory note

2 – Debate on general policy aims, published
C – Committee, consider both policy aim and drafting; Oral evidence – expert, campaign, minister – Clause
by clause debate – Amendments – government on technical aspects +/- policies, opposition usually voted
down because of nature of composition;
 Public bill committee, Committee of whole house (CWH)
R – Reporting stage, talk about amendments usually same day as 3rd reading
3 – Largely formal, no written amendment in Commons, OK in Lords
Ping-pong until both house agree (or if PA 1911 used)
Royal assent by letter patent and great seal, after passed by both house, speaker’s certificate

Private member bill – 3 ways, (1) Ballot, (2) 10-minute rule, (3) ordinary presentation
Ballot – best chance of success, first 7 likely to get a day’s debate but need govt support to continue
Ten minute rule – more publicity than legislation
Presentation – Dismal chance of success
Sometimes supported – open or secret backing of government – eg Steel – Abortion Act, EU Referendum
Bill, etc. otherwise – talked out, lack of time, object each time

Sunset clause; Framework bills; Henry VIII clauses

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Analysis

Pre-legislative – all consider good – a government policy – HC modernization committee, but only small
proportion – why? Kennon: highly controversial bill unlikely be introduced as draft; Straw – People not
stirring the dog

Generally a majority party – no problem getting things passed; hence, elective dictatorship

Salisbury convention – Lords not to object manifesto

Lords – Less party-political issues (though Labour party expect them to vote according to whip) – many
cross-benchers – Not necessarily a majority in Lords too – Not dependent upon party to stay in Lords

Conclusion

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Judicial Review

Introduction
Judicial review is the means by which the courts control the exercise of governmental power. It is largely
concerned with the legality, and less so on the merits of a decision made. The courts, on a judicial review,
ensure that (1) the law is correctly interpreted, (2) discretions exercised lawfully, (3) fairly, and (4) did not
violate human rights.

As to how much control the judiciary should exert over the executive, there is a spectrum of theories, with
“red light” on one end, with significant distrust of the executive in exercising its power, and “green light” on
the other end, arguing that the judiciary should defer to, and facilitate the operation of the executive with
democratic legitimacy.

Requirements
To give a brief summary of the requirements of judicial review, it concerns only public bodies, one need to
apply to the High Court for permission for judicial review proceedings, with standing, without other
reasonable remedies, and within one-year period (extendable by the court).

 R v City Panel on Takeovers and Mergers ex parte Datafin Ltd

 Marcic v Thames Water
 R v Disciplinary Committee of the Jockey Club ex parte Aga Khan
 R v Lloyd’s of London ex parte Julian West

Firstly, judicial review can only review a public body. A court would consider both the nature of the body in
consideration and also the relationship between the applicant and the body. Lloyd LJ in R v City Panel on
Takeovers and Mergers ex parte Datafin Ltd stated that if the body in question is exercising public law
function, or if the exercise of its functions have public law consequences, then that may be sufficient to
bring the body within the reach of judicial review. Similar conclusions were drawn in Marcic v Thames
Water with respect to the definition of public bodies.

On the other hand, when the relationship between the applicant and a body is that of commercial or
contractual relationship, then the court would not consider the application (R v Disciplinary Committee of
the Jockey Club ex parte Aga Khan; R v Lloyd’s of London ex parte Julian West).

 R (Sivasubramaniam) v Wandsworth County Court

 Marcic v Thames Water

Secondly, in the presence of alternative remedy, the courts would likely refuse an application: R
(Sivasubramaniam) v Wandsworth County Court (where the alternative is an appeal), and also in Marcic v
Thames Water (where the alternative is a statutory scheme).

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 Schmidt v Secretary of State for Home Affairs

 R v Secretary of State for the Environment ex parte Ward
 R v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg
 Royal College of Nursing v Department of Health and Social Security
 R v Attorney General ex parte ICI plc
 IRC v National Federation of Self-Employed and Small Businesses

Thirdly, the applicant need to have sufficient interest. For individuals, sufficient interest exist when their
personal rights and interests are affected (Schmidt v Secretary of State for Home Affairs; R v Secretary of
State for the Environment ex parte Ward). Individual citizen, in certain issues may have sufficient (R v
Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg).

For interest and pressure groups, the situation is less clear, though groups presenting interest of their
members clearly have sufficient interest (Royal College of Nursing v Department of Health and Social
Security). In the taxation cases, it appears that competitors in the same industry had standing (R v Attorney
General ex parte ICI plc) whereas those in another industry do not (IRC v National Federation of Self-
Employed and Small Businesses).

 R v Secretary of State for Environment ex parte Rose Theatre

 R v Secretary of State for Environment ex parte Greenpeace Ltd
 R v Secretary of State for Foreign and Commonwealth Affairs ex parte WDM Ltd
 R v Secretary of State for Environment ex parte the Royal Society for the Protection of Birds

For pressure groups, the conservative approach in R v Secretary of State for the Environment ex parte Rose
Theatre Trust Co Ltd contrasts significantly with the more recent cases of R v Secretary of State for the
Environment ex parte Greenpeace Ltd (No. 2), R v Secretary of State for Foreign and Commonwealth Affiars
ex parte WDM Ltd, and R v Secretary of State for the Environment ex parte the Royal Society for the
Protection of Birds.

The Criminal Justice and Courts Act 2015 amends the Senior Courts Act 1981 to include the requirement of
substantially different outcome, which could be disregarded if there are reasons in “exceptional public
interest”.

 O’Reilly v Mackman
 Wandsworth LBC v Winder
 Roy v Kensington and Chelsea and Westminster Family Practitioner Committee
 Clark v University of Lincolnshire and Humberside

The differences between different forms of proceeding, as in where there are both private and public law
elements in a case, was examined in O’Reilly v Mackman when Lord Diplock introduced the exclusivity
principle, and subsequently, Wandsworth London Borough Council v Winder (where public law was used as

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a defence to private law proceedings), Roy v Kensington and Chelsea and Westminster Family Practitioner
Committee (not precluded from using public law remedy even when he had a private law right). In Clark v
University of Lincolnshire and Humberside, a liberal approach was used with regard to the type of action.

Justiciability

 Council of Civil Service Unions v Minister for Civil Service

 R (Help the Aged) v Secretary of State for Environment, Food, and Rural Affairs

In Council of Civil Service Unions v Minister for Civil Service, it was determined that while actions taken
under the Royal Prerogative can be reviewed by the courts, there are subject matters which the courts
would consider unjusticiable. For example, matters of public policies affecting monetary spending (R (Help
the Aged) v Secretary of State for Environment, Food, and Rural Affairs), national security (as in the GCHQ
case), deployment of armed forces, etc.

 R v Lambert
 Prolife Alliance v BBC

The court would also defer significant political issues to the executive and legislature: R v Lambert (to
parliament as to matter of public interest), ProLife Alliance v BBC (to parliament as to political expression vs
offensive material). Lord Hoffmann argued that it is not so much deference but actually decision on a point
of law as to the proper competence of the legislature, executive, or judiciary.

 Smith v East Elloe Rural District Council

 R v Secretary of State for the Environment ex parte Ostler

Time limits in Judicial Review is strictly obeyed: Smith v East Elloe Rural District Council and R v Secretary of
State for the Environment ex parte Ostler.

 R v Medical Appeal Tribunal ex parte Gilmore

 South East Asia Firebricks v Non-Metallic Mineral Products Manufacturing Employee’s Union
 Anisminic v Foreign Compensation Commission
 Re Racal Communication Ltd

Ouster clauses are usually restrictively construed. In R v Medical Appeal Tribunal ex parte Gilmore, Denning
LJ stated that final only means without appeal and not “without recourse to certiorari”. However, in South
East Asia Firebricks v Non-Metallic Mineral Products Manufacturing Employee’s Union, the ouster clause
was held to be effective.

Anisminic v Foreign Compensation Commission is a case in which Anisminic sought judicial review of FCC’s
decision which “shall not be called in question in any court of law”. The House of Lords ruled that the
jurisdiction of the corut was not ousted. Anisminic appeared to have destroyed the distinction between

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errors of law within the jurisdiction and errors of law which took the decision maker outside its jurisdiction.
This was cited by Lord Denning in Re Racal Communications Ltd.

Conclusive evidence clauses are effective as an ouster of jurisdiction of the Court (R v Registrar of
Companies ex parte Central Bank of India).

Remedies

Quashing order (certiorari)
Prohibiting order (prohibition)
Mandatory order (mandamus)
Declaration
Injunctions
Damages
Set aside the original decision. (O’Reilly v Mackman)
Preventing a body from making a decision which would be capable of
being quashed by certiorari.
(London Electricity case per Lord Atkin)
Compels an authority to act (Padfield v Minister of Agriculture Fisheries
and Food)
--
M v Home Office
Only if recoverable by private law action

Theoretical basis of Judicial Review

Ultra vires refers to decisions made outside a public body’s own jurisdiction as conferred by statute. In R v
Richmond upon Thames Council ex parte McCarthy and Stone Ltd, a scheme of charging L25 for informal
consultation was ruled to be ultra vires. The same conclusion was also reached in Hazell v Hammersmith
and Fulham Council in which the council entered into interest rate swaps which are speculative in nature.

Ultra vires is considered to be an inadequate rationale for judicial review. Whereas it is considered to be
consistent with parliamentary sovereignty and rule of law, it is considered to be inadequate, for example, it
does not explain the review of the exercise of prerogative, as in the GCHQ case.

 Dawn Oliver: Inadequacy

 John Laws – Christopher Forsyth
 Paul Craig – legislative intent
 Jeffrey Jowell - Competence
 Mark Elliott – Recognize judge do not have unlimited power
 Trevor RS Allen – criticize polarized approaches; recognize both having power

Dawn Oliver argues that ultra vires is an inadequate concept to explain the breadth of judicial review. It fails
to explain the review of royal prerogative, the review of non-governmental bodies. She argues that it has
progressed beyond ultra vires.

Sir John Laws argue that judicial review is a judicial creation and do not owe their existence to the will of

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the legislature and “we do not need the fig leaf anymore”. Christopher Forsyth argues that judicial review
develop in a background of a sovereign parliament.

Paul Craig favours the common law and consider judicial review to reflect the legislative intent of the
parliament, which is presumed to intend that legislation conforms to the basic principles of fairness and
justice.

Grounds for judicial review

The grounds for judicial review include illegality, irrationality, and procedural impropriety. The grounds has
been succinctly summarized by Lord Diplock in Council of Civil Service Unions v Minister for the Civil
Service.

Illegality refers to acting ultra vires:

Errors of law No distinction between error of law which went to jurisdiction and errors
of law within jurisdiction.
Anisminic v Foreign Compensation Commission
 Ultra vires as decision was so wrong that it did not amount to a
decision at all
 Re Racal Communications Ltd
Errors in facts Errors of facts of fundamental nature that renders a decision unlawful.
Review of facts not typically done
E v Secretary of State for the Home Department
 IAT to reconsider decision, did not take into account of evidence since
hearing but before making decision
Onerous condition attached Pyx Granite Co Ltd v Ministry of Housing and Local Government
to decision Planning permission condition upon construction of road
Power for wrong purpose Attorney General v Fulham Corporation
 Commercial laundry
Padfield v Minister for Agriculture, Fisheries and Food
 Milk price, inquiry
Irrelevant factors taken into R v Somerset County Council ex parte Fewings
account  Distaste and Ethical objection of Council
Fettering discretion Rigid policy: no; General policy provided that the policy does not preclude
the board from considering cases:
- R v Port of London Authority ex parte Kynoch (fettered)
- British Oxygen Co v Board of Trade (general policy OK)

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Irrationality – Wednesbury Unreasonableness

 Associated Provincial Picture House Ltd v Wednesbury Corporation (Film, Sunday, <15 y)
 Roberts v Hopwood (Higher wages)
 Council of Civil Service Unions v Minister for the Civil Service
 Secretary of State for Education and Science v Tameside Metropolitan Borough Council

Wednesbury Unreasonableness is a decision that no reasonable authority could ever have come to it.

However, a higher level of scrutiny of the courts would be given when human rights were in issue. In
Associated Provincial Picture House Ltd v Wednesbury Corporation, a Sunday licence to show motion
picture was granted on the condition that no children under the age of 15 should be admitted. The court
held that the decision was not unreasonable.

Cases where unreasonableness is established:

 R (Rogers) v Swindon NHS Primary Care Trust (Herceptin treatment)

Cases where unreasonableness not established

 R v Secretary of State for the Home Department ex parte Brind

Proportionality

The doctrine of proportionality refers to the limitation of exercise of power to the extent that it is
proportional to the objective pursued. Both the CJEU and the ECtHR adopts the test of proportionality to
measure to the legality of actions. Prior to the HRA 1998, the House of Lords was not (yet) prepared to
accept this test as a separate and distinct head of review (R v SSHD ex parte Brind).

On the other hand, in application of EU laws, the courts were prepared to adopt the test employed by ECJ
(as it then was) in Stoke-on-Trent City Council v B & Q plc.

The European Convention on Human Rights requires any action which prima facie violates protected rights
must be justified on the basis of grounds set out in the convention articles.

The House of Lords in R(Daly) v SSHD moved from Wednesbury unreasonableness towards the doctrines of
necessity and proportionality. It was held that the policy of excluding prisoners from their cells while
searches are conducted including scrutinizing legal corerspondences, were unlawful. The courts also
applied the proportionality test in R v Waya [Proceeds of crime] and R(Bibi) v SSHD [Test of English
language].

A ground between the Wednesbury unreasonableness and Proportionality/Necessity testing was the
Anxious scrutiny test in R v Ministry of Defence ex parte Smith.

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JR: Barriers

- Standing
- Individual
Schmidt v Secretary of State for Home Affairs (Scientology)
R v Secretary of State for the Environment ex p Ward (Gypsy)
R v Secretary of State for Foreign and Commonwealth Affairs ex p Rees-Mogg (Maastricht)
- Group
Royal College of Nursing v Department of Health and Social Security (Yes)
Inland Revenue Commissioner v National Federation of Self-Employed and Small Businesses (No)
R v Secretary of State for the Environment ex p Greenpeace (No 2) (Yes)
R v Secretary of State for the Environment ex p Rose Theatre Trust (No)
- Time limit
- Smith v East Elloe Rural District Council
- R v Secretary of State for the Environment ex p Ostler
- Is a public body
- Source of power
R v City Panel on Takeovers and Mergers ex p Datafin
Exercising public law function (Lloyd LJ)
- Public law relationship
Where relationships are contractual:
R v Disciplinary Committee of Jockey Club ex p Aga Khan
R v Lloyd’s of London ex p West
Where relationships are public
Marcic v Thames Water
- Only remedy
- R v Inland Revenue Commissioner ex p Preston
- Justiciability
- Council of Civil Service Union v Minister for Civil Service
- R v Secretary of State for Environment, Food and Rural Affairs ex p Help the Aged
- R v North Somerset Council ex p Hunt
- R v Ministey of Defence ex p Smith
- ProLife Alliance v BBC
- A v Secretary of State for the Home Department
- Not abusing private action
- O’Reilly v Mackman
- Wandsworth LBC v Winder
- Roy v Kensington and Chelsea and Westminster Family Practitioner Committee
- Mercury Communications v Director General of Telecommunications
- Clark v University of Lincolnshire and Humberside
- Ouster clauses

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- R v Medical Appeal Tribunal ex p Gilmore

- Anisminic v Foreign Compensation Commission
- Re Racal Communications Ltd
- Criminal Justice and Courts Act 2015
- Standing (? Reduce JR to protection of private interest rather than RoL)
Report: Approach too wide, should require tangible interst
Response: Constitutional function of JR: safeguard, essential for rule of law; Unlawful use of executive
power should not persist because of the absence of an available challenger with a sufficient interest
Outcome: No reform adopted. ?kite-flying
- No difference principle
Report: Insufficiently robust; Lower threshold
Response: Already the case, whether lower threshold improper
Outcome: went further than report, court discretion
- Party costs (PCO)
Report: only grant if no private interest in outcome, criticize flexible rule application, ?self-contradictory
Response: argued that careful balance would be undermined
Outcome: PCO become two-sided
- Third Party costs
Report: Provisional view: bear own cost
Judiciary: Third party beneficial
Outcome: Make intervener a party, ?chilling effect

Grounds for JR

- Grounds for JR
Council of Civil Service Union v Minister for Civil Service (per Lord Diplock)
[Illegality, irrationality, procedural impropriety]
- Constitutional basis
Oliver: inadequate basis
Sir John Laws: judicial creation
Forsyth: did not develop in constitution vacuum but in parliament sovereignty
Craig: General legislative intent model
Mark Elliott: middle way (Supported extrajudicially by Sir Philip Sales)
- Illegality
Errors of law:
Anisminic v Foreign Compensation Commission
Irrelevant factors taken into acc:
Roberts v Hopwood
R v SSHD ex p Khan
R v Somerset County Council ex p Fewings (But note Lord Irvine and Lord Bingham)
Fettering discretion:

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R v SSHD ex p Venables (Lord Browne-Wilkinson)

R v SSHD ex p Simms
Wrong purpose:
Porter v Magill (Council house)
Bad faith:
R v Derbyshire County Council ex p Times Supplements
- Irrationality
Association Provincial Picture Houses v Wednesbury Corportion (per Lord Greene)
Council of Civil Service Union v Minister for Civil Service per Lord Diplock
Criticized in
R(Daly) v SSHD (per Lord Cooke) tautological
R(Brind) v SSHD (per Lord Ackner) too high
- Proportionality
de Freitas v Permanent Secretary of the Ministry of Agriculture, Land and Housing (per Lord Clyde)
1. Whether sufficiently important; 2. Whether rationally linked; 3. Whether no more than necessary
- Relationship
[1] Trio of Ridge v Baldwin, Padfield v Minister of Agriculture, Fisheries and Food, Anisminic v FCC
Ridge v Baldwin – presumption of natural justice; Padfield – deduce proper purpose of power and interpret
legislation; Anisminic – Deep underlying presumption of Rule of Law
[2] Legitimacy of the (fiction of) parliamentary intent is that parliament “must not have accepted”
- For irrationality (Sir Philip Sales extrajudicially)
Based on implied parliamentary intent:
[1] Meaning of statute is given by intention: many statutes are based on irrationality during drafting
[2] Comparison to EU/ECHR law: No specific authority
[3] Substantive changes of law a matter of parliament not courts
 Does good service, stood test of time
 Transfer decision making from executive to judiciary, need to weigh things
- Lord Steyn in R(Daly)
1. Balance not merely whether within ranges of rational/reasonable decisions
2. Go further than traditional ground, relative weight according to interests and considerations
3. Heighted scrutiny test in ex p Smith not necessarily appropriate for human right protection
- Anxious scrutiny (reviewed by Craig)
Bugdaycay v SSHD, WM (Congo) v SSHD
Lord Sumption was skeptical – no different, or difference not warranted

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