Author Topic: The Road to Constitutional Remedy  (Read 5311 times)


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The Road to Constitutional Remedy
« on: February 06, 2011, 04:39:51 PM »
Whilst my research into constitutional law has been far from exhaustive as yet, I have synthsized enough legal authorities to reach a reasonably confident conclusion that the remedy for the constitutional breaches lies in making an application for Judicial Review to the Adminstrative Court, which has the power to make a declaration that the actions of a Public Authority (including the lower courts and government departments, but not the House of Commons) conflict with the inalienable rights of the applicant.




1.  Definition of constitutional law.

Constitutional law is that part of English law which (together with the law of Scotland1 and Northern Ireland2) governs the system of public administration of the United Kingdom, and relationships between the individual and the state3. The task of defining English constitutional law is peculiarly difficult because of the absence of a written constitution for the United Kingdom as the sole or supreme source of legal authority for all public action, whether executive, legislative or judicial.
The task is made even more difficult because of the United Kingdom's membership of the European Com-munity which has its own constitutional framework4. European Community law forms part of the law of Eng-land, and within its sphere it is paramount5. Community law has a profound effect on traditional English con-stitutional principles and rules, including the doctrine of parliamentary sovereignty6, the royal prerogative7, the functions of the judiciary8, and concepts of citizenship9. Membership of the European Community also means that European institutions exercise governmental functions in relation to the United Kingdom10. In addition, a modern restatement of English constitutional law has to take account of the increasing influence of the Con-vention for the Protection of Human Rights and Fundamental Freedoms (1950)11 upon rights, duties, and remedies which in other European states are protected by written constitutions and enforceable Bills of Rights.
The United Kingdom is unusual in that it lacks a comprehensive constitutional charter12 which establishes and gives limited powers to the institutions of government; confers and protects the civil and political rights of citizens; may be repealed or amended only in accordance with special procedural requirements; and enjoys particular sanctity13. There is a framework of rules14 defining the functions, composition and interrelationship of the institutions of government in the United Kingdom, their relationships with institutions of the European Community15, and the rights and duties of the governed16. These rules describe the location, conferment, dis-tribution, exercise and limitation of political power among the instruments of the state and may be said to embody the elements of a constitution in the sense of a regulated and legally established system of govern-ment.
However, United Kingdom constitutional law is an incomplete system, consisting of piecemeal legislation, ancient common law doctrines, and constitutional conventions which are binding in a political rather than in a legal sense. The United Kingdom constitution lacks the coherence of comprehensive written constitutions17.
The boundaries of English constitutional law have never been satisfactorily defined, partly because there is no constitutional document possessing an extraordinary sanctity or legally protected status, partly because the constitutional rules are susceptible to change by more or less formal means18, partly because many of the rules are not justiciable19, and partly because the differences between public law and private law are not clear20.
Nor is there any clear distinction between state bodies and others in the United Kingdom21. It has been said that even public bodies may have private lives22; and generally public bodies may be sued in the ordinary courts for breaches of private law obligations23.
There have, especially over the past two decades, been criticisms of many aspects of British government24; and many proposals for constitutional reform25.

1      See 5 Stair Memorial Encyclopaedia CONSTITUTIONAL LAW AND HUMAN RIGHTS; Mitchell Constitutional Law (2nd Edn, 1968). See also paras 51-66 post.

2      See paras 67-86 post.

3      It is impossible in this work to concentrate the whole treatment of constitutional law in one place. Certain portions of the subject have attained such large proportions as to demand titles to themselves. See eg ADMINISTRATIVE LAW; BRITISH NATIONALITY, IMMIGRATION AND ASYLUM; CROWN AND ROYAL FAMILY; CROWN PROPERTY; CROWN PROCEEDINGS AND CROWN PRACTICE; DISCRIMINATION; ENVIRONMENTAL QUALITY AND PUBLIC HEALTH; EUROPEAN COMMUNITIES; INTERNATIONAL RELATIONS LAW; LOCAL GOVERNMENT vol 69 (2009) PARA 1 et seq; PARLIAMENT vol 78 (2010) PARA 801 et seq; PEERAGES AND DIGNITIES; POLICE; PRISONS.

4      See para 23 post.

5      See the European Communities Act 1972 s 2(1); H P Bulmer Ltd v J Bollinger SA [1974] Ch 401, [1974] 2 All ER 1226, CA; para 24 post; and EUROPEAN COMMUNITIES.

6      As to the doctrine of parliamentary sovereignty see paras 232-237 post.

7      As to the royal prerogative see paras 367-372 post.

8      As to the judiciary generally see paras 301-311 post.

9      See further paras 23, 25 post.

10      See further EUROPEAN COMMUNITIES vol 51 para 1.70 et seq.

11      Ie the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (commonly referred to as the European Convention on Human Rights): see paras 25, 122-181 post.

12      Eg within the Commonwealth every country has a written constitution except New Zealand, which has an enforceable Bill of Rights (Bill of Rights Act 1990). Within the Council of Europe, all of the other 33 member states have written constitutions. As to the Council of Europe see INTERNATIONAL RELATIONS LAW.

13      For this reason, it is sometimes said that the United Kingdom has an unwritten constitution. But many of the constitutional rules by which the country is governed are individually to be found in written documents such as statutes, law reports and par-liamentary standing orders.
Although the Magna Carta of Edward I (25 Edw 1) (1297) and other constitutional documents of the same kind, such as the Pe-tition of Right (1627) and the Bill of Rights, are sometimes regarded as forming a written constitution they are not complete, and are not immune from change by the ordinary process of legislation. 'Magna Carta has not remained untouched; and, like every other law of England, it is not condemned to that immunity from development or improvement which was attributed to the laws of the Medes and Persians'; see Chester v Bateson [1920] 1 KB 829 at 832, DC, per Darling J. Thus the Magna Carta of Edward I has, with the exception of cc 1, 9, 29 and 37, been repealed by a long series of Acts of which the most recent is the Statute Law (Repeals) Act 1969; the Petition of Right (1627), except for ss ss 1, 2, 6-8 was repealed by the Justices of the Peace Act 1968 s 8(2), Sch 5 Pt II; and parts of the Bill of Rights (especially that relating to the declaration against transub-stantiation) by the Juries Act 1825 s 62, the Accession Declaration Act 1910, and the Statute Law Revision Acts of 1888, 1948, 1950. In their susceptibility of ordinary change, even the most important of English constitutional documents are different from the Constitution of the United States of America for example, which can only be changed by a complicated process of constitu-tional amendment. Thus the constitution of the United Kingdom is not a 'controlled' but an 'uncontrolled' constitution: see the distinction drawn by Lord Birkenhead in McCawley v R [1920] AC 691 at 704, PC. As to Parliament's power to repeal statutes see further para 234 post. As to the history and citation of the Bill of Rights see para 35 note 3 post.

14      As to the varying nature of these rules see para 7 post.

15      See para 23 post.

16      See paras 25, 101 et seq post.

17      Eg unlike other Commonwealth and European states, the United Kingdom has no enforceable constitutional guarantee of equality without discrimination applicable to everyone within and throughout its jurisdiction. Instead, there is specific legislation forbidding religious and political discrimination in employment, and in the exercise of public powers in Northern Ireland (but not in Great Britain) (see para 80 post); forbidding racial discrimination in employment (and elsewhere) in Great Britain (but not in Northern Ireland) (see DISCRIMINATION); and forbidding sex discrimination in employment (and elsewhere) throughout the United Kingdom as a whole (see generally the Sex Discrimination Act 1975).

18      While all constitutional rules are susceptible to change the possibility of change in practical terms varies with the nature and standing of the rule: see eg the statutes cited in note 13 supra; and cf the Statute of Westminster 1931 s 4 (Parliament not to legislate for Dominion except by consent); '.. the Imperial Parliament could, as a matter of abstract law, repeal or disregard s 4 of the Statute. But that is theory and has no relation to realities': British Coal Corpn v R [1935] AC 500 at 520, PC, obiter. Some constitutional conventions, especially those of a political nature, are less rigid than others and are liable to be reinter-preted in the light of new situations (eg the conventions regarding the choice of a Prime Minister) while some, it seems, are de-liberately vague and ill-defined (eg the conventions regarding ministerial responsibility and the working of the Cabinet system). As to the Prime Minister see paras 394-398 post; as to the Cabinet see paras 402-413 post.

19      See para 7 post.

20      See eg O'Reilly v Mackman [1983] 2 AC 237, [1982] 3 All ER, HL; and JUDICIAL REVIEW vol 61 (2010) PARAS 660, 661.

21      While it is accepted that minister of the Crown, local authorities, National Health Service authorities and police officers are state or 'public' bodies, it is not clear to what extent other bodies are to be regarded as subject to public law and in that sense performing public functions or acting as state or public bodies. See eg R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] QB 815, [1987] 1 All ER 564, CA; R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 2 All ER 853, [1993] 1 WLR 909, CA. See para 5 post; and ADMINISTRATIVE LAW.

22      See Lord Woolf 'Public law, private law: Why the divide?' [1986] Public Law 220 at 223.

23      Proceedings against the Crown which, although brought in the same courts as actions against private persons, were for-merly by way of petition of right, are now by way of action and are for the most part assimilated to private actions (see CROWN PROCEEDINGS AND CROWN PRACTICE); actions in private law (eg in tort or for breach of contract) against local authorities have al-ways been brought in the same courts and according to the same rules of substantive law and procedure as actions against pri-vate persons; and in England and Wales the same writ of habeas corpus may be used to obtain the release of a person subject to any form of illegal custody or restraint whether public or private: see eg Sommersett's Case (1772) 20 State Tr 1 (slave re-leased from private custody); Barnardo v Ford [1892] AC 326, HL (custody of child); Armah v Government of Ghana [1968] AC 192, [1966] 3 All ER 177, HL (extradition); Secretary of State for Home Affairs v O'Brien [1923] AC 603, HL (deportation); R v Governor of Brixton Prison, ex p Ahsan [1969] 2 QB 222, [1969] 2 All ER 347, DC (removal on grounds of illegal entry); R v Secretary of State for the Home Department, ex p Mubojayi [1992] QB 244, [1991] 4 All ER 72, DC (discussion of the differ-ences in the use of habeas corpus and judicial review as a way of questioning an administrative decision to remove an asylum seeker from this country).
There are, however, certain courts such as courts-martial which have no concern with private law and the same might be said of many statutory tribunals.

24      See eg Report of the Royal Commission on the Constitution 1969-73 (Cmnd 5460) (1973) (the Kilbrandon Report); Scarman English Law: The New Dimension (1974); Hailsham Elective Dictatorship (1976); Bogdanor The People and the Party System (1981); Holme and Elliott (eds) 1688-1988: Time for a New Constitution (1988); Wright Citizens and Subjects (1994); Jowell and Oliver (eds) The Changing Constitution (3rd Edn, 1994).

25      See eg Report of the Royal Commission on the Constitution 1969-73 (Cmnd 5460) (1973) (the Kilbrandon Report); House of Lords Select Committee on a Bill of Rights (HL Paper (1977-78) No 176); Standing Advisory Committee on a Bill of Rights in Northern Ireland, The Protection of Human Rights by Law in Northern Ireland (Cmnd 7009) (1977); Report of the Committee of Inquiry into the Conduct of Local Authority Business (Cmnd 9797) (1986) (the Widdecombe Report); Charter 88 Charter (1988); Lester et al A British Bill of Rights (1990); Institute for Public Policy Research The Constitution of the United Kingdom, Constitution Paper No 4 (1991); McDonald The Future of Whitehall (1991); Oliver Government in the United Kingdom: The Search for Accountability, Effectiveness and Citizenship (1991); Woodhouse Ministers and Parliament (1994); publications of the Scottish Constitutional Convention, namely; The Scottish Claim of Right (1988), Towards a Scottish Parliament (1989), Key Elements of Proposals for a Scottish Parliament (1990), Towards Scotland's Parliament (1990), Further Steps Towards a Scheme for Scotland's Parliament (1994); publications of the Constitution Unit, namely: Delivering Constitutional Reform (1996), Reform of the House of Lords (1996), Scotland's Parliament: Fundamentals for a New Scotland Act (1996), An Assem-bly for Wales (1996), Regional Government in England (1996).

« Last Edit: February 06, 2011, 04:42:30 PM by Michael of Bernicia »
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Re: The Road to Constitutional Remedy
« Reply #1 on: February 06, 2011, 04:42:52 PM »
From Halsbury's Laws of England:

3.     Public authorities

It is unlawful for a public authority1 to act in a way which is incompatible with a Convention right2. This does not apply to an act3 if as the result of one or more provisions of primary legislation4, the authority could not have acted differently; or in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions5.

A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful6 may (1) bring proceedings7 against the authority in the appropriate court or tribunal8, or (2) rely on the Convention right or rights concerned in any legal proceedings9, but only if he is (or would be) a victim of the unlawful act10. If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act but that is subject to any rule imposing a stricter time limit in relation to the procedure in question11.

Nothing in the Human Rights Act 1998 creates a criminal offence12.

In relation to any act (or proposed act) of a public authority which the court13 finds is (or would be) unlawful14, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate15, but damages16 may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings17. No award of damages is to be made unless, taking account of all the circumstances of the case, including any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made18. In determining whether to award damages, or the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation19. A public authority against which damages are awarded is to be treated20 as liable in respect of damage suffered by the person to whom the award is made21.

Proceedings22 in respect of a judicial act23 may be brought only (a) by exercising a right of appeal; (b) on an application for judicial review; or (c) in such other forum as may be prescribed by rules24, but that does not affect any rule of law which prevents a court25 from being the subject of judicial review26.

In proceedings under the Human Rights Act 1998 in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Convention for the Protection of Human Rights and Fundamental Freedoms27. Any award of damages so permitted is to be made against the Crown; but no award may be made unless the appropriate person28, if not a party to the proceedings, is joined29.

1      'Public authority' includes (1) a court or tribunal, and (2) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament: Human Rights Act 1998 s 6(3). In relation to a particular act, a person is not a public authority by virtue only of head (2) if the nature of the act is private: s 6(5). 'Parliament' does not include the House of Lords in its judicial capacity: s 6(4) (repealed by Constitutional Reform Act 2005 Sch 9 para 66(4), Sch 18 Pt 5 (in force 1 October 2009: SI 2009/1604)). The following are not public authorities for the purposes of the 1998 Act s 6(3): (a) an adjudicator (Austin Hall Building Ltd v Buckland Securities Ltd (2001) 3 TCLR 18); (b) a charitable foundation which provides accommodation, on behalf of a local authority, to persons to whom the authority owes a duty to provide accommodation (R (on the application of Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366, [2002] 2 All ER 936); (c) a parochial church council (Aston Cantlow and Wilmcote with Billesley Parochial Church, v Wallbank [2003] UKHL 37, [2003] 3 All ER 1213); (d) Lloyd's of London (R (on the application of West) v Lloyd's of London [2004] EWCA Civ 506, [2004] 3 All ER 251); (e) a company responsible for the maintenance of rail infrastructure (Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133 (QB), [2007] 3 All ER 241, [2007] 1 WLR 163); and (f) a private body, providing accommodation to persons in need of care and assistance pursuant to arrangements made with a local authority in the exercise of that authority's functions under the National Assistance Act 1948 ss 21 and 26 (R (on the application of Johnson) v Havering LBC [2007] EWCA Civ 26, [2007] 2 WLR 1097; and YL v Birmingham City Council [2007] UKHL 27, [2008] 1 AC 95). The following is a public authority for the purposes of the 1998 Act s 6(3): a registered social landlord (R on the application of Weaver) v London and Quadrant Housing Trust (Equality and Human Rights Commission intervening) [2008] EWCA Civ 587, [2009] 4 All ER 865.

2      1998 Act s 6(1). As to Convention rights see para 104A.1. The distinction between the rights arising under the Convention and the rights created by the 1998 Act by reference to the Convention must be kept in mind; the continuing existence of a right arising under the Convention in respect of an act occurring before the 1998 Act came into force will not necessarily be mirrored by a corresponding right provided by the Act: Re McKerr [2004] UKHL 12, [2004] 1 WLR 807 (judicial review proceedings in relation to act occurring before 1998 Act came into force misconceived). Embassy and consular staff abroad are subject to the Human Rights Act 1998 s 6(1): R (on the application of B) v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344, [2005] QB 643.

3      'An act' includes a failure to act but does not include a failure to introduce in, or lay before, Parliament a proposal for legislation; or make any primary legislation or remedial order: ibid s 6(6).

4      For the meaning of 'primary legislation' see para 104A.2 note 1.

5      1998 Act s 6(2). Incompatible subordinate legislation cannot provide a defence under s 6(2) where the primary legislation under which it is made can be read compatibly: R (on the application of Bono) v Harlow DC [2002] EWHC 423 (Admin), [2002] 1 WLR 2475. If legislation cannot be read compatibly, a public authority is not obliged to subvert the intention of Parliament by treating itself as under a duty to neutralise the effect of the legislation: R (on the application of Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29, [2006] 1 All ER 487, [2005] 1 WLR 1681.

6      Ie by 1998 Act s 6(1): see text and notes 1, 2.7     

Proceedings under text head (1) must be brought before the end of the period of one year beginning with the date on which the act complained of took place; or such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question: ibid s 7(5). A claim under text head (1) in respect of a judicial act may be brought only in the High Court but any other claim under head (1) may be brought in any court: CPR 7.11 (added by SI 2000/2092).

8      'Appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding: 1998 Act s 7(2). 'Rules' means rules made by the Lord Chancellor or the Secretary of State for the purposes of s 7 or rules of court, and includes provision made by order under the Courts and Legal Services Act 1990 s 1: 1998 Act s 7(9)(a). In making rules, regard must be had to s 9 (see text and notes 22–29): s 7(11). The Proscribed Organisations Appeal Commission is the appropriate tribunal for the purposes of s 7 in relation to proceedings under s 7(1)(a), where such proceedings relate to a refusal by the Secretary of State to remove an organisation from the Terrorism Act 2000 Sch 2 (proscribed organisations): Proscribed Organisations Appeal Commission (Human Rights Act 1998 Proceedings) Rules 2006, SI 2006/2290.

The minister who has power to make rules in relation to a particular tribunal may, to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of the 1998 Act s 6(1), by order add to the relief or remedies which the tribunal may grant; or the grounds on which it may grant any of them: s 7(11). Any such order may contain such incidental, supplemental, consequential or transitional provision as the minister making it considers appropriate: s 7(12).

9      'Legal proceedings' includes proceedings brought by or at the instigation of a public authority; and an appeal against the decision of a court or tribunal: ibid s 7(6). The retrospectivity of s 7(1) (see text and note 10), as provided for by s 22(4), applies only to proceedings brought by or at the instigation of a public authority, and does not apply to appeals: R v Kansal (No 2) [2002] UKHL 62, [2002] 1 All ER 257, [2001] 3 WLR 1562.

10      1998 Act s 7(1). As to the retrospective application of s 7(1), see s 22(4), and R v Kansal (No 2), note 9. For the purposes of s 7, a person is a victim of an unlawful act only if he would be a victim for the purposes of the Convention for the Protection of Human Rights and Fundamental Freedoms (see para 104A.1 note 1) art 34 (see para 200B) if proceedings were brought in the European Court of Human Rights in respect of that act: 1998 Act s 7(7). See Frame v Grampian University Hospitals NHS Trust (2004) Times, 2 March (NHS trust not a victim for the purposes of the Convention art 34).

Where a claim is for a remedy under the 1998 Act s 7 in respect of a judicial act which is alleged to have infringed the claimant's rights under the Convention art 5 (see paras 127–133) and is based on a finding by a court or tribunal that the claimant's Convention rights have been infringed, the court hearing the claim may proceed on the basis of the finding of that other court or tribunal that there has been an infringement but it is not required to do so, and may reach its own conclusion in the light of that finding and of the evidence heard by that other court or tribunal: CPR 33.9 (added by SI 2000/2092).

11      1998 Act s 7(3).

12      Ibid s 7(8).

13      In ibid s 8, 'court' includes a tribunal: s 8(6).

14      Ie under ibid s 6(1): s 6(6).

15      Ibid s 8(1).

16      'Damages' means damages for an unlawful act of a public authority: ibid s 8(6).

17      Ibid s 8(2).

18      Ibid s 8(3).

19      Ibid s 8(4), referring to the principles applied under the Convention art 41 (see para 200F): 1998 Act s 8(4). For further guidance as to relevant factors in the assessment of damages under the 1998 Act s 8 see R (on the application of Bernard) v Enfield LBC [2002] EWHC 2282 (Admin), [2003] HLR 354, applied in R (on the application of KB) v Mental Health Review Tribunal; R (on the application of B) v Mental Health Review Tribunal [2003] EWHC 193 (Admin), [2003] 2 All ER 209, [2003] 3 WLR 185.

20      Ie for the purposes of the Civil Liability (Contribution) Act 1978: see damages vol 12(1) (Reissue) para 839 et seq.

21      1998 Act s 8(5)(b).

22      Ie under ibid s 7(1)(a): see text head (2).

23      'Judicial act' means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge: ibid s 9(5). 'Judge' includes a member of a tribunal, a justice of the peace and a clerk or other officer entitled to exercise the jurisdiction of a court: s 9(5).

Where a claim is made for damages in respect of a judicial act, that claim must be set out in the statement of case or the appeal notice; and notice must be given to the Crown: CPR 19.4A(3) (CPR 19.4A added by SI 2000/2092). Where the appropriate person has not applied to be joined as a party within 21 days, or such other period as the court directs, after the notice is served, the court may join the appropriate person as a party: CPR 19.4A(4) (as added).

24      1998 Act s 9(1). 'Rules' has the same meaning as in ibid s 7(9) (see note 8): s 9(5).25      In ibid s 9, 'court' includes a tribunal: s 9(5).26      Ibid s 9(2).27      Ibid s 9(3), referring to the Convention art 5(5) (see para 127).28      Ie the minister responsible for the court concerned, or a person or government department nominated by him: 1998 Act s 9(5).29      Ibid s 9(4).

4.     Remedial action

The following provisions apply if (1) a provision of legislation1 has been declared2 to be incompatible with a Convention right3 and, if an appeal lies, all persons who may appeal have stated in writing that they do not intend to do so, the time for bringing an appeal has expired and no appeal has been brought within that time; or an appeal brought within that time has been determined or abandoned; or (2) it appears to a minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights4 in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention5. If a minister of the Crown considers that there are compelling reasons for proceeding6, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility7. If, in the case of subordinate legislation8, a minister of the Crown considers that it is necessary to amend the primary legislation9 under which the subordinate legislation in question was made, in order to enable the incompatibility to be removed, and that there are compelling reasons for proceeding, he may by order make such amendments to the primary legislation as he considers necessary10. These provisions also apply where the provision in question is in subordinate legislation and has been quashed, or declared invalid, by reason of incompatibility with a Convention right and the minister proposes to make a remedial order11. If the legislation is an Order in Council, the power conferred under the provisions above is exercisable by Her Majesty in Council12.

A remedial order under the provisions above may (a) contain such incidental, supplemental, consequential or transitional provision as the person making it considers appropriate; (b) be made so as to have effect from a date earlier than that on which it is made13; (c) make provision for the delegation of specific functions; (d) make different provision for different cases14. The power conferred by head (a) above includes power to amend15 primary legislation (including primary legislation other than that which contains the incompatible provision); and power to amend or revoke subordinate legislation (including subordinate legislation other than that which contains the incompatible provision)16. A remedial order may be made so as to have the same extent as the legislation which it affects17.

No remedial order may be made unless (i) a draft18 of the order has been approved by a resolution of each House of Parliament made after the end of the period of 60 days beginning with the day on which the draft was laid; or (ii) it is declared in the order that it appears to the person making it that, because of the urgency of the matter, it is necessary to make the order without a draft being so approved19. If representations20 have been made during that period, the draft laid under head (i) above must be accompanied by a statement containing a summary of the representations; and if, as a result of the representations, the proposed order has been changed, details of the changes21.

If a remedial order ('the original order') is made without being approved in draft, the person making it must lay it before Parliament, accompanied by the required information22, after it is made23. If representations have been made during the period of 60 days beginning with the day on which the original order was made, the person making it must (after the end of that period) lay before Parliament a statement containing (a) a summary of the representations; and (b) if, as a result of the representations, he considers it appropriate to make changes to the original order, details of the changes24. If, at the end of the period of 120 days beginning with the day on which the original order was made, a resolution has not been passed by each House approving the original or replacement order, the order ceases to have effect (but without that affecting anything previously done under either order or the power to make a fresh remedial order)25.

In calculating any period for the purposes of remedial orders, no account is to be taken of any time during which Parliament is dissolved or prorogued; or both Houses are adjourned for more than four days26.

1      'Legislation' does not include a Measure of the Church Assembly or of the General Synod of the Church of England: Human Rights Act 1998 s 10(6).

2      Ie under ibid s 4: see para 104A.2.

3      As to Convention rights see para 104A.1.

4      Ie made after 2 October 2000 (ie the date on which the 1998 Act s 10 came into force: SI 2000/1851).

5      1998 Act s 10(1).

6      Ie under ibid s 10.

7      Ibid s 10(2).

8      For the meaning of 'subordinate legislation' see para 104A.2 note 2.

9      For the meaning of 'primary legislation' see para 104A.2 note 1.

10      1998 Act s 10(3).

11      Ibid s 10(4), referring to the minister proceeding under Sch 2 para 2(b) (see text head (ii)).

12      Ibid s 10(5).

13      No person is to be guilty of an offence solely as a result of the retrospective effect of a remedial order; ibid s 10(7), Sch 2 para 1(4).

14      Ibid Sch 2 para 1(1).

15      'Amend' includes repeal and apply (with or without modifications): ibid s 21(2).

16      Ibid Sch 2 para 1(2).

17      Ibid Sch 2 para 1(3).

18      No draft may be laid under text head (i) unless (1) the person proposing to make the order has laid before Parliament a document which contains a draft of the proposed order and the required information; and (2) the period of 60 days, beginning with the day on which the document required by Sch 2 para 3(1) was laid, has ended: Sch 2 para 3(1).

19      Ibid Sch 2 para 2.

20      'Representations' means representations about a remedial order (or proposed remedial order) made to the person making (or proposing to make) it and includes any relevant Parliamentary report or resolution: ibid Sch 2 para 5.

21      Ibid Sch 2 para 3(2).

22      'Required information' means an explanation of the incompatibility which the order (or proposed order) seeks to remove, including particulars of the relevant declaration, finding or order; and a statement of the reasons for proceeding under ibid s 10 and for making an order in those terms: Sch 2 para 5.

23      Ibid Sch 2 para 4(1).

24      Ibid Sch 2 para 4(2). If text head (a) applies, the person making the statement must make a further remedial order replacing the original order; and lay the replacement order before Parliament: Sch 2 para 4(3).

25      Ibid Sch 2 para 4(4).

26      Ibid Sch 2 para 6.


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Re: The Road to Constitutional Remedy
« Reply #2 on: February 06, 2011, 05:36:42 PM »
As for the special rules applying to constitutional statutes, Lord Justice Laws, in the Divisional Court in the case of the “Metric Martyrs” (sections 62 and 63):

“The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.

Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.”
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Re: The Road to Constitutional Remedy
« Reply #3 on: February 06, 2011, 06:06:04 PM »
101. Fundamental rights and freedoms of the individual.

The origins of the fundamental rights and liberties of the citizens of this country, like the origins of constitutional government, are matters of continuing historical controversy, reflecting different strands of English political philosophy and Whig and Tory interpretations of the Revolution of 16881. They may be said to derive both from the concept of popular rights and popular sovereignty, reflected in the reference in the Act of Settlement to the laws of England as being the 'birthright of the people'2, as well as from the concept of parliamentary sovereignty3 and of a compact between monarch and Parliament, whereby the rights and liberties of the subject were declared in the Bill of Rights, and further secured in the Act of Settlement.

In traditional English legal terms, the concept of popular rights and popular sovereignty has been eclipsed by the concept of parliamentary sovereignty, according to which, since Parliament is sovereign (in place of the monarch), the subject cannot possess fundamental rights such as are guaranteed to the citizen by many foreign and Commonwealth constitutions, as well as by international and European law4. According to this traditional view of the doctrine of parliamentary sovereignty, the liberties of the subject are merely implications drawn from two principles, namely: (1) that individuals may say or do what they please, provided they do not transgress the substantive law, or infringe the legal rights of others5; and (2) that public authorities (including the Crown) may do nothing but what they are authorised to do by some rule of common law6 (including the royal prerogative) or statute7, and in particular may not interfere with the liberties of individuals without statutory authority8. Where public authorities are not authorised to interfere with the individual, the individual has liberties9. It is in this sense that such liberties are residual, rather than fundamental and positive, in their nature.

Apart from the general provisions ensuring the peaceful enjoyment of rights of property, and the freedom of the individual from illegal detention, duress, punishment or taxation, contained in the four great charters or statutes which regulate the relations between the Crown and people10, and apart from specific legislation conferring particular rights11, the fundamental rights and liberties of the individual are not expressly defined in any United Kingdom law or code. However, the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms12 are commonly taken into account by English courts when cases involving human rights issues arise13. Furthermore, an alleged victim of a violation of that Convention may have recourse to the European Commission and Court of Human Rights for redress, after exhausting any effective domestic remedies14.

1      See eg Kenyon Revolution Principles: The Politics of Party 1689–1720 (1977).

2      Act of Settlement s 4. As to the citation of the Act of Settlement see para 35 note 3 ante.

3      As to parliamentary sovereignty see generally para 232–237 post.

4      However, English courts, increasingly influenced by international human rights law, comparative constitutional law, and European law, are becoming more sympathetic to the concept of popular sovereignty and fundamental rights and liberties. See eg Derbyshire County Council v Times Newspapers Ltd [1992] 1 QB 770, [1992] 3 All ER 65, CA; affd [1993] AC 534, [1993] 1 All ER 1011, HL; both the Court of Appeal and the House of Lords treated American constitutional case law on federal and state guarantees of free speech (notably in New York Times Co v Sullivan 376 US 254 (1964), US SC; and City of Chicago v Tribune Co 139 NE 86 (1923) Supreme Court of Illinois as persuasive in the context of English constitutional law: the American constitutional principles, rooted in a republican rather than a monarchical tradition, were regarded as relevant in preventing an English public authority from invoking libel law to protect its so-called governing reputation. See also Harman v Secretary of state for the Home Department [1983] 1 AC 280 at 316–318, sub nom Home Office v Harman [1982] 1 All ER 532 at 547–548, HL, per Lord Scarman (dissenting).

5      'The law of England is a law of liberty': R v Cobbett (1804) 29 State Tr 1 at 49 per Lord Ellenborough CJ; A-G v Observer Ltd, A-G v Times Newspapers Ltd [1990] 1 AC 109 at 178, sub nom A-G v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545 at 596, CA, per Sir John Donaldson MR, and at 283, 660, HL, per Lord Goff of Chieveley.

6      At common law the Crown, as a corporation possessing legal personality, has the capacities of a natural person and thus the same liberties as the individual: see para 6 ante.

7      The authorisation may take the form of a simple parliamentary appropriation of money for a particular purpose: see para 7 head (12) ante.

8      Proclamations' Case (1611) 12 Co Rep 74; and see para 6 ante.

9      See 2 Hatschek's Englisches Staatsrecht 547–548.

10      Namely: Magna Carta of Edward 1 (1297), c 29; the Petition of Right (1627); the Bill of Rights; and the Act of Settlement. As to the provisions of these, and the extent to which they have been amended or repealed see generally paras 203, 207, 310, 372–378, 883 post. As to the history and citation of the Bill of Rights and the Act of Settlement see para 35 note 3 ante.

11      See para 103 post.

12      Ie the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1953; TS 71; Cmd 8969) (frequently referred to as the European Convention on Human Rights): see para 122 post.

13      See para 104 post.

14      For the effect of the United Kingdom's ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms as a guarantee of civil and political rights see generally paras 122–181 post.

UPDATE 101–200 Human Rights and Freedoms

Certain provisions of the European Convention on Human Rights have been incorporated into English law by the Human Rights Act 1998: see para 104A. During the transitional period before the central provisions of the Act came into force (ie 2 October 2000: SI 2000/1851), it could not be relied on to bring proceedings: R v Secretary of State for the Environment, Transport and the Regions, ex p Challenger (2000) Times, 11 July.

Functions of the Home Secretary under the 1998 Act (except for the powers under ss 2(3)(a), 7(9)(a), 18(7), 22(3)) have been transferred to the Lord Chancellor: Transfer of Functions (Miscellaneous) Order 2001, SI 2001/3500.

101 Fundamental rights and freedoms of the individual

note 8—See R v Secretary of State for Health, ex p C [2000] 1 FCR 471, CA (maintenance and operation, by Department of Health without parliamentary authority, of index of child care workers about whom there were concerns, not unlawful); R v Worcester CC, ex p SW [2000] 3 FCR 174 (inclusion in index of persons unsuitable for employment with children was not unlawful).
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Re: The Road to Constitutional Remedy
« Reply #4 on: February 06, 2011, 07:27:33 PM »
6. The principle of legality.

The legal basis of government gives rise to the principle of legality, sometimes referred to as the rule of law1. This may be expressed as a number of propositions, as described below.

(1) The existence or non-existence of a power or duty is a matter of law and not of fact, and so must be determined by reference either to the nature of the legal personality of the body in question and the capacities that go with it, or to some enactment or reported case. As far as the capacities that go with legal personality are concerned, many public bodies are incorporated by statute and so statutory provisions will define and limit their legal capacities2. Individuals who are public office-holders have the capacities that go with the legal personality that they have as natural persons3. The Crown is a corporation sole or aggregate4 and so has general legal capacity, including (subject to some statutory limitations and limitations imposed by European law) the capacity to enter into contracts and to own and dispose of property5. The fact of a continued undisputed exercise of a power by a public body is immaterial, unless it points to a customary power exercised from time immemorial6. In particular, the existence of a power cannot be proved by the practice of a private office7.

(2) The argument of state necessity is not sufficient to establish the existence of a power or duty which would entitle a public body to act in a way that interferes with the rights or liberties of individuals8. However, the common law does recognise that in case of extreme urgency, when the ordinary machinery of the state cannot function, there is a justification for the doing of acts needed to restore the regular functioning of the machinery of government9.

(3) If effect is to be given to the doctrine that the existence or non-existence of a power or duty is a matter of law, it should be possible for the courts to determine whether or not a particular power or duty exists, to define its ambit10 and provide an effective remedy for unlawful action11. The independence of the judiciary is essential to the principle of legality12. The right of access to the courts can be excluded by statute, but this is not often done in express terms13. A person whose civil or political rights and freedoms as guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights) have been infringed is entitled under the Convention to an effective right of access to the courts and an effective national remedy14. On the other hand, powers are often given to bodies other than the ordinary courts, to decide questions of law without appeal to the ordinary courts, and sometimes in such terms that their freedom from appellate jurisdiction extends to their findings of fact or law on which the existence of their powers depends15.

(4) Since the principal elements of the structure of the machinery of government, and the powers and duties which belong to its several parts, are defined by law, its form and course can be altered only by a change of law16. Conversely, since the legislative power of Parliament is unrestricted, save where European Community law has primacy17, its form and course can at any time be altered by Parliament18. Consequently there are no powers or duties inseparably annexed to the executive government19.

1      The rule of law is a political principle the classic exposition of which is in Dicey Law of the Constitution (10th Edn, 1959) p 187 et seq. Dicey identified three principles which together establish the rule of law: (1) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts. This exposition was not entirely accurate at the time of its publication, but the spirit of this doctrine has since been very influential in constitutional law. Dicey was criticised for his dislike of discretion, as this made provision under the welfare state unacceptable in terms of the rule of law: Jennings The Law and the Constitution (1933). Experience in European countries indicates that special administrative courts, such as the Conseil d'Etat in France, can provide strong control of government and protections for the individual, contrary to Dicey's assertion that only the ordinary courts could do so. The 'rule of law' nowadays has a range of meanings, including the idea that it embodies institutional morality, ie that there should be feasible limits on official power so as to constrain abuses which occur: see Jowell 'The Rule of Law Today' in Jowell and Oliver (eds) The Changing Constitution (3rd Edn, 1994). See Wade and Bradley Constitutional and Administrative Law (11th Edn, 1993) ch 6.

2      Eg local authorities are incorporated by the Local Government Act 1972 ss 2(3), 13(3), 14(2), 21 (as substituted), 33 (as substituted), and have power to do such acts as are provided for by statute, supplemented by local legislation. As a consequence of their corporate status, they are limited in their actions by the doctrine of ultra vires. See R v Somerset County Council, ex p Fewings [1995] 3 All ER 20, [1995] 1 WLR 1037, CA; and local government vol 69 (2009) para 461.

3      Eg the Metropolitan Police Commissioner. See per Sir Robert Megarry V-C in Malone v Metropolitan Police Comr [1979] Ch 344 at 357, sub nom Malone v Metropolitan Police Comr (No 2) [1979] 2 All ER 620 at 630: ' not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden'. See also at 366, 638: 'The notion that some express authorisation of law is required for acts which meet with 'general disfavour', and 'offend against proper standards of behaviour,' and so on, would make the state of the law dependent on subjective views on indefinite concepts, and would be likely to produce some remarkable and contentious results'. Cf Laws J in R v Somerset County Council, ex p Fewings [1995] 1 All ER 513; affd on other grounds [1995] 3 All ER 20, [1995] 1 WLR 1037, CA. However, some acts that are not prohibited in English law may be contrary to the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights): see paras 122–181 post.

4      See Re M [1994] 1 AC 377 at 424, sub nom M v Home Office [1993] 3 All ER 537 at 566, HL, per Lord Woolf; and Town Investments Ltd v Department of the Environment [1978] AC 359, [1977] 1 All ER 813, HL, in which Lord Diplock held that the Crown is a corporation sole, and Lord Simon of Glaisdale held that it is a corporation aggregate. As to corporations sole and aggregate see corporations vol 9(2) (2006 Reissue) para 1109.

5      In exercising its common law contractual power the Crown is not subject to judicial review: R v Lord Chancellor, ex p Hibbit and Saunders (a firm) (1993) Times, 12 March, DC; Oliver 'Judicial review and the shorthand writers' [1993] Public Law 214. The position as to the exercise of contracting power by local authorities is different and they are subject to judicial review: see for instance R v Lewisham London Borough Council, ex p Shell UK Ltd [1988] 1 All ER 938, DC.

6      Entick v Carrington (1765) 19 State Tr 1029 at 1068. Lord Camden CJ there pointed out that the acquiescence of the victims of general warrants could not render them legal; the defendants could not prove that the practice started before the Revolution of 1688.

7      Entick v Carrington (1765) 19 State Tr 1029 at 1068. The executive is not limited to exercising executive powers (see para 9 post), but all the powers exercised by the executive are subject to the principle that the exercise of governmental authority directly affecting individual interests must rest on legitimate foundations. For a case where a ministerial announcement (of an extra-statutory tax concession) which appeared to 'outweigh the law of the land' was seriously questioned see R v Customs and Excise Comrs, ex p Cooke and Stevenson [1970] 1 All ER 1068 at 1071–1072, [1970] 1 WLR 450 at 454–455, DC, per Lord Parker CJ. See also R v LCC, ex p Entertainments Protection Association Ltd [1931] 2 KB 215 at 228, CA, per Scrutton LJ (local authority has no power to dispense with the provisions of the Sunday Observance Act 1780); Vestey v IRC [1980] AC 1148 at 1172–1173, sub nom Vestey v IRC (Nos 1 and 2) [1979] 3 All ER 976 at 985, HL, per Lord Wilberforce (Inland Revenue has no power to dispense with the duty to pay tax).

8      Entick v Carrington (1765) 19 State Tr 1029 at 1073, per Lord Camden CJ: 'With respect to the argument of state necessity or a distinction which has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinction'. Lord Camden CJ was probably concerned to prevent the intrusion into English law of 'reason of state' (raison d'état) which was characteristic of continental despotisms. If this is correct, he was certainly successful; 'reason of state' has not effected an entry into English law. Within a few years, in R v Stratton (1779) 21 State Tr 1045, Lord Mansfield CJ had to try a case arising out of a coup d'état in Madras, where the Governor had been imprisoned by his own Council. Members of the Council were subsequently put on trial in England and argued that they had acted under the stress of necessity. In charging the jury, Lord Mansfield said at 1230: 'To amount to a justification, there must appear imminent danger to the government and individuals; the mischief must be extreme, and such as would not admit a possibility of waiting for a legal remedy; that the safety of the government must well warrant the experiment'. The defendants were in fact convicted. Necessity has been held to justify abnormal action in other countries outside the United Kingdom. Lord Mansfield later admitted that cases where it might become necessary to act without regard to law in the special circumstances of a distant territory (but could not exist in England) had presented themselves to his imagination, but that he had not dared to state them to the jury. In Sabally and N'Jie v A-G [1965] 1 QB 273 at 293, [1964] 3 All ER 377 at 380–381, CA, Lord Denning MR stated that the Crown, having granted a representative legislature to a colony and having thus renounced its prerogative to legislate, could nevertheless intervene to break a deadlock and fill a gap caused by a failure to elect a legislature; see de Smith and Brazier Constitutional and Administrative Law (7th Edn, 1994) p 74.

In the United Kingdom the only occasions on which the interests of the state have been successfully pleaded as a defence to what would otherwise be tortious conduct or an unlawful invasion of an individual's rights, eg in the confidentiality of information, have been in connection with the seizure of documents by the police on the occasion of an arrest, or the use of confidential documents which have come lawfully into the possession of the prosecution: see infra. Entick v Carrington supra itself arose out of the seizure of documents under a general warrant to search premises for papers thought to be seditious, and Lord Camden CJ held that neither the seizure nor the warrant itself could be supported in the absence of a statute. Police powers of search and seizure are now regulated by statute: Police and Criminal Evidence Act 1984 Pt II (ss 8–23) (as amended); see criminal law, evidence and procedure vol 11(2) (2006 Reissue) para 869 et seq.

The use of confidential documents by the police has involved invasions of the property rights of the owner of the documents. In Elias v Pasmore [1934] 2 KB 164, the police, while executing a valid warrant for the arrest of one person, lawfully seized his papers, but also seized papers of another person whom they later successfully charged with the same offence. In rejecting an action of trespass brought against the police by that other person, Horridge J said at 173: 'the interests of the state must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone'.

In Ghani v Jones [1970] 1 QB 693 at 706, [1969] 3 All ER 1700 at 1703, CA, where the police were held to have acted illegally in impounding the passports of persons whom they suspected of having committed a murder, Lord Denning MR criticised, obiter, Horridge J's statement, as being not only too wide, as including any crime committed by anyone, but also unnecessary for the purpose of excusing the particular seizure; he was also of the opinion (at 708–709, and at 1705) that the police might excusably search for and seize papers in the course of investigating crime, although only under very strict conditions. In Butler v Board of Trade [1971] Ch 680, [1970] 3 All ER 593 a confidential document had lawfully come into the possession of the liquidator of a company. Goff J refused to restrain its use to support a prosecution of a director of the company, following in this Horridge J's statement in Elias v Pasmore supra, as criticised by Lord Denning MR in Ghani v Jones supra, and also the wider opinion he had expressed in that case. The decisions and obiter dicta in these cases disclose a willingness on the part of the courts to extend, subject to safeguards, the powers of the police in their attempts to deal with crime. Only in Elias v Pasmore supra was there a general reference to the interests of the state, and even there it need not have been mentioned. In Ghani v Jones supra the state was not mentioned. In all the cases the court was concerned to balance the needs of investigating and repressing crime against the property rights of the subject. In Butler v Board of Trade supra Goff J spoke (at 691 and at 600) of the interest of the state to apprehend and prosecute criminals and said that 'the interest and duty of the defendants as a department of the state to prosecute offenders under the Companies Act must prevail over the offender's limited proprietary right in equity to restrain a breach of confidence'. None of these cases provides any foundation for a generalised doctrine of state necessity. For a critical appraisal see de Smith and Brazier Constitutional and Administrative Law (7th Edn, 1994) p 570 et seq. As to the confidentiality of information and breach of confidence generally see confidence and data protection.

9      R v Hampden, Ship Money Case (1637) 3 State Tr 826 at 1012–1013, per Holborne, in argument. See further paras 168, 820–822 post. The state's power to deal with riots and rebellions, to which the term 'martial law' is sometimes applied, rests on this principle. As to martial law see further para 821 post. In such cases necessary acts not in accordance with law may subsequently be the subject of indemnifying legislation: see eg the Indemnity Act 1920 (repealed), and the War Damage Act 1965, which retrospectively negatived the decision in Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75, [1964] 2 All ER 348, HL; see para 820 post. Alternatively, the illegality of those rights of redress may be removed; see eg the Enemy Property Act 1953 ss 6, 7 (repealed). If the exercise of these powers interferes with civil and political rights that are protected by the Convention for the Protection of Human Rights and Fundamental Freedoms (as to which see paras 122–181 post) then under the terms of the Convention they will be regarded as unlawful unless justified on grounds set out in the Convention. These may include, in respect of certain rights, necessity in a democratic society in the interests of national security or public safety, the prevention of disorder or crime, and the protection of the rights and freedoms of others. Article 15 provides that in time of war or other public emergency threatening the life of the nation measures may be taken derogating from the obligations under the Convention to the extent strictly required by the exigencies of the situation: see para 168 post.

10      This doctrine is inherent in all the seventeenth century cases on prerogative: see Prohibitions del Roy (1607) 12 Co Rep 63 (the monarch may not sit as a judge in the royal courts); Brownlow v Cox and Michil (1615) 3 Bulst 32 (the monarch may not withdraw matters of state from the cognisance of the courts); and see in particular Proclamations' Case (1611) 12 Co Rep 74 at 76: 'Also it was resolved that the King hath no prerogative, but that which the law of the land allows him'. In Stockdale v Hansard (1839) 9 Ad & El 1 the Court of Queen's Bench refused to acknowledge the right of the House of Commons to determine the limits of its privileges, and held that they were a matter of common law to be determined, like any other matter of common law, by the common law courts.

11      A minister or other public official or body that is in breach of a court order may be found to be in contempt of court: Re M [1994] 1 AC 377, sub nom M v Home Office [1993] 3 All ER 537, HL. Injunctions and interim injunctions may be granted against officers of the Crown: Re M supra. As to remedies against public bodies or in respect of exercises of public or governmental functions see generally administrative law.

12      See para 10 post. As to the judiciary see further paras 301–311 post.

13      Examples may be found in the Parliament Act 1911 s 3 (which provides that any certificate of the Speaker under that Act may not be questioned in any court of law). See also the Immigration Act 1971 s 14(3) (which provides that a discretionary decision by the Secretary of State on 'public good' grounds concerning variation of limited leave to enter and remain in the United Kingdom may not be the subject of appeal). The courts have consistently attempted to hold that a provision in an enactment making the decision of an administrative authority final does not oust their supervisory jurisdictions: see R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574, sub nom Re Gilmore's Application [1957] 1 All ER 796, CA; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, [1969] 1 All ER 208, HL. This has now received statutory recognition; any provision in any Act passed before 1 August 1958 to the effect that any order or determination is not to be called into question in any court, or any provision which by similar words excludes any of the powers of the High Court, does not prevent the High Court from making orders of certiorari and mandamus: Tribunals and Inquiries Act 1992 s 12(1). See further judicial review vol 61 (2010) paras 616, 655.

For an example of an unsuccessful attempt in one of the Defence of the Realm Regulations to prevent access to the courts see Chester v Bateson [1920] 1 KB 829. For the special restrictions created by the doctrine of act of state see para 370.

14      See the Convention for the Protection of Human Rights and Fundamental Freedoms Arts 6(1), 13; and paras 134, 163 post.

15      There are various forms. Thus it may be provided that the certificate of an administrative authority is conclusive evidence that the requirements of an Act have been complied with, or an administrative authority or tribunal may have power to determine the ambit of its own authority or jurisdiction, or the power to act may be conferred in subjective terms, or it may be provided that an order under an Act is to have effect as if enacted in the enabling Act: see generally judicial review vol 61 (2010) para 624.

16      But see para 5 note 3 ante, where an exception is noted regarding the organisation of the Civil Service. As to the Civil Service see para 549–564 post.

17      See paras 1 ante; 23–24 post.

18      See paras 1 ante; 232 post.

19      The contrary doctrine, that certain prerogatives were inseparable, was upheld by the majority of the judges in R v Hampden, Ship Money Case (1637) 3 State Tr 826 at 1085, 1190, 1194–1195, 1235. The same doctrine appears in Godden v Hales (1686) 11 State Tr 1166. The decision in R v Hampden, Ship Money Case supra was, however, overruled by the Ship Money Act 1640 (repealed), and the Bill of Rights declared that the pretended prerogatives of taxing without recourse to Parliament, of suspending the laws, and of dispensing with the obligation to observe the law in individual cases, were illegal. As to the history and citation of the Bill of Rights see para 35 note 3 post.
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Re: The Road to Constitutional Remedy
« Reply #5 on: February 06, 2011, 07:40:49 PM »
2. Characteristics of the constitution.

The principal characteristics of the constitution of the United Kingdom, in the sense of its system of government, are as follows:

      (1)     the constitution is based on the premise that no body or political party is infallible1 or has a monopoly of wisdom, that state bodies should be democratically and legally accountable2, and that they should promote good government in the general interest, rather than in their personal interests or the interests of limited sections of society3;
      (2)     the United Kingdom is bound by membership of the European Community4, and the obligations imposed by ratification of the European Convention on Human Rights5, and the other international human rights codes to which the United Kingdom is party6;
      (3)     the constitution is unwritten7 and flexible8;
      (4)     the United Kingdom has a constitutional monarchy9;
      (5)     the United Kingdom has a parliamentary executive10;
      (6)     Parliament is sovereign11;
      (7)     Parliament consists in law of the House of Commons, the House of Lords and the monarch, but for practical purposes the legislature is divided into two parts, the House of Commons and the House of Lords12;
      (8)     the House of Commons, the first and dominant chamber of Parliament, is elected and so the system is one of representative democracy13;
      (9)     the judiciary is separate from the other organs of government and independent from them14, but in other respects there is not a separation of powers;
      (10)     there is a permanent, politically neutral, professional Civil Service15;
      (11)     the system is unitary16;
      (12)     below the level of central government there is a local government tier which has only local legislative power, and is limited by law and government policy as to how it spends the money it is granted by central government and how much it may raise from the council tax17;
      (13)     the liberties of the individual derive from a person's status as a subject of the Crown, and are residual in nature18, and there is no developed concept of citizenship conferring positive civil rights and liberties in relation to the state19.

These characteristics result from a combination of legal rules and constitutional conventions20. For example, the fact that there is a parliamentary executive is a matter of convention only. It follows that a treatment of the law of the constitution must take into account constitutional conventions.

1      Contrast the position as set out by Blackstone: 'Besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute perfection. The King can do no wrong.' 1 Bl Com 245. Although the monarch remains personally immune from action in the courts, the position now is that the Crown may be sued for wrongful acts: see para 15 post; and crown proceedings and crown practice. Ministers of the Crown are accountable to the courts and to Parliament for all actions of government, thus confining the application of the doctrine of perfection to the person of the monarch: see paras 14, 16 note 4 post.

2      As to accountability and responsibility see paras 16 note 4, 21 post; Marshall Constitutional Conventions: the rules and forms of political accountability (1987); Oliver Government in the United Kingdom: The Search for Accountability, Effectiveness and Citizenship (1991) chs 1, 2. See also Eighth Report of the Treasury and Civil Service Committee: Civil Service Management Reform: The Next Steps (HC Paper (1987–88) no 494); Fifth Report of the Treasury and Civil Service Committee: The Role of the Civil Service (HC Paper (1993–94) no 27); the government White Paper The Civil Service: Taking Forward Continuity and Change (Cm 2748) (1995); Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and related Prosecutions (HC Paper (1995–96) no 115) (the 'Scott Report').

3      See Burke (1774) 'Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of Parliament (Speech to the Electors of Bristol, 3 November 1774); and see also 1 Bl Com ch 7.

The Committee on Standards in Public Life identified seven principles of public life which emphasise the importance of serving the public interest, and which apply to all aspects of public life. Those principles are: selflessness; integrity; objectivity; accountability; openness; honesty; and leadership: see the First Report of the Committee on Standards in Public Life (Cm 2850) (1995) p 14; and para 12 post. Those principles have been adopted by the House of Commons: see para 211 post.

4      See para 23 post; and european communities.

5      Ie the Convention for the Protection of Human Rights and Fundamental Freedoms: see para 122–181 post.

6      See paras 1 ante; 103 post.

7      See para 1 ante.

8      For the distinction between flexible and rigid constitutions see Bryce 'Flexible and Rigid Constitutions', in Studies in History and Jurisprudence (1901) ch III; Wheare Modern Constitution (2nd Edn, 1966) ch 1. It follows from the absence of a written constitutional charter containing the fundamental and supreme law of the United Kingdom that European and international legal principles and rules readily infiltrate English law, by means of primary and subordinate legislation and judicial development of the common law. In this respect the United Kingdom system is more porous as well as more flexible than those of most other states. For full parliamentary debate to tke note of the United Kingdom's existing constitutional settlement and of the implications of proposals for change see 573 HC Official Report (6th series), 3 July 1996, cols 1449–1570; and 573 HC Official Report (6th series), 4 July 1996, cols 1581–1690.#

9      The monarch is Head of State and possesses important legal powers: see further para 14 et seq, 34–40, 367–372 post. By convention the powers of the monarch in relation to the United Kingdom are exercised on advice of relevant ministers: see for examples paras 19–22 post. By convention ministers are required to be members of one or other of the two Houses of Parliament, of which the House of Commons, the elected chamber, is dominant. As to the House of Commons generally see parliament vol 78 (2010) para 892. As to the House of Lords generally see para 204 post; and parliament vol 78 (2010) para 828 et seq. The exercise of statutory powers exercised in the name of the Crown and of many prerogative powers is also subject to judicial review: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, [1984] 3 All ER 935, HL; and see paras 367–380 post; and judicial review vol 61 (2010) para 601 et seq. It is because the powers of the monarch are subject to parliamentary and judicial control that the monarchy is said to be constitutional. See also Bogdanor The Monarchy and the Constitution (1995) chs 1, 3.

10      By convention the monarch, who appoints ministers under prerogative powers (see paras 394, 399 post) must appoint from members of one or other of the Houses of Parliament. Convention requires that the Prime Minister and the Chancellor of the Exchequer be members of the House of Commons. See para 21 post.

11      See paras 232–237 post.

12      See Loveland Constitutional Law: A Critical Introduction (1996) p 191. See further para 201 et seq post; and parliament vol 78 (2010) para 801.

13      As to parliamentary elections see paras 206–209 post; and elections and referendums vol 15(3) (2007 Reissue) para 9. The primacy of the House of Commons flows both from the provisions of the Parliament Acts 1911 and 1949 (which provide that Bills may in certain circumstances receive the royal assent after having been approved only by the House of Commons) (see parliament vol 34 (Reissue) para 831; parliament vol 78 (2010) para 827), and from the fact that its legitimacy is greater than that of the House of Lords because its members are elected while those of the House of Lords are hereditary or appointed: see parliament vol 78 (2010) paras 828 et seq; 892 et seq; it is because of these two considerations that convention requires that the Prime Minister and the Chancellor of the Exchequer are members of the House of Commons, so that the focus of party political activity is in that chamber, which further reinforces its dominance: see further paras 394, 477 post.

14      See paras 8, 10, 18 post; and administrative law; courts.

15      As to the Civil Service see paras 549–564 post.

16      See para 4 post. Note that the structure of government provided for Northern Ireland under the Northern Ireland Constitution Act 1973, which, however, is not in place, would be federal in nature: see para 67 et seq post.

17      See para 4 post; and local government vol 69 (2009) para 1 et seq; rating and council tax.

18      See eg Malone v Metropolitan Police Comr [1979] Ch 344, sub nom Malone v Metropolitan Police Comr (No 2) [1979] 2 All ER 620. See also para 26 post.

19      See paras 25, 101 et seq post.

20      As to constitutional conventions see paras 19–22 post.
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