Public Law

Thoburn v Sunderland CC [2003] QB 151

Thoburn was prosecuted for using imperial units instead of metric units because they argued the Weights and Measures Act 1985 impliedly repealed the relevant powers in the ECA 1972.

The court rejected this argument.

The court found that EU law, incorporated into UK law via the ECA 1972, took precedence over inconsistent domestic legislation.

The judgment also established the concept of "constitutional statutes," such as the ECA 1972, which cannot be impliedly repealed by ordinary statutes —> only by express words in subsequent legislation.

EU law > parliament unless expressly stated

ex parte Factortame (No.1) [1990] 2 AC

85(HL)

Whether UK courts could grant interim relief to suspend a domestic statute (the Merchant Shipping Act 1988) that potentially conflicted with EU law.

The House of Lords initially refused interim relief, citing traditional principles of parliamentary sovereignty: UK courts lacked jurisdiction to disapply an Act of Parliament or issue injunctions against the Crown

The ECJ ruled that EU law required interim relief to protect directly enforceable EU rights, even if national procedural rules prohibited it.

HoL granted the injunction, marking the first time a UK court suspended an Act of Parliament to comply with EU obligations.

• Emphasize EU law supremacy

• Traditional UK constitutional principles (e.g., no injunctions against the Crown) yield to EU law’s procedural requirements

• Nature and limits of parliamentary sovereignty

Commentary:

Wade (at 571) observed that ‘we are in a regime in which Parliament has bound its successors successfully … which is nothing if not revolutionary’ rendering parliamentary sovereignty ‘a freely adjustable commodity’

If Parliament’s sovereignty is determined by political necessity, then does this entail that political power is unlimited? Can Parliament make whatever laws legislators and the government believe they can convince the public are necessary, regardless of whether it ties the hands of future parliaments?

HS2 Action Alliance Limited [2014] UKSC 3

• The hybrid Bill procedure for HS2 did not breach EU environmental law at the stage considered.

• Strategic environmental assessment was not required for the government’s Command Paper.

• The case established that certain constitutional principles in the UK may take precedence over EU law unless Parliament expressly provides otherwise

while EU law is generally supreme, there are fundamental aspects of the UK constitution-such as parliamentary procedure and privilege-that may not be displaced by general provisions of EU law without clear statutory authority

**Post-Brexit, this approach is reinforced: Parliament is now the ultimate legal authority, and EU law does not override UK constitutional fundamentals

Miller I [2017] UKSC 5.

• landmark UK Supreme Court case that addressed whether the government could trigger Article 50 of the Treaty on European Union-the formal process for leaving the EU-using prerogative powers, or whether it required explicit authorization from Parliament.

• ruled that the government could not trigger Article 50 using prerogative powers alone.

• The judgment reaffirmed the principle of parliamentary sovereignty: only Parliament can change domestic law or remove rights it has conferred

• The case clarified the limits of the royal prerogative, particularly that it cannot be used by the executive to alter domestic law or rights without Parliament’s approva

R. (UNISON) v The Lord Chancellor

[2017] UKSC 51

a statutory power to set

employment tribunal fees did not permit the Lord Chancellor to set fees at a level

which denied access to justice.

Lord Reed: At the heart of the concept of the rule of law is the idea that society is

governed by law. Parliament exists primarily in order to make laws for society

in this country. Democratic procedures exist primarily in order to ensure that

the Parliament which makes those laws includes Members of Parliament who

are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its

functions in accordance with the law. In order for the courts to perform that

role, people must in principle have unimpeded access to them. Without such

access, laws are liable to become a dead letter, the work done by Parliament

may be rendered nugatory, and the democratic election of Members of

Parliament may become a meaningless charade. That is why the courts do not

merely provide a public service like any other.

—> consider ouster clauses in this context

A (FC) and others (FC) v. Secretary of State for the Home Department

[2005] UKHL 71.

Entick v Carrington (1765) 19 St.Tr. 1029.

• Nathan Carrington was a King’s messenger who proceeded with a warrant from the Secretary of State, Lord Halifax to forcibly enter into John Entick’s property.

• Entick was a publisher of a periodical, The Monitor, which was critical of government.

• The King’s Messengers spent four hours breaking into various rooms and cabinets, seizing hundreds of charts and pamphlets and causing extensive damage to the property.

• Entick sued for trespass.

• The entry had the warrant of the Secretary of State and therefore of the King. Carrington sued, arguing that no law permitted the issuance of such a writ to carry out an invasion of a common law right.

this established the principle of legality that the state can only interfere with the rights of the individual if it has some specific legal authority that is statutory or common law authority which authorises this interference.

Malone v MPC [1979] 2 All ER 620.

the residual system of protection of liberties

does NOT work unless there is a specific legal right which is being infringed

upon.

Ex parte Leech (No.2) [1994]

prisoner’s right of

communication with lawyer part of constitutional right of access to courts.

Derbyshire CC v Times [1993] AC 534

public authority unable to sue in libel because of common law principle of freedom of speech.

• Public authorities cannot simply claim defamation.

• The Times were writing about the council, which the council did not like, and they sued for defamation.

• Court held that the newspaper could say what they said.

• Public authorities do not have this protection, as this is a principle of freedom

of speech/explanation.

ex parte Simms [2000] 2 AC 115

prisoners’ right of access to justice and journalists’ freedom of expression both fundamental common law constitutional rights which Parliament could override only by express words –

new ‘principle of legality’, per Lord Hoffman.

Malone v UK (1985) 7 EHRR 14.

Malone claims there was an Article 8 violation of his right to private life.

ECHR agreed there was an interference to his right to a private life.

Article 8 works in a specific way

• Was there an interference?

  • There was a conversation, which the govt intercepted.

• Was the interference justified?

  • What the govt used to tap the conversation violated the rule of law.

  • UK found to be in violation of Article 8

  • After this judgement, the UK adopted a law and made changes to this area of the law.

The law on interpretation was not clear / the law lacks clarity

Citizens are entitled to a minimum degree of protection

ex parte Brind 1991

• The UK will not always be found to have violated the ECHR.

• Wednesbury test was applied - the limitation in question was reasonable.

• The govt’s discretion was found to have been reasonable.

Smith & Grady v UK (2000) 29 EHRR 493.

• Homosexuality deemed to be incompatible with service in the armed forces.

• Applicants were dismissed by the govt due to their sexual orientation

• Courts said this was reasonable and not irrational.

• The govt has justification for behaving in this way.

• It is up to the Minister of Defence to decide these things.

• This was a decision of the CoA (English courts)- the applicants then appealed to the ECtHR.

• ECtHR asked was the interference justified?

• The interference was in accordance with the law.

• Govt justified their dismissal by saying they were doing it to maintain

  operational effectiveness of the armed forces. The effectiveness of the

  forces was disrupted by homosexuality.

• ECtHR said that the above was a legitimate aim - national security and

  prevention of disorder are good justifications for why they did what they did.

• The aim of the govt = legitimate.

• Was this decision necessary in a democratic society?

• It would only be necessary if it answered a pressing social need and was

  proportionate.

• The court did not find evidence / good justification to suggest that

  homosexuals in the armed forces would weaken the procedural

  effectiveness of the military.

• Although the government resisted such a characterisation, its argument essentially reduced to the proposition that the policy was necessary because institutional homophobia would otherwise have compromised the forces’ effectiveness

• This was NOT NECESSARY in a democratic society —> the UK policy was therefore held to be in breach of the ECHR

I prefer ECtHR’s analysis over the UK, Proportionality test better than Wednesbury

Lord Ackner: His fear was that the distinction between appeal and review²⁴¹ would not survive English courts’ embrace of proportionality. The challenge, then, is to apply the proportionality test in a way that recognises that the roles of judges and decision-makers are distinct: as Laws LJ put it in R (Mahmood) v Secretary of State for the Home Department,²⁴² there must continue to be ‘a principled distance between the court’s adjudication … and the Secretary of State’s decision, based on his perception of the case’s merits’.

R(Ullah) v Special Adjudicator [2004] UKHL 26

“The duty of national courts is to keep pace with the Strasbourg

jurisprudence as it evolves over time: no more, but certainly no less.”

Established the mirror principle - domestic courts should follow the

jurisprudence of the ECtHR unless there is an exceptional reason as to

why not to.

Ullah is a citizen of Pakistan. He claimed asylum - if he went to Pakistan,

he would be prosecuted for his religious belief. Did any article of the ECHR

prevent Ullah from being removed from the UK?

HoL - the jurisprudence of the ECtHR must be referred to to see what they

would do in this kind of situation.

ECtHR would have decided that the applicant did not have a good

case.

Although the case law of ECtHR is not binding, national courts, unless

there is an exceptional reason, should follow the judgements of this court.

The correct interpretation of an article comes from the ECtHR - this

becomes the most acceptable form of interpretation to use.

R (Chester) v Secretary of State for Justice [2013] UKSC 63,

“It would have then to involve some truly fundamental principle of our law

or some most egregious oversight or misunderstanding before it could be

appropriate for this Court to contemplate an outright refusal to follow

Strasbourg authority at the Grand Chamber level.”

Concerned a prisoner’s right to vote.

There existed an absolute ban on prisoner’s voting - they claimed this was

a violation of their right to vote. They challenged the absolute ban on their

voting rights.

ECtHR, in a different case, said an absolute ban is incompatible with their

convention rights - Hirst (No 2).

Should the UK courts follow European jurisprudence or should they depart

from this?

They did not depart from the jurisprudence in this case.

Ghaidan v Mendoza [2004] UKHL 30,

Whether the term "spouse" in the Rent Act 1977 should be interpreted to include same-sex partners.

• Whether excluding same-sex partners from the definition of "spouse" amounted to unjustified discrimination under Article 14 (non-discrimination) in conjunction with Article 8 (right to respect for home) of the European Convention on Human Rights (ECHR).

• Whether section 3 of the Human Rights Act 1998 required courts to interpret the Rent Act to be compatible with the ECHR, even if that meant departing from its literal meaning

HL held: the exclusion of same-sex partners from the definition of "spouse" was unjustified discrimination and violated Godin-Mendoza's rights under Articles 8 and 14 of the ECHR

• clarified the scope and power of section 3 of the Human Rights Act 1998, emphasizing that courts should strive to achieve compatibility with Convention rights except where it would contradict the fundamental thrust of the legislation

Gilham [2019] UKSC 44,

• The decision extends whistleblowing protection to judicial office holders and, by implication, potentially to other office holders previously excluded from the ERA.

• It affirms the courts' willingness to interpret domestic legislation in line with ECHR rights, particularly where exclusion would result in unjustified discrimination167.

• The case is a landmark for judicial independence and freedom of expression within the legal system.

R (Kaitey) [2021] EWCA Civ

1875,

R (Nicklinson) v Ministry of Justice [2014] UKSC 38,

• Whether the blanket ban on assisted suicide under section 2(1) of the Suicide Act 1961 is a disproportionate interference with Article 8 ECHR rights.

• Whether the Director of Public Prosecutions (DPP) policy on prosecuting assisted suicide cases was sufficiently clear, especially for healthcare professionals and non-family carers239.

• Lambs, Nicklinson and Martin

• The Supreme Court, by a majority, dismissed the appeals and declined to issue a declaration that section 2(1) of the Suicide Act 1961 was incompatible with Article 8 ECHR

• The Court acknowledged that the current law may breach Article 8, but decided that Parliament should have the opportunity to debate and, if appropriate, amend the law before any judicial declaration of incompatibility is made

• Lady Hale and Lord Kerr dissented, arguing that the law was incompatible with Article 8 and that the Court should have made a declaration to that effect

• SC Told Parliament that the law on assisted suicide may not be compatible with human rights and should be reviewed but the law remains unchanged, but the case has prompted ongoing debate and legislative proposals regarding assisted dying in the UK

• but is this even effective?

• the extent to which the courts have considered themselves able to intervene in socially and ethically controversial human rights questions.

YL v Birmingham City Council and Others [2007] UKHL 27,

Was Southern Cross, a private care home contracted by a local authority to provide care, exercising “functions of a public nature” under section 6(3)(b) of the HRA, and therefore required to act compatibly with Convention rights

Held: Southern Cross was a private, profit-driven company providing services for a commercial fee, even if those services were socially important and funded by the local authority

• clarified the limits of the Human Rights Act’s reach over private entities delivering public services, highlighting the distinction between public funding and public functions.

Pham (Lord Carnwath); 95-98 (Lord Mance); 105-109 (Lord Sumption); 113-119 (Lord Reed)

“Given the fundamental importance of citizenship, it may be arguable that the power to deprive a British citizen of that status should be interpreted as being subject to an implied requirement that its exercise should be justified as being necessary to achieve the legitimate aim pursued... Such an argument has not however been advanced at the hearing of this appeal, and it would be inappropriate to express any view upon it.” Lord Reed.

• Appellant acquired British citizenship in 1995. He was in Yemen in 2010-11. SOS serviced notice to the appellant and made an order under s. 42 of the British Nationality Act, depriving the appellant of his citizenship because of his links to terrorist organisations; not in the public interest

• Appellant challenges this because he was not linked to terrorist activities, was married to a British citizen and has a child, and was of a good character.

• Q for the court = would it be disproportionate to deny the person his citizenship in circumstances where he would be stateless.

• Proportionality was a new issue in this case - different justices expressed views re: revoking a citizenship requires a good reason and proportionality must be applied.

• If the govt is trying to deny someone citizenship, this requires strict scrutiny of a heightened degree which requires different proportionality analysis. There would have to be strong reasons for denying him of his nationality- this is an important interest that demands justification.

R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16,

R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions and others [2021] UKSC

26, especially paras [98]- [130], [158] – [161].

R(Elan Cane) v Secretary of State for the Home Department [2021] UKSC 56, especially paras [35], [55]- [63].

R (Evans) v Regina (Evans) v Attorney General (Campaign for Freedom of

Information intervening) [2015] UKSC

• journalist at the guardian put a request under the freedom of information act 2000 to gain access to correspondence in which prince charles urged

  his personal political views on Ministers.

• s. 53 of FOIA 2000 confers power to an “accountable person” to override an order to publish information served on a government department.

• can the attorney general stop the information being given to the journalist and override the upper tribunal?

The Supreme Court ultimately sided with the journalist, finding that the Attorney General's certificate was invalid.

• said not sufficient justification

• Decision highlighted the importance of transparency and the need for strong justification for any interference with the public's right to access information

significance: the rule of law principle is here treated as a particularly potent constitutional principle, one which may justify reading down what appears to be the intention of the statute as enacted. 3/7 judges read it with rule of law. 4/7 found that a clearly explained decision that is reasonable will allow the responsible person to issue the section 53 override, however troubling that is for the rule of law.

R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22

the Supreme Court was faced with an ‘ouster clause’ that seemed to prevent judicial review of certain decisions—a situation that would have been inconsistent with the requirements of the rule of law. Indeed, Lord Sumption, with whom Lord Reed agreed, mounted a trenchant defence of parliamentary sovereignty, stating that the rule of law ‘applies as much to the courts as it does to anyone else, and under our constitution, that requires that effect must be given to Parliamentary legislation’.

Lord Carnwath, with whom some other Justices agreed, said that it was for the courts to decide the limits which the rule of law sets to the power to exclude judicial review. In contrast, Lord Sumption, with whom Lord Reed agreed, stated that the rule of law required that the courts give effect to parliamentary legislation.

R (on the application of AAA (Syria) and others) v Home Secretary [[2023]

UKSC 42

Liversidge v. Anderson [1942] AC 406

M v Home Office [1994] 1 AC 377

• home sec disobeys court order not to remove M (asylum seeker) to Zaire

  (African country).

• first case where it is certain that govt is subject to the enforcement

• jurisdiction of the high court - can compel the govt to do something w

  threat of contempt of court, rather than govt doing so as a matter of

  convention.

• Lord Donaldson (CA) at 306 - our unwritten constitution rests on a

  separation of powers ... and mutual recognition of those powers.

R v Coventry CC, ex p Phoenix Aviation [1995] 3 All ER 37,

R (Cornerhouse) v Director of Serious Fraud Office [2008] UKHL 60

R (on the application of Purdy) v DPP [2009] UKHL 45, esp. [40]-[43]

HM Treasury v Ahmed [2010] UKSC 2 (Lord Hope at paras 75-81).

ex p Pierson [1998] AC

539.

R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12

Gillan & Quinton v UK (2010) ECHR (Application no. 4158/05).

Somerset v Stewart (1772) 98 ER 499 (Lord Mansfield).

R. (World Development Movement) v. Foreign Secretary [1995] 1 W.L.R 386

(Divisional Court)

UK govt put a dam w no development value in Malaysia. It is a corrupt

activity, bribes. Malaysia in return brought British jets.

The court found that WDM had sufficient interest to apply for judicial review and that the Foreign Secretary acted illegally.

Emphasizes the importance of proper purpose in the exercise of statutory discretion, illustrating that government officials must operate within the confines of the powers granted to them by legislation. It also underscores the ability of non-partisan organizations to seek judicial review on matters affecting public interest.

 R (on the application of Miller); Cherry and others (Respondent)  v The Prime Minister [2019] UKSC 41 or Miller II

• a legal challenge to the advice of PM Boris Johnson, to Queen Elizabeth II to prorogue (ie shut down) Parliament for a longer than normal period of time in the run-up to the Brexit deadline October 2019.

• Worried govt was using the device of prorogation in order to silence Parliament and evade parliamentary scrutiny.

Govt: argues courts should stay out of political arena + respect separation of powers

Supreme Court held: The Prime Minister, exercising the prerogative of the Crown, cannot prorogue Parliament and prevent it scrutinising the Government without reasonable justification —>

• [36] ‘[W]hether the law recognises the existence of a prerogative power, or … its legal limits…are by definition questions of law. Under the separation of powers, it is the function of the courts to determine them.’ 

Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513 (HL)

the Home Secretary had refused to bring into force a statutory scheme for compensating victims of violent crime. In effect, this would have repealed the relevant provisions of the legislation.

raised important questions as to whether, under the separation of powers, it was appropriate for a government Minister to be allowed, in effect, to repeal an Act of Parliament, if not, whether it was appropriate for the court to intervene

House of Lords held that the Home Secretary had exceeded his powers. Yet, all five judges justified their conclusions by reference to the separation of powers doctrine. The majority concluded that the Home Secretary had acted unlawfully by breaching the duty to keep under active consideration the implementation of the statutory compensation scheme that was held to be implicit in the s 171(1) discretion. The majority was therefore willing to intervene in order to prevent executive usurpation of a legislative function.

The dissenting judges, however, considered it inappropriate for the court to intervene because it concerned legislation that was not yet fully in force, thereby making the issue a political one, which should have been resolved by Parliament and the executive.

Lord Mustill (dissenting):‘ It is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts have each their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws, and see that they are obeyed.

R (on the application of Coughlan) v Minister of the Cabinet Office [2022] UKSC 1

• where an ‘order’ made under section 10(1) of the Representation of the People Act 2000 was challenged as ultra vires.  This case raises separation of powers issues in relation to delegated powers and the use of parliamentary statements and other materials as an aid to statutory interpretation.

• the claimant tried unsuccessfully to invoke statements by the Home Secretary in Parliament about what the statute at issue was meant to do, and rely on such statements to contend for a narrow reading of the power to make pilot orders relating to how local elections could take place.

• The primary issue was whether the pilot orders were made outside the legal powers of the Minister for the Cabinet Office, specifically under section 10(2)(a) of the RPA.

• The Court rejected it for failing to meet the three Pepper v Hart criteria.

  • Ambiguous or obscure

  • Ministerial statements

  • Absurdity

• Post-Pepper v Hart history: A number of senior judges said that the ruling has (1) added little by way of help, and (2) created significant expense through ‘Pepper v Hart’ research. So in fact the dissenting judge ‘was the better prophet’  - Robinson v SSNI (Lord Hoffmann and others).  

Ex p Witham [1988]

Rare exceptions of judicial review of delegated legislation

R (on the application of Public Law Project) v Lord Chancellor [2016] UKSC 3

• (limits on use of subordinate legislation to fill out the statutory plan). 

  • Principle applied: "Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach."

  • Principle not applied in Ex p Coughlan – which found that authority to create voter ID laws was ‘clear and unambiguous’ in the statute.

Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223

It concerned the Sunday Entertainments Act 1932, which empowered local

authorities to license cinemas for Sunday performances subject to such

conditions 'as the authority think fit to impose'. The defendants banned

entry to children under the age of 15 and, in an important test case, the

commercial operators sought a declaration that the condition was ultra

vires. They failed.

The judgement of Lord Greene MR stands for judicial restraint. It is also

commonly read as using the word ‘unreasonableness’ in two different

ways: first, as shorthand for a group of related grounds of review of the

exercise of discretionary powers (the ‘umbrella’ sense of Wednesbury);

and, second, as an individual ground of review (the ‘substantive’ sense of

a ‘safety net’).

courts determine on a case by case basis as to what

considerations are relevant and which are irrelevant.

“[The] proposition that the decision of the local authority can be upset if it is

proved to be unreasonable, really [means] that it must be proved to be

unreasonable in the sense that the court considers it to be a decision

that no reasonable body could have come to. It is not what the court

considers unreasonable, a different thing altogether.”

• the courts can intervene if it thinks the decision is so unreasonable

that no reasonable authority could ever have come to this decision.

• this is a very strong statement of judicial restraint - a high

threshold for intervention. you cannot do so just because you, as a

judge, believe the decision is unreasonable; it must be because the

decision maker could not have reasonably made the decision.

Lord Greene formulated the test in terms of a decision 'so unreasonable that no reasonable authority could ever have come to it'.

Lord Greene’s judgement is commonly

read as using the word ‘unreasonableness’ in two different ways: first, as

shorthand for a group of related grounds of review of the exercise of discretionary

powers (the ‘umbrella’ sense of Wednesbury); and, second, as an individual

ground of review (the ‘substantive’ sense of a ‘safety net’).

Lord Greene: ‘I am not sure myself whether the permissible grounds of attack cannot be defined

under a single head. It has been perhaps a little bit confusing to find a series of

grounds set out. Bad faith, dishonesty – those of course, stand by themselves –

unreasonableness, attention given to extraneous circumstances, disregard of

public policy and things like that have all been referred to, according to the facts

of individual cases, as being matters which are relevant to the question. If they

cannot all be confined under one head, they at any rate, I think, overlap to a very

great extent. For instance, we have heard in this case a great deal about the

meaning of the word 'unreasonable'...[a word which] has frequently been used

and is frequently used as a general description of the things that must not be

done. For instance, a person entrusted with a discretion must, so to speak, direct

himself properly in law. He must call his own attention to the matters which he is

bound to consider. He must exclude from his consideration matters which are

irrelevant to what he has to consider. If he does not obey those rules, he may truly

be said, and often is said, to be acting 'unreasonably'. Similarly, there may be

something so absurd that no sensible person could ever dream that it lay within

the powers of the authority. Warrington LJ in Short v. Poole Corporation [1926] Ch

66 gave the example of the red-haired teacher, dismissed because she had red

hair. That is unreasonable in one sense. In another sense it is taking into

consideration extraneous matters. It is so unreasonable that it might almost be

described as being done in bad faith; and, in fact, all these things run into one

another...’

‘It is true to say that, if a decision on a competent matter is so unreasonable that

no reasonable authority could ever have come to it, then the courts can interfere.

That, I think, is quite right; but to prove a case of that kind would require

something overwhelming, and, in this case, the facts do not come anywhere near

anything of that kind. [The] proposition that the decision of the local authority can

be upset if it is proved to be unreasonable, really [means] that it must be proved to

be unreasonable in the sense that the court considers it to be a decision that no

reasonable body could have come to. It is not what the court considers

unreasonable, a different thing altogether. If it is what the court considers

unreasonable, the court may very well have different views to that of a local

authority on matters of high public policy of this kind...’

In the matter of an application by Noeleen McAleenon for Judicial Review [2024] UKSC 31(Lord Sales and Lord Stephens)

R (Majera) v Secretary of State for the Home Department [2021] UKSC 46, paras 27-42 

The Secretary of State sought to disregard an immigration bail order of the First Tier

Tribunal on the basis that it had been made out with jurisdiction. Instead, the

Secretary of State imposed stronger conditions than imposed by the tribunal on

the immigrant. The Supreme Court held that it was unlawful for the Secretary of

State to ignore the order of the tribunal as the tribunal had to be treated in the

same way as a court of competent jurisdiction and its orders, whether regular or

irregular, like those of courts of law, had to be obeyed.

Lord Reed also considered obiter the status of administrative decisions before

they are quashed. He suggested that it is only when an order of a court is made

recording a judgment of the court or quashing a decision, that administrative

decisions can be treated as a nullity. This reasoning suggests that the courts

might be set to depart from the nullity principle.

• if the high court/supreme court makes an order, even if it is in an excessive

jurisdiction, it must be followed. the only way to not follow it is to challenge the

ruling. this extends to ALL courts.

• there is an uncertain borderland between what is a court and what is not a

court.

• tribunal = court and its ruling must be obeyed.

bail order must be obeyed by the govt as it was an order of the court.

even if it was not a court, decisions made by administrative bodies have to

be obeyed until an order of the court quashes them.

Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546

GCHQ [1985] AC 374 (Lord Diplock)

Workers at GCHQ, the Government's top-secret 'listening base', were

employed under prerogative power (not statutory power).

• did judicial review apply to the exercise of prerogative power?

• YES - judicial review is not limited to statutory powers.

Court began to review + control the exercise of non-statutory powers

judgement:

Lord Diplock stated:

”Judicial review has I think developed to a stage today when... one can

conveniently classify under three heads the grounds upon which

administrative action is susceptible to control by judicial review.

‘illegality’, ‘irrationality’

‘procedural impropriety’.

Note: Lord Diplock's categorisation of the grounds of review in CCSU appears too

simplistic today.

Padfield v. Minister of Agriculture [1968] AC 997 (Lord Reid)

the Minister refused to appoint a committee of investigation into a complaint by milk producers in South East England that the price of milk in their

region was unduly low.

• The Court held that the Minister did not have an unfettered - unlimited - power to decide whether to appoint a committee of investigation.

That power had to be exercised in accordance with the policy of the Act, which was a question of law.

• it is a “may” word case - the Minister “may” set up a committee of

  investigation. he does not have to do anything.

• lord reid is aware that more statutes are using the “may” word

**it is the court which works out what the intentions of the statute is.

Lord Reid:

• Minister does not have an open-ended discretion - cannot say they do not want to do something for any reason.

• He is limited by the purpose of Parliament in creating the statute.

This = doctrine of proper purpose of the statute.

ex p Doody [1994] 1 AC 531 (Lord Mustill on reason-giving)

Lord Mustill regarded the giving of reasons to be

essential when the executive branch exercised its power to decide the minimum term for which murderers should be imprisoned.

however, he also stated that the common law does not

recognise a general duty to give reasons for an administrative decision

• default position is that due process and procedural fairness should be

  employed.

• we require more fair procedure than in the past

• first place to look is to the statute

• person affected cannot make worthwhile representations unless they know the gist of the decision against them

Lord Mustill also addressed the fact that the statutory regime did include some

• rights of prisoners to make representations, such as to a parole board after their minimum term had been served.

• the court can still use common law techniques to supplement statutory procedures

• judges beginning to encroach on sensitive territory

• they are not directly contradicting statute but they are insisting on greater protection.

Lord Mustill held that a prisoner whose future depends on the decision of the Home Secretary has the right to make representations including the right to know ‘the gist’ of what the Judiciary has recommended:

Osborn v Parole Board [2013] UKSC 61 (Lord Reed)

• Confirms prisoners’ right to an oral hearing before parole decisions where fairness demands it,

• Requires courts to independently assess procedural fairness rather than defer,

• Integrates common law fairness principles with ECHR rights under the Human Rights Act,

• Emphasizes fairness over administrative convenience or cost,

• And establishes a clear framework for when oral hearings are necessary, notably when important facts are disputed or significant explanations must be heard.

SC held that an oral hearing should have been

provided. this was because the decision in q turned upon

several disputed qs of fact re: claimant’s conduct and attitude.

these qs should have been resolved through an oral hearing.

do not think that the human rights act has taken over from judicial review of

the common law. HRA should supplement the protection offered by the common law.

55. The guarantees set out in the substantive articles of the Convention, like

other guarantees of human rights in international law, are mostly expressed at

a very high level of generality. They have to be fulfilled at national level

through a substantial body of much more specific domestic law. That is true in

the United Kingdom as in other contracting states. For example, the guarantee

of a fair trial, under article 6, is fulfilled primarily through detailed rules and

principles to be found in several areas of domestic law, including the law of

evidence and procedure, administrative law, and the law relating to legal aid.

The guarantee of a right to respect for private and family life, under article 8,

is fulfilled primarily through rules and principles found in such areas of

domestic law as the law of tort, family law and constitutional law. ... As these

examples indicate, the protection of human rights is not a distinct area of the

law, based on the case law of the European Court of Human Rights, but

permeates our legal system.

56. The values underlying both the Convention and our own constitution

require that Convention rights should be protected primarily by a detailed

body of domestic law. The Convention taken by itself is too inspecific to

provide the guidance which is necessary in a state governed by the rule of

law. ..

57. Domestic law may however fail to reflect fully the requirements of the

Convention. In that situation, it has always been open to Parliament to legislate

in order to fulfil the United Kingdom's international obligations; as it has done,

for example, in response to judgments of the European court concerning the

application of article 5(4). The courts have also been able to take account of

those obligations in the development of the common law and in the

interpretation of legislation. The Human Rights Act has however given

domestic effect, for the purposes of the Act, to the guarantees described as

Convention rights. It requires public authorities generally to act compatibly

with those guarantees, and provides remedies to persons affected by their

failure to do so. The Act also provides a number of additional tools enabling

the courts and government to develop the law when necessary to fulfil those

guarantees, and requires the courts to take account of the judgments of the European court. The importance of the Act is unquestionable. It does not

however supersede the protection of human rights under the common law or

statute, or create a discrete body of law based upon the judgments of the

European court. Human rights continue to be protected by our domestic law,

interpreted and developed in accordance with the Act when appropriate...

63. Against the background of those authorities, the error in the approach

adopted on behalf of the appellants in the present case is to suppose that

because an issue falls within the ambit of a Convention guarantee, it follows

that the legal analysis of the problem should begin and end with the

Strasbourg case law. Properly understood, Convention rights do not form a

discrete body of domestic law derived from the judgments of the European

court. ... It would be wrong ... to see the rights under the European Convention

as somehow forming a wholly separate stream in our law; in truth they soak

through and permeate the areas of our law in which they apply ...

Kennedy v Charity Commission [2014] UKSC 20, especially Lord Toulson:

133. The growth of the state has presented the courts with new challenges to

which they have responded by a process of gradual adaption and

development of the common law to meet current needs. This has always been

the way of the common law and it has not ceased on the enactment of the

Human Rights Act 1998, although since then there has sometimes been a

baleful and unnecessary tendency to overlook the common law. It needs to be

emphasised that it was not the purpose of the Human Rights Act that the

common law should become an ossuary.

Lord reed:

‘The purpose of a fair hearing is not merely to improve the chances of the

tribunal reaching the right decision.

The second value is the rule of law.

‘What fairness requires of the board depends on the circumstances.

• It is impossible to define exhaustively the circumstances in which an oral

hearing will be necessary, but such circumstances will often include the

following:

• how can administrators learn from these cases in the future?

is the function of judicial review not to learn from these cases? how can

individuals and officials follow decisions in the future?

lord reed gives a large amount of judicial guidance on how administrators should

follow decisions - an element of judicial legislation arising.

Where facts which appear to the board to be important are in dispute, or

where a significant explanation or mitigation is advanced which needs to be

heard orally in order fairly to determine its credibility. The board should guard

against any tendency to underestimate the importance of issues of fact which

may be disputed or open to explanation or mitigation.

Where the board cannot otherwise properly or fairly make an independent

assessment of risk, or of the means by which it should be managed and

addressed. That is likely to be the position in cases where such an assessment

may depend upon the view formed by the board (including its members with

expertise in psychology or psychiatry) of characteristics of the prisoner which

can best be judged by seeing or questioning him in person, or where a

psychological assessment produced by the Ministry of Justice is disputed on

tenable grounds, or where the board may be materially assisted by hearing

evidence, for example from a psychologist or psychiatrist. Cases concerning

prisoners who have spent many years in custody are likely to fall into the first

of these categories.

Where it is maintained on tenable grounds that a face to face encounter with

the board, or the questioning of those who have dealt with the prisoner, is

necessary in order to enable him or his representatives to put their case

effectively or to test the views of those who have dealt with him.

Where, in the light of the representations made by or on behalf of the prisoner,

it would be unfair for a “paper” decision made by a single member panel of the

board to become final without allowing an oral hearing: for example, if the

representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the

prisoner’s future management in prison or on future reviews.

Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 (Lord Sumption)

Against parliamentary sovereignty?

• A bank was subject to a statutory instrument prohibiting transactions for the purpose of inhibiting the production of nuclear weapons in Iran.

• restrictions on iran banks made it harder to finance the development of nuclear weapons.

• bank mellat argues they didn’t have anything to do with the production of nuclear weapons in iran - they should have had advance notice and the opportunity to make representations that the allegation did not apply to them before it was made.

the treasury said this was the making of a statutory instrument / delegated legislation - they could not have given the bank too much notice as their assets may not have still been in london by the time they made the statutory instrument.

• Ruling: In favour of Bank Mellat

• The common law duty to give advance notice and an opportunity to make representations to an individual against whom it was proposed to exercise a draconian statutory power depended on the particular circumstances in which the measure was made; that unless the statute expressly or impliedly excluded the duty, or consultation was impracticable or would frustrate the purpose of the direction, fairness required that the individual concerned should be afforded an opportunity to make prior

representations.

• supreme court took a tough view against the executive re: procedural

fairness

• they do not accept that the common law is excluded here, solely because there is a statutory instrument in place.

Lord Sumption at [35]:

'The duty of fairness governing the exercise of a statutory power is a limitation on

the discretion of the decision-maker which is implied into the statute. But the fact

that the statute makes some provision for the procedure to be followed before

or after the exercise of a statutory power does not of itself impliedly exclude

either the duty of fairness in general or the duty of prior consultation in

particular, where they would otherwise arise. As Byles J observed in Cooper v

Wandsworth Board of Works (1863) 14 CBNS 180 , 194, “the justice of the

common law will supply the omission of the legislature.”'

An important part of the case was that the measure was a statutory instrument

which had been laid before Parliament. Some authority suggested that the

principles of fairness do not apply to legislative acts.

Lord Sumption:

• distinguishes between primary and secondary legislation - position is different

between the 2.

• here, we are dealing with the activities of the executive branch.

the position in relation to secondary legislation is necessarily different as the

statutory instrument is made under executive power.

the supreme court said that this statutory instrument does not apply to large

sections of the community, where there would be general problems of

consultation. the SI is targeted towards specific banks.

• the form of the action is delegated legislation and is a decision aimed at

individual entities.

• in these circumstances, the SC says there is a stronger case for

representations having been made by individuals who have been seriously

affected.

judges are really saying that common law should not be pushed out of the

picture. it is central that they can upheld requirements of procedural

awareness.

1. I turn, therefore, to the implications of the fact that the direction is required to

be made in subordinate legislation, subject to parliamentary approval.

2. The Treasury submit that the legislative form of [their] direction takes it out of

the area in which the courts can imply a duty of fairness or prior consultation.

This is self-evident in the case of primary legislation. There is not yet a statute

into which such a duty of consultation can be implied. Parliament is not in any

event required to be fair. Even if a legitimate expectation has been created, the

courts cannot, consistently with the constitutional function of Parliament,

control the right of a minister, in his capacity as a member of Parliament, to

introduce a bill in either house: R (Wheeler) v Office of the Prime Minister

[2008] EWHC 1409 (Admin) at [49]; R (UNISON) v Secretary of State for

Health [2010] EWHC 2655 (Admin).

3. The position in relation to secondary legislation is necessarily different,

because a statutory instrument is made under powers conferred by statute.

These powers are accordingly subject to whatever express or implied

limitations or conditions can be derived from the parent Act as a matter of

construction. ...

4. Where the courts have declined to review the procedural fairness of statutory

orders on the ground that they have been subject to parliamentary scrutiny,

they have not generally done so on the ground that parliamentary scrutiny

excludes the duty of fairness in general or the duty of prior consultation in

particular. These decisions have generally been justified by reference to three closely related concepts which for my part I would not wish to challenge or

undermine in any way. First, when a statutory instrument has been reviewed

by Parliament, respect for Parliament's constitutional function calls for

considerable caution before the courts will hold it to be unlawful on some

ground (such as irrationality) which is within the ambit of Parliament's review.

This applies with special force to legislative instruments founded on

considerations of general policy. Second, there is a very significant difference

between statutory instruments which alter or supplement the operation of the

Act generally, and those which are targeted at particular persons. The courts

originally developed the implied duty to consult those affected by the exercise

of statutory powers and receive their representations as a tool for limiting the

arbitrary exercise of statutory powers for oppressive objects, normally

involving the invasion of the property or personal rights of identifiable

persons. Cooper v Wandsworth Board of Works 14 CBNS 180 was a case of

this kind, and when Willes J, at p 190, described the duty to give the subject

an opportunity to be heard as a rule of “universal application”, he was clearly

thinking of this kind of case. Otherwise the proposition would be far too wide.

While the principle is not necessarily confined to such cases, they remain the

core of it. By comparison, the courts have been reluctant to impose a duty of

fairness or consultation on general legislative orders which impact on the

population at large or substantial parts of it, in the absence of a legitimate

expectation, generally based on a promise or established practice. Third, a

court may conclude in the case of some statutory powers that parliamentary

review was enough to satisfy the requirement of fairness, or that in the

circumstances Parliament must have intended that it should be. It is

particularly likely to take this view where the measure impugned is a general

legislative measure. The reason is that when we speak of a duty of fairness,

we are speaking not of the substantive fairness of the measure itself but of the

fairness of the procedure by which it was adopted. Parliamentary scrutiny of

general legislative measures made by ministers under statutory powers will

often be enough to satisfy any requirement of procedural fairness. The same

does not necessarily apply to targeted measures against individuals.

Dover DC v CPRE Kent [2017] UKSC 79 (Lord Carnwath)

• planning is going ahead. people wanting to protect the countryside said no

  reasons had been given as to why the planning would go ahead when the

  plans = detriment to the environment etc.

• did they have a duty to give reasons? even though ministers had explicitly

  repealed a duty to do so in delegated legislation?

• there had been delegated legislation stating that reasons should have

  been given in this sort of case - when you were making a planning

  decision, reasons should have been given.

• however, this is burdensome on planning authorities, and planning process

  must be sped up. this requirement in delegated legislation was then

  abolished.

• protestors say without reasons the decision should be quashed. however

  local authority looked to the quashed delegated legislation - no duty to

  give reasons.

Lord Carnwath:

'Public authorities are under no general common law duty to give

reasons for their decisions; but it is well-established that fairness may in

some circumstances require it, even in a statutory context in which no

express duty is imposed (see R v Secretary of State for the Home

Department, Ex p Doody [1994] 1 AC 531...

• it all depends - there is no general duty to give reasons for decisions.

public authorities are NOT under a general duty but in some

circumstances it might be required for them to give reasons for the sake of

fairness.

• Similarly, in the planning context, the Court of Appeal has held that a

  local planning authority generally is under no common law duty to give

  reasons for the grant of planning permission... Although this general

  principle was reaffirmed recently in Oakley v South Cambridgeshire

  District Council [2017] 2 P & CR 4, the court held that a duty did arise

  in the particular circumstances of that case...

• lord carnwath: In my view Oakley was rightly decided, and consistent

  with the general law as established by the House of Lords in Doody.

• Although planning law is a creature of statute, the proper interpretation

  of the statute is underpinned by general principles, properly referred to

  as derived from the common law. Doody itself involved such an

  application of the common law principle of “fairness” in a statutory

  context, in which the giving of reasons was seen as essential to allow

  effective supervision by the courts. Fairness provided the link between

  the common law duty to give reasons for an administrative decision,

  and the right of the individual affected to bring proceedings to

  challenge the legality of that decision.

• Doody concerned fairness as between the state and an individual

  citizen. The same principle is relevant also to planning decisions, the

  legality of which may be of legitimate interest to a much wider range of

  parties, private and public... Here a further common law principle is in

  play. [The] principle of open justice or transparency extends as much

  to statutory inquiries and procedures as it does to the courts (see

  Kennedy v The Charity Commission [2014] UKSC 20; [2015] AC 455,

  para 47 per Lord Mance, para 127 per Lord Toulson). As applied to the

  environment it also underpins the Aarhus Convention, and the relevant

  parts of the [Environmental Impact Assessment Directive]. In this

  respect the common law, and European law and practice, march

  together...

• The existence of a common law duty to disclose the reasons for a

  decision, supplementing the statutory rules, is not inconsistent with the

  abrogation in 2013 of the specific duty imposed by the former rules to give

  reasons for the grant of permission. As the explanatory memorandum

  made clear, that was not intended to detract from the general principle of

  transparency (which was affirmed), but was a practical acknowledgement

  of the different ways in which that objective could normally be attained

  without adding unnecessarily to the administrative burden. In

  circumstances where the objective is not achieved by other means, there

  should be no objection to the common law filling the gap.

• Thus in Oakley the Court of Appeal were entitled in my view to hold that, in

  the special circumstances of that case, openness and fairness to objectors

  required the members’ reasons to be stated. Such circumstances were

  found in the widespread public controversy surrounding the proposal, and

  the departure from development plan and Green Belt policies; combined

  with the members’ disagreement with the officers’ recommendation, which

  made it impossible to infer the reasons from their report or other material

  available to the public. The same combination is found in the present case,

  and, in my view, would if necessary have justified the imposition of a

  common law duty to provide reasons for the decision.

• This endorsement of the Court of Appeal’s approach may be open to the

  criticism that it leaves some uncertainty about what particular factors are

  sufficient to trigger the common law duty, and indeed as to the justification

  for limiting the duty at all ... The answer to the latter must lie in the

  relationship of the common law and the statutory framework. The court

  should respect the exercise of Ministerial discretion, in designating certain

  categories of decision for a formal statement of reasons. But it may also

  take account of the fact that the present system of rules has developed

  piecemeal and without any apparent pretence of overall coherence. It is

  appropriate for the common law to fill the gaps, but to limit that

  intervention to circumstances where the legal policy reasons are

  particularly strong.

• As to the charge of uncertainty, it would be wrong to be over-prescriptive,

  in a judgment on a single case and a single set of policies. However it

  should not be difficult for councils and their officers to identify cases

  which call for a formulated statement of reasons, beyond the statutory

  requirements. Typically they will be cases where, as in Oakley and the

  present case, permission has been granted in the face of substantial

  public opposition and against the advice of officers, for projects which

  involve major departures from the development plan, or from other policies

  of recognised importance... Such decisions call for public explanation, not

  just because of their immediate impact; but also because they are likely to

  have lasting relevance for the application of policy in future cases.

• Finally, with regard to concerns about the burden on members, it is

  important to recognise that the debate is not about the necessity for a

  planning authority to make its decision on rational grounds, but about

  when it is required to disclose the reasons for those decisions, going

  beyond the documentation that already exists as part of the decision-

  making process. Members are of course entitled to depart from their

  officers’ recommendation for good reasons, but their reasons for doing so

  need to be capable of articulation, and open to public scrutiny. There is

  nothing novel or unduly burdensome about this...’

R (Moseley) v London Borough of Haringey [2014] UKSC 56 (Lord Wilson and Lord Reed)

Ruling - The Supreme Court held unanimously that the consultation had

been conducted unlawfully and made a declaration accordingly.

Lord Reed (interest based) vs Lord Wilson (openness+ participative democracy) <3

Lord Wilson:

“A public authority’s duty to consult those interested before taking a decision can

arise in a variety of ways. Most commonly, as here, the duty is generated by

statute. Not infrequently, however, it is generated by the duty cast by the common

law upon a public authority to act fairly. The search for the demands of fairness in

this context is often illumined by the doctrine of legitimate expectation... But

irrespective of how the duty to consult has been generated, that same common

law duty of procedural fairness will inform the manner in which the consultation

should be conducted.

Fairness is a protean concept, not susceptible of much generalised enlargement.

But its requirements in this context must be linked to the purposes of consultation.

In R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR 1020, this court

addressed the common law duty of procedural fairness in the determination of a

person’s legal rights. Nevertheless the first two of the purposes of procedural

fairness in that somewhat different context, identified by Lord Reed in paras 67

and 68 of his judgment, equally underlie the requirement that a consultation

should be fair. First, the requirement “is liable to result in better decisions, by

ensuring that the decision-maker receives all relevant information and that it is

properly tested” (para 67). Second, it avoids “the sense of injustice which the

person who is the subject of the decision will otherwise feel” (para 68). Such are

two valuable practical consequences of fair consultation. But underlying it is also

a third purpose, reflective of the democratic principle at the heart of our society.

This third purpose is particularly relevant in a case like the present, in which the

question was not “Yes or no, should we close this particular care home, this

particular school etc?” It was “Required, as we are, to make a taxation-related

scheme for application to all the inhabitants of our Borough, should we make one

in the terms which we here propose?”

Two further general points emerge from the authorities. First, the degree of

specificity with which, in fairness, the public authority should conduct its

consultation exercise may be influenced by the identity of those whom it is

consulting. Thus, for example, local authorities who were consulted about the

government’s proposed designation of Stevenage as a “new town” (Fletcher v

Minister of Town and Country Planning [1947] 2 All ER 496 at p 501) would be

likely to be able to respond satisfactorily to a presentation of less specificity than

would members of the public, particularly perhaps the economically

disadvantaged. Second, “the demands of fairness are likely to be somewhat

higher when an authority contemplates depriving someone of an existing benefit

or advantage than when the claimant is a bare applicant for a future benefit”.

Sometimes, particularly when statute does not limit the subject of the requisite

consultation to the preferred option, fairness will require that interested persons

be consulted not only upon the preferred option but also upon arguable yet

discarded alternative options.”

Lord Reed:

“I am generally in agreement with Lord Wilson, but would prefer to express my

analysis of the relevant law in a way which lays less emphasis upon the common

law duty to act fairly, and more upon the statutory context and purpose of the

particular duty of consultation with which we are concerned.

The common law imposes a general duty of procedural fairness upon public

authorities exercising a wide range of functions which affect the interests of

individuals, but the content of that duty varies almost infinitely depending upon

the circumstances. There is however no general common law duty to consult

persons who may be affected by a measure before it is adopted... A duty of

consultation will however exist in circumstances where there is a legitimate

expectation of such consultation, usually arising from an interest which is held to

be sufficient to found such an expectation, or from some promise or practice of

consultation...

This case is not concerned with a situation of that kind. It is concerned with a

statutory duty of consultation. Such duties vary greatly depending on the

particular provision in question, the particular context, and the purpose for which

the consultation is to be carried out. The duty may, for example, arise before or

after a proposal has been decided upon; it may be obligatory or may be at the

discretion of the public authority; it may be restricted to particular consultees or

may involve the general public; the identity of the consultees may be prescribed

or may be left to the discretion of the public authority; the consultation may take

the form of seeking views in writing, or holding public meetings; and so on and so

forth. The content of a duty to consult can therefore vary greatly from one

statutory context to another... A mechanistic approach to the requirements of

consultation should therefore be avoided.

Depending on the circumstances, issues of fairness may be relevant to the

explication of a duty to consult. But the present case is not in my opinion

concerned with circumstances in which a duty of fairness is owed, and the

problem with the consultation is not that it was “unfair” as that term is normally

used in administrative law. In the present context, the local authority is discharging

an important function in relation to local government finance, which affects its

residents generally. The statutory obligation is, “before making a scheme”, to

consult any major precepting authority, to publish a draft scheme, and, critically,

to “consult such other persons as it considers are likely to have an interest in the

operation of the scheme”. All residents of the local authority’s area could

reasonably be regarded as “likely to have an interest in the operation of the

scheme”, and it is on that basis that Haringey proceeded.

Such wide-ranging consultation, in respect of the exercise of a local authority’s

exercise of a general power in relation to finance, is far removed in context and

scope from the situations in which the common law has recognised a duty of

procedural fairness. The purpose of public consultation in that context is in my

opinion not to ensure procedural fairness in the treatment of persons whose

legally protected interests may be adversely affected, as the common law seeks

to do. The purpose of this particular statutory duty to consult must, in my opinion,

be to ensure public participation in the local authority’s decision-making

process...”

Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, [2016] AC 1355 (headnote and paras 123, 126-136 (Lord Neuberger); 143 (Lord Mance); 271-283 (Lord Kerr); 303-305, 308-313 (Lady Hale))

Re Finucane [2019] UKSC 7

It was claimed that a widow had a legitimate

expectation, based on assurance given by the Government, that a public inquiry

into the murder of her husband would be held.

1. From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be

allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context. And a matter sounding on the question of

fairness is whether the alteration in policy frustrates any reliance which the

person or group has placed on it. This is quite different, in my opinion, from

saying that it is a prerequisite of a substantive legitimate expectation claim that

the person relying on it must show that he or she has suffered a detriment.

2. In this case, it was argued for the respondent that it was incumbent on Mrs Finucane to show that she had suffered a detriment. That argument simply

does not avail in this instance, since the question of detriment can only arise,

if it arises at all, in the context of a substantive legitimate expectation. Here the

promise made did not partake of a substantive benefit to a limited class of individuals (as, for instance, in Ex p Coughlan); it was a policy statement about

procedure, made not just to Mrs Finucane but to the world at large.

The Supreme Court in a judgment given by Lord Kerr held that the Government had been entitled to resile from its assurance and to change its mind.

• Where political issues overtake a promise or undertaking given by government, and where contemporary considerations impel a different course, provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it.

While the widow had a legitimate expectation of such an inquiry, the government’s political decision not to hold it was not deemed unlawful in itself. However, the independent review was found inadequate to satisfy the investigative requirements of Article 2, leaving the state with a continuing duty to consider how to properly investigate the death

** i disagreee with this

R (A) v Secretary of State for the Home Department  [2021] UKSC 37, [2021] 1 WLR 3931

R (Friends of the Earth) v Heathrow Airport Ltd.

a judicial review challenge to a NPS supporting the building of a third runway at Heathrow.

challengers: argued that Minister of Transport was under a legal duty to take account of the Paris Agreement

The Supreme Court set out the general principles applicable in this context.

3 categories of consideration

1. Those clearly identified by the statute, expressly or impliedly, as considerations to which regard must be had.

• when statutes do not mandate considerations to be taken into account, the doctrine of relevancy collapses into the doctrine of irrationality.

• this = common feature of public law, where doctrines run together

• and they are not wholly separate principles.

  2. Those clearly identified by the statute as considerations to which regard must not be had.

  3. Those to which the decision maker might have regard if he thinks it right to do so.

• Considerations to which the decision-maker does not advert at all. Unless the consideration is obviously material (irrational not to take it into account), the decision is not affected.

• Considerations to which the decision-maker decides to give no weight.

This will only be unlawful if irrational.

On the facts the Court held in a judgment given by Lord Hodge and Lord Sales, the Secretary of State had given consideration to the Paris Agreement at [125], [129]

and [132] and his decision not to consider or give weight to other parts of it was not irrational.

Secretary of State for

Education and Science v Tameside Metropolitan Borough Council [1977] AC

1014.

courts have been called to determine the extent to which central govt can

impose policy preferences on local authorities

Ridge v Baldwin [1964] AC 40

• ground-breaking case in allowing principles of natural justice to be applied

to the statutory jurisdiction of a committee to dismiss a chief constable.

• The committee had not given the Chief Constable notice of the charges or an

opportunity to be heard. The Appellate Committee of the House of Lords held

that the committee had to observe principles of natural justice (or due

process).

• It moved away from the idea that such principles only applied to so-

called 'judicial' or 'quasi-judicial' functions. Referencing the shift, the judges

began to speak of 'procedural fairness' as a flexible concept applicable to

the exercise of statutory powers.

• The jurisdiction was closely linked with the fact that power exercised under

statute had to be exercised in accordance with principles that Parliament is

presumed to intend should be applied – such as the principles of natural

justice – and if such principles were not observed the decision was ultra

vires.

• Reflecting this, the decision in Ridge v Baldwin was declared null and

void. In Lord Reid's words:

'Time and again in the cases ... it has been stated that a decision given

without regard to the principles of natural justice is void... I see no reason

to doubt these authorities. The body with the power to decide cannot

lawfully proceed to make a decision until it has afforded the person

affected a proper opportunity to state his case.'

Anisminic

the HoL substituted their view for that of the Foreign Compensation

Commission.

ex p Page [1993] AC 682

- the general principle = decisions affected by errors of law can be quashed

on judicial review.

WHY?

• relative institutional competence - if the relevant issue is the

law’s meaning, courts should have control due to their legal

expertise.

• the independence of the judiciary - this allows the courts to

interpret the law objectively.

• however if the statute confers discretion re: controversial

policy qs, it may be more appropriate for this q to be left to

an elected decision maker.

Pearlman v Keepers and Governors of Harrow

School [1979] QB 56

**consistency

Lord Denning thought that it would

be “intolerable” if different decision-makers were allowed

to reach conflicting interpretations of legislation. he

thought that reviewing courts should always have the

ultimate power to determine the meaning of the law.

R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR

2557

the more objective a statutory term, the more likely the court is to

insist on the final word on questions of fit.

R v Sussex Justices, ex p McCarthy.[1924] 1 KB

256.

sets out the following principle: the law embraces a rule against actual bias and against apparent bias.

Pinochet (No 2).

• certain other interests can trigger the automatic disqualification rule

in this case, lord hoffmann’s association with a party involved in the case meant that he was involved in promoting the same causes in the same organisation as a party to the suit - per Lord Browne-Wilkinson.

this extension of automatic disqualification has been criticised because it creates uncertainty and judges may “withdraw to some extent from public life” - p. 524

Porter v Magill [2001] UKHL 67, [2002] 2 AC 357

HoL decided on a test to identify when there was a disqualifying level of bias.

• the courts must ask themselves whether the circumstances would lead

a fair-minded and informed observer to conclude that there was a real

possibility of bias.

• only a “real possibility” of bias is needed and a “probability” does

not need to be shown.

‘Whether the fair minded and informed observer having considered the facts, would conclude that there was a real possibility that the judge was biased.’

(Anderson) 2003

claimant argued that the home sec should not play a

role in determining how long those convicted of murder should spend in

prison before being considered for release on parole. this argument was

not about any individual home sec’s but any home sec’s - the position not

the person - as the decision should be taken by an independent judge and

not a Minister.

Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, [60].

• ECtHR has been ‘reluctant to enunciate principles’ that allow a line to

  be drawn between administrative decisions that do and do not engage

  Art 6(1)

in this case the supreme court held art 6(1) did not apply.

ex p Tarrant [1985] QB 251

legal representation was necessary in

cases where prisoners were alleged to have committed

offences of mutiny because they raised complex qs. however it

would not normally be unfair to deny representation in more

straightforward cases.

R (Bourgass) [2016]

• a prisoner was placed in solitary

confinement for several months as it was alleged that he

had been involved in an assault. he was told very little

substance regarding the allegations. he was only told that

he presented “an unacceptable risk to other prisoners”. this

was not enough to discharge the authorities duty to give

notice.

• when determining what information should be disclosed,

“overriding interests” like the safety of informants could be

taken into account.

• however this did not mean that no meaningful information

could be given to the individual. it is still incumbent on

authorities to inform the person in general terms of the gist

of reasons why they were in solitary confinement.

• the Carltona doctrine does not allow holders of an independent and

separate statutory office, like senior prison officials, to exercise powers

conferred by Parliament upon a SOS. the doctrine only allows civil servants to

exercise ministerial powers because, constitutionally, decisions of civil

servants are made by the Minister herself.

Imam [2023]

The remedies are all discretionary.

• quashing order

• prohibiting order

• injunction

• declaration

• mandatory order

Carltona

• Established Carltona principle - Requirement that discretionary power is exercised only by the person named in the statute, but Minister’s decision can be delegated to someone within the relevant department so that the Minister remained ultimately accountable to Parliament for their actions (but cannot make decision for them)

Lord Greene MR: Ministers’ functions are ‘so multifarious that no Minister could ever personally attend to them’: public business, he said, ‘could not be carried on’ if Ministers were to have to exercise all of their powers personally

in Re Golden Chemical Products Ltd, the Secretary of State was authorised by statute to take steps to arrange for the winding up of a company where this appeared to be in the public interest. In fact, the power had actually been exercised by a civil servant in the Secretary of State’s department, in apparent breach of the requirement that discretionary power is exercised only by the person named in the statute.

Applied Carltona principle, court in Golden Chemical held that the civil servant could lawfully exercise the ministerial power. —→ soooo uh

Adams

• a counter to Carltona principle but ultimately upholding parliamentary sovereignty

• The case arose in light of the detention without trial of the appellant on the ground that he was suspected of involvement in terrorism (like trump deportation stuff)

• The law said an ‘interim custody order’ (ICO) ‘of the Secretary of State’ could be signed by him or by a junior Minister, and it was but no Secretary of State involved in decision

• Appellant argue that the ICO was invalid and he had been in unlawful custody.

• Lord Kerr: Parliament intended that the power to make ICOs was to be exercised personally by the Secretary of State. (Carltona doctrine did not apply) —> Accordingly, the ICO was invalid;

• But criticism: Lord Sumption and Lord Brown

1. the court misread the wording of the statutory power which authorised Ministers of State to exercise the Secretary of State’s power to detain

2. introduced uncertainty about the proper application of the Carltona doctrine + threaten govt

In response to these criticisms, the government introduced an amendment to the Northern Ireland Troubles (Legacy and Reconciliation) Bill 2023 then going through Parliament.

• This legislation reversed the Adams ruling concerning the court’s interpretation of the 1972 Order, which had conferred the power to Ministers to make ICOs.

• Prevent Adams from having his convictions overturned + receiving compensation, validated all ICOS + prevent Carltona doctrine from being undermined

  Confirms two points:

  1. practical importance of the Carltona doctrine and its operation for central government

  2. the ability of the government and Parliament to reverse the effect of a court ruling

R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213

*legitimate expectation of public authorities

If a public body indicates that it will exercise its power in a given way but then goes back on its word, does it thereby act unlawfully? If the indication given by the public body generates what is known as a legitimate expectation, the answer to that question may be ‘yes’.

• a legitimate expectation will only arise on the strength of an undertaking given by a public body that is ‘clear, unambiguous and devoid of relevant qualification’,

• Additional restrictions on the circumstances in which a legitimate expectation can arise were highlighted by Begbie.

• Peter Gibson LJ stated that an ‘opposition spokesman, even the Leader of the Opposition, does not speak on behalf of a public authority’, such that ‘when a party elected into office fails to keep its election promises, the consequences should be political and not legal’. —> i disagree

• It was also held in Begbie that the claimant could not establish a legitimate expectation because this would run directly contrary to the scheme Parliament had laid down. The statute envisaged that funding would continue beyond primary education only where, on the particular facts of the case, the Secretary of State was satisfied that that should happen—yet the claimant’s legitimate expectation, if accepted by the court, would have required funding to be continued in a broad category of cases without reference to the circumstances of individual children.

The unfairness for the less well informed that is apparent in this distinction has occasionally led courts to the conclusion that it should—counterintuitively—be possible for someone to have a legitimate expectation based on a policy that they did not know about at the relevant time.

• The ‘balancing’ exercise undertaken in Coughlan is now acknowledged to amount to a form of ‘proportionality’ test,

• approach adopted in Coughlan was highly interventionist. It has been argued that the court was ‘dismissive’ of the health authority’s arguments and failed to adhere to the orthodox view

• that ‘discretionary decisions as to the allocation of finite resources subject to many competing individual demands [should] generally [be] left to bodies subject to democratic accountability and with a complete view of all the claims upon those resources, not the courts’

• it is important to bear in mind that the court indicated that such an approach would be adopted only in very specific circumstances—such as those of Coughlan itself—‘where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract’

Lord Woolf, drawing on R v Brent LBC, ex p Gunning (1985) 84 LGR 168,

‘It is common ground that, whether or not consultation of interested parties

and the public is a legal requirement, if it is embarked upon it must be carried

out properly. To be proper, consultation must be undertaken at a time when

proposals are still at a formative stage; it must include sufficient reasons for

particular proposals to allow those consulted to give intelligent consideration

and an intelligent response; adequate time must be given for this purpose; and

the product of consultation must be conscientiously taken into account when

the ultimate decision is taken.’

R (Bibi) v Newham London Borough Council,

it was held that a local authority’s promise to provide the claimant with permanent accommodation gave rise to a substantive legitimate expectation that such accommodation would indeed be provided. Yet when it came to protecting the expectation, the court merely required the local authority—which, in deciding that the claimant should not be offered permanent accommodation, had ignored its earlier promise—to reconsider the matter, taking due account of the legitimate expectation that it had engendered (rather than forcing them to provide the specific performance)

Rowland v Environment Agency

we should note that the courts’ capacity to protect legitimate expectations is severely limited where the expectation relates to unlawful conduct.

• the owners of a house were led by the respondent to believe that an adjoining stretch of the River Thames was not subject to public rights of access. It later transpired that such rights did exist, but the Environment Agency had no legal power to extinguish them. The Court of Appeal therefore concluded that although the claimant had a legitimate expectation concerning the status of the relevant stretch of river,¹⁹⁸ the Agency could not be ordered to fulfil the expectation because it lacked legal capacity to do so. Instead, the court held that the Agency was required to act towards the claimant as favourably as its limited legal powers permitted—by not drawing attention to the existence of the rights of access

Secretary of State for the Home Department v AF [2009] UKHL 28.

The controlee had to be given sufficient information about the allegations to enable

him to give effective instructions to the special advocate. In building on -

tightening - Lord Mustill’s approach in Doody, Lord Phillips again played up the

importance of both instrumental and dignitarian considerations in procedural

protection:

• as part of the attempt to combat terrorism, some individuals were detained

even though they have not been convicted of a terrorist offence. this is a

deprivation of liberty. this was challenged on the basis that even though

parliament has passed statute allowing this, this undermines / violates fair

procedure. individuals wanted to contest allegations against them. the

executive states that they have convincing information but this cannot be

thrown into the public domain.

• HoL take the view that YES, there is an irreducible minimum of procedural

interest in cases of procedural interest. they do not expect all information

to be released as this would hinder the work of the secret service.

however, the outline / summary of the case must be gifted to the individual

so they have a chance to understand what the case is saying.

R (Pathan) v Secretary of State for the Home Department [2020] UKSC 43

Procedure vs Substance?

Facts:

• Mr Pathan applied for leave to remain. He was supported by a sponsor

  employer.

• The Home Office revoked his employer’s sponsor’s licence – for reasons

  unconnected to Mr Pathan. He was not informed.

• Mr Pathan's application was rejected. His stay in the UK was rendered

  unlawful. the sponsor was “dodgy” and he cannot lawfully remain in the UK.

judgement:

The Supreme Court unanimously found that failure to tell Mr Pathan of the

revocation of the licence was a breach of the duty of fairness. A majority held

that he could have taken steps to try to amend his application.

However, the majority – Lord Kerr, Lady Black and Lord Briggs – held that there

was nonetheless no duty to extend time for Mr Pathan to make representations

(the opportunity for which had passed). To allow this would be to grant an

extended period of leave, which was a matter of substance rather than procedure

(Lady Black and Lord Kerr at [108]). In other words, Mr Pathan’s complaint was

really that the rules requiring a licensed sponsor, which did not provide for any

interim grace period or extension of leave if a sponsor licence was revoked, were

unfair – a question of substance.

(Re Poyser and Mills’s Arbitration [1963] 1 All ER 612).

Reason-giving

As for what the obligation to give reasons actually entails, classic authority

establishes that they must be proper, intelligible and adequate, dealing with

the substantive points which have been made

• how detailed do these reasons have to be? as stated above, the reasons

  must be proper, intelligible, adequate, and they must deal with the main

  points that have been made.

• it is not expected that everything will be covered in much detail .

elaborated in South Buckinghamshire DC v Porter [2004] UKHL 33,

Lord Brown elaborated on this in another much-cited passage which further

highlights the role of judicial tailoring:

• ‘Reasons can be briefly stated, the degree of particularity required

  depending entirely on the nature of the issues falling for decision. The

  reasoning must not give rise to a substantial doubt as to whether the

  decision-maker erred in law, for example by misunderstanding some

  relevant policy or some other important matter or by failing to reach a

  rational decision on relevant grounds. But such adverse inference will not

  readily be drawn. The reasons need refer only to the main issues in the

  dispute, not to every material consideration.’

R (Oakley) v South Cambridgeshire DC [2017] 1 WLR 3765

the court held that a duty to give reasons for planning decisions, whilst it was not a general duty, did arise in the particular circumstances of that case: where the development would have a “significant and lasting impact on the local community”

Of the last point, Elias LJ + Patten LJ:

“The significance of that fact is not simply that it will often leave the reasoning obscure. In addition, the fact that the committee is disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people suggests that some explanation is required ... the dictates of good administration and the need for transparency are particularly strong here, and they reinforce the justification for imposing the common law duty.”

councillors never gave proper reasons for why they failed to follow professional recommendations and decided to go along with the planning decision.

CoA - reasons should have been given. they quashed the decision - it was unreasonable.

it was a contentious subject, involving large and important

environmental issues. there was a need for transparency.

R v Secretary of State for the Environment ex p Kirkstall Valley Campaign

Ltd [1996] 3 All ER 304

Principles of bias not limited to judicial or quasi-judicial function. Planning

decisions could not be made or be made in the presence of persons with a

personal or pecuniary interests in such decisions.

R (Good Law Project and Runnymede Trust) v Prime Minister [2022] EWHC

298

Principles of bias not applicable to recruitment of a head of testing in

government during pandemic. This was not a relevant 'adjudicatory' function.

In other words, principles of bias are not applicable across all of administrative

decision-making.

Nottinghamshire CC v Secretary of State for the Environment

• Courts would not get involved unless the subject matter was something really

striking.

• Courts did not feel qualified to decide whether this was unreasonable.

Guidance for local authorities on expenditure targets, made under the Local

Government Planning and Land Act 1980, laid before Commons and approved by

resolution. Nottingham and Bradford Councils challenged the targets.

Lord Scarman + Lord Templeman

In a much-cited passage in Kennedy v Charity Commission [2014] UKSC 20,

Lord Mance would later declare [51]:

‘The common law no longer insists on the uniform application of the rigid test of

irrationality once thought applicable under the so-called Wednesbury principle...

The nature of judicial review in every case depends on the context.’

R (Richards) v Environment Agency [2022] EWCA Civ 26, paras 81-86

(declarations).

The claim concerned the emission of noxious gases from a landfill

site. The Judge had made a declaration setting out how the Environment Agency

would have to do in the future to ensure it complied with positive obligations under

the HRA to protect people’s rights under Article 8 and 2.

Prohibitions del Roi (1607)

*Rule of Law

Common law cases were "not to

be decided by natural reason but by artificial reason and judgement of

law, which law is an art which requires long learning and experience...”

• the king believed he could judge cases in court because he was the

  source of law. courts said that resolving legal disputes involves specialised training and knowledge of the law. the king did not have this special training in law and thus cannot decide on legal issues.

Case of Proclamations (1611)

The King cannot change any

part of the common law, nor create any offence, by his proclamation,

which was not an offence before, without parliament.” And ‘"The King has

no prerogative but that which the law of the land allows him.’

• invoked in Miller I

• King does not have the ability to change common law.

• the Monarch did not have the prerogative power to create an offence

  by himself, or do anything by proclamation which should be made by

  Parliament.

• the King only has prerogative power to the extent which it is

  recognised by the common law / statutory law.

Ellen Street Estates Ltd v Minister of Health[1934] 1 KB 590

Legal issue: Can a later Act of Parliament impliedly repeal the provisions of an earlier Act, even if the earlier Act contains wording intended to bind future Parliaments?

• The Court of Appeal held that the doctrine of implied repeal applies: a later Act of Parliament can override an earlier Act if the two are inconsistent, even if the earlier Act tries to bind future Parliaments or requires express repeal.

The case is a leading authority on parliamentary sovereignty and the doctrine of implied repeal: Parliament is supreme and cannot bind future Parliaments, and a later statute will prevail over an earlier, inconsistent statute even without express words of repeal

BBC v Johns

Legal issue: Whether the BBC, as a corporation created by royal charter, was entitled to Crown immunity from taxation, and whether the Crown could create new prerogative powers (such as tax exemptions) for entities like the BBC

The court emphasized that only Parliament, not the Crown, could grant tax exemptions. The doctrine of royal prerogative could not be used to create new powers or privileges, such as tax immunity, in the modern era

Lord Diplock: “It is 350 years and a civil war too late for the Queen’s courts to broaden the royal prerogative”

*Limits of royal prerogative power, separation of powers, judicial intervention