Recent developments – Judicial Review and Prerogative Powers

For a useful account tracing the approach of the courts to judicial review of prerogative powers see speech by Lord Justice Richards “The International Dimension of Judicial Review” of 7 June 2006.  Richards LJ discusses the cases we discussed in tutorial including CCSU; CND; R(Abbasi); and R(Al-Jeddah).  

Full transcript of speech available at: http://www.judiciary.gov.uk/publications_media/speeches/2006/sp070606.htm

Richards LJ states: 

“It was long considered that, whereas there could be judicial control over the exercise of statutory powers, prerogative powers were beyond the scope of judicial review.   

That view met its end in a case in 1984, arising out of a battle between the government and the civil service unions over a decision to change the terms and conditions of staff at GCHQ without prior consultation with the unions:  CCSU v Minister for Civil Service [1985] 1 AC 374.  The House of Lords held that it is not the source but the subject-matter of a power that determines whether it is susceptible to judicial review.  Thus the fact that a minister is exercising a prerogative power rather than a statutory power is not itself a decisive factor.  Whether the courts can control the exercise of the power depends on the particular subject-matter. 

That principle is one of great importance, as we shall see, but their Lordships also made clear in their judgments that, among the powers considered not to be susceptible to judicial review by reason of their subject-matter were prerogative powers such as those relating to the conduct of foreign affairs, the making of treaties or the defence of the realm.  Areas of high policy of this kind were regarded as non-justiciable.”  CCSU opened the door for a greater degree of judicial scrutiny over the exercise of prerogative powers, however, the door remains closed with respect to those non-justiciable questions: Examples:British Airways Board v Laker Airways Ltd [1984] 1 QB 142: “accordingly it would be strange if in this field [of foreign policy] the courts and the executive spoke with different voices and they should not do so ….” 

R(CND) v Prime Minister & Others [2002] EWHC 2777: High Court held that: (1) courts had no jurisdiction to decide on matters of international treaty law which had not been incorporated into domestic law via legislation – hence they refused to give an advisory opinion on whether it would be lawful for the HMG to take military action in Iraq without a second UN Security Council Resolution (2)  a court ruling would be damaging to international relations. 

R (Jones and Others) [2006] UKHL 16: House of Lords held that no crime of aggression existed in domestic law and a consideration of such a crime in the courts would entail a review of the “transactions between sovereign nations on the plane of international law”. 

R(Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 Court of Appeal held: (1) no enforceable duty to make representations/ diplomatic negotiations etc to intervene to protect a British citizen suffering at the hands of a foreign state (2) but a legitimate expectation that the Foreign Secretary would act on statements of policy – but these only limited to certain circumstances where the HMG would “consider making representations”. 

R (Al-Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWHC 972: by reason of nationality the state had no standing to make a formal claim on his behalf –  distinguished from Abbasi because a non-British national. Irrespective of this – these decisions are located within the context of foreign policy and therefore an area where the courts are cautious to tread.  R(Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327: UN Security Council Resolution 1546 authorised detention of dual British-Iraqi national contrary to requirements of Article 5 ECHR (arbitrary detention) – the former “trumped” the latter such that Convention rights could not be relied on for the time being when qualified by a UNSCR. 

R (Bancoult) v Secretary of State for Foreign Commonwealth Affairs  [2006] : Orders in Council may be subject to judicial review under the modern law.

[NB – Richards LJ also includes cases on extraterritorial jurisdiction under Article 1 ECHR regarding the jurisdiction of domestic courts to review, those acts carried out by
UK authorities on foreign soil, for their compatibility with the Convention rights. Eg see R(B); Bankovic; R(Al-Skeini); and R(Abbasi) and R(Al-Jeddah) discuss this point too.]

On 12 December 2006, the Court of Appeal gave judgment in R (on the application of Gentle & Clarke) v. the Prime Minister, the Secretary of State for Defence and the Attorney General [2006] EWCA Civ 1690 concerning judicial review of the refusal by the government to hold an independent inquiry into the circumstances which led to the invasion of Iraq.  The Court held at [84] that “Such an inquiry would inevitably involve, not only questions of international law, but also questions of policy, which are essentially matters for the executive and not the courts”.

The A & Others litigation: Human Rights and Terrorism

Belmarsh CaseThe House of Lords decision in A & Ors v Secretary of State for the Home Department [2004] UKHL 56 demonstrates that the judiciary can act as an important constraint against executive excesses in safeguarding human rights. The Lords ruled that the indefinite detention without trial of non-nationals suspected of committing terrorist offences , who could not be deported, violated Article 5 of the European Convention on Human Rights (right to liberty). Article 14 (non-discrimination) was also violated because the measures were discriminatory as they only applied to non-nationals whereas a national could be just as likely to commit a terrorist offence. Thus the Lords quashed the 2001 Statutory Order, derogating from Article 5 of the Convention and declared Part IV of the Anti-Terrorism Crime and Security Act 2001 as incompatible with Articles 5 and 14 of the ECHR.See Liberty’s response to the ruling, detailing its significance and likely implications:-http://www.liberty-human-rights.org.uk/publications/pdfs/lag-lords-ruling-atcsa.pdfThe full judgment is available at:http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htmControl OrdersIn response to the A & Ors decision in December 2004, the Government introduced control orders under the Terrorism Bill 2005. The House of Lords defeated the Commons over the Bill.http://news.bbc.co.uk/1/hi/uk_politics/4338737.stmUnder the Prevention of Terrorism Bill 2005, control orders were introduced – replacing Part IV of the Anti-Terrorism Crime and Security Act 2001. There are 2 types – one requiring a derogation from Article 5 ECHR, one not.http://www.homeoffice.gov.uk/security/terrorism-and-the-law/prevention-of-terrorism/Challenges to control orders have been through the courts, culminating in the decision of the Court of Appeal in August 2006 where the original control orders were declared a “deprivation of liberty” contrary to Article 5.  The Home Secretary has been given leave to appeal to the House of Lords. http://www.guardian.co.uk/frontpage/story/0,,1835412,00.htmlFor an excellent chronological overview of events from A in [2004], the control order regime, the second decision in A in 2005 concerning the admissibility of evidence obtained through torture, as well as a snapshot of the US position see speech by Lord Phillips, Lord Chief Justice on 19 October 2006.http://www.judiciary.gov.uk/publications_media/speeches/2006/sp191006.htmThe Terrorism Act 2006Note that the controversy surrounding the Terrorism Act 2006 concerns 28-day (reduced from 90-days) and the offence of “glorification of terrorism”. (It does not deal with control orders)http://news.bbc.co.uk/1/hi/uk_politics/4715478.stm For an overview of how recent terrorism legislation fits within political debate see:http://politics.guardian.co.uk/attacks/ A & Ors v Home Secretary (No 2) [2005] UKHL 71.Prohibition on torture (Secretary of State argued that the admission of evidence obtained through torture at SIAC was not precluded by law). Question: Could SIAC, when hearing an appeal under ATCSA by a person detained under that Act, receive evidence “which has or may have been procured by torture inflicted, in order to obtain evidence, by officials of a foreign state without the complicity of the British authorities?  HL unamanimously held: They all noted that the prohibition of torture had long been established as a constitutional principle of this land. Held that torture evidence could not be admissible.  Lord Bingham: common law principles “compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice”   Standard of proof required before torture evidence excluded Majority: evidence should not be admitted if it is concluded on a balance of probabilities that it was obtained by torture.  Minority (went further) excluded evidence unless satisfied that there was no real risk that it had been obtained by torture. Lord Nicholls: the approach of the majority “would place on the detainee a burden of proof which, for reasons beyond his control, he can seldom discharge. In practice that would largely nullify the principle, vigorously supported on all sides, that courts will not admit evidence procured by torture”.