http://www.thelawyer.com/cgi-bin/item.cgi?id=128615  

The Lord Chief Justice Lord Phillips has called on the government to stay away from the selection of judges in the wake of ‘The Governance of Britain’ green paper published by the Ministry of Justice. Phillips claims that the Blair administration’s shake-up of the justice system had important implications for the independence of the judiciary.  

This ties into public law and the issue of keeping judges/judicial system as a unbiased third party that should interpret statues and Acts of Parliaments as they see fit. This occurs when ambiguity exists in certain statutes. The Rule of Law, as we have seen, claims that no governmental figure shall be above the law. Keeping judges as unbiased mediators of the law helps this – Dicey claimed ‘equality before the law – equal subjection of all classes to the ordinary law.’ It is vital that the courts serve as an unbiased body independent of the legislature which made the law, and that they act independently of the executive in interpreting the meaning of laws.

Phillips came out explicitly against any suggestion of electing judges, putting himself in opposition to the green paper published by the MoJ this year.  I’m only aware of one Commonwealth country where parliament is involved in judicial appointments, and that is Mozambique. I, for one, can see no need for such an innovation in the UK.” 

Also touches on separation of power (particularly question 5 of tutorial – sep of power )

By Tariq Teja 

“Control Orders Breach Human Rights, Lords Rule”

Daily Telegraph, 31/10/2007

The newspaper article deals with an objection by senior judges to the 18 hour home curfew
as it breaches the right to liberty (article 5 of the European Convention on Human Rights (ECHR)) and the right to fair trial (article 6 ECHR).Furthermore, they held that a 12-hour curfew was permitted and that suspected terrorists should be subject to “civil fair trial procedures”. which has been breached in some cases by the “special advocate procedure” .

Full story at:

http://www.telegraph.co.uk/news/main.jhtml;jsessionid=GMQFNYKNM215JQFIQMFCFF4AVCBQYIV0?xml=/news/2007/10/31/ncontrol131.xml

The foundation of the Rule of Law, as a moral principle, has been undermined, because
the human rights (including the right to liberty)  of persons subject to control orders have not been protected.

“Control orders breach human rights, law lords say”Guardian Unlimited, 31/10/2007 The government must rethink some aspects of control orders imposed on terrorism suspects, the law lords said today, while ruling that the overall system can remain in place. In a complex and lengthy series of decisions, Britain’s most senior judges said that the most restrictive aspect of the regime, an 18-hour home curfew, breached the human right to liberty. However, they held that shorter curfews, possibly up to 16 hours, were acceptable.

Full story at:

http://www.guardian.co.uk/terrorism/story/0,,2202266,00.html  

By Joanna Glajzer and Alec Liong   

Further information can be found at: 

BBC Q&A Control Orders

http://news.bbc.co.uk/1/hi/uk/6268959.stm

Control Orders: Key cases October 2007

http://news.bbc.co.uk/1/hi/uk/7070391.stm 

The Times- 22^nd October 

http://business.timesonline.co.uk/tol/business/law/article2709537.ece

“High drama of appeals at new Supreme Court may go out on television” 

The Supreme Court:

Under the Constitutional Reform Act 2005, the Supreme Court is being created, ending the Lord Chancellor’s position as being the head of the judiciary and the role of the House of Lords as being the highest court in England. The 12 law lords, headed by Lord Bingham of Cornhill, are to become the first justices of the supreme court which is scheduled to open in October 2009 in Parliament Square.

The Court will:

— Hear appeals on arguable points of law of general public importance

— Act as the final court of appeal in England, Wales and Northern Ireland

— Hear appeals from civil cases in England, Wales, Northern Ireland and Scotland and criminal cases in England, Wales and Northern Ireland

— Assume the devolution jurisdiction of the Judicial Committee of the Privy Council. The Commonwealth jurisdiction of the council will remain unchanged.

The current law lords (Lords of Appeal in Ordinary) will remain as members of the House of Lords when the supreme court opens. However new appointees, who will be selected by a new commission, will not be members of the Lords.

Latest news:

Cameras will be allowed to broadcast high-profile hearings, such as the legality of detaining terror suspects without trial, before the new supreme court on television. Judges say that Jack Straw, the Justice Secretary, is keen to permit cameras into the court as part of the aim to make it more transparent. But Straw has indicated to judges that he does not favour allowing cameras into jury trials. Judges widely oppose it because they perceive it as a step towards American-style justice that could damage the nature of court proceedings. Mr Straw has told judges that he wants to proceed but only with their full support. Senior judges are said to be in favour of the plan. (Source: Department for Constitutional Affairs)

Summary by Abirami Ragukaran and Sonum Bagha

The Queen’s speech emphasised the apparently new open and transparent Labour Government under Brown and set out his legislative agenda.

Some of the proposed bills and measures are as follows:  

“… 

Terrorism – Post-charge questioning and possible extension of pre-charge detention beyond 28 days

Education – Raises age of youngsters in education or training to 18

Energy – Bill paving the way for new generation of nuclear power plants

Climate change – New powers to meet target of cutting CO2 by 60% by 2050

Constitutional reform – Give MPs formal say over going to war

Health – New regulator with power to fine hospitals which fail to meet hygiene standards

Work: Consider extending flexible working to parents of older children

…”

See full article and links to others at:

http://news.bbc.co.uk/1/hi/uk_politics/7079333.stm

On 25 October 2007, Gordon Brown set out his plans to write the next chapter in the story of British civil liberties and pledged his commitment to a British Bill of Rights in a speech at the University of Westminister.

Mr Brown said that the British Bill of Rights would “entrench and enhance” individual freedoms.  Yet on the other hand, the Prime Minister stated that the bill would set out the responsibilities “that flow from British citizenship”.  He did not rule out controversial plans for ID cards nor the extension of the holding of terrorist suspects beyond 28 days but said that the latter would be subject to scrutiny.

See a summary of the meaning of a written constitution in the UK – as well as links to a summary of the Prime Minister’s speech on liberty and other documents at:

http://www.politics.co.uk/issue-briefs/domestic-policy/constitution/written-constitution/written-constitution-$366652.htm

This follows the publication on 3 July 07 of the Green Paper, “The Governance of Britain”. Gordon Brown said that the Green Paper sets out for  “a new British constitutional settlement that entrusts more power to parliament and the British people”. This “routemap” (rather than a “final blueprint”) concerns the shifting of power from the executive to Parliament ( for example through limits on the exercise of prerogative powers such as the declaration of war), and reform of public appointments and the role of the Attorney General etc.

See summary at:

http://politics.guardian.co.uk/constitution/story/0,,2117920,00.html

Governance of Britain Green Paper can be found at:

http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf

 Related documents on Ministry of Justice Website:

http://www.justice.gov.uk/publications/governanceofbritain.htm

Main issue: ‘Individual responsibility’; there has been frustration
amongst the opposition in government, as well as from some government
backbenchers that ministers can only be quizzed on topics of which they
are notified in advance, giving them an advantage in the way that they
have time to prepare answers, and with the help of civil servants. This
reduces their accountability.

Proposed changes: The Commons Modernisation Committee, who are
concerned with the practices and procedures of the House of Commons,
have proposed a reform to deal with the responsibility issue. Under the
proposal, each minister in charge of a major government department will
face a monthly 15 minute questioning. The topics involved have to be
ones for which they are responsible but are without notice, giving no
time for extensive preparation, as well as being a regular occurrence.

It needs to be approved by MPs, but the government itself has already
given its backing to the proposal.

Relevance: Is a potential reform of current government (in particular,
House of Commons), procedure.
By Rachael Toon

Link to article on Times Online:

http://www.timesonline.co.uk/tol/news/politics/article2689562.ece

The modernisation of the House of Commons was debated on 25 October 2007 . 

 The Leader of the House of Commons, Harriet Harman said:

‘I will do everything I can to protect the rights of Back Benchers, to hold the Government to account, to ensure proper and timely scrutiny of legislation, and to enable the House to hold the most open, effective and best informed democratic debates in the world’

To put the questioning of ministers into context - the consequences of  improved accountability can be seen most clearly on important matters. For example, the effect could be that “Groundhog day” situations, where politicians repeat the same political banalities when tough questions are raised (see John Redwood’s comments ), may become less frequent. This may in turn drive progress forward on topical questions such as membership of the EU. Read the Commons debate and speeches at:

http://www.commonsleader.gov.uk/output/page2128.asp

February 2007

On 5 February 2007, the Foreign and Commonwealth Office began their appeal against a High Court ruling of May 2006 (see below) which stated that the exclusion of the Ilois people from the Chagos Islands was unlawful. 2000 people were moved from the archipelago in the late 1960s and sent to Mauritius and the Seychelles, after the UK government secretly leased Diego Garcia to the US to use as an air base. The base has been used to launch bombing raids in both Iraq and Afghanistan and the Islanders are excluded on the grounds that their presence on the Chagos Islands would represent a security threat to the base – albeit one posed from 150 miles away.

Sir Sydney Kentridge QC representing the Islanders is arguing that the order in council, made under the royal prerogative but applied with extraterritorial effect was “repugnant” and ultra vires. The focus is on the constitutional position of such a prerogative power and the fact that there is no precedent for using it to exclude an entire population.

John Howell QC, representing the FCO, argues that the decision of May 2006 represents a “revolutionary” legal change that would affect all British overseas territory”.”

The appeal continues in the High Court listed as C1/2006/1465 The Queen on the application of Bancoult -v- The Secretary of State for Foreign and Commonwealth Affairs.

http://news.bbc.co.uk/1/hi/england/southern_counties/6333223.stm

“In a damning verdict [of May 2006], the High Court …overturned orders in council made by Tony Blair’s administration in 2004 which reversed a previous court decision and banned anyone from living on the islands, known officially as British Indian Ocean Territory. The orders, made under the royal prerogative, allowed the Government to dispense with the inconvenience of parliamentary oversight.” Thus in R (Bancoult) v Secretary of State for Foreign Commonwealth Affairs [2006] EWHC 1038 (Admin), the Court held that “The suggestion that a minister can, through the means of an Order in Council, exile a whole population from a British Overseas Territory and claim that he is doing so for the ‘peace, order and good government’ of the Territory is, to us, repugnant” (para 142).

The Court also reaffirmed the CCSU position – the modern approach to judicial review was that Orders in Council could be challenged. In Bancoult (No 2) the Orders were challenged on the basis of irrationality which did not include the Court making an assessment of the defence interests of the UK or the US and as such did not involve those matters of government policy which the courts have frequently held to be non-justiciable.http://www.telegraph.co.uk/news/main.jhtml;jsessionid=N5GQXJJH1QWORQFIQMFCFFWAVCBQYIV0?xml=/news/2006/05/12/wchag12.xml&sSheet=/news/2006/05/12/ixnews.html

November 2000

“The May 2006 ruling represents “the second time the islanders have won a ruling that their eviction was unlawful.”In 2000, the High Court ruled that a 1971 Immigration Ordinance banning people without permits from entering or remaining in the colony was unlawful.”See: http://news.bbc.co.uk/1/hi/uk/4760879.stm

In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067 – the Court held that “the 1971 Ordinance fell outside the power conferred by the 1965 Order to make laws for the “peace, order and good government” of the Territory. Such a power required its people to be governed, not removed; and the political reasons for removal, although dictated by pressing considerations of military security, could not by any forensic test of reasonableness be said to touch the peace, order and good government of the Territory. Accordingly the relevant provision of the 1971 Ordinance was quashed.”

See also:http://news.bbc.co.uk/1/hi/uk/1004840.stm

The response of the Government to the decision was to legislate:“in June 2004 two Orders in Council were made – a Constitution Order and a subsidiary Immigration Order – the effect of which was to deny any person the right of abode in the Territory and to prohibit entry into or presence in the Territory without a permit. The Government explained that it had decided that resettlement could not be permitted and that the decision had therefore been taken to legislate to prevent it and to restore full immigration control over the Territory. This was because it was considered that any attempt to resettle any of the islands would compromise the security of the base at Diego Garcia and prejudice the military operations there.”

See excellent analysis of the 2001 and 2006 decisions in the speech of Lord Justice Richards of 7 June 2006, referred to in the section of this blog relating to judicial review and prerogative power.http://www.judiciary.gov.uk/publications_media/speeches/2006/sp070606.htm

Sinn Fein has lost a High Court battle over a decision to deny it funding due to allegations of IRA active. The judges had ruled there was “no real possibility” of bias and also declared that all other accusations of unfairness and illegality were “without substance”.  

See: http://news.bbc.co.uk/1/hi/northern_ireland/6278565.stm

Asylum and Immigration (Treatment of claimants) Bill threatened to remove right of asylum seekers to appeal from high court if their claims were rejected. The Government were forced to back down over the bill.See:  http://news.bbc.co.uk/1/hi/uk_politics/3511536.stm

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”.

Supreme Court for the UK 

 “The Constitutional Reform Act 2005 made provision for the creation of a new Supreme Court for the United Kingdom. There have, in recent years, been mounting calls for the creation of a new free standing Supreme Court separating the highest appeal court from the second house of Parliament, and removing the Lords of Appeal in Ordinary from the legislature. On 12 June 2003 the Government announced its intention to do so.

At present the most senior judges, the Lords of Appeal in Ordinary, or Law Lords as they are often called, sit in the House of Lords. There are twelve of them. The House is the highest court in the land – the supreme court of appeal. It acts as the final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. Its decisions bind all courts below.

As members of the House of Lords, this means that they not only sit judicially, but are also able to become involved in the debate and subsequent enactment of Government legislation (although, in practice, they rarely do so). Creating a new Supreme Court will mean that the most senior judges will be entirely separate from the Parliamentary process.

It is important to be aware that the new Supreme Court will be a United Kingdom body legally separate from the England and Wales Courts since it will also be the Supreme Court of both Scotland and Northern Ireland. As such it falls outside of the remit of the Lord Chief Justice of England and Wales in his role as head of the judiciary of England and Wales.

The new Supreme Court is scheduled to be open for business in October 2009.”http://www.judiciary.gov.uk/about_judiciary/judges_and_the_constitution/supreme_court/index.htm

The judicial work of the current House of Lords will be transferred to the Supreme Court for the UK in 2006, following the enactment of the Constitutional Reform Act 2005. See a survey of their current judicial work:

http://www.parliament.uk/documents/upload/HofLBpJudicial.pdf  

The DCA provide a very brief summary of the background, roles and responsibilities of the Supreme Court for the UK on their website:

http://www.dca.gov.uk/supreme/index.htm This draws from their Consultation Document published in July 2003 (Read their executive summary as a timesaving device). http://www.dca.gov.uk/consult/supremecourt/index.htm Summary of Government’s response of July 2004:http://www.dca.gov.uk/consult/supremecourt/scresp.htm 

The existing Law Lords will become the first Justices of the Supreme Court in 2009. A list of the current Law Lords is found at:

http://www.parliament.uk/about_lords/the_law_lords.cfm  

The Lord Chancellor

 As a result of the Constitutional Reform Act 2005, the judicial role of the Lord Chancellor has been abolished. As of 3 April 2006, the Lord Chancellor’s judicial functions were transferred to the President of the Courts of England and Wales – the Lord Chief Justice, Lord Phillips – who is now the Head of the Judiciary. [Important Note: the Lord Chief Justice for England and Wales does not fall within the remit of the House of Lords – this being UK-wide.]. A summary of the key reforms can be found at: http://www.judiciary.gov.uk/about_judiciary/judges_and_the_constitution/constitutional_reform/index.htm 

The Judicial Appointments Commission (JAC)

  As we know, the Constitutional Reform Act enshrined judicial independence in statute (s 3 guarantee).  The JAC was established under s61 CRA 2005 – its aim being to increase the independence of the judiciary. 

From October 2006, the JAC implemented a new system for selecting judges. The framework document signed by Lord Falconer and Baroness Prashar (Lord Chancellor and Chairman of the JAC respectively) states that it is an executive non-departmental public body which possesses the following role [at paras 13 and 14]:

“ The Commission selects candidates for judicial office and recommends them to the Lord Chancellor for appointment. It is the Lord Chancellor who, in accordance with the provisions of the Act, makes the appointments or recommends the appointments to The Queen. 

The JAC is responsible for selections in relation to all judicial offices listed in Schedule 14 to the Act, as well as to the offices of the Lord Chief Justice, Heads of Division, Lords Justices of Appeal and High Court Judges. In the first year of operation some of the appointments are subject to transitional arrangements.”

Full transcript of the framework document: http://www.judicialappointments.gov.uk/docs/jac_framework_document.pdf  

Summary in press release: http://www.judicialappointments.gov.uk/press_release_high_ct_judges_311006.htm 

The JAC Chairman Baroness Prashar delivered a very clear and concise lecture on the reforms and the current role of the JAC on 6 November 2006 at Middle Temple.http://www.judicialappointments.gov.uk/docs/Middle_Temple_Guest_Lecture.pdf