Chagos Islanders – Prerogative and Judicial Review
February 11, 2007
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
Judicial Review – Interesting Cases
January 30, 2007
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
Recent developments – Judicial Review and Prerogative Powers
January 30, 2007
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 Judiciary and Constitutional Reform
January 5, 2007
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
Waging War and the Royal Prerogative
January 5, 2007
Should the power to declare war be made more democratic? Should it be the power of people rather than of Kings asks Michael Waite in the Guardian, July 2006.http://politics.guardian.co.uk/columnist/story/0,,1832004,00.html
The House of Lords Constitution Committee’s Fifteenth Report of Session 2005-06 – “Waging War: Parliament’s role and responsibility” (published July 2006) recommended that the role of Parliament in deploying UK forces abroad be established in a new convention.
The introduction to the report provides a very useful description of the nature of the prerogative power to declare war and deploy forces abroad, its evolution and the constraints upon it. Is accountability to Parliament enough? You might also read the conclusion to the report as a timesaving device. The Committee concluded at paragraph 103 that:
“The exercise of the Royal prerogative by the Government to deploy armed force overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy. Parliament’s ability to challenge the executive must be protected and strengthened. There is a need to set out more precisely the extent of the Government’s deployment powers, and the role Parliament can—and should—play in their exercise.” The Committee recommended: “that there should be a parliamentary convention determining the role Parliament should play in making decisions to deploy force or forces outside the United Kingdom to war, intervention in an existing conflict or to environments where there is a risk that the forces will be engaged in conflict.” [para 108]
Which should comprise the following features [para 110]:
“(1) Government should seek Parliamentary approval (for example, in the House of Commons, by the laying of a resolution) if it is proposing the deployment of British forces outside the United Kingdom into actual or potential armed conflict;
(2) In seeking approval, the Government should indicate the deployment’s objectives, its legal basis, likely duration and, in general terms, an estimate of its size;
(3) If, for reasons of emergency and security, such prior application is impossible, the Government should provide retrospective information within 7 days[169] of its commencement or as soon as it is feasible, at which point the process in (1) should be followed;
(4) The Government, as a matter of course, should keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly should seek a renewal of the approval.”
Summary found in press release at: http://www.parliament.uk/parliamentary_committees/lords_press_notices/pn270706const.cfm
See also summary of Government’s response of 7 November 2006 at: http://www.parliament.uk/parliamentary_committees/lords_press_notices/pn231106const.cfm
House of Lords Reform Proposals
January 5, 2007
The DCA states that: “The Government believes a credible and effective second chamber of Parliament is vital to the health of our democracy.”
There have been numerous proposals as to how this might be achieved.
A chronology of events is available from the UK Parliament website up until March 2000. http://www.parliament.the-stationery-office.co.uk/pa/ld199798/ldbrief/ldreform.htm Article by Alexandra Kelso, Reforming the House of Lords: navigating representation, democracy and legitimacy at Westminster. Parl. Aff. 2006, 59(4), 563-581. Kelso discusses the meaning of representation, democracy and legitimacy in the context of Lords Reform. She then surveys the proposals which have had the most impact on the debate over House of Lords Reform: the 1997 Labour Manifesto, the Wakeham Report in 2000, the 2001 White Paper, the 2002 PASC Report, and the 2002 Joint Committee Report.
http://pa.oxfordjournals.org/cgi/reprint/gsl029?ijkey=y0M12Ql85zqzzAK&keytype=ref
Report of the Royal Commission on the reform of the House of Lords chaired by Lord Wakeham – “A House for the Future” (known as the Wakeham Report, published January 2000): Executive Summary at: http://www.archive.official-documents.co.uk/document/cm45/4534/exec_sum.pdf
Useful overviews at: http://news.bbc.co.uk/1/hi/uk_politics/611734.stm
And http://www.guardian.co.uk/lords/Story/0,,190350,00.html
Full transcript: http://www.archive.official-documents.co.uk/document/cm45/4534/contents.htm
See also: “Constitutional Reform: Next Steps for the House of Lords” (published 2003), together with the reports of the Joint Committee on House of Lords Reform (published 2002 and 2003) and the Government White Paper “The House of Lords: Completing the Reform”. at: http://www.dca.gov.uk/constitution/holref/holrefindex.htm
Fifth Report of the Public Administration Select Committee (published February 2002). http://www.publications.parliament.uk/pa/cm200102/cmselect/cmpubadm/494/49402.htm See press release and summary of findings at: http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_pn_05.cfm The Government’s response: http://www.publications.parliament.uk/pa/cm200102/cmselect/cmpubadm/794/79404.htm
Extracts from the abovementioned reports are found in Fenwick and Phillipson, Text, Cases and Materials, pp. 341-417.
The most recent proposals:
House of Lords Reform Bill mentioned in Queen’s speech in 2005. Not yet introduced. http://news.bbc.co.uk/1/hi/uk_politics/4554271.stm
On 15 November 2006 at the opening of the Parliamentary Session, the Queen stated in her speech that the government ”will work to build a consensus on reform of the House of Lords and will bring forward proposals.” http://news.bbc.co.uk/1/hi/uk_politics/6152534.stm
Jack Straw, as Leader of the House of Commons, has the unenviable responsibility of reaching a cross-party consensus as to the reform of the upper chamber, whilst maintaining the pre-eminence of the Commons. His plans were leaked in the Sunday Times on 22 October 2006. http://www.timesonline.co.uk/article/0,,2087-2416022_1,00.html
See review of this at:http://politics.guardian.co.uk/lords/story/0,,1928945,00.html
Lord Cunningham, chairman of the Joint Committee on Conventions is charged with broadly the same task as Straw and has recently unveiled a new report. See excellent article by Geoffrey Howe in the FT on 2 January 2007.http://www.ft.com/cms/s/ef45c328-9a8a-11db-bbd2-0000779e2340.html
and further details at: http://news.bbc.co.uk/1/hi/uk_politics/6163398.stm
See speech by Lord Cunningham in House of Lords debate on 5 December 2006 (scroll down to relevant paras): http://www.publications.parliament.uk/pa/ld200405/ldhansrd/pdvn/lds06/text/61205-0001.htm
Tony Blair has stated that the reform of the House of Lords will only proceed if a consensus is reached and has pledged that any reform will not be pushed through using the Parliament Acts. http://news.bbc.co.uk/1/hi/uk_politics/6085746.stm
Survey on failed proposals concerning the second chamber up until 2005:http://www.parliament.uk/commons/lib/research/notes/snpc-02973.pdf
Recent special report from the Guardian: http://politics.guardian.co.uk/lords/0,,442877,00.html
See also BBC Key stories on House of Lords reform, including cash for peerage investigations (see links on following page)http://news.bbc.co.uk/1/hi/uk_politics/4848746.stm
MPs vote for elected second chamber March 2007
“The Commons voted unexpectedly by 337 to 224, a majority of 113, in favour of a 100 per cent elected Lords.” Some might see this as a delaying tactic over future reform for others it is a landmark in the modernisation of the British Parliament.
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/03/08/nlords08.xml
Parliamentary Sovereignty
January 4, 2007
The Supremacy Debate – the EU
There are a number of articles on your reading list concerning Factortame and the debate over whether membership of the EU is a limit on the sovereignty of Parliament.
The “Metric Martyrs Case” (Thoburn v. Sunderland City Council) raised this issue again. However, Laws LJ took the opportunity, more controversially, to take the view that Parliamentary sovereignty might be altered by the common law. He stated obiter that “constitutional statutes” may only be expressly repealed whereas “ordinary” statutes are subject to the doctrine of implied repeal. His views are yet to be embraced by the judiciary or by Parliament.
In a case comment in the European Law Review, Arnull states that:
“Laws L.J. went on to hold that the traditional doctrine of Parliamentary sovereignty had in any event been modified by the common law, which now recognised a category of rights which were to be classified as constitutional or fundamental. It followed that “[w]e should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes … a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” The ECA was, by force of the common law, a constitutional statute. Such statutes could not be impliedly repealed.” See EL Rev 2002, 27(3), 239-240. (available on WESTLAW) .
An interesting case comment which also argues that Laws LJ’s classification of a “constitutional” statute is an incomplete one since it does not include statutes governing the inter-relationship of the institutions of government, as usally provided for in any constitution is found at: EL Rev [2002] 27(6), 771-779 (available on WESTLAW).
The Parliament Acts and the Hunting Ban
More recently, the decision of R (on the application of Jackson) v. Attorney General [2005] UKHL 56; [2006] 1 AC 262 (HL) (or Jackson v. Attorney General) has generated much constitutional debate over the question of parliamentary sovereignty.
The appellants challenged the Hunting Act 2004 Act on the basis that it had been passed in reliance on s2(1) Parliament Act 1949, amended by s1 Parliament Act 1949. They contended, however, that the 1949 Act was invalid because the Parliament Act 1911 as amended by the 1949 Act did not authorise its own amendment – it could only have been passed with the consent of the Commons, the Monarch and the House of Lords. They took the view that the 1949 Act is a piece of delegated legislation.
The Lords held that the Parliament Act 1949 (and hence the Hunting Act 2004) was a valid Act of Parliament. On one hand, Lord Bingham stated that the validity of the 1949 Act had been recognised by governments of different political persuasions for the last 50 years. On the other hand, Lord Steyn stated that this could theoretically result in the Commons introducing undemocratic legislation. Lord Hope underlined this by saying there were few checks on the Commons, controlled by the government, other than the electorate.
Full judgment found at:http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack.pdfSee
Case Comment at: Mark Elliott The Sovereignty of Parliament, the Hunting Ban and the Parliament Acts CLJ [2005] 65(1) pp 1-4. http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=65&issueId=01 [Use ATHENS login.]
See also the article from January 2007 by Richard Ekins Acts of Parliament and the Parliament Acts, L.Q.R. 2007, 123(JAN), 91-115 available on WESTLAW.
In addition, Bradley & Ewing state at pp 77-78 that the decision demonstrates also that: “While British tradition has been strongly against the courts reviewing the validity of primary legislation, the courts cannot escape the task of deciding whether a document for which legislative authority is claimed is in law an Act of Parliament.”
Accountability – Freedom of Information Act 2000
January 3, 2007
The Freedom of Information Act 2000 entered fully into force on 1 January 2005. The Act was designed to improve transparent and open government by providing individuals with an enforceable right to obtain information held by public authorities.
The JISC briefing paper on the FOI Act published in 2002, provides a very useful information overview of the Act at:
http://www.jisclegal.ac.uk/freedomofinformation/foiaclong.htm
For more information on how the Act applies to public authorities – see their list of publications :
http://www.jisclegal.ac.uk/freedomofinformation/freedomofinformationPub.htm
The Information Commissioner’s Office is an independent authority designed to oversee the access to official information – including the implementation and enforcement of the Act.
http://www.ico.gov.uk/what_we_cover/freedom_of_information/the_basics.aspxThe
DCA (Department of Constituional Affairs) is the government department responsible for policy concerning the Freedom of Information Act.
http://www.foi.gov.uk/index.htm
The House of Commons Select Committee on Constitutional Affairs scrutinises the work of the DCA regarding freedom of information.
http://www.foi.gov.uk/reference/constitutionalAffairsCommittee.htm
The Committee on Constitutional Affairs published their seventh report in June 2006 which surveys the implementation and enforcement of the FOI. Their main criticisms concerned the delays in providing information in response to requests (which it notes must be done in a “reasonable time”) and also the Information Commissioner complaints resolution system. (They also voice concern over the long-term storage of electronic records). Read the summary and introduction for a survey of what has happened in the first year of the life of the Act.
http://www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/991/99102.htm
Practical implementation of the Act
The FOI was in the news with respect to a request for information made to the Home Office regarding the number of absconded prisoners. From April 2006, almost 700 prisoners have escaped from open prisons , 401 of these remain at large. Story of 6 January 2007. http://news.bbc.co.uk/1/hi/uk_politics/6237935.stm
The Home Office keeps a log of information it has released under the Act – the page concerning justice and prisons may be found at: http://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/
Examples of released information concerning prisoners who have absconded from open prisons may be found at:
There is a useful DCA account of the s31 “maintenance of good order and security in prisons” exemption and the operation of the public interest test - listing hypothetical examples of how this might work in practice.
Separation of Powers and the Judiciary
January 3, 2007
Constitutional Reform
The judicial role of the Lord Chancellor has been transferred to the Lord Chief Justice. This strengthens the separation of powers in the UK by emphasising the independence of the judiciary from the executive arm. For more on this see:-
http://www.dca.gov.uk/constitution/reform/faqs.htm
US Position – fetters on executive excess
The separation of powers in the US is much celebrated and each arm of government is held to account via a complex system of checks and balances. President Bush has been criticised for increasing Presidential power which critics call an “imperial presidency”. Recent developments, however, have shown that there are still important fetters on this power.The Supreme Court has on a number of occasions declared the indefinite detention of “enemy combatants” in Guantanemo Bay as “unconstitutional” and has also declared that the military tribunals for the detainees “raised separation of powers concerns of the highest order”.
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/06/30/wus130.xmlhttp://www.guardian.co.uk/guantanamo/story/0,,1809111,00.html
Professor Gearty states the war on terror has resulted in executive excess in the US but is careful to point out that the same has been true in the UK. He argues that decisions such as Rasul, Al-Odah and Hamdi demonstrate well that executive excess can be reigned in by the judiciary.
http://www.guardian.co.uk/guantanamo/story/0,13743,1254930,00.html
See also the section in this blog on the Belmarsh decision - A & Others v. Secretary of State for the Home Department [2004] UKHL 56 .
Rule of Law – Contemporary Perspectives
January 3, 2007
Here are a number of perspectives on the way in which the rule of law operates in modern society – from both domestic and international perspectives. Much of this is taken from the Clifford Chance / JUSTICE Rule of Law Lecture Series.
The Rule of Law and Constitutional Change
The Attorney General Lord Goldsmith on 22 Februrary 2006 discussed the rule of law and constitutional change. He discusses three themes:
1) Importance of the rule of law and constitutional change.
2) Policing the rule of law: The role of the courts and Parliament.
3) Does the rule of law mean the rules of lawyers?
Transcript available at:http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/pdf/20060222-Goldsmith.pdf
Are the rules of the game changing?
At the PM’s Press Conference on 5 August 2005, Tony Blair outlined the government’s new security measures. Controversially and now often quoted, the PM stated: “Let no-one be in doubt, the rules of the game are changing” This was to underline the necessity of new security measures to deal with new and increasingly dangerous terrorist threats. The transcript can be found at: http://www.number-10.gov.uk/output/page8041.asp
The Judiciary and the Rule of Law
Roger Smith, the Director of JUSTICE used Tony Blair’s phrase for the title of his Rule of Law lecture – “Changing the Rules: the judiciary, human rights and the rule of law” – on 1 March 2006. He considers the constitutional relationship between different arms of government and the change this is subject to in our current climate. Transcript available at: http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/pdf/20060301-SmithRoger.pdf
In terms of the rule of law and the protection of human rights – do we place an ever increasing reliance on the judiciary? Cherie Booth QC argues that this is so, using the Belmarsh case as an example. See: http://politics.guardian.co.uk/terrorism/comment/0,,1537446,00.html
The above link provides excerpts from the 19th Aslan Shah lecture on July 2005 in Kuala Lumpur. This is an interesting lecture which gives both a general and itnernational and specific and domestic description of the role of the judiciary in protecting human rights. Booth also examines the role of the judiciary as guardians of the rule of law (through judicial interpretation) in the context and challenges of modern democracies. See http://www.britishhighcommission.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1099136730412&a=KArticle&aid=1119529869003
Terrorism
Shami Chakrabarti, the Director of Liberty has also used the PM’s phrase against him on a number of occasions. Directly after the PM’s August 2005 Press Conference she stated in an article in the Guardian that:
“The “game” in question appears to be No 10’s national security policy less than a month after 52 Londoners were murdered on their way to work. The statement could enter the hall of political infamy for this poor-taste metaphor alone.
What then of the “rules”? These, it seems, are a reference not just to our Human Rights Act, but to centuries of democratic tradition. Rules against torture and arbitrary detention, the right to a fair trial, freedoms of conscience, expression and association and the principle of equality under the law – these foundations of our society were dismissed as the naive and outmoded “tolerance” of a “good-natured nation”.”
See: http://www.guardian.co.uk/attackonlondon/comment/story/0,,1544683,00.html
Chakrabarti has subsequently referred back to the PM’s phrase in a series of television and radio debates as well as a lecture on “Terrorism and the Rule of Law” on 11th May 2006. The transcript may be found at: http://www.iccl.ie/DB_Data/publications/Shami_speech.pdf
International Perspective
Judge Rosalyn Higgins (President of ICJ) lectured on ‘The ICJ, the United Nations system and the rule of law’. Transcript available at: http://www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/pdf/20061113_Higgins.pdf
“”Dicey famously identified three principles which together establish the rule of law: “(1) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.” How then, in this national model, should an “international law of rule” look? … “
Abstract from LSE website: http://www.lse.ac.uk/collections/law/news/news-firstpage.htm
