The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017 )

1. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017) The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

2. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

3. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

4. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

5. Main themes of lecture • Dicey, the role of the courts and the common law. • The rule of law and the emergence of judicial review as a remedy against public authorities. • What kind of remedy? Distinguishing JR from constitutional review. • Human Rights Act and the constitutional protection of rights. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

6. Constitutional fundamentals Parliament has supreme authority to pass and repeal law which cannot be directly challenged. No entrenched constitution possible. But every citizen is nevertheless subjected to ‘the rule of law’ which ensures no punishment without law/control of discretionary power and equality before the law. Judges in the ordinary independent courts (for Dicey not administrative courts, US style Supreme Court or a continental style Constitutional Court) are responsible for protecting rights using the common law e.g. Entick v Carrington [1765] and M v Home Office [1994] 1 AC 377but the courts do not have the power to override statute law only to interpret it. Now the Human Rights Act 1998 incorporates the ECHR which overlaps with the common law e.g. Article 6 due process. Also, there is now an administrative court and tribunals have a close resemblance to continental type administrative courts. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

7. Principles of the British Constitution According to Professor AV Dicey the traditional uncodified constitution relies on two related concepts: • Legal sovereignty of Parliament: Parliament comprising the House of Commons, House of Lords and Monarch are the supreme law making body able to pass or repeal any law. This is a principle that was confirmed by the Bill of Rights of 1689 and remains unchallenged (subject to certain exceptions). • The Rule of Law: while it is not possible to directly challenge the validity of law passed by Parliament – government must be conducted according to the law as recognised in the ordinary courts. The assumption is that there is an independent judiciary which upholds the law but the courts DO NOT have the right to invalidate the law. There is primacy of statute law. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

8. English Bill of Rights 1689 William III and Mary II were offered the throne in 1689 by Parliament but with strict conditions attached: • Pretended power of suspending the law and dispensing with laws by regal authority without consent of Parliament is illegal. • Parliamentary independence guaranteed and freedom of speech inside Parliament under Article 9; • No army could be raised without parliamentary approval; • Taxation required parliamentary approval; • no special courts for political ends (repetition of Star Chamber); • freedom of petition guaranteed; • free elections and annual parliaments; • protestant monarchy guaranteed, reinforced by Act of Settlement 1701. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

9. Debate over the role of judges and the courts R (Jackson) v A-G [2005] – unsuccessful challenge to the validity of the Hunting Act 2004. But absolute conception of sovereignty questioned by three law lords. Circumstances envisaged when courts might exercise veto over legislation (threat to democracy). Certain advocates of constitutional codification (or partial codification) would seek to recalibrate the distribution of constitutional power in favour of the judges as part of a written constitution. This approach rests on the assumption that political questions can be, and should be, separated from legal questions. Opponents of this view maintain that, the judicial constraint of democracy weakens its constitutional attributes, putting inferior mechanisms in their place At the same time, the idea that the courts can be relied upon as impartial guardians of the law is rejected, as is the idea that unelected and unaccountable judges are qualified to take political decisions e.g. on resource allocation issues.   The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

10. Defining ‘common law’ • Common law is a term used to categorise legal systems which have the common law method of binding precedent (stare decisis) including UK, USA, Canada, Australia, India and other former British colonies. • Where no legislation exists to govern an issue in dispute precedent is the source of law, the courts resolve the issue creating, developing and applying principles on a case by case basis. • The common law is the law made by judges in the courts on the basis that higher courts and appellate courts set precedents in finding reasons for deciding cases. This ratio decidendi binds any court at a lower level on the same point of law. • Important aspects of especially civil law are still dependent on judge made law e.g. contract and tort. • Statute law prevails over common law. Tracts of law may be codified by statute e.g. most criminal law is now based on statute. Precedent also applies to the way the courts approach statutory interpretation. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

11. Common law style of judging The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

12. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

13. Law reporting Supreme Court (previously the House of Lords): all cases reported Court of Appeal, Civil and Criminal,Divisional Court of QBD: all cases High Court and Administrative Court (civil) all recorded some cases reported Generally not reported (decisions not binding) County Court Crown Court (higher criminal with jury) Magistrates Court (criminal) The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

14. How to understand law reports? (1) the court which heard the case and when it was heard, this immediately establishes the level in the hierarchy of courts; (2) the main contested issues by providing a summary. At a glance it is possible to discover if there is likely to be anything of relevance to the case in hand; (3) the facts of the case before the court; (4) the decision of the court i.e. what the court held. Remember that another feature of the British adversarial system is that there has to be a winner and a loser. It may be hard to maintain that a precedent survives when the decision of the court goes clearly against that party. This is not always true, as cases can be distinguished from each other e.g. on the facts. (5) all cases referred to in judgments i.e. what precedents were considered to support the outcome. Also, all cases cited or referred to in skeleton argument by counsel. (6) The court from which an appeal originated from and the previous outcome. (7) The full judgments of the members of the (appellate) court. The ratio decidendi which is the binding passage will be contained in the judicial statements. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

15. In summary Common law is a term used to categorise legal systems which have the common law method of binding precedent including UK, USA, Canada, Australia, India and other former British colonies. The common law is the law made by judges in the courts on the basis that higher courts and appellate courts set precedents in finding reasons for deciding cases. This ratio decidendi binds any court at a lower level on the same point of law. Important areas of law are still dependent on judge made law e.g. contract and tort. Statute law prevails over common law e.g. tracts of law may be codified by statute e.g. most criminal (penale) law is now based on statute. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

16. Administrative Justice, Alternative Dispute Resolution and Tribunals There are many types of remedy available ranging from ADR, ombudsmen, tribunals to JR. Judicial Review is a remedy of last resort available to challenge decisions at the highest level. Under many statutes decisions by public bodies may be challenged in a type of less formal administrative court called a tribunal. Tribunals can change the outcome of a decision. Until relatively recently tribunals were specialised and formed under individual statutes and each one tended to have its own rules and procedures. There is now a national system of tribunals which operates at two levels and which resembles a continental system of administrative justice. Some JR jurisdiction has been taken over by tribunals and the upper tribunal can now determine certain points of law. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

17. Back to principle: Judicial Review and Dicey’s definition of the rule of law (I)The predominance of regular law over arbitrary power. In one sense it means that there can be no punishment without law but it concerns the legality of decision-making in administrative law. Some cases illustrate judicial resistance to arbitrary executive action or Royal authority. Entick v Carrington (1765) Insitstence on due process. See more recently Congreve v Home Office [1976]. Rule of law embodies principles which prevent the improper exercise of discretionary (statutory) powers (See GCHQ case). (II) No-one is above the law – equality before the law. The law applies equally to everyone but of special importance is the fact that the executive organs of the state are subject to the ordinary law (no droit administratifdistinct law and courts). Exceptions exist: e.g. parliamentary privilege, public interest immunity, diplomatic immunity. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

18. (III) The constitution is a result of the ordinary law. According to Dicey this aspect means that the common law (judge made) provides legal protection for the individual through the development of remedies in the courts. M v Home Office [1994] modern example of the courts standing up to executive authority (while the application of an asylum seeker was before the court he was deported in breach of an express undertaking to the judge. A finding of contempt was upheld against the Secretary of State (not the Crown itself) by the HL) but there have been many examples of the courts not standing up to the executive branch, especially in wartime e.g. Liversidge v Anderson [1942]. On the other hand, there is an expectation of legality – an acceptance without complaint or hesitation of the discipline of the rule of law. Or an expectation of compliance with the law. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

19. JUDICIAL REVIEW and the role of the courts The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

20. JR Remedies and Procedural Reform Procedural reform in late 1970s made it much easier to apply for a judicial review and this led to an expansion in the number of cases coming before the courts. The claimant must apply for one or more of the remedies available. In O’Reilly v MackmanLord Diplock developed the exclusivity principle recognising that JR was the only avenue for public as opposed to private law cases. Quashing Order/Certiorari has the effect of quashing an ultra viresdecision.If the remedy is granted an ultra vires decision will be rendered VOID. Mandatory Order/Mandamus - instructs (mandates) an authority to do its statutory duty. Prohibiting Order /Prohibition - serves to prohibit the authority from acting unlawfully in the future. Declaration - sets out the legal position between parties. Injunction – prevents an authority from acting. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

21. GCHQ case: Main grounds explained Judicial activism of the 1960s, reform of procedure and new judicial approach. Council for Civil Service Unions v Minister for the Civil Service [1985] challenged the banning of unions at GCHQ by the government, hence GCHQ case: Lord Diplock set out the grounds as follows: 1. Illegality with many sub-grounds 2. Irrationality also termed Wednesbury unreasonableness 3. Procedural impropriety/natural justice Proportionality as a ground was anticipated - it now applies under HRA. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

22. Principles developed under common law Natural justice/procedural impropriety has long been recognised under common law. Cooper v Wandsworth Board of Works(1863) 14 CB (NS) 180 An individual set to lose his property was denied the right to a hearing but Byles J held that '...the justice of the common law will supply the omission of the legislature'. The courts would step in with procedural safeguards to prevent an individual losing her property without a proper hearing even if the public body had lawful authority. Ridge v Baldwin[1964] Chief constable Ridge dismissed without a hearing. This is regarded as the leading case. Lord Reid indicated that these rules will be applied on a wide basis, both as to content and context. Put differently, a legitimate expectation of procedural fairness has been established, now reinforced under Article 6 ECHR. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

23. Common law principles of natural justice/fairness/procedural impropriety • Right to a hearing depends on the matter under consideration and general see McInnes v Onslow Fane [1978] ‘sliding scale’ of protection depending upon whether forfeiture, renewel or application; • Right to an impartial hearing: ‘rule against bias’ and test for bias; • Right to legal representation, equality of arms principle but depends on the hearing; • Right to know the opposing case; • Right to cross-examination - crucial for adversarial systems of justice; • Duty to give reasons - difficult to appeal without reasons, but reasons slow down the process of administration; • Right of appeal - depends on the matter under consideration. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

24. Illegality: legal limits on discretionary powers Padfield v Ministry of Agriculture [1968] Limits on discretion even if the power appears to be widely drawn in the statute: 'If the minister in any such case so directs’. R v S of S for For Affairs, ex p World Development Movement [1996] Did the Malaysian Pergau Dam project fall under a ‘developmental purpose’. Rose LJ 'Whatever the Secretary of State's intention or purpose may have been, it is, ... , a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose’. Further in exercising discretion the decision-maker is required to take account of relevant considerations and ignore irrelevant considerations. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

25. Irrationality/Wednesbury unreasonableness Setting a high threshold for intervention. Decisions of public authorities cannot be challenged because there is disagreement on political grounds alone. Lord Greene MR referred to 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… .’ the courts will only interfere with the exercise of a discretion when an authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it. Lord Diplock termed this as irrationality: ‘a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person … could have arrived at it.’ Continental equivalent: erreurmanifeste/irrazionalità The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

26. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

27. Triggering Article 50: Miller v SS for Exiting the EU [2017] UKSC 5 Judicial review case in which the claimant argued that triggering Brexit (a decision from which there is no turning back) without prior parliamentary approval was unlawful, because it would inevitably result in the loss of a number of rights currently enjoyed under EU law, including the right to vote at EU elections. EU Treaty of Rome and EU law is a part of UK domestic law and an important constitutional source since the European Communities Act 1972. The UK is a dualist system requiring the incorporation of treaties by statute for them to become part of UK law. The courts were interpreting the application of this legislation. SS attempted to argue that Parliament enacted 2015 (referendum) Act on clear understanding that a Brexit vote would result in this outcome. There is no reference to the referendum having binding effect. However, unlike the Parliamentary Voting System and Constituencies Act 2011 ss.8 and 9 the EU referendum legislation in 2015 provided no express legal authority for triggering Brexit. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

28. What is the prerogative? Could the prerogative power exercised by ministers be used to proceed with Brexit if doing so conflicted with pre-existing statutory powers? The prerogative refers to the residue of powers from the period when the Monarch was directly involved in the process of government. General rule widely recognised and not contested in Miller is that the power to negotiate treaties falls under the prerogative and lies with the government. ‘The rules about prerogative and statute are rules about the institutional allocation of public power. They go to jurisdiction or competence and do not rely on judicial assessments of reasonableness, legitimate expectation or the like’ Prof Tom Poole. This important constitutional rule derived from the Case of Proclamations (1610) and Bill of Rights 1689 recognises that statutory power will always prevails over the prerogative power (AG v De Keyser’s Royal Hotel Ltd). (In this case the denial of compensation under the Defence Act was held to be unlawful) The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

29. Brexit case contd Lord Brown-Wilkinson in Fire Brigades Union case [1995] "…it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament as expressed in a statute and, to an extent, to pre-empt the decision of Parliament whether or not to continue with the statutory scheme...”. See drafting of s.2ECA 1972. ‘Parliament could not be taken to have legislated in vain’ para 99. A process would have been started through the exercise of the prerogative which would inevitably invalidate this and other statutes. The exercise of the prerogative would therefore frustrate or undermine the statute, in this case the 1972 Act and subsequent Acts, which exceptionally confer rights and duties. The Divisional Court were unanimous in finding in favour of Miller on this point of law. A debate in Parliament would not suffice. The claimant stressed the challenge is about legality of the governmental action under the prerogative, not about whether or not Brexit itself should take place. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

30. HUMAN RIGHTS ACT 1998 The profile of the courts and judges has been transformed since the introduction of the HRA 1998 which came fully into force in October 2000. The problem was how to extend rights without interfering with the legal sovereignty of Parliament. The Act was introduced by the Labour government after many years in opposition during which there was perceived to have been an erosion of rights e.g. qualifications to the right to silence. The UK was a signatory to the ECHR but the courts did not recognise convention rights directly. Adopting the rights in the ECHR at least partially solved the problem of providing positive constitutional rights without opening a debate about the extent of the rights to be protected. Some advocates would support social and economic rights, others not. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

31. Protection of constitutional rights pre HRA • No ‘charter/bill of rights’ or positive statement of rights. • Individual statutes protect rights or restrict rights. • e.g. Police and Criminal Evidence Act (PACE) 1984 sets out limits of police powers of arrest and search. • Idea of negative rights – anything lawful unless it conflicts with a law e.g. Absolute freedom of speech unless in breach of law e.g. Offical Secrets Act 1989, law of defamation. • Before the HRA there was only piecemeal protection of HR. • No direct protection in domestic courts. Taking case to Strasbourg typically took 7-9 years. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

32. HRA 1998 • Incorporates European Convention on HR into domestic law • Article 2 Right to Life • Article 3 Prohibition of torture • Article 4 Prohibition of slavery and forced labour • Article 5 Right to liberty and security e.g. no arbitrary arrest • Article 6 Right to a fair trial • Article 7 No punishment without law      • Article 8 Right to respect for private and family life     • Article 9 Freedom of thought, conscience and religion     • Article 10 Freedom of expression     • Article 11 Freedom of assembly and association      • Article 12 Right to marry • Article 14 Prohibition of discrimination • Article 16 Restriction on political activity of aliens The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

33. How the act works Positive duty placed on public bodies under Section 6, as it is unlawful for a public authority to act in a way which is incompatible with a right under the ECHR. The Act applies to central government, executive agencies, local government, the police, immigration officers, prisons, courts and tribunals, other bodies exercising functions which would otherwise be exercised by government. The act clearly has vertical effect and allows a remedy to be obtained against a public authority directly without going to Strasbourg as the treaty is, in effect, incorporated by the HRA. The Act is enforceable against some private charities/companies in respect of some but not all their activities. Courts now required under section 2 to take into account ECHR jurisprudence but not directly bound by it. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

34. Application of HRA section 3: Judicial legislation? Under section 3 courts empowered to interpret legislation so that it is given effect in a way that is compatible Convention rights. This is a very strong interpretative obligation which can have major impact. Ghaidan v Godin-Mendoza [2004] UKHL 30 - could same-sex partner of a deceased tenant succeed to the statutory tenancy of the property in which both had lived applying para 2(2) of Schedule 1 of Rent Act 1977. There was an interpretative obligation to render the measure ECHR compliant but no new provisions could be added in the absence of ambiguity. The broader implication of Mendoza, however, is that all heads of discrimination which are prohibited under Article 14 of the European Convention on Human Rights must be read into domestic statutes whenever another Convention right is in play, creating a much wider basis for anti-discrimination protection. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

35. Declarations of incompatibility: Section 4 The courts not given the power to invalidate primary legislation. If they are unable to interpret legislation so that it is convention compatible - a declaration of incompatibility can be issued. The legislation remains in force but Parliamentis able to adopt a special fast track procedure to amend the offending measure. Parliament is not legally required to amend legislation. If there was no response to the declaration of incompatibility a claimant can still take her case to Strasbourg for resolution. See: A & Others v Home Secretary[2004] Belshmarshdetainess case. Detention measures were discriminatory against foreign nationals and thus contrary to Article 14 of the ECHR. Following a declaration of incompatibility Prevention of Terrorism Act 2005 amended the law but old law remains valid until repealed. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

36. Human Rights Act: Proportionality review v SS for Home Department, ex parte Daly[2001] concerned a challenge to regulations under section 47(2) of the Prison Act Act 1952 allowing the prison authorities to search cells without the prisoner present. A remand prisoner who had private correspondence with his lawyer relating to his trial argued that this rule was unlawful. Lord Steyn stated that A PROPORTIONALITY TEST would be applied: (a) thRe legislative objective is sufficiently important to justify limiting a fundamental right; (b) the measures designed to meet the legislative objective are rationally connected to it; (c) the means are no more than is required to accomplish the objective. Held that the policy contained in this rule constituted a breach of Article 8 of the convention since it constituted a disproportionate interference with the prisoner’s rights. The same objective could have been achieved by less intrusive means. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

37. CONCLUSION The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

38. Further reading • Leyland P The Constitution of the United Kingdom (Hart Publishing, 2016) chapter 7. • Leyland P & Anthony G Textbook on Administrative Law (OUP, 2016). • Bamforth and Leyland Accountability in the Contemporary Constitution (Oxford UP, 2013), Introduction. • Allan T ‘Accountablity to the Law’ in Bamforth and Leyland Accountability in the Contemporary Constitution (Oxford UP, 2013). • Griffith JAG "The Political Constitution" (1979) 42 MLR 1 • Harding A and Leyland P ‘Constitutional Courts: Forms, Functions and Practice in Comparative Perspective’ in Harding and Leyland (eds) Constitutional Courts: A Comparative Study, (Wildy, 2009). • Malleson K ‘The evolving role of the Supreme Court’ [2011] Public Law 754. The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)

39. We would like to express sincerest thanks to the Professor Peter Leyland the law students of Genoa and theirs professors The Constitutional Role of the Courts in the United Kingdom (Peter Leyland, Genova 2017)