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LLB Recent developments 2015

Recent developments 2015


LA1020 Public law
Current edition of the subject guide
The current edition of the subject guide was published in 2014.

The following developments should be noted


Ministerial resignations
In 2014, Mark Harper, Minister for Immigration, resigned after
discovering that his cleaner was an illegal immigrant. In 2014 the
Minister for Culture Media and Sport, Maria Miller, was forced to resign
office following a public outcry over allegations concerning her expenses.
She had claimed for mortgage interest payments on her family home in
London while acting as MP for Basingstoke where she rented a cottage.
An investigation by the Parliamentary Commissioner concluded that Ms
Miller had over-claimed by 45,000 for mortgage interest and that she
should have nominated her London home as her main home. Both
decisions were overturned by the Committee on Standards which
required her to repay a mere 5,800. The Commissioner also criticised
Miller for her obstructive and legalistic attitude to the inquiry.
In 2014 Baroness Warsi resigned from the Foreign and Commonwealth
Office over the Governments failure to denounce Israeli attacks on
Gaza. It was the first ministerial resignation on a point of principle
since those of Robin Cook and Clare Short, both of whom resigned
over the 2003 Iraq war.

The House of Lords


The House of Lords Reform Act 2014, for the first time, makes
provision for the resignation or expulsion of Members. A member of
the House of Lords may now retire or resign by giving written notice to
the Clerk of the Parliaments. The notice must specify a date from
which the resignation is to take effect and be signed by the peer and a
witness. The resignation takes effect on the day notified, and may not
be rescinded (s.1). Non-attendance is a ground for removing a peer
from the House. Under s.2, if the Speaker certifies that the peer has not
attended the House during a Session and did not have leave of absence
in that Session, the Member of the House will cease to be a Member of
the House from the beginning of the following Session.
The conviction of a serious offence is also a ground for removal. Under
s.3, if the Speaker certifies that a peer has been convicted of a serious
offence and sentenced or ordered to be imprisoned or detained for
more than one year, the peer ceases to be a Member of the House. If
the peer appeals against conviction successfully and the conviction has

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been quashed or the sentenced reduced to less than one year, the Lord
Speaker must issue a certificate which nullifies the original certificate.
Under s.4, a person who ceases to be a Member may no longer attend
the House. The former Member is no longer disqualified from voting at
elections to the House of Commons or being elected to the House of
Commons.

Chapter 5: Limited government and the separation of powers


Parliamentary privilege
One of the conventions relating to both privilege and sovereignty is
that judges will not consider the procedures followed by Parliament or
in any way criticise Parliaments procedures. This rule came under
consideration in R (HS2 Action Alliance Ltd) v Secretary of State for
Transport (2013). An EU Directive (Directive 2001/42/EC) requires
that major infrastructure projects should entail a Strategic
Environmental Assessment (SEA). One of the issues before the
Supreme Court in HS2 was whether the Governments decision to go
ahead with the high speed rail line from London to the north should
have been preceded by an SEA under the Directive. In judicial review
proceedings, the appellants argued that the Directive, as interpreted by
the European Court of Justice, required the Court to be satisfied that
the information on which Parliament reached its decision was adequate
and that the Court should scrutinise Parliaments procedures to ensure
that Members of both Houses understood the issues.
On this argument Lords Neuberger and Mance stated clearly that:
Scrutiny of the workings of Parliament and whether they
satisfy externally imposed criteria clearly involves questioning
and potentially impeaching (i.e. condemning) Parliament's
internal proceedings, and would go a considerable step
further than any United Kingdom court has ever gone.
(at para.206)
In Makudi v Baron Triesman of Tottenham [2014] EWCA Civ 179 the
defendant had made defamatory statements about the claimant to a
parliamentary committee of the House of Commons. The claimant was
a member of the Executive of the International Federation of
Association Football (FIFA). The parliamentary committee requested
that the defendant give evidence in the form of a witness statement
and oral evidence to a barrister who was conducting a review of the
allegations made. The claimant then brought proceedings in
defamation and malicious falsehood. The judge held that the extraparliamentary statements were not covered by privilege. On appeal,
the Court of Appeal ruled that in exceptional circumstances privilege
would extend to extra-parliamentary speech. Here, there was a public
interest in the inquiry to which the defendant had given evidence and
there was a close nexus between the evidence given in Parliament and
the extra-parliamentary evidence. However, the Court of Appeal
cautioned that there had to be a very strong case before the protection
of Article 9 could extend to extra-parliamentary speech.
The Transparency of Lobbying, Non-party Campaigning and Trade
Union Administration Act 2014 provides for a register of professional
lobbyists and a Registrar of Consultant Lobbyists to supervise and

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enforce the registration requirements. It is a criminal offence to


function as a consultant lobbyist when not registered. A consultant
lobbyist is a person who is engaged in a commercial business and
communicates personally in writing or orally with:
UK government ministers or Permanent Secretaries, about
government policy, legislation, contracts, licences or other
benefits, on behalf of another person, in return for payment.

Chapter 7: Crown and prerogative powers


The Political and Constitutional Affairs Select Committee of the House
of Commons has published several reports on the role of Parliament in
relation to conflict decisions. In its 12th Report of 20132014,
Parliament's role in conflict decisions: a way forward, the Committee
was critical of the lack of progress made by the Government on the
issue. One difficulty was that of ministerial responsibility: responsibility
for constitutional issues lay with the Deputy Prime Minister. However,
decisions relating to deployment of troops also involved both the
Ministry of Defence and the Foreign and Commonwealth Office. The
Committee recommended that one Minister should be appointed to
take special responsibility for advancing progress. The two options for
reform are:
1. an Act of Parliament, or,
2. a parliamentary Resolution.
The Government has several concerns in relation to an Act of
Parliament. One is that there are a wide range of situations in which
the armed forces might be deployed and these lead to definitional
difficulties. A second expressed concern is that an Act of Parliament
might run the risk of judicial review. This risk, however, is slight in
that the courts would regard any question of the deployment of troops
as non-justiciable. A further concern involved the legal advice on the
legality of military action given to the Government by the Attorney
General. By convention that advice is never disclosed. However, it
would be difficult for Members of Parliament to decide an issue if they
did not have the benefit of that legal advice.
The Select Committee favoured an Act of Parliament but, recognising
the difficulties, accepted that a Resolution might be the best way
forward in advance of an Act. The Resolution would:
have the effect of setting out in writing the procedure by
which Parliament is consulted on conflict decisions, and
create a strong political expectation that the Government
would follow this procedure.
The establishing of a new convention concerning prior parliamentary
approval for the deployment of British troops overseas curtails the
exercise of the prerogative. In practical terms it would now appear that
the prerogative could only be exercised without prior parliamentary
approval in a situation where the national interest and/or security
were threatened if immediate action were not taken.

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Chapter 13: Devolution


13.5 The Scottish devolution settlement
In September 2014, the Scottish people rejected independence by 55
per cent to 45 per cent. That vote, however, does not end the debate
over Scotland's future. Each of the main political parties committed
themselves to further devolution devomax should Scotland vote no
to independence. With further devolution to Scotland comes the
question of further devolution to Wales and the question of whether,
and how, England should have its own distinctive voice within the
United Kingdom. That issue, the English question, is now being
addressed by the Government (on which see below).
Following the referendum, a Commission was established to reach
agreement between the major political parties on further devolution to
Scotland. Chaired by Sir Robert Smith, the Commission reported in
November 2014. The major areas of agreement are:

UK legislation will make the Scottish Parliament and Scottish


Government permanent

the Sewel Convention is to be put on a statutory footing

all matters relating to the arrangements and operations of the


Scottish Parliament and Scottish Government, including the overall
number of MSPs and powers over the disqualification or removal
of MSPs, are devolved

the Scottish Parliament will have power to regulate elections to the


Scottish Parliament and local government elections in Scotland.
This will include the franchise, spending limits and party political
broadcasts. However, the Electoral Commission will continue to
operate on a UK-wide basis and the Boundary Commission for
Scotland will continue to operate as a UK public body. Regulation
of and donations to political parties will not be devolved. To avoid
changes to electoral law, UK legislation will require such
legislation to be passed by a two-thirds majority of the Scottish
Parliament

the machinery for inter-governmental communications is to be


improved

foreign affairs remain a reserved matter but Scottish involvement


in EU matters will be enhanced

the management and operation of all reserved tribunals will be


devolved to the Scottish Parliament, except the Special
Immigration Appeals Commission and Proscribed Organisations
Appeals Commission

the Scottish Parliament will be able to set rates of Income Tax, but
not National Insurance Contributions, Inheritance Tax, Capital
Gains Tax, Corporation Tax and all aspects of taxation of oil and
gas receipts

the UK Government retains the reserve power to levy an additional


UK-wide tax if there was a serious financial situation requiring
such a measure

significant areas of welfare benefits are devolved

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the remaining block grant payable to Scotland will continue to be


calculated under the Barnett formula.

Some issues remain for future discussion. Not least of these is the
English question, namely, how to provide for matters relating solely to
England to be decided only by MPs representing English constituencies.

13.6 The Welsh devolution settlement


The Wales Act 2014, s.1, amends s.3(1) of the Government of Wales
Act 2006 (GOWA 2006) to provide for ordinary general elections to the
Assembly to be held every five years (rather than four) in order to
avoid elections coinciding with elections to the Westminster
Parliament. Section 2(2) amends s.7 of the GOWA 2006 and removes
the restriction on standing for election as both a constituency and
regional candidate in an Assembly election.
Following a report by the Committee on Standards in Public Life, the
practice of holding a dual mandate in both the House of Commons and
a devolved legislature is brought to an end. Section 3(1) provides that
members of the House of Commons are disqualified from being
members of the Assembly.
Section 4(1) of the Wales Act 2014 renames the Welsh Assembly
Government the Welsh Government. Part 2 of the Act deals with
finance. The Assembly is given power to legislate about devolved
taxation principally taxation relating to property interests and landfill.
The Act also provides that, subject to a vote in favour in a referendum
(s.12), the Assembly may set Welsh rates for the purpose of calculating
rates of Income Tax to be paid by Welsh taxpayers. Section 9(3) amends
the Income Tax Act 2007, inserting a new s.6B into that Act. This
provides that the UK basic, higher and additional rates will be reduced
by 10 per cent, and the separate Welsh rates, set by the Assembly, will
be added to each of the reduced rates. The referendum may be held
following an Order in Council or following a vote on an Assembly
resolution passed by at least two-thirds of Assembly Members which
would require an Order in Council to be made.
In Agriculture Sector (Wales) Bill Reference by the Attorney General for
England and Wales [2014] UKSC 43 the Welsh Assembly considered
that it had competence to pass a Bill to regulate agricultural wages
under s.108 of and Schedule 7 to the 2006 Act. The Attorney General,
by contrast, considered that the Bill did not relate to agriculture but to
employment and industrial relations which were matters which had
not been devolved. Under the 2006 Act, as amended, competence was
conferred over agriculture, forestry, animals, plants and rural
development. The Supreme Court ruled that the Assembly had
legislative competence to pass the Bill. The purpose of the Bill was to
support and protect the industry. Agriculture could not be interpreted
solely as the cultivation of the soil or rearing of livestock. It should be
understood in the broader sense as designating the industry or
economic activity of agriculture in all aspects, including the business
and other constituent elements of that industry.

13.7 Devolution in Northern Ireland


The Northern Ireland (Miscellaneous Provisions) 2014 Act, s.7,
provides that the Assembly is to move to five-year fixed terms. The

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move will take effect from 2016, providing for the next election to take
place in 2021 and so avoid a clash with elections to the UK Parliament.
This brings Northern Ireland in line with elections to the Scottish
Parliament and Welsh Assembly.
The Northern Ireland (Miscellaneous Provisions) Act 2014 also amends
the Northern Ireland Assembly Disqualification Act 1975 (NIADA).
Sections 3 and 4 end the practice of Members of the Northern Ireland
Assembly being able also to sit as Members of the House of Commons
(subject to the exception discussed below) or as Members of the Dail
Eireann, the lower house of the Irish Parliament. The exception relates
to a person who is already a Member of the UK Parliament and who
wishes to stand for election to the Assembly. If elected to the Assembly,
he or she may then choose whether to sit in the UK Parliament or the
Assembly. Sections 3 and 4 provide that a person is not disqualified
during the eight day period following a persons election to the
Assembly or Parliament, thereby providing adequate time to make the
choice between the two legislatures.

13.10 The English question


The Conservative Party published its consultation paper, The future for
England: decentralisation and English votes for English laws, in
December 2014. In this paper, the Party supported the guiding
principle set out in the McKay Report, namely, that:
decisions at the United Kingdom level with a separate and
distinct effect for England, or for England and Wales, should
normally be taken only with consent of a majority of MPs for
constituencies for England, or for England and Wales.
The Party did not support either the introduction of an English
Parliament or reducing the number of Scottish MPs at Westminster.
Three options were put forward for consideration.
1. Reformed consideration of Bills at all stages:

a Bill would be certified by the Speaker as applying


to a particular part of the UK

where it related only to England or England or


Wales, the Bill would have its second reading in a
Grand Committee, comprising all MPs from the
relevant nation(s)

Bills that dealt exclusively with English matters


already devolved to the other nations would proceed
entirely through an English-only process

legislation that covered areas which were both


devolved and reserved would need to pass through
two parallel processes, one for each part of the Bill.

2. Reformed amending stages of Bills:

Bills certified as relating solely to English, or English


and Welsh matters, would pass as normal at Second
Reading

the Committee Stage would be taken by those MPs


only, in proportion to their party representation in
the House of Commons

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at Report stage the Bill would be voted on by those


MPs only

at Third Reading the Bill would be voted on by the


whole House.

3. Reformed Committee Stage and Legislative Consent Motions:

Second Reading would be taken as normal by all MPs

the Committee stages of English or English and Welsh


only Bills would be taken in Committee only by MPs
from those countries, in proportion to their party
representation in the House of Commons

Report stage would be taken as normal by all MPs

an English Grand Committee would then vote after


Report stage but prior to Third Reading, on a
Legislative Consent Motion, English or English and
Welsh MPs would therefore be able to grant their
consent or veto a Bill, or relevant parts of it

such decisions would have the same status as those of


the Scottish Parliament on devolved matters. A Bill
could not pass to Third Reading without passing the
legislative consent vote

Third Reading would be taken as normal by all MPs,


but only if the legislative consent motion was passed.

In February 2015 the Conservative Party announced that its favoured


proposal on the English question was Option 3. William Hague MP,
Leader of the House of Commons, stated that this was the least radical
of the three options, and would bring fairness and accountability to
England without breaking up the unity and integrity of the UK
Parliament. Legislation is not expected to be brought forward before
the May 2015 general election.

Chapter 17: Principles of judicial review III: irrationality and proportionality


In R (Lord Carlile of Berriew) v Secretary of State for the Home
Department [2014] UKSC 60 the Supreme Court considered the
concepts of deference and proportionality within the context of
Convention rights. A dissident Iranian politician, resident in France,
had been denied entry to the United Kingdom since 1997 on the
ground that her exclusion was conducive to the public good. Members
of the House of Commons and House of Lords invited her to meet them
to discuss issues of human rights and democracy in Iran. Acting on the
advice of the Foreign Secretary, the Home Secretary refused her entry
on the basis that her presence would risk jeopardising the UKs
economic interests and its diplomatic relationship with Iran and
increase the risk of violence against property and people in Iran.
Judicial review was sought on the grounds that the Home Secretarys
reasons for maintaining the exclusion were disproportionate and her
decision unlawful, and that the decision was an unjustified interference
with their right to freedom of expression (Article 10).
The appeal was dismissed. The Court of Appeal had held that in
matters of national security and foreign policy a review of the
Secretary of States decision was to be conducted on the basis of

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rationality, legality and procedural propriety and that once the court
was satisfied that the decision fell within the range of decisions that
could lawfully be made, the Court was not required by proportionality
to go further. This, the Supreme Court ruled, was the wrong approach.
According to Lord Kerr JSC the process stated in Aguilar Quila [2012]
1 AC 621 applied. The questions which had to be asked were:
1. Is the objective sufficiently important to justify limiting a
fundamental right?
2. Are the measures which have been designed to meet it rationally
connected to it?
3. Are they no more than are necessary to accomplish it?
4. Do they strike a fair balance between the rights of the individual
and the interests of the community?
In conducting this exercise, the Court must exercise its own judgment.
It is for the Court, not the decision-maker, to decide that the measures
are no more than is required to achieve the objective and that a fair
balance has been struck (i.e. that it is proportionate) (at para.137).
On the issue of institutional competence and deference, the Supreme
Court ruled that where the executives decision was based on factors
where the court did not have the evidence, experience and institutional
legitimacy to form its own view with confidence, its interference could
only be justified in exceptional circumstances. In this case international
relations, economic and diplomatic interests and the potentially harmful
effects on the safety of individuals were matters which were entrusted to
the executive which had the specialised experience, range of source
material and the institutional competence to enable it to reach a decision
which should be given great respect by the courts.
The question of whether or not a body had acted in breach of its
statutory duty arose in R (Lumsdon) v Legal Services Board [2014]
EWCA Civ 1276. The regulatory objectives of the Quality Assurance
Scheme for Advocates (QASA), a body established to oversee the
quality of advocacy at the Bar, were set out in s.1 of the Legal Services
Act 2007. The claimants sought judicial review of the decision of the
Legal Services Board to approve the introduction of QASA on the
ground that the combined effect of elements of the scheme was such as
to undermine the independence of the advocates. The Court of Appeal
disagreed: neither individually nor cumulatively did those elements
undermine the independence of advocates. On the correct test to be
applied to review, the Court ruled that the heightened Wednesbury
principles applied. Since the scheme did not involve any interference
with fundamental human rights or constitutional principles,
proportionality was not the correct test. Moreover, the Legal Services
Board was the regulator given power by Parliament to assess advocacy
quality and had a substantial margin of discretion. It was not for the
Court to substitute its own decision for that of the Board.
Improper purpose
Improper purpose was central to R (Core Issues Trust) v Transport for
London [2014] EWHC 2628. In 2012 Transport for London (TfL)
decided not to allow an advertisement placed by Core Issues Trust to
appear on the side of London buses. The Advertising Policy of TfL

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stated that advertisements would not be approved if they were likely


to cause widespread or serious offence or which relate to matters of
public controversy or sensitivity. The advertisement in question
implied that there could be some reversal of or recovery from
homosexuality. The Mayor, Boris Johnson, was Chairman of TfL, and
he had made his opposition to the advertisement known to TfL.
Counsel for the Core Trust alleged that the motivation behind TfLs
case was the improper advancement of the Mayor's election campaign.
There was some dispute as to whether or not the decision was taken by
the Head of Marketing or whether the Mayor had instructed TfL to
withdraw the advertisement. It was accepted by the Court of Appeal
that if the decision to disallow the advertisement was taken to advance
Mr Johnsons election campaign rather than for the purpose of fulfilling
the objectives of the Policy, that decision would have been unlawful.
However, on the evidence before the Court, a decision as to purpose
could not be made. The Court of Appeal therefore remitted the case for
reconsideration. In any event, if the decision was instructed by the
Mayor or made for an improper purpose, it remained open to TfL to
disallow the advertisement (i.e. remake the same decision) provided that
it was not instructed by the Mayor or pursuing an improper purpose.
Policy
In R (Sandiford) v Secretary of State for Foreign and Commonwealth
Affairs [2014] UKSC 44 the Supreme Court ruled that the Foreign
Secretarys policy of refusing to provide funding for legal
representation to UK nationals facing the death penalty abroad was
lawful. The policy of not funding legal advice or representation for
nationals abroad was a blanket policy with no exceptions. The source
of the Foreign Secretarys power was the royal prerogative, not statute,
and the courts approach to the prerogative was different. Whereas
under statute there could be an implication that a power was to be
exercised differently under different circumstances, this was not the
case with the prerogative. The royal prerogative was intrinsic to the
Crown and it was for the Crown to determine whether and how to
exercise them in its discretion. However, that did not mean that the
exercise of a prerogative power should be immune from all judicial
review, and there was no reason why the exercise of a power or the
failure to exercise a power should not be reviewable on the grounds of
irrationality or breach of other judicial review principles.
Dismissing the appeal, the Supreme Court found that on the facts the
Foreign and Commonwealth Office had responded with appropriate
urgency, and had put the appellant in contact with an experienced
local lawyer. However, the Court stated that the appellant remained
in urgent need of legal help and called on the government to review
its policy.
Time limits
The Court of Appeal in R (Ali) v Secretary of State for Justice [2014]
EWCA Civ 194 ruled that there was nothing unreasonable, irrational or
unlawful in the policy adopted by the Secretary of State to impose a
time limit of three months on applications to reopen decisions on
compensation following a finding of a miscarriage of justice.

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The importance of context was emphasised by Lord Mance in Kennedy


v The Charity Commission [2014] UKSC 20, who expressed the view,
obiter, that proportionality could be relevant in judicial review even
outside the scope of Convention and EU law. Lord Mance stated the
advantages of proportionality in the following terms:
The advantage of the terminology of proportionality is that it
introduces an element of structure into the exercise, by
directing attention to factors such as suitability or
appropriateness, necessity and the balance or imbalance of
benefits and disadvantages.
(at para.54)
On whether proportionality had developed into domestic public law,
Lord Carnwath was doubtful, expressing the view that:
it is at best uncertain to what extent the proportionality text,
which is an essential feature of Article 10.2 as interpreted by
the Strasbourg court, has become part of domestic public law.
(at para.246)
Consultation
A consultation exercise was ruled to be unlawful by the Supreme Court
in R (Moseley) v Haringey London Borough Council [2014] UKSC 56.
Prior to 2013, central government operated a Council Tax Benefit
(CTB) scheme. Residents in local authority areas were relieved from
paying Council Tax on a means tested basis. The local authority was
reimbursed in full by central government. For the year 2013 to 2014
the amount to be reimbursed to local authorities was reduced to 90 per
cent of the sum received in the previous year. Each local authority was
required to devise a Council Tax Reduction Scheme (CTRS) for those
whom they considered to be in financial need. Before making such a
scheme the authority was under a statutory duty to consult such other
persons as it considers are likely to have an interest in the operation of
the scheme. Haringey LBC published a draft scheme in 2012 proposing
that the shortfall in central government funding would be met by a
reduction in Council Tax relief for all CTB claimants other than
pensioners. It did not explain the different options for making up the
shortfall in revenue, such as raising Council Tax, reducing funding to
council services or deploying capital reserves. Lord Wilson ruled that
fairness demanded that the consultation document should refer to
alternative methods of meeting the shortfall. The council assumed that
the shortfall would be met by a reduction in Council Tax relief and no
other option was presented. Lord Reed also ruled that the consultation
was unlawful. However, he based his decision not on fairness but on
the context in which the statutory duty was imposed. In this case, the
duty was to ensure public participation in the decision-making process.
Accordingly, it was essential that those consulted should be provided
with an outline of the realistic alternatives and an indication of the
main reasons for the authoritys adoption of the draft scheme.
Fairness
Fairness was at issue in R (L) v West London Mental Health NHS Trust
[2014] EWCA Civ 47, a case concerning a patient with serious mental
health problems who was detained under the Mental Health Act 1983.

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The managers of a medium security hospital wanted to transfer the


patient to a high security hospital. Before he was transferred the
patient sought judicial review on the basis that the procedure before
the decision-making panel had been unfair. He had not been given the
gist of the reasons for his transfer, or been allowed to see documents
concerning his case or allowed to make representations to the panel.
The Court of Appeal ruled that the common law duty of procedural
fairness required that the patient be given the gist of the facts on which
they relied and allowed to make written representations to the panel.
Reasons
In R (Litvinenko) v Secretary of State for the Home Department [2014]
EWHC 194 (Admin) the widow of a former Russian agent murdered in
London in 2006 sought judicial review of the Secretary of States
refusal to establish a statutory inquiry into his death, as requested by
the Coroner. The Secretary of State had not ruled out an inquiry but
had adopted a wait and see approach. The deceased had been
murdered with polonium, and prima facie evidence suggested that the
murder was committed on the orders of officials of the Russian state.
The Secretary of State gave six reasons for declining to accede to the
Coroners request. Three of these were found to be inadequate or
incorrect; two raised concerns but were of subsidiary importance to
the claim and one was found to be wrong, but immaterial. Taken
together, the Court ruled that there was a strong case for setting up a
statutory inquiry and that the reasons given by the Secretary of State
do not provide a rational basis for the decision not to set up a statutory
inquiry. The deficiencies in the reasons given were so substantial that
the decision could not stand and a quashing order would be granted.
Richards LJ went on to rule that the Secretary of State needed to offer
better reasons for not holding an inquiry in order to provide a rational
basis for her decision. However, her discretion under s.1(1) of the
Inquiries Act 2005 was very broad. Accordingly, the Court did not feel
that it could say that the Secretary of State has no rational option but
to set up a statutory inquiry now. The Home Secretary then decided to
establish an inquiry, under the Inquiries Act 2005. The inquiry opened
in January 2015, chaired by former High Court judge, Sir Robert
Owen. The inquiry is due to conclude by the end of 2015.
Reform of judicial review
Concern over what the government regards as abuse of the judicial
review process has led to reform. Section 84 of the Criminal Justice
and Courts Act 2015 amends s.31 of the Senior Courts Act 1981 to
include the requirement that a court must refuse relief on an
application for judicial review if it appears to the court to be highly
likely that the outcome for the applicant would not have been
substantially different if the conduct complained of had not occurred
(s.31(2)(2A)). The court may disregard that requirement if it appears
to the court that there are reasons of exceptional public interest for so
doing (s.31(2B)). The High Court, of its own motion, may consider
whether the outcome would have been substantially different or not,
and must consider that question if the defendant asks it to do so
(s.31(2)(3C)).
Where the applicant cannot establish that the outcome would have
been substantially different, the court must refuse to grant leave. This

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restriction, however, may be disregarded if the court considers that


there are reasons of exceptional public interest for so doing
(s.31(2)(3E)). The effect of this is that focus shifts from the central
consideration of whether or not a public body has acted unlawfully to
considering the impact of the alleged conduct on the applicant. The
Government claims that the reform will not stop the crucial role that
judicial review plays, and that it is designed to tackle the large and
growing number of unmeritorious judicial review applications which
clog up our court system, put burdens on public services, and hold up
reform (Criminal Justice and Courts Bill Fact Sheet: Reform of Judicial
Review). The difficulty with this provision is that where a person
cannot establish that the outcome would have been substantially
different, there is no mechanism whereby the courts can rule on the
legality or otherwise of a public bodys decision unless the exceptional
public interest exception can be satisfied.
The 2015 Act includes a requirement that the applicant provides
information about their financial resources to the court, including
information about the source, nature and extent of financial resources
available to meet liabilities arising in connection with the application
(s.85, amending s.31(3) of the Senior Courts Act 1981). The Criminal
Justice and Courts Act 2015 also provides that the court may not order
a party to the proceedings (whether the applicant or defendant) to pay
the costs of an intervener, other than where the court considered there
are exceptional circumstances making it appropriate to do so (s.87).
The court must order the intervener to pay any costs that have been
incurred as a result of that intervention in the proceedings if certain
conditions are met. Those conditions are that:
(a) the intervener has acted as the sole or principal
applicant, defendant, appellant or respondent;
(b) the intervener's evidence and representations, taken
as a whole, have not been of significant assistance to
the court;
(c) a significant part of the intervener's evidence and
representations relates to matters that it is not
necessary for the court to consider in order to resolve
the issues that are the subject of the stage in the
proceedings;
(d) the intervener has behaved unreasonably. (s.87(6))
The court is not required to make an order that the intervener pay
costs if it considers that there are exceptional circumstances that make
it inappropriate to do so (s.87(7)).

Chapter 18: Human rights protection


The European Court of Human Rights and domestic courts
The Supreme Court in R (Haney, Kaiyam and Massey) v Secretary of
State for Justice and R (Robinson) v Governor of HMP Whatton [2014]
UKSC 66 ruled that it was not bound to follow the ECtHRs precedent
case (James v United Kingdom (app no 25119/09)) on the basis that
the express wording of Article 5(1) or 5(4) did not create a duty as
the ECtHR had held to provide prisoners with a reasonable
opportunity to progress their rehabilitation and release. There was,

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however, an implied ancillary duty to facilitate prisoners rehabilitation


and release and breach of that duty, while not affecting the lawfulness of
the detention, would entitle the prisoners to damages.
Article 2
In R (Nicklinson) v Ministry of Justice [2014] UKSC 38 the Supreme
Court considered whether s.2 of the Suicide Act 1961, which makes
assisting another person to commit suicide an offence, contravened
Article 8 (the right to respect for private life) of the ECHR. The Court
declined to make a declaration of incompatibility, holding that it was
Parliament, rather than the courts, which had the institutional
competence to reform the law.
On the question of whether or not a declaration of incompatibility
should be issued, four of the nine Justices ruled that the matter should
be left to Parliament, five of the nine Justices ruled that the Court had
the right to get involved, but three of those five ruled that Parliament
should have the opportunity to rule on the matter before the Court
made a ruling.
Debate on the issue of assisted suicide was promoted by Lord
Falconers Assisted Suicide Bill 2014. The Bill provides for a person
over the age of 18 who is terminally ill and has six months or less to
live to seek and lawfully be provided with assistance to end their own
life. The person concerned, and no one else, would request assistance.
The applicant must sign a declaration stating their clear and settled
intention to end their own life, and the form must be countersigned by
two doctors. An amendment to the Bill inserts the requirement that the
High Court (Family Division) must be satisfied that the applicant is
acting voluntarily, has a settled and informed wish to end his or her
life, is over 18 years of age and has the capacity to make the decision.
The person would be provided with medication to end his or her life
and a doctor or nurse would remain with the person until the medicine
had been taken and the person had died, or the person had declined to
take the medicine. The medicine must be self-administered. This
therefore does not amount to euthanasia, which is when life-ending
medication is administered to a patient by another. If passed, the Act
would only apply to England and Wales and Clause 13 inserts a sunset
clause providing that the Act could be repealed by a Resolution of each
House of Parliament after 10 years.
Article 3
In Vinter v United Kingdom (app no 66069/09) the Grand Chamber of
the ECtHR ruled that the imposition of a whole life sentence for
murder, as such, did not violate Article 3. However, if there was no
legal mechanism for reviewing that order in place at the time of
sentencing there would be a breach of Article 3. The Court held that
s.30 of the Crime (Sentences) Act 1997 did not provide sufficient
clarity to be compatible with Article 3. In AGs Reference No 69 of 2013,
R v McLoughlin, R v Newell [2014] EWCA Crim 188 the Court of Appeal
disagreed with the finding of the ECtHR, stating that the law was clear
as to the possible exceptional release of whole life prisoners. In
Hutchinson v United Kingdom (app no 57592/08) the ECtHR accepted
(following the case of McLoughlin and Newell) that domestic law now
satisfied the requirements of Article 3. In Hutchinson the Court stressed

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that it was primarily for the national courts to resolve problems of


interpretation of domestic law.
Article 4
Concerns over the conditions of domestic workers and the problem of
human trafficking has prompted the Modern Slavery Bill 2014. The Bill
creates criminal offences in relation to slavery or servitude and human
trafficking. The Bill also establishes the post of Anti-slavery
Commissioner with responsibility for promoting awareness among
public and private bodies. The progress of the Bill can be followed at
www.parliament.uk
Article 5
A case having wide ranging implications for social services and the
courts is Cheshire West and Chester Council v P [2014] UKSC 19. In this
case the appeals concerned whether the living arrangements made for
mentally incapacitated persons amounted to a deprivation of liberty
contrary to Article 5. The courts below had each ruled that the
arrangements were in each of the three appellants best interests and
did not amount to a deprivation of liberty.
The Supreme Court, however, ruled unanimously that P had been
deprived of his liberty and by a majority of four to three, that P and Q
(otherwise known as MIG and MEG) had been deprived of their liberty.
The key feature of deprivation of liberty is whether the person
concerned is under continuous supervision and control and is not free
to leave. Lady Hale, DPSC, stated that:
The fact that my living arrangements are comfortable, and
indeed make my life as enjoyable as it could possibly be,
should make no difference. A gilded cage is still a cage.
(at para.46)
Lord Carnwath, Lord Hodge and Lord Clarke, dissenting, in relation to
MEG and MIG, ruled that the degree of intrusion was relevant to
deprivation of liberty and that in the appellants cases the care regime
was no more intrusive or confining than required for the protection
and well-being of the persons concerned (at para.90).
Article 8
The duty of local authorities to provide adequate care for a person in
need was considered by the ECtHR in McDonald v United Kingdom (app
no 4241/12) (2015) 60 EHRR 1. Central to the case was whether the
authoritys care plan interfered with the applicants Article 8 rights and
whether the local authority was entitled to meet the need in the most
economic manner. The Supreme Court had held that there was no
interference with her Article 8 rights. The ECtHR ruled that for a period
between the withdrawal of night-time care and the authoritys review of
its care plan there had been an unlawful interference with the right to
respect for private life. However, for the majority of the relevant time
there was no violation of Article 8. States are afforded a wide margin of
appreciation in issues of general policy and the authority was entitled to
make its assessment of priorities in light of limited state resources.
Furthermore, the national courts had adequately balanced the
applicants interests against the more general interest of the community
and therefore satisfied the requirements of proportionality.

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A declaration of incompatibility was issued by the Court of Appeal in R


(T, JB and AW) v Chief Constable of Greater Manchester [2013] EWCA
Civ 25. At issue was the law relating to the blanket disclosure of
convictions and cautions, and the claim that these were incompatible
with Article 8 on the grounds of disproportionality. Secondary
legislation remedied the defect. The Supreme Court upheld the
reasoning of the Court of Appeal: [2014] UKSC 35.
In Gough v United Kingdom (app no 49327/11) the ECtHR ruled that
refusing to wear clothes is not a human right. The applicant had
consistently refused to wear clothes under any circumstances. He had
been arrested over 30 times and between 2003 and 2013 had spent a
cumulative total of over seven years in detention following convictions.
There was no breach of either Article 8 or 10. The cumulative effect of
the consequences of his actions was undeniably severe. However, he
was responsible for his own situation, and the law pursued a legitimate
aim of preventing disorder and crime.
Freedom of expression
One of the justifications for restricting freedom of expression was
considered in A v British Broadcasting Corporation [2014] UKSC 25.
A was subject to a deportation order following his conviction for sexual
offences. He claimed that if his identity became known in his country
of origin he would be at risk of death or serious harm. A court order
made under s.11 of the Contempt of Court Act 1981 prohibited
disclosure of his identity. The British Broadcasting Corporation (BBC)
challenged the order as being contrary to the right to freedom of
expression. The Supreme Court ruled that if the order was lifted, it
would undermine all the proceedings which had taken place since
2007. Protection of As identity was essential to the ability to deport
without violating As Article 3 rights. The exception to the principle of
open justice, and restriction of the right of the BBC to disclose As
identity, was justified by Article 10.2 the need to protect the
authority and impartiality of the judiciary.
Terrorism
Schedule 7 to the Terrorism Act 2000 empowers a police officer to
question a person at an airport for the purpose of determining whether
he or she is a person falling within s.40(1)(b) of the Act, namely a
person who was concerned in the commission, preparation or
instigation of acts of terrorism as defined in s.1 of the Act. This power
was central to the case of R (Miranda) v Secretary of State for the Home
Department [2014] EWHC 255, [2014] 1 WLR 3140. The claimant
travelled from Brazil to Germany to collect encrypted data which
included intelligence material classified as secret or top secret. He did
so on behalf of a journalist. When in transit at Heathrow Airport,
London, he was stopped and searched and the material retained. The
claimant challenged the legality of the police action, arguing that the
power had been used for the wrong purpose, and that its exercise
amounted to a disproportionate interference with his right to protect
journalistic expression and was incompatible with Article 10 (freedom
of expression) of the ECHR. The Court ruled that the action of the
police was lawful. The purpose of the stop had been to ascertain the
nature of the material carried. The definition of terrorism within s.1
was capable of covering the actual or threatened publication of stolen

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classified information which would endanger the lives of armed forces


or members of the security and intelligence agencies.
Legislation
Section 1 and Schedule 1 of the Counter-Terrorism and Security (CTS)
Act 2015 provide mechanisms to stop people travelling from the UK to
fight for terrorist organisations overseas. Where a police officer has
reasonable grounds to believe that a person intends to become
involved in terrorism overseas, the officer may stop and search the
person (Schedule 1, para.2). Reasonable force may be used
(para.2(7)(b)). The person concerned must be informed of the officers
suspicion. The officer may give directions to customs or immigration
officers for the retention of a passport or ticket for travel. The travel
document may be retained for a short period in order to allow the
Secretary of State to consider whether or not to cancel the persons
passport, to charge the person with an offence or to make the person
subject to an order to protect the public from a risk of terrorism
(para.5). A review of the decision to retain the document must be
undertaken after 72 hours (para.6). The document may not be retained
for more than 14 days, unless the period is extended by a judge to a
total period not exceeding 30 days (para.8). The person concerned
may be legally represented and has a right to make oral or written
representations to the court. The court may exclude that person or his
or her representative from the hearing (para.10). Where a person is
unable to leave the UK as a result of the retention of his or her travel
document(s) the Secretary of State may make whatever arrangements
in relation to that person as she thinks appropriate (para.14). A Code
of Practice regulates the operation of these powers.
Temporary exclusion orders (TEO) are provided for under s.2. The
purpose of a TEO is to prevent a person from returning to the UK
unless their return is in accordance with a permit from the Secretary of
State. A TEO may only be made where the Secretary of State
reasonably suspects that the individual is or has been involved in
terrorism-related activity outside the UK, and reasonably believes that
the imposition of the order is necessary to protect the public in the UK
from a risk of terrorism and the permission of a court has been given
(s.3). The function of the court is to determine whether the decision of
the Secretary of State is obviously flawed. If it is not, the court must
give permission (s.37). Section 2(7)(b) provides that if the Secretary of
State reasonably believes that there is an urgent need to impose a TEO
it may be imposed without the permission of the court. In such
circumstances the Secretary of State must, immediately after giving
notice of the imposition of the TEO to the individual concerned, refer
the matter to the court (Schedule 2, para.3). The function of the court
is to determine, within seven days of the TEO being imposed, whether
her decision was obviously flawed. If it was flawed, the TEO will be
quashed by the court (Schedule 2, para.4(1)). If it is not, the court
must confirm the order. Where a TEO is imposed, it comes into effect
on notification of its imposition, and is in force for a period of two
years, unless revoked or brought to an end earlier (s.4(3)).
Where a TEO is made, the passport of a British citizen is invalidated
(s.4(9)). A person subject to a TEO may be granted permission to return.
If the individual applies for permission to return it must be granted

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unless the Secretary of State requires the individual to attend an


interview with a police officer or immigration officer and the individual
fails to attend the interview (s.6(2)). Permission to return may be
subject to reporting requirements and attendance at appointments which
may include de-radicalisation programmes (ss.59).
The CTS Act 2015 amends the Terrorism Prevention and Investigation
Measures Act 2011, reinstating the power to order a person to live in a
specified locality (s.16). If there are premises that are the individuals
own residence, premises more than 200 miles away may only be
specified if they are in an agreed locality (s.16(3)).
The CTS Act 2015 includes measures designed to prevent people from
being drawn into terrorism. Section 26 provides that specified
authorities (as listed in Schedule 6) must, in the exercise of its
functions, have due regard to the need to prevent people from being
drawn into terrorism. The Secretary of State has the power to issue
guidance to authorities (s.29). If an authority has failed to comply with
the Act the Secretary of State may give directions for the purpose of
enforcing the performance of that duty (s.3(1)). In relation to
universities and colleges of further education, s.31 provides that when
carrying out its duty under the Act, the authority must have particular
regard to its duty to ensure freedom of speech, and the importance of
academic freedom. In order to identify and support individuals who are
vulnerable to being drawn into terrorism, s.36 provides that every local
authority must have a panel of persons to assess individuals who are
referred to it by the police. In addition to assessments the panel must
draw up support plans with a view to preventing the person being
drawn into terrorism.
The Act amends the Data Retention and Investigatory Powers Act 2014
to require communications service providers to retain additional
communications data that will allow the authorities to link the internet
address to the person using it at the time (s.21). The Act also amends
the authority to carry schemes to enhance the information available and
to impose security measures on aviation, shipping and rail (ss.2225).
The Bill was fast-tracked through Parliament, completing its stages
within three months and receiving the Royal Assent on 12 February
2015. The operation of the Act is subject to review by the Independent
Reviewer of terrorist legislation (s.44). Part 5 of the Act extends to
England, Wales and Scotland, the rest of the Act applies to the whole
of the United Kingdom.

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