RIDGE v BALDWIN NO.1

Justice should not only be done, but should manifestly and undoubtedly be seen to be done’ is a phrase too often overlooked by those seeking legal remedy; and so, when fear and prejudice cloud the flow of proceedings, the outcome is one left wanting, when on this occasion, the alleged actions of a police employee provoke a one-sided evaluation of accounts.

In 1925, the appellant joined Brighton police force where he was regularly promoted until reaching the position of chief constable; while at this time, the police were overlooked by the watch committee, who were endowed with powers short of that held by the Secretary of State.

In 1957, and at a time close to the point of his retirement, the appellant was embroiled in a conspiracy charge involving himself and four other officers; upon which, the the respondent watch committee took steps to suspend him from service under the terms of the Police Discipline (Deputy Chief Constables, Assistant Chief Constables and Chief Constables) Regulations 1952, while allowing him full pay under regulation 15 of the same legal instrument.

Having been tried in the Central Criminal Court, the appellant was acquitted of the charges brought against him; after which, his solicitor requested he be reinstated. At the summation of the trial, the presiding judge passed comment as to the qualities shown by the appellant when carrying out his role, by saying to those sentenced:

“[N]either of you had that professional and moral leadership which both of you should have had and were entitled to expect from the chief constable of Brighton, now acquitted…”

Within a month, the appellant was tried for a second indictment concerning the receipt of £20 from a known criminal, to which he pleaded not guilty, and for which the prosecution offered no evidence with which to convict; whereupon the judge commented again:

“This prospect and this risk will remain until a leader is given to the force who will be a new influence, and who will set a different example from that which has lately obtained.”

The next day, the appellant was informed of a watch committee meeting yet was extended no invitation, after which he received a letter informing him of his dismissal.

The reasons cited were based upon numerous unfounded statements by members of both the committee and the town clerk, both suggesting his negligence in the discharge of duty, thus being unfit for purpose, and that the decision had been based upon conferred powers of section 191(4) of the Municipal Corporations Act 1882

That same day, the appellant’s solicitor wrote to the Secretary of State contending that the dismissal was unlawful, an affront to the processes of natural justice, and that they were appealing under the Police (Appeals) Act 1927, on grounds that the terms of the dismissal failed to disclose specific details that in turn were subject to his right to provide a statement of defence under regulation 18 of SI 1952 No.1706.

In such circumstances, there must also be a tribunal hearing, whereupon submissions by both parties must be evaluated and assessed before the watch committee can, on proof of the evidence, decide the appropriate punishment where justified.

By the provisions of the Police Pensions Act 1948, it was then the duty of the Secretary of State to determine if those dismissed were entitled to their pensions where relevant, and on this occasion the appellant was asking for such rights instead of reinstatement.

Having been brought before the courts, the first judge held that that the dismissal was null and void, but subject to the final decision of the Secretary of State, who had at such time, dismissed the appellant’s appeal, whereupon a similar fate was found in the Court of Appeal.

Presented for a final time to the House of Lords, the facts were explored to a greater extent; at which point, it was held by majority that the respondents’ were obliged under section 4(1) of the Police Act 1919, to provide the appellant with an opportunity to defend himself against the claims proposed yet unproven, and that to circumvent the legal procedures expected, was tantamount to a violation of natural justice and subsequently void of merit.

It was for that reason, that the appeal was allowed and the matter referred back to the courts for revisitation of the facts, with note that the appellant sought only his full pension rights and not a return to work, while the court reminded the parties that:

“[T]he essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet…”

REGINA (SB) v THE GOVERNORS OF DENBIGH HIGH SCHOOL

A difference of opinion regarding school uniform found itself thrust into judicial review, when a Muslim pupil refused to follow school policy, but insisted freedom to choose under the terms of the Convention.

However, when the claim was counter-challenged, the courts fell into conflict as to procedural requirements, and that of continued mediation between parties.

Seventeen year-old Shabina Begum commenced legal proceedings against Denbigh High School, after the Headmaster refused to let her wear a religious garment known as a ‘jilbab’ because it was not in accordance with existing school uniform policy; a policy which had been sensitively implemented through consultation with the local Muslim community several years prior to the incident.

The respondent had been aware of this policy for two years, and had worn the approved uniform during school without protest; however, when advised to go home and change or risk staying away from the school, the respondent claimed that such a refusal to let her ‘manifest’ her religious beliefs and removal from school, directly violated articles 8 (Right to respect for private and family life), 9 (Freedom of thought, conscience and religion) and 14 (Prohibition of discrimination) of the European Convention on Human Rights; and that denying her access to an education was also a breach of article 2 (Right to life) of the Convention.

After numerous solicitors failed to sway the school’s decision, and despite every effort being made on the part of the school to help bring the respondent back to her classes, receive home teaching, or move to an alternative school that would allow her to wear her jilbab, the case eventually went to court where the original judgment was found in favour of the appellants.

When subject to the Appeal Court, the residing judges reversed the decision back in favour of the respondent; after which, the school sought leave to appeal to the House of Lords.

Here, after lengthy exploration of the manner in which the Appeal Court approached the case, the House found by majority that while deprivation of the right to observe and manifest article 9 of the Convention prima facie warranted a claim for judicial review, it was equally important to note that article 9(2) gave express terms as to when an institution or local authority policy is deemed to have interfered with that right.

On this occasion, such a claim was simply untenable given the thorough attention to detail shown by the school when designing and approving the uniform worn at the time the respondent sought action; and so, for this reason (and many more besides) the appeal was upheld and the original judgment restored, while the House remained mindful of the errors shown by the lower courts throughout the trial when holding that:

“Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing.”

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX P FIRE BRIGADES UNION

In a collective application for judicial review, the actions of the Secretary of State for the Home Department were held to account when a decision was made to override and subsequently remove, existing but as yet unenforced statute, in lieu of a more cost effective solution to criminal offence compensation.

In 1964, the unprecedented Criminal Injuries Compensation Scheme was created under the Crown’s prerogative powers, and while described as “one of the most generous state compensation schemes for the victims of crimes of violence anywhere in the world”, all payments were made ex gratia through nominated funds reserved by the House of Commons, meaning that its operation existed beyond the scope of legislation and remained subject to the discretion of the appointed personal injury assessors.

In 1978, the Pearson Commission on Civil Liability and Compensation for Personal Injury Command Paper proposed that the scheme needed to become statutory and operate upon tortious principles, as had already been applied.

In 1986, it was reported that the scheme had now been included within sections 108 – 117 of schedules 6 and 7 of the Criminal Justice Act 1988, in which section 171(1) of the Act read:

“Subject to the following provisions of this section, this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint and different days may be appointed in pursuance of this subsection for different provisions or different purposes of the same provision.”

Criminal Justice Act 1988

This translated that the Secretary of State was afforded a degree of discretion as to exactly when the powers of the scheme were to become fully enforced.

In financial terms, the programme had experienced enormous growth, and by 1984, the government was paying out over £35m per year, with a backlog of nearly fifty-thousand claims.

Based upon calculated projections, the government concluded that by the year 2000, the annual cost would have risen to around £550m, therefore a proposal was made to replace the existing system with a newly drafted compensation tariff, which was presented through a White Paper titled ‘Compensating Victims of Violent Crime: Changes to the Criminal Injuries Compensation Scheme’.

In contrast, this system offered claimants a flat-rate compensation tariff that while lower in award levels, expedited the claim process and removed the need for legal advice aside from appeal cases, thus lowering the anticipated costs to an estimated £225m per year.

It was also decided that the tariff-based scheme would likewise operate ex gratia, despite calls for statutory implementation of the existing system.

In light of this unexpected turn, the respondent Fired Brigades Union along with the National Association of Schoolmasters and Union of Women Teachers, UNISON, GMB, the Royal College of Nursing, the Transport and General Workers’ Union, the Prison Officers’ Association, the Associated Society of Locomotive Engineers and Firemen, the Civil and Public Services Association, the Trades Union Congress and the NatWest Staff Association applied for judicial review on grounds that the decision by the Secretary of State to avoid enforcement of sections 08 – 117 of schedules 6 and 7 of the Criminal Justice Act 1988 and implement the Criminal Injuries Compensation Tariff scheme, constituted a breach of statutory duty and abuse of position, and therefore the courts were required to issue an order of mandamus to enforce the statute, and an interlocutory injunction to prevent the implementation of the tariff.

In the first instance, the respondents were awarded leave for judicial review on the proviso that the tariff scheme remained in stasis until a verdict had been reached, and in lieu of the injunction being dropped; whereupon the court dismissed the application but granted leave to appeal.

In the Court of Appeal, it was held that the terms of sections 108 – 117 of schedules 6 and 7 of the Criminal Justice Act 1988 were in principle effective and so no action was needed, but that the overriding of existing statute in favour of the tariff constituted an abuse of position; at which point the Secretary of State appealed, while the respondents cross-appealed.

Heard before the House of Lords, the facts of the case were given due consideration; however, the lines were drawn between political discourse and the powers of the court; in which, the suggestion that the House ought to ‘enforce’ the enactment of a statute already enshrined was held as ultra vires to the judiciary, but that circumvention of the powers of the Criminal Justice Act 1988 amounted to an abuse of prerogative powers, and one representative of a frustration of statute through the actions of those obliged to enforce them with unanimity.

Whereupon, both appeals were dismissed by majority, while the House reminded the parties that:

“It is for Parliament, not the executive, to repeal legislation. The constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body.”

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX P BRIND

Ministerial discretion and the supremacy of European principles, force the judiciary to impose demarcation when the imposition of press regulation extends the powers of the executive beyond what some might consider ‘reasonable’ bounds.

At a time when the media was becoming central to the lives of the general public, there were numerous attempts by terrorist factions to use television as a means of political propagation.

In direct response, the Home Secretary of the time issued instructions to both the BBC (British Broadcasting Corporation) and the IBA (Independent Broadcasting Authority) to censor the speech and appearance of those representing such organisations, as to prevent viewers from taking offence and to cripple plans to advocate fear as a means of influence.

These orders fell under the terms of section 29(3) of the Broadcasting Act 1981 and clause 13(4) of the licences agreement between the BBC and IBA respectively, and while stymying the direct effects of terrorist representation, they were flexible enough to allow dubbed voiceovers for the sake of reporting, and also allowed the affected reporters to discuss the comments and associate the parties involved; therefore, not entirely curtailing the views and commentary of those included within the Prevention of Terrorism (Temporary Provisions) Act 1984 and the Northern Ireland (Emergency Provisions) Act 1978.

In an abject reaction of professional outrage, a number of prominent and established representatives of the associated media sought a judicial review on grounds that the censorship of those affected, stood in direct violation of article 10 (Freedom of Expression) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953, while the use of those powers was disproportionate to their objectives and irrational in design, to the extent that such an abuse of power was in need of legal redress.

Heard first in the Divisional Courts, the application was dismissed on grounds that while the principles of the Convention were recognised, the executive powers granted to those qualified were never given lightly; and that on this occasion there was insufficient evidence to suggest the Home Secretary had acted ultra vires of his position.

Taken to the Court of Appeal, the appellants relied upon the principles held in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  whereby the reasonableness of the decision must reflect the objectives while balancing the needs of public interest; again citing that when allowing the Home Secretary to enforce the orders, the executive must have had the Convention principles in mind; and so, therefore allowed a breach that denied impartiality to those affected.

Having evaluated the arguments presented, the Court dismissed the appeal while allowing leave to the House of Lords, at which point the same contentions were used to urge the judiciary to intervene and quash the restrictions now in place, with particular emphasis on the very principles upon which judicial review was founded.

With due consideration of the points raised, the House reminded the appellants that judicial review was a means of management rather than contest for those displeased with case outcomes, while emphasis was placed upon the almost microscopic levels of disruption the censorship caused the broadcasters when accusations of impartiality, irrationality and unreasonableness were made.

When taken collectively, the House dismissed the appeal and ruled unanimously that regardless of what may appear as an abuse of power, was nothing more than a calculated protection of democracy; and that as expressed within article 10(1) of the Convention, those same rights of expression are subject to a degree of restriction where public interest requires it, while concluding that:

“In any civilised and law-abiding society the defeat of the terrorist is a public interest of the first importance.”

M v HOME OFFICE

Administrative confusion and errors in judgment, were the foundations of a refused application for asylum that at first glance appeared false, until professional evidence revealed otherwise.

It was only after a collection of ministerial and administrative mishaps, that the refugee brought civil action against the Home Secretary and the Crown.

In autumn of 1990, an African citizen arrived in the United Kingdom, claiming asylum on grounds that he had been a victim of torture while working as a school teacher in Zaire.

His story, while sounding hard to imagine, was later corroborated by the attending doctor at the Medical Foundation for the Care of Victims of Torture, whose report stated:

“I found nothing in his history or its presentation to suggest that it was in any way unreliable. His description of prison conditions has been confirmed innumerable times by other people who have experienced them. The scars he bears are entirely compatible with the causes he ascribes to them. He is suffering a degree of deafness and spinal trouble quite likely to have arisen from his mistreatment. Psychologically he describes symptoms very likely to arise from the experiences he described. He shows some evidence of depression and his continued detention can only aggravate these symptoms and he could easily become a serious suicide risk.”

Prior to this disclosure, the Home Office had rejected his previous two submissions and plans were set in motion to return him back to Zaire, whereupon he had applied for judicial review; after which time, the deportation arrangements were cancelled in lieu of his appearance before the court.

Two months later, the review application was refused; at which point, the appellant applied to the Court of Appeal. 

Unfortunately, his solicitors failed to lodge the application, therefore it went unregistered, and while the doctor’s report provided sufficient weight to support his claim, it was not received by the Home Office until a day before his planned removal from the country.

By luck rather than judgment, the Court of Appeal had already made time to hear the case on the day of deportation, but dismissed the application while unaware of the report, or that the applicant was changing solicitors, on grounds that his case had been misrepresented, and that a new application for judicial review was being lodged.

Having been heard before Garland J literally thirty minutes before the assigned plane was due to depart, it was decided that there needed to be further provisions in place to evaluate the matter fairly, so proceedings were adjourned in favour of another session the following day.

This led to the cancelling of the flight by the appellant’s solicitor who had telephoned the Home Office accordingly. During this period, Garland J interpreted that the Home Office had expressed permission for the appellant to remain in the country and explained:

 “[T]he application for leave to move for judicial review be adjourned on the undertaking by counsel for the Home Office . . . that the applicant would not be removed from the United Kingdom to Zaire.”

Garland J

For one reason or another, the information was never relayed to those accompanying the appellant and he was deported to Paris en route to his home country.

Around the time the appellant was leaving there had been a meeting between the Parliamentary Under Secretary of State to the Home Office, Home Office officials and the appellant’s representing solicitor, yet no intervening action had been taken with regard to the appellant’s departure.

This culminated in the appellant’s solicitor meeting with Garland J in the midnight hours, whereupon the judge issued a written order requesting the appellant’s immediate return and interim protection.

Notice of this order then reached numerous state departments and their representatives, including the Home Secretary Kenneth Baker who while acting upon legal advice, declared the order beyond the jurisdiction of the judge (ultra vires), and that an appeal would be lodged against the order on grounds that there was insufficient cause for the appellant to receive asylum and return to the United Kingdom.

It was there that the judge held the Home Secretary in contempt of court and declared his actions (or inactions) a breach of statutory duty.

Legal precedence of injunctions or orders served against either the Crown or their representatives dates back to Feather v The Queen, where Cockburn CJ remarked:

“As the Sovereign cannot authorise wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown.”

FEATHER v THE QUEEN

This continued until the Crown Proceedings Act 1947, whereupon section 1 enabled action against the Crown by petition of right, while s.2 allowed tortious claims upon those identifiable under the Crown’s protection.

Section 17 of Part II of the 1947 Act further provided a list of those Ministers and their departments to allow civil claims against the department or the position held by those subject to the action.

Section 21(a) of the 1947 Act also explained that where an injunction or specific performance was sought, the courts would instead allow declaratory rights for those claiming, as to do otherwise would contradict the principle that the Crown can do no wrong.

Under the powers of section 31 of the Supreme Court Act 1981 RSC Ord.53 allowed for judicial review, whereupon section 37(1) of the 1981 Act provided that:

“The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.”

Section 37(1) Supreme Court Act 1981

This translated that irrespective of the violations argued by the Home Secretary, the intentions of Ord.53 were such that allowed the courts to grant interim relief where appropriate, as further expressed in The Supreme Court Practice 1993, which read:

“Where the case is so urgent as to justify it, [the judge] could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But, if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of interim relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application for leave to move for judicial review.”

Having appealed against the charge of contempt, the Court of Appeal held that the Crown, a government department or a Minister were exempt from contempt; whereupon the case was presented to the House of Lords.

Here it was declared that Garland J had been acting well within his judicial powers throughout, and that in consideration of the limited knowledge held by the Home Secretary, it was only reasonable that the charge of contempt was applicable to the position held, rather than that of his own personal acts; at which point, the Home Office appeal was dismissed subject to amendments, while the House reminded the parties that:

“[W]hile a citizen is entitled to obtain injunctive relief (including interim relief) against the Crown or an officer of the Crown to protect his interests under Community law he cannot do so in respect of his other interests which may be just as important.”

LIVERSIDGE v ANDERSON

Reasonableness within the confines of legislation and determination of that principle, fall into varying categories; while national security under times of war, further compounds the need for subjective action, when those bestowed executive powers must act to prevent dissent without fear of reprisal, or leave themselves undermined through abuse of legal recourse.

Acting upon the terms prescribed within the Defence (General) Regulations 1939, it was decided by the Secretary of State, to issue a writ that served to detain a suspected ‘threat’ while the country was at war with Germany.

For reasons undisclosed to the appellant on principle of national safety, the individual was held in indefinite detention in Brixton prison, as an act of subversion against known factions operating to weaken the country’s defences.

After almost a year, the appellant sought to challenge the validity of the writ, contesting that his imprisonment was on fraudulent grounds, and that the above legislation conferred limited powers of issue that on this occasion, were in need of evidential support over subjective opinion.

In addition to this, he requested that there ought to be proven grounds for his incarceration, and that those reasons needed to determine the eligibility to hold him.

In the first hearing, the court dismissed his claim but granted leave to appeal; after which, the Court of Appeal also refused to support any action taken against an executive order; however, they did allow appeal to the House of Lords for purposes of exploration.

As foundation of the appeal, section 18B of the regulations read that: 

“If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.”

Defence (General) Regulations 1939

This particular aspect of legislation was now left to the House to examine in detail before establishing if, under circumstances where no written evidence had been submitted to justify the writ, the Secretary of State was liable to produce such material as to satisfy the restricted liberty of an individual innocent of any criminal wrongdoing.

While in the immediate sense it ran risk of appearing beyond reproach and without just cause, the judges fully appreciated that in times of conflict it was ultra vires for the courts to expect confidential information to be brought into view to resolve what was essentially a claim for damages under the presumption of absolute civil liberty.

Despite fully appreciating the need for personal satisfaction and the variances of reasonableness within numerous forms of English law, it was felt that within a position shouldering tremendous responsibility for the safety and welfare of both the state and the public, the phrase “has reasonable cause” was ultimately to be interpreted as subjective to the Secretary of State, and not one for those bound to his decision, before reassuring the parties that:

“In no case are ordinary legal rights to be affected unless and then only to the extent that Parliament has enacted to the contrary.”

JACKSON v ATTORNEY GENERAL

The implementation of prohibitive statute designed to prevent the hunting of foxes with dogs, was a decision made by the ruling party in a time when the public had seen enough wanton killing to stamp it out for good.

Under traditional constitutional processes, the act of passing a bill required full agreement of the House of Commons, the House of Lords and the Monarchy.

However, on this occasion the Parliament Act 1949 allowed for the creation of the Hunting Act 2004 without the acquiescence of the House of Lords, which became a motion sparking tremendous outrage from those in favour of the ‘sport,’ and resulted in this application for judicial review.

In seeking the reversal of this unprecedented ban, the appellants (Chairman of the Countryside Alliance, a professional huntsman and a self-employed farrier) relied upon the mechanism used to establish the 1949 Act to undermine its legality and have the courts permanently remove it; however, in order to clarify how the argument gained merit, it is necessary to understand how the founding Acts came into existence.

The Parliament Act 1911 was first enacted so as to empower the House of Commons to pass certain Bills without the consent of the House of Lords (subject to a predetermined period of time); after which, the applicable Act would enter into force with equal effect to that which would have required their consent.

This Act was the inevitable product of a previous form of rule so dysfunctional, that without it, the country ran risk of complete collapse or civil revolt; therefore, it was not designed without a degree of resistance from certain quarters.

Many years passed, until the Parliament Act 1949 made some amendments to the 1911 Act; which while considered minor, reduced the period of time in which the House of Commons would need to wait before achieving Royal Assent and subsequent enactment.

This itself, was brought into effect using the terms of section 2(1) of the 1911 Act, which expressed that:

[T]he Bill shall, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified, notwithstanding that the House of Lords have not consented to the Bill.”

The Parliament Act 1911

Therefore, despite not following the conventional methods of construction, the 1949 Act was without doubt, primary legislation and beyond reproach of those in opposition; as was the case when the Hunting Act 2004 was passed, as well as the War Crimes Act 1991, the European Parliamentary Elections Act 1999 and the Sexual Offences (Amendment) Act 2000 before it.

However, in a bid to dismantle the 2004 Act, the appellants drew attention to the wording, which failed to include obligatory reference to “the Lords Spiritual and Temporal and Commons,” but instead used “Queen’s most Excellent Majesty by and with the advice and consent of the Commons in accordance with the provisions of the Parliament Acts 1911 and 1949,”; upon which, they claimed the legislation was merely secondary in effect and therefore invalid.

Having been dismissed in their first hearing, the appellants continued to the Court of Appeal, which followed suit, before allowing leave to the House of Lords.

Here, the principles of legislative power, along with the chequered history behind the 1911 and 1949 Acts, were clearly defined, along with express clarification of the meaning and purpose of legislation as below:

“[A] Bill is not there to inform, to explain, to entertain or to perform any of the other usual functions of literature. A Bill’s sole reason for existence is to change the law. The resulting Act is the law. A consequence of this unique function is that a Bill cannot set about communicating with the reader in the same way that other forms of writing do. It cannot use the same range of tools. In particular, it cannot repeat important points simply to emphasise their importance or safely explain itself by restating a proposition in di­fferent words. To do so would risk creating doubts and ambiguities that would fuel litigation. As a result, legislation speaks in a monotone and its language is compressed.”

Reiterating both the origins and validity of the 1911 and 1949 Acts, the House continued to illustrate that regardless of discrepancies of wording, the power and application of the Hunting Act 2004 remained as resolute as the 1911 Act and any before it; and so, it was with the greatest of respect that the appeal was uniformly dismissed, while the court reminded the parties that:

“[S]tatutory interpretation is properly cognisable by a court of law even though it relates to the legislative process. Statutes create law. The proper interpretation of a statute is a matter for the courts, not Parliament.”

DAVIDSON V SCOTTISH MINISTERS NO.2

The pollution of judicial impartiality was an issue raised by a prison inmate when campaigning for a transfer on grounds of Convention rights; and when faced with a verdict that ran contrary to his calculated expectations.

While serving sentence in HMP Barlinnie, Scotland, the appellant took issue with the prison when complaining that his living conditions ran counter to his rights under article 3 of the European Convention on Human Rights (ECHR) (Prohibition of torture), which explained that:

“1. No one shall be held in slavery or solitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.”

And so, citing that he was justified a transfer to a more suitable prison, the appellant raised a petition and an order for specific performance under a claim for damages, while further requesting that the respondents personally arrange for his transfer and compensation.

In the first instance, the Court of Session refused to issue orders against them, on grounds that section 21(a) of the Crown Proceedings Act 1947 explained that:

“(a)where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties…”

Crown Proceedings Act 1947

However, the court denied such an order, while the Extra Division followed suit for the same reasons, before the appellant was again denied recourse before the House of Lords; until the appellant discovered that one of the presiding judges (Hardie LJ) had been involved in the amendment of the 1947 Act while serving as Lord Advocate; and that his presence contributed to the inclusion of Scottish Ministers when protecting members of the Crown under section 38(2), which stated that:

“”Civil proceedings’’ includes proceedings in the High Court or the county court for the recovery of fines or penalties, but does not include proceedings on the Crown side of the King’s Bench Division;…’’Officer’’, in relation to the Crown, includes any servant of His Majesty, and accordingly (but without prejudice to the generality of the forgoing provision includes a Minister of the Crown and a member of the Scottish Executive.”

Thus, the appellant alleged ‘actual bias’ within the reclaim hearing and sought a re-trial under the rule of law for the purposes of objectivity and equity; whereupon, the House of Lords referred to Porter v Magill; in which, they had held that:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

PORTER v MAGILL

And so, after careful examination of the actual degree to which Lord Hardie had been involved in the amending of the statute, the House dismissed the appeal, on grounds that the origins of that particular legislative change had stemmed directly from the mind of Donald Stewart MP, who was at the time, the Secretary of State for Scotland; and that Lord Hardie had merely been representative of those actions within his professional capacity, before clarifying for the parties that:

“[A] risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process.”

THORBURN v SUNDERLAND CITY COUNCIL

In a collective hearing, the facts surrounding a national transition between imperial and metric measurements for the purposes of trade, gave rise to claims of unlawful application and subsequent challenge within the High Court as below:

Thoburn v Sunderland City Council

In this matter a greengrocer was accused of trading without licensed weighing scales under section 11(2) of the Weights and Measures Act 1985, while it was also alleged that despite repeated warnings to calibrate his scales in line with the legal requirements, the defendant had continued to operate the machines until their seizure by the local authority, and so losing his case in the Divisional Court the defendant later applied for referral to the High Court in order to further discuss the legalities of both imperial and metric measurements.

Hunt v Hackney London Borough Council 

On this occasion another fruit and vegetable trader was accused of a number of offences under section 4 of the Prices Act 1974 and section 28(1) of the Weights and Measures Act 1985 after commercial standards officers made discreet purchases revealing average product weight losses of twenty percent in favour of the defendant. 

Charged in the first instance, the defendant challenged the validity of the legislation and also sought the opinion of the High Court on grounds that he contended the applicability of the 1974 Act and the unlawfulness of displaying goods under the imperial weights system.

Harman and another v Cornwall County Council

This matter involved a market trader and fishmonger, who were both accused of selling their produce using imperial units of cost and thereby violating article 5 of the Price Marking Order 1999, as found under the Prices Act 1974 and schedule 1 of the Weights and Measures Act 1985, as amended by The Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 (SI 1994/1851). 

Here, it was alleged that the two defendants had also prevented their attending local authority representative from removing the imperial price stickers when attempting to obtain evidence of their acts; and so, having admitted liability the judge was referred to the outcome of Thoburn and raised the question as to the intention that both imperial and metric systems were to continue to run in parallel to one another; and whether the trading standards officers were acting beyond their powers when attempting to obtain pricing stickers from traders, despite no suggestion of dishonesty by those accused.

Collins v Sutton London Borough Council

In a slightly different circumstance, the appellant had argued that the terms of the renewal of his trading licence had been unlawfully amended by the issuing council, and so applied for a summons under section 30(1)(a) of the London Local Authorities Act 1990 while claiming that under the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994, Units of Measurement Regulations 1994 and  The Weights and Measures (Metrication Amendments) Regulations 2001 (SI 2001/85) the local authority had instructed the appellant that he must display and charge for his produce under the metric weights system, and that such a request constituted a breach of statutory powers and a violation of article 10 of the Human Rights Act 1998 (Freedom of expression). 

To clarify, section 1(1) of the Weights and Measures Act 1963 provided that both the metric and imperial system of measurements were permitted equal presence within the United Kingdom until the creation of the European Communities Act 1972  and the introduction of Directive 80/181/EEC in 1979; after which, chapter 1 of Directive 89/617/EEC cited that the metre and the kilogram were to become the single legal measurements of both length and mass, however chapter IV provided that certain goods sold loose in bulk were  allowed to be measured in pounds and ounces until 31st December 1999. 

In the following two years, The Units of Measurements Regulations 2001 (SI 2001/55) provided that imperial measures (while unlawful as primary indicators for sale) were still permitted as secondary indicators until 1st January 2010, while contrastingly the Price Marking Order 1999 required traders to indicate unit prices in metric measures, yet anything to the contrary was a criminal offence under para.5 of schedule 2 of the Prices Act 1974.

When brought before the High Court, the four appellants relied upon a contention that the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994, Units of Measurement Regulations 1994, Weights and Measures (Metrication Amendments) Regulations 1994 and the Price Marking Order 1999 were all unlawful and void under the principle of ‘implied repeal’, which is a process applied when Parliament enacts successive statutes containing inconsistent terms, and where the former is repealed by the latter in order to avoid future binding and confusion of effect.

While it was also argued that the 1985 Act had repealed section 2(2) of the European Communities Act 1972 in order to prevent future subordinate legislation, as had been used to replace the imperial system with the metric measurement system. 

Having considered the appellants’ somewhat unorthodox line of argument, the Court dismissed the appeals on grounds that while observation of European Community law remained first and foremost to the function of the sovereign, there was nothing in the European Communities Act 1972 that allowed any outside jurisdiction to compromise the supremacy of Parliament; and that the executive measures of the 1972 Act were not subject to repeal by implication but through express and specific decisions, before reminding the parties that:

“Parliament cannot bind its successors, and that is a requirement of legislative sovereignty.”

COUNCIL OF CIVIL SERVICE UNIONS v MINISTER FOR THE CIVIL SERVICE

Executive powers and national security form the footing of this call for judicial review under the argument that changes to civil servant working conditions were executed without due consideration of those affected.

In a relationship with a chequered history, it was decided by the Minister of the Civil Service (aka Prime Minister Mrs Thatcher) that since the previous strike actions of key staff within the Government Communications Headquarters (GCHQ) had proven destructive, it was necessary to execute instructions to ban any affiliation by government employees with trade unions of any sort.

While this unprecedented move was carried out under legitimate sovereign powers, it directly conflicted with the principle that governmental decisions were first offered to consultation with the trade unions as an inherent duty to exercise fairness when carrying out executive function.

On this occasion, the instructions were carried out under article 4 of the Civil Service Order 1982, but orally released within the House of Commons; and so greeted with natural anger and confusion, while the aim of this sudden prohibition was simply to circumvent open discussion in lieu of avoiding future strike actions now considered a significant threat to national security.

When heard at court level, the presiding judge had held that the instructions were issued on grounds demonstrating no effort toward consultation and were therefore invalid in their application.

Under challenge, the Court of Appeal had held that the executive action itself was not exempt from judicial review because the order came from prerogative powers rather than statute, and that despite the latter source forming the premise for most reviews, the Court saw no distinction between a self-executed order and that of an act of Parliament.

In response, the defence used by the Minister for the Civil Service relied upon operational safety measures, and how under those circumstances it was felt that the same people responsible for the previous compromises were right to be excluded from using consultation as leverage to create further damage; while it was further argued that any discussions between trade unions and Government would have amounted to the same outcome, regardless of protests by those affected. 

This position was further supported by the fact that sections (a) and (a)(ii) of article 4 of the Order in Council 1982 allowed the Minister to create regulations controlling the conduct of those employed, therefore denial of trade union membership lawfully fell within those remits.

When the Court upheld the Minister’s actions, the appellants pressed the issue, whereupon the House of Lords sought to establish whether judicial review was necessary, and whether the respondents had acted in manner that precluded fairness and a duty to follow precedent.

After which it was held that while the avoidance of discussion demonstrated a clear breach of that duty, it was not the responsibility of the courts to determine what constituted a threat to national security; and that the executive itself was empowered to prove or disprove itself as to its own actions; all of which, led the House to conclude that:

“[W]here a question as to the interest of national security arises in judicial proceedings the court has to act on evidence.”