A talk in Moscow in 1994 about judicial oversight of executive powers

In the light of the current debates about the future of the Human Rights Act and the ability (or otherwise) of the common law to fill any perceived gaps if that Act were repealed,  I thought it might be of interest if I published a talk I gave at a seminar in Moscow 22 years ago.  This was at a time when Russia’s rulers seemed to be very interested in studying the judicial systems of different Western countries, and in adopting or adapting such parts of them as seemed appropriate to Russian traditions and culture.

It will be seen that I start with the liberty-based approach of the common law, as explained so clearly by Lord Goff in his speech in the Spycatcher case, and then go on to discuss how a rights-based approach found greater favour in those countries which did not possess the trust in the fairness of its rulers which seemed to characterise the way in which English common law was developed.  In other papers from that period (some of which I have republished on this blogsite) I expose some of the weaknesses of the common law approach, especially when the interests of unpopular minorities were in question, but in the paper, written for an international forum, I was concerned simply to describe how our arrangements for judicial oversight of the executive operated in practice at that time.

 

The English Judge’s Judicial Review Powers

An address given at a seminar organised by the Bar Human Rights Committee in Moscow on 11-14 September 1994

            “Father Neptune one day to Freedom did say,

‘If ever I trod upon dry land,

The spot I would sit on would be little Britain.’

Said Freedom, ‘Why, that is my Island.’”

Old English song

“The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.”

William Pitt, Earl of Chatham (1708-1778)

“Finally, I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights.  This is scarcely surprising, since we may pride ourselves upon the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world.  The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.”

Lord Goff of Chieveley[1]

I am an English High Court judge, assigned to the Queen’s Bench Division.  I was appointed a judge in 1988.  I am now 58.  If I wished to, health permitting, I could remain a judge until I am 75.  I cannot be removed from my office as a judge against my will in the absence of resolutions to that effect passed by each House of Parliament.  Nobody can tell me, let alone order me, how I should decide any case.  And although my father and elder brother were both senior government ministers,[2] nobody has ever suggested that I might be influenced by political considerations in performing my duties as a judge.

If I should make mistakes on the facts or on the law, there are 29 judges assigned to the Court of Appeal, who usually sit in panels of three, who have power to overrule my decisions.  Above them there are 10 judges assigned to the House of Lords, who usually sit in panels of five.  They sit as a final appellate court on matters of law of great importance or difficulty.  All these senior judges are equally irremovable by the executive.  This is a fundamental bulwark of the independence of the judiciary in the United Kingdom.

There are 63 judges assigned to the Queen’s Bench Division.  23 of us are assigned as nominated judges to what is called the Crown Office List.  There we exercise the jurisdiction which was formerly exercised by a Divisional Court of the Queen’s Bench Division – often the Lord Chief Justice sitting with two other very senior judges – over inferior courts, tribunals and administrative bodies.  The Divisional Court had power to issue the old prerogative writs of mandamus (ordering an inferior court etc. to do its legal duty), prohibition (prohibiting it from doing something which it had no legal power to do) and certiorari (ordering that its determination be brought up to the Queen’s Bench Division to be formally quashed).

In more recent times it has been found that the old prerogative writs (or orders, as they came to be called later) were not sufficiently flexible to give the judges all the powers they needed to ensure that the law was complied with.  Instead, Parliament has now given the judges a power called judicial review by which we can issue injunctions (mandatory or restraining orders) or declarations (judicial statements declaratory of the law) in addition to, or as an alternative to, mandamus, prohibition and certiorari.  In an appropriate case we have power to order an award of damages to an aggrieved applicant whose public law rights have been infringed.

There are three principal grounds on which we may intervene in the exercise of this supervisory jurisdiction.  The first is on the grounds of illegality.  If there has been an error of law – often in the context of the interpretation of an Act of Parliament – we have power to intervene in order to correct the error.  The second is on the grounds of procedural impropriety.  If there has been a breach of the principles of natural justice – a concept often described as “fair play in action” – we have power to intervene to ensure that decisions are taken fairly.  Good examples are where we consider that a tribunal or decision-maker was biased, or that they did not “hear the other side” before reaching an adverse decision.  Finally, and more controversially, we have power to intervene on the grounds of irrationality.  This is sometimes described as a power to intervene if a decision was “so unreasonable that no reasonable authority could ever have come to it.”

Recently, a senior judge in the House of Lords has set out the parameters of this power of the courts in these terms:

“Where Parliament has given to a minister or other person or body a discretion, the court’s jurisdiction is limited, in the absence of a statutory right of appeal, to the supervision of the exercise of that discretionary power, so as to ensure that it has been exercised lawfully.  It would be a wrongful usurpation of power by the judiciary to substitute its, the judicial view, on the merits and on that basis to quash the decision.  If no reasonable minister properly directing himself would have reached the impugned decision, the minister has exceeded his powers and thus acted unlawfully and the court in the exercise of its supervisory role will quash that decision. Such a decision is correctly, though unattractively, described as a ‘perverse’ decision”.[3]

These, then, are the powers which are given to the courts to ensure that the law is obeyed: that no one, be he ever so mighty, may make a decision whereby he exceeds the legal powers given to him, whereby he acts unfairly in the way he exercises those powers, or whereby he acts in the exercise of his powers in a way in which no reasonable person directing himself properly would ever have acted.  If he does so, the court will intervene to quash his decision or declare it to be void and of no legal effect.  If he proceeds to ignore the court, it has recently been held[4] that even a minister of the Crown can be held to be in contempt of court.  Even if there is still some doubt about the legal consequences of such a ruling, in practical terms, because of the very strong belief in the importance of the rule of law in the United Kingdom, such a ruling would be scrupulously respected by the executive.

These are the main powers given to the courts to oversee the protection of fundamental human rights in England and Wales.[5]  We do not have an explicit charter, or code, of human rights, as part of our body of national law, any more than we have a written constitution.  The truth which Lord Goff was expressing in what is generally known as the Spycatcher case[6] was that the traditional English common law approach to civil liberties has simply been that everyone has a right to do whatever he pleases so long as no provision of a positive law is infringed.  Until recently there has not been seen to be any need to state in an entrenched national code of human rights what was thought to be obvious.

It has been an accident of history that English law has developed in this way.  Over the centuries, by the ballot-box rather than by revolution (at least, since the middle of the seventeenth century) English law has developed incrementally on the principle that everybody should be free to do whatever he wishes to do unless there is a very good reason, usually expressed in an Act of Parliament, why he should not be allowed to do so.  In the United States of America, by contrast, the founding fathers of the American Constitution did not have the same trust in their lawmakers, and this is why concepts of an individual’s “civil rights” are much more firmly grounded on the other side of the Atlantic Ocean, and why English lawmakers are as reluctant as they have always been to spell out in an entrenched[7] statute form anything which may have the effect of taking away or watering down their rights as sovereign lawmakers later on to make further adjustments to the law in changing social, economic or political conditions.[8]

I will give you examples of how the English courts operate in practice, drawn from recent cases.  A refugee from Zaire sought political asylum in England.  He applied to the court to stop the deportation, and the judge[9] understood that counsel for the Home Office had undertaken that it would be postponed until the court had had time to consider the merits of the case.  He was later told, in the middle of the night, that the applicant was on his way back to Zaire on an aircraft, and he made an order from his home requiring the Home Secretary to procure his return to the jurisdiction of the Court.  The Home Secretary was advised next day that the judge had no jurisdiction to make the order, and he cancelled the arrangements which had been made for the applicant’s return.

The court held that the judge’s order had been properly made and that the Home Secretary was in contempt of court.  The most senior of the judges said:

“The argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the courts as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War”.[10]

Shortly afterwards, I was concerned with a similar case.[11]  On this occasion, because the Home Office would not undertake not to deport the man, I ordered the writ of habeas corpus to issue.  By this ancient writ the court can order anybody who is restricting anyone‘s liberty to come and explain to the court why he contends that the detention is lawful.  Although a higher court recommended a different procedure, it had no doubt that the court did have power to intervene in an emergency to stop the executive taking an adverse step before the court could consider the merits of a case.

Questions about the right of freedom of expression often come before the courts.  In one case[12] the Home Secretary ordered the broadcasting authorities to refrain from broadcasting words spoken by representatives of certain proscribed organisations in Northern Ireland.  This order was challenged as a contravention of the right of freedom of expression.  The court held that the Home Secretary’s powers were clearly stated by Parliament, and that it would therefore not intervene.  Although the United Kingdom had international obligations under the European Convention of Human Rights, the provisions of the Convention did not form part of English domestic law, which gave the Home Secretary a clear power to make the order complained of.

The right of freedom of expression was upheld in a curious way in another case.[13]  Protesters camped on common land outside a military base.  The Secretary of State for defence made by-laws providing that no person might enter or remain in a certain area outside the base without the authority or permission of an authorised person.  The protesters, known as “the Greenham Common women”, were convicted of contravening the bye-laws, but their conviction was eventually quashed on the grounds that the Secretary of State had exceeded the powers given to him by Parliament[14] and the relevant bye-law was ultra vires and unenforceable.

In another case[15] the court was concerned with the right of freedom of association.  The staff of a government base, which was involved with ensuring the security of military and official communications, were allowed to belong to trade unions.  The Minister made an order taking this right away, without any prior consultation with them.  The court held that they had a legitimate expectation that they would be consulted before their valuable rights were taken away and that the decision-making process was therefore unfair.  However, the minister had said that her decision was activated by considerations of national security.  In those circumstances the court held that it was for the executive and not for the courts to decide whether in a particular case the requirements of national security outweighed those of fairness.

In 1985 I appeared as counsel for two consultant psychiatrists.  A new Act of Parliament had seriously curtailed their power to treat schizophrenic patients without their consent.  They therefore directed their patients to be detained in a mental hospital overnight, and then granted them leave of absence provided that they took the medication which they disliked.  The judge held that this was an abuse of power.  He said:

“Parliament is presumed not to enact legislation which interferes with the liberty of the subject without making it clear that this was its intention.  It goes without saying that unless clear statutory authority to the contrary exists, no one is to be detained in hospital or to undergo medical treatment or even to submit himself to a medical examination without his consent.  This is as true of a mentally disordered person as of anyone else.”[16]

A more amusing case illustrates the court’s control over arbitrary and unconstitutional use of power.  In 1975 the Home Secretary made an order increasing the cost of a colour television licence by 50% from 1st April.  Staff at post offices were instructed not to issue new licences at the cheaper price before 1st April to people whose current licences had not expired.  Some new licences were in fact issued, despite this instruction, and the Home Secretary threatened to revoke them. The court held[17] that he had no power to revoke them, and that his threat was an arbitrary and improper use of power.  The court said:

“The licence is granted for 12 months and cannot be revoked simply to enable the minister to raise more money.  Want of money is no reason for revoking a licence.  The real reason, of course, in this case was that the department did not like people taking out overlapping licences so as to save money.  But there was nothing in the Regulations to stop it.  It was perfectly lawful, and the department’s dislike of it cannot afford a good reason for revoking them.”

Very important human rights are also protected by the courts in ways other than judicial review.  I often sit as a judge with a jury hearing claims by citizens for damages against the police for unlawful use of power, for malicious prosecution or false imprisonment.  If the jury considers that there has been a very serious abuse of power by the police it has power to award damages, which are descried as “exemplary” or “punitive” to show their disapproval of what has happened.  Similarly, a person’s right to protection of his reputation is protected by the civil law of defamation.  Sometimes juries award very heavy damages for libel against tabloid newspapers, and in some circumstances they can make an extra award as a mark of their extreme disapproval.

The involvement of juries in cases involving people’s liberty has an echo in the reforms introduced in Russia in 1861, after Russian bureaucrats had studied the judicial systems of England and France.  Although the new court system did not alter the administration of customary law for the Russian peasants, who of course formed the vast majority of the population, the introduction of juries involved ordinary people in the administration of criminal justice after our English model.  For example, a courageous jury acquitted Vera Zasulich in 1878, after she had fired on and wounded the Governor of St Petersburg, in a trial conducted by Alexander Koni; and shortly before the 1914 War Mendel Bellis, a Kiev Jew accused of ritual murder, was acquitted by a jury in spite of the strong desire of an anti-Semitic regime for a conviction.

In this paper I have tried to show how the judges’ powers of judicial review in England are an essential safeguard of important human rights – the right to liberty, the right of freedom of expression, the right of freedom of association, the right to self-determination and arbitrary exercise of executive power. The well-known quotations with which I started the paper form a part of our national consciousness.  They also find their modern expression in the supervisory work of the High Court today.

 

[1]             Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109.

[2]             My father Henry Brooke (1903-1984) was successively Financial Secretary to the Treasury, Minister of Housing and Local Government, Chief Secretary to the Treasury and Home Secretary between January 1954 and October 1964 in the Churchill, Eden, Macmillan and Douglas-Home administrations.  My elder brother Peter Brooke was Parliamentary Secretary at the Department of Education, Minister of State at the Treasury, Secretary of State for Northern Ireland and Secretary of State for the Department of National Heritage between June 1983 and July 1994 under the Thatcher and Major administrations.

[3]             R v Secretary of State for the Home Department ex p Brind [1991] AC 696, per Lord Ackner

[4]             M v Home Office [1994] 1 AC 377.

[5]             Scotland retained its separate legal system following the Act of Union in 1707.  The basic principles are, however, the same.

[6]             See the quotation at the beginning of this paper

[7]             Entrenched in the sense that it cannot be simply repealed or replaced by a simple majority vote in each House of Parliament.  In the United Kingdom no Parliament has power to bind its successors.

[8]             I remember when I asked my father, who was a member of parliament between 1938 and 1945, and between 1950 and 1966, why there was no enthusiasm at Westminster for a written constitution, his answer ran along these lines.

[9]             Garland J.

[10]            M v Home Office [1994] 1 AC 377, 395, per Lord Templeman.  The reference is to the English Civil War in the 17th century, in which, Lord Templeman said, parliament established its supremacy over the Crown as monarch, over the executive and over the judiciary.

[11]            R v Home Secretary, ex p Muboyayi [1992] 1 QB 244.

[12]            R v Home Secretary, ex p Brind [1991] 1 AC 696.

[13]            DPP v Hutchinson [1990] 2 AC 783.

[14]            Under the Military Lands Act 1892.

[15]            Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

[16]            R v Hallstrom, ex p W [1986] 1 QB 1090, 1094.

[17]            Congreve v Home Office [1976] 1 QB 629.

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