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Entick v Carrington [1765] EWHC KB J98 An individual’s rights over their property Facts On 11th November 1762 the defendant and three other named individuals entered a property belonging to the claimant and spent four hours there searching all of the rooms, breaking open boxes and going through all of the claimant’s possessions. They then removed one hundred charts and one hundred pamphlets from the property. The defendants asserted that they were lawfully entitled to enter the property because they were doing so under a warrant from Lord Halifax, who was a member of the Privy Council and Secretary of State, with a view to finding certain seditious papers and that such warrants had been granted and enforced since the time of the revolution. The claimant sued in trespass. Issue The issue in this circumstance was whether the defendants were trespassing when on the claimant’s land, but ultimately the issue related to whether a private individual’s right to protect their land was greater than the executive’s right to enter it. Held It was held that the defendants were trespassing on the claimant’s land. An individual has the right to prevent access to his land to anybody unless the access is granted by the law. It is only if the law permits an agent of the state to do something on the land of an individual that they will be able to do so. If the law is silent, any entry onto the land is a trespass. The state is therefore subject to the same position on trespass as would be the case for an individual. Any entry onto land without licence of the land owner is forbidden.

Rice v Connolly [1966] 2 QB 414

At common law there is no legal duty to provide the police with information or otherwise to assist them with their inquiries. Lord Parker set out three questions to be answered when asking whether there had been an obstruction of an officer in the execution of his duties: (1) Was there any obstruction of a constable? (2) Was the Constable acting lawfully in the execution of his duty? (3) Was the obstruction intended to obstruct the constable in the execution of his duty? Lord Parker said: ‘It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice. . . it seems to me quite clear that the defendant was making it more difficult for the police to carry out their duties, and that the police at the time and throughout were acting in accordance with their duties. The only remaining ingredient, and the one upon which in my judgment this case revolves, is whether the obstructing of which the defendant was guilty was a wilful obstruction. ‘Wilful’ in this context not only in my judgment means ‘intentional’ but something which is done without lawful excuse, and that is indeed conceded. . . Accordingly, the sole question here is whether the defendant had a lawful excuse for refusing to answer the questions put to him. In my judgment he had. It seems to me quite clear that although every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of arrest.’ and ‘In my judgment there is all the difference in the world between deliberately telling a false story-something which on no view a citizen has a right to do-and preserving silence or refusing to answer, something which he has every right to do. Accordingly, in my judgment, looked at in that perfectly general way, it was not shown that the refusal of the defendant to answer the questions or to accompany the police officer in the first instance to the police box was an obstruction without lawful excuse. ‘

Council of Civil Service Unions v Minister for the Civil Service (The GCHQ case) [1985] AC 374, [1985] ICR 14 Public Law – Prerogative Power – Unions – National Security – Civil Service – Judicial Review – Lord Diplock – Lord Roskill Facts In the 1980’s, with the United Kingdom under the Conservative government led by Margaret Thatcher, it was ruled that any and all employees of the Government Communications Headquarters (GCHQ) were prohibited from joining any trade union. This decision was justified based on the potential threat to national security, and enforced using an Order of Council which is an exercise of the Royal Prerogative Power. Issues By limiting access, or completely refusing access to trade unions to employees, certain individuals affected were not able to rely on certain employment legislative provisions or be represented by a Union. History of the case The court case was raised by the Council of Civil Service Unions, bringing the matter to court via judicial review. At first instance the case was heard at the High Court of Justice, where it was ruled that the Order was invalid, however this was overturned on Appeal at the Court of Appeal. There is was held that the consideration of national security was of paramount importance, and as such considerations and decisions made on this basis were not to be considered. The case was now heard on appeal at the House of Lords: the ruling of the house was that exercising of the Royal Prerogative were capable of being subject to judicial review. This ruling marked a massive departure from the law previous, however the Lords did hold that on issues of national security, this right was exempt. Held The importance of the case is found in the departure from the unwillingness of the courts to judicially review prerogative powers. Lord Diplock found that where a person’s ‘private rights or legitimate expectations’ are effected by the execution of

the prerogative power, then that execution of power should be amenable to review. Lord Fraser and Lord Brightman came to the same conclusion based on the view that where the prerogative power was delegated from the monarch, the exercise of that power could be reviewed via judicial review. Lord Roskill stated: “If the executive instead of acting under a statutory power acts under a prerogative power and in particular a prerogative power delegated to the respondent under article 4 of the Order in Council of 1982, so as to affect the rights of the citizen, I am unable to see, subject to what I shall say later, that there is any logical reason why the fact that the source of the power is the prerogative and not statute should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory.” Following the GCHQ case, it was found that prerogative powers (bar for national security reasons) can be judicially reviewed for legality

A and others v Secretary of State for the Home Department [2004] UKHL 56 (Belmarsh Case) Key Words Human Rights Act – Judicial Power – Compatibility – Rule of Law – Declaration of incompatibility – Derogation – Human Rights Facts The case concerned the indefinite detention of foreign prisoners in the United Kingdom prison ‘Belmarsh’. The prisoners were held without trial under section 23 of the Anti-Terrorism, Crime and Security Act 2001. This decision and the subsequent detentions were challenged at court in terms of their compatibility with the aims of the European Convention on Human Rights. The original case was brought by 9 individuals who were threatened with deportation without trial on the basis that there was some evidence that the individuals posed a national security threat. The 9 challenged this deportation decision of the Special Immigration Appeals Commission. All 9 were later detained under the Anti-Terrorism, Crime and Security Act 2001 pending deportation. Section 4 of this act enabled the individuals to be held indefinitely, without trial or deportation. Issues The case is so important because it shows a direct challenge, in the courts, of the extent to which legislation confers powers to the executive in the way in which they deal with a presumed threat to national security. The judges had to weigh up considerations of the power conferred by such legislation, the limitation on such powers of the executive, and a balance of necessity to limit personal liberty in order to protect national security. This was all to be considered against the backdrop of the 9/11 attacks in America and the international ‘war on terror’. Held The ruling in this case was a landmark decision. The House of Lords held that the provisions under which detainees were being held at Belmarsh prison (section 23) were incompatible with Article 5 of the European Convention of Human Rights – however the Home Secretary was not required to release the prisoners. The provision had the effect of discriminating between foreign nationals and nationals of the state.

As a result of the Lords finding, they made a declaration of incompatibility under Section 4 of the Human Rights Act 1998. Lord Bingham: “The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions.” [42] “The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.” [29] Lord Nicholls of Birkenhead “The duty of the court is to check that legislation and ministerial decisions do not overlook the human rights of persons adversely effected.” [79] The case decision is so ground-breaking because it shows a willingness of the judiciary to check the powers and exercise of the executive in matters concerning national security. It is important to note, however, that the Lords ruling and subsequent declaration of incompatibility did not render the acts of detention or application of section 23 invalid, nor did it bind the actions of the Home Secretary. As such the 9 individuals remained in detention and took their case to the European Court of Human rights, culminating in the 2009 appeals case A and others v UK Application No.3455/05.

ackson v Attorney General [2006] 1 AC 262 Upholds the legality of the Parliament Acts 1911 and 1949, limiting the House of Lords’ legislative powers. Facts In November 2004, the British Government enacted the Hunting Act which prohibited fox hunting, inter alia. Whilst this bill received support in the House of Commons, it received continual opposition in the House of Lords, and so the Parliament Act 1949 was used to counter the House of Lords’ ability to delay the bill, and so it received royal assent. The claimant, Jackson, bringing a claim on behalf of the Countryside Alliance and the pro- fox hunting lobby, attempted to assert that the Hunting Act 2004 was invalid as the 1949 Parliament Act, was itself illegal. Issue Was the Parliament Act 1949 unlawful, and subsequently was the Hunting Act 2004 unlawful. Held At first hearing and upon appeal, the Courts found for the Attorney General, determining that the Hunting Act 2004 and Parliament Acts 1911 and 1949 were lawful. This decision was upheld on final appeal to the House of Lords. It was further held that, legislation passed using the mechanisms in the Parliament Acts are primary legislation, rather than subordinate, and thus their validity would not be impeded were the Parliament Acts unlawful. Lord Bingham, delivering the leading judgment, stated that the Parliament Acts could indeed be considered ‘enacted law’ and as the Hunting Act 2004 was lawfully passed it was valid law. Secondly that whilst legislative matters ought usually fall in Parliament’s jurisdiction, as Parliament could not respond to the question in the instant case, it fell to the judiciary to provide an answer and Parliaments can be bound by the procedural requirements placed upon them by previous Parliaments.

M v Home Office and another [1994] 1 AC 377 Asylum; judicial review; contempt (282 words) Facts M was a citizen of Zaire (now Democratic Republic of the Congo) who arrived in the UK seeking asylum. His repeated applications were rejected, as were his applications for judicial review. Due to a misunderstanding, the judge mistakenly thought that counsel for the Secretary of State had given an undertaking that M’s removal would be postponed pending consideration of his latest application. M was not eventually disembarked from his flight back to Zaire. Learning of M’s deportation, the judge ordered his return. The Secretary of State, convinced that M’s application for asylum was rightfully rejected, applied for the judge’s injunction order to be set aside and cancelled M’s return. M instituted committal proceedings against the Home Office and the Secretary of State for breaching the undertaking not to remove him. Issue Simon Brown J, dismissing M’s motion, found that section 21 of the Crown Proceedings Act 1947 kept the Crown’s immunity from injunction, thus, Crown departments, ministers or officials acting in the course of their duties could not be impleaded for contempt of court. The Court of Appeal partially allowed M’s appeal, finding the Secretary of State guilty of contempt of court. Both sides appealed. Held Even before the Crown Proceedings Act 1947 came into force, Crown officials could be personally liable for a tort committed or authorised by them, despite the action being carried out in their official capacity. In other words, injunctions can be granted against Crown officials acting in their official capacity – as authorised by section 31(2) of the Supreme Court Act 1981, albeit only in limited circumstances. Secondly, while the Crown itself cannot be found guilty of contempt of court, a minister in his official capacity can.

R v Lord Chancellor (ex Parte Witham) Heard at the Royal Court of Justice, Queens Bench Division. On the 19th February 1997 John Witham with permission of Lightman J. applied for a judicial review on a decision of the Lord Chancellor to introduce the Supreme Court Fees (Amendment) Order 1996, on the grounds that Article 3 of the Order, which repealed provisions excusing litigants receiving income support from paying court fees and allowed the Lord Chancellor to reduce or waive the fee in exceptional cases of undue financial hardship, was ultra vires as it violated his right to access to a court to those with low income. John Witham was in receipt of income support, wished to bring proceedings in person for defamation, for which no legal aid. He maintained he could not afford the fees which the amendment required him to pay. The case was heard by Justice Law and Lord Justice Rose on 5 March 1997 and judgment delivered on 7 March 1997. The issue before the judiciary was that article 3 of the Supreme Court Fees (Amendment) Order 1996, SI 1996/3191 is ultra vires s130 of the Supreme Court Act 1981? The court found the Lord Chancellor went beyond his powers (ultra vires) in removing the provision that those on income support/low incomes to whom it could cause unnecessary financial hardship would be exempt from fees to access the courts which therefore denies their right to a fair trial. This application for judicial review was held. The Lord Chancellors power to set fees under s130 of the Supreme Court Act 1981 was “impliedly limited by the common law right to access to the courts” – and by abolishing the fee exemptions he had exceed this limitation. In judgment of the case it was necessary to identify whether access to the courts was a constitutional right. The UK does not have a codified constitution and within the legal hierarchy there is identification primacy of certain rights over others. It therefore necessary to apply the doctrine of precedent formed on the principal of stare decisis that if the Ratio decidendi “[t]he point in a case which determines the judgment” is the same as a previous case that decision will bind the action of any future courts. As there was a recent change in law enacted on 15 January 1997, when the case of Lord Chancellor v Witham came before Rose LJ and Laws J this was a matter of first impression, as the ratio decidendi was distinct from all previous cases. This allowed the justices to create a law and set a precedent.

Although this case was of first impression looked to previous cases to identify obiter facts. As stated above it was necessary to identify if within the common law system the right of access to the court, which the case proposed was being violated, was a constitutional right. Identification of this issue was key as it held the foundations of the interpretation of the legislation which was held by the judges. It was necessary to identify if the power given to the chancellor could use implied repeal of the provision in the legislation or whether an express repeal would be necessary to abrogate the right, as in the case of a fundemental right. The cases identified on the premise of precedent by Mr Duffy of Bremer Vulkan Schiffbau und Maschinenfabrik v South Indian Shipping Corporation Ltd. [1981] A.C. 909 were Lord Diplock said at p977. “Courts of justice [to] which every citizen has a constitutional right to access…{in order)to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights.” The court also referred to the judgment of Lord Justice Steyn in the case of ex parte Leech [1994] QB 198; “It is a principal of our law; that every citizen has a right of unimpeded access to a court” as the common law “afforded special protection to a person’s right of access to a court as a constitutional right” and therefore it was only by express repeal that this right could be denied to a citizen. As noted in Raymond v Honey to remove the right from a citizen would require a specific act of parliament. “it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect – by express provision – permits the executive to turn people away from the court door. As stated by Laws J in his judgment “…the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose views in main legislation specifically confers the power to abrogate. General words will not suffice.” In this case there were no clear words in the primary legislation that identified the abrogation of the right of access to the courts which has been identified as fundamental. “it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect – by express provision – permits the executive to turn people away from the court door. This has not been done in this case.

The constitutional basis of judicial review lies in the concept of “checks and balances” whereby the actions of the Executive will be “checked” by the Judiciary to see whether they have gone beyond their “power” to prevent the arbitrary abuse of such power. To do this in the constitution of the United Kingdom which operates under the pillars Dicey identified as parliamentary sovereignty and the rule of law. The legal reasoning and judgment in the case of R v Witham calls into account both of these doctrines. The doctrine of Parliamentary Sovereignty is taken into account. The Lord Chancellor had gone beyond the power entrusted to him by parliament, the amendment of the provision of exc...