LEVEL 6 - UNIT 12 – PUBLIC LAW
SUGGESTED ANSWERS - JUNE 2015
Note to Candidates and Tutors:
The purpose of the suggested answers is to provide students and tutors with
guidance as to the key points students should have included in their answers to
the June 2015 examinations. The suggested answers set out a response that a
good (merit/distinction) candidate would have provided. The suggested answers
do not for all questions set out all the points which students may have included
in their responses to the questions. Students will have received credit, where
applicable, for other points not addressed by the suggested answers.
Students and tutors should review the suggested answers in conjunction with the
question papers and the Chief Examiners’ reports which provide feedback on
student performance in the examination.
SECTION A
Question 1
(a)
Meaning of constitutional conventions
Unlike most states, the UK does not have a single constitutional document which
sets out the relationship between the various organs of state. Instead the UK
constitution is unwritten and is found in statutes, common law, rules and
procedure of Parliament, authoritative texts and constitutional conventions.
Conventions play a key role in ensuring the smooth running of the constitution
and supplement the legal sources of the constitution.
There is no one agreed definition of conventions and different writers have
described them in different ways. They are ‘rules of constitutional behaviour
which are considered to be binding by and upon those who operate the
constitution but which are not enforced by the law courts’ (Marshall and Moodie);
or they are the ‘flesh that clothe the dry bones of the law’ (Jennings).
In essence they are rules or practices which are accepted as binding by those to
whom they apply, which are not set out in any statute and which are
acknowledged, but not enforced, by the courts (Re Amendment of the
Constitution of Canada (1982)).
(b)
Examples and functions of conventions
There are many instances of conventions which illustrate their function. It is, for
example, a convention that a minister is bound by the convention of collective
responsibility for the actions of the Government. Accordingly, while ministers
may disagree vehemently in cabinet meetings, once a position is adopted they
must support it in public. If they cannot, then convention dictates that they
should resign, as Robin Cook did over the Iraq war and Baroness Warsi over
policy in relation to Israel and Palestine.
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The convention of ministerial responsibility ensures that the Government speaks
with one voice, and this enables it to be held to account for its actions. If
ministers were able to absolve themselves of responsibility for the actions of the
Government as a whole or of their fellow ministers, it would be much more
difficult to identify responsibility for executive actions.
A further convention is individual ministerial responsibility, a mechanism for
holding ministers to account for their work and that of their departments. This
links to the separation of powers (see below) and Parliament’s ability to
scrutinise the executive.
Other conventions illustrate the key role that conventions play in maintaining the
constitutional balance between the Crown and the Houses of Parliament. It is for
example by convention that the Monarch does not withhold her assent from Bills
presented to her. Similarly convention dictates that the Crown appoints ministers
on the advice of the Prime Minister. The strict legal position is that it is the
Monarch who exercises these powers; the reality is that the Government
exercises them.
Equally conventions help to maintain a separation of powers between the
executive, the legislature and the judiciary. The fact that members of the
executive do not criticise judicial decisions or that the judiciary does not engage
in party politics is merely governed by convention. From these few examples it
can be seen that conventions perform a variety of functions which regulate
relations between the different parts of our constitution and the exercise of
power.
Conventions are observed because they ensure the smooth operation of the
constitution. The main way they do this is by supplementing the legal rules of the
constitution. For example, the constitutional conventions regulating the legal
powers of the Monarch ensure that these powers are generally exercised by
Government ministers on her behalf. This is consistent with democratic values,
as ministers are politically responsible to Parliament (through the convention of
ministerial responsibility) whereas the Queen is unelected.
Serious political repercussions could result from breach of a convention. For
example, Parliament is legally obliged to meet only once every three years
(Meeting of Parliament Act 1694), but by convention meets annually, even
though this is not the strict legal position. If it were to breach this convention,
then the machinery of Government would be in danger of collapse as taxes
require annual renewal. Also, if the Monarch were to refuse royal assent to a Bill,
a constitutional crisis would ensue.
Constitutional conventions also ensure that the constitution can develop and
adapt to changing circumstances. For example the convention of collective
responsibility has been suspended on occasion, most notably during the 1975
referendum on whether Britain should stay in the EU. Then ministers were
allowed to argue the case for and against membership according to their
personal views in public although not in the House of Commons. Moreover, it is
arguable that the Conservative-LibDem Coalition Government has adopted a
more flexible approach to collective responsibility than is normally the case.
Another example of the flexibility of conventions is the Sewel Convention. This
states that the Westminster Parliament will not normally legislate in respect of
‘devolved matters’, except with the consent of the Scottish Parliament. This
helps to preserve a cooperative relationship between the Scottish and
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Westminster Governments which would be jeopardised if the sovereign
Westminster Parliament legislated contrary to the wishes of the Scottish
Government.
Legally the unelected Monarch retains enormous power. This would be
unacceptable in a modern democracy. Conventions provide a mechanism to
modify the strict legal position by ensuring that most of the Monarch’s powers
are exercised by a democratically-elected government on her behalf. In turn, the
conventions of individual and collective ministerial responsibility ensure the
accountability of Government to Parliament, something the legal rules do not
provide for. Similarly the conventions that help maintain the separation of
powers ensure that the different branches of state can operate without undue
influence from other branches, something that the legal rules do not fully
protect.
The way conventions and the legal rules interact therefore contributes
significantly to the operation of government in the UK; e.g. by regulating
relationships between the Monarch and the elected government and controlling
the exercise of power by enhancing the separation of powers.
Question 2
The rise of the ‘celebrity culture’ has led to a number of cases involving the
extent to which an individual’s right to privacy under Article 8 should be
protected. This is especially the case where that right to privacy conflicts with
another party’s (often a newspaper’s) right to freedom of expression under
Article 10. Such cases involve the court having to conduct a balancing exercise to
deal with a potential conflict between competing Convention rights.
There is no tort of invasion of privacy in English law (Wainwright v Home Office
(2003)). However, claimants have nevertheless been able to bring claims against
newspapers under the ‘horizontal effect’ principle, as developed in cases such as
Venables and Thompson v NGN (2001) and Douglas v Hello! Ltd (2005),
provided claimants have been able to show that publication of the information
amounts to a breach of confidence at common law (i.e. the misuse of information
obtained in confidence). When considering a claim for breach of confidence, the
court, as a public authority itself (s.6 HRA), must act compatibly with both
parties’ Convention rights and therefore must have regard to Articles 8 and 10 in
cases between two individuals as well as in disputes between an individual and a
public authority.
A claimant must first show that their Article 8 rights are engaged before the
courts will consider if there is a conflict between Articles 8 and 10. Following the
House of Lords’ judgment in Campbell v MGN, the claimant must show that the
information published is of a sufficiently ‘private’ nature to engage Article 8 in
the first place. If that can be established, then the court will have to balance the
claimant’s Article 8 rights against the newspaper’s right to freedom of expression
under Article 10.
The first step therefore is to ask whether the claimant has a ‘reasonable
expectation of privacy’ regarding the details published. The court accepted in
Campbell that the newspaper was entitled to publish the story that Ms Campbell
had been addicted to drugs to ‘set the record straight’, i.e. to correct her prior
assertion that she was not addicted.
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In A v B (a Company) (2002) the Court of Appeal overturned an injunction
preventing publication of a Premier League footballer’s extra-marital affairs.
Whether a duty of confidence existed depended on the nature of the relationship.
A key question was whether the intrusion concerned a situation where a person
could reasonably expect their privacy to be respected. The more stable the
relationship the greater the significance the courts would attach to it. The
confidentiality attached to a permanent relationship was far greater than that
attached to a fleeting one.
In contrast, Mosley v News Group Newspapers (2008) shows a greater
willingness by the courts to protect privacy. Max Mosley, a well-known
personality, had taken part in a sado-masochistic orgy with prostitutes. His claim
succeeded as there was insufficient public interest to justify publication of his
conduct.
Concerning photographs, Murray v Express Newspapers Ltd (2007) is relevant. A
photograph had been taken of the infant son of JK Rowling while he was on the
street with his parents, and subsequently published by a newspaper. The Court
of Appeal held that it was at least arguable that the child had a reasonable
expectation that he would not be photographed in circumstances where his
parents would object.
If there is a reasonable expectation of privacy, then the next question is how the
balance should be struck between the claimant’s right to privacy and the
publisher’s right to publish.
If Article 8 is engaged, the newspaper will have to justify its interference with the
claimant’s right to privacy. The newspaper will argue that in publishing the
material, it is exercising its right to freedom of expression (Article 10), and
further that under Article 10 the public has a legitimate right to read about the
matter. The newspaper would therefore be relying on one or more of the
legitimate aims set out in Article 8(2) (in particular the rights and freedoms of
others – the newspaper’s right to freedom of expression under Article 10) to
restrict the claimants rights under Article 8(1).
Where human rights are engaged, the court must apply the ‘proportionality’ test.
However, in the situation under discussion two Convention rights are engaged –
Articles 8 and 10. As Baroness Hale commented in Campbell, while applying the
proportionality test is fairly straightforward when only one Convention right is
involved, it is much less straightforward when two Convention rights are
involved. In this situation the proportionality of interfering with one (privacy) has
to be balanced against the proportionality of restricting the other (freedom of
expression).
Thus, in Campbell the privacy of a medical condition weighed more heavily in the
balance than the newspaper’s Article 10 rights which were weak; publishing the
intimate details of a model’s private life is not normally a particularly important
manifestation of freedom of expression, compared to information about the
political and social life of the community.
Applying this test, the majority of the House in Campbell held that the
photograph of Ms Campbell near her rehab clinic went too far in ‘setting the
record straight’ and (especially per Baroness Hale) could threaten her recovery.
Each case must be assessed on its own facts when the court is attempting to
balance privacy and freedom of expression. The Court of Appeal in Murray
backed the argument that everyday acts such as a visit to the shops could still
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attract a reasonable expectation of privacy, and these decisions mean that
newspapers face tight restrictions on publishing photographs of celebrities’
children in particular.
There are concerns that the courts have tilted the balance too far in favour of
privacy, but judgments such as A v B (a Company) show that the courts balance
these competing rights properly and do not just automatically grant celebrities
the protection they seek or allow newspapers to interfere excessively with their
private lives of celebrities.
Question 3
The courts have developed the principles of natural justice to ensure that public
bodies use their powers fairly. The concept of legitimate expectation can
therefore be seen as a logical extension of natural justice; if a public body has
indicated that it will act in a particular way, then in principle it should be held to
its implied promise. However, this may create a tension with the public body’s
duty not to fetter its discretion and to consider cases on their merits.
Lord Denning is credited with introducing legitimate expectation into English law
(Schmidt v Secretary of State for Home Affairs (1969)). Lord Denning was
addressing the question of whether a public body should have given someone
affected by their decision the opportunity to state their case. This depended on
whether the person concerned had a right or interest or ‘legitimate expectation’
of which it would be unfair to deprive them without allowing them to make
representations. Lord Denning’s focus was on whether the person concerned had
an interest worthy of protection; in contrast many later cases have focused on
the conduct of the public body.
Subsequently the concept of legitimate expectation was developed by Simon
Brown LJ in Devon County Council ex p. Baker and Another (1995) where he
identified four broad categories in which the concept was applicable:
(i) It could be used to denote a substantive right - an entitlement that the
claimant asserts cannot be denied him. Where the public body has made a clear
and unambiguous representation on which an applicant has reasonably relied,
then it will be bound by its representation unless that would be inconsistent with
its statutory duties. This is akin to estoppel (Secretary of State for the Home
Department ex p. Khan (1985));
(ii) It could also refer to the claimant's interest in some ultimate benefit which he
hopes to retain. It is the interest which receives the protection of the law rather
than the benefit itself; in other words the claimant has an interest which cannot
be withdrawn or denied without the claimant being given an opportunity to
comment and without the public body communicating rational grounds for any
adverse decision (Re Liverpool Taxi Owners Association (1972));
(iii) It also sometimes refers to the procedure followed by the public body itself,
that the claimant has an expectation that the public body will act fairly; however,
this confuses the interest for which protection is being claimed with the
procedure itself;
(iv) It also covers cases where a particular procedure, not prescribed by law,
should be followed because of a particular promise or course of dealing.
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R v North and East Devon Health Authority, ex p. Coughlan (2001) cast further
light on the concept. The claimant, a severely disabled woman, was moved with
her agreement from a hospital to Mardon House, a purpose-built facility. The
health authority assured her that it would be her home for life. However, it
subsequently decided to close Mardon House. The claimant applied for a
quashing order of the decision to close Mardon House. Lord Woolf CJ analysed
the court’s role when considering a challenge under legitimate expectation. There
were at least three possible outcomes.
The court may decide:
(1) that the public authority only needs to bear in mind its previous policy or
other representation and the court’s role is simply to review whether the decision
is rational;
(2) that the promise or practice creates a legitimate expectation of, for example,
being consulted before an adverse decision is taken.
(3) that, as the promise or practice has created a legitimate expectation of a
benefit that is substantive, the court will decide whether it is an abuse of power
to frustrate that expectation. In deciding this, the court will weigh the
requirements of fairness against any overriding interest relied upon for the
change of policy.
It is Lord Woolf’s third category that is particularly noteworthy. In the first
category, the court is merely applying traditional Wednesbury unreasonableness;
in the second it is applying traditional principles of procedural fairness; but in the
third it is deciding whether there are overriding interests which justify a
departure from what the decision-maker has promised.
As Laws LJ pointed out R (Niazi) v Secretary of State for the Home Department
(2008), legitimate expectations can either be ‘substantive’ or ‘procedural’. A
substantive legitimate expectation arises where a public authority has provided
an unequivocal assurance of giving notice before it changes an existing
substantive policy; a procedural legitimate expectation arises out of a benefit or
advantage the claimant enjoyed in the past.
Laws LJ stressed that a substantive legitimate expectation (Lord Woolf’s third
category) would only arise where the public body concerned had made a specific
undertaking, directed at a particular individual or group, that the relevant policy
would be continued. Such undertakings are likely to be directed at a small class
of people. Laws LJ stressed that the type of legitimate expectation found in
Coughlan was likely to be exceptional. Public bodies will not normally be legally
bound to maintain a policy which they have reasonably decided to change.
The courts have considered the doctrine of legitimate expectation in detail on
several occasions. The judgments in Baker, Coughlan and Niazi show that the
concept covers a variety of situations. It has been argued that this can lead to
confusion as to what it is that the courts are seeking to achieve. Are they simply
requiring decision-makers to act rationally or adopt fair procedures when they
change their policies? Or are they seeking to force decision-makers to confer
substantive benefits on individuals? The danger exists that in requiring a
decision-maker to honour a substantive legitimate expectation, the courts are
usurping the role of the decision-maker. However, in Niazi Laws LJ made it clear
that the circumstances in which a decision-maker will be bound by its conduct
are very limited. In most cases the decision-maker will be subject to traditional
standards of review.
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Question 4
The European Convention on Human Rights (‘the ECHR’) is an international
treaty which under the UK’s ‘dualist’ system required incorporation into domestic
law by an Act of Parliament. Prior to the Human Rights Act 1998 (‘the HRA’),
individuals could not directly enforce their rights under the ECHR in the UK
courts. Accordingly, the HRA was very significant as it incorporated key ECHR
rights (‘Convention rights’) into domestic law, providing individuals with remedies
in domestic courts. Protection of human rights is also an important element of
the rule of law (Lord Bingham).
Key Convention rights include the right to life, the prohibition of torture, the right
to a fair trial, the right to respect for private and family life, freedom of religion,
expression and assembly. Section 1 of the HRA incorporated the Convention
rights into domestic law, but the incorporation has been described as ‘soft’ as
Parliament was keen to preserve parliamentary supremacy.
Under s.2, courts must ‘take into account’ decisions of the European Court of
Human Rights (‘ECtHR’). While the ECtHR’s decisions are not binding on domestic
courts, the House of Lords has held that they should, save in special
circumstances, follow its clear and constant jurisprudence (R (Ullah) v Special
Adjudicator (2004)). However, there are signs that domestic courts are becoming
less deferential.
Section 3 obliges the courts to interpret primary and secondary legislation in a
way which gives effect to Convention rights, ‘so far as it is possible to do so’.
If the High Court or above is unable to interpret a statute compatibly with
Convention rights, s.4 enables it to declare the statute to be incompatible with
the Convention (a ‘declaration of incompatibility’). However, this does not
invalidate the legislation: the offending statute remains in operation and any
declaration of incompatibility does not bind the parties to the action (s.4(6)).
Under s.6 HRA 1998, it is ‘unlawful’ for a public authority (including a court) to
act incompatibly with Convention rights, while s.7 enables ‘victims’ to bring
proceedings under the Act if a public authority has contravened s.6.
Where a declaration of incompatibility has been made, the Government may
amend the legislation without the need for further primary legislation by using
the ‘fast-track’ procedure created by s.10 whereby a Minister may amend the
incompatible legislation by making a ‘remedial order’ where there are ‘compelling
reasons’ to do so. However, the HRA does not oblige the Government to do so
and, should it choose neither to use the fast-track procedure nor to ask
Parliament to enact amending legislation, then an aggrieved litigant’s only
recourse would be to take their case to the ECtHR itself.
Finally, s.19 obliges ministers introducing a Bill into Parliament to make a
statement that the Bill is compatible with Convention rights or that, despite being
unable to make such a statement, the Government nevertheless wishes to
proceed with the Bill. Accordingly, Parliament can still enact legislation that
infringes Convention rights. So the UK constitution does not entrench rights to
the same extent as, say, the USA.
There have been many controversial cases involving the HRA. For example in A v
Secretary of State for the Home Department (2005) the House of Lords declared
provisions in the Anti-terrorism, Crime and Security Act 2001 permitting the
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indefinite detention of suspected international terrorists as incompatible with
Article 5 ECHR (right to liberty). Parliament then enacted the Prevention of
Terrorism Act 2005, repealing the conflicting provisions and replacing detention
in prison with control orders.
In Tabernacle v Secretary of State for Defence (2009) the Court of Appeal upheld
a claim that Ministry of Defence by-laws banning a peace camp near the Atomic
Weapons Establishment at Aldermaston breached Articles 10 and 11.
In Othman (Abu Qatada) v UK (2012) the ECtHR held that extraditing a
suspected terrorist to Jordan would violate his right to a fair hearing under Article
6 ECHR if there was a real risk that evidence obtained by torture might be used
at his trial. This judgment made it very difficult for the Government to secure
Abu Qatada’s extradition through the domestic courts which were bound to take
into account the ECtHR’s judgment. Ultimately, following satisfactory assurances
by the Jordanian Government, he was extradited.
However, it would create a false impression if only successful human rights
claims were listed. For example, in R (Begum) v Headteacher and Governors of
Denbigh High School (2006), a claim by a 17-year-old schoolgirl against her
state school’s refusal to let her wear jilbab failed. The majority in House of Lords
held that her rights under Article 9 (freedom of religion) and Article 2 Protocol 1
(right to education) had not been breached as there were other nearby schools
that she could have attended while wearing a jilbab. Further, even if there had
been an interference with her rights, it would have been justifiable; the courts
should not overrule the judgment of the headteacher and governors as they were
better placed to deal with the issues than the courts.
It would also create a false impression if the focus on the HRA led to the
conclusion that the HRA was the only guarantor of human rights in the UK.
Historically, there are many examples of the courts protecting individuals against
arbitrary conduct by the state. For example, in Entick v Carrington (1765) the
court held that the exercise of power by the state had to have clear legal
authority and in the absence of such authority the Secretary of State had no
power to issue general arrest and search warrants.
Case law shows that it is now far easier to raise Convention rights in legal
proceedings post-HRA. However, the HRA has been criticised on the grounds that
it enables suspected terrorists such as Abu Qatada to evade justice. On balance
the case law shows that the courts do try to strike a balance between competing
interests, and the HRA has enabled individuals to vindicate their Convention
rights against the state before UK courts rather than having to go to the ECtHR.
SECTION B
Question 1
(a)
Police powers to prohibit/ control the proposed meeting.
There is no power under the Public Order Act 1986 to ban a public assembly (the
proposed meeting is very unlikely to constitute a ‘trespassory assembly’ for the
purposes of s.14A as the landowner has given permission). The 1986 Act does
however create powers to regulate public assemblies (s.14) where the police
reasonably believe that serious public disorder, serious criminal damage or
serious disruption to the life of the community may result or the purpose of the
organisers is to intimidate. A public assembly is one where two or more persons
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gather in a public place that is wholly or partly in the open air (s.16). The site of
the meeting, being open land, falls within this definition.
Section 14 permits the senior police officer to impose conditions on a public
assembly if the appropriate reasonable belief exists. Before the meeting takes
place, the senior police officer is the chief officer of police. Conditions may be
imposed relating to the place of the meeting, its maximum duration and the
maximum number of persons who may attend. During the meeting, the senior
police officer is the most senior in rank of the police officers present. However,
when exercising their statutory or common law powers (below), the police must
consider the impact of Article 11 ECHR (freedom of assembly).
The police also have common law powers to deal with breach of the peace (i.e.
where there is violence, or a person has a reasonable fear of violence (R v Howell
(1982)), including power to disperse a meeting and to enter private premises to
police a public meeting, but only where a breach of the peace is imminent (R
(Laporte) v CC of Gloucestershire Constabulary (2006)). The police cannot
lawfully arrest the speaker for breach of the peace if he is merely exercising his
right to freedom of expression. However, they should consider arresting
members of the audience who resort to violence (Redmond-Bate v DPP (1999)).
It might be different if they could show that the conduct of any of the EAC
speakers gave rise to a reasonable apprehension that it would provoke unlawful
violence; if the arrest of the speaker were the only way of preserving order, then
it would be permissible.
(b)
Legality of police action
Police powers of arrest are contained in the Police and Criminal Evidence Act
1984 (‘PACE’), s.24. Under s.24(3) a constable may arrest anyone who has
committed an offence or anyone he has reasonable grounds for suspecting to be
guilty of it and the arrest is ‘necessary’ for one or more of the reasons in s.24(5).
These requirements are probably satisfied – the arrest is necessary to allow the
prompt and effective investigation of the offence.
However, for an arrest to be lawful the officer must comply with s.28 Police and
Criminal Evidence Act 1984 (‘PACE’). Section 28(1) requires a person to be told
they are under arrest. This has been done. Section 28(3) requires information to
be given as to the ground of the arrest. The police do not have to use technical
language to comply with s.28, provided they communicate in simple, nontechnical language the essential legal and factual grounds for the arrest (Taylor v
CC of Thames Valley Police (2006)) However, the information given to Lucius is
insufficient; ‘It’s obvious, isn’t it?’ is unacceptable. The arrest is unlawful and
only becomes lawful when PC Kohli informs Lucius that he is under arrest for
attempted murder.
Section 18 contains provisions governing entry and search after a suspect is
arrested. It permits entry to premises occupied or controlled by a person under
arrest for an indictable offence, but only if there are reasonable grounds to
suspect that there is evidence in those premises which relates to the offence for
which he is arrested or to a connected or similar indictable offence. Lucius has
been arrested for an indictable offence, attempted murder. However, the police
do not seem to have reasonable suspicion that stolen goods are in the house,
and even if they do, they relate to a completely different offence.
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(c)
Admissibility of evidence
At common law the general principle for evidence (other than confessions) is that
it is admissible, even if obtained unlawfully by the police (Jeffrey v Black
(1978)); evidence of possession of drugs was held admissible, even though the
search of the defendant’s house leading to the seizure of the drugs was unlawful.
However, the court has a discretion to exclude evidence to ensure a fair trial; s.
78 PACE gives the court a discretionary power to exclude evidence if, having
regard to all the circumstances, including those in which it was obtained, its
admission would have such an adverse effect on the fairness of the proceedings
that the court ought not to admit it.
In Mason (1988), the police tricked the defendant into making a confession by
telling him and his solicitor untruthfully that the defendant's fingerprints had
been found on a crucial piece of evidence. The Court of Appeal held the evidence
should have been excluded because of the police deceit.
In Canale (1990) evidence of an interview was ruled inadmissible as officers had
not contemporaneously recorded the interview, conduct condemned as ‘flagrant,
deliberate and cynical breaches’ of the relevant Code.
In contrast to these two cases, in Alladice (1988) the court refused to exclude
evidence of a confession where the defendant had been denied access to a
solicitor as he would have confessed anyway. Also, in Button and Tannahill
(2005) police had obtained evidence obtained in breach of Article 8 ECHR. The
Court of Appeal held that the court’s duty as a public authority under s.6 Human
Rights Act 1998 did not preclude it from admitting this evidence. The
unlawfulness of the evidence was simply a factor to be considered when
assessing the fairness of the trial.
Whether the jewellery is admissible depends largely on the extent to which the
police deliberately flouted s.18 PACE and the relevant Code.
Question 2
(a)
The by-election
Aruna, as a defeated candidate, has the right, under the Representation of the
People Act 1983 (‘RPA 83’), to lodge a petition against the validity of the byelection. The ground that she would rely on is the making of false statements of
fact regarding a candidate’s personal character or conduct. If proved, Marcus’s
conduct will amount to an illegal electoral practice, contrary to s. 106 RPA 83 and
the by-election results will be void.
Whether or not her petition is successful depends upon the facts of the case.
Aruna will have to allege that Marcus made or published several false statements
of fact in relation to her personal character or conduct which he had no
reasonable grounds for believing to be true and that his election was therefore
void. However, Marcus has indicated that his allegations were based on
information supplied to him by Aruna’s alleged victims; he would have to
establish reasonable grounds for believing that they were true.
Aruna’s case is similar to Watkins v Woolas (2010) where Mr Woolas, the
victorious Labour candidate, had published some false statements about the
Liberal Democrat candidate, incorrectly representing him as accepting unlawful
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foreign donations and linking him to Muslim extremists. The election court found
Mr Woolas guilty of an illegal election practice.
There are concerns that the court’s approach potentially threatens freedom of
speech, but nonetheless the court held that the relevant provisions of RPA 83 are
compatible with Article 10 ECHR (freedom of expression).
Aruna should be advised that as Marcus’s statements about her are untrue, then
it is likely that the election court will declare the by-election result void and
Marcus will be disqualified from standing for the House of Commons for three
years (s.136 Political Parties, Elections and Referendum Act 2000). Marcus will
have to vacate the seat within three months of his conviction (or at the end of
the time for lodging an appeal, whichever is the earlier).
A further by-election will take place at which Aruna will be able to stand. There is
no guarantee, however, that she will win.
(b)
The criminal case against Aruna
Aruna wants to rely as part of her defence on a Cabinet minute, evidence that
the Government does not want to release. The court will have to decide whether
the evidence should be suppressed on the basis of ‘public interest immunity’
(‘PII’), previously known as ‘Crown privilege’.
Initially the courts showed the Government considerable deference. In Duncan v
Cammell Laird & Co Ltd (1942) the relatives of sailors who had drowned in a
submarine wanted to examine the blueprints of the submarine. The Government
successfully invoked Crown privilege, the House of Lords ruling that the
Government’s opinion of what was in the public interest was conclusive; the
courts could not question it. The House of Lords stated that documents could be
withheld either because their contents had to be kept secret or because they
belonged to a class of documents which had to remain confidential. The rule
operated harshly in the Crown’s favour as claimants were unable to pursue
potentially valid claims.
However, the judiciary subsequently became less deferential and in 1968 the
House of Lords overruled an objection by the Home Secretary to the production
of certain police reports (Conway v Rimmer (1968)). It held that the court had
jurisdiction to order the production of the documents for which immunity was
claimed. The courts would order disclosure if the public interest in the
administration of justice was greater than the public interest in confidentiality.
Lord Reid divided PII claims into two classes:


Class claims where disclosure would normally not be ordered because of the
category to which the document belonged
Contents claims where disclosure should not be ordered because the contents
of the document should remain confidential.
Lord Reid stressed that it would be harder to persuade the court to order
disclosure in cases involving class claims than contents claims. For example, in
Balfour v Foreign Office (1994) the court refused to inspect security and
intelligence documents where the minister’s PII certificate claimed national
security would be endangered if the documents were disclosed. Moreover, in Air
Canada v Trade Secretary (1983), the House of Lords held the applicant had to
show that it was reasonably probable, and not merely possible, that the
documents would contain relevant information.
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PII also extends to criminal proceedings. In the Matrix Churchill trial in 1991, the
Crown signed PII certificates withholding documents concerning whether the
security services were aware that the items the defendants had exported to Iran
could be used for military purposes. The trial judge, however, ordered disclosure.
In criminal trials the public interest in the administration of justice is particularly
strong, as the withholding of relevant documents may prevent the defendant
from establishing a defence.
Following the collapse of the trial, the Government set up the Scott Inquiry and
the report by Sir Richard Scott criticised the Government’s attempt to use PII
certificates. As a result of the Scott Report the Lord Chancellor reviewed the use
of PII for government documents and stated that the Government would no
longer apply the division into class and contents claims and that the Government
would only claim PII certificates where disclosure would cause real harm to the
public interest.
More recently, in R (Binyam Mohamed) v Foreign Secretary (2010) the Court of
Appeal refused to uphold PII certificates even where the Government invoked
national security.
The Government’s refusal to release the Cabinet minute to Aruna seems to be
based on the former twofold classification of documents which is no longer
applicable. While Cabinet minutes would normally remain confidential, the
interests of justice require their disclosure in Aruna’s case.
Question 3
The main issue that this question raises is the legal effect of directives in the UK’s
legal system. Under Article 288 of the Treaty on the Functioning of the European
Union, directives are binding only on Member States, who are required to
implement them in their national law. Thus it is necessary to analyse to what
extent Lawrence can rely on Directive 2012/23 as the Act of the UK Parliament
specifically sets a cap on his claim.
Can Lawrence rely on the doctrine of direct effect? Directly effective provisions of
EU law are those that give rise to rights and obligations which individuals may
enforce before their national courts.
Directives can have direct effect if they satisfy the Van Gend en Loos (1963)
criteria (i.e. they are sufficiently clear, precise and unconditional); and the time
limit for their implementation has passed without their being properly
implemented (Ratti (1979)). The information provided in the question suggests
that that the Van Gend criteria have been met. Also, the deadline for
implementation (15 July 2014) has passed. Section 2(1) European Communities
Act 1972 requires UK courts to give effect to directly effective rights arising under
EU law.
In the case of directives, direct effect can only be ‘vertical’ against the state or an
emanation of the state (Marshall v South West Hampshire Area Health Authority
(No.1) (1986)). Lawrence must therefore establish that the Consortium is an
emanation of the state if he is able to pursue a claim against it. To decide whether
the Consortium is an emanation of the state, it is necessary to apply the Foster
guidelines from Foster v British Gas (1991). In Foster the ECJ set out three criteria
in deciding whether a body is an emanation of the state:
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


Whether the body is under a statutory duty to carry out a public service;
Whether the service is under state control; and
Whether the body has special powers for carrying out its functions.
However it is unclear whether it is necessary to fulfil all three conditions. In NUT v
Governors of St Mary’s Church of England School (1997), the Court of Appeal held
that it was sufficient if the first two were satisfied. While the Consortium may be
providing a public service, its obligations are contractual, rather than statutory.
Also, while it is probably subject to some degree of state regulation under the
terms of its contract, it is unlikely to be under state control. Also, it does not
appear to have any special powers. Accordingly, it is not an emanation of the
state.
Directive 2012/23 may have indirect effect which would enable Lawrence to bring
a claim against the Consortium. Under Article 288 TFEU a directive is intended to
be implemented by national legislation. However, the ECJ has held that a directive
binds the state as a whole, including the courts, so the courts are under a duty to
interpret national law in line with any relevant directive, whenever passed (Von
Colson (1984) and Marleasing (1992)). As regards UK courts, section 2(4)
European Communities Act 1972 provides that ‘…any enactment passed or to be
passed…shall be construed and have effect subject to the foregoing provisions of
this section’.
In applying s.2(4) the courts have held that where possible they will attempt to
interpret national legislation in order to comply with a directive, even if this
distorts the meaning of the national legislation (Webb v EMO (1995)). Accordingly,
the courts will try to interpret the Act in conformity with Directive 2012/23.
However, the Act imposes a clear cap on compensation of £250,000, in direct
conflict with Directive 2012/23. Lawrence will not be able to rely on indirect effect
against the Consortium.
This outcome appears to contradict the supremacy of EU law. Lord Denning in
Macarthys Ltd v Smith (1981), although in no doubt that the UK courts should
regard EU law as supreme, nevertheless maintained that Parliament as a
sovereign body could deliberately legislate in defiance of EU law. However, the
principle of state liability makes it clear that Lawrence has a remedy against the
UK Government.
The decision in Francovich v Italy (1992) established the principle of state liability
for breaches of EU law. It is of particular use in situations where an individual such
as Lawrence cannot rely on a directive because of its lack of horizontal effect.
Later cases developed the principle further, enabling individuals to take
proceedings against the state.
In Francovich the ECJ held that it was necessary to develop state liability as a
remedy to prevent Member States from invoking their wrongful failures to
implement directives to deny citizens the rights granted to them by EU law. In
Brasserie du Pêcheur, Factortame (No.4) (1996), the ECJ made it clear state
liability also applied to incorrect implementation of a directive. It ruled that a
Member State will be liable in damages for infringing EU law if the following
conditions are satisfied:
1)
2)
3)
the breach infringes a rule of law intended to confer rights on individuals;
the breach is sufficiently serious;
there is a direct causal link between the breach of the State's obligation and
the damage to the claimant.
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Lawrence would need to show a sufficiently serious breach on the part of the UK
government. In R v Secretary of State for Transport, ex parte Factortame Ltd (No
5) (1999), the House of Lords held that the UK had committed a sufficiently
serious breach of EU law by enacting the Merchant Shipping Act 1988 as the UK
Government was aware of its doubtful legality and that it was likely to cause
economic loss to the Spanish fisherman affected.
It seems likely that Lawrence would succeed, as there is no obvious reason for the
incorrect implementation of Directive 2012/23. In particular, in the light of the
clear wording of Directive 2012/23, the UK Government must have been aware
that the cap on the compensation payable was of doubtful legality.
Question 4
Amenability/ Eligibility
The Secretary of State for Sports and Recreation (‘the Sports Secretary’) is a
public law body as he is exercising statutory functions under the Expansion of
Sport Act 2014 Act (‘the Act’) to award discretionary grants to minority sports.
Disbursing public funds in this way is a public rather than private law matter, so
the Sports Secretary is amenable to judicial review (O’Reilly v Mackman (1983)).
Each of the governing bodies are directly affected by the decision, as their grant
applications have been rejected. They therefore have ‘sufficient interest’ in the
decisions to bring judicial review claims (s.31(3) SCA 1981).
Timing
The Act contains a potential obstacle to judicial review proceedings for all three
claimants, namely a partial ouster clause excluding the jurisdiction of the courts
unless judicial review proceedings are commenced within six weeks of the
decision. Following R v Secretary of State for the Environment, ex p. Ostler
(1977), such clauses are enforced and any specified time limit would need to be
complied with, in default of which any claim would be out of time.
The time limit of three months under s 31 SCA 1981 and CPR r 54.5 does not
apply, save that the claims must be brought promptly and without undue delay.
Grounds?
Lord Diplock identified the traditional grounds of review as illegality, irrationality
and procedural impropriety (CCSU v Minister for the Civil Service (1985)); these
will be applied as relevant:
(i)
Nationwide Fives Federation
Illegality
Unauthorised delegation
Normally a public body to whom Parliament has delegated a discretionary power
cannot delegate it any further. However, there is an exception to this principle
concerning civil servants. Under the convention of individual ministerial
responsibility, Government Ministers are ultimately responsible to Parliament for
their departments, so there is an expectation that they act through their civil
servants in taking even major decisions. Ministers could not be expected to take
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every decision personally. As Meredith is a senior civil servant, there is unlikely
to be a breach of this rule.
Ulterior purpose
Public bodies will be acting illegally if they use their powers for an improper or
unauthorised purpose (Congreve v Home Office (1976)). The purpose of the Act
is promoting participation in minority sports which have the potential for growth.
Meredith’s letter indicates that the decision had the purpose of promoting sports
with commercial potential; this seems irrelevant to the purpose of the Act,
particularly as the Sports Secretary acknowledged that Eton Fives has shown
potential for growth. The Sports Secretary seems to have had an ulterior motive
(Sydney Municipal Council v Campbell (1925)). Alternatively, the Sports
Secretary may have taken into account an irrelevant consideration by
considering commercial potential (Padfield v Minister of Agriculture (1968)).
(ii)
The British Handball Union
Illegality
Unauthorised delegation
The decision-making power has been granted to the Sports Secretary, not the
National Olympic Commission. The Sports Secretary has effectively delegated his
discretion to the Commission which is ultra vires as, in the absence of express
statutory authority, a body to whom a power has been delegated cannot subdelegate it. Moreover, the exercise of that discretion by the body to whom it has
been unlawfully delegated will also be ultra vires (Lavender v MHLG (1970))
‘Jurisdictional’ error of fact
The Sports Secretary has made a mistake concerning the number of participants
in handball, incorrectly believing as a result that handball has insufficient
participants to be eligible for a grant. This is an error of fact that goes to the
heart of his jurisdiction to award grants (R v Home Secretary, ex p. Khawaja
[1984]). Accordingly, it is jurisdictional and so is reviewable.
(iii)
Ju-jitsu UK
The rules of natural justice
Ju-jitsu UK’s grounds of review are based on procedural fairness/rules of natural
justice, and in particular the right to a fair hearing.
The right to a fair hearing
An individual should be given a fair hearing before a decision affecting their
interests is made. According to Lord Denning in Schmidt v Home Secretary
(1969), the nature of the hearing to which a person is entitled depends on
whether they have a legitimate expectation which warrants protection. In some
cases an applicant might have no legitimate expectation at all because they are
seeking a benefit which they have not previously enjoyed and whether to give
the benefit is within the decision-maker’s discretion (R (Khatun) v Newham LBC
(2004)). Ju-jitsu UK, as a mere applicant, may fall within this category and the
Sports Secretary may simply be expected to act honestly and without bias. JuPage 15 of 16
jitsu UK is therefore unlikely to succeed in arguing that it did not receive a
proper hearing.
The main issue is therefore whether Ju-jitsu UK was entitled to reasons for the
decision. There is no general duty on a decision-maker to give reasons (Cannock
Chase DC v Kelly (1978)). If however, in the absence of reasons, a decision
appears to be irrational, a lack of reasons may provide grounds for challenge.
Applying R v Civil Service Board, ex p. Cunningham (1991), natural justice
requires that a decision-maker should give reasons for a decision where fairness
requires that a claimant should have an effective right to challenge a decision
which appears to be erroneous. As Ju-jitsu UK appears to meet the statutory
requirements for a grant, it appears that the decision may be wrong and so it is
entitled to reasons. In the absence of such reasons, the decision to refuse its
application appears to be irrational.
Irrationality
The power to make grants is discretionary but the Sports Secretary must use the
power rationally. Having regard to relevant considerations only, is his decision so
unreasonable that no reasonable body could have reached it Associated
Provincial Picture Houses v Wednesbury Corporation (1948))? Although the
threshold is high, it could arguably be reached, as in the absence of reasons it is
hard to see why the application was rejected. The decision might be considered
to be outrageous in its defiance of logic (CCSU) as a result.
Remedy
The governing bodies should each apply for quashing orders.
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