Chapter 1 Guidance on answering the critical questions

1. Why do you suppose that habeas corpus is used very little in Britain today?

• In A and X, Parliament had authorized the detentions by statute. So the detention was lawful (even though the House of Lords declared that the legislation was incompatible with the Convention), and habeas corpus is not available if detention is authorized by law.
• Habeas corpus is seldom used today because most forms of executive detention are now regulated by statutes that authorize detention (subject to legal requirements that can be enforced by other means, without a writ of habeas corpus). See 8.1.3.

2. Suppose that the Government detains people without statutory authority, and says in habeas corpus proceedings that there is reason to think that they are terrorists, that the reason for the suspicion is not something that can be put to the court in evidence, and that the court should not interfere because the freeing of the men would create a catastrophic danger to the United Kingdom. What should the court do?

• Assuming that the detention was not authorized by an act of Parliament, the court should undoubtedly order the release of the detainees (and an act of Parliament authorizing indefinite detention on suspicion of criminal wrongdoing or criminal intent would be contrary to Art 5 of the Convention). It may sound dangerous: if the Government suspicion is correct, releasing the detainees creates a risk of mass murder. But executive action needs to be regulated by law even in fighting such risks. There is no general legal power to detain people on suspicion that they pose a danger to the state, or that they may commit murder. If the Government had such a general power, it would mark a departure from the rule of law.
• That principle is the reason why, in A and X, the Government had put legislation to Parliament to authorize the detentions.

3. Are tribunals (Chapter 12) and ombudsmen (Chapter 13) part of the executive branch of government, or of the judicial branch?

• If you call everything that isn’t Parliament or a court ‘the executive’, then ombudsmen (and perhaps tribunals) are part of the executive. But if you do that, it is important to keep in mind the dramatic diversity of the public authorities that are not part of the courts or Parliament. They include not only departments of central government, but local councils (which have legislative as well as executive functions), and agencies that are partially independent of government such as the Crown Prosecution Service, and fully independent agencies such as auditors, ombudsmen, and tribunals.
• Tribunals are very much like courts: they are judicial bodies that hear a legal claim by one party against another in an adversary system (see Chapter 12 for ways in which tribunals were made more like courts under the Tribunals, Courts and Enforcement Act 2007). Ombudsmen are not judicial agencies; they are investigators.
• It would make more sense to use the term ‘executive’ for those public authorities that design and carry out governmental policy, and then you’d have to say that the executive includes only those bodies that are accountable to the British Government for their conduct –and that would exclude tribunals and ombudsmen.
• Tribunals and ombudsmen do not administer government programmes; they are independent bodies that hold administrative agencies accountable for their conduct.

4. Should one public authority ever abandon comity toward another public authority?

• It would take a political or constitutional crisis. It would mean that one public authority has come to the conclusion that the decisions of another cannot be treated with respect. For example, the Government would be abandoning comity toward the courts if a minister decided not to comply with a court order, and the judges would be abandoning comity toward Parliament if they decided not to give effect to an act of Parliament. Can you think of situations in which it would be right for a minister or a judge to act in that way?

5. Could there be responsible government in an absolute monarchy?

• In order for an absolute monarch to act responsibly, he or she would have to be extraordinarily unselfish. And that would not be enough: the monarch would also have to recognize the limits of his or her own capacity to judge what governmental action is just and promotes the common good. And then he or she would need to defer to the expertise of a wide variety of people who can make those judgments (and would have to have transparent and effective processes for holding them to account for their advice). And expertise isn’t enough: the absolute monarch would need to have transparent and effective processes for consulting the governed to learn what their views are, in order to understand the effects of decisions and in order to judge what is in the common interest.
• So a good absolute monarchy would be one in which the absolute monarch voluntarily submitted to processes that serve some of the same purposes that democratic processes serve. It would be rather similar to a good democracy.

6. Who should decide what is to be ruled by law?

• In our constitution, Parliament has authority to decide what is to be ruled by law. For example, the time spent in prison by people convicted of murder ought to be ruled by law. Yet until 2002 (see 3.3) the Home Secretary had lawful power to decide it because Parliament had given him that power –even though that was contrary to the constitutional principle of the rule of law.
• But the courts have considerable responsibility, within whatever frameworks may be established by Parliament, to impose the rule of law. So in the case of the imprisonment of murderers, even though the courts could not take away the Home Secretary’s statutory power, they imposed a substantial array of conditions on his exercise of that power, in the interest of regulating the use of the power by law.
• It is also in part the responsibility of the Government (and of public authorities in general) to decide what is to be ruled by law. The Government, after all, takes the lead in proposing legislation to Parliament, and Parliament will not carry out its responsibility for the rule of law without leadership from the Government. Some public authorities (chiefly secretaries of state acting on behalf of departments) have statutory power to make delegated legislation, and then they have responsibility for extending the rule of law. And every public authority, to some extent, has authority to establish policies which (because of the doctrine of legitimate expectations –see 8.4) will have the effect of regulating their own conduct. They ought to establish clear and definite policies that have such an effect, where doing so promotes the value of the rule of law.