Chapter 1 Guidance on answering the pop quizzes

Page 9: Habeas corpus and the European Convention

Why do you suppose Rahmatullah’s lawyers sought habeas corpus, instead of bringing a claim based on Art 5 under the Human Rights Act?

• Habeas corpus is a process that yields a specific and very effective remedy: an order to release a person who is detained unlawfully. In a claim under the Human Rights Act, Rahmatullah might have obtained a declaration that his right under Art 5 of the Convention had been violated (either in the decision to hand him over to U.S. custody, or in the U.K. government’s dealings with the U.S.). In the claim for habeas corpus, he got an order that required the government to do something –i.e., to seek Rahmatullah’s return from the U.S.

The limits of arguments of comity

Page 11: The ‘tyrant’s plea’ was an argument of comity, i.e., an argument that judicial interference with the executive would damage the constitutional function of the executive. If courts ought to act with comity toward the executive, what was wrong with that argument?

• If the judges merely stop the Commissioners from acting corruptly, or extremely unreasonably, would this be a breach of comity? Consider whether judicial interference to this limited extent would have prevented the Commissioners of Sewers from acting for the salvation of the King’s lands and people.
• Can you think of a type of judicial interference with the work of the executive branch that would be a breach of comity?
• What if the judges replaced the Commissioners’ judgment on all questions of proportionality with their own, out of a concern for the rights of particular landowners? Would this be a breach of comity?

The common law and the sovereignty of Parliament

Page 18: Who established the sovereignty of Parliament? Lord Steyn said in Jackson [102], ‘It is a construct of the common law. The judges created this principle.’ Is there any authority for that? Can the judges, as Lord Steyn suggests, change or abolish the principle?

• Lord Steyn is right that the sovereignty of Parliament is part of the common law, as long as we understand the common law in the right way: it is the law that has been binding on the whole country since the 1100s. It binds the judges as well as other institutions. The judges have legal power to identify its requirements, and the doctrine of precedent gives legal effect to judicial decisions, so that much of the common law has indeed been made by judges.

• But the judges did not invent the legislative power of Parliament! In the early common law, the King made laws in Parliament, and the King’s judges were bound to give effect to law made by the King. Since the 17^th century, it has been established that there are many changes to the law that can only be made by Parliament (so that the King has no power, for example, to raise taxes without Parliament).

• There is no authority for the proposition that judges can change the law-making power of Parliament, although (1) they have jurisdiction to interpret statutes, and (2) they have jurisdiction to resolve any dispute as to the effect of statutes.