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Administration and the principles of the constitution
- Case of Proclamations (1611) 12 Co Rep 74: Lord Coke held that the Crown has no prerogative to change the common law or statute, or to create new offences. He also held that the King only has the powers that the law allows him. This case is important as it is a move away from arbitrary government. It cements the separation of powers and the subjection of the executive to the rule of law.
- Prohibitions del Roy (1607) 77 ER 1342, 12 Co Rep 64: All judicial power is exercised in the name of the monarch, but Lord Coke held that the King could not determine legal disputes in person. The separation of powers required that the task be delegated to the King’s judges. This case reinforced the separation of powers between the executive and the courts.
- R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598: The Court of Appeal refused to declare that the Foreign Secretary was under a duty to take steps to pressure the US government to release a British detainee in Guantánamo Bay. However, the Court affirmed that Foreign Office conduct in the exercise of its prerogative power to protect British citizens was in principle reviewable, so long as the subject-matter was justiciable. This case confirms that judicial review of governmental action applies regardless of the source of the power being exercised.
- A and X v Home Secretary [2004] UKHL 56: The House of Lords found that the power of the government under Section 23 Anti-terrorism, Crime and Security Act 2001 (now repealed) to indefinitely detain foreign nationals who were suspected terrorists and who could not be deported was incompatible with the European Convention on Human Rights. The Lords held that, inter alia, the violation of the Article 5 right to liberty contained in Section 23 was not a permissible derogation under Article 15 of the Convention, as the liberty of the detainees was infringed to an extent greater than that strictly required by a public emergency threatening the life of the nation. This case displays the importance and limits of comity between institutions.
- R (Daly) v Home Secretary [2001] UKHL 26: The House of Lords held that the Home Secretary’s blanket policy allowing prison staff, in the absence of prisoners, to examine purported legal correspondence to ensure it was bona fide, was unlawful. This case is an example of the principle of legality at work: a grant of administrative power phrased in general terms will be read down so that it must be exercised in manner compatible with certain basic values (here, the common law right to confidentiality of privileged legal correspondence) in order to be exercised lawfully.
- Rahmattullah v Foreign Secretary [2012] UKSC 48: The Court of Appeal had issued a writ of habeas corpus, in respect of a prisoner detained in Afghanistan by the United States ([2011] EWCA Civ 1540). The Court found that it was unclear whether the Foreign Secretary could control the detention of Mr Rahmatullah by requesting his return under agreements with the United States authorities, and issued the writ so that the Foreign Secretary would have to account for the detention, if it should prove that he could secure the release of Mr Rahmatullah. After the United States gave no satisfactory reply to a request for the release of Mr Rahmatullah, the Court of Appeal held that it had become clear that the Foreign Secretary was not in control of the detention, and did not accept the argument of lawyers for the claimant that the writ should be reissued to require the Foreign Secretary to demand a satisfactory reply ([2012] EWCA Civ 182). The Supreme Court, by a 5-2 majority, held that the Court of Appeal had been right both in issuing the writ initially, and in refusing to reissue the writ. Lord Carnwath and Baroness Hale, dissenting, would have reissued the writ to require a clear answer from the U.S. authorities.