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The rule of law and the rule of judges
- 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House of Lords found that the power of the Government under Section 23 Anti-terrorism, Crime and Security Act 2001 (now repealed) to indefinitely detain foreign nationals who were suspected terrorists and who could not be deported was incompatible with the European Convention on Human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 v Ministry of Defence ex p Walker [2000] 1 WLR 806: The Ministry of Defence set up a criminal injuries compensation scheme for servicemen who were victims of crimes of violence abroad. The criteria of the scheme excluded injuries caused in war zones. Walker challenged the Ministry’s decision not to pay him compensation under the scheme after he was injured in Bosnia, on the basis of incorrect interpretation of the scheme, Wednesbury unreasonableness, and frustration of a legitimate expectation. The House of Lords rejected Walker’s appeal. Walker clarified the law, but it was decided on well-established principles. The courts will interfere with an administrative decisions in a very broad sense of ‘administrative’ (the decisions in Walker did not determine any legal rights). The courts have a discretion to interfere if such a decision is procedurally unfair, or if it is based on a misinterpretation of the law (or even of non-legal rules, such as the rules of criminal injury compensation in Walker), or (in a wide range of cases – see p248), if it is so unreasonable that no reasonable authority could make it. See also p 236, 301-2, 332-2.
- Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223: A local authority had the power to allow a licensed cinema to open on Sundays, subject to such conditions as it thought fit to impose. The local authority granted such an authorization, subject to the condition that children under 15 not be admitted. The Court of Appeal found that the local authority had not acted unlawfully. The Court cannot interfere as an appellate authority to override the local authority’s decision; but only as a judicial authority to see whether the local authority has contravened the law by acting in excess of power. The grounds on which such interference can be based include where the authority misdirects itself in law, fails to take into account relevant considerations or takes into account irrelevant considerations, acts in bad faith, or takes a decision that no reasonable body could have come to. This last ground requires something overwhelming; it is not simply whether the court considers the decision to be unreasonable. Wednesbury does not give a general code of grounds of judicial review; its effect depends on the facts of the case that was before the Court. See p 225.