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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904

LORD DENNING MR. At Saint Hill Manor near East Grinstead, there is an establishment which calls itself the Hubbard College of Scientology. It is owned by an American corporation called the Church of Scientology of California. Scientology is a word which has recently been invented. It finds no place in the English dictionaries. Its proponents say that scientology is a religion; and that this religion, its faith and belief, its teaching and practices are taught to students at the college at East Grinstead. The present number of students is 234, of whom approximately 100 are aliens. Among those aliens are two citizens of the United States. These two bring an action in the courts against the Home Secretary. They bring it for themselves and 50 other alien students at the college. They say that they were permitted to come into this country in order to study at the College of Scientology. Their permits were for a limited time. The time has expired. They wished to complete their studies and asked the Home Secretary to extend their permits. He refused. They say that his refusal was invalid, because he did it for an unauthorised purpose, and also because he did not act fairly towards them.

It is the policy of the Home Office to allow an alien to enter this country if he comes into one out of several particular categories. One of these is when he comes (for the purpose of full-time study at a recognised educational establishment. In pursuance of that policy, the Home Secretary in August 1967 allowed the first plaintiff to enter this country, and in June 1968 he allowed the second plaintiff to enter. In June and July 1968, the secretary of the Hubbard College of Scientology applied on their behalf for an extension of their stay in this country....

The Home Secretary did not reply at once to those letters and, before he replied, the Minister of Health made a statement in the House of Commons about scientology. I will give some extracts from it:

"Scientology is a pseudo-philosophical cult introduced into this country some years ago from the United States and has its world headquarters in East Grinstead....The Government are satisfied, having reviewed all the available evidence, that scientology is socially harmful. It alienates members of families from each other and attributes squalid and disgraceful motives to all who oppose it...its methods can be a serious danger to the health of those who submit to them. There is evidence that children are now being indoctrinated. There is no power under existing law to prohibit the practice of scientology; but the Government have concluded that it is so objectionable that it would be right to take all steps within their power to curb its growth.

The following steps are being taken with immediate effect: (d) Foreign nationals already in the United Kingdom for study at a scientology establishment will not be granted extensions of stay to continue these studies....".

At the end of July 1968 the Home Secretary rejected the applications of the plaintiffs....

Counsel for the plaintiffs submitted that the Minister ought to have given the students a hearing before he refused to extend their stay in this country. I see no basis for this suggestion. I quite agree, of course, that where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without his being given an opportunity of being heard and of making representations on his own behalf. But in the case of aliens, it is rather different; for they have no right to be here except by licence of the Crown. And it has been held that the Home Secretary is not bound to hear representations on their behalf, even in the case of a deportation order, though, in practice, he usually does so. It was so held in R v Leman Street Police Station Inspector and Secretary of State for Home Affairs, Ex p Venicoff..... Some of the judgments in those cases were based on the fact that the Home Secretary was exercising an administrative power and not doing a judicial act. But that distinction is no longer valid. The speeches in Ridge v Baldwin show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. Thus in Re K (H) (an infant) a Commonwealth citizen had a right to be admitted to this country if he was (as he claimed to be) under the age of 16. The immigration officers were not satisfied that he was under 16 and refused him admission. Lord Parker CJ, held that, even if they were acting in an administrative capacity, they were under a duty to act fairly(and that meant that they should give the immigrant an opportunity of satisfying them that he was under 16....

[A] foreign alien...has no right to enter this country except by leave; and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right ( and, I would add, no legitimate expectation ( of being allowed to stay. He can be refused without reasons given and without a hearing. Once his time has expired, he has to go. In point of practice, however, I am glad to say that the Home Secretary does not act arbitrarily. He is always ready to consider any representations that are put before him; as indeed, we are told he is ready to do in these cases......

The fourth point was, assuming that the Home Secretary was under a duty to act fairly, whether there was any ground for saying that he had acted unfairly. I see no trace of unfairness at all. In his letter at the end of July, he extended their time for two months until the end of September. If the plaintiffs had had any representations to make, they should have made them during that time; but they made no representations. Instead of making representations, they brought this action, claiming that the Home Secretary was acting wrongly. Faced with this action, he quite rightly resisted the suggestion. And his fairness is shown by his readiness still to receive representations. The real point is whether the statement of claim is so bad that it ought to be struck out. I think it is. This action is quite unsustainable...