Differing Responses to Constitutional and Human Rights Issues
| Author | Frederic Reynold |
| Pages | 85-124 |
PART FOUR
DIFFERING RESPONSES TO CONSTITUTIONAL AND HUMAN RIGHTS ISSUES
The six cases chosen to illustrate this theme have all been decided within the last five years: two concern what can be described as constitutional rights; two concern Convention rights; and two concern rights that can best be classified as “hybrid.” All happen to raise the kind of issues one is more readily inclined to associate with the Supreme Court of the US. Although the figure of “the serial dissenter” does not, unlike in the Supreme Court of the US or, arguably, the High Court of Australia, feature in either the House of Lords or our own Supreme Court, it will not escape the reader’s attention that Lord Mance delivered a strong dissent in three of these cases. They, and other recent decisions, also illustrate the point made by the Supreme Court Justice and former Law Lord, Lord Kerr, in a recent lecture on dissenting judgments, that:
... the resolution of competing policy arguments or even moral choices is far more frequently the staple diet of judicial decisions than previously ... the court must now confront claims of fundamental importance [where] often vital societal issues are at stake.1
At times, it must be said, this “confrontation” has taken on a distinctly theological character.
Home Secretary’s statutory power to detain prisoners of foreign nationality following completion of their sentences pending their deportation. The majority held that the Home Secretary was liable for the tort of false imprisonment in detaining two foreign nationals pending their deportation on completion of their sentences, on the ground that she had applied the criteria laid down in accordance with an unpublished and “secret” policy, even though they would have been inevitably and legitimately detained under the criteria laid down in accordance with the previously published and lawful policy which it purported to
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(1) IS THE “RIGHT OF ABODE” A FUNDAMENTAL RIGHT?
The facts and historical background to this case
In 2000 a former inhabitant successfully challenged the legality of the 1971 removal ordinance in the Divisional Court. The Government accepted the decision, choosing not to appeal, and the then Foreign Secretary, Robin Cook, made a statement in the House of Commons in which he said that a study of the feasibility of resettlement was under way, and that “[the Government would] put in place a new Immigration Ordinance which
replace, but that in the circumstances they were only entitled to recover nominal damages. One of the three dissentients, Lord Brown, whilst acknowledging “the beguiling simplicity and apparent purity of the majority’s approach”, concluded that it was “nothing short of absurd that assuming the inevitability of detention in any event ... to hold [that] the tort of false imprisonment [was] nevertheless made out.” Furthermore, in his view so to hold was inconsistent and incompatible with the award of merely nominal damages. The case occupied a nine-member Supreme Court for four working days, and occupied some 115 pages of the law reports: Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245.
61, [2009] 1 AC 453.
[would allow the Chagos islanders] to return to the outer islands [i.e. excluding Diego Garcia] ... .” Following further court proceedings, compensation was paid out to the Islanders, and pending the completion of the feasibility study, no attempt was made by any of them to return and resettle.
Some four years later, in 2004, the Government, without prior warning or consultation with the Islanders, made an order called the British Indian Ocean Territory (Constitution) Order, section 9 of which declared:
(1) Whereas the territory was constituted and is set aside to be available for the defence purposes of the Government of the United Kingdom and the Government of the United States of America, no person has the right of abode in the territory. [Emphasis added]
(2) Accordingly, no person is entitled to enter or be present in the territory except as authorised by or under this Order or any other law for the time being in force in the territory.
The legality of this order was likewise challenged in the courts. This challenge was resisted essentially on the ground that the order, being a “prerogative” order, and therefore not the subject of normal legislation, was immune to judicial scrutiny and, specifically, was not susceptible to the process of judicial review. The Divisional Court quashed the order, primarily on the ground that it was irrational, not having been made in the interests of the Islanders but in the interests of the UK and the US; and that they did not serve the purpose of ensuring “the peace, order and good government of the territory.” The Court of Appeal upheld the decision on the grounds that the order was made without proper regard for the interests of the Islanders; and the Islanders, in the light of the 2000 statement, had a legitimate expectation
On the further appeal to the House of Lords, the primary argument for the Government continued to be that a prerogative order, not being part of the Parliamentary legislative process, was not subject to judicial scrutiny or judicial review. The secondary argument was that the power of the Crown to
Department makes a promise or representation which is intended to be relied upon, a person who has acted in reliance on that representation or promise and has “a legitimate expectation” that it will be adhered to, is entitled to a remedy should the promise or representation be broken or breached, as the case may be.
88 Disagreement and Dissent in Judicial Decision-making
legislate “in Council” was not subject to any limitation. The primary argument for the claimant was that the Islanders’ right of abode was a fundamental right integral to British citizenship, and was not capable of being removed by the exercise of a prerogative power. (The illustrious eighteenth-century judge, Lord Mansfield, had stated in a well-known case that although the Crown had the power to introduce new laws to conquered or ceded countries “[it] could not make any new change contrary to fundamental principles.”) Secondly, it was argued that any order made pursuant to the original 1965 Order was required to be made for the purpose of ensuring of “peace, order and good government of the territory”, and to be made in the interests of the Islanders. Thirdly, it was argued that since the order was not made in the interests of the Islanders and was made without any consultation, it lacked rationality and proportionality – familiar grounds for a judicial review. And lastly, Robin Cook’s statement to the House of Commons explaining why the Government chose not to appeal on the previous occasion, gave rise to a “legitimate expectation” that the Islanders would be allowed to return and resettle.
Despite there being unanimity on the part of the Law Lords in condemning the behaviour of successive governments as “disgraceful”, and in confirming that prerogative orders could be subject to judicial scrutiny, the appeal resulted in a three to two majority in the Government’s favour. The majority comprised Lords Hoffmann, Rodger and Carswell. There were clear differences in both tone and approach.
Lord Hoffmann did not regard the “right of abode” either as “fundamental” or necessarily a “constitutional right”. He accepted that the position was as declared in the 29th Chapter of Magna Carta: “No freeman shall be taken, or imprisoned ... or exiled ... but by the law of the land.” “[B]ut by the law of the land” being the operative words; and as in Blackstone’s Commentaries on the Laws of England: “But no power on earth, except the authority of...
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