Constitutional and Administrative Law at Pearson, We Have a Simple Mission: to Help People Make More of Their Lives Through Learning

LONGMAN LAW SERIES Second Edition Roger Masterman and Colin Murray Constitutional and Administrative Law At Pearson, we have a simple mission: to help people make more of their lives through learning.

We combine innovative learning technology with trusted content and educational expertise to provide engaging and eﬀective learning experiences that serve people wherever and whenever they are learning.

From classroom to boardroom, our curriculum materials, digital learning tools and testing programmes help to educate millions of people worldwide – more than any other private enterprise.

Every day our work helps learning ﬂourish, and wherever learning ﬂourishes, so do people.

To learn more, please visit us at www.pearson.com/uk The core rule of law 189

Thinking Point . . . Carol Harlow and Richard Rawlings conclude that the existence of such general Crown privileges at the time of Dicey’s writings on equality before the law ‘somewhat undercut’ his aspirations; C. Harlow and R. Rawlings, Law and Administration (CUP, 2009), p. 9.

The courts ultimately accepted that it was possible to issue binding injunctions against ministers (who could also be found in contempt of court). Lord Templeman explained this finding on the basis of the principle of equality before the law: [T]he argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the execu- tive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.31

Thinking Point . . . Lord Templeman is drawing upon the idea that the civil wars of the seventeenth century were fought (in part) to prevent assertions of absolute (i.e., legally unrestrained) authority by the monarchy. See Chapter 8, pp. 259–60.

The House of Lords’ decision in M v Home Office therefore realised an important aspect of Dicey’s principle of equality before the law as a presumption within the UK Constitution over 100 years after he had expounded the idea. As for M, soon after being returned he fled from Zaire for Nigeria. Thereafter neither the UK Government nor his legal repre- sentatives were able to trace his whereabouts.32 Constitutional principles matter for individual lives.

(ii) Exceptional Privileges Equality before the law is a general principle operative within the UK Constitution. None- theless, statutes have permitted qualifications to the principle’s operation in relation to groups such as diplomats, judges and parliamentarians. This list is by no means comprehen- sive, for as we have seen all police constables are granted special powers in the performance of their duties. Nonetheless, the following examples serve to illustrate some justifications for departing from the general rule against special privileges.

A. Diplomatic immunity One group controversially excluded from the operation of domestic law are diplomats. Diplomatic immunity is designed to protect diplomats being hounded by law enforcement officers in a host state or ‘framed’ for criminal offences. This provides an important protection for British embassy staff operating in countries with tense relations with the UK. Diplomatic immunity is secured by an international treaty, the Vienna Convention on

31 Ibid., 395. 32 Ibid., 402. 190 Chapter 6 The rule of law

Diplomatic Relations 1961, which was incorporated into domestic law in the UK under the Diplomatic Privileges Act 1964. Under this Act members of diplomatic missions and their family members are immune from prosecution, arrest or detention. Should a protected individual be accused of a criminal act, they can only be prosecuted if their own state agrees to a request from the UK Government that diplomatic immunity be waived. This has led to cases where some diplomats disregard domestic law with impunity, with examples ranging from unpaid fines for road traffic violations to incidents such as the Libyan Embassy shooting (when Libya refused to allow the UK to prosecute diplomats accused of shooting dead a police officer outside its London Embassy in 1984).33 Diplo- matic immunity therefore constitutes an exception to the operation of equality before the law which sometimes takes on great significance but which is accepted because of ‘its practical utility’.34 For as long as the UK dispatches its diplomats to countries with uneasy relations with the UK, this exception to the ordinary operation of equality before the law will be maintained.

B. Immunity relating to parliamentary proceedings Members of Parliament enjoy various privileges which operate to protect parliamentary proceedings from interference. Many of these protections developed during the seventeenth century in response to efforts by the Stuart monarchs to constrain Parliament’s freedom of action. Parliament polices abuses of these privileges for itself, excluding the jurisdiction of the ordinary courts. The most important of these privileges protects the ability of MPs to participate freely in parliamentary proceedings, and is enshrined in the Bill of Rights 1689: ‘[T]he Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament’.35 This privilege carries with it the risk of abuses of ordinary law. For example, MPs might make disclosures in Parliament which would constitute defamation or break the criminal law if spoken in any other forum. During House of Lords debates in 2006 Lord Campbell-Savours claimed false allegations by a woman, whom he named, had led to the imprisonment of a man for sexual assault for three years.36 Had his actions not been covered by parliamentary privilege, this disclosure would have breached the criminal offence which shields the identity of people who report to the police that they have been subjected to a sexual offence.37

Thinking Point . . . In 1641 King Charles I attempted to detain five members of the House of Commons for speak- ing out against him in Parliament, precipitating the civil wars of the 1640s. Episodes like this were of pivotal importance to the enactment of the protection contained within Bill of Rights 1688, Art. 9. See Pepper v Hart [1993] AC 593, 638 (Lord Browne-Wilkinson).

33 See S. Sutton, ‘Diplomatic Immunity and the siege of the Libyan People’s Bureau’ (1985) PL 193. 34 J. Brown, ‘Diplomatic immunity: state practice under the Vienna Convention on Diplomatic Relations’ [1988] ICLQ 53, 54. 35 Bill of Rights 1689, Art. 9. 36 Lord Campbell Savours, HL Deb, vol. 685, col. 868 (19 October 2006). See also R v Blackwell [2006] EWCA Crim 2185. 37 Sexual Offences (Amendment) Act 1992, s. 1. The core rule of law 191

Lord Campbell-Savours was highlighting what he saw as the unfairness involved in the law of complainant anonymity, and it might be argued that the Bill of Rights was designed to protect such freedom of debate. Even if he did not need to name the woman involved in the case to make his point, the publicity sparked by his decision to do so pushed government into reconsidering the law.38 Other parliamentarians, however, have sought to rely on parliamentary privilege to protect them from prosecution for offences of false accounting relating to their parliamentary expense claims:

Key case R v Chaytor [2010] UKSC 52; [2011] 1 AC 684 (Supreme Court) Three former Labour MPs (David Chaytor, Elliot Morley and Jim Devine) and one Conservative peer (Lord Hanningfield) were charged with false accounting under section 17 of the Theft Act 1968 with regard to false parliamentary expenses claims (David Chaytor, the first named defendant, being charged with making claims for IT services which had not been supplied and rent payments which had never been made). All raised the issue, before their trial, of whether their actions were protected by parliamentary privilege rendering them immune to prosecution (being subject instead to the disciplinary jurisdiction of Parliament). Having firstly recognised (at [14]) that the importance of the Bill of Rights’ Article 9 ‘cannot be overestimated’, the Court of Appeal examined the relationship between the principle of equality before the law and the exceptional privilege granted to Members of Parliament, with Lord Judge CJ asserting (at [42]) that:

We are all equally subject to the law. It must be applied equally to every citizen, including members of Parliament. Any asserted immunities or exemptions against criminal proceedings asserted on their behalf must therefore be justified by reference to some further, over-arching principle, and they can only begin to come into contemplation in the context of the performance by Parliament of its core constitutional functions.

In the Supreme Court, Lord Phillips recognised (at [24]) that the key issue was ‘whether busi- ness of this nature amounts to proceedings in Parliament, within the meaning of Article 9, or is otherwise privileged from scrutiny in the criminal courts because it falls within the exclusive cognisance or jurisdiction of Parliament’. Having identified that these were special privileges, the Supreme Court noted that Parliament had made no effort to assert the privileges on behalf of its members (see Lord Clarke, [131]). In other words, the privilege of immunity from prosecution was interpreted narrowly (in light of its purpose to protect parliamentary functions) so that it impinged upon the principle of equality before the law to the least degree possible. With the rejection of this defence, all four parliamentarians changed their pleas to guilty and were subsequently imprisoned.

C. Judicial immunity relating to court proceedings The courts of England and Wales historically asserted that judicial independence required judges’ absolute immunity from liability for actions in court. This principle was firmly established in the late nineteenth century, a time when judges, confronted by individuals representing themselves in court, feared that they would be at risk of defamation action if

38 Lord Goldsmith, HL Deb, vol. 688, col. 109 (9 January 2007). 192 Chapter 6 The rule of law

they criticised such individuals.39 The leading case in the era was Anderson v Gorrie,40 which arose after the claimant was imprisoned subject to onerous bail conditions by three judges of the Supreme Court of Trinidad and Tobago, headed by Sir John Gorrie. A report into these actions was highly critical of two of the three judges, resulting in one of them being dismissed. Not satisfied by being vindicated by this report, Anderson sought to recover damages before the English courts on the basis that these judges had maliciously abused their position. His claim was dismissed by the Court of Appeal, with Lord Esher MR concluding that ‘no action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office’.41 A judge acting in bad faith, he noted, could be removed from office by resolution of both Houses of Parliament. He justified this alternative to a right of civil action against judges on the basis that, ‘if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice’.42

Thinking Point . . . Judicial immunities were eventually codified by statute, with the effect that under s. 32 of the Courts Act 2003 judges in lower courts do not enjoy immunity if they do not act in good faith or exceed their jurisdiction.

Later courts extended protections against civil action to cover ‘all those directly taking part’ in court proceedings.43 As Lord Hoffmann recognised , ‘[t]he policy of this rule is to encourage persons who take part in court proceedings to express themselves freely’, on the basis that the interests of justice would be undermined if individuals involved in a case feared that their statements could form the basis of a legal action against them.44 Instead of being able to bring civil action against such individuals, different protections for the administration of justice exist in terms of offences like contempt of court. The courts have explicitly linked the maintenance of these immunities to the demands of the administration of justice (for example, removing immunity from negligence suits from advocates in the case of Arthur J S Hall v Simons).45 As Lord Hope declared in that case, in a conclusion that applies to any of the privileges which we have examined in this section, ‘[a]ny immunity from suit is a derogation from a person’s fundamental right of access to the court which has to be justified’.46

39 See P. Polden, ‘Doctor in Trouble: Anderson v Gorrie and the Extension of Judicial Immunity from Suit in the 1890s’ (2001) 22 JLH 37. 40 Anderson v Gorrie [1895] 1 QB 668. 41 Ibid., 671. 42 Ibid., 670. 43 Arthur J S Hall v Simons [2002] 1 AC 615, 740 (Lord Hobhouse). 44 Ibid., 697. 45 Ibid., 697. 46 Ibid., 710. The core rule of law 193

Government by law (i) Government actions require authority Dicey’s writings assert that government must point to legal authority for its actions. He admitted that many of the laws in force in the UK in the 1800s were neither good nor lenient, in that they involved substantive infringements of individual liberties, especially if the individuals in question were poor, religious dissenters or political radicals. Nevertheless, he maintained that even in this era this requirement of the rule of law operated to restrict ‘arbitrary power’.47 The idea that public authorities cannot act in the absence of lawful authority is therefore the shoot from which the UK’s public law has grown. As the econ- omist Friedrich Hayek declared, this core principle makes it possible for a person ‘to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s life accordingly’.48 These ideas did not originate with Dicey. As early as the seventeenth century the phil- osopher John Locke had recognised that when a constitutional order respects the requirement of government by law, this will carry benefits for both the government (by maintaining the legitimate basis by which they exercise authority) and private individuals (by constrain- ing the exercise of government power).49 Nonetheless, in order to establish that this con- ception of the rule of law was deep-rooted in the UK’s legal systems, Dicey turned to case law which exemplified the courts’ readiness to accept that exercises of power by public authorities needed to be justified by law and not simply by official claims that their actions were necessary. One of the most famous cases he identified as evidence for the respect for this principle was Entick v Carrington, still acclaimed as ‘the most famous of all English civil liberties cases’:50

Key case Entick v Carrington (1765) 19 St Tr 1029 (Court of Common Pleas) During a period when the UK Government faced popular unrest fomented by the radical John Wilkes, Parliament passed draconian legislation permitting government agents to raid premises given the issue of a ‘general warrant’. John Entick was a London-based supporter of Wilkes, and his printing presses were used to produce pamphlets spreading Wilkes’ oppo- sition to government policy. Entick’s property was raided by government agents acting with the permission of a general warrant and his papers and printing equipment were removed. The time-limited legislation which permitted such warrants, however, had been allowed to lapse. Despite not having been convicted of any wrongdoing, Entick had lost his valuable papers and presses. He therefore brought an action for trespass against Nathan Carrington, one of the government agents who had raided his home. ➔

47 A. Dicey, An Introduction to the Study of the Constitution (8th edn, first published 1915, Liberty Fund, 1982) p. 111. 48 F. Hayek, The Road to Serfdom (Routledge, 1944) p. 54. 49 J. Locke, Two Treatises of Civil Government (first published 1690, Everyman’s Library, 1961) Book II, Ch. IX, para. 137. 50 K. Ewing and C. Gearty, The Struggle for Civil Liberties (OUP, 2000) p. 30.