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Judicial Remedies for Individuals Before the Highest Jurisdictions, a Comparative Law Perspective

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Judicial Remedies for Individuals Before the Highest Jurisdictions, a Comparative Law Perspective Judicial remedies for individuals before the highest jurisdictions, a comparative law perspective The United Kingdom STUDY EPRS | European Parliamentary Research Service Comparative Law Library Unit October 2017 - PE 608.746 JUDICIAL REMEDIES FOR INDIVIDUALS BEFORE THE HIGHEST JURISDICTIONS, A COMPARATIVE LAW PERSPECTIVE The United Kingdom STUDY October 2017 Summary The study presented below forms part of a larger project whose aim is to provide a comparative analysis of the rights of individuals in law proceedings before the highest courts of different States and before certain international courts. The objective is to describe the various remedies developed under domestic law that are available through the UK courts including the Supreme Court which, though not a constitutional court in the classic Kelsenian model, does sits at the apex of the appellate court structure in the UK. The study commences with an historical introduction which stresses the absence in domestic law of a clearly delineated sense of what counts as ‘constitutional’ .In traditional accounts of the UK Constitution there is no hierarchy of higher order ‘constitutional’ and ‘ordinary’ Acts of Parliament. Neither has a separate court structure developed to handle exclusively constitutional claims, although specialised ad hoc tribunals do exist in public law contexts. The underpinning principles remain (i) the doctrine of parliamentary sovereignty and (ii) the rule of law. After this introduction, a review is provided of the main remedies and procedures used for the redress of grievances against public bodies. In a subsequent section of materials, a table of the main sources of individual rights against the state is provided. The domestic status of constitutional conventions and international law are dealt with in this part. Then, an account of the substantive norms informing the standards of effective protection for the individual is given, including some critical commentary on the operation of key provisions. The concluding section compares the benefits and drawbacks of specialised tribunal adjudication, the ‘politicised’ nature of certain judicial review proceedings against a background of increasing privately-owned provision of services to the public and the continuing relevance of private law tort claims where compensation for mistreatment at the hands of the state is sought. Study AUTHOR This document was written by Professor Ian Cram, Professor of Comparative Constitutional Law, School of Law, Leeds University, at the request of the Comparative Law Library Unit, Directorate-General of the European Parliamentary Research Service (DG EPRS) of the General Secretariat of the European Parliament. CONTACT PERSON Ignacio Díez Parra, Head of the Comparative Law Library Unit. To contact the Unit, please send an email to: [email protected] LINGUISTIC VERSIONS Original: EN Translations: DE, ES, FR, IT This document is available online at: http://www.europarl.europa.eu/thinktank DISCLAIMER Any opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. This document may be reproduced and translated for non-commercial purposes, provided that the source is acknowledged and a copy is sent to the Comparative Law Library Unit, which must be notified in advance. Manuscript completed in October 2017. Brussels, © European Union, 2017. PE 608.746 Print: ISBN 978-92-846-1847-7 doi:10.2861/062436 QA-06-17-124-EN-C PDF: ISBN 978-92-846-1842-2 doi:10.2861/095743 QA-06-17-124-EN-N II Judicial remedies for individuals before the highest jurisdictions. The United Kingdom Contents List of Abbreviations............................................................................................................. V Executive Summary ............................................................................................................VII I. Brief historical background ......................................................................................... 1 I.1. Introduction.......................................................................................................................................1 I.2. Inductively determined personal freedoms...........................................................................2 I.3. Devolution in the UK ......................................................................................................................3 I.3.1. Scotland ................................................................................................................................3 I.3.2. Wales......................................................................................................................................4 I.3.3. Northern Ireland.................................................................................................................4 II. Forms and types of remedy in cases of violation of constitutional rights................ 5 II.1. Statutory Appeals before a tribunal created by Act of Parliament................................6 II.1.1. First Tier Asylum and Immigration Care Chamber ................................................6 II.1.2. Special Immigration Appeals Commission (sits outside 2007 Act reforms).7 II.1.3. Information Tribunal (sits outside 2007 Act reforms)...........................................7 II.1.4. Investigatory Powers Tribunal (sits outside 2007 Act reforms).........................8 II.1.5. Mental Health Review Tribunal (First Tier Health, Education and Social Care) ..................................................................................................................................................8 II.1.6. Proscribed Organisations Appeal Commission (sits outside the 2007 Act reforms).................................................................................................................................9 II.1.7. Social Security and Child Support Tribunal (Social Entitlement Chamber)10 II.2. Judicial Review...............................................................................................................................10 II.2.1. Permission to apply .......................................................................................................11 II.2.2. Exclusivity of public law procedure .........................................................................11 II.2.3. Standing.............................................................................................................................12 II.2.4. Time limits.........................................................................................................................14 II.2.5. Need to exhaust other available remedies............................................................14 II.2.6. Type and discretionary nature of judicial remedies...........................................15 II.2.7. Ultra vires...........................................................................................................................15 II.2.8. Amenability to judicial review proceedings (public bodies; bodies carrying out public functions).....................................................................................................16 II.2.9. Grounds of challenge....................................................................................................19 II.3. Civil law remedies in tort............................................................................................................29 II.3.1. Habeas Corpus.................................................................................................................30 II.3.2. Privacy – trespass to the person/property; breach of confidence; misuse of personal information.....................................................................................................30 II.3.3. Misfeasance in a public office ....................................................................................31 II.3.4. Malicious prosecution...................................................................................................31 III. Legal sources of constitutional rights....................................................................... 33 III.1. Statutory laws.................................................................................................................................33 III.2. Common Law .................................................................................................................................35 III.3. Conventions....................................................................................................................................35 III.4. International Law..........................................................................................................................35 IV. The right to effective judicial protection in the case law of the UK ........................ 37 IV.1. Article 19(1) TEU and Article 47 EU Charter on Fundamental Rights.........................37 IV.2. The right to an effective remedy under Article 13 ECHR................................................38 III Study V. Conclusions ................................................................................................................. 43 Bibliography........................................................................................................................ 45 List of cases.........................................................................................................................
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