Penn State International Law Review Volume 28 Article 14 Number 3 Penn State International Law Review 1-1-2010 The Executive and the Courts Richard Clayton Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, and the International Law Commons Recommended Citation Clayton, Richard (2010) "The Executive and the Courts," Penn State International Law Review: Vol. 28: No. 3, Article 14. Available at: http://elibrary.law.psu.edu/psilr/vol28/iss3/14 This Article is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact [email protected]. The Executive and the Courts Richard Clayton QC, Barrister* Table of Contents IN TRODU CTION ..................................................................................... 5 13 THE REGULATION OF EXECUTIVE DECISION MAKING ......................... 514 The Ultra Vires Principleand Local Government ..................... 514 The Decision-MakingPowers of Central Government .............. 515 The Crown's PrerogativePowers .............................................. 515 The Crown's Additional Common Law Powers......................... 517 The Impact of the Human Rights Act ......................................... 518 CHALLENGING THE MERITS OF EXECUTIVE DECISIONS ON JUDICIAL REVIEW G ROUNDS ..................................................................... 521 Introduction................................................................................ 52 1 The W ednesbury Rationality Test .............................................. 523 The Development of the ProportionalityTest ............................ 525 C ON CLU SION ......................................................................................... 529 INTRODUCTION Analysing the relationship between the executive and the courts is particularly interesting to an English lawyer when it takes place at a conference devoted to constitutional law. In the UK, we of course have no written constitution, and the term "unconstitutional" has no defined legal content. As a Canadian writer put it, for the American, anything unconstitutional is illegal, however it may seem: for the British, anything unconstitutional is wrong, however legal it may be.1 As a result, the relationship between the executive and the courts in English law is not regulated by any formal constitutional framework, but * Associate Fellow, Centre for Public Law, University of Cambridge, 4-5 Grays Inn Square, London WC1R 5AH. 1. See A. BRADLEY AND K. EWING, CONSTITUTIONAL AND ADMINISTRATIVE LAW 27 (12th ed. 1997) (citing JR. MALLORY, THE STRUCTURE OF CANADIAN GOVERNMENT (1984)). PENN STATE INTERNATIONAL LAW REVIEW [Vol. 28:3 has evolved as a result of history and convention. The enactment of the Human Rights Act (the HRA) in 1998 therefore resulted in a significant constitutional shift-by enacting the European Convention of Human Rights into English law, the courts have acquired a wider supervisory jurisdiction over executive decision making, which it is vital to consider. In this paper I propose to focus on two principal issues: " the extent. to which executive decisions is regulated by law; and * the degree to which the Court scrutinises executive decision making when reviewing the merits of particular decisions. THE REGULATION OF EXECUTIVE DECISION MAKING Differentiating the source of power a public body is potentially exercising is important when considering the extent to which the Courts regulate executive decisions. The paradigm case of public law decision-making in England is that created by statute. Obviously, both central and local government decision makers have statutory powers and duties, and these decisions will invariably be subject to review. In particular, local authorities are statutory bodies and therefore cannot make any decisions that are outside the scope of those statutory powers. The Ultra Vires Principleand Local Government Any decision of a local authority which is not based on a statutory power is ultra vires because it has acted without jurisdiction to do so. The concept of ultra vires is said to be based on parliamentary intent, but whilst the concept plainly applies to public law challenges based on the absence of statutory authority, the principle of ultra vires provides no explanation for complaints about the exercise of common law powers, like the use of the royal prerogative.2 Where a decision is ultra vires, the Court must establish its invalidity. Where the Court grants a remedy, however, it will normally treat the unlawful act as being null and void so that the decision in question is retrospectively held to be invalid. The ultra vires doctrine has created a number of difficulties for local authorities where the courts have decided that the authority had no legal power to make the decision in question. Thus, in Hazell v. Hammersmith the House of Lords decided there was no express statutory power entitling the council to enter into highly speculative loan swapping 2. For a valuable discussion of these issues, see JUDICIAL REVIEW AND THE CONSTITUTION (Christopher Forsyth ed., Hart Publishing, 2000). 2010] THE EXECUTIVE AND THE COURTS financial transactions although it had an implied power under section 111 of the Local Government Act 1972 to do anything which was ancillary to the discharge of any of its functions.3 Nevertheless, the House of Lords decided that it was not the function of the authority to enter into loan swaps.4 In R. v. Richmond L.B.C. Ex parte McCarthy & Stone the House of Lords decided that no charge could be made for pre-application advice in relation to a planning application; giving pre-application advice was not itself a function of the local planning authority within the meaning of section 111(1) of the Local Government Act 1972 and to charge for such advice did not facilitate, nor was it conducive or incidental to, the authority's functions of considering and determining planning applications.5 These well known limitations were intended to be overcome when the Government decided in 2000 to enact a general power allowing a local authority to promote or improve social, economic or environmental well-being. 6 However, the Court of Appeal in Brent LBC v. Risk Management decided that a decision by local authorities to save money by entering into a mutual insurance company was not undertaken to achieve the purpose of promoting welfare; nor was it incidental or conducive to a local authority function.' The ultra vires doctrine therefore continues to impose significant restrictions on local government decision-making. The Decision-MakingPowers of Central Government Central government exercises statutory powers, powers which derive from the Crown's prerogative and other common law powers. The need for central government to exercise non-statutory powers means that there are some areas of decision making that are not subject to any form of legal control. The Crown's PrerogativePowers In addition to its statutory powers the Crown retains a discretionary power at common law known as the Crown prerogative. In the landmark decision in 1984 in the GCHQ case the House of Lords decided that 3. See Hazell v. Hammersmith & Fulham London Borough Council, [1992] 2 A.C. 1 (H.L.). 4. See id. 5. See R v. Richmond upon Thames London Borough Council, ex parte McCarthy & Stone, [1992] 2 A.C. 48 (H.L.). 6. See Local Government Act, 2000, c. 22, § 2 (Eng.). 7. See Brent London Borough Council v. Risk Management Partners Ltd., [2009] E.W.C.A. Civ 490. PENN STATE INTERNATIONAL LAW REVIEW [Vol. 28:3 powers derived from the royal prerogative were subject to judicial review provided they were justiciable.8 In that case the House of Lords took the view that it could subject a decision to de-recognise trade unions at a Government communications centre which intercepts phone calls without having gone through a process of consultation despite it having created a legitimate expectation that it would do so. The courts have subsequently decided that a number of prerogative powers such as: * the residual prerogative power of the Home Secretary in the immigration field;9 * the power to make ex gratia payments to victims of miscarriages of justice;' ° * the power to intercept telephone calls; 1 and 12 * the power to grant a pardon. However, prerogative powers which relate to the defence of the realm or foreign policy or relations are not justiciable and within the scope of judicial review. Consequently, the Divisional Court held that it would not consider whether the Iraq War was a breach of international law or a breach of UN Resolution 144,13 and the Court of Appeal took the view that it would not review the merits of possessing nuclear4 weapons in order to decide whether their decommission was unlawful.' But the traditional approach the courts have taken towards justiciability of the royal prerogative is open to question on at least two grounds. First, the English courts have been obliged to consider these issues in other contexts and have not been deflected by any question concerning justiciability. Thus, in the Human Rights Act case concerning the legality of the Iraq War the House of Lords would have ruled on this issue, had the human rights claim itself been well founded.' 5 Secondly, so far as any question of expertise arises, the English courts are increasingly familiar with the idea of construing international conventions. 8. See Council of Civil Service Unions v Minister of the Civil Service, [1985] A.C. 374 (H.L.). 9. See R. v. Secretary of State for the Home Department ex parte Beedassee, [ 1989] C.O.D. 525. 10. See R. (Christofides) v. Secretary of State for the Home Department, [2002] 1 W.L.R. 2769 (Q.B.). 11. See R. v. Secretary of State for the Home Department Ex parte Ruddock and Others, [1987] 1 W.L.R. 1482 (Q.B.). 12. See R. v. Secretary of State for the Home Department Ex parte Bentley, [1994] Q.B. 349; Lewis v. Attorney General of Jamaica, [2001] 2 A.C. 50. 13. See R. (Campaign for Nuclear Disarmament) v. Prime Minister, [2002] E.W.H.C.