Since the Supreme Court was established in 2009, there have been a number of significant examples of judicial review that have taken place. As the UK’s final court of appeal for both civil and criminal cases, the Supreme Court is the final judicial adjudicator on key legal and constitutional issues bought before it. Cases come to the Supreme Court after they have previously been handled by the lower courts:
Significant Supreme Court cases of Judicial Review
Case: Treasury v Mohammed Jabar Ahmed and others (2010)
Background: The case concerned three brothers who had been under investigation by the police for suspected links to terrorist organisations. Importantly, none had been charged with any terrorism related offence. However, on the 2nd of August 2007, they were informed that HM Treasury had reasonable grounds for suspecting that they had links to terrorist organisations. The Treasury informed them that they had been designated under a United Nations Terrorism Order. The Treasury alleged that they had intelligence to suggest that all three had been involved in fundraising for Al-Qaeda. All three denied any associations with Al-Qaeda. However, the Treasury informed the three individuals that they were subject to an ‘asset freeze’, meaning that their monetary assets could not be moved abroad. The reason for doing this was to stop them from continuing, in the Government’s view, of funding terrorist groups.
Issue/s of Law: Whether or not in freezing the assets of suspected terrorists the government had acted ultra vires.
High Court Decision: In April 2009 Judge Collins sitting in the High Court ruled that the asset freezing orders was ultra vires and quashed them.
Supreme Court Decision: Following an appeal by the government of the High Court decision, the Supreme Court Justices in the case ruled that HM Treasury had acted ultra vires by imposing the asset-freezing order and ruled that it should be overturned by 6-1. In particular, the justices noted that it was unreasonable that the order could not be contested in court (as any criminal charge could be).
Significance: The Government was extremely disappointed with the verdict of the Supreme Court. Consequently, the Government, led by Prime Minister Gordon Brown, quickly formulated legislation to deal with this issue in the Terrorist Asset-Freezing Act (2010). This bill proposed to give the government power to freeze assets of suspected terror suspects. The bill (at first a temporary one) went through all its legislative stages within just four days:
The bill passed the House of Commons by 376-56 votes and went through without a vote (‘nodded through’) in the Lords, clearly indicating that Parliament wanted to quickly amend the law to allow what that they believed was proportionate action in freezing suspected terror suspects’ assets. As such, this case remains one of the best examples of judicial review, but, even more importantly, an excellent example of parliamentary sovereignty.
Case: R v Chaytor and others (2010)
Background: Within the scandal of the MP’s expenses scandal eight parliamentarians were charged with criminal offences. These included three Labour MPs:
David Chaytor (Labour) – Guilty of false accounting of £18,350. Sentenced to 18 months imprisonment.
Jim Devine (Labour) – Guilty of fraudulently claiming £8,385. Sentenced to 16 months imprisonment.
Elliot Morley (Labour) – Guilty of two charges of dishonesty. Sentenced to 16 months imprisonment.
However, these MPs argued that their actions were protected by parliamentary privilege as the payment of expenses was necessary to enable them to fulfil their role as MPs. As a result of their belief that they were protected by parliamentary privilege, their legal argument was that the Crown Court (criminal courts) had no jurisdiction to try them of any crime and therefore their conviction should be overturned.
Issue/s of Law: Whether the otherwise illegal actions taken by the defendants were privileged and therefore were not within the jurisdiction of the criminal courts.
Court of Appeal Decision: The Court of Appeal dismissed the arguments of the appellants. Firstly, they noted that parliamentary authorities did not see the actions of the appellants as privileged. Secondly, they did not find that claiming expenses was essential to the ‘core functions’ of an MP (which is what the privilege covers). They surmised that:
“It can confidently be stated that parliamentary privilege orR v Chaytor (Court of Appeal)
immunity from criminal prosecution has never ever attached to
ordinary criminal activities by members of Parliament”
Supreme Court Decision: The Supreme Court unanimously dismissed the appeal by the appellants. They found no basis in law for the notion that acts that would be criminal if committed outside Parliament are by necessity protected by parliamentary privilege if committed by MPs. They noted that just because something happened in Parliament it did not make it necessarily a “proceeding of Parliament”, as required to be afforded the protection of privilege. The judgement stated that the fact that Parliament had actively supported the police investigation and made no attempt to assert the members privileges, indicated that the protection did not extend to the three members.
Significance: This decision had a wider constitutional significance than simply dismissing the appeal of the appellants. It further clarified how far the protection of privilege extends for MPs and that any future criminal conduct by MPs, if not part of the “proceedings of the house”, result in no immunity to those guilty of the offence.
Case: Evans vs Attorney General (2015)
Background: In 2010 a Guardian journalist named Rob Evans became aware that Prince Charles had been sending private correspondence to government ministers. The letters were nicknamed the ‘Spider Letters’ due to the Charles’ unique penmanship and presentational style. Evans made an application under the Freedom of Information Act for the letters to be disclosed. As Prince Charles will one day become Britain’s constitutional monarch, and will be expected to be politically neutral, Evans and the Guardian believed it was in the public interest for this material to be published. In 2012 the Government refused to release the papers. They argued that the letters had been written by Charles in preparation for him becoming King and were done so under the expectation that they would be confidential. The Government argued that disclosing the documents may damage Charles’ ability to perform as King in the future. Subsequently, Evans then took the government to court to force the disclosure of the letters.
Issue/s of Law: Whether communications between a member of the Royal Family (and particularly the heir to the throne) and government ministers were disclosable under the Freedom of Information Act (2000) or whether they were exempt from disclosure under Sections 37,40 and 41 of the Act:
Section 37 – This exemption limits disclosure of communications with the monarch, heir or second in line.
Section 40 – Any information which is deemed personal data within the Data Protection Act.
Section 41 – Information provided in confidence that would be a breach of confidence if disclosed.
Upper Tribunal Decision: The Upper Tribunal had ruled that many of the letters, who they believe had been political in nature, should be disclosed. However, the Attorney-General than overruled this decision stating that there were reasonable grounds for the refusal of the department to disclose the letters.
Supreme Court Decision: In 2014 the case was heard by the Supreme Court in Evans vs Attorney-General. They ruled by 5-2 that the Attorney-General did not have the right to veto the disclosure of the letters and reverted to the decision taken by the Upper Tribunal. The letters were subsequently disclosed.
Significance: The letters themselves were less sensational than people may have hoped. However, the constitutional impact is that it makes clear that senior members of the Royal Family are not protected from disclosures under the Freedom of Information Act if the disclosure of these materials would be reasonably considered to be in the public interest.
Case: Miller vs Secretary of State for Exiting the European Union (2017)
Background: In June 2016 Britain voted in the EU Referendum to leave the European Union. To carry this out, the government was required to send the Article 50 declaration to the EU. This was the letter that would formally state that Britain was leaving. The government planned to trigger Article 50 without parliamentary consent, believing their mandate came directly from the referendum result and fell within the Government’s royal prerogative powers. However, an activist called Gina Miller bought a case that argued that Parliament had to consent to triggering Article 50.
Issue/s of Law: Whether having joined the EU (then E.E.C) through statute law, the Government could withdraw Britain from the EU using royal prerogative powers.
High Court Decision: The High Court ruled that as Britain had joined the European Union via the European Communities Act (1972), it was incumbent on the government to seek Parliament’s approval to reverse that decision.
Supreme Court Decision: The Supreme Court upheld the decision of the Supreme Court that consent was required from Parliament to trigger Article 50. They voted by 8-3. They concluded “..where, as in this case, implementation of a referendum result requires a change in the law of the land, and statute has not provided for that change, the change in the law must be made in the only way in which the UK constitution permits, namely through Parliamentary legislation.”
Significance: The decision by the Supreme Court slowed down the process of triggering Article 50. However, its constitutional significance was that when treaties had been entered into by Statute Law, they could only be amended via the same mechanism.
Case: Steinfield and Keiden v Home Secretary (2018)
Background: In 2004 Parliament passed the Civil Partnerships Act. This granted same-sex couples the right to seek a civil partnership, which would give them similar legal rights to heterosexual married couples. However, there were some slight differences, for example, adultery was grounds for a divorce in a marriage but not for the dissolution of a civil partnership.
Many heterosexual couples argued that the law was discriminatory and was not compatible with the European Convention of Human Rights and the Human Rights Act (1998). However, the government argued that the CPA was explicitly designed to give same-sex couples rights they otherwise could not achieve and was therefore a proportionate means to achieve a legitimate aim (the legal reason that discrimination is allowable). However, with the passage of the Same-Sex Marriage Act (2013), this position became more difficult to maintain. Same-Sex couples could now, if they wished, enter into a marriage and receive equal legal rights with a heterosexual couple. One couple, Rebecca Steinfield and Charles Keiden, decided to launch a judicial review to challenge the fact that they could not get a civil partnership.
Issue/s of Law: Whether precluding heterosexual couples from entering into a civil partnership was discriminatory and non-compatible with human rights law.
High Court Decision: The High Court rejected the arguments of the appellants. The judgement said “The difference in treatment complained of does not infringe a personal interest close to the core of the right to family life, still less the right to private life protected by Article 8 [of the ECHR]”. The Court of Appeal also dismissed their claim.
Supreme Court Decision: The Supreme Court unanimously ruled that the current procedures were ultra vires. They found that although precluding heterosexual couples from a civil partnership had originally been legitimate and proportionate, this position was no longer possible to maintain now that same-sex couples had equal marriage rights. The Court decided that the elements of the CPA that precluded it as an option for same-sex couples were incompatible with Article 8 of the ECHR.
Significance: The government subsequently amended the CPA to allow heterosexual couples to enter into a civil partnership. This example is useful as it shows the Supreme Court recognizing the deficiency of a statute law. The declaration that it was incompatible with the ECHR put pressure on the government to amend this, which they subsequently did.
Case: Lee versus Ashers Baking Company Ltd and others (2018)
Background: In 2014 Gareth Lee, a volunteer for an LGBT organisation in Belfast, entered a shop owned by Asher Baking company and ordered a custom made cake. He had been invited to attend an event marking anti-homophobia week and wanted to take a cake with him. Mr Lee had previously bought cakes from the store without issue. Mr Lee asked for a cake with the a picture of “Bert and Ernie” and the headline “Support Gay Marriage”. The order was taken and payment was made. However, subsequently, the proprietor phoned Mr Lee and said his order could not be fulfilled as the owners were Christians and would not print the slogan due to their religious beliefs. Lee subsequently took the owners to court claiming he has suffered discrimination based on his sexual orientation and political opinion. The bakery argued that they did not refuse to bake the cake because Mr Lee may have been gay, but because they did not support the political message he had requested was printed on it. They argued that therefore they were acting inline with their own freedom of political expression.
Court of Appeal Decision: The first court found in Lee’s favour, but the case was appealed to the Court of Appeal. The Court of Appeal served a notice on the Attorney-General, making the Northern Irish government a party in the case. The Attorney-General requested that the case go immediately to the Supreme Court because there was a conflict between Northern Irish law and the ECHR. The Court of Appeal rejected this request. The Court of Appeal agreed with the lower court that Mr Lee had suffered discrimination based on the ground of sexual orientation.
Issues of Law: Firstly, whether Mr Lee had been discriminated against based on his sexual orientation. Secondly, whether a business can cite their political or religious beliefs in refusing service to a customer.
Supreme Court Decision: The Supreme Court found, in the case of discrimination based on orientation, in favour of the bakery. They noted that the message supporting gay marriage was distinguishable from someone being homosexual (as many heterosexuals support gay marriage). There was no evidence that the owners knew Lee was homosexual (though they may have assumed that) and therefore discrimination on the grounds of sexual orientation could not be found to have taken place. On the issue of political beliefs, the Supreme Court found that as Mr Lee was not the subject of the discrimination. They found that whilst the bakers could not refuse to serve Mr Lee because of his own political beliefs on same-sex marriage, they could not be obliged to take an action (bake a cake with a message) with which they profoundly disagreed due to their own political beliefs.
Significance: The bakery called the decision a victory for freedom of speech and religious expression. The case became one of judicial review because the Attorney-General, on behalf of the Northern Irish Executive, supported the position of the bakery in the case. It is likely to be considered by justices in future where two opposing parties both claim they are acting in their own freedom of expression.
Case: Miller vs Prime Minister (2019)
Background: Prorogation is the process by which a Parliament comes to an end. When parliament is prorogued, its business stops and any bills in process die. Although it is the monarch who formally prorogues Parliament, this is done on the explicit advice on the Prime Minister. On 28th August 2019 Parliament was prorogued by Elizabeth II, on the advice of the PM, Boris Johnson. The government claimed prorogation was necessary as the Parliament had sat for 341 days, much longer than most Parliaments. However, the length of the proposed prorogation was three weeks, when most prorogations were closer to a single week. It was suspected that the government was taking this action this to stop MPs debating Brexit and to put further pressure on Parliament to accept a deal before the 31st October extended Article 50 deadline.
Issue/s of law: Firstly, whether if the Prime Minister had advised the Queen to prorogue Parliament to stifle parliamentary scrutiny, this action would be ultra vires. Secondly, whether as a political decision, it was subject to scrutiny by the courts (justiciable).
High Court Decision: The High Court ruled that the cases was non-justiciable, meaning it was a political matter that was not within their jurisdiction to make a judgement on. However, the Scottish Court of session unanimously found the prorogation was unlawful.
Supreme Court Decision: The case heard at the UK Supreme Court was an amalgamation of appeals for two separate cases, one in Scotland and one in England.
The ruling of the Supreme Court today found that Boris Johnson’s prorogation of Parliament had been unlawful. Importantly, they stressed that the motives for the Government’s actions were not central to the issue. They said that the fact that prorogation had stifled parliamentary debate meant that “the effect on the fundamentals of democracy was extreme”. The unanimous judgement given by the court was that:
” The decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability to Parliament to carry out its constitutional functions without reasonable justification”Part of the judgement of the Supreme Court in Miller v Prime Minister
Significance: The Speaker of the House of Commons, John Bercow, immediately announced that he was preparing for a resumption of the parliamentary session on Wednesday 25th September. The wider constitutional issue was that the case showed the Supreme Courts willingness to adjudicate on issues that fell firmly within the Prime Minister’s royal prerogative powers. They found that if these powers undermined the fundamental tenants of representative democracy, they may be found ultra vires. As such, this sets an important legal precedent.
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