I mentioned in an earlier post (Public law – broadly speaking) that, of the 59 judgments handed down by the United Kingdom Supreme Court last year, 23 concerned public law issues. This note summarises the more significant of them (for an extended analysis of public law in the UK Supreme Court last year, see Christopher Knight and Tom Cross Public Law in the Supreme Court 2010-2011 [2011] JR 348 and Michael Fordham QC Judicial Review in the Supreme Court [2012] JR 19).
Perhaps the most interesting decision from the Court last year was Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council [2011] UKSC 15, [2011] 2 WLR 905 in which it was concluded that a person may not avail him or herself from the operation of a statutory provision that would benefit them in circumstances of their own dishonest conduct.
In this case, a person had obtained planning permission to construct a barn in a green belt area, where permission to build a house could not be obtained. The building constructed was to all external appearances the permitted barn but, internally, was a fully fitted-out dwelling house. Having lived in the house with his family undetected for four years, the home owner then sought to take advantage of a statutory provision that provided that, where there had been a breach of a planning control, no enforcement action could be taken after the end of four years beginning with the date of the breach.
After reviewing cases in which courts had declined to apply statutory provisions in such a way that a person would have benefited from a crime, the Court saw the principle as being capable of extending more widely to prevent the person in this case from “profiting directly from this deception”. The apparently unqualified statutory language could not, it was found, be applied in such a case.
In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, an effective presumption was created against the removal from the United Kingdom of any child with British citizenship, despite the illegal immigration status of a parent. By the time of this hearing in the Supreme Court, the two children of a Tanzanian mother who had married a British citizen and had children with him were 12 and 9. They had not been to Tanzania. The need to regard the best interests of the child as a primary consideration in all actions relating to children under the UN Convention on the Rights of the Child 1989 led the Court to conclude that the child’s best interests “is a factor, however, that must rank higher than any other” (para 46) and, contrary to the approach in the Tribunal below, was not simply a factor to be weighed. The Tribunal’s decision was set aside.
The circumstances in which the Court would judicially review a decision of Upper Tribunals was considered in R (Cart) v The Upper Tribunal [2011] UKSC 28, [2011] 3 WLR 107. (The Upper Tribunals are superior courts of record of essentially equivalent status to the High Court which consider appeals from decisions of lower tribunals.) In a judgment with which the other members of the Court concurred, Lady Hale said that the High Court should only entertain review when the proposed case would raise an important point of principle or where there were other compelling reasons to hear the case. It found a test of exceptional circumstances or of a fundamental denial of justice to be too narrow and judicial review principles without limitation to be too broad. The decision has some potential for application in New Zealand but needs to be tempered by the particular tribunal system that has been in place in the United Kingdom since 2008.
The Court’s decision in Lumba (Congo) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671 reaffirms some basic principles relating to human rights, legitimate expectation, and departing from published policy. Mr Lumba was a foreign national with no ongoing right of residence and had been convicted of criminal offences. The Secretary of State had published a policy document, dating back 20 years, containing a presumption against detention. Mr Lumba was detained however under a subsequent unpublished policy which effectively prohibited the release of any foreign national prisoner pending deportation. Claims for damages for false imprisonment were brought. The Court found it to be unlawful for the Secretary of State to apply an unpublished policy which was directly contrary to the published policy. A plea that the individual would have been detained inevitably in any event was found to go to the remedial stage only; such that nominal damages of £1,000 were awarded.
Judicial review of the conduct of Parliament came under scrutiny in R v Chaytor [2010] UKSC 52, [2011] 1 AC648. In the wake of the UK MP expenses scandal, former MPs who had been charged with false accounting sought to have the charges struck out on the basis that they offended the principle of “exclusive cognisance”, under which Parliament has the right to manage its own affairs without interference from outside Parliament.
Lord Phillips summarised the position in saying (para 89)
Decisions in relation to matters of administration are taken by Parliamentary Committees and it has been common ground before the Court that these decisions are protected by privilege from attack in the courts. The 1999 report distinguishes, however, between such decisions and their implementation, expressing the view that the latter is not subject to privilege. I consider that view to be correct.
It was said that, if an applicant sought to attack by judicial review the scheme under which allowances and expenses are paid, the Court would refuse the application on the ground that this was a matter for the House. Examination of the manner in which such a scheme was being implemented however was not regarded as a matter exclusively for Parliament and the decision below declining to strike the charges out was upheld on that basis. While referring to orthodox constitutional principles, might the demarcation line have been adjusted slightly with this decision?