Judicial review of a reserve power
order
42. A second way in which the judiciary may be
involved is if a judicial review challenge is made to the legality
of the reserve power order on grounds that it is incompatible
with Convention rights or is unlawful under domestic grounds of
judicial review (illegality, irrationality and procedural impropriety).
43. In relation to the Human Rights Act, the
Joint Committee on Human Rights has considered whether a 42-day
limit is compatible with Convention rights. They have concluded
that "the legal framework which will be created by the Bill
is both not compatible with the right to liberty in Article 5
of the ECHR and will inevitably lead to breaches of the rights
in Article 5 in individual cases".[12]
44. In relation to domestic grounds of review,
the fact that an order has been passed by affirmative resolution
in Parliament will not prevent the Administrative Court considering
whether the order is ultra vires. In R (on the application
of Javed) v Secretary of State for the Home Department [2001]
EWCA Civ 789, the Court of Appeal quashed the Asylum (Designated
Countries of Destination and Designated Safe Third Countries)
Order 1996—which created a "white list" of countries
to which failed asylum seekers could be returned without serious
risk of persecution— on the ground that the Home Secretary
had, in designating Pakistan, acted irrationally in his evaluation
of the position of women and members of the Ahmadi community.
Lord Phillips of Worth Matravers, for the court, said:
"The fact that, in the course of debate, the
Secretary of State or others make statements of fact that support
the legitimacy of the subordinate legislation, and that the House
thereafter approves the subordinate legislation, cannot render
it unconstitutional for the Court to review the material facts
and form its own judgment, even if the result is discordant with
statements made in parliamentary debate" (paragraph 37).
45. The court held that Article 9 of the Bill
of Rights 1689—"that the freedom of speech and debates
or proceedings in Parlyament ought not to be impeached or questioned
in any Court or place out of Parlyament"—did not prevent
the court reviewing the delegated legislation. Lord Phillips stated:
"Subordinate legislation derives its legality
from the primary legislation under which it is made. Primary legislation
that requires subordinate legislation to be approved by each House
of Parliament does not thereby transfer from the Courts to the
two Houses of Parliament the role of determining the legality
of the subordinate legislation" (paragraph 33).
46. While there may be formidable practical
difficulties in obtaining instructions from a detained suspect
to question the legality of a reserve power order, there are a
number of interest groups who would have standing to bring a public
interest challenge. In determining whether the order is valid,
the Administrative Court would make its own assessment as to whether
there is "a grave exceptional terrorist threat" and
whether the need for the reserve power is urgent. The court would
not be precluded from reaching different views from that of the
Home Secretary or Parliament. The elaborate decision-making scheme,
involving delegated legislation, set out in the Bill provides
far greater opportunities for legal challenge than would a straightforward
statement in primary legislation of the maximum permitted detention
period. It is a weakness of the Bill, not a strength, that it
is likely to lead to high-profile litigation during a time when
the response to terrorism will be a matter of high controversy.
Habeas corpus
47. At the Third Reading of the Bill in the House
of Commons, the Home Secretary undertook to look carefully at
a new clause proposed by William Cash MP who sought to ensure
that habeas corpus would not be restricted.[13]
Habeas corpus is an ancient writ available from the High Court
where an applicant or his legal representatives allege that he
has been unlawfully deprived of his personal liberty. It is, in
other words, a type of judicial review. In recent years it has
fallen out of favour with practitioners; the modern judicial review
procedure under Part 54 of the Civil Procedure Rules is generally
seen as a more effective means of challenging detention. Habeas
corpus also provides much narrower grounds of review since the
courts have held that it may only be used to challenge "jurisdictional
error" a mistaken view of legal pre-conditions for the exercise
of a power) by the minister or other public authority responsible
for the detention. We do not regard habeas corpus as significant
to the debate about judicial control over extensions of detention
time. Modern judicial review provides an equally robust mechanism
for dealing with legal challenge.
2 21st Report (2007-08): Counter-Terrorism Policy
and Human Rights (Eleventh Report): 42 Days and Public
Emergencies (HL Paper 116/HC 635), paragraph 42. Back
3
Explanatory Notes to the Bill (HL Bill 65-EN), paragraph 306. Back
4
1st Report (2007-08): The Government's Counter-Terrorism Proposals
(HC 43-I). Back
5
21st Report (2007-08): Counter-Terrorism Policy and Human Rights
(Eleventh Report): 42 Days and Public Emergencies (HL 116/HC
635); 20th Report (2007-08): Counter-Terrorism Policy and Human
Rights (Tenth Report): Counter-Terrorism Bill (HL 108/HC
554); 9th Report (2007-08): Counter-Terrorism Policy and Human
Rights (Eighth Report) (HL 50/HC 199). Back
6
Secretary of State for the Home Office and Secretary of State
for Northern Ireland, Legislation Against Terrorism: A consultation
paper, Cm 4178 (December 1998), para 8.2. Back
7
HL Deb, 24 May 2000, col 692. Back
8
Ibid, col 693. Back
9
HC Deb, 11 June 2008, cols 327 and 400. Back
10
First Report of 1998-99 (HL 43-I; HC 214-I), para 192. Back
11
Ibid, para 196. Back
12
Counter-Terrorism Policy and Human Rights (Eleventh Report):
42 Days and Public Emergencies, para 42. Back
13
HC Deb, 11 June 2008, col 397. Back
