2. The rule of law

Question 1

Why the rule of law is not a legal rule

Answer 1

The rule of law, like democracy, has no single meaning: it is not a legal rule, but a moral principle, which means different things to different people according to their particular moral positions.

Question 2

The rule of law might be viewed as a vehicle for expressing ‘the people’s’ preferences about two essentially political issues. What are they?

Answer 2

Firstly, it relates to the substance of the relationship between citizens and government. (what governments can do)

Secondly, it deals with the processes through which that relationship is conducted. (how government can do it)

Question 3

What is the essence of Dicey’s approach to the rule of law?

Answer 3

‘We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land… And we mean in the second place … that every official, from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.’

1. Protecting individual rights and liberties
2. Government has to operate within a framework of laws superior to the mere actions of government officials
3. The courts, rather than the government, must determine whether or not the law has been broken

Question 4

The separation of powers doctrine in the British context is that the government function has three discrete elements. What are they?

Answer 4

1. Legislature - One part of government makes the laws under which people live –> production of the terms of the contract under which government is conducted
2. Executive - Carrying out or ‘executing’ of the laws is undertaken by the executive branch of government. Diceyians assume that the executive will always try to do things that the legislature has not authorised.
3. The courts - Determine if executive action falls within the limits approved by parliament, have limited law-making power through developing the common law

Question 5

Entick v Carrington (1765)

Answer 5

Facts: Two King’s messengers, under the authority of a warrant issued by the Secretary of State, broke and entered Entick’s house and took away his papers. Entick was alleged to be the author of seditious writings. When the messengers were sued by Entick for trespass to his house and goods, it was argued that the warrant was legal, as the power to issue such warrants was essential to government as ‘the only means of quieting clamours and sedition’.

Lord Camden: This power, so claimed by the Secretary of State, is not supported by one single citation from any law book extant. … If it is law, it will be found in our books. If it is not to be found there, it is not law. … According to this reasoning, it is now incumbent upon the defendants to shew the law, by which this seizure is warranted. If that cannot be done, it is a trespass. … The names and rights of public magistrates, their power and forms of proceeding as they are settled by law, have been long since written, and are to be found in books and records. … I have now taken notice of everything that has been urged upon the present point; and upon the whole we are all of opinion, that the warrant to seize and carry away the party’s papers in the case of a seditious libel, is illegal and void.’

Summary: A magistrate can have no assistant nor deputy to execute any part of his employment. The right is personal to himself and a trust that he can no more delegate to another than a justice of the peace can transfer his commission to his clerk (Lord Camden, CJ).

A Secretary of State does not come within the provisions of the Constables Protection Act 1750, and has no jurisdiction to grant a warrant to break open doors in a search for libellous papers, and such a warrant is illegal and void.

By the law of England every invasion of private property, be it ever so minute, is a trespass (Lord Camden CJ).

Question 6

Was Dicey only concerned with the processes through which laws are administered?

Answer 6

No - Dicey’s overt focus on process co-existed with a political view about the ‘correct’ substance of laws which Parliament makes. Dicey was much concerned that laws had a high degree of predictability or foreseeability. Dicey thought the rule of law demanded that Parliament did not give government any arbitrary or wide discretionary powers. A statute which said, for instance, that the Home Secretary can imprison anyone she likes, whenever she likes, for as long as she likes, would not meet the tests of predictability and foreseeability, and would seemingly contradict Dicey’s version of the rule of law.

Problem: Dicey seems to be saying that there are limits to the type of governmental powers which Parliament can create if society is to remain subject to the rule of law. Yet the theory of parliamentary sovereignty tells us that there are no legal limitations on the statutes Parliament can enact. –> Tension! One constitutional principle = more important than the other? Both ‘ultimate political facts’?

Question 7

Further tension between the rule of law and parliamentary sovereignty: the independence of the judiciary

Answer 7

Parliamentary sovereignty meant that an individual judge could be dismissed by a majority in the Commons and Lords. However, only one High Court judge has ever been dismissed (in 1830). We might therefore plausibly conclude that in practice the British constitution affords the judiciary independence (from both government and Parliament) in the tenure of their office.

Question 8

The rule of law in the welfare state I

Hayek

Answer 8

Hayes is a latter day exponent of the orthodox Diceyan viewpoint. For Hayek, the function of the rule of law is to ensure that ‘government in all its actions is bound by rules fixed and announced beforehand’. This concern encompasses both process and substance.

All citizens must have access to an independent judiciary before which they can challenge the legality of government action.

Relevant question: Is it the case that what government has done accords with a pre-existing common law or statutory rule? Hayek sees minimal scope for laws which give government discretionary powers, as such powers make it impossible for citizens to predict the exact extent of government authority.

Minimal government is in society’s best interest, for in such as system individual citizens are given as much freedom as possible to organise their social and economic affairs. The rule of law is an absolute value, which can exist only in constitutions which prevent legislators intervening in social and economic affairs. Any policy aiming directly at a substantive ideal of redistributive justice must lead to the destruction of the rule of law. Society cannot thus have both the rule of law and a welfare state.

From this viewpoint, the rule of law has little to do with the question whether all actions of government are legal in the juridical sense; rather it implies limits to the scope of legislation.

Question 9

The rule of law in the welfare state II

Jones

Answer 9

While Hayek’s theory was influential in Britain in the 1980s, it enjoyed little support among either the Conservative or Labour Parties between 1945 and 1975. The political consensus in that era fell within the broad confines of a social democratic approach to government.

The welfare state required Parliament to give government officials many discretionary powers; it was not feasible to run a complex welfare state in accordance with legislative ‘rules’. Government was now doing so much, and dealing with so many different issues, that it would be impossible for legislators to produce a rule for every foreseeable situation. This meant that there was some reduction in the precision with which citizens could predict the limits of government’s powers. However, some contitutional lawyers denied that this meant that society could not be governed in accodance with the rule of law.

Jones suggests that the rule of law is a relative rather than absolute political value; that one can dilute Dicey’s model without removing its basic features. Like Hayek, Jones accepts that ‘the rule of law’s great purpose is protection of the individual against state power holders’. But he also suggested that the rule of law would continue to exist as long as legisators, government officials, and the judiciary accepted an ‘adjudicative ideal’.

Jones’ version of the rule of law does not dismiss the importance of predictability - although the legislature bestows wide discretion on government bodies, it may not grant them arbitrary powers.

Nor does Jones’ theory reject the need for a separation of powers. Citizens must be able to challenge the legality of government action in court.

Since Parliament has given the government discretionary powers, the courts must accept that the legislature intends that individuals might suffer some restraint on their autonomy in order to further the public interest. This may present courts with a difficult problem - how much discretion did Parliament intend the government to have?

Question 10

Red light v green light theories

Answer 10

Red light theorists such as Hayek, echoing Dicey’s suspiction of the executive, maintain that the rule of law’s primary concern should be to stop government interfering with individual autonomy.

Green light theorists such as Jones, in contrast, believe that the Diceyian pre-occupation with individual rights is misplaced. They assume that Parliament and the courts should loosen the legal constraints on government discretion, enabling government to curb individual autonomy in order to promote society’s collective well-being.

The reality of court regulation of government action in the modern British constitutional context does not fit neatly into one or other of these theoretical perspectives. We can identify a third theoretica position - amber light theory - lying between the two extremes. This does not mean that, in practice, legal controls lie at the precice mid-point of the theoretical continuum, but that individual caes are located at various positions on the spectrum.

Within this theoretical framework, legal controls are designed to provide government with some flexibility, but not too much flexibility. –> How much is too much?

Question 11

Administrative law

Answer 11

Encompasses the various common law controls that the courts place on the government process. The concept of judicial review is the main component of administrative law.

Question 12

Judicial review

Answer 12

Broadly stated, the modern form of judicial review is designed to uphold a certain interpretation of the rule of law - its function is to ensure that executive bodies remain within the limits of the powers that the legislature has granted, or which are recognised by the courts as existing at common law.

Question 13

What principles will a court deploy to establish if a government body’s action is lawful (not ultra vires)?

Answer 13

1. The first ground could be described as ‘illegality’. If Parliament passes a statute for instance which allows the government to provide schools, the government could not invoke that statute as a justification to build houses.
2. A government body also exceeds its statutory powers if it uses them to produce ‘unreasonable’ or ‘irrational’ results. A government decision is unreasonable / irrational if its content is so bizarre that no reasonable person could have assumed Parliament would have intended it to happen.
3. The third ground of review is sometimes referred to as ‘natural justice’. This ground of review is not concerned with the substance of a given decision, but rather with the way in which the decision has been reached. Exercise of statutory or common law powers through government must be exercised through fair procedures.

All of the above are common law concepts –> the courts may amend, abolish or add to those grounds as they think fit. Until Parliament enacts legislation on the issue, there is no legal barrier to judicial reform of any existing common law principle.

Question 14

What does the theoretical rationale for judicial control of government behaviour derive from?

Answer 14

The constitution’s ‘ulimate political fact’ of parliamentary sovereignty. This requires that the government may only perform those tasks that Parliament (or the common law) permits. The courts’ constitutional role is therefore to police the boundaries of legislative intent, and ensure that government cannot overstep those boundaries without incurring legal liability.

Question 15

Why is the process of statutory interpretation crucial?

Answer 15

Words of a statute: traditionally regarded as the ‘highest form of law’ known to the British constitution.

Problem: inherent imprecision of language

Applicability to particular situations is sometimes questionable

Uncertainty increased when Parliament employs statutory formulae bestowing discretionary powers on government bodies

Resolution of such uncertainty = judicial function

Question 16

The literal rule of statutory interpretation

Answer 16

The court is considering what the ordinary and natural meaning of the words which the legisators used in the text of the Act is. (this is what the reference to ‘intention’ actually means)

Lord Esher: ‘If the words of the Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question of whether the legislature has committed an absurdity.’

The literal rule betokens a dogmatic judicial acceptance of the common law’s constitutional inferiority to statute. However, we should not assume that such a clear statement of principle will necessarily produce similar clarity in practice. Judges may take quite different views as to the ‘literal’ meaning of particular words or phrases and thence as to the legal effect of particular statutory provisions.

Question 17

Quite possible that the ordinary or natural meaning of words will alter - appropriate for the courts to ‘update’ the provision by giving its words their ‘new’ rather than ‘original’ meaning?

Answer 17

The constitutional orthodoxy which has developed is that statutes should (generally) be presumed to be ‘always speaking’.

‘The interpreter is to make allowances for any relevant changes that have occurred, since the Act’s passing, in law, social conditions, technology, the meaning of words and other matters.’

Examples: whether or not ‘bodily harm’ included psychiatric injury, whether or not violence could include actions which did not involve physical contact between the perpetrator and the victim

If we accept most statutes to be ‘always speaking’, then as a statute ages, and as the social, cultural and economic contexts in which its terms are applied change, so we might defensibly suggest that in a practical sense the moral beliefs to which ‘the law’ gives effect are those of the courts rather than the legislature.

Question 18

The golden rule of statutory interpretation

Answer 18

The golden rule credits the legislature with a greater degree of rationality than does the literal rule. It suggests that when a literal reading of a particular statutory provision would lead to an absurdity, the court should examine the statute in its entirety to see if another, more sensible meaning might be attached to the relevant words in the light of the legislative context in which they appear.

See Royal College of Nursing v DHSS (1981)

Question 19

The mischief rule of statutory interpretation

Answer 19

The third strategy, the ‘mischief rule’ requires that the court ask itself which ‘mischief’ or defect in the common law or a previous statute the statutory provision in issue was intended to remove, and thereafter to construe the Act in a manner that minimises the possibility of the mischief recurring.

‘… the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy ….”

In its initial form, the judges’ interpretation of the mischief rule did not empower them to look beyond the statute and the relevant common law rules to ascertain the ‘mischief’ Parliament was supposedly trying to remove. Thus, if a logical parliamentary intent could not be deduced from the words of the Act itself, the rule could not be applied. By the mid-1907s, the courts had begun to refer to government policy documents explaining the policies underlying particular legislative reforms as an aid to interpretation.

Question 20

Purposive interpretation

Answer 20

This strategy rejects the presumption that a judge should restrict her search for the meaning of law to the statute itself, but rather tries to imagine what the framers of the legislation would have done if faced with the problem now before the court. (Lord Denning’s preferred option)

Criticism from Lord Simonds: For a court to adopt such techniques (i.e. ‘fill the gaps’ left by the statute’s text) would be a ‘naked usurpation of the legislative function under the thin guise of interpretation’.

Question 21

The dividing line between ‘interpretation’ and ‘legislation’ may be difficult to draw. Discuss.

Answer 21

We can confidently state that, as a matter of constitutional theory, Parliament legislates and the courts interpret. It is more difficult to ascertain whether, as a matter of constitutional practice, that theory is always respected. That difficulty is compounded by the fact that the common law recognises a range of different interpretive techniques as being acceptable, and by the frequent lack of clarity in judicial opinions as to which technique is actually being used.

Question 22

Liversidge v Anderson (1942)

Answer 22

Where the Secretary of State, acting in good faith under Defence (General) Regulations 1939 regulation 18B (revoked), made an order in which he recited that he had reasonable cause to believe a person to be of hostile associations and that by reason thereof it was necessary to exercise control over him and directed that that person be detained, a court of law could not inquire whether in fact the Secretary of State had reasonable grounds for his belief. The matter was one for the executive discretion of the Secretary of State. Therefore, in an action by a person detained against the Secretary of State for damages for false imprisonment the court could not compel defendant to give particulars of the grounds on which he had reasonable cause to believe plaintiff to be a person of hostile associations or that by reason of such hostile associations it was necessary to exercise control over plaintiff. The production by the Secretary of State of an order of detention, made by him and ex facie regular and duly authenticated, constituted a defence to such an action unless plaintiff discharged the burden of establishing that the order was invalid.

Lord Wright (encapsulating the majority sentiment): ‘All the word ‘reasonable’, then, means is that the minister must not lightly or arbitrarily invade the liberty of the subject. He must be reasonably satisfied before he acts, but it is still his decision, and not the decision of anyone else… No outsider’s decision is invoked, nor is the issue within the competence of any court.’

Lord Atkin (dissenting): If Parliament said ‘reasonable cause to believe’, it must have intended that there be some plausible evidence on which that view was based. –> Courts should interpret the words used in legislation in accordance with their literal meaning! Regulation 18(b)’s parliamentary history seems to support Lord Atkin’s view.

One could see this outcome as a judicial subversion of the power of Parliament –> words that the legislature used were interpreted by the courts to mean things that the legislators did not intend

Following Liversidge, one of Lord Atkin’s fellow judges wrote to him to say the majority decision brought the judiciary into disrepute. The judges were no longer ‘lions under the throne, but mice squeaking under a chair in the Home Office’.

Question 23

R v IRC, ex parte Rossminster Ltd (1980)

Answer 23

The Taxes Management Act 1970, s 20C, seemed to bestow sweeping search and seizure powers on Inland Revenue employees. S 20C empowered the Inland Revenue to seek a search warrant from a circuit judge. If the judge was satisfied that there were reasonable grounds to assume that evidence of a tax fraud might be found on particular premises, she could issue a warrant authorising a named officer to ‘seize and remove any things whatsoever found there which he has reasonable cause to believe may be required as evidence …’. The Act did not explicity require that the warrant specify the precice offence being investigated, nor identify the suspected perpetrators.

In July 1979, the Revenue carried out a “military style operation” searching Rossminster’s premises for evidence in connection with tax frauds.

Rossminster claimed that although the legal background to this seizure was distinguishable from the background to the Entick case, Lord Camden’s reasoning was relevant to interpretation of s 20C. He argued that the court should presume that Parliament intended s 20C to be construed consistently with the common law principles informing Entick - namely that power would only be used in a precisely targeted way, and would not be invoked by Revenue officials to enable them to embark upon a speculative trawl through all of a company’s or an individual’s private papers.

The Court of Appeal held that the conduct was illegal and ordered that the documents be returned.

• Lord Denning: purposive approach to the interpretation of s 20C - ensuring that government behaviour did not interfere unduly with citizens’ common law entitlements.
• ‘There has been no search like it - and no seizure like it - in England, since that Saturday, April 20 1763, when the Secretary of State issued a general warrant by which he authorised the King’s messengers to arrest John Wilkes and seize all his books and papers…’
• ‘As a matter of construction of the statute and therefore of the warrant - in pursuance of our traditional role to protect the liberty of the individual - it is our duty to say that the warrant must particularise the specific offence which is charged as being fraud on the revenue’.
• Since the warrant in this case did not do so, it was invalid.

The Court of Appeal’s judgment was subsequently reversed in the House of Lords, which adopted a straightforwardly literalist approach to s 20C.

• Lord Wilberforce: the ‘plain words’ of s 20C authorised the Inland Revenue to engage in behaviour which could not be justified at common law. Parliament’s intention had been to override common law principles.
• ‘While the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt of interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than advance the democratic process.’

The House of Lords evidently considered that the judges in the Court of Appeal had allowed their moral distaste for s 20C to push them into adopting illegitimate interpretive strategies, and thus to overstep the boundaries of their proper constitutional role.

Neither perspective can be regarded as legally ‘correct’ in any definitive sense. Rather the case further underlines the point that there is much unpredictability in the way that courts may approach their constitutional responsibility of giving meaning to the provisions of statutes.

Question 24

Comparing Liversidge and Rossminster

Answer 24

The comparison illustrates the point that a court’s adoption of a particular interpretative strategy does not determine the substantive character of the result that the court produces in a given case.

Rossminster: teleological interpretation restrains governmental power to a greater degree than literal interpretation

Liversidge: literal interpretation restrains governmental power to a greater degree than teleological interpretation

Question 25

The principle of legal certainty

Answer 25

The principle that citizens be able to predict the limits the law places on individual and governmental behaviour is an essential ingredient in all theoretical analyses of the rule of law. --\> Precarious basis in the British constitution - Parliament may at any time change any law in any way whatsoever --\> In contrast, the common law has, for much of the modern era, possessed an almost absolute degree of legal certainty: STARE DECISIS

Question 26

The principle of stare decisis before the 1966 Practice Statement

Answer 26

For a unanimous House of Lords, Lord Halsbury claimed that the judgments of that court bound not only all inferior courts, but also the House of Lords itself. (confirmed in the 1898 case of London Tramway Co v LCC) The inflexible doctrine of stare decises was a common law rule, not a requirement imposed upon the courts by Parliament! Rationale: Diceyan perceptions of the need to avoid unpredictability and arbitrariness in the content of the legal framework within which citizens live. However, Lord Halsbury's suggestion that the HL could bind itself is nonsense, as a matter both of abstract logic and constitutional principle: The members of the HL qua final court of appeal in 1898 could no more bind their successors than the Parliament of that year could 'bind' future Parliaments!

Question 27

The 1966 Practice Statement

Answer 27

In a Practice Statement issued in 1966, the Lord Chancellor announced that the House of Lords would modify its approach to stare decisis, and depart from its previous decisions to avoid injustice in particular cases and to facilitate the development of common law principles in a way that reflected changing social and economic conditions. The HL has however rarely availed itself of this new power, and has developed rigorous criteria which must be met before a previous decision is overruled.

Question 28

Anisminic Ltd v Foreign Compensation Commission (1969)

Answer 28

Summary: Judicial creativity - ouster clauses - response of the courts The Foreign Compensation Act 1950 established a Commission to distribute limited funds among British nationals whose overseas property had been seized by foreign governments. Section 4(4) stated that the Commission's 'determinations ... shall not be called in question in any court of law'. This would appear to reach both appeal and review. Nevertheless, in this case the HL assumed jurisdiction to review the Commission's activities. It did so on the grounds that the Commission had made an error of law in its decision-making process. The Commission's decision was therefore not a determination, but a 'purported determination'. Since the ouster clause made no reference to these, the court was not challenging parliamentary sovereignty by declaring the Commission's action unlawful. Anisminic can plausibly be presented as an example of the judges steeling themselves to resist orthodox understandings of the hierarchy of legal authority in order to safeguard a political principle - that government action always be subject to judicial review, irrespective of Parliament's intention. Anisminic clearly presents a judicial challenge to Parliament's sovereignty, but that challenge lay in the sphere of the legitimacy rather than the legality of parliamentary intentions. Parliament could reverse Anisminic, but only at the risk of being seen to abrogate orthodox understandings of the rule of law. Leading constitutional theorists took different views of Anisminic's implications. * Professor John Griffiths: the courts were intruding unconstitutionally on the sovereignty of Parliament * Professor Wade: the threat to the constitution came not from the judges' apparent challenge to parliamentary sovereignty, but from Parliament's increasing predisposition to deploy ouster clauses to limit or remove the courts' powers of judicial review

Question 29

Retrospectivity in legislation - the War Damage Act 1965

Answer 29

The War Damage Bill was intended to overrule the common law not just for future instances of property loss, but also for those which had already happened - the statute was to have retrospective as well as prospective effect. Diceyan heory tells us that such legislation is entirely consistent with the legal doctrine of parliamentary sovereignty, but utterly inconsistent with the political principle of the rule of law. The fact that the Act was passed provides further compelling evidence that the rule of law, in so far as it can be construed as a moral code embedding certain political values in Britain's democratic structure, may on occasions be regarded by our sovereign legislature as an expendable rather than indispensable ingredient of Britain's constitutional receipe.

Question 30

R v R (1991)

Answer 30

Key debate: legitimacy of common law innovation To modern day observers, one of the more obviously objectionable moral principles informing social and legal affairs in the mid-18th century was the notion that a woman was legally obliged to accommodate her husband's desire to have sex with her whenever he wished. (rested on the moral assumption that a wife was the 'subservient chattel' of her husband) The questions before the HL in R v R in 1991 were whether that assumption remained valid, and - if it was not - whether the common law should alter to reflect new cultural or moral assumptions. If the Court had considered itself still bound by the London Tramways view of stare decisis then the answer to the second question - irrespective of the answer to the first - would have had to have been 'No'- In R v R, however, the HL accepted the view that the common law could legitimately be regarded as a dynamic and flexible source of legal rules. There was no need to wait for Parliament to enact legislation changing the law. Significance of the judgment: * One of the consequences of this retrospective judgment (see also R v C in 2004) is that there are many men now in principle liable to prosecution and conviction for having committed an act which was not identified as a crime by either statute or common law at the relevant time, but which carries a sentence of life imprisonment. * Problematic if one's understanding of the rule of law incroporates a concern with establishing with certainty the substantive content of laws - or at least those laws whose breach imposes heavy costs on a defendant

Question 31

Malone v Commissioner of Police of the Metropolis (No.2) (1979)

Answer 31

Summary: Telephones; tapping Abstract: Telephone tapping by the Post Office by means of recording telephone conversations from wires which, though connected to the subscriber's premises, are not on them, is not against the law of England. P was charged with handling stolen property. The prosecution admitted that there had been interception of P's telephone conversations on the Secretary of State's authority. P sought declarations against the Commissioner of Police of the Metropolis to the effect that such conduct was unlawful. Held, refusing the declarations sought, that (1) the Convention of Human Rights had the status of a treaty which was not justiciable in England, and the court could only make declarations on legal or equitable rights; (2) although no law authorised telephone tapping, there was no law against it; (3) there was no right of property in words transmitted over a telephone apart from copyright; (4) there was no right of privacy, or of telephonic privacy, in English law; (5) there was no contractual right of confidentiality with the Post Office; (6) in any event it was not the defendant who had intercepted the conversations, it was the Post Office, and there was no law against the Post Office tapping telephones by means of recording from wires which were not on the subscriber's premises.

Question 32

M v Home Office (1993)

Answer 32

Summary: Contempt; Secretary of State for the Home Department; deportation of asylum seeker; against order of judge; minister refusing to comply with court order for return; whether amenable to contempt jurisdiction Abstract: A minister or other officer of the Crown is amenable to contempt jurisdiction of the court even when acting in his official capacity. A, a citizen of Zaire, came to the U.K. seeking political asylum. His application was rejected, as was his application for judicial review. He was notified that he would be returned to Zaire, but made a renewed application for review. Garland, J. indicated that he wished A's departure to be delayed and understood counsel for the Secretary of State to have given that undertaking. In fact A was then removed, counsel not conceding that he had given any such undertaking. The court ordered A's return forthwith, but the Secretary of State, on legal advice that the mandatory injunction had been made against the Crown without jurisdiction, cancelled the return. In contempt proceedings Simon Brown, J. held that the Crown's immunity from injunction was preserved by Crown Proceedings Act 1947, s.21. The Court of Appeal held the Secretary of State personally in contempt. He appealed. Held, dismissing the appeal, that injunctions could be granted against officers of the Crown although acting in their official capacity; s.31(2) of the Senior Courts Act 1981 gave the court jurisdiction to grant injunctions against ministers and other officers of the Crown, though the jurisdiction could only be used in limited circumstances (Merricks v Heathcoat-Amory [1955] Ch. 567, R. v Secretary of State for Transport Ex p. Factortame Ltd (No.1) [1990] 2 A.C. 85 considered).

Question 33

R. (on the application of Corner House Research) v Director of the Serious Fraud Office (2008)

Answer 33

Summary: A decision by the Director of the Serious Fraud Office to halt a criminal investigation in response to a threat from a foreign national was lawful, as the public interest in saving British lives outweighed the public interest in pursuing a conviction. Abstract: The Serious Fraud Office (SFO) was investigating allegations that British Aerospace had paid huge bribes to Saudi Arabian officials while negotiating a sale of aircraft. The Saudi government demanded that the investigation be halted, threatening to cancel the aircraft deal, and to withdraw from cooperating with Britain in ant-terrorist measures. After considering the views of the British Ambassador to Saudi Arabia, the Prime Minister, the Foreign Secretary, the Defence Secretary, and the company itself, the Director of the SFO stopped the investigation. The Divisional Court held that the decision was a capitulation to threats, and was incompatible with the rule of law and therefore unlawful. The House of Lords overruled that decision. The Law Lords held that the Director of the SFO had a very broad (but not unfettered) discretionary power, that the possibility of a danger to British lives and national security (if the Saudis were to stop cooperating in opposing terrorism) was a relevant consideration in the exercise of his discretion, and that it was lawful for the Director of the SFO to defer to the Government on the nature of the risk.