Law of the United Kingdom 2012 - Paris Descartes · Law of the United Kingdom 2012 ... IRVINE, Lord...

Module: Public Law of the UK

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Module: The Constitutional Law of the United Kingdom 2012

Outline Syllabus

Du mercredi 26th Septembre – vendredi 28th Septembre 2012 Examen : 28th Septembre 2012


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Syllabus and reading list: Materials A. Full Title: An Introduction to the General Principles of the

system of Public Law of the United Kingdom. Summary of content:

This module allows students to explore and understand the Public Law of the United Kingdom at a time of major constitutional change. The role of the courts since the implementation of the Human Rights Act 1998, the introduction of devolution to Scotland, Wales, Northern Ireland and London with changes to the structure of regional local government. Reform of the House of Lords and the role of Parliament is considered. The setting up of a new Supreme Court 1st October 2009 and the impact of the Supreme Court on the UK during 2011. Topics covered include judicial review, human rights, the rule of law, Parliament and Lords reform, including the ending of hereditary peers and the House of Lords Act 1999, ministerial accountability and the role of Parliament. Citizens grievances are studied in their legal, social and economic context.

Module Aims

The aims for the module are to explore the ways that the English legal system including public law provides the citizen with rights and remedies; to examine how government is accountable and to understand the system of ministerial responsibility; and to consider mechanisms to improve the efficiency and effectiveness of Parliament including reform of the House of Lords. The role of the courts is examined. The reform of public law over the past decade is assessed and evaluated.

Learning Outcomes At the end of the module the student will be able to:

• Formulate legal analysis of the leading cases in public law and understand how to interpret statutory powers;

• Describe and assess public law problems and provide an analysis of the relevant case law;

• Evaluate the impact of the Human Rights Act 1998 and propose methods to enhance the effectiveness of public law in improving systems of accountability;

• Assess the advantages and limitations of different ways legal powers are allocated;

• Demonstrate the ability to communicate information on and assessment of a public law problem;

• Communicate detailed legal knowledge, and technical information in written form and provide critical analysis of public law rules


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Indicative syllabus content

• Interpret cases and statutes and apply legal analysis to problem questions;

• Analyse a variety of materials ranging from select committee reports to rules and conventions;

• The main areas of public law including judicial review, Parliamentary procedures and processes;

• The leading decisions of the House of Lords and the Human Rights Act 1998;

• The rule of law; • Conventions of the constitution; • Parliamentary sovereignty;

Teaching and Learning Methods There will be a lecture format presenting the main issues and covering the main topics. You are encouraged to ask questions.

Essential reading

Each student will be supplied with materials, attached to this syllabus. There are a number of suggested sources set out below for additional reading and information. The further reading is optional.

Further reading

A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law, Longman, Essex, 2010 and revised up dates to the 15th edition 2010 with regular supplements , 2012 P. Craig, Administrative Law seventh edition Oxford, Oxford University Press, 2012 ( Just published September, 2012) D. Oliver, Constitutional Reform in the United Kingdom (Oxford: Oxford University Press, 2003) Useful for background reading.

T. Campbell, K. Ewing and A. Tomkins (eds), Sceptical Essays on Human Rights (Oxford: Oxford University Press, 2001)

A. Tomkins, Public Law (Oxford: Oxford University Press, 2003) G. Ganz, Understanding Public Law London: Sweet and Maxwell, 2001. N. Johnson, Reshaping the British Constitution London: Palgrave Macmillan 2004. J. Jowell and D. Oliver, The Changing Constitution 8th edition Oxford, Oxford University Press, 2011


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Colin Turpin, and Adam Tomkins, Text, Cases and Materials Sixth edition, Cambridge: Cambridge University Press, 2011 7th edition with regular updates

Periodical references

Useful journals include:

Public Law, Law Quarterly Review, Modern Law Review

WWW references

On the Lord Chancellor’s website; The following are useful:

www.lcd.gov.uk/constitution/holref/index.htm

www.lcd.gov.uk/consult/legatt/legatt.htm

On judicial review see:

www.lcd.gov.uk/consult/bowman/rev/bowmancp.htm

On the Law Commission see:

www.lawcom.gov.uk/homepage.htm

On devolution see:

www.wales.gov.uk/subiassemblybusiness/procedures/assemblyreview.htm

On the UK Parliament see:

www.parliament.uk

On the Hansard Society see:

www.hansardsocirty.org.uk

Additional references (software packages, CD-Rom, film, video, audio-tape)

IOLIS software, University of Warwick.

Public Law Newsletter ( Society of Public Teachers of Law)


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Course Syllabus and Reading List

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Mercredi 26th Septembre 2012 Class: Session 1

A General Introduction to the Public Law of the United Kingdom including courts and Parliament.

Reading: Materials A pps: 6-19 also B and E Questions: 1.Define the UK’s constitution. 2.What are its essential characteristics? 3. Should the UK have a written constitution? -------------------------------------------------------------------------------------------------------- Jeudi 27th Septembre 2012General Court Structure Principles of public law covering the Woolf and Jackson reforms for civil justice and reform of the administrative justice system including human rights and reform. Reading: Materials B, D, and E Questions:

1. What are the distinctive elements of the UK’s Constitution? 2. How does the UK legal system compare to France? 3. How effective is government accountability in France and the UK?

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Vendredi 28th Septembre 2012 Administrative law in the United Kingdom: The grounds for review , Human Rights introduced and conclusions The history of judicial review and its significance, judicial review today and its impact on UK law. Reading materials C Judicial review Questions

1. What is the history of English administrative law? 2. What does judicial review mean? 3. How does judicial review work ?

…………………………………………………………………………………………… jeudi The Human Rights Act 1998 and the Courts and examination Reading: Materials D Marcic and The Human Rights Act 1998. Questions to be considered in class.

1. Describe the United Kingdom’s constitution and explain the role of parliamentary sovereignty ?

2. Outline the main parts of the “ modernization” of the United Kingdom’s constitution.

3. Is the Monarchy relevant to the modern Constitution of the United Kingdom today ?

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----------------------------------------------------------------------------------------------------------------- General Reading: On Tribunals see: The Legatt Report ( March 2001) On the Courts see: INGMAN,T., The English Legal Process 5th ed. London:Blackstone, 2000. On Parliament see: SILK,P., and WALTERS,R., How Parliament Works 4th ed.London: Longman,1999. On judicial review see: IRVINE, Lord of Lairg, Q.C., “ Judges and Decision-Makers: The Theory and Practice of Wednesbury Review” (1996) Public Law 59-78. Questions:

1. Explain the similarities and differences , if any, between a common law and civil law system.

2. Outline the main sources of English law. 3. Discus the arguments for and against a written constitution for the United

Kingdom. 4. What is the role of the Privy Council in the Constitution. 5. Explain the ratio decidendi of and the main reasoning in the following cases:

1. M v Home Office1 2. The Factortame series of cases2 3. Cambridge Water3

1 [1993] 3 WLR 433. 2 R v Secretary of State for Transport ex parte Factortame Ltd (No.3) [1991] 2 Lloyd’s Reports 648, R v Secretary of State for Transport ex parte Factortame Ltd (No 2) [1991] 1 AC 603, R v Secretary of State for Transport ex parte Factortame Ltd [1999] 4 All ER 906, R v Secretary of State for Transport ex parte Factortame Ltd [1990] 2 AC 85. 3 [1994] 1 All ER 53.


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Vendredi 23rd Septembre 2011 Examen

Materials A The following is a draft text setting out some of the main characteristics, themes and future

Introduction to Common Law Cultures: Public Law I Introduction The United Kingdom’s constitutional arrangements offer a unique blend of history and continuous change. In its unwritten form the Constitution has proved remarkably adaptable under many influences that have shaped its current form and substance. Influences have come from constitutional ideas, often from continental jurisdictions, but political events have often proved a decisive influence dictating the direction of change. The Constitution is also subject to regular renewal through judicial developments on a case by case basis. This adds pragmatism to the constitution as a working principle leaving constitutional arrangements responsive to events. It is hard to be precise about how constitutional law should be defined. There is no exact demarcation between constitutional and administrative law in the United Kingdom. The term public law is often used to refer to both control of governmental power (administrative law), as well as, the structure and organisation of the main organs of government (constitutional law). The legal system is not conveniently divided into discrete codes, familiar to continental lawyers. Many methods of dispute resolution involving courts and independent adjudication are the expression of the citizens’ rights and liberties and have enormous constitutional significance. The absence of a strict separation of powers doctrine is also noteworthy though recent reforms have gone a long way towards the principles of separation. Reform of the UK ‘s constitutional arrangements was advanced by the Labour government in 1997 with an unprecedented modernisation agenda. The result is that many constitutional changes have a continental appearance but this might be deceptive as substantive law remains firmly within the common law approach. Notable recent constitutional changes include the setting up of a new Supreme Court from October 2009 through the removal of the judges from the House of Lords. The Constitutional Reform Act 2005 saw the formal end of the Lord Chancellor as a Judge, though this role had diminished under previous Lord Chancellors. Many administrative duties are now shared by the Lord Chief Justice and the Minister of Justice. From April 2008, the Ministry of Justice came into existence in England for the first


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time responsible for the budgets for prisons and the judiciary. Managing justice and the amalgam of related reforms include merging the Tribunals Service (responsible for over 70 specialist Tribunals) with the Court Service Agency. The Tribunals, Courts and Enforcement Act 2007 introduced major reforms in creating a First Tier and Second Tier Tribunal system and bringing tribunals and courts more closely together sharing a common case management system of procedures. At the second–tier, the Upper Tribunal has a so called “judicial review” function with limited jurisdiction but similar to the administrative court. The next step is to bring the Senior President of Tribunals under the Lord Chief Justice resulting in a unified judiciary. Other significant changes have been made to the United Kingdom’s constitutional relationship with the regions. Devolution to Scotland, Wales, Northern Ireland and the London Assembly deserve particular mention. There are also substantive changes in the areas of Membership of the European Union, and the Human Rights Act 1998 .The creation of what is called the Administrative Court is formed from the Judges assigned from the Queen’s Bench Division of the High Court is also part of the general growth in administrative law especially in areas such as privacy and in case involving human rights and immigration. This has also been supported by the Supreme Court since 2009 in the development of human rights cases. Reform of the House of Lords and electoral reform are also being considered. A History and influences Distinct periods of history have contributed to the current constitutional arrangements. The 17th century, the revolution of 1688 and the Cromwellian Protectorate defined Parliamentary power over rival monarchical power. Ideas of the 18th and 19th century helped form the foundations of how the legislature, executive and the judiciary performed their respective roles. Though never quite accepting a continental model elements of the separation of power derived from Montesquieu’s thoughts on the separation of powers4 percolated into the way the Constitution functioned. The direct election of the House of Commons in 1832 and the crisis of Lords reform culminated in the Parliament Act 1911. Bentham’s influence in codification projects was continuous. The model of a written constitution favoured on the continent was rejected and the full-scale codification of English law failed to materialise The grant of independence to the colonies developed the art of constitutional drafting, as many countries adopted the Westminster model of government in their constitutional arrangements as many written constitutions were formed into the new Commonwealth. Political influences readily gave rise to legal form. The union of England to Scotland in 1707, the union of Great Britain and Ireland in 1800 formed a United Kingdom and also influenced concepts of sovereignty. The influence of Dicey’s, law of the Constitution5 at the end of the 19th century was fundamental in the definition of the constitution itself. Dicey’s celebrated rejection of droit administrative signalled an unwillingness to espouse French ideas of judicial checks on administrative decision making. Although Dicey’s objections were retracted, during his life time Dicey’s legacy lived on to impede the. The abdication crisis in 1936 affected the standing of the monarchy but not the continuity of constitutional power. 4 Montesquieu, The Spirit of the Laws, eds. A M Cohler, B.C. Miller and HS Stone 1989. 5 Dicey, AV, Lectures Introductory to a Study of the Law of the Constitution London:

Macmillan 1885.AV Dicey, “The Development of Administrative Law in England” (1915) 31 Law Quarterly Review 148.


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The 20th century in the aftermath of two world wars, saw the development of the welfare state and an incremental increase in government powers through nationalisation and various forms of state ownership. The country has come under new influences, particularly since 1972 and its membership of the European Union: perhaps the greatest change is the impact of the European civil law tradition and the European Union on the United Kingdom’s constitution. The privatisation phase begun during the 1970s Thatcher period gave rise to an enhanced regulatory system that during the 1980s under the Blair government was further intensified and enhanced. The election of a new coalition government in May 2010 was also a transforming moment in terms of setting a new political agenda including five year fixed term parliaments. The United Kingdom’s constitution has also witnessed unprecedented changes in the internal workings of Parliamentary accountability over government such as change is in the gradual evolution of the role of select committees in Parliament. Reforms introduced since 1979 created 14 departmental select committees. Today there are 24 such committees that range across government departments, with the remit to scrutinize the departments’ financial, policy, administrative and operational decisions. Ministers and, under their guidance, civil servants may be required to attend to give evidence. The doyen of select committees is the Public Accounts Committee (PAC) charged with holding to account government expenditure, including value for money. The PAC is aided by the National Audit Office (NAO), an independent public audit office under the Comptroller and Auditor General, an officer of the House of Commons, and responsible to Parliament for the scrutiny of public money and departmental accounts. Building on nineteenth-century practice and convention, the twin elements of specialist expertise through the NAO and political accountability under the PAC provide a modern and effective means to scrutinize government. The substance of the work of the Comptroller and Auditor General is carried out by the National Audit Office under statutory authority (the National Audit Act 1983) but influenced by conventions and rules that may be traced back to the nineteenth century. There are also significant reforms in the legislative process including pre and post- legislative scrutiny and reform of the selection of chairs of select committees as well as the method of selection of the composition of the committees. B Distinctive characteristics (i) Conventions

A notable feature is the use of conventions — essential norms forms of political behaviour, difficult to categorize in any strictly legal or constitutional sense, that comprise the common practices and workings of government and that link the modern with the ancient, medieval constitution. Dicey’s influence since the nineteenth century has led constitutional lawyers to believe that conventions serve the purpose of examining past practices to determine future conduct. Unlike rules or laws such as statute law, conventions are not enforceable by the courts but often help explain the political workings of the constitution. Conventions have grown historically as unwritten rules, and may adapt to the changing methods of modern government. That is their enduring quality. They are not the product of either judicial or legislative intervention, but rather of custom, usage, habit, and common practice. The most formative period for their development was probably in the eighteenth and towards the end of the nineteenth century. Conventions have the shortcoming that they reflect the values of mid-Victorian Government and, perhaps, fail to take account of modern party-political realities. The increasing complexity of the machinery of government may make


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accountability through conventions more of a myth than a reality. Many important practices are part of the internal working of government, and it is difficult to give internal working practices special value or elevation to the status of a convention. In essence, conventions are “the morality of the constitution”. They may be relied on to alter with the political circumstances of the time. The constitution essentially consists of the sovereignty of parliament and the rule of law. With Britain’s membership of the European Union, and the Human Rights Act 1998, both these traditional aspects of constitutional law have recently come under debate and scrutiny as part of the process of fundamental reform. Another unique feature of the constitution that has been questioned is the absence of a formal or rigid doctrine of the separation of powers. (ii) Assymetrical devolution Devolution has also brought about fundamental constitutional changes. It is clear that, historically, a remarkable feature of Parliamentary power has been its centralization in the hands of government. This gives central government ultimate legal authority over local government. In the absence of any federal system offering local government an entrenched protection, local government may be amended or modified at the whim of central government. Similarly, newly devolved government to Wales, Scotland and Northern Ireland are subject to Parliamentary authority. In strict constitutional theory devolution may be retracted, modified, suspended or amended. In practical and political terms it is unlikely that the unitary nature of the United Kingdom will be restored. The term asymmetrical seems appropriate. Centralized and ultimate sovereignty continues to rest with the United Kingdom Parliament, with subordinate law-making powers delegated to Scotland, Wales, Northern Ireland and the London mayor. Devolution6 was first experienced under the Government of Ireland Act 19207 and the creation of a devolved parliament for Northern Ireland. The experiment proved unsuccessful, and direct rule by the United Kingdom Parliament was imposed on Northern Ireland again in 1972. Nevertheless, devolution as a principle of providing local community government has endured. The attempt by a previous Labour Government to introduce devolution to Scotland and Wales failed in 1978. In September 1997 referendums were held in Scotland and Wales. The result was that in Scotland 75 per cent of the voters were in favour, on a 60 per cent turnout. In Wales support for devolution was more marginal, and on a turnout of around 50 per cent the majority were in favour but by the narrowest of margins (0.6 per cent). The new Labour Government with a secure Parliamentary majority at Westminster could afford to be radical bold. The Scotland Act 1998 creates a new Scottish Parliament, elected for four years, with defined legislative powers to pass Acts (Schedule 5 of the 1998 Act) and a limited tax-raising authority. There is a Scottish First Minister, and an appointment process for ministers nominated by the first Minister from members of the Scottish Parliament but requiring the agreement of that Parliament. The United Kingdom Parliament maintains overall legislative competence over matters relating to foreign affairs, including the European Union, the Crown, defence, and economic and monetary matters. Over the first few years with a

6 John F McEldowney, “Legal Aspects of Relations between the United Kingdom and Scottish Parliaments” in The Law and Parliament, D Oliver and G Drewry (eds), 1998, p.192. 7 The Government of Ireland Act 1920 incorporated many ideas from the British North America Act 1867 c.3.


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devolved Parliament, Scotland has developed a distinctive style and content in governing its own affairs. The Government of Wales Act 1998 creates a Welsh Assembly, more limited in powers and scope than the Scottish Parliament. The Assembly is unable to legislate in terms of passing Acts, but may exercise the functions of the Secretary of State for Wales that have been transferred to the Assembly. This power includes subordinate legislative powers under Part III of the Government of Wales Act 1998. There is a First Minister, and the Assembly operates cabinet-style committees for decision making. It is possible that under political influence the powers of the Welsh Assembly could be increased beyond the modest powers it already has. Most notably unlike the Scottish Parliament, it does not have power to raise taxes. However, the Secretary of State for Wales may be forced to concede additional powers under pressure from the Welsh Assembly. The Government of Wales Act 2006 brings Wales much closer to Scotland with the potential of more general legislative powers to the Assembly. Such powers require a referendum before under part 4 of the 2006 Act they can come into force. The Assembly remains under the obligation as with Scotland to act within the scope of the Human Rights Act 1998 and also within the European obligations placed on the United Kingdom. In the case of Northern Ireland, devolution is part of an ongoing peace process and as such has a number of unique qualities. There is an assembly, elected for a four-year term, and a power-sharing executive unlike any other, with a requirement to address divisions between Nationalists and Unionists. There is a First and a deputy First Minister who must satisfy the requirements of a majority in the Assembly and a majority of both Unionists and Nationalist members of the Assembly. There is then a complex set of powers that may be devolved to the Assembly once it is up and running, with excepted matters listed in the Act as most likely never to be devolved. This leaves reserved matters which might be transferred under an Order in Council, and transferred matters that are devolved. The essence of devolution is that the constitutional order may create, but not impose, a system of government. Under the Northern Ireland Act 2000 devolution was suspended in May 2000 and then later restored, an indication of the fragility of the peace process underpinning devolution. In May 2007 devolved government was restored under the Northern Ireland ( St Andrews Agreement Act) 2007 Currently there is devolution under the Northern Ireland Act 2009. In April 2010 powers for policing were restored to Northern Ireland ministers, the first time since the abolition of the old Northern Ireland Parliament under the Government of Ireland Act 1920.Devolution is in operation in the London Assembly, a regional form of devolution with powers over transport, economic and environmental matters. There were plans to roll out devolution at a regional level through enabling legislation in force in 2004 under the Regional Assemblies (Preparations) Act 2003. This did not prove successful as popular support was not forthcoming. There remains the possibility of devolution in English region, though this is uncertain.It may be concluded that while the United Kingdom no longer remains a unitary state, devolution itself has an organic quality. Self-reliance and a desire to be distinctive from the history of English influence are potent forces that will pull in the direction of greater independence. Nationalism may claim a stake in drawing together distinct and different groups as an elected subordinate body grows in confidence and legitimacy. These are potent forces that have the potential to develop in opposition to the centralizing tendencies of the past. (iii) House of Lords Reform The United Kingdom’s Parliament has a bicameral system, with the House of Lords forming the second chamber to the Commons. The Parliament Acts 1911 and 1949


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made the Lords subsidiary to the pre-eminent House of Commons. The Lords have only a limited power to delay most legislation, and a money bill may be passed by the Commons acting alone. Long-standing questions are what is the role of the Lords, and how should this House be composed to reflect its role and function? These question have been consistently fudged by successive governments. An inter-party conference in 1948 reached limited agreement that the Lords should be complementary to the Commons. In 1967 another all-party conference was held with limited success. The new Labour Government in 1997 determined to tackle the problem of composition first. The House of Lords Act 1999 abolished hereditary peers but allowed for 92 to be retained through election from existing hereditary peers. The abolition of the hereditary element is a big step. It abolishes the potential Conservative in-built majority and moves the House of Lords to the position of having only life members, some of whom have the unique distinction, of having been elected from the hereditary peers and thus a legitimacy to their standing. This transitional House is as much as has yet been achieved, but the past history of the House as a revising and debating chamber is retained. There is a sense of renewal permeating the work of the revised House of Lords. There is also a growing self-confidence to speak out and criticize government Bills and introduce amendments both on technical matters and on substantive points. The future reform of the Lords is problematic. In March 1999 a Royal Commission8 under the chairmanship of Lord Wakeham was set up with limited terms of reference to recommend reforms. The terms of reference were set in the context of maintaining the existing powers of the Lords and also included:

To consider and make recommendations on the role and functions of a second chamber;

To make recommendations on the method or combination of methods of composition required to constitute a second chamber fit for that role and those functions;

The Wakeham Commission reported in January 2000 and made various proposals about the future of the Lords. Three characteristics were identified for the Lords: it should be authoritative, capable of holding the executive to account and

scrutinizing government; it should be sufficiently confident to use its powers and act effectively; ideally it should be representative of British society as a whole. The future direction of Lords reform is uncertain. The arguments for a full elected House appear to have popular support but this raises issues about the terms of service; the payment of salaries to members, the size of the second chamber; and ultimately once elected the legitimacy of the second chamber may lead to debates about changes in legal powers and responsibilities. (iv)Administrative Law The common law tradition provides a rich inheritance from which to study the development of administrative law. Disappointingly, the common law restrained any

8 A House for the Future Cm 4534, January 2000.


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development of a specialist public law but instead prioritized a system of remedies rather than rights. The doctrine of parliamentary sovereignty was given legal priority over the common law and ensured that the courts exercised few restraints on political power exercised through legislative authority. Dicey’s insistence in 1885 that England had no equivalent of droit administratif obscured many features of English administrative law developed during the seventeenth and eighteenth centuries. He claimed that the ordinary law applied equally to public officials and ordinary citizens, and that relations between the state and citizen were not fundamentally different from those between individual citizens. He believed that the ordinary courts could control the arbitrary exercise of administrative power and provide redress for grievances. At the centre of his beliefs Dicey stressed his ideal of the rule of law: that the state possessed no exceptional powers, and that individual public servants were responsible to the ordinary courts for the exercise of their statutory powers.A hallmark of the English administrative state was growth in the use of statutory inquiries. Their use developed in the nineteenth century as a response to the need to resolve an increasing number of conflicts between the individual and the state. From the eighteenth century the use of private Acts of Parliament to settle individual disputes was not uncommon, but a more sophisticated method of dispute resolution was developed in preference to this time-consuming and expensive procedure. The Inclosure Act 1801 adopted inquiry procedures, modelled on the procedure of a parliamentary select committee, to find facts and make decisions in matters concerning land disputes. An ad hoc commission of inquiry could be set up under the 1801 Act, as an alternative to the cumbersome private bill procedure. Another simplification came with the General Inclosure Act 1845, which modified the use of a private bill to allow a provisional Order in Council to be passed instead of a private Act, usually after a public inquiry or hearing. In the areas of public health and accidents at work, inquiries9 were commonly used to settle individual disputes.English administrative law is distinctive in the development of a system of remedies by the courts rather than through formal written rights. At the discretion of the judges, the law on remedies was largely created out of solutions developed to meet particular problems. Developments were as eclectic in this field as in government administration. English law developed the remedies of the writs of certiorari, prohibition, and mandamus to control administrative action. In the seventeenth century the importance of the remedies of certiorari10 and prohibition11 allowed the Court of King’s Bench to establish itself in the role of supervisor of local administration. Effectively, courts developed their role as filling the gaps left by legislation. In providing jurisdictional supervision of local government bodies, the courts incrementally extended their remit to all bodies that possessed statutory powers. The breadth of the powers delegated to various administrative bodies was a significant factor in judicial attitudes. The development of the role of justice of the peace (JP) was achieved with little central government control. The characterization of many functions of the JP as stemming from a judicial power, rather than from ministerial discretion, provided the courts with the main mechanism of review. The Law Reports in the first half of the nineteenth

9 See: RE Wraith and GB Lamb, Public Inquiries as an Instrument of Government, 1971. 10 This is a remedy used to quash, by judicial review, any error of law on the face of the record. Originally conceived of as a royal demand for information, certiorari reviews that which has taken place. 11 Prohibition is similar to certiorari in scope, but intended to be used for prospective acts rather than past ones.


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century provide many examples of growth in the jurisdiction of the courts to quash decisions that possessed such judicial characteristics that they were thought suitable for review. The concept of judicial review was thus elastic and flexible, empowering the courts. In R. v Local Government Board, when a local authority sought a prohibition against a central government department, Lord Justice Brett noted:

… whenever the legislature entrusts to any body of persons other than to the Superior Courts the power of imposing an obligation upon individuals, the courts ought to exercise as widely as they can the power of controlling those bodies.12

Remedies were always at the discretion of the courts, never automatic or of right. The writ of mandamus13 could provide the performance of a public duty. This remedy permitted the courts to require obedience to the law.14 Mandamus was sparingly used but might be suitable for controlling breaches of the law by public officials. Compared to the other writs, of certiorari and prohibition, mandamus was not often applied for after the nineteenth century: Acts of Parliament required public officials to perform their duties, and when this performance was in doubt, the Act would give the public official sufficient discretion to avoid judicial review. A feature common to all the remedies described thus far was that procedural rules abounded as to the granting of a particular remedy for a particular type of grievance. The interpretation of each case depended on its particular facts. In order to secure a remedy the aggrieved citizen was required to show standing (locus standi), and this varied with the type of remedy sought. The complex rules of standing often left aggrieved litigants without an adequate remedy.15 In the case of certiorari, if the litigant was the aggrieved citizen in person then the courts had a discretion to grant relief. However, if the litigant was a “stranger” — that is, someone not directly affected — then the courts imposed a stricter standard and considered whether the public interest required the case to be considered. Litigants were time-barred — six months in the case of certiorari if they intended to use this remedy. In the case of mandamus the applicant must show some special interest or sufficient interest in the claim.16 There were limits to the development of the supervision offered by the courts. In the case of central government the courts accorded ministers many of the same protections given to the Crown. The rule that the Crown could do no wrong precluded an action in torts and in special problem areas such as land repossession or where there was a breach of contract. Throughout the seventeenth and eighteenth centuries the development of the remedy of injunctions in the courts of equity precluded the Crown. In 1854, the Common Law Procedure Act extended a limited power to grant injunctions to the courts of common law, and eventually, in 1875, the power was conferred on all divisions of the High Court.17 However, these reforms did not change the rule that an injunction would not lie against an officer of the Crown, or the Crown. For similar reasons, mandamus could not lie against the Crown, because it was claimed to be incongruous for the Crown to command itself or for the King’s courts to command the Crown. Disobedience to the court’s authority was punishable as a contempt of court. This

12 (1882) 10 QBD 309 at p.321. 13 Bagg’s Case (1615) 11 CoRep 93b. 14 R v Secretary of State for War [1891] 2 QB 326. 15 G Shortt, Informations, Mandamus and Prohibitions, 1887 pps.10-35. 16 R v Commissioners for Special Purposes of Income Tax (1888) 21 QBD 313. 17 Supreme Court of Judicature Act 1873.


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point reinforced the idea that the Crown could not be compelled to suffer such punishment. At common law, discovery of documents could not be ordered against the Crown.18 The prerogative writ of habeas corpus is of medieval origin. Its high reputation of affording strong protection for human liberty is associated with its development by the courts of common law as a means to assert and extend their own jurisdiction by securing the release of litigants and others from custody. In the seventeenth-century reform, the Habeas Corpus Act 1679 provided the principle that a person held on a serious criminal charge should be released on bail or granted a speedy trial. In 1816 the Act included cases of civil detention, allowing the judges to inquire into the truth of the facts provided by the authorities when the writ was sought. Habeas corpus applied to a minister, or official acting on behalf of a minister, even if the person was a Crown servant. It applied to inferior courts or tribunals. Through the development of remedies the courts evolved principles of review. The grounds for judicial review emerged case by case. Individuals aggrieved by the actions of government could complain about procedural errors or abuse. This gave rise to complaints about breaches of the rules of natural justice. Natural justice had two essential qualities: first, the individual should receive adequate notice of the charge and an adequate hearing (audi alteram partem); second, the adjudicator of a dispute, whether a judge or a tribunal, should be unbiased (nemo judex in sua causa). A wide variety of disciplinary proceedings in clubs, associations and trade unions were included in the ambit of the rules of natural justice. In 1863, in Cooper v Wandsworth Board of Works,19 Erle CJ applied the principle that everyone was entitled to a hearing when their property rights were interfered with, notwithstanding the absence of any express statutory provision to that effect under the Metropolis Local Management Act 1855. The plaintiff took an action in trespass against Wandsworth District Board for demolition of his house. No opportunity had been given to the plaintiff to state his objections. The Court of Common Pleas held in favour of the plaintiff. Judicial review had, by the end of the nineteenth century, developed sufficiently for Dicey20 to acknowledge that administrative law did in fact exist in the law of England despite his early opposition. Remedies were sufficiently developed by the courts to provide the aggrieved person access to the courts on a wide range of grounds. Since the beginning of judicial review the courts had exerted control over the discretion exercised by tribunals and agencies.21 Natural justice provided the basis of fair adjudication. However, it remained remarkable how English administrative law exemplified a reluctance to turn remedies into rights. In cases involving natural justice the courts refused to specify what rights would have to be affected before the rules of natural justice applied.22 (v) Administrative law in contemporary context Changes in judicial attitudes, towards developing the common law in the direction of rights defined more broadly, came through a series of landmark cases in the 1960s. Since then, English administrative law has developed incrementally. Ridge v Baldwin23, Padfield v Minister of Agriculture, Fisheries and Food24, and the

18 This remained the law until section 28 of the Crown Proceedings Act 1947 came into force. 19 (1863) 14 CB (NS) 180. 20 AV Dicey, “The Development of Administrative Law in England” (1915) 31 Law Quarterly Review 148. 21 Rooke’s Case (1598) 5 CoRep 99b, Leader v Moxon (1773) 2 WB 1 924. 22 For example, Hopkins v Smethwick Local Government Board of Health (1890) 24 QBD 713. 23 [1964] AC 40


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development of Wednesbury25 unreasonableness enabled the courts to adopt a proactive approach. Instead of relying on instances of past failure in order to develop a systematic approach to administrative law, the courts filled in, through their own initiative, gaps left by legislative neglect. The result was clear: a self-confident judiciary that was prepared to fashion new tools for the development of judicial review. In 1977, Order 53 was introduced, streamlining mechanisms and procedures for the application for judicial review. Two landmark decisions showed the extent of judicial self-confidence. In O’ Reilly v Mackman26 [1983] 2 AC 237 the House of Lords established that the divisional bench of the High Court had exclusive (subject to certain exceptions) jurisdiction over administrative law matters. In the Council for the Civil Service Union decision,27 the House of Lords engaged in a form of judicial codification of common law principles. The grounds for judicial review included unreasonableness, irrationality, proportionality, and procedural impropriety. It is noteworthy that the doctrine of unreasonableness may have to be strengthened to bring it into line with the higher standards required under the Human Rights Act 1998.28 As a result of both creative judicial activism and legislation, judges have developed a wide discretion as to when to uphold a judicial review. This flexibility, allowing the courts the power to exclude unmeritorious cases at an early stage, saves time and creates a specialized jurisdiction for the administrative courts. Cases must be taken promptly within a three-month period. The standing of the applicant is determined by the substantial merits of the applicant’s case. The courts have a discretion whether or not to grant any remedy. The role of the courts must also be placed in the context of the development of an extensive jurisdiction by statutory tribunals. Employment tribunals under the Employment Tribunals Act 1996 cover an extensive jurisdiction over employment issues, including race relations under the Race Relations Act 1976, the Race Relations (Amendment ) Act 2000, and sex discrimination under the Sex Discrimination Act 1975, equal pay under the Equal Pay Act 1970, and disability under the Disability Discrimination Act 1975. The Social Security Appeal Tribunal29 covers protection under various provisions of the law relating to the payment of social security, and acts as an appeal tribunal against the decision of the adjudication officer. Mental health tribunals, lands tribunals, and rent assessment committees are also important examples of the work of tribunals in specialist areas. Tribunals offer the advantages of speed, low cost, informality, flexibility, expertise, accessibility, and privacy in the adjudication of disputes. Their disadvantages include lack of provision for legal aid, a confused and complicated appeals system, and growing complexity in technical areas of the law covered by tribunals.30 Important and substantial changes to the system of civil justice have been introduced by the Woolf reforms over the past few years. Changes in the way county courts and the High Court dispose of cases are procedural and substantive. The Civil Procedure Act 1997 and the Civil Procedure Rules 1998 create a new system for the management and tracking of cases through the civil justice system. The judge is appointed case manager. A case is allocated to a “track” depending on its complexity and the technical expertise required as well as the value of the

24 [1968] AC 997. 25 [1948] 1 KB 233. 26 [1983] 2 AC 237. 27 Council of Civil Service Unions (CCSU) v Minister for the Civil Service [1985] AC 374. 28 R v Secretary of State for the Home Department ex parte Daly [2001] 2WLR 1622. 29 See: Social Security Act 1998 and the Social Security Administration Act 1992. 30 See reforms proposed by the Leggatt Committee: <http://www.tribunals-review.org.uk/leggatthm/leg-00.htm>


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sum in dispute. The lowest value and simplest track is the “small claims track”: a small claims hearing for cases up to and no more than £5,000. An adjudication may be given on the papers if the parties agree; they need not attend any hearing. The “fast track”, for cases of no greater value than £15,000 but no less than £5,000, is intended to provide a system where the costs of litigation do not exceed the sums being litigated over. The judge may issue standard directions to achieve the administration of the case, including the dates of hearings and the time set for hearing. Cases must not exceed one day (five hours) of court time; trial periods must not exceed three weeks; and the parties are given time, a maximum of 21 days, to prepare their case. Additionally, the “multi-track” system permits the courts to allocate claims to either track. Trial times and dates may be set by the court and there is provision for an initial hearing to settle the timetable for the case. The complexity of the changes, and the financial targets that are at the centre of their rationale, make it difficult for human rights and ethics to penetrate into the detail of administrative decision-making. The difficulties intensify when it is recognized that rights that underlie the value of transforming administration into an efficient means of allocating resources may derive from competing ideologies. Reviewing the government, and thereby the political choices representing the electorate, through legally imposed rights sets the judiciary into an intense debate with rival claims for legitimacy. As Professor Loughlin has noted:

Constitutionalization can thus result in politics assuming the character of legal argumentation. But if politics becomes more legalized, so law becomes more politicized.31

B Themes and Issues (i) Parliament and the courts The absence of a single codified or written constitution leaves the working out of the practicalities of the constitution to the system of laws, conventions and customs that are the hallmark of the medieval inheritance. This means that there are no special protections afforded to legislation with constitutional significance. Equally, judicial powers are constrained by the doctrine of parliamentary sovereignty which relates to the status of UK statutes which in theory are all powerful. Since membership of the European Union, the UK has insisted in no dilution in UK sovereignty. This contention is considered in detail below in the context of the European Court of Justice’s analysis of sovereignty and the courts.

A potential for conflict between Parliamentary authority and judicial power came with the Human Rights Act 1998. The Act provides that legislation may be examined as to its compatibility32 with rights under the European Convention, but this falls short of allowing the courts to strike down any law as unconstitutional. Nevertheless, the courts are free to say when Parliament has acted in a way that is incompatible with Convention rights. This represents a potential shift in power from the political to the legal, and provides the greatest potential for changing how decisions are made. The second fundamental reform is membership of the European Community; this has a direct impact on the legal system and the substantive law of the United Kingdom, and is therefore a contentious issue. (ii) EU influences

31 Martin Loughlin, “Rights, Democracy and Law” in Sceptical Essays on Human Rights, T Campbell, KD Ewing and A Tomkins (eds) 2001, p.58. 32 R (On the application of Holding and Barnes plc) v Secretary of State for the Environment, Transport and the Regions [2000] All ER (D) 2264. ok


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The Court of Justice has had a considerable influence over the development of judicial thinking in the United Kingdom and also over the authority of Parliament. Parliamentary sovereignty, long held by the courts to be the bedrock of constitutional principles, appears considerably weakened in the context of what is now the European Union. The coming into force of the single European currency from January 2002 and the development of a unified system of central banks are but two of the institutional changes that confront the United Kingdom. More significant is the realization that the English common law is now part of a shared inheritance with the civil law tradition. The two traditions have long been contrasted as “codified” and “uncodified”, but their differences are more profound and far-reaching in terms of the cultural adjustment needed to understand both of them.

Membership of the European Union creates a potential challenge to the doctrine of the sovereignty of Parliament. Traditionalists insisted that the doctrine asserting that an Act of Parliament is free from being struck down by the courts would prevail in spite of Britain’s membership of the European Union. The traditionalist view is compelling when it is remembered that Parliament carries through the wishes of the majority of the electorate, through the government which carries out its election manifesto. In this way parliamentary sovereignty translates into the wishes of the people, as opposed to the decisions of unelected judges. However, the issue that arises is whether the traditional view is capable of accommodating membership of the European Union. Tensions between UK and EC law inevitably lead to the question of which might prevail in the event of a conflict that is not resolved by Parliament or the political system but is left to the courts to decide. One example of the need for judicial decision-making arose from a series of cases33 that centred around the dispute involving Spanish fishing boats operating within the United Kingdom’s fishing quota. The Spanish boats formed companies and registered in the United Kingdom. The Merchant Shipping Act 1988 introduced various requirements such as nationality and domicile in an attempt to restrict the use of UK fishing quotas to only the UK-based fishing fleet. The Spanish fishermen went to court in the United Kingdom and sought interim relief from the English courts restraining the application of the 1988 Act as a first step in challenging its compatibility with Community law. The supremacy of Community law, long acknowledged in the case law of the Community, appeared at odds with the doctrine of the supremacy of United Kingdom legislation. The House of Lords in a number of key decisions arising out of the dispute resolved:

that the United Kingdom courts must give way to European Community law even

if this means acknowledging that part of an Act of Parliament is incompatible with community law;

that in general the United Kingdom courts must not apply United Kingdom statutes whenever there is a potential conflict with Community law;

that the courts are required to ensure that United Kingdom law is consistent with Community law;

that national courts are required to ensure that the government complies with the requirements of Community law, and may provide compensation in the event of any failure to do so.

33 R v Secretary of State for Transport ex parte Factortame Ltd (No.3) [1991] 2 Lloyd’s Reports 648, R v Secretary of State for Transport ex parte Factortame Ltd (No 2) [1991] 1 AC 603, R v Secretary of State for Transport ex parte Factortame Ltd [1999] 4 All ER 906, R v Secretary of State for Transport ex parte Factortame Ltd [1990] 2 AC 85.


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It is possible to see the Factortame34 set of cases as evolutionary as well as rather more revolutionary. In terms of evolving principles it is clear that United Kingdom law must be held to be compatible with Community law. More revolutionary is the idea that integrating common law and civil law approaches requires the courts of the United Kingdom to be seen as part of a single unified court system. The European Court of Justice stands at the apex of judicial powers while the House of Lords, as part of the domestic judiciary, is there to implement changes. On that analysis, the United Kingdom has unwittingly developed a Supreme Court system, composed of the House of Lords and the European Court of Justice, with inherent jurisdiction over community law in the United Kingdom. In a pragmatic and case-by-case approach it is possible to see the beginnings of a common law shared throughout the Community.35 (III) Human Rights: Future Directions Human rights has a potential to change and reshape the common law culture. The coming into force of the Human Rights Act 1998 on 2 October 2000 significantly changed how rights are enjoyed in England and Wales, by incorporating for the first time into domestic law the main substance of the European Convention on Human Rights (ECHR) signed in 1950. This Convention provides rights such as freedom of expression and association; rights to privacy and information; and procedural protections for the individual in the areas of criminal, civil and administrative law. Under the ECHR, the European Court of Human Rights was set up to hear cases alleging breaches of Convention obligations. Due to the high reputation of this court, the Convention is well known internationally for guaranteeing the citizen positive rights. Uniquely amongst countries that ratified the ECHR in 1950, the United Kingdom failed to incorporate it into domestic law — even though the United Kingdom was the first country to sign it, and it was mainly drafted by British lawyers. As the United Kingdom is a dualist state, itIt needed to be incorporate the ECHR d into domestic law to allow British citizens direct access to enforceable rights under the Convention in the British courts. The reluctance over the years to incorporate the ECHR into domestic law in Britain has many explanations. The most obvious is that British law, distinct from other European legal systems, is based on a system of common, rather than civil, law. Constitutional arrangements in the United Kingdom evolved from medieval times through uncodified conventions and miscellaneous rules without the foundation of a written constitution, and a long parliamentary tradition enshrined the sovereignty of Parliament. Magna Carta provided the ideals of justice, assuring British citizens that the law would deliver justice without delay and according to the lawful judgment of the courts. Parliament’s traditional role is as a forum for the resolution of citizens’ grievances and through private Acts of Parliament the legal authority to grant divorces and settle property disputes and provide access to the resolution of civil disputes. Britain’s strong international reputation for guaranteeing citizens their civil liberties was founded on the belief that rights were well protected by the combination of Magna Carta, jury trial resting on the judgement of one’s peers, and a strong and independent judiciary. The ultimate authority of an Act of Parliament was recognized by the courts from the eighteenth century. Sovereignty had the potential of allowing an Act of Parliament to override the

34 Ibid. 35 P Craig, “Public Law, Political Theory and Legal Theory” [2000] Public Law 211.


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judicial decisions of even the House of Lords, Britain’s highest appeal court. This set the balance between Parliament and the courts.36 By the end of the nineteenth century, the reality of political power was such that parliamentary sovereignty meant, in practice, the sovereignty of the government of the day. This gives rise to one of the unique qualities of the United Kingdom’s constitution, namely the opportunity for government to govern. The unwritten, government-centred constitution enables the government of the day, empowered through the sovereignty of Parliament, to enact major social and economic legislation. This means that, freed from many of the restraints a rigid constitution would impose on the exercise of legislative powers, political decision-makers are able to bring about social change. The two main political parties compete for power whilst the civil service, being permanent and politically neutral, strives to ensure continuity from one government to the next. Checks and balances mainly depend on self-regulation entrusted to the stewardship of the government. In addition, the courts provide a check on abuse. The common law tradition allows judges to develop legal principles case by case. The independence of the judiciary achieved success in ensuring obedience to the ideals of the rule of law, even though the reality was less certain and predictable. Despite the potential for Parliamentary power to ultimately overturn judicial decisions, over the years the judges continued to develop, case by case as part of the common law, many legal rights for British citizens. A culture of legal remedies rather than positive rights appeared satisfactory. Substantive administrative law rights developed by the courts in the mid-1960s laid the foundations of modern administrative law, which affords substantive protections against arbitrary or unreasonable decisions. The absence of positively written rights did not appear to inhibit judicial discretion. But at the same time it was apparent that the absence of entrenched rights left gaps in the way rights were enjoyed by British citizens. From 1966 to the end of 1995 the United Kingdom found itself before the European Court of Human Rights on 60 occasions.37 In at least half the cases, the Court found some form of breach of the ECHR. United Kingdom legislation was found wanting, and in many cases the citizen was left with no redress. The political demand for incorporation of the Convention grew steadily, at first through pressure groups, then, in the 1980s, through prominent lawyers, notably Lord Scarman,38 a serving Law Lord at the time, who argued for incorporation of the ECHR in a modern Bill of Rights. In the past five years, senior serving members of the judiciary have added their voices in approval. The most vociferous is Lord Justice Sedley.39 In his lectures given in 1996–97 at the University of Warwick, he stressed the importance of a written Bill of Rights.40 The Labour Government, before coming to office in 1997, had promised in its election manifesto to introduce a Bill of Rights along with other constitutional reforms. The resulting Human Rights Act 1998 for the first time allows British citizens to use domestic courts to enforce Convention rights. British law is entering a period of cconsiderable uncertainty as the transition to a rights-based culture is undertaken through cases decided by the judges. This is

36 KD Ewing, “The Human Rights Act and Parliamentary Democracy” (1999) 62 Modern Law Review 79. 37 Conor Gearty (ed), European Civil Liberties and the European Convention on Human Rights, 1997p.84. Also see: KD Ewing and CA Gearty, The Struggle for Civil Liberties, 2000, Robert Blacburn and Jorg Polakiewicz,eds., Fundamental Rights in Europe Oxford,2001. 38 Lord Scarman was Chancellor of the University of Warwick in the late 1970s during the period of debate on human rights. 39 An Honorary Professor of the University of Warwick and senior appeal court judge. 40 See: Rt Hon Lord Nolan of Brasted and Sir Stephen Sedley, The Making and Remaking of the British Constitution: Law in its Social Setting, 1997.


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likely to be a painful process as age-old constitutional assumptions are held up for inspection. It is possible that many institutions and practices may be found wanting. In the midst of considerable uncertainty, intensive preparations were made for the 1998 Act’s coming into force in England and Wales and an extra £60 million allocated for legal aid and court costs. The judiciary at all levels from magistrates’ courts to the appeals courts have undergone intensive education and training programmes. A central issue is the extent of the application of Convention rights and the implications of a rights-based culture in English law. Courses organized by the Judicial Studies Board have explained the remit of the 1998 Act and how it might be interpreted. Similarly, administrators and civil servants have undergone training on the impact of the Act. The courts now have the difficult task of interpreting the proper procedures and merits of administrative decisions. While there were fears that the number of cases under the Act might overwhelm the court administration, a sensible case-by-case approach has been adopted. As Professor Anthony King has pointed out, there can be little doubt that41 “…many of the changes in our traditional constitution are permanent and irreversible.” It is an opportune moment to take stock of the direction a more rights-orientated public law will take us. There are some words of caution. While conceding, as everyone must, that human rights are intrinsic to our democratic system, there is room for consideration of the boundaries of judicial power as a custodian of rights. What degree of self-regulation should be exercised by judges when they are granted such overarching powers? How should decision makers be advised to achieve good decisions when individual rights may serve to inhibit risk taking and long-term strategies? First, given the role of the courts over time in developing principles of judicial review for good administration, it seems likely that judges will interpret the Human Rights Act 1998 along familiar case-by-case lines. Only after a settled period will it be apparent how the Act has changed the shape of public law. Secondly, changing the culture of administration represents a complex challenge for the courts, but the signs are that a fundamental change to a rights-orientated culture is indeed occurring in public administration in Britain. Finally, some conclusions touch on how public law under the Human Rights Act is likely to develop. One concern is that the relationship between judicial and political power might give pre-eminence to judicial power. In Alconbury, the first case of its kind, the House of Lords considered how rights set out under Article 6 of the ECHR may have an impact on how planning decisions are made. Article 6 provides that “. . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal…” (italics added). The case is examined in some detail in chapter 3 but it is sufficient here to explain that an applicant for planning permission has a right of appeal to the Secretary of State against any refusal or condition of planning permission. The planning system effectively gives the final say to the Secretary of State, an elected politician, who may include matters of policy as part of the overarching responsibility to ensure that policy issues are considered as part of the system. The Secretary of State’s decision may be appealed to the High Court on the same basis as judicial review. The appeal is seen as confined to legal issues, and the courts do not consider the merits of the policy behind the decision. The Secretary of State is in theory responsible to Parliament for policy matters. The House of Lords considered the full implications of human rights introduced under the 1998 Act for the planning system and concluded that the court should not have every aspect of planning law fall under the scope of review. To ensure that the relevant human rights procedures are followed, it was sufficient that there should be a review of the legality of the decision. It fell within the Secretary of State’s remit, including policy matters, to determine appeals. Thus, while the House of Lords recognize the requirements of the Human Rights

41 Anthony King, Does the United Kingdom Still Have a Constitution?, 2001, p.90.


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Act, this Act does not require judicial intervention in every aspect of the planning system, which is already susceptible to judicial review. This illustrates the court’s sensible case-by-case approach. It is also important to recognize that legal rights developed under the Human Rights Act 1998 have the potential to shift Britain’s constitutional arrangements in a new direction. The Court of Appeal42 in October 2001 in a series of significant judgments outlined the significance of the Human Rights Act in terms of the powers of the courts to issue injunctions in matters of planning disputes. Issues of proportionality need to be considered by the courts before an injunction may be exercised under the discretionary powers of the courts to issue injunctions for threatened breaches of the law. This is one example of the importance of the rights culture becoming an integral part of the judicial process. Professor Ewing notes the danger of the unelected (judges) making important decisions over the elected (ministers):

We now have a constitutional system in which the output of the democratic process can avoid successful challenge and possible censure only if it can pass a test of democracy developed by a group of public officials who have escaped all forms of democratic scrutiny and accountability.43

The essence of such a danger appears to be addressed in part by the self-limitations on judicial powers set out in Alconbury. An equally pressing problem is the development of public administration and the question of how a rights-based culture might improve standards and tackle corruption44. An equally important issue is how to reconcile the jurisprudence of the Strasbourg Court of Justice, the Luemburg Court of Justice and the common law. In R (Ullah) v Special Adjudicator45 in the House of Lords Lord Bingham hesitated to interpret the Starsbourg jurisprudence as firmly binding. In the absence of special circumstances it was desirable that the UK courts should follow the jurisprudence of the Court. Further clarification came in the Supreme Court decision in R. v Horncastle and others46 . The case concerned the question of whether victims in serious criminal offences did not give evidence. Lord Phillips,explained the desirability of taking into account the Strasbourg decisions in respect of the Human Rights Act 1998. However, it was open to the Supreme Court to consider matters which the Strasbourg court had not fully appreciated in terms of the UK trial process and procedures. This is an important recognition of the principles of being influenced by the Strasbourg Court but not being bound. (iv)The Charter and the Treaty of Lisbon The Charter of Fundamental Rights (hereinafter the Charter) has gone through a lengthy gestation. The original intention was to bring together all the rights of citizens in Member States; in June 1999 Member States agreed to make fundamental rights part of a newly drafted Charter of Fundamental Rights applicable in the EU. A revised version of the Charter was signed between the Commission, the EU Parliament and the Council in December 2007. Article 6 of the Treaty of the European Union (TEU) makes the necessary link between the

42 South Bucks District Council v Porter 12 October 2001. See: ENDS [Environmental Data Services] Report 323, p.57; <http://www.ends.co.uk/index.htm>. 43 K Ewing, “The Unbalanced Constitution” in Campbell, Ewing and Tomkins, pp.116–7. 44 Porter v Magill [2002] 1 All ER 465 45 [2004] UKHL 31. 46 [2009] UKSC 14


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Charter and the European Union. From its inception and prior to the Treaty of Lisbon, the Charter did not have legally binding effect. The Charter has legal effect under the Treaty of Lisbon, but the UK and Poland are covered by Protocol 7 of the Treaty of Lisbon, discussed below. Nevertheless the influence of the Charter cannot be underestimated. It has become embedded in the culture of rights within the EU and is influential in how the Commission undertakes its legislative role. The setting up of the Fundamental Rights Agency to offer a form of pre-legislative scrutiny is indicative of this influence. The Court of Justice (ECJ) has also been influenced by the Charter, which has been treated in many ways as equivalent to a source of international law. In a number of headline cases the ECJ has acknowledged this influence and has felt duty bound to promote its application in relevant cases47. This underlines how, although non-legally binding, the Charter is, in my view correctly, regarded as influential and significant. This is likely to develop further in the future. The Treaty of Lisbon takes matters a step further by revising Article 6 TEU. Article 6(1) provides that the Charter will have the same legal values as the Treaties. While not extending any of the competences of the Union it stipulates under new Article 6(3) that “the Union shall respect fundamental rights”. The important point is that the Charter, including explanations and interpretation, fall under the jurisdiction of the Court of Justice. While the explanations and interpretations do not have the force of law, they are nonetheless influential. The nature of the Charter is wide ranging and contains over 50 rights, freedoms and principles. There are six titles; Dignity, Freedoms, Equality, Solidarity, Citizens’ rights and justice. There is a great deal of ambiguity over their interpretation especially in terms of rights and principles. This is particularly important as rights are regarded as directly enforceable whereas principles may only be justiciable under Article 52(5). The distinction, such as it is, is likely to form part of the case law of the ECJ. Principles may not be directly enforceable rights but they cover matters that are likely to be the subject of litigation and therefore become interpretation aids in the way the ECJ considers EU law. This is especially so in the context of the duty of the Court to take account of revised Article 6(3) TEU for the Union to respect fundamental rights. Charter rights are broadly expressed and often provide economic and social expectations such as Article 35 the right of access to health care. Very often such Articles may draw on pre-existing rights or obligations found in other Treaties or in other parts of EU law. While rights may be so general as to require little substance, such as Article 28 on the right of collective bargaining and action, their significance should not be underestimated. While no new rights are established and such rights must be in accordance with national law, there will inevitably be questions of interpretation and emphasis. While it is probably common ground amongst many commentators that the Charter may not extend EU law,it leaves unanswered how influential it may become when interpreted. Particular concerns about the reach of Article 28 to create a right to strike have so far been exaggerated. While acknowledging the right itself, the ECJ may decide to exercise self-control over how the right to strike applies and may respect national limitations and restrictions..

The rationale for giving the Charter legal status and binding effect under the Treaty of Lisbon is well supported by most commentators. As the Charter is influential, it is preferable for this to be recognised in law. This assists legal advisors in setting the terms of their advice to clients; allows the arguments about rights to be adjudicated on their merits and brings positive advantages to European citizens in the way the law develops. It is, however, unusual to give a document with declaratory status recognition in a Treaty providing it with binding effect. In terms of legal effect this means that EU institutions have to give attention to the

47 Case C-303/05 Leden van de Ministerraad case. Case C- 305/05 Ordere edes barreaux francophones and also Case C-540/03 Parliament v Council [2006] ECR I-5769


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fundamental rights of the Charter. Irrespective of Member States this is important as there are many instances where EU institutions will change their behaviour because of the Charter and its legal binding status. This is a positive development in terms of setting controls on EU institutions; enhancing standards and improving rights for citizens over institutions whose accountability in the past has been open to question.

The question whether new or additional rights are created by the Charter is unclear. It is unlikely that there will be a major change in the ECJ’s behaviour because of the Charter’s change of status. It is clear that the jurisprudence of the ECJ is likely to be influenced by the Charter and this is an important point to consider. The possibility of challenging acts of Member States and EU institutions is open, even though some lawyers doubt that this is very likely. Protocol 7 is the result of pressure from Poland and the United Kingdom. The Protocol states that the Charter does not extend the ability of the Court of Justice to find laws within the two countries to be ‘inconsistent’ with the Charter. There is a further ’opt out’, that nothing in Title IV of the Charter relating to solidarity, (workers’ rights) will create any additional rights to those already granted in the two countries. There is no clear answer to the question whether the Protocol is an actual opt out or simply a guide to interpretation. The UK Government’s intention appears to be that the Protocol is there to establish that there can be no new rights and that the courts may not strike down any UK law. However, falling short of what is ‘inconsistent’ allows the ECJ to read into the interpretation of UK law various parts of the Charter to render UK law consistent. This approach is well within the boundaries of interpretation and also in line with the EU’s fundamental protection of rights, which the UK has affirmed in the TEU as well as under the Treaty of Lisbon. Article 2 of the Protocol acknowledges that the Charter is applicable to the extent that it refers to national laws and practices and to the extent that the rights or principles are recognised by the laws and practices of the UK. There are a number of other comments about the Protocol.

• The lack of clarity in the Protocol provides support for the view that it is only there as an explanation of the various interpretations rather than a binding opt out;

• An intention to negotiate a fundamental opt out would be needed to be spelt out in full and contain a clear explanation of its nature and application;

• The ambiguity in the Charter between rights and principles also makes it difficult to know whether the Protocol has much meaning as the Protocol fails to make clear what is regarded as falling within the Charter and general principles and what is not;

• In any event there are pre-existing rights and obligations under EU law that are applicable to the EU and the Protocol does not limit their application to UK law;

• The general nature of the Protocol leaves a wide margin of appreciation for national courts and the ECJ to decide how it applies and its effect. It is likely that the overriding nature of EU law48 as accepted in the case law of the EU would be followed49. Cases such as Factortame50 and Costa v Enel51 would apply as asserting the supremacy of the ECJ and of EU law.

48 Section 2(4) of the European Communities Act 1972 provides that rights, powers, liabilities, obligations and restrictions …. are without further enactment to be given legal effect”. 49 The direct effect doctrine Van Gend en Loos [1963] CMLR 105, Reyners v Belgium State 2/74 [1974] E.C.R. 631 also its expansion through Regulations: Amsterdam Bulb v Produktschap voor Siergewassen 50/76 [1977] ECR 137. Directives with horizontal and vertical effect Marshall v Southampton and South West Hampshire Area Health Authority [1986] E.C.R. 723 Marleasing [1992] CMLR 688 Francovich [1993] 2 CMLR. 50 [1989] 2 CMLR 353 [1990] 2 AC 85 House of Lords (no 2) [1991] 1 AC 603. M. v Home Office [1994] 1 AC 377


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ECHR and ECJ: Strasbourg and Luxembourg The legal status given to the Charter and its overlap or interconnection with the European Convention on Human Rights may result in convergence between the two courts (Strasbourg and Luxembourg). EU accession to the ECHR is likely and would reduce room for inconsistencies of approach between the two courts. Unlike the European Union, there is no mandate in the Strasbourg Court of Justice to unify human rights laws. The recognition is that rights may be calibrated in different ways in different cultures. However, the margin of appreciation doctrine, intended to give rise to different approaches in domestic law , has not been flexibly enough interpreted to give rise to clear enough differences in approaches to human rights. This has weakened the ability of domestic courts to develop their own responses to rights, reflecting different legal, economic and social differences. There are three discernible trends:

• The ECJ has developed an increasing interest in taking account of the ECHR. This is clear from decided cases and judicial attitudes;

• The ECJ is likely to make use of the Charter as an interpretation aid as well as a source of legal doctrine;

• The jurisdiction of both the ECHR and the ECJ is likely to be addressed at some time in the future.

The Human Rights Act also raised the issue of Parliament deciding not to enact laws that are compatible with the Convention52. This again reinforces the analysis that the common law is not easily assimilated into the continental system of which the EU is an important part. Conclusions Assessing the totality of the constitutional changes outlined above is not easy. Political scientist, notably Vernon Bogdanor regard the United Kingdom’s constitution up until the recent reforms as “ peculiar” and often they seek to distinguish the old constitution from a “ new constitution” defined by human rights; a clearer organisational chart of government, including devolution, reform of the House of Lords and all the reforms introduced since 1997 that equate to a new British Constitution53. Others have identified many changes with the politics of the times and characterised the changes as “restructuring” “a mess” or as unsettling54. Lord Norton identifies many trends in the changes that are familiar to America though the current British constitution stops short of any equivalent written constitution or primacy to a Supreme Court.55 In summary the constitution may be described rather than defined by its essential characteristics namely that it is unwritten, as opposed to written; flexible, as opposed 51 Costa v Enel Case 6/64 52 See: Ghaidan v Godin- Mendoza 2 AC 557., Re S (FC) [2002] UKHL 10, Re P [2008] UKHL 38 53 Vernon Bogdanor, The New British Constitution Hart: Oxford, 2009. 54 Anthony King The British Constitution Oxford: Oxford University Press, 2007.

55 Philip Norton, The British Polity Longman: London and Essex 2010


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to rigid; unitary, rather than federal; and institutional and practical, as opposed to theoretical and doctrinal. The contemporary monarchy maintains a largely symbolic role and continuity of tradition. Bagehot aptly described the monarch’s formal powers as “the right to be consulted, the right to encourage, the right to warn”56.[footnote required] The monarch retains the power to grant a dissolution of Parliament on the advice of the government. There is also the power to invite the leader of the political party with the majority of seats (the Prime Minister elect) to form an administration. In the case of a hung parliament this might be not just symbolic but decisive in the choice of the party to form the government. It is symptomatic of the organic nature of the Constitution that there are some constitutional changes that have been discussed but not come to fruition include reform of the electoral system, notoriously first past the post for Parliamentary and local elections is still being considered. Some progress has been made. In the case of the devolution arrangements there are four-year instead of five-year terms; unicameral assemblies or parliaments as distinct from the Westminster bicameral system; forms of proportional representation for elections, rather than the existing first past the post for Westminster. Reform of the House of Lords The Parliament Acts 1911 and 1949 made the Lords subsidiary to the pre-eminent House of Commons. The Lords have only a limited power to delay most legislation, and a money bill may be passed by the Commons acting alone. Long-standing questions are what is the role of the Lords, and how should this House be composed to reflect its role and function? These question have been consistently fudged by successive governments. An inter-party conference in 1948 reached limited agreement that the Lords should be complementary to the Commons. In 1967 another all-party conference was held with limited success. The new Labour Government in 1997 determined to tackle the problem of composition first. The House of Lords Act 1999 abolished hereditary peers but allowed for 92 to be retained through election from existing hereditary peers. The abolition of the hereditary element is a big step. It abolishes the potential Conservative in-built majority and moves the House of Lords to the position of having only life members, some of whom have the unique distinction, of having been elected from the hereditary peers and thus a legitimacy to their standing. This transitional House is as much as has yet been achieved, but the past history of the House as a revising and debating chamber is retained. There is a sense of renewal permeating the work of the revised House of Lords. There is also a growing self-confidence to speak out and criticize government Bills and introduce amendments both on technical matters and on substantive points. The traditions of the common law remain quite strong. There is resistance to any changes that may impair the authority of Parliament leaving the judicial power independent but not the final arbiter of constitutional issues. A growing movement in favour of some form of written constitution is likely to become the focus of public debate. In its present form the constitution has proved adaptable to change while absorbing many influences from abroad including a continental approach to human rights. The European Union is likely to retain its overarching scrutiny of EU law and the English common law in many sectors is set to continue to adapt. Select Bibliography Alan, TRS, Law, Liberty and Justice: Legal Foundations of British Constitutionalism

Oxford: Clarendon Press, 1993.

56 Walter Bagehot, The English Constitution London, 1867 reprinted and edited by G.Phillipson Sussex Academic Press, Sussex: 1997. p.42.


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Anson, WR, The Law and Custom of the Constitution 4th edn Oxford: Oxford University Press, 1909.

Arndt, HW, “The Origins of Dicey’s Concept of the Rule of Law”(1957) 31 Australian Law Journal 117.

Arthurs, H, “Without the Law”: Administrative Justice and Legal Pluralism in Nineteenth Century England Toronto: University of Toronto Press, 1985.

Austin, J, The Province of Jurisprudence Determined (1832) HLA Hart (ed), London: London University Press, 1954.

Bagehot, W, The English Constitution 2nd edn London: Kegan Paul, 1905. Blackburn, R., and Polakiewicz,J., Fundamental Rights In Europe Oxford: Oxford

University Press, 2001 Blom-Cooper, Louis “Lawyers and Public Administrators: Separate and Unequal”

[1994] Public Law 215–35. Bogdanor, Vernon, The New British Constitution Hart: Oxford, 2009. Bradley, AW and Ewing, KD, Constitutional and Administrative Law 15th edn London:

Longman, 2010. Brazier, R, “It is a Constitutional Issue: Fitness for Ministerial Office in the 1990s” [1994] Public Law 431. Craig, PP, Administrative Law 4th edn Oxford: Oxford University Press, 1999. Craig, P, “Public Law, Political Theory and Legal Theory” [2000] Public Law 211. Dicey, AV, Lectures Introductory to a Study of the Law of the Constitution London:

Macmillan 1885. Dicey,AV “The Development of Administrative Law in England” (1915) 31 Law

Quarterly Review 148. Ewing, K and Gearty, C, The Struggle for Civil Liberties Oxford: Oxford University

Press, 2000. King, Anthony, The British Constitution Oxford: Oxford University Press, 2007. McAuslan, JPBW and McEldowney, JF (eds), Law, Legitimacy and the Constitution

London: Sweet and Maxwell, 1985. McEldowney, J.F., Public Law 3rd edition London: Sweet and Maxwell, 2000 Norton, Philip, The British Polity Longman: London and Essex 2010 Oliver, D and Drewry, G (eds), The Law and Parliament London: Butterworths, 1998, Pocock, JGA, The Ancient Constitution and the Feudal Law: A Study of English

Historical Thought in the Seventeenth Century revised edn Cambridge: Cambridge University Press, 1987.


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Sedley, Lord Justice, Freedom, Law and Justice 50th Hamlyn Lectures, London: Sweet and Maxwell, 1999.

Waldron, J, The Law, Theory and Practice in British Politics London: Routledge, 1990.

Waldron, J, “A Rights-Based Critique of Constitutional Rights” (1993) 13 Oxford Journal of Legal Studies 18.

Zweigert, K and Kotz, H, An Introduction to Comparative Law 2nd edn Oxford: Clarendon Press, 1994.

Materials B


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1. THE ENGLISH LEGAL SYSTEM: ENGLISH LAW-MAKING LEARNING OUTCOMES At the end of these lectures students should be able to:

(1) Consider the function of law (2) Discuss the processes and institutions that make English Law (3) Explain the different types of statute law (4) Discuss the stages in the Parliamentary legislative process (5) Examine the institutions and sources of European Law

The function of law In everyday life ordinary people are aware of rules and agreements that are honoured and obeyed. Some rules are obeyed because there is a strong moral function. In family life rules may be informally based and any sanction may be derived from the social behaviour of the family. In society as a whole, law is more formally defined than social relationships. Failure to obey a law carries with it a possible sanction or punishment. This may involve prosecution after the police have collected evidence and the Crown Prosecution Service agrees there should be a prosecution in the courts. Law, then, may be generally defined as a way of regulating human behaviour. The processes and institutions that make English Law Where does the power to make law come from? The power to make laws within England is based on the constitutional principles: the authority to make law is based on the constitution. The constitution defines the powers of law-making institutions within England. In the UK is unlike many countries, there is no written constitution. It is unwritten and often finds expression in the form of constitutional conventions. These are basically unwritten practices. In recent times, however, there has been increasing influence on the UKs constitutional arrangements and framework through the enactment of statutes. Some examples of Acts of Parliament that hold substantial implications for UK constitutional arrangements we will discuss in this module e.g. the Freedom of Information Act 2000, others we will discuss in future modules e.g. the Human Rights Act 1998. Other influences on the constitution enshrined in statute include:

(1) Membership of the European Union (the European Communities Act) [the British government must incorporate European law into British law The House of Lords


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decided that if EU law is in conflict with an existing Act of Parliament then this Act is to be regarded as of no effect57.]

(2) Devolution of Scotland and Wales (The Scotland Act 1998 and the Wales Act 1998) (3) Membership of the Council of Europe (established at the end of the Second World

War -the European Convention on Human Rights incorporated in to British law as the Human Rights Act 1998) and the United Nations

(4) Reform of the House of Lords (the majority of heredity peers removed from sitting in the Lords, further reform still being debated).

There are three pillars of the constitution, these are:

(1) The sovereignty of Parliament – Parliament is pre-eminent in law-making, ultimate authority rests with Parliament

(2) The rule of law – there must be a legal authority for all actions taken by people acting for the state

(3) The separation of powers – in order that there are checks and balances on each element of government there should be a separation between the executive (decision-making, administrative), legislative (law-making) and judicial (legal) parts of government. The intention is to ensure that no component of government becomes too powerful.

Until 1st October 2005 the Lord Chancellor had judicial functions serving as the head of the judiciary, executive functions as a member of Cabinet leading an important government department, and legislative functions in presiding over the House of Lords (as Speaker of the House of Lords). The Lord Chancellor is appointed by the Prime Minister and is, by convention, a peer. There has been considerable concern and debate about the Lord Chancellor’s wide powers and apparently contradictory roles within each of the three pillars of the constitution. In consequence of this debate, The Constitutional Reform Act 2005 has considerably reformed the judicial powers held by the Lord Chancellor in the following ways:

(1) His judicial functions are transferred to the President of the Courts of England and Wales. (The Lord Chief Justice will become President of the Courts).

(2) The President of the Courts will take responsibility for training, guidance and deployment of judges and he will represent the views of the judiciary to government (the executive) and Parliament (the legislature).

(3) A Judicial Appointments Commission has been established by the Act and has assumed the powers of the Lord Chancellor for the selection of candidates for the judiciary and their recommendation to the Secretary of State for Constitutional Affairs.

Under the 2005 Act an independent Supreme Court has been established separate from the House of Lords (previously the highest court in the land – see Role of Courts in English Law-making). The House of Lords will essentially no longer serve as the court in which the Law Lord’s (the most senior judges in England and Wales) hear cases, this will occur in the Supreme Court.

57 Factortame v. Secretary of State for Transport (No. 2) [1991] 1 AC 603


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As a result of this Act (2005) there is now a clear separation between the judicial pillar of the constitution and the executive and legislative pillars.

Institutions and law-making There are a number of key institutions in making law within the UK. We will discuss in particular the British Parliament and the courts (in the future). A brief summary of the EU institutions and law-making will also be provided. The British Parliament Parliament is the primary law-making body in the UK. Legislation derives its authority from the Parliamentary process that acts to scrutinize legislation before it enters the statute books. Both the House of Commons and the House of Lords contribute to this scrutiny of proposed legislation (Bills) introduced by the government of the day. Approximately 80 Bills become Acts of Parliament each year. Most new law enacted by Parliament is in the form of statute law. There are a number of types of statute law: Primary Legislation – these are Acts of Parliament. There are two types of Acts of Parliament: Public (General) Acts which constitute the bulk of Acts of Parliament and apply throughout the country; and Private (Local and Personal) Acts which are of much more limited and only apply to a particular local area, a specific institution or even to an individual. [Unlike Public Acts, which are considered by the full House of Commons, Private Acts are considered by House of Commons committees.] There a number of different types of Bills that will ultimately form Public General Acts. Government Bills form the bulk of the legislative business of Parliament. They essentially reflect the political objectives of the government and often the electoral manifesto promises made by the government. Based on the recommendations of law reform agencies e.g. the Law Commission, there are also Law Reform Bills. Consolidation Bills serve an important function as they are used to bring together related legislation that may be scattered between different Acts of Parliament. No new law is introduced in Consolidation Bills, but existing law is re-presented in a more accessible form. Consolidation Bills are passed through Parliament using a special procedure and do not require consideration by the full House of Commons. The final type of Bill is the Private Members’ Bill which is introduced by backbench Members of Parliament. There is a special procedure for the introduction of these Bills and very few reach the statute books. They may not involve the expenditure of government money. Even so they can have considerable impact e.g. David Steel introduced a Private Members’ Bill that became the Abortion Act 1967. Secondary Legislation – this consists of the statutory instruments i.e. regulations and orders, that supplement the primary legislation. About 3000 statutory instruments, in many thousands of pages of text, are made annually. They are made under the authority of specific Acts of Parliament. Regulations and orders are normally issued by the government department that sponsored the Bill and holds the remit relevant to the Act of Parliament. Statutory instruments are not subject to full Parliamentary scrutiny but are scrutinised by the Statutory Instruments Committee of the House of Commons. They must also be vetted by relevant Advisory Committees to government prior to being made.


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Tertiary Legislation – this consists of legislative instruments made by government departments under the authority of Acts of Parliament. They are not subject to Parliamentary scrutiny. For example, powers may be given to minister to issue instruments that are drafted as if they were legislation, have the force of law but are issued by the government department concerned. Soft Law - this consists of statements of good practice, codes of conduct, guidance notes etc. These again are made under the authority of particular Acts of Parliament. They may be subject to Parliamentary approval, but the vetting is not detailed. A relevant example to forensics is the Codes of Practice on police behaviour under the Police and Criminal Evidence Act 1984.


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Stages in the Parliamentary Legislative Process (1) Preparatory stages: government (party) policies developed e.g. in electoral manifesto etc. Consultations outside government with experts in area of proposals. Ideas for new legislation often raised in ‘Green Papers’. After initial consultation a firmer statement of policy objectives by government made in a ‘White Paper’. (2) The Queens Speech: sets out the legislative policies of the government, which is negotiated between ministers and decided by a committee of the Cabinet. The Queens Speech begins each session of Parliament. (Some Bills may now be carried forward to the next Parliamentary session if they ran out of Parliamentary time.) (3) Consultation: a Bill may be published in draft and circulated for comment to relevant parties prior to the Parliamentary passage of a Bill. Hearings: relevant Select Committees of the House of Commons and the House of Lords may call hearings on consultation papers and draft Bills. (4) House of Commons: (i) The presentation of the Bill in one of the Houses of Parliament, usually the House of commons. (ii) First reading, the House orders the Bill to be printed (formal stage). (iii) Second reading, the first opportunity for debate in the House of Commons. (iv) Committee stage, a Standing Committee of MPs closely scrutinises the Bill, clause by clause. The Committee considers amendments to the Bill. (v) Report stage, a report is made to the House of Commons on things that have happened to the Bill in Committee stage. (The government may try to undo changes at this stage and introduce its own amendments.) (vi) Third reading, a formal stage. The Bill is brought together with no further amendments. It then goes to the House of Lords, where a similar process is gone through. (5) The House of Lords: the passage of the Bill is essentially the same as in the House of Commons, although there are a few differences e.g. Third reading amendments can be made. (It is possible for the House of Lords to make significant amendments to Bills and they can delay a Bill, other than a revenue Bill, for up to a year [Parliament Act 1911]. Ultimately, the will of the House of Commons will prevail as the elected House.) Jackson v Attorney General 2006. (6) Agreement between the Lords and the Commons: after the Bill has gone through all the above stages there must be agreement between the House of Commons and the House of Lords on the final text of the Bill. (7) Royal assent: Royal assent is granted and the Bill becomes an Act of Parliament. (The UK is a constitutional monarchy). This is a formal stage. Once an Act completes this stage it will still not be effective. Most Acts require administrative changes/preparation before it is possible for the Act to become operational. As a result the Act becomes effective after a period of time when a special statutory instrument called a Commencement Order is made e.g. the Human Rights Act 1998 did not come into force until 2000. You will find debates from all the parliamentary stages described above published in Hansard (The Official Reports of the Houses of Parliament available at


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http://www.parliament.uk/hansard/hansard.cfm). [Occasionally judges in the higher courts (discussed in future) will consider debates on specific parts of an Act in order to help determine Parliaments’ intention in that part and as an aid to making a judgement.] Amending Legislation There are a number of ways that an existing Act of Parliament can be amended. These are as follows:

(1) A new Act of Parliament - altering an existing Act; (2) A ‘Henry VIII clause’ – a special statutory instrument to an Act that avoids having to

go through Parliament. (Not viewed positively.) (3) The Deregulation and Contracting-Out Act 1994 – allows for any unnecessary

regulatory loads on business and individuals to be reduced. Ministers can lay orders before Parliament that are essentially amending legislation. (There are tight limits and safeguards on this facility.)

(4) The Regulatory Reform Act 2001 (building on the Deregulation and Contracting-Out Act). Again based on the need to remove burdens and must be shown to be based on reducing regulatory burdens. It provides wide powers to Ministers to amend legislation through laying orders before Parliament. This Act should allow more extensive changes to Acts of Parliament than the Deregulation and Contracting-Out Act.

EUROPEAN UNION Institutions The formulation of EU law and the establishment of its aims and objectives are undertaken by a number of institutions. There is: • A democratically elected Parliament, which has the power to request that the Commission

submits proposals on matters considered by the Parliament to require Community action. The Parliament may also veto some Acts.

• A Council representing the Member States and composed of government ministers, a European Council of the Heads of State or Government. The Council has wide decision-making powers. It lays down budgetary requirements and concludes treaties on behalf of the Community. It can require the Commission to formulate policy and legislation. It is the final arbiter of the acceptance of legislation (often by qualified majority voting, unanimity is required on taxation and where the Council wishes to deviate from the Commissions proposals).

• A Commission which acts as custodian of the EU treaties. It may set out proposals for Community policies and for Community legislation, and submit the proposals to the Council of Ministers. Legislation is published in the Official Journal of the European Communities (OJ). The Commission functions to ensure that Community law is obeyed and may bring proceedings to challenge the legality of actions taken by Member States or by Community institutions.

• A Court of Justice that functions to interpret and insure application of Community law. Judges to the court are appointed by Member States.

• A Court of Auditors to monitor financial management by the Community.


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Sources of Community Law The Community institutions acting together and in accordance with the requirements of the treaties may make regulations, issue directives and make decisions.

(1) Regulations – are generally applicable, are binding on Member States and apply automatically. They require no national measure for implementation.

(2) Directives – binding on a Member State when implemented by the Member Sate to whom it is addressed. They do not take effect until a Member State has taken measures to implement them. Invariably Directives include a timetable for the implementation of its various parts, which a Member State is required to abide by or the Commission may instigate legal action.

(3) Decisions – a decision may be applicable to a Member State or individuals or Community institutions. It is binding but confined to the Member State etc it specifically addresses.

Further reading Partington, M. (2003) (2nd ed) An Introduction to the English Legal System. Oxford University Press. Chap 2 and 3 2. THE JUSTICE SYSTEM, INSTITUTIONS AND REFORM LEARNING OUTCOMES At the end of the lecture students should be able to:

1. Discuss the role of selected institutions in the administration and development of legal services and the legal system within England and Wales.

2. Discuss the Woolf reforms of the civil justice system and on-going reforms in the criminal justice system.

BACKGROUND


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The administration of justice involves contributions from a number of government departments, the judiciary and the Legal Services Commission. The government provides the funds for running all the elements that go to the criminal justice system:

1. The police and the Crown Prosecution Service 2. The court services and the judiciary 3. The prison and probation services

The government is substantially involved in the development of the legal system and how legal services are delivered. There is an inevitable tension between providing legal services and the control of public expenditure. Striking a balance between the costs of the criminal justice system and ensuring value for money in the benefits that accrue from any increased expenditure is challenging. There are a number of different institutions that contribute to the development of the legal system. The Department of Constitutional Affairs, the Home Office, and the Legal Services Department are particularly important. THE JUSTICE DEPARTMENT The JUSTICE DEPARTMENT is the key government department involved in the development of policy related to the legal system. The Secretary of State/ Lord Chancellor is the head minister for the department. The JUSTICE DEPARTMENT was established as part of the recent constitutional reforms, it was previously the Lord Chancellor’s Department. The responsibilities of the DEPARTMENT relate particularly to the justice system, its development and efficient delivery. It also has responsibility for the policy and the development of the law and reform related to:

1. Family law 2. Property law 3. Election and referendum law 4. Freedom of information, data protection and data sharing 5. Defamation 6. Constitutional reform (reform of the House of Lord’s in particular)

In terms of overseeing the legal system and developing the institutional framework for the legal system the role of the JUSTICE DEPARTMENT is paramount. The Department is instrumental in policy development for:

1. Court procedures for the criminal, civil and family justice systems 2. Tribunals and the administrative justice system 3. Judicial appointments and training 4. Delivery of legal services and legal aid

This is a time of significant development in the English legal system with major changes in the way the justice system is administered and run. These changes are intended to improve the delivery of the legal service in the face of a burgeoning caseload.


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The changes began with the Woolf reforms of the civil justice system. These were based on a report by Lord Woolf on Access to Justice (1996). His report addressed problems related to the civil justice system that included:

o A slow and costly process o Complex court procedures o Unenforceable court decisions

Lord Woolf, in addressing these problems sought to ensure that cases could be brought to court efficiently and that the cost is proportionate to the amount in dispute. He was firm that bringing a case to court should be a last resort and that alternative forms of dispute resolution should primarily be used. Matters that did not need to be resolved by a judge should not be brought to court. The government accepted the changes to the civil justice system and enacted the Civil Procedure Act 1997. The reform of the civil justice system under the Civil Procedure Act 1997 involves two main elements:

1. Track allocation: cases are allocated to a track depending on the complexity and size of the case. There are the ‘small claims track’ (simple cases up to £5000), the ‘fast track’ (£5000 and £15000), and the ‘multi-track’ (complex cases).

2. Case management: after track allocation the judge responsible for the case manages the timetable for the case (up to the reforms the parties involved legal teams had largely controlled the timetable for the case).

Both these reforms are intended to speed the passage of cases through the civil justice system and to ensure that cost remain in proportion to the value of the case. Encouraging (not compulsory) cases to go to alternative dispute resolution (arbitration, mediation or early neutral evaluation) has the effect of reducing the caseload going to court. The Woolf reforms also had a substantial impact on the use of experts. The Civil Procedure Rules, under the Civil Procedure Act 1997, provide that:

o Experts have a duty to help the court on matters within their expertise o This duty overrides any obligation to help the person who has instructed them or has

paid them o Experts can only give evidence with the courts permission o Instructions to experts are no longer privileged and must be disclosed in their report.

There is also major reform under way in the criminal justice system following a number of reports (The Auld Report, 2001; The Halliday Report, 2002) and the publication of a White Paper on criminal justice in 2002. The Courts Act 2003 implements many of the proposals in the Auld Report. Some of the more significant changes are as follows:

1. Administration of the criminal courts. The division in administration of the criminal courts between the Court Service and the Magistrates’ Court Service has been abolished and they have been merged into Her Majesty’s Court Service (an executive agency). The Lord Chancellor has a general statutory duty to administer the Supreme


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Court. (The Supreme Court established in October 2009) This is intended to unify the administration of criminal courts. Magistrates’ Courts Committees (see below) have been replaced by Court Administration Councils to ensure the link to local communities for magistrates’ courts. Funding of the courts has been unified.

2. Lay magistrates. (see below) Lay magistrates are appointed to a single national jurisdiction, although they are normally assigned to a particular local justice area (newly formed). The single national jurisdiction allows flexibility in the use of JPs in the future.

3. Judges. Greater flexibility in the use and deployment of judges is allowed. District judges (see below, Magistrates’ Courts) have some of the powers of Crown Court judges. All the powers of the JPs have been given to higher court judges.

4. HM Inspectorate of Court Administration. This Inspectorate inspects and reports on the work of the Crown Court. It also inspects the magistrates’ courts (replacing the HM Magistrates’ Courts Service Inspectorate) (see below). It reports on the Children and Family Courts Advisory and Support Service (CAFCASS) established in 2001 under the Criminal Justice and Court Services Act 2000.

5. Procedural Rule Committees. A Criminal Procedure Rule Committee and a Family Procedure Rule Committee has been established. Both will work in a similar way to the Civil Procedure Rule Committee for the civil justice system. The first Criminal Procedure Rules (2005) developed by the Criminal procedure Rule Committee came into force in April 2005. These rules have been designed to change and improve the management of criminal cases (as the Woolf reforms for civil cases). The Criminal Procedure Rules 2005 consolidate for the first time the rules for the practice and procedure of the criminal courts i.e. the Court of Appeal, the Crown Court and the magistrates’ courts, into one set of Procedure Rules.

Reforms are also underway in the tribunal system and the administrative courts. It is a time of considerable change and development in the justice systems within England and Wales. HER MAJESTY’S COURT SERVICE Her Majesty’s Court Service is an executive agency that has the responsibility of running the court system and the magistrates’ court system and provides administrative support to the judiciary. It was established in 2004 by the DCA. It is also responsible for the implementation of policy related to the court and magistrates’ court systems developed by the DCA. The function of Her Majesty’s Court Service is to:

1. Deliver defined standards of service to those using the courts. 2. Ensure administrative efficiency – prompt and fair resolution of issues, minimizing

costs, and in the civil courts recovering costs of the court services from the parties involved in disputes.

3. Implement reforms for the administration of the courts, importantly including computerization. Computerization should facilitate the tracking of cases through the system avoiding unnecessary delay. It has launched a web site called XHIBIT, which provides up-to-date information on the progress of selected cases under the criminal court jurisdiction. Greater use will continue to be made of electronic databases reducing the amount of paperwork linked to cases.

MAGISTRATES’ COURTS


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The DCA develops policy for the magistrates’ courts, which is implemented at local level by Court Administration Councils (CACs) in local magistrates’ courts. The Magistrates’ Court Service in England and Wales has been merged into Her Majesty’s Court Service in 2004. There are two types of magistrates’ courts:

1. The lay justices’ courts (the majority) – made up of three voluntary lay magistrates (i.e. with no special legal qualifications) called Justices of the Peace (JPs). JPs sit and determine criminal cases. They receive advice on law and procedure from the Justices’ Clerk (a court official with legal training) who guides the JPs on their powers.

2. The District judge magistrates’ courts – District judge magistrates (previously called stipendiary magistrates) sit on their own in these magistrates’ courts. They are legally qualified. They were previously limited to sitting in government nominated magistrates’ court, but can now sit in any magistrates’ court allowing more flexibility with judicial man power.

The justices’ chief executives manage the running of individual magistrates’ courts. The magistrates are appointed to a single national jurisdiction but may, normally, only hear cases in particular local justice areas. Recent reforms have seen the government setting performance standards partly in the context of controlling any delays, but also in the treatment of the parties involved in cases. The aim is to improve efficiency and ensure common standards across all the magistrates’ courts. The Magistrates’ Court Inspectorate (established in 1994) has been subsumed into Her Majesty’s Inspectorate of Court Administration (1st April 2005). It acts to monitor and inspect the performance of the CACs. CACs set there own targets and performance indicators, e.g. fine enforcement, for the magistrates’ courts they oversee. The Lord Chancellor’s Advisory Committees, operating at local level, oversee the recruitment, selection and short-listing of lay magistrates. The Committees advise the Lord Chancellor, who then appoints the magistrates. THE LAW COMMISSION The Law Commission was established in 1965. Its remit is to review the law in England and Wales. It is independent of government but falls under the DCA’s responsibilities. The Commission is composed of a High Court judge, who chairs the Commission, 4 other commissioners and legal teams in support. The Law Commission reviews the law on the basis of a series of programmes/projects. These originate from the Commission itself or government departments may request specific areas of legislation to be considered. The Commission considers the existing law and if appropriate the experience in other countries. It will then prepare a consultation paper outlining the current law and proposed changes for comment. After the consultation period the Commission will consider the responses and set out its recommendations for law reform in the area and will often organise the drafting of a Bill based on its recommendations. If there is parliamentary time the Bill will then enter the normal process for the passing of legislation through parliament. The majority (approximately 75%) of the Law Commissions proposals for reform do not reach the statute books. The Law Commission also works to simplify complex areas of law through codification and to repeal legislation if it is not longer of use.


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Codification of the law (embedding law in a series of statutory codes) has been one of the aims of the Commission. It is seen as having the advantages of:

o Making law more accessible to the public o Making law easier for the courts and parties involved in cases to understand

Since 1968 the Law Commission has been working on a project to codify the criminal law and as a result of this programme of work produced a Draft Criminal Code in 1989. No action was taken by government to make the code into legislation. The on-going reform of the criminal justice system have brought the creation of a criminal code higher on the agenda of government. THE HOME OFFICE The Home Office has major role in the policy and initiatives affecting the criminal justice system. The influence of the Home Office is throughout the criminal justice system, from the police to the courts and to the prison and probation service. Its remit is far wider than the DCA and stretches to the development of criminal law through statute. Its remit includes:

1. efficiency in the police forces (e.g. the creation of the National Crime Squad and the National Criminal Intelligence Service.)

2. responsibility for development of the criminal law through statute 3. policies on crime reduction 4. anti-discrimination legislation race, religion, sex, disability) 5. immigration and nationality 6. drugs policy

LEGAL SERVICES COMMISSION The Legal Services Commission, the successor to the Legal Aid Board, was established under the Access to Justice Act 1999. The Legal Services Commission runs 2 schemes:

1. The Criminal Defence Scheme. This scheme has four main components: (i) providing criminal defence services for individuals in police stations and Magistrates’ courts, through the use of private solicitors under contract; (ii) providing duty solicitors for police stations and Magistrates’ courts in a national scheme; (iii) managing individual high cost case contracts with defence solicitors; (iv) providing direct services to the public in the Public Defender Service.

2. The Community Legal Service. The public can obtain legal advice from a variety of voluntary sources including citizens’ advice bureaux, law centres and other advice agencies. The Community Legal Service is intended to develop these miscellaneous agencies effectively into a national legal service. This service is limited annually in the availability of funds and is not demand led (compared to legal aid in the past) and there is a means test and merit tests of potential clients. There are specified areas of law for which services are provided and specific exclusions, i.e. there is not a universal coverage for the provision of legal advice.

REFERERENCES AND FURTHER READING


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The Department of Constitutional Affairs (1998) Modernising Justice: The Government’s Plan for Reforming Legal Services and the Courts. (Cm 4155). Stationary Office, London. The Auld Committee (2001) A Review of the Criminal Courts in England and Wales. Stationary Office, London. Justice for All (Cm 5563). Stationary Office, London. Partington, Martin (2003) The English Legal System (2nd ed), Oxford University Press, Oxford. Chapters 4 and 10. The Supreme Court website. 3. CRIMINAL TRIAL OUTLINE LEARNING OUTCOMES At the end of these lectures students should be able to:

(1) Describe the Magistrates’ Courts and the Crown Court (2) Discuss issues related to the two different trial types (3) Explain the meaning of indictable and summary hearings and offences that

may be heard in both ways (4) Consider the role performed by judges and jury in the Crown Court and how

this may relate to the role of a forensic scientist as an expert witness. INTRODUCTION


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The central element of the criminal process is the trial. The way a crime is investigated by forensic scientists and by the police (and other investigative agencies) is dictated by the possibility of a trial occurring. The rules that govern trials, then, have important consequences not only for the Crown Prosecution Service in deciding on prosecutions but also for the investigation crimes. MAGISTRATES’ COURT AND CROWN COURT In Forensics and the Law we have already considered the Criminal Justice System and the criminal court structure (see notes). We will now consider issues relating to the functioning of the Magistrates’ Court and the Crown Court. There are, then, two levels of courts:

(1) The Magistrates’ Courts – The least serious offences (summary offences) are heard here. In reality this amounts to >95% of criminal cases. In these courts lay magistrates’ or a judge sitting alone hear the cases. The professional judge sitting alone is called a District Judge; has legal qualifications and is paid. Lay magistrates’ are part-time, unpaid and normally sit for half a day per week. There are usually three lay magistrates’ present at each court sitting and the clerk to the court advises on legal issues (see Forensics and the Law notes).


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Source: The Magistrates Association (2) The Crown Court - More serious offences (indictable offences) are heard here.

This amounts to less than 5% of criminal cases. The trial is by a professional judge sitting with a jury (see Forensics and the Law notes).

Debate about the two types of criminal trial The fact that there are two levels of court is a reflection of limited resources and that accurate decisions (an acquittal or guilty verdict) are essential in more serious cases. There should, of course, be accurate decisions in the case of magistrates’ courts. It is important that each case is fully considered and that there is no undue bias towards conviction. There is no doubt that the conviction rate is higher in the Magistrates’ courts than the Crown Courts.


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Prosecutions in the Crown Court and Magistrates’ Courts 2004 – 2005 Magistrates’ Courts Crown Courts Number of prosecutions 1,262,815 Number of successful prosecutions 943,000 72,000 % successful prosecutions 80.4% % unsuccessful prosecutions 19.2% 24.2% Figures from the Crown Prosecution Service Annual Report 2004-2005 It is unclear why the conviction rate is higher in the Magistrates’ Courts. Possible reasons include:

(1) It could simply be a true reflection of the number of guilty individuals in each court related to the different offences heard.

(2) The cases dealt with in each court have different characteristics. In the Crown Court cases are more complicated and have a mens rea element to prove (Mens rea means “guilty mind." A person must have the intent to commit the crime to be found guilty of the offence. The other basic requirement is proof of the guilty act (actus reus) which constitute the crime.) It is possible then that cases heard in the Crown Court are harder to prove.

(3) Crown Court trials may be fairer because of jury trial. Juries are fresh to the process and are not ‘case-hardened’ as may be the situation with the magistrates.

(4) The presence of a judge means that certain information about the defendant or case can be kept away from the fact-finder, avoiding undue influence on the fact-finder.

(5) Juries are more representative of the general population than magistrates and by their nature juries hold more debate before reaching a decision.

It is important to put this in the context that the majority of defendants plead guilty to the offence.


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Pleas on Indictable Offences (figures from 2002) Offence Pleaded guilty Violence against the person e.g. Causing death by dangerous driving Threat or conspiracy to murder

79% 75% 79%

Sexual Offences e.g. Rape Indecent assault on a male

61% 39% 69%

Burglary e.g. In a building other than a dwelling In a dwelling

94% 95% 94%

Theft and handling of stolen goods e.g. Theft from the person of another Theft from shops Handling stolen goods

92% 91% 94% 90%

Fraud and forgery 88% Criminal damage 89% Drug Offences e.g. Trafficking Possession

86% 84% 95%

Allocation of cases Since the Magistrates’ Courts and the Crown Court are so different the allocation of cases between them is an important issue. In fact there are also financial aspects to the allocation of cases – Crown Court hearings are 10 times more expensive. Case allocation is primarily based on the type of offence (see notes Forensics and the Law). There are three types of offence:

(1) Summary offences – The least serious offences, only tried in Magistrates’ Courts.


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Source: A.J. McKee (2) Offences heard on indictment – The most serious offences, only heard in the

Crown Court. In fact, under the Criminal Justice Act 2003, there is the potential for certain offences e.g. serious and complex fraud, to be heard in the absence of a jury in the Crown Court. This is controversial and implementation will only occur if there is a further Parliamentary vote. It is also unclear how many judges would be involved in such a hearing but probably more than one.

Source: A.J. McKee


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(3) Offences triable either way – the largest category including many common

offences e.g. theft, assault. The decision as to where the case is to be heard is made by the magistrates at a ‘mode of trial hearing’. The decision is generally based on the seriousness and complexity of the case. Crown Courts have greater sentencing powers and more elaborate fact-finding procedures for complex cases. There are Practice Directions, under the Criminal Procedure Rules 2005, that aid with and set guidelines for the decision in the ‘mode of trial hearings’. Prior to the decision being made the defendant has to indicate their plea i.e. guilty or not guilty. If guilty and the magistrates have sufficient sentencing powers they will be prepared to deal with themselves. The Criminal Justice Act 2003 has increased the sentencing powers ( from a maximum custodial sentence of 6 months to 12 months) of magistrates so that more cases can be heard summarily. There is, in fact, a general presumption in favour off a summary trial. The defendant can opt, however, to be tried in a Crown Court even if the magistrates decide to try the case summarily.

Source: A.J. McKee An important issue surrounds the increased sentencing powers of the magistrates. An accused if found guilty may be given a custodial sentence of up to 12 months (soon to be increased to 18 months) in the Magistrates’ Court, of course depending on the seriousness of the offence. Given the significance of a custodial sentence it is important that the hearing is fair and that due process is followed. As indicated above there is some basis for a debate on this issue. The government is at present considering bringing legislation forward to allow the police to issue on-the-spot fines for minor offences avoiding the necessity for a


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hearing in any court. It is interesting to consider problems surrounding due process if this becomes law. For example, one of the offences mentioned as appropriate for on-the-spot fines is shop lifting. This is actually regarded as a serious offence and can be heard on indictment. Forensic scientists and possibly SOCOs may give evidence in both the Magistrates’ Court and the Crown Court, most often in the more serious cases e.g. indictable offences or offences triable in either way. The Magistrates There are two different types of magistrates (see notes Forensics and the Law):

(1) Lay magistrates (2) Professional magistrates – used to be called stipendiary magistrates but now

called District Judges. There are 100 District Judges in England and Wales, about 50 sit in London where they hear the majority of cases.

There are significant differences between District Judges and Lay magistrates. District Judges:

(a) Have legal training and expertise and, therefore, tend to be more respected by court users.

(b) Work more quickly than Lay magistrates with fewer adjournments. (c) Sentence more harshly and tend to give more custodial sentences.

Lay magistrates:

(a) Are more representative of society i.e. race and gender. In terms of court costs there is probably little difference between Lay magistrates and District Judges. Given the differences between Lay magistrates and District Judges it may be surprising that there is no policy with regard to the allocation of cases between the two types of magistrates. For example, it might be more appropriate for the more serious cases to be heard by a District Judge. It should be remembered, however, that the District Judge sits alone and there must be a question over a single decision maker deciding cases especially given the possibility of custodial sentences of up to 12 months (soon to be up to 18 months). It has been suggested that a mixed panel of magistrates i.e. a District Judge sitting with two Lay magistrates, might be appropriate in more serious cases or perhaps more generally for all hearings in Magistrates’ courts Judge and Jury Trial in the Crown Court There is an important distinction between a hearing in a Magistrates’ Court and in the Crown Court. For a forensic scientist this is an important distinction that should be remembered when giving evidence.


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In a Magistrates’ Court the magistrates are responsible for both questions of law and for the finding of fact. In the Crown Court these functions are divided between the judge and the jury. It is primarily the jury that finds fact, while questions of law are the remit of the judge. The judge, however, does have a number of other roles that may involve some assessment of the facts:

(1) If the judge believes that the case is sufficiently weak on the basis of law or

fact then he may order or direct the jury to acquit. (About 33% of acquittals are on this basis). The judge’s decision for acquittal is based on deciding ‘if evidence to prove any element of the prosecution case is lacking’ (this may involve evidence provided by forensic scientists) or ‘where there is some evidence but it is of a tenuous character’ (leading case Galbraith). The latter reason is more problematic and may for example involve questioning the reliability of witnesses (potentially expert witnesses such as forensic scientists or even the police) and judges may be less likely to stop a case on this basis e.g. potentially questions witnesses integrity. There are a number of examples where direction to the jury is applied under specific legislation i.e. the Criminal Justice Act (2003) requires the judge to order an acquittal where the prosecution is based on an out of court statement that is thought unconvincing; under PACE (Section 76) a confession can be excluded if it is thought not to be reliable.

(2) The judge provides a summing up at the end of a trial on the basis of the facts

of the case. Certain facts that the judge considers important in deciding the case will be emphasized to help the jury in their deliberations. This summing up should not be one sided, but balanced. The judge will draw attention to suspect evidence or provide some direction on the inference that should be drawn from facts. (See Standard Directions, Judicial Studies Board).

A further role performed by the judge is particularly important for a forensic scientists acting as an expert witness. The judge makes factual evaluations when deciding if evidence is admissible or not. The forensic scientist’s contribution to a trial is, of course, on fact i.e. establishing the facts of a crime and the identity of the criminal(s). Some issues related to the admissibility of evidence will be dealt with in future lectures.


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REFERENCES Ashworth, A & Redmayne, M (2005) The Criminal Process (3rd Ed) pages 297-314. Department of Constitutional Affairs Criminal Procedure Rules 2005 available at www.dca.gov.uk/procrules_fin/contents/practice_direction/pd_consolidated.htm McKee, A.J. Criminal Justice in England and Wales in International Encyclopedia of Justice Studies available at www.iejs.com/united kingdom/criminal_justice_in_england_wales.htm The Judicial Studies Board Crown Court Bench Book Specimen Directions Aug 2005 available at www.jsboard.co.uk/downloads/specimendirections_aug05.doc The Magistrate Association at www.magistrates-association.org.uk CASES

Galbraith [1981] 1 WLR 1039


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4. CRIMINAL TRIAL APPEALS LEARNING OUTCOMES At the end of these lectures students should be able to:

(1) Discuss the criminal appeals system (2) Consider the rights of the defence and the prosecution to appeal (3) Discuss the role of the Court of Appeal and factors that may influence their decisions (4) Briefly examine the Criminal Cases Review Commission

Appeals The English legal system is a common law system.Inherent in this system is that the superior (appeal) courts have the ability to review the case law developed by the lower courts, this is achieved through appeals. Appeals give the higher courts some control over the activities of the lower courts. Appeals, however, have another important function since they give an offender or litigant the ability to challenge the verdict of a court. Appeals may either revolve around questions of law or questions of fact. In reality few appeals are based on challenging fact or introducing new evidence. Thus forensic scientists are rarely involved in appeals cases. None-the-less there have been a number of high profile miscarriages of justice when the finding of fact and the forensic evidence have been found unreliable on appeal. The ‘Birmingham Six’ and the ‘Guildford Four’ cases brought a great deal of media attention to the integrity of forensic scientists and their relationship with the police. The response to these miscarriages of justice brought considerable pressure for the accreditation and registration of forensic scientists in order to bolster public confidence in forensic scientists. The Criminal Appeals System Both the prosecution and defence can appeal a verdict, although prosecution appeals are more restricted than those of the defence. There is the right to appeal, by either the defence or the prosecution, against a decision made in a Magistrates’ Court. The appeal may be:

1. On fact by the defence (only in the case where the accused has pleaded not guilty). In this case the appeal is heard in the Crown Court before two judges and a magistrate. This form of appeal is unique because it will involve a full rehearing of the case. The witnesses, including any forensic scientists who contributed evidence as an expert witness, will have to present their evidence again. Any statements/reports made by forensic experts submitted at the original hearing will be resubmitted to this hearing. The sitting judges and magistrate will assess the re-heard evidence.

2. On law by the defence and the prosecution. Appeal in this case is from the

Magistrates’ Court to the Divisional Court on the basis of ‘case stated’. The Magistrates’ supply a statement of the facts of the case as they found them and their legal conclusions. The Divisional Court makes it decision on the basis of this statement.


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It is also possible for the defence and prosecution to appeal a decision in the Magistrates’ Court through judicial review. This will be heard by the Administrative Court. Such appeals are rare and only allowed if the legal issue is considered to be of public importance.

The rate of appeal by the defence is very low from the Magistrates’ Court, less than 1% of those found guilty appeal the verdict. In fact in the majority of cases the defendant will plead guilty (though this does not necessarily imply their guilt, there are a variety of reasons for a guilty plea). Approximately 42% of these appeals are successful or have the sentence varied. Only about 0.4% of dependents appeal on the basis of the facts of the case (i.e. where evidence statements by a forensic expert or oral evidence by the expert might be involved). Appeals are also from the Crown Court if the case has been heard here first i.e. the court of first instance. Again the appeal can be by either the defence or the prosecution on the grounds of fact or law (most commonly on the grounds of error in the judge’s summing up). The prosecution rights of appeal are actually fairly limited. Appeal is to the Court of Appeal. Further appeal from the Court of Appeal will be heard by the Supreme Court. The rights of appeal of the prosecution have been extended in recent years by a number of pieces of legislation:

1. The Criminal Justice Act 1987 allowed appeal by the prosecution against some pre-trial rulings in serious fraud cases. The Criminal Procedure and Investigations Act 1996 extended this right of appeal to long or complex cases.

2. The Criminal Procedure and Investigations Act 1996 gave the prosecution rights to

appeal against an acquittal in cases where jurors or witnesses had been threatened. (‘Double jeopardy’)

3. The Criminal Justice Act 2003 allows appeal by the prosecution on rulings on points

of law made by the judge during the trial.

4. The Criminal Justice Act 2003 allowed prosecution appeal against acquittal in serious cases if significant new evidence (including forensic evidence e.g. DNA) emerges after the trial. (‘Double jeopardy’).

Leave to Appeal It is important to remember that appeals are in fact very restricted and generally discouraged. Appeal is not an automatic right and prosecution and defence have to seek leave to appeal either from the trial judge or from the Court of Appeal. In the case of a defence appeal on the basis of fact from the Magistrates’ Court to the Crown Court there is no need to seek leave to appeal, but the fact that the Crown Court has the power to increase a sentence tends to discourage these appeals. There is a similar disincentive to appeal from the Crown Court for the defence. Although the Court of Appeal cannot increase sentence, there may be a similar effect. It takes several


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months for an appeal to go to the Court of Appeal during which time the defendant will have to remain in custody. The Court of Appeal has the power to rule that this time in custody is not subtracted from the length of sentence (the loss of time rule). (Set out in Court Practice Directions). Both these powers that might result in a lengthening of a sentence as a result of appeal act to discourage appeal. The argument in favour of dissuading the defence from appeal rests partly on the need for the courts to avoid being overburdened by cases that have no merit. On the other hand a defendant is discouraged from pursuing his/her legal rights by the potential for their sentence being extended if the conviction is upheld. It seems preferable to restrict the rights of appeal through the mechanism of seeking leave to appeal. This may be a more rational and fair way of avoiding any overloading of the courts by appeal cases without merit. The process of obtaining leave to appeal works as follows: A convicted defendant must obtain leave before his appeal will be heard by the Court of Appeal. This can be through one of two routes –

(i) Leave to appeal can be obtained from the trial judge. This is the least common route since the basis for an appeal is often a criticism of the judge.

(ii) Application to the Court of Appeal for leave to appeal. This is heard by a single judge. If unsuccessful the application can be renewed and in this case a panel of two or three judges will consider the application in open court.

If the application is successful then the appeal will be heard before the Court of Appeal in a full hearing.

Appeals Allowed and Success Rate (based on figures 2003) Appeal stage Percentage of

cases Appeals against conviction from the Crown Court 4 Leave to appeal granted by a single judge 26 Leave to appeal refused by a single judge 74 Number of renewed applications to the Court of Appeal 46 Leave to appeal granted on renewed application 20 Overall success rate in obtaining leave to appeal 34 Successful appeals to the Court of Appeal after a full hearing 33 Overall successful appeals against conviction from the Crown Court i.e. original conviction quashed

10

Court of Appeal


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The Court of Appeal can quash a conviction that it finds at the end of an appeal hearing to be ‘unsafe’. The Court of Appeal, however, has a considerable reticence about overturning a decision made by a jury, which may result in appeals being unjustly dismissed. This has impacted on some notorious cases of miscarriage of justice, for example the Birmingham Six lost two hearings before the Court of Appeal, and the Guildford Four one appeal. There are a number of reasons for the Court of Appeal to be wary of overriding a decision made by a jury. These are:

1. The Court of Appeal only has access to the transcript of a case and unlike the jury will not have seen or heard the defendant and witnesses in the case. It reviews the case and only occasionally will hear fresh evidence.

2. The jury does not report reasons for its decisions. The Court of Appeal, therefore, has

no knowledge of the reasons underlying the finding of guilt.

3. The jury is central to the criminal justice system and considerable trust is placed on the jury in its decision-making. Allowing appeals raises the problem of questioning the ability of a jury to reach a correct verdict undermining the criminal justice system.

4. The Court of Appeal may have a general reluctance to overturn the decisions of lower

courts. Any criminal justice system needs a degree of finality in its verdicts, since the verdict is then supported as an authoritative ruling on disputed issues.

A Royal Commission on Criminal Justice (1993) argued strongly that the Court of Appeal should be readier to overturn verdicts than previously. This recommendation led to a number changes to the appeal system and to the ways in which miscarriages of justice were investigated. These changes were:

1. The Criminal Appeal Act 1968 (which sets the powers of the Court of Appeal) was revised by the Criminal Appeal Act 1995 to provide that the Court of Appeal

‘shall allow an appeal against conviction if they think the conviction is unsafe’

2. The changes to the 1968 Act also altered the powers of the Court of Appeal to hear fresh evidence. In general the Court is fairly unwilling to allow fresh evidence (including forensic evidence). There is the concern that the defence withholds evidence that could have been produced at the original trial to use as a basis for an appeal. As a consequence the right to present fresh evidence is not automatic. Under the 1995 Act fresh evidence should be heard where

‘necessary or expedient in the interests of justice’ depending on factors such as ‘whether there is a reasonable explanation for failure to adduce the evidence’ at the initial trial.


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Thus it must be clear that any evidence to be heard at appeal is indeed new and obtained after the original conviction. This, of course, includes any new forensic evidence or new interpretation of the evidence by a forensic expert. The introduction of fresh evidence essentially means that the appellant is claiming innocence based on the jury having come to a mistaken factual conclusion. If the Court of Appeal decides that the original conviction is unsafe the defendant (appellant) will not automatically go free. It is possible (since 1964) for the Court of Appeal to order a retrial in front of a new jury. This may not be practical if there has been a considerable lapse of time between the original trial and the appeal hearing. Since the changes were introduced to the appeal system after the Royal Commission report there has actually been a fall in the number of convictions that have been overturned by the Court of Appeal. There are two possible reasons for this:

1. The Police and Criminal Evidence Act 1984 (PACE) and the embedding of the Crown prosecution Service (CPS) (see notes Forensics and the Law) in the prosecution in the early 1990’s may have resulted in more robust prosecution cases.

2. Developments in the application of technology may also have had an influence. For

example, CCTV footage and also from forensic experts DNA evidence. There is further basis for appeal, which is a failure of due process at trial. In this case the conviction should be quashed whether the appellant is innocent or guilty. Due process appeals are dealt using the same framework as the appeals on the basis of fact, which is that (under the 1995 Act) the original conviction is ‘unsafe’. ‘Abuse of process’ is quite a narrow category for appeal including:

1. Where the defendant is entrapped 2. Where his case has been prejudiced by an undue delay between charge and trial 3. Where there is a case of disguised extradition 4. Where the prosecution has reneged on an agreement

That is in cases where the prosecutor’s conduct falls below acceptable standards. The Criminal Cases Review Commission It is clear from the figures that many defendants will not find their appeal successful; will not be given leave to appeal; or may not appeal. Indeed, there is a time limit on appeals (from the Crown Court this is set at 28 days) so that their right to appeal may have lapsed. At this stage the normal routes of appeal to the Court of Appeal have been exhausted. This may leave the possibility of an innocent person convicted and with no further avenues to challenge the guilty verdict. This is often described as a miscarriage of justice.


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However, this is not necessarily the end of the process and it may be possible to have the conviction referred back to the Crown Court or the Court of Appeal for further consideration. This may happen for example in the case of new evidence emerging. Before the Royal Commission Report the process for achieving such a referral was for the Home Secretary, on advice of civil servants, to refer the case back to the courts. This was considered unacceptable by the Royal Commission and on its recommendation a new body was established to consider such cases. This body is the Criminal Cases Review Commission (CCRC), which began to review cases in 1997. It investigates claims of miscarriages of justice, which are then referred back to the appropriate court. The procedure is as follows:

1. An application is made to the CCRC 2. The CCRC decides if the application is eligible 3. If eligible the application will be investigated possibly with the involvement of the

police 4. At the end of the process a referral may be made to the Court of Appeal 5. If referral is not made the applicant will be informed of the reasons for non-referral

and they will be invited to comment. Under the Criminal Appeal Act 1995 referral can only be made if The Commission consider that there is a real possibility that the conviction ….. would not be upheld The grounds that the conviction would not be upheld must include (unless there are exceptional circumstances): an argument, or evidence, not raised in the proceedings There have been a number of high profile cases considered by the CCRC which have been referred back to the Court of Appeal and resulted in the conviction being quashed e.g. the Sally Clark case. In fact there are many more cases that to do not engender press coverage. The statistics for the activity and outcomes of the work of the CCRC are shown below.

CCRC Case Statistics (to 31 December 2005)

Category Number of Cases Total applications 8343 Open cases 294 Actively being worked on 459 Completed Referrals

7590 (including ineligible) 303

Heard by Court of Appeal Quashed Upheld Reserved

252 178 73 1

Available at www.ccrc.gov.uk


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References Ashworth, A. and Redmayne, M. (2005) The Criminal Process (3rd ed) Oxford Uni Press. Pages 338 -368. Criminal Case Review Commission www.ccrc.gov.uk Court of Appeal practice directions – The Consolidated Criminal Practice Direction May 2005 available at www.hmcourts-service.gov.uk/cms/pdss.htm 5 .THE ROLE OF THE CIVIL AND CRIMINAL COURTS IN ENGLISH LAW-MAKING LEARNING OUTCOME At the end of these lectures students should be able to:

1. Describe and discuss the role of the courts in the development of the common law. 2. Examine the importance of the courts with regard to statutory interpretation. 3. Consider the development of the rules of procedure. 4. Describe other law-making bodies and the basis for their authority.

SOURCES OF LAW – THE COURTS We have discussed the legislation as a major source of law in England. Case law or judge-made law is another important source of English law. England is distinct from European countries in that English law is based on a common law system. This means that the contribution of judge-made law to the legal system is significant. In some areas of law judicial precedents are developed in advance of statutory principles. When statutes were passed in the 19th century they often enacted principles that had been developed by judges over many centuries. The doctrine of judicial precedence and the hierarchical structure of the courts are fundamental to English law and form the principles on which common law rests. The courts are also important because of their role in statutory interpretation i.e. interpreting Acts of Parliament. The courts also develop their own procedural rules. Judge-made law, with the exception of EC law, is inferior to and can be overruled by statute or delegated legislation. In the case of EC law the judgements of the Court of Justice of the EC are binding on Member States. The hierarchical structure of the courts


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There is a hierarchical structure to the courts in England (see Figures 1 & 2), which is a fundamental part of the common law. A hierarchical structure simply means that the courts vary in their seniority. The more senior the court, the more authority the court holds. The order of the authority of the decisions of the courts:

1. The House of Lords used to be the senior court in England and Wales. Since the Constitutional reform Act 2005 this is now the Supreme Court The decisions made by the Law Lords in the Supreme Court are the most authoritative.

2. Second in authority is the Court of Appeal. 3. Third in authority is the High Court. 4. Lower courts are not authoritative in terms of setting legal precedent and developing

the common law. The Doctrine of Judicial Precedence The doctrine of judicial precedence is fundamental to English Law. The doctrine involves application of the principle of stare decisis, which means like cases must be decided alike. A higher court e.g. Court of Appeal, is generally bound to follow its own previous decisions, and each court is bound to follow the decisions of a court above it. The Supreme Court (as the House of Lords) has allowed itself authority to alter precedence. This has occurred since 1996 and is rarely applied. It is possible, therefore, for the Supreme Court (previously the House of Lords) to decide that previous cases on which precedence was based were decided wrongly and their new decision will result in a change to precedence. In practice a higher court may overturn or reverse the decision of a lower court on appeal in the same case. Similarly a higher court may overrule a principle laid down by a lower court in a different case. It is possible for a court to distinguish a case on the facts or on the point of law involved. This is a useful device to avoid being bound by a decision which a court feels is inconsistent with the way the law should develop. Techniques in distinguishing cases provide the courts with the opportunity to re-think the law in the light of new facts or unforeseen consequences. The decision of a judge (or judges if more than one sitting i.e. in the Supreme Court – may have 5 judgements; the Court of Appeal – may have 3 judgements) involves the ratio decidendi and the obiter dictum.

o The ratio decidendi of the case is the principle of law on which the decision is based. o The obiter dictum (by the way) is where the judge raises the possibility in the

judgement that if the facts of the case had been different then a different decision might have been made. This is not precedent and is not binding in future judgements in other cases but can be used in legal future legal argument.

The courts and statutory interpretation Another key role performed by the courts in the development of the law is the interpretation of statutes. In this context they provide important clarification of the wording of statutes. There is a constant search for the meaning of words in statutes; the wording can sometimes be ambiguous. The interpretation of statute by the courts is important since it contributes to the implementation of statutory rules and regulations.


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The Human Rights Act 1998 has effectively increased the judges’ powers of interpretation. The courts not only interpret the meaning of statutes but, significantly, now test the content of a statute against the standards laid down under the Human Rights Act. The Human Rights Act embeds in UK law individual rights set out in the Articles of the European Convention on Human Rights. If judges find a statute with the Human Rights Act they may declare the statute incompatible with Convention rights. In such as case the statute i.e. the law, must be changed. The government seeks a derogation from the Convention on the grounds of national security. Judges use a number of different tools to help with statutory interpretation. Nowadays it is more common than in the past for courts to look at reports of Parliamentary debates in Hansard as an aid to interpretation. In fact this is one example of the judge-made law establishing procedural rules for the courts. The House of Lords (now the Supreme Court) in Pepper v. Hart [1993] 1 All ER 42 approved the use of Hansard as an aid to statutory interpretation. There are a number of rules or presumptions about how words in statutes may be interpreted that aid statutory interpretation. These are called the ‘principles of statutory interpretation’ and are as follows: The literal rule – is used to refer to the interpretation of words in a statute that seeks to give words their plain, ordinary or literal meaning. Reference may be made to the dictionary meaning of words. The golden rule – may be used to modify the literal rule to avoid any absurdity. If the words used in the legislation are ambiguous, the golden rule allows the court to avoid the absurdity and adopt the meaning that is suitable for the purpose intended rather than have an absurd outcome. The golden rule may also be used in preference to the literal rule. Where the courts decide that public policy requires an interpretation beyond the literal interpretation of the words, the golden rule may ensure effect is given to public policy. The mischief rule - allows courts to examine the law before the statute was made in order to ascertain the nature of the mischief which the statute was intended to remedy. The mischief rule allows the courts some discretion in finding the construction of the statute that best applies to the facts in the case. Ejusdem generis rule –normally courts give attention to the ejusdem generis rule, meaning that general words that follow particular words are limited in meaning to those of the particular words. In applying the rules of interpretation the court may read the statute as a whole to understand the overall context of the law. The courts follow certain presumptions when interpreting statutes:

1. Property rights or private rights are not impliedly interfered with unless there are very clear words.

2. The individual’s liberty is presumed not to be interfered with unless there are very clear words.


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3. Parliament is assumed not to have altered the common law unless the statute expressly makes this clear.

4. There are also presumptions that in a criminal offence there must be proof of the requisite intention or guilty mind before the accused may be convicted.

5. Statutes are generally presumed not to have retrospective effect. There is no hard and fast rule as to the rule of interpretation or presumption the courts may wish to follow. Courts exercise a discretion according to the context of the law and the facts of the case. The courts procedures As has been noted one of the roles performed by judges is the development of procedural law for the courts themselves. The functioning of the courts is determined by these procedures. Key procedural rules are:

1. The rules of procedure. These are set by the judiciary as members of Rules Committees. The rules are set under statutory authority. Practice Directions (set by the judiciary) supplement the rules of procedure.

2. The rules of evidence. These are particularly important in the context of expert

witnesses. The judiciary has had a significant influence on establishing what evidence can be considered admissible to the courts. There are rules set by statute for the admissibility of evidence, e.g. under the Police and Criminal Evidence Act 1984 and the Civil Evidence Act 1991.

3. The rules and practice of judicial review. Judicial review provides the judiciary

powers to review the actions of central and local government, Executive agencies etc, and the legislature. They can provide remedies in public law for any misapplication of the powers of public bodies. These rules are primarily developed through case law.

Law reporting The bases for the development of the common law are decisions in the higher courts and legal precedence, which is to be found in the judgements made by the courts. It is from these judgements that general legal principles can be drawn. The judges reasoned argument and judgement in cases also provide interpretations of statutory principles (see above). An essential part of establishing precedent is the publication of the judgements in law reports. Judges are not generally involved in selecting the cases that are deemed sufficiently significant to report. Editorial teams specifically responsible for the production of law reports perform this role. There are a number of different law reports dedicated to specific courts e.g. the Queens Bench Reports. A commonly used law report is the All England Law Reports, which is a generalist report covering all the courts and selecting the most important cases for the establishment of legal precedent. Since the end of the last decade, all the decisions of the Supreme Court (previously the House of Lords) are available on the internet. The Court of Appeal and the Administrative Court (administrative law) has specific judgements (selected by the judges) available on the Internet. Judgements from other cases are also available in this way.


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Other Law-making bodies Local and regional government Local government can make by-laws. These are made under the authority of specific Acts of Parliament. They only apply in the geographical area of the local authority. By-laws are effectively tertiary legislation. The Scottish Parliament (under the Scotland Act 1998) has powers to pass some primary legislation in specified areas. The Welsh National Assembly (under the Wales Act 1998) can pass some secondary legislation in specified areas. The Northern Ireland Assembly has powers to enact some primary legislation, although these powers have often been and are currently suspended because of the security situation and the peace process in the Province. Regulatory agencies There are a variety of regulatory agencies that can make rules i.e. regulations, under the authority of specific Acts of Parliament e.g. the regulator of the private utilities, the Civil Aviation Authority, the Financial Services Authority, and the Environment Agency. Further Reading Partington, M. (2003) (2nd ed) An Introduction to the English Legal System. Oxford University Press. Chap 3. FIGURE 1. OUTLINE OF THE CRIMINAL COURT STRUCTURE

Supreme Court ( 1st October 2009)

(Court of Appeal and High Court appeals heard. Leave to appeal needed.)


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High Court Court of Appeal Divisional Court Criminal (of Queens Bench Division) Division (Crown Court and magistrates’ (Crown Court courts appeals. Case stated, appeals heard. law only; or judicial review.) Appeal leave usually needed.) Crown Court (Magistartes’ courts of appeal. (As court of first instance for No jury. indictable offences. Jury trial) Appeal on fact and/or law. Generally not against acquittal.)

Magistrates’ Courts (Summary jurisdiction. Trial of summary offences and of indictable offences

triable summarily when accused consents and the courts thinks it expedient. No jury. Preliminary inquiry into indictable offences, committal for trial to the Crown Court.)


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FIGURE 2. OUTLINE OF THE CIVIL COURT STRUCTURE

(1st October 2009) Supreme Court (Court of Appeal and High Court appeals heard. Leave to appeal needed. President of the Court, Lords of Appeal in Ordinary [Law Lords] and Peers who hold or have held high

judicial office) [Leapfrogging appeal from High Court, leave needed

Court of Appeal Civil Division

(Master of the Rolls and Lord Justices of Appeal. High Court and County Court appeals heard. Appeals from the High Court)

High Court Includes

Queen’s Bench Chancery Family Division Division Division (Commercial court. (equity, trusts, (matrimonial Admiralty court. probate, tax, proceedings, Contracts bankruptcy divorce, Tort etc. Lord partnership. proceedings Chief Justice Vice-Chancellor related to and puisne judges) and puisne judges children. President Companies court and puisne judges) Patent court) Divisional Court Divisional Court (County Court appeals, (County Court appeals bankruptcy, land registration. and Magistrates’ Court appeals on family law matters) [Divisional court are at 26 provincial centres, High Court judges present continuously or for substantial periods.] County Courts (most civil litigation, Circuit judges) Magistrates’ Courts (committals of family proceedings)


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Materials C Judicial review and the courts The Common Law Tradition and Developments before the Human Rights Act 1998 A. An historical perspective of the development of judicial review Our starting point is to examine the role of judicial discretion in the public law field before the Human Rights Act 1998 and in the context of the common law world with case law decisions creating legal principles and doctrines incrementally. The common law tradition failed to recognise a specialist public law58. Instead of embedded rights the common law prioritized a system of remedies. The doctrine of parliamentary sovereignty was given legal priority over the common law and ensured that the courts offered few restraints on political power exercised through legislative authority. Dicey’s insistence in 1885 that England had no equivalent of droit administratif obscured many features of English administrative law

58 Much of administrative law was found in the development of governmental systems of administration and control. See: David Keir, The Constitutional History of Modern Britain 1485-1937 3rd edition London: Adam and Charles Black, 1948 pps.4-10.


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developed during the seventeenth and eighteenth centuries. He claimed that the ordinary law applied equally to public officials and ordinary citizens, and that relations between the state and citizen were not fundamentally different from those between individual citizens. He believed that the ordinary courts could control the arbitrary exercise of administrative power and provide redress for grievances. At the centre of his beliefs Dicey stressed his ideal of the rule of law: that the state possessed no exceptional powers, and that individual public servants were responsible to the ordinary courts for the exercise of their statutory powers.

A hallmark of the English administrative state was growth in the use of statutory inquiries. Their use developed in the nineteenth century as a response to the need to resolve an increasing number of conflicts between the individual and the state. From the eighteenth century the use of private Acts of Parliament to settle individual disputes was not uncommon, but a more sophisticated method of dispute resolution was developed in preference to this time-consuming and expensive procedure. The Inclosure Act 1801 adopted inquiry procedures, modelled on the procedure of a parliamentary select committee, to find facts and make decisions in matters concerning land disputes. An ad hoc commission of inquiry could be set up under the 1801 Act, as an alternative to the cumbersome private bill procedure. Another simplification came with the General Inclosure Act 1845, which modified the use of a private bill to allow a provisional Order in Council to be passed instead of a private Act, usually after a public inquiry or hearing. In the areas of public health and accidents at work, inquiries59 were commonly used to settle individual disputes.

English administrative law is distinctive in the development of a system of remedies by the courts rather than through formal written rights. At the discretion of the judges, the law on remedies was largely created out of solutions developed to meet particular problems. Developments were as eclectic in this field as in government administration.

English law developed the remedies of the writs of certiorari, prohibition, and mandamus to control administrative action. In the seventeenth century the importance of the remedies of certiorari60 and prohibition61 allowed the Court of King’s Bench to establish itself in the role of supervisor of local administration. Effectively, courts developed their role as filling the gaps left by legislation. In providing jurisdictional supervision of local government bodies, the courts incrementally extended their remit to all bodies that possessed statutory powers. The breadth of the powers delegated to various administrative bodies was a significant factor in judicial attitudes. The development of the role of justice of the peace (JP) was achieved with little central government control. The characterization of many functions of the JP as stemming from a judicial power, rather than from ministerial discretion, provided the courts with the main mechanism of review. The Law Reports in the first half of the nineteenth century provide many examples of growth in the jurisdiction of the courts to quash decisions with judicial characteristics that they were thought suitable for review. The concept of judicial review was thus elastic and flexible, empowering the courts. In R. v Local Government Board, when a local authority sought a prohibition against a central government department, Lord Justice Brett noted:

… whenever the legislature entrusts to any body of persons other than to the Superior Courts the power of imposing an obligation upon individuals, the

59 See: RE Wraith and GB Lamb, Public Inquiries as an Instrument of Government, 1971. 60 This is a remedy used to quash, by judicial review, any error of law on the face of the record. Originally conceived of as a royal demand for information, certiorari reviews that which has taken place. 61 Prohibition is similar to certiorari in scope, but intended to be used for prospective acts rather than past ones.


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courts ought to exercise as widely as they can the power of controlling those bodies.62

Remedies were always at the discretion of the courts, never automatic or of right. The writ

of mandamus63 could provide the performance of a public duty. This remedy permitted the courts to require obedience to the law.64 Mandamus was sparingly used but proved to be suitable for controlling breaches of the law by public officials. Compared to the other writs, of certiorari and prohibition, mandamus was not often applied for after the nineteenth century: Acts of Parliament required public officials to perform their duties, and when this performance was in doubt, the Act would give the public official sufficient discretion to avoid judicial review. A feature common to all the remedies described thus far was that procedural rules abounded as to the granting of a particular remedy for a particular type of grievance. The interpretation of each case depended on its particular facts. In order to secure a remedy the aggrieved citizen was required to show standing (locus standi), and this varied with the type of remedy sought. The complex rules of standing often left aggrieved litigants without an adequate remedy.65 In the case of certiorari, if the litigant was the aggrieved citizen in person then the courts had discretion to grant relief. However, if the litigant was a “stranger” — that is, someone not directly affected — then the courts imposed a stricter standard and considered whether the public interest required the case to be heard. Litigants were time-barred — six months in the case of certiorari. In the case of mandamus the applicant must show some special interest or sufficient interest in the claim.66

There were limits to the development of supervision offered by the courts. In the case of central government the courts accorded ministers many of the same protections given to the Crown. The rule that the Crown could do no wrong precluded an action in torts and also in special problem areas such as land repossession or where there was a breach of contract. Throughout the seventeenth and eighteenth centuries the development of the remedy of injunction in the courts of equity precluded the Crown.

In 1854, the Common Law Procedure Act extended a limited power to grant injunctions to the courts of common law, and eventually, in 1875, the power was conferred on all divisions of the High Court.67 However, these reforms did not change the rule that an injunction would not lie against an officer of the Crown, or the Crown. For similar reasons, mandamus could not lie against the Crown, because it was claimed to be incongruous for the Crown to command itself or for the King’s courts to command the Crown. Disobedience to the court’s authority was punishable as a contempt of court. This point reinforced the idea that the Crown could not be compelled to suffer such punishment. At common law, discovery of documents could not be ordered against the Crown.68

The prerogative writ of habeas corpus is of medieval origin. Its high reputation of affording strong protection for human liberty is associated with its development by the courts of common law as a means to assert and extend their own jurisdiction by securing the release of litigants and others from custody. In the seventeenth-century reform, the Habeas Corpus Act 1679 provided the principle that a person held on a serious criminal charge should be

62 (1882) 10 QBD 309 at p.321. 63 Bagg’s Case (1615) 11 CoRep 93b. 64 R v Secretary of State for War [1891] 2 QB 326. 65 G Shortt, Informations, Mandamus and Prohibitions, 1887 pp. 10-35. 66 R v Commissioners for Special Purposes of Income Tax (1888) 21 QBD 313. 67 Supreme Court of Judicature Act 1873. 68 This remained the law until section 28 of the Crown Proceedings Act 1947 came into force.


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released on bail or granted a speedy trial. In 1816 the Act included cases of civil detention, allowing the judges to inquire into the truth of the facts provided by the authorities when the writ was sought. Habeas corpus applied to a minister, or official acting on behalf of a minister, even if the person was a Crown servant. It applied to inferior courts or tribunals.

Through the development of remedies the courts evolved principles of review. The grounds for judicial review emerged case by case. Individuals aggrieved by the actions of government could complain about procedural errors or abuse. The nature of the complaint invariably raised questions about the fairness of the trial or hearing, the role of the judge and the quality of justice. Bias, either financial or through prejudice was raised as a means of questioning the standing and transparency of the decision and the role of the decision-maker. Taken together such objections were broadly referred to as breaches of the rules of natural justice. Natural justice had two essential qualities: first, the individual should receive adequate notice of the charge and an adequate hearing (audi alteram partem); second, the adjudicator of a dispute, whether a judge or a tribunal, should be unbiased (nemo judex in sua causa). A wide variety of disciplinary proceedings in clubs, associations and trade unions were included in the ambit of the rules of natural justice. In 1863, in Cooper v Wandsworth Board of Works,69 Erle CJ applied the principle that everyone was entitled to a hearing when their property rights were interfered with, notwithstanding the absence of any express statutory provision to that effect under the Metropolis Local Management Act 1855. The plaintiff took an action in trespass against Wandsworth District Board for demolition of his house. No opportunity had been given to the plaintiff to state his objections. The Court of Common Pleas held in favour of the plaintiff.

Judicial review had, by the end of the nineteenth century, developed sufficiently for Dicey70 to acknowledge that administrative law did in fact exist in the law of England despite his early opposition. Remedies were sufficiently developed by the courts to provide the aggrieved person access to the courts on a wide range of grounds. Since the beginning of judicial review the courts had exerted control over the discretion exercised by tribunals and agencies.71 Natural justice provided the basis of fair adjudication. However, it remained remarkable how English administrative law demonstrated a reluctance to turn remedies into rights. In cases involving natural justice the courts refused to specify what rights would have to be affected before the rules of natural justice applied.72

B. Contemporary developments in administrative law from the 1960s.

Changes in judicial attitudes, towards developing the common law in the direction of

rights defined more broadly, came through a series of landmark cases in the 1960s. This marked an era of growing judicial confidence. It was remarkable because much of the law was based on common law rules that did not require any interference in the legislative authority of Parliament or executive discretion. English administrative law developed incrementally through the case by case method of law making . Ridge v Baldwin73, Padfield v

69 (1863) 14 CB (NS) 180. 70 AV Dicey, “The Development of Administrative Law in England” (1915) 31 Law Quarterly Review 148. 71 Rooke’s Case (1598) 5 Co.Rep. 99b, Leader v Moxon (1773) 2 WB 1 924. 72 For example, Hopkins v Smethwick Local Government Board of Health (1890) 24 QBD 713. 73 [1964] AC 40


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Minister of Agriculture, Fisheries and Food74, and the development of Wednesbury75 unreasonableness enabled the courts to adopt a proactive approach. Instead of relying on instances of past failure in order to develop a systematic approach to administrative law, the courts filled in, through their own initiative, gaps left by legislative neglect. The result was clear: a self-confident judiciary that was prepared to fashion new tools for the development of judicial review. In 1977, Order 53 was introduced, streamlining mechanisms and procedures used during the application for judicial review.

Two landmark decisions in the 1980s showed the extent of judicial self-confidence. In O’ Reilly v Mackman76 [1983] 2 AC 237 the House of Lords established that the divisional bench of the High Court had exclusive (subject to certain exceptions) jurisdiction over administrative law matters. In the Council for the Civil Service Union decision,77 the House of Lords engaged in a form of judicial codification of common law principles. The grounds for judicial review included unreasonableness, irrationality, proportionality, and procedural impropriety. The latter raises issues concerning natural justice and fairness. It is noteworthy that the doctrine of unreasonableness may have to be strengthened to bring it into line with the higher standards required under the Human Rights Act 1998.78

As a result of both creative judicial activism and legislation, judges have developed a wide discretion as to when to uphold a judicial review. This flexibility, allowing the courts the power to exclude unmeritorious cases at an early stage, saves time and creates a specialized jurisdiction for the administrative courts. Cases must be taken promptly within a three-month period. The standing of the applicant is determined by the substantial merits of the applicant’s case. The courts have discretion whether or not to grant any remedy.

The most significant decision in the area of fair trail came with the House of Lords decision in Ridge v Baldwin79. This was a decision of long-term significance and may be said to begin the development of modern administrative law. The Brighton police committee had summarily dismissed Mr Ridge, then the Chief Constable of Brighton. Ridge had been previously charged, but acquitted of a conspiracy but his acquittal had been accompanied by strong comments from the trial judge suggesting that disciplinary proceedings should be taken against him. The police committee’s power of dismissal was invoked.The procedures used were less than those available under the formal disciplinary procedures then in place under the Police Act 1919. Under the disciplinary procedures, a formal inquiry had to be held before disciplinary action could be taken. The procedures adopted by the police committee to dismiss Mr Ridge fell short of the formal requirements under the disciplinary procedures. The result was that Mr Ridge was not able to give oral evidence, although he was legally represented and submissions from his solicitor were made. There was no formal hearing of the case and representations made by Mr Ridge’s solicitor feel short of a full hearing. Despite the representations made, the police committee confirmed their decision to dismiss Mr Ridge, who appealed to the Home Secretary, but his appeal was dismissed. The House of Lords held that the procedures of the police committee fell short of the requirements of a fair trial and this outcome made the decision to dismiss Mr Ridge unlawful.

The outcome of the case was far reaching. The potential for any error to invalidate a procedure resulted in major re-think of internal and external disciplinary procedures across the public sector as a whole. Legislation was passed enhancing the rights, both substantive

74 [1968] AC 997. 75 [1948] 1 KB 233. 76 [1983] 2 AC 237. 77 Council of Civil Service Unions (CCSU) v Minister for the Civil Service [1985] AC 374. 78 R v Secretary of State for the Home Department ex parte Daly [2001] 2WLR 1622. 79 [1964] AC 40


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and procedural, of individuals and the courts had established the parameters of review and fairness in decision-making

The role of the courts must also be placed in the context of the development of an extensive jurisdiction by statutory tribunals. Employment tribunals under the Employment Tribunals Act 1996 cover an extensive jurisdiction over employment issues, including race relations under the Race Relations Act 1976, the Race Relations Amendment Act 2000 and sex discrimination under the Sex Discrimination Act 1975, equal pay under the Equal Pay Act 1970, and disability under the Disability Discrimination Act 1975. The Social Security Appeal Tribunal80 covers protection under various provisions of the law relating to the payment of social security, and acts as an appeal tribunal against the decision of the adjudication officer. Mental health tribunals, lands tribunals, and rent assessment committees are also important examples of the work of tribunals in specialist areas. Tribunals offer the advantages of speed, low cost, informality, flexibility, expertise, accessibility, and privacy in the adjudication of disputes. Their disadvantages include lack of provision for legal aid, a confused and complicated appeals system, and growing complexity in technical areas of the law covered by tribunals.81 C. The Administrative Court Some mention ought to be given to the work of the Administrative Court and its role in developing principles of fair trial and acting as a procedural check on the executive. Important and substantial changes to the system of civil justice have been introduced by the Woolf reforms over the past few years. Changes in the way county courts and the High Court dispose of cases are procedural and substantive. The Civil Procedure Act 1997 and the Civil Procedure Rules 1998 create a new system for the management and tracking of cases through the civil justice system. The judge is appointed case manager. A case is allocated to a “track” depending on its complexity and the technical expertise required as well as the value of the sum in dispute. The lowest value and simplest track is the “small claims track”: a small claims hearing for cases up to and no more than £5,000. An adjudication may be given on the papers if the parties agree; they need not attend any hearing. The “fast track”, for cases of no greater value than £15,000 but no less than £5,000, is intended to provide a system where the costs of litigation do not exceed the sums being litigated over. The judge may issue standard directions to achieve the administration of the case, including the dates of hearings and the time set for hearing. Cases must not exceed one day (five hours) of court time; trial periods must not exceed three weeks; and the parties are given time, a maximum of 21 days, to prepare their case. Additionally, the “multi-track” system permits the courts to allocate claims to either track. Trial times and dates may be set by the court and there is provision for an initial hearing to settle the timetable for the case.

The complexity of the changes, and the financial targets that are at the centre of their rationale, make it difficult for human rights and ethics to penetrate into the detail of administrative decision-making. The difficulties intensify when it is recognized that rights that underlie the value of transforming administration into an efficient means of allocating resources may derive from competing ideologies. Reviewing the government, and thereby the political choices representing the electorate, through legally imposed rights sets the judiciary into an intense debate with rival claims for legitimacy. It is also the place of a complex

80 See Social Security Act 1998 and the Social Security Administration Act 1992 81 See reforms proposed by the Leggatt Committee: <http://www.tribunals-review.org.uk/leggatthm/leg-00.htm>


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dialogue between judges and the Executive in terms of defining powers and setting limits on power.As Professor Loughlin has noted:

Constitutionalization can thus result in politics assuming the character of legal argumentation. But if politics becomes more legalized, so law becomes more politicized.82 The common law tradition provides judges considerable latitude in developing the law

and deciding cases. This is in marked contrast to judges in civil law systems. Codified and detailed statutes in the absence of a system of binding judicial precedent inhibit judicial decisions from laying down fundamental principles for future cases. The role of the judges in developing judicial review, specifically fair trial procedures provides an interesting case study of the method and techniques of the common law in developing the law. It demonstrates how common law rights may become accepted and how such rights may be found in statutory form. The adoption of rights through specialised statutory enactments is common place. In areas such as immigration and asylum, homelessness, disciplinary powers of professional bodies and financial institutions there has been a vast spawning of rights, procedures, hearings and appeals. It also demonstrates that by interpreting historical and recent examples how common law ideas find their way into civil law systems. Invariably the two systems communicate with each other and there are rich borrowings between adversarial and inquisitorial processes.

This is interplay is set to continue. The future development of Convention rights may draw on the ingenuity and at times self-restraint of the common law. This mix of civil and common law traditions intertwined in the future development of the European Union has significance in the way rights may be interpreted including potentially any interpretation of any future EU Constitution. It is precisely this issue that falls for consideration under the Human Rights Act 1998, discussed in more detail below.

Materials D Human Rights Act 1998 The decision of the House of Lords in Marcic v Thames Water Utilities Ltd.,

John McEldowney * 82 Martin Loughlin, “Rights, Democracy and Law” in T Campbell, KD Ewing and A Tomkins (eds) Sceptical Essays on Human Rights, Oxford: Oxford University Press, 2001, p.58.


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I. Introduction The possibility of environmental claims raising human rights issues in the United Kingdom appears as a consequence of the Human Rights Act 1998 which gives the UK courts the opportunity to give the European Convention of Human Rights a limited form of domestic effect in the United Kingdom. To what extent has the 1998 Act influenced judicial attitudes in claims involving the environment? Four years have elapsed since the 1998 Act came into force and it is timely to consider the state of development of environmental human rights within the UK. In a recent landmark decision of the House of Lords on flooding caused by sewerage in Marcic v Thames Water Utilities Ltd.83, overturning the Court of Appeal84 decision that concluded rights had been infringed, the House of Lords has adopted a restrictive approach to expanding human rights in litigation affecting the environment. Marcic is a significant decision because it touches on common law and statutory rights as part of its consideration of environmental human rights. The House of Lords approach illustrates a trend, in line with the judgement of the Grand Chamber of the European Court of Human Rights on night-time flights85. The Grand Chamber, reversing a previous decision of the European Court of Human Rights, drew a wide margin of appreciation that allows national authorities wide latitude and denies any special status to environmental human rights when determining environmental claims. Beginning with an overview of the Human Rights Act 1998 and how the Act requires the courts to interpret Convention rights, the decision of the House of Lords in Marcic is discussed. The article evaluates the future of litigating human rights issues in cases involving the environment in the light of the Marcic decision.

II. The Human Rights Act 1998 and Legislation The Human Rights Act 1998 came into force in the United Kingdom in October 200086. The Act attempts to reconcile the sovereignty of Parliament with the protection afforded by the European Convention of Human Rights (ECHR). Courts in the United Kingdom are required where possible to read and give effect to legislation in a way that is compatible with the Convention rights87. The Act does not empower the judiciary to strike down legislation or ignore its contents, but there is a duty on courts and tribunals to avoid incompatibility between UK domestic legislation and the ECHR. The duty applies to existing and future legislation as well as secondary and primary legislation. The courts must uphold Convention rights unless the legislation is so incompatible that this is impossible. This gives the courts considerable scope in judicial interpretation in developing the case law, and it is possible that the courts may apply a different emphasis and approach depending on the nature of the legislation. Convention rights require weighing up different rights and interests88 and the judicial interpretation of their duties of interpretation under section 3 is emerging as the case law is developing89.

* University of Warwick. The author is indebted to the anonymous referees for their comments. The responsibility for any errors remains exclusively the author’s. 83 Marcic v Thames Water [2004] 1 All ER 135. 84 Marcic v Thames Water [2002] 2 All ER 55. 85 Hatton v UK [2003] All ER (D) 122 ( Jul) ECt.HR. 86 See the Government’s White Paper, Rights Brought Home Cm 3782 (1997). 87 Convention rights are defined under section1(1) of the Human Rights Act 1998. 88 J. Jowell, “ Judicial Deference: servility, civility or institutional capacity ? “ [2003] Public Law 592. 89 See Re S ( Care Order: Implementation of Care Plan [2002] 2 AC 291.


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As well as interpreting the nature of Convention rights, there are difficult balances to be struck when considering how to interpret UK legislation. The weighing up of political, social and economic issues is a responsibility of the Legislator and settling the right balance between competing claims a matter for political consideration and policy making. Environmental issues are often at the heart of government decisions over resource allocation that involve complex issues about balancing short term and long term considerations – especially in areas such as town and country planning, waste and pollution. In that regard, there is a strong tradition in the United Kingdom of ministerial accountability to Parliament for policy-making and of acknowledging Parliamentary sovereignty to enable legislation to settle economic and social priorities. As Professor Ewing has noted:

British constitutional arrangements nevertheless provided the best means for social reform in the sense that there were no institutional restraints on a legally sovereign legislature and a politically sovereign electorate90.

The boundaries of judicial discretion are also influenced by the specialist nature of legislation and some scepticism91 that judges are suitably qualified to make choices involving competing social and economic claims. The environment presents particular challenges requiring specialist expertise given the complexity of legislation and the technical nature of many regulatory issues involving the environment including economic and legal instruments to enforce environmental law. The high costs of litigation92 and the costs of meeting environmental liabilities are difficult to quantify making the task of the judiciary particularly difficult in areas of scientific uncertainty.

Section 4 of the Human Rights Act 1998 allows the courts to make a declaration of incompatibility but this excludes the striking down of legislation. This provides a solution to the conundrum of competing legislative and judicial powers by recognising Parliament’s sovereignty as paramount. The higher courts may only make a declaration of incompatibility when it is impossible to interpret legislation incompatible with Convention rights. Such a declaration is not binding on the parties. The legislation remains valid and effective. The government may bring amending legislation by way of a remedial order93 or the government may refuse to remedy the incompatibility. This may be a ground for a complaint to the European Court of Human Rights at Strasbourg, and it leaves the government of the day the option of arguing that the legislation is compatible. III. Human Rights and the Common Law The Human Rights Act 1998 also provides the UK courts with considerable scope to declare the common law in a way that is compatible with Convention rights. As Lord Lester, a leading human rights lawyer, has noted:

90 K. D Ewing, “The Unbalanced Constitution” in Tom Campbell, K.D. Ewing and Adam Tomkins, Sceptical Essays on Human Rights Oxford: Oxford University Press, 2001 p.104. 91 See Lord Bingham in R. v Secretary of State for the Environment Transport and the Regions ex parte Spath Holme Ltd., [2001] 2 AC 349 at p. 395. 92 R.v London Borough of Hammersmith and Fulham ex parte Sonia Burkett [2004] EWCA Civ 1342 see the comments of Lord Justice Brooke. 93 See the Mental Health Remedial Order 2001 SI 2001/3712 R. (H) v. MHRT ( North and East London Region [2001] 3 WLR 512.


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The Act weaves Convention rights into the warp and woof of the common law and statute law. Convention rights have effect not as free standing rights; they are given effect through and not around UK statute law and common law, by interpreting, declaring and giving effect to written and unwritten law compatibly with Convention rights.94

Section 11 of the Human Rights Act 1998 makes clear that Convention rights are in addition to existing rights available under the law. Existing rights includes any rights under the common law and rights that may arise and take effect from the European Communities Act 197295. The 1998 Act does not require UK courts to interpret and apply Convention rights as the jurisprudence of the Strasbourg Court of Human Rights is not binding on UK courts. Section 2 of the 1998 Act stipulates that a court or tribunal must “ take into account” the jurisprudence of the Strasbourg Court. Lord Irvine, then Lord Chancellor, made clear in the debate on the Human Rights Bill that “… it would permit United Kingdom courts to depart from Strasbourg decisions where there has been no precise ruling on the matter…96” Although not binding precedent, the UK courts normally follow the decisions of the European Court of Human Rights but where the reasoning is not persuasive they have departed from the decision. In Barrett v London Borough of Enfield97 Lord Browne-Wilkinson when faced with difficulty in following the Strasbourg Court’s reasoning nevertheless attempted to apply the reasoning in English law even though it was difficult to do so. The UK courts must take care to take account of Strasbourg cases and not attempt to be one step ahead. As Baroness Hale noted that “… we must interpret the convention rights in a way which keeps pace with, rather than leaps ahead of, the Strasbourg jurisprudence as it evolves over time.98”

There is also the question of how far the “margin of appreciation “ doctrine applies and in the absence of clear and abiding principles there is considerable room for pragmatic decision-making by the courts. This is another area where environmental law may be at its most difficult and technical. Defining narrowly or broadly how the margin of appreciation might apply to environmental law cases is critical in determining the nature of environmental human rights.

In interpreting the common law and legislation, the courts have considerable scope to develop the law through the interpretation of Convention rights to protect the individual against any abuse of power by the public authorities of the state. Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way that is “ incompatible with a Convention right”, with a potential liability to pay damages for a breach of this duty. The definition of “ public authority” is widely drawn to include courts and tribunals with the inclusion of “ any person certain of whose functions are functions of a public nature”. This has the potential of including private bodies, in form may be private but in substance undertaken public duties. The extent of the delineation between excluded and included private bodies that fall within Convention rights is unclear though it is expected that the 1998 Act

94 Lord Lester of Herne Hill, QC and Lydia Clapinska, “Human Rights and the British Constitution” in J. Jowell and D.Oliver eds., The Changing Constitution Oxford: Oxford University Press, 2004 p. 82. 95 EC law does not require the courts national authorities to enforce human rights in areas that fall outside the scope of EC law see: Cases 60 & 61/84 Cinétheue [1985] ECR 2605. 96 Hansard HL debs. Vol. 513, col., 514. 97 [1999] 3 WLR 79 discussing Osman v United Kingdom [1999] 1 FLR 193. 98 R(s) v Chief Constable of South Yorkshire [2004] 4 All ER 193 at p 217 [78].


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will have some “horizontal effect”99. In any event it is clear that a court or tribunal in the United Kingdom is included as a public authority and must not act in a way that is incompatible with Convention rights.

It is clear that the coming into force of the Human Rights Act 1998 has aroused curiosity as to the impact the Act may have in the way environmental issues are litigated. Particularly important is the relevance of Convention rights when interpreting existing common law and statutory remedies. The question arises as to whether pre-existing common law and statutory remedies adequately safeguard an individual’s rights? In considering whether the individual’s Convention rights are protected what is the margin of appreciation that should be applied?

IV. The Facts and High Court decision in Marcic

Mr Marcic owns a house in Stanmore. From 1992 the house and gardens were prone to periodic flooding. The reason for the flooding was that since the sewers were first laid, a large number of new houses had been built and connected to the existing sewage system with the result that the sewerage system became overloaded. The flooding problem was particularly severe at times of high rainfall. This causes additional surface water to enter the storm drains and sewerage floods Mr Marcic’s property and garden. Thames Water Utilities Ltd., is the statutory sewerage undertaker. All the property owners, including Mr Marcic have statutory rights to connect to the existing sewage system under section 106 of the Water Industry Act 1991. Mr Marcic has attempted to prevent internal flooding to his home by erecting his own private flood defence system at a cost of £16,000. This has been effective in preventing internal flooding but the effects of external flooding has weakened the foundations to his home, damaged his garden and resulted in damp and subsidence. It is clear that new public surface water sewers are needed to cope with the extra capacity of water during times of severe rain. The problem experienced by Mr Marcic is not uncommon. It is estimated that 6,000 properties in England and Wales suffer internal flooding from sewers. At least 50% are caused by overloaded sewers. The number affected rises if the risk is calculated over ten years where at least 15,000 properties are at risk. In addition there are an estimated 15,000 to 20,000 properties affected by external sewer flooding which does not penetrate inside the property. The financial cost involved is enormous. Depending on the property and the circumstances, the cost can be from £5,000 to more than £200,000, averaging between £50,000 and £70,000. Properties that fall into the same category as Mr Marcic with a risk of internal flooding at least once every ten years could cost up to £1bn. to protect. If the Water Companies relied on new connections to provide sufficient income to finance the changes then it would need 4.5 million new connections to pay for £1bn of infrastructure changes. The cost is likely to rise as new house building especially in or near flood planes is likely to add further burdens on the water companies. It is unlikely that developers would wish to meet these additional charges or wish to pass them onto the house purchaser. Although it is possible that developers might be required to meet such costs through planning obligations as part of the planning system.100 More generally there are serious issues about the role of the water regulator OFWAT when addressing the demands on the sewage system from new house building and also the repair and maintenance of the existing sewage system. Water companies

99 M. Hunt, “ The “Horizontal Effect” of the Human Rights Act” [1998] Public Law 423. 100 Section 106 Town and Country Planning Act 1990.. See: D. Howarth, Analysis Journal of Environmental Law Vol. 16(2) [2004] 251, p.253, D. Pearce, The Benefits of Sewer Flooding Control National Audit Office, July 2003.


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regularly face fines after inadequate and poorly maintained sewers overflow and cause pollution to rivers and water courses.101

In the case of Mr Marcic according to the system devised to set priorities for remedial action, his case did not qualify for upgrading. The question arises as to the statutory responsibilities of the Water Company and possible remedies open to Mr Marcic. Thames Water Utilities Ltd., as the statutory water company, has a statutory duty under section 94(1) of the Water Industry Act 1991 to maintain and ensure that sewers are effectively drained. This duty is enforced through a statutory code contained in Chapter II of the 1991 Act. The primary enforcement responsibility is given to the Director General of Water Services (the Director) under section 18 of the 1991 Act, through an enforcement order and only where there is a failure to comply is this actionable at the suit of a member of the public. It is clear from section 18(8) that these are the only statutory remedies available to Mr Marcic. His statutory rights consisted of a complaint to the Director and this would leave the Director the discretion as to which steps to take. Mr Marcic chose not to make a complaint to the Director. Instead he decided to pursue a claim for an injunction and damages for nuisance. Although the Act excludes the possibility of seeking damages for breach of the statutory duty, the question arises as to whether this also excluded the application of the common law remedies such as an action in nuisance. In the High Court102 it was accepted that the statutory provisions did not exclude the availability of common law remedies. However, nuisance law in the specific circumstances of Mr Marcic’s case did not require a statutory water company to undertake a positive act such as the construction of a new sewer with the result that Mr Marcic had no remedy in nuisance. The High Court considered whether the damage experienced by Mr Marcic amounted to a breach of the Human Rights Act 1998. The High Court case was the first case (14th May 2001) involving the question of the impact of the Human Rights Act where the court had held that there was no liability possible under the statutory scheme and also where there was no common law remedy available to the litigant. Mr Marcic argued that under the Act, Article 8 concerning the right to respect for private and family life and Article 1 of the First Protocol which gives right to the peaceful enjoyment of possessions were infringed. The High Court held that the failure to carry out the works to prevent repeated flooding was an infringement under both Articles. This fell into the category of serious environmental harm. In such circumstances the individual’s rights might be upheld by the courts. The Water Company argued that householders had a statutory right to connect to the public sewers, and this left the sewage undertaker with a responsibility that hey had adequately discharged in collaboration with the regulators by drawing up of a prioritisation scheme. This argument was rejected by the High Court as insufficient to defend the Water Company in preventing serious environmental harm that infringed Mr. Marcic’s Convention rights. While the defendants had a wide margin of appreciation this failed to be justified in terms of the prioritisation scheme established by the Water company. In deciding whether the principle of proportionality applied, the High Court considered the legislative scheme, the water companies response to the scheme and concluded that these were not sufficient to limit the applicability of Convention rights. Although there is no remedy for any illegal action taken place before the Human Rights Act 1998 came into force in October 2000, the High Court decision marked a significant victory for Mr Marcic. As one of the first

101 See ENDS Report 356, September, 2004 on Thames water and the river Darent. And ENDS Report 354, July 2004 Thames Water were fined $50,000 for polluting the River Thame near Aylesbury and United Utilities were fined £30,00 for pollution after heavy rainfall caused pollution of the Irish Sea. 102 Marcic v Thames Water Utilities Ltd [2001] 3All ER 698.


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environmental claims involving human rights, the High Court decision is instructive on the interpretation of how rights may be used where common law and statutory remedies were considered inadequate. This marked an important stage in the development of environmental law. Convention rights could be found by the courts as the basis for claims where judicial interpretation and statutory provision had prevented such claims. The potential for developing a rights based environmental law had also considerable significance for claimants and public authorities especially in financial and economic terms. The High Court decision prompted consideration by Thames Water of their system of prioritising sewer up-rating. After the floods of October 2000, there had been a thorough review of the sewer flood relief programme by the Director. This led to the publication of a consultation paper103 and soon after the re-consideration of the properties to which further works would be carried out. This was agreed between the Director and the Water Companies and over 250 properties were identified for remedial work to prevent internal flooding and a further 250 properties to prevent external flooding. The total cost was £27million and it was agreed that the Director would adjust sewerage charges for the period 2005-10 to take account of the additional costs. Mr Marcic’s house was included in the new properties to receive remedial action and work on his scheme began in April 2003 and took three months at a cost of £731,000. In the mean time Thames Water appealed the High Court decision to the Court of Appeal. V. The Court of Appeal and House of Lords decisions in Marcic Thames Water’s appeal to the Court of Appeal was decided on 7th February 2002. The Court of Appeal104 took considerable account of the law of nuisance and extensively reviewed the case law which up until then had concluded that the failure of a sewage authority to lay new sewers did not constitute grounds for an action in nuisance. While accepting, in common with the High Court that Mr. Marcic had no claim for damages for breach of statutory duty, the Court of Appeal considered how Thames Water was in the same position as any other landowner on whose property the hazard accumulates. Thus by adopting or continuing with a nuisance the sewage authorities had a common law duty to prevent overloaded sewers continuing. In reaching this conclusion the Court of Appeal had to consider a number of leading authorities decided in the nineteenth century. The result was that it was accepted that the courts had denied that such a common law duty might come about because Parliament had created a distinct statutory duty on the sewage authorities and this had restricted remedies to that of an enforcement notice and not actions in nuisance105. Instead of following that line of cases, the Court of Appeal adopted a different approach that relied on a series of cases that held that a landowner might be under a common law duty to take positive steps to remove a nuisance that was not created by the landowner106. Lord Phillips107 in the Court of Appeal

103 OFWAT, Flooding from Sewers – A Way Forward March, 2002. 104 Marcic v Thames Water Utilities Ltd., [2002] 2 All ER 55. 105 Glossop v Heaton and Islewort Local Board (1879) 12 Ch D 102 [1874-80] All ER Rep 836, A G v Guardians of the Poor of Union of Dorking (1881) 20 Ch D 595 [1881-5] All ER Rep 320. 106 Sedleigh- Denfield v O’Callaghan ( Trustees for St Joseph’s Society for Foreign Missions) [1940] 3 All ER 349, Pride of Derby and Derbyshire Angling Association Ltd., v British Celanese Ltd., [1953] 1 All ER 179. 107 [2002] 2 All ER 55 at p.83 [103].


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concluded108 that the earlier cases had depended on distinctions between misfeasance and non-misfeasance while the more recent line of authority in Leakey represented a “significant extension” to the law in laying down a general principle that owners of sewers have a duty to remedy a potential nuisance. Thus by passively allowing an inadequate sewer system to be used they might be said to have continued the nuisance. Having decided in favour of a common law claim in nuisance, on the Human Rights Act 1998, the Court of Appeal upheld the finding made by the High Court in respect of the claim in human rights. The Court of Appeal gave particular attention to the question of whether the regulatory regime set up under the 1991 Act satisfied the requirements of Convention rights by providing a balance between private and public interests. The Court of Appeal found that the regulatory scheme was inadequate and failed to protect Mr Marcic’s Convention rights. While it accepted that the rights interfered with were not unqualified and might fall under the defence under article 8(2) as being justified where necessary on the basis of the economic well being of the country or for the protection of the rights and freedoms of others109, it found that this justification was not met. The Court of Appeal agreed with the High Court that because Thames Water had failed to establish that their scheme of priorities for up-grading sewage work had struck a fair balance between the competing interests of Mr Marcic and that of the other customers, Mr Marcic’s Convention rights were violated. The Court of Appeal upheld the High Court analysis of how rights might be interpreted in terms of the Human Rights Act 1998.

It may be concluded that the Court of Appeal had adopted a similar approach to rights than the High Court but did so notwithstanding their finding that Mr Marcic had also common law rights available in an action for nuisance. The potential scope for human rights led environmental litigation seemed to be widening. At the very least, and as a result of the approach taken by the Court of Appeal, this had pointed to the inadequacy of the priorities scheme for up-grading sewers. Thames Water took action to revise the scheme in the light of criticisms made by the Court of Appeal. The Director of OFWAT also noted the concerns expressed by the Court of Appeal in their discussion paper.110 There is also considerable potential for re-thinking the exact scope of the law of nuisance given the Court of Appeal’s findings about how there is a positive duty to abate a nuisance acquired by a landowner. Finally it would appear from both the High Court and the Court of Appeal that more thought might be given to a setting up a robust compensation scheme for flood victims. Having lost in the Court of Appeal, Thames Water appealed to the House of Lords111.

The House of Lords decided the appeal on 4th December 2003112 overturning the decision of the Court of Appeal. Lord Hoffmann and Phillips each delivered speeches. The approach taken in the House of Lords was markedly different than the Court of Appeal. At the outset the House of Lords considered in some detail the comprehensive nature of the Water Industry Act 1991. It was noted how the powers of making an enforcement order lay exclusively with the Director leaving the ordinary citizen with judicial review of the Director’s powers but with no redress in an action for damages. The statutory scheme also underlines the need for considerable expertise and specialist knowledge needed to draw up priorities and the question of what is unfair or not “is a matter inherently more suited for

108 See: Goldman v Hargreave [1966] 2 All ER 989, Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 All ER 17. 109 The Court of Appeal relied on Powell v UK (1990) 12 EHRR 355. 110 OFWAT, Flooding from Sewers – A Way Forward March, 2002. 111 Marcic v Thames Water Utilities Ltd., [2004] 1 All ER 135. 112 Ibid.


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decision by regulator than by a court113.” This leaves the courts looking on and only adjudicating disputes when the necessity requires. There is also a common thread to this approach found in other decisions of the House of Lords with a similar line of reasoning. The courts appear to weave a delicate line balancing Parliament’s intent to allow the regulator to regulate the industry with its role to adjudicate rules for that purpose.

On the question of whether Mr Marcic had a common law action in nuisance, the House of Lords rejected the approach taken in the Court of Appeal instead following the reasoning in the High Court. Lord Hoffmann distinguished those cases such as Leakey and Goldman relied upon by the Court of Appeal to assert Mr Marcic’s common law right in nuisance, as cases involving disputes between neighbouring owners of land in their capacity as landowners, from the claims that arise in disputes against a statutory sewage undertaker. In disputes between neighbours he claimed that it is “ fair and efficient to impose reciprocal duties upon each landowner to take whatever steps are reasonable to prevent his land becoming a source of injury to his neighbour114”. The question arises as to what measures should be taken by a statutory sewage undertaker ? The answer depends on what in the courts view is reasonable, considering the nature of a statutory undertaker. Lord Hoffmann’s implicit assumption when applying such a test is the boundaries of what a proportionate response should be by the courts in reaching its decision. Lord Hoffmann’s analysis is that this is a difficult task that may fall outside the types of decisions that the courts are equipped to make.

… the court in such cases is performing its usual function of deciding what is reasonable as between the two different parties to the action. But the exercise becomes very difficult when one is dealing with the capital expenditure of a statutory undertaking providing public utilities on a large scale….. This in turn raises questions of public interest. Capital expenditure on new sewers has to be financed; interest must be paid on borrowings and privatised undertakers must earn a reasonable return. The expenditure can be met only by charges paid by consumers. … These are decisions which courts are not equipped to make in ordinary litigation115.

Lord Nicholls also agreed that the Court of Appeal had been wrong in applying the same standard of conduct between neighbours to the conduct required of a statutory undertaker. He held that the cause of action in nuisance was inconsistent with the statutory scheme set out in the 1991 Act. He concluded:

The existence of a parallel common law right whereby individual householders who suffer sewer flooding may themselves bring court proceedings when no enforcement order has been made, would set at nought the statutory scheme. It would effectively supplant the regulatory role the Director was intended to discharge when questions of sewer flooding arise116.

The existence of the statutory scheme appears to block the possibility of the courts recognising any action in nuisance. This approach appears consistent with the view expressed

113 Lord Nicholls p.148 [38]. 114 Lord Hoffmann p. 153 at [62] c-d. 115 Ibid., Lord Hoffmann p. 153 [63]-[64]. 116 Lord Nicholls p.147 [35].


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by the courts in cases on negligence117. On that line of authority because the common law might provide a parallel right in negligence covering the same areas of activity as the statutory arrangements, the duty of care could not be applied if its existence interfered with the ability of the statutory body to carry out its responsibilities. What reasons might be used to justify this approach? The House of Lords adopts this approach because of constitutional and administrative reasons. In terms of constitutional arrangements it accepts that because Parliament has allocated responsibility to the regulatory authorities then such an allocation must be respected by the courts. In administrative terms , a glance at the extensive jurisdiction of the Directors duties under Part I of the Water Industry Act 1991 is sufficient to ensure that balancing the interests of customers, shareholders, consumers and the prices charged by the sewerage companies fall within his remit. This approach preserves the autonomy of the regulator, and subject to the rare occasion for an intervention by way of judicial review, avoids the courts becoming greatly involved in the detail of regulation or having to assess its effectiveness.

On the interpretation of Convention rights, the House of Lords departed from the interpretation offered by the High Court and the Court of Appeal. The former had concluded that the Human Rights Act with its protection of privacy and the peaceful enjoyment of possessions had been infringed in circumstances where the statutory arrangements were inadequate but where there might be at best a limited action in the common law of nuisance to remedy a positive act which had resulted in damage. The latter had upheld the human rights point agreed by the High Court, while also holding that a remedy in nuisance might be available, not only for appositive act, but for a failure to act and this applied in Mr Marcic’s circumstances.

The House of Lords held that the remedies provided by the statutory scheme were adequate and consequently provided an adequate safeguard for Mr Marcic’s rights. Influential in reaching this conclusion was the decision of the Grand Chamber of the European Court of Human Rights in Hatton v UK118 decided after Mr Marcic’s High Court decision. The Hatton case was an original decision of the European Court of Human Rights that held that air noise during night flights near Heathrow violated the rights of people living nearby to respect for their private and family life. At the UK government’s request under Article 43 of the Convention the case was referred to the Grand Chamber. On 8th July 2003 the Grand Chamber overturned the original decision. This proved decisive in the approach adopted by the House of Lords in Marcic. In Hatton , the Grand Chamber emphasised that in applying Convention rights there was no absolute protection of privacy or property rights. As Lord Hoffmann explained this was an area where the margin of discretion should take account of the “ balance to be struck between the interest of persons whose homes and property are affected and the interests of other people, such as customers and the general public119”. This gave government a broad discretion when choosing how to provide solutions “… appropriate to their own society or creating machinery to do so.120” In Mr Marcic’s case the solution implemented by Parliament was an independent regulator and Director. In that event there was no necessity to apply Convention rights when such rights were adequately protected in the system of regulation.

The Hatton decision was not binding on the House of Lords and they chose not to overrule it but apply it. This reflects a growing concern about setting the parameters for

117 X( Minors) v Bedfordshire County Council [1995] 2 AC 633 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619. 118 Hatton v United Kingdom [2003] All ER (D) 122,(2004) JEL 127 119 [2004] 1 All ER 135, at p. 155 [71] g-h. 120 Ibid.,


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judicial decision-making away from the political arena especially in the area of resource allocation. Although there was a modest compensation scheme under the regulations121 for internal flooding this did not apply to cases of external flooding in examples such as Mr Marcic who would have gained nothing from the fund to meet the costs of remedial work. Despite this limitation and the fact that while compensation was paid on an ex gratia basis by some statutory undertakers but not others this was not something that the courts could remedy. Lord Nicholls recommended that the priorities for remedial work should be reviewed it was a matter for the water companies and the Director to provide a solution that was fair to all including those that did not require flood defences. It was only when there was a failure of the regulatory authorities to adequately provide a fair balance of the rights of the parties that there might arise a sufficiently strong case to result in the court holding that there was a failure to provide environmental rights. This point had not been reached in Mr Marcic’s case even though Lord Nicholls had conceded that those who suffer damage and disturbance as a consequence of an inadequate sewerage system should not be required to bear “ an unreasonable burden.122”

VI. Interpreting the Margin of Discretion and Environmental Rights

The significance of the Marcic decision is considerable. It joins a line of authority, including the Grand Chamber majority decision in Hatton v UK, that represents a broadening of the margin of discretion in applying Convention rights leaving the government and legislature with considerable latitude. Thus national institutions “… in choosing the solution appropriate to their own society or creating the machinery for doing so123” are permitted to operate within the boundaries set by a framework of traditional grievance machinery and without any special status being given to environmental rights124.

In Hatton the question before the Grand Chamber was whether the Heathrow noise quota system for night flights violated the Convention rights under Article 8 of those living near the runway. The disturbance complained of was sleep disturbance and inconvenience. The original decision of the European Court of Human Rights was that noise from night-time flights violated the Convention rights of people living near by in respect of their private and family lives. The Grand Chamber rejected the original court’s opinion. The Grand Chamber also seemed to cast aside the decisions in Lopez Ostra v Spain125 and Guerra v Italy126, showing a tendency to sidestep any environmental litigation based around human rights. Both cases had asserted that there was a violation by national authorities through non-compliance with Convention rights.

The question of the margin of discretion developed by the United Kingdom courts must be seen in the wider context of the margin of appreciation doctrine. The margin of appreciation doctrine itself developed 127as part of the Strasbourg jurisprudence allowing national authorities some laxity in complying with Convention rights in the context of their

121 Para 7B of the Water Supply and Sewerage Services ( Customer Service Standards) Regulations 1989, SI 1989/1159 amended by SI 1993/500 and SI 2000/2301. 122 Lord Nicholls [2004] 1All ER 135, p.149 [45]. Thames Water were ordered to pay Mr Marcic’s costs of the appeal to the House of Lords. 123 Lord Hoffmann [2004] 1 All ER 135,p.53. 124 See Jane Wright, Tort Law and Human Rights Oxford: Hart 2001. 125 Series A no 303-C (1994). 126 (1998) 26 EHRR 357. 127 Handyside v UK (1979) 1 EHRR 737.


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own national legal system128. It is clear that the UK courts have recognised129 the doctrine but there may be circumstances when the application of the doctrine should be capable of variation. The UK courts, while not bound by Strasbourg jurisprudence, tend to follow it130. In Marcic the House of Lords has shown little inclination to develop a rival interpretation of Convention rights to the Strasbourg court. Interpreting the Convention requires the courts to adjudicate between competing interests and striking a fair balance between the parties. In line with Lord Hoffmann’s approach in Marcic the House of Lords has recognised the deeply complex issue of balancing interests in areas involving special expertise and competing social and economic issues. The Marcic case is an example in point when the House of Lords defers to the expertise of the regulator and admits the limits of its own competences. As Lord Bingham noted131 the allocation of public resources “ is a matter for ministers and not courts”. Similarly in another leading House of Lords decision on the call-in powers of the Secretary of State in planning appeals, Lord Hoffmann commented on how Convention rights should be interpreted.

All democratic societies recognise that while there are certain basic rights which attach to the ownership of property, they are heavily qualified by considerations of public interest.132

In setting general standards for review involving Convention rights, the UK courts have developed considerable discretion133, not only, in terms of applying the proportionality test, in balancing the interest of the parties, but also, in how much deference to give to Convention rights134. VII. The Approach of the UK Courts to Environmental Litigation The significance of the approach of the House of Lords in Marcic is best considered in the context of how English law has dealt with the question of rights and the environment. This requires some background analysis of how English administrative law has developed and how human rights may have the potential to strengthen litigants’ claims. In the common law tradition, judges have considerable scope to develop the law, markedly different than the scope of development open to judges under a codified civil law system. In the United Kingdom, the development of judicial review allows the courts to consider whether or not a public body or a body with a public law function has acted lawfully135. The “supervision” of public bodies by the courts through judicial review developed through a system of remedies.

128 R ( Alconbury) v Secretary of State for the Environment, Transport and the Rgions [2001] 2 All ER 929. 129 R. V DPP ex p Kebilene [2000] 2 AC 326. 130 R. ( on the application of Farrakham) v Secretary of State for the Home Department [2002] Q.B. 1391. 131 R. v Secretary of State for the Environment, Transport and the Regions ex parte Spath Holm Ltd., [2001] 2 AC 349. 132 Lord Hoffmann in R ( Alconbury) v Secretary of State for the Environment, Transport and the Rgions [2001] 2 All ER 929 at p. p.980 [71]. 133 R ( on the application of Daly) v Secretary of State for the Home Department [2001] 2 AC 532. 134 Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840 135 See Sir William Wade and C Forsyth, Administrative Law 9th edition Oxford: Clarendon Press, 2002.


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These included orders requiring the decision-maker to quash the decision to perform a public duty or to declare what the law is. The growth in judicial review has been largely achieved by the courts exercising their own jurisdiction. This has resulted in an expansion in judicial review and since 2000 the development of new procedures136 in an Administrative Court. The grounds for review cover illegality, procedural impropriety, and irrationality137 and, as outlined above, the inclusion of an unjustified interference of a Convention right under the Human Rights Act 1998. Judicial review procedures have proved useful in the environmental field by allowing pressure groups associated with the environment to bring actions against public authorities. There is a requirement of standing ( locus standi ) in judicial review procedures. Generally this has been interpreted liberally138and allowed environmental groups to take cases to challenge decisions where environmental issues arise. Greenpeace were successful in being granted standing in a challenge to the THORP reprocessing plant at Sellafield139on the basis of their expertise and standing. Members of a local preservation society were allowed standing to appear at an inquiry and were entitled to challenge the legality of the order140in a planning matter. One of the most significant examples is the Pergau Dam case141 involving the pressure group, the World Development Movement in a challenge to the legality of aid granted by the Secretary of State for Foreign Affairs to fund the construction of a controversial Pergau Dam in Malaysia. The World Development Movement relied on environmental concerns and their own expertise to question the economics of the project. Through reports compiled by the National Audit Office, the financial watchdog, it was possible to question the legality of the funding and it was revealed that the Accounting Officer for the department had concerns about the project. This gave rise to a successful challenge in the courts based on the public interest to allow the World Development Movement to take its case. In such cases there is no guarantee of success142as the courts are limited in their role as policy making and the decision-makers own functions are usually left outside the discretion of the courts. Judicial review has offered limited scope to develop environmental rights, though it has gained access to the courts for pressure groups143 and other interested parties144. Even liberal standing rules are not always applied145 where Schiemann J, as he then was, considered that the standing of a local group of residents who formed a pressure group to preserve the site of the Rose Theatre, said to be of great historical interest. The pressure group included

136 Part 54 of the Civil Procedure Rules and Practice Direction 54 ( August, 2000). See also section 31 of the Supreme Court Act 1981 and the Rules of the Supreme Court, Order 53. 137 Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374. 138 Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd., [1982] AC 617. 139 R. v Inspectorate of Pollution ex parte Greenpeace Ltd ( no 2) [1994] 4 All ER 329 140 Turner v Secretary of State for the Environment (1973) 28 P &CR 123. 141 R. v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Ltd., [1995] 1 WLR 386. 142 R v Swale BC ex parte RSPB [1991] 1 PLR 6. 143 See C. Harlow, “Public Law and Popular Justice” (2002) 65(1) Modern Law Review 1 and D. Feldman, “ Public Interest Litigation and Constitutional Theory” (1992) Modern Law Review 44 144 R. v Hammersmith and Fulham Borough Council ex parte People Before Profit (1982) 80 LGR 322. 145 R. v Secretary of State for the Environment ex parte Rose Theatre Trust Co. [1990] 1 QB 504.


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archaeological experts and leading actors who had formed a small company to protest against the development. Standing was refused because the pressure group was perceived as attempting to develop a form of public interest litigation which was denied by the court. Even before the Human Rights Act 1998 came into force, the European Convention of Human Rights had a limited influence in helping to develop the potential scope of judicial review146 and extend the intensity of review when rights were involved147. Despite developing a more sensitive approach to fundamental rights, generally the courts acted in deference to the decisions of the executive. The basis for such self-restraint was an unwillingness to encroach on executive powers and the absence of rights in domestic law. The Human Rights Act 1998 provided a basis for judicial discretion to adopt rights at the centre of the jurisprudence of the courts148. In that context, the question is how far will the Human Rights Act advance environmental litigation ? Environmental litigation gives rise to the possibility of the protection of the individual from agents or substances that may cause a danger to health or impair the quality of life. English tort law, for example has been slow to develop damages in respect of mental distress or loss of amenity149. Only by adding convention rights to the common law claims in negligence or nuisance might it be possible to develop the law in this broad direction. There is room to think that this might occur. In the case of Dennis v Ministry of Defence150 the Divisional Court considered the impact of the Human Rights Act on the law of nuisance in a case brought against the Ministry of Defence in respect of noise caused by the operation of military aircraft near Wilmot Hall, a large estate near an RAF station. The claim in nuisance depended on expert evidence on the impact of the levels of noise on the estate. This included its commercial potential as well as the annoyance caused to the residents of the estate. In considering a traditional nuisance case the courts weigh up the balance of interests between the parties to consider whether any interference with the enjoyment of property was infringed. In addition to the nuisance claim, it was argued that Article 8 of the Convention was breached as the aircraft noise caused interference with respect for private and family life. Convention rights seemed to tip the scales in weighing the public interest in favour of providing a claim for compensation while allowing the aircraft to continue to fly. This approach to rights fell short of providing grounds for the court to grant an injunction but it satisfied the discretion of the court to award damages. As a result the Divisional court awarded damages of £950,00. This marked a flexible approach to rights and the potential to develop rights more generally in the area of environmental litigation where the quality of life is impaired by a nuisance. The Marcic decision of the House of Lords was decided after the decision of the Divisional Court in Dennis. It is clear that the Marcic approach is different from the approach taken in Dennis and this has far reaching consequences. It shows a marked reluctance to allow rights to develop beyond the existing case law of the ECHR or to allow a rights based approach to extend the common law of nuisance or negligence. Marcic is also consistent with other decisions of the House of Lords151 where in considering the general development of judicial

146 Bugdaycay v Home Secretary [1987] AC 514 the role of rights in deportation matters. 147 R. v Ministry of Defence ex parte Smith [1996] QB 517, the role of rights when considering sexuality when dismissed from the armed forces. 148 See R. v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115. 149 Hunter v London Canary Wharf Ltd., [1997] 2 All ER 426 150 Dennis v Ministry of Defence [2003] EWHC 793. 151 See R. v Secretary of State for the Environment Transport and the Regions ex parte Alconbury Developments and others [2001] UKHL 23.


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review the House has shown a traditional self-restraint in terms of deferring to the executive on the basis of a separation of powers between Parliament and the courts152.

VIII. Conclusions Lord Hoffmann, in a lecture to the Common Law Bar Association153, a month after the passage of the Human Rights Act 1998 and before the Act came into force, predicted that the potential impact of the Act “has been greatly exaggerated”. In interpreting legislation and Convention rights under the Human Rights Act 1998, the courts have a wide discretion but equally the margin of appreciation gives government considerable latitude. Convention rights most likely to be raised in environmental claims come within a broad band of discretion when reviewing the compatibility of state action by the authorities with Convention rights.

In interpreting common law rights in the past the UK courts have given “ special weight” to interpreting a citizen’s rights in terms of access to the courts which in the words of Lord Justice Laws, “ could not be abrogated except by express statutory words154”. Prior to the enactment of the Human Rights Act 1998, the courts had been ready to adapt various areas of the law on defamation155, confidentiality156, free speech and personal privacy157. At least one leading writer158 believed that “.. the impact of the Act on both statute-based and common law of tort is bound to be immense”. In contrast, in the environmental field, the House of Lords in Marcic has shown reluctance to develop Convention rights within the law of tort covering actions for negligence and nuisance, even in circumstances when the statutory arrangements, as in Marcic were inadequate in terms of compensation provision. As Marcic follows the Grand Chamber’s decision in Hatton, there is no “ special approach” or “special status” to be given to environmental human rights159. The Marcic decision stands out as one that illustrates a marked “conservatism” in the approach taken by the courts when dealing with the environment, in marked contrast to the approach taken in other areas of the law such as freedom of speech and expression. This illustrates a reluctance to develop rights beyond the boundaries set by the European Court of Human Rights.

Environmental law is by its nature intrinsically bound up with complex public and private policy considerations. This often involves technical economic and fiscal instruments deserving of specialist treatment before qualified adjudicators. Environmental regulation160 involving environmental liability is also difficult and requires special attention. If the courts had adopted a more broadly based rights approach to environmental claims what would be the

152 See R. v Secretary of State for the Home Department ex parte Daly [2001] 3 All ER 433. 153 Lord Hoffmann “Human Rights and the House of Lords (1999) 62 Modern Law Review 159 at p.161. 154 R. v Lord Chancellor ex parte Witham [1998] QB 575 at p.585 G. 155 AG v Guardian and times Newspapers [1990] 1 AC 109 and Reynolds v Times Newspapers [1999] 3 WLR 1010. 156 See: A. Lester, in J. Jowell and D.Oliver eds., The Changing Constitution Oxford: Oxford University Press, 2004 p. 83. 157 Ibid., 158 C. Gearty, “Tort Law and the Human Rights Act “in Tom Campbell, K.D. Ewing and Adam Tomkins, Sceptical Essays on Human Rights Oxford: Oxford University Press, 2001 p 245. 159 See: P. Cane “ Are Environmental Harms Special?” ( 2001) 13 JEL 3. 160 Mark Stallworthy, “Environmental Liability and the Impact of Statutory Authority” (2004) 15 JEL 2003.


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likely consequences? It is unlikely to lead to widespread litigiousness, although after the original decision of the European Court of Human Rights in Hatton there was widespread media concern that “ thousands of claims” would arise161, unfounded, as the case was reversed by the Grand Chamber. However much an increase in litigation is feared the practicalities need to be noted. Generally environmental litigation is narrowly confined to pressure groups and individuals who are adversely affected by pollution or other environmental harm through no fault of their own. Lawyers specialising in this area of the law are often dependant on public funds and are often inhibited by costs and the technical complexity of the cases. Environmental justice requires that there should be adequate legal redress and that civil litigation ought to facilitate members of the public to challenge acts of public authorities involving environmental claims. There is the general question of the inadequate compensation available to those that suffer night flights or the escape of sewerage onto their property. Environmental litigation might seem to offer some solution in the absence of adequate statutory compensatory arrangements. This appears to be problematic, not least because of Marcic but also because of the high costs of litigation, a point of concern raised by Lord Justice Brooke recently in the Court of Appeal162. The future of environmental human rights litigation may have suffered a setback because of the House of Lords in Marcic. However, human rights issues are continually being taken and argued in suitable cases. This is clear from cases that are decided in the lower courts up to the Court of Appeal. There are signs that the lower courts are prepared to consider rights when dealing with environmental issues even though the outcome may be disappointing to the claimant. In Andrews v Reading Borough Council163 a case concerning a road traffic regulation order, Article 8 issues were raised when the claimant argued that noise levels from traffic flows infringed his Convention rights. The case was not struck out because of the Marcic decision. The availability of a discretion to provide grants for double insulation only applied where there had been a physical alteration to the highway. This was inapplicable to the claimant’s case leaving him with no claim. This might be an arguable point in terms of interference with the claimant’s Convention rights. There is considerable pragmatism in how environmental human rights are likely to be viewed by the courts. In considering third party rights to respect for privacy and peaceful enjoyment at major planning decisions, the Court of Appeal in Lough v First Secretary of State164 showed reluctance to use Convention right to change the way planning decisions are reached. The degree of seriousness in the effect on the individual must be substantial before the courts will hold that there has been any breach of Convention rights165. The decision-maker is supposed to take account of human rights as an intrinsic part of decision-making, leaving the courts a limited role to intervene166.

In the future it might be possible for the House of Lords to decide in a suitable case to depart from the Grand Chamber decision in Hatton and thereby offer a rival interpretation to

161 David Hart and Marina Wheeler, Analysis Journal of Environmental Law Vol 16 no. 1 ( 2004) p. 132. 162 R.v London Borough of Hammersmith and Fulham ex parte Sonia Burkett [2004] EWCA Civ 1342. 163 [2004] EWHC 970 ( 29th April 2004) ENDS Report 352, May 2004 p. 62. 164 [2004] EWCA Civ 905. 165 See R on the application of Paul Rackham Ltd., v Swaffham Magistrates Court and Environment Agency [2004] EWHC 1417 on the uncertainty of the definition of waste giving rise to arguments about incompatibility with the Convention. 166 See R on the application of Fisher v English Nature Court of Appeal 26th May 2004 ENDS Report 353, p.61.


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the narrow interpretation of environmental human rights. It remains to be seen, in the absence of a specialist Environmental Court, whether or not in the future the UK courts are willing to take a lead in the development of environmental human rights. The signs are not optimistic. The caution shown to developing environmental rights in the Marcic decision of the House of Lords may influence judicial attitudes throughout Europe and become an accepted orthodoxy in how judicial discretion may impose its own self-restraint.

MATERIALS E

Are Regulators Accountable ?

FIRST DRAFT ONLY A CASE STUDY IN COMPARATIVE LAW IN THE UK AND FRANCE

John McEldowney and Gerard Marcou THE UK EXAMPLE: John McEldowney Abstract A major achievement of parliamentary democracy is the government’s responsibility. Everybody knows the illusory character of this responsibility in the conditions of majority rule. This is the case in France as well as in the UK. Nevertheless, ministers


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are accountable and we know numerous cases when they had to resign because of facts occurred in the administration under their authority. With the construction of a market oriented economic public order, a lot of independent regulators have been established in order to guarantee the impartiality of the administrative decision-making process in the economic sectors under their supervision. The same can be observed for competition authorities. The concept of independence that is used in the related legislation is quite ambiguous. Whereas the purpose of this independence is to ensure the impartiality of individual administrative decisions, the place of such regulators or independent authorities in policy-making is not obvious. Due to the transfer of expertise from departments to regulators and to the close relationships between regulators and the enterprises concerned, an undue influence of regulators on policy-making may be suspected. Then the question is: how far is the accountable minister really responsible for the public policies that are implemented? Nevertheless, the EU law emphasises always more the political independence of such authorities with regard to government and any other public body. The independence raises increasingly concern with regard to public policies, and legislation has worked out reporting procedures. However there is a sharp discrepancy between the theoretical model and the practice. Whereas it is possible to guarantee the impartiality of administrative decisions through proper determination of collegial bodies, adequate decision-making and review procedures (and this would be possible also without institutionally independent regulators), there is a general failure of reporting and other procedures supposed to ensure the accountability of regulators. It was observed in the UK that members of Parliament do not use all their powers with regard to them. In France public bodies provided by the law were plainly not established or, when established, do not meet and publish no report. Furthermore, the reinforcement the regulator network at the European level will support the withering away of regulators from any democratic accountability in their own country. These facts are not specific to UK and France. In Germany, where regulators belong to the realm of the ministry of economy, the minister hardly makes use of his constitutional authority, and the members of the Bundestag do not use their power to supervise the federal network agency. Due to the economic and social impact of regulation, this evolution raises questions on the capacity of the Government to determine and implement public policies in these sectors otherwise than following the directions proposed by the regulators. The article will show the lack of accountability of regulators and try to work out proposals on how to organise accountability whereas securing the impartiality of individual decisions affecting business interests. Introduction The United Kingdom has been described as a “ regulatory laboratory167”. The reasons are not hard to see or justify168. The eighteenth and nineteenth century saw the rise in the role of the state through a market led economy. Regulation and regulators coexisted on the basis of finding facts; evaluating nuisances and providing remedies that were consistent with maintaining economic output, employment and

167 See Michael Moran, The British Regulatory State: High Modernisation and hyper-innovation Oxford: Oxford University Press, 2004. 168 See: Colin Scott, “ The Regulatory State” in P. Dunleavy and others (eds.) Developments in British Politics 5 Bassingstoke: Macmillan, 1997.


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visible improvements in the living conditions of many. Self -improvement mixed with moral choices supported by criminal and civil sanctions proved sufficiently effective to provide a balanced and measured response to regulatory problems. The lessons from the two previous centuries are in evidence today. Privatisation in the 1980s and 1990s gave rise to a role for regulators primarily based on oversight and market competition. Globalisation was greatly facilitated by privatisation and regulatory strategies that engaged many city law firms as well as financial and banking specialists. Different forms of regulation such as co-regulation, a device for twinning public and private powers, and meta regulation which means providing official validation of self- regulatory practices169.

Emerging from the privatisation experience and in the aftermath of the financial crisis of 2008 there are two dominant economic models for regulation on offer suitably explained by Tony Prosser170. One is the accountability model, the other the governance model. The accountability model is to be found where regulatory activity and regulators are bound together through democratic principles of accountability and oversight. In principle this places accountability directly through ministers to parliament and in some cases directly to Parliament for the exercise of their regulatory functions. Control may take a number of forms: through largely Parliamentary accountability mechanisms such as Select Committees, annual reports from regulators, and the National Audit Office in monitoring the control of public money and exercising oversight of regulatory behaviour. Control may also be linked to consumer choice and citizenship. Beyond the corporate world of Company Boards and shareholder participation there is a so called “ social contract” between the government, employees, trade unions, employers’ organisations such as Chambers of Commerce and the Confederation of British Industry. Producers of public goods and services are also consumers and citizens. The 1990s witnessed a reinvigoration of the role of citizens with a focus on the Citizen’s Charter and Service First. Rights linked to consumers provide a link between consumer choice enabling service providers, both public and private to be held to account. Transparency and openness characterise the motivation for setting up this model of regulation. The creation of the Food Standards Agency in the aftermath of the BSE crisis171is agood example of this. Its establishment was based around a Statement of Principles including academic freedom; independence of operation; and proper consideration of advice linked to the Ministerial Code and pre-existing protocols.172 Section 8 of the Constitutional Reform and Governance Act 2010 takes the next step by giving the code statutory effect173. Regulation can be seen as a result of market failure or as a response to the largely ex post nature of many accountability mechanisms where 169 See: J. Black, “Decentering Regulation: The Role of Regulation and Self-Regulation in a Post Regulatory World” (2002) 54 Current Legal Problems 103. 170 T. Prosser, “Models of Economic and Social Regulation” in D.Oliver, T. Prosser and R. Rawlings, The Regulatory State: Constitutional Implications Oxford: Oxford University Press,2010 34-49 p.35. 171 3rd Report, Session 2009-10 the House of Commons Science and technology Committee: The Government’s review of the principles applying to the treatment of independent scientific advice provided to government HC 158-I. 172 Ibid., paras 4-10. 173This also builds on the former Science and Technology Committee in its Report Scientific Advice, Risk and Evidence Based Policy Making.173 Essentially the report advocates Government taking a proactive role in reviewing scientific advice and coming to conclusions. HC (2005-06) 900. See the Phillips Report on BSE.


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some form of ex ante controls are needed to prevent regulatory failure. Regulatory design often reflects the need for setting priorities such as competition policy or correcting externalities. Regulation may also seek to liberate corporate interests from government intervention and offer a minimum protection of the public interest to safeguard the vulnerable. This is very much in evidence in the post privatisation forms of regulation found in the UK. Regulation can also be a means of information and data collection that addresses future investment needs. It is not possible for any one regulatory system to meet all these expectations. One size does not fit all and each sector may raise specific needs. Concerns about institutional capture are based on a belief in regulator independence and a “ watch dog” motivation.

Prosser identifies a second model of regulation which Harry Arthurs famously described as “governments in miniature”174. The governance model is linked to strong economic values of efficiency and distributive goals. It is also connected with the aims of a regulatory system, which may vary from social cohesion to capitalisation of markets and profits. The emphasis is less on independent forms of accountability and more on collaborative enterprise shared by government and the private and public sectors. Self-regulation of the nineteenth century is transposed into various forms of co-regulation. Contract and market mechanisms are favourably deployed to interweave complex and technical networks into some form of “stakeholder “ responsibility. This form of regulation relies on procedures and “box ticking” that applies similar patterns and design to both regulator, private entity and government. Regulators and the regulated are often given forms of immunity from private law liability. Limits set on judicial oversight are supported by a narrow form of public law that seeks to ensure that political oversight and protections against merit type review are in place. Regulation may become intrinsically linked to governing and policy making. Tensions between regulatory accountability or regulation as control and regulation as an enterprise linked to governance are clearly in evidence in the aftermath of the 2008 financial crisis. The coalition government has favoured a governance model with reductions in red tape and in some cases the assimilation of regulatory roles within key government departments. The accountability of regulators is not only dependant on the different types of regulatory bodies but also in the regulatory design ie: the type of regulator. The UK landscape has many forms of arms-length “Ofdogs” in preference to the earlier form of single regulator vested with individual powers vested in a single director-general. Also in evidence are various internal regulatory systems bound into the working of central government departments such as the newly created Animal Health and Welfare Board for England. There are questions of the form such regulation might take, which is largely dependent on the view that is taken of why regulation is needed? Risk assessment is intrinsic to effective regulation and the type of regulation should be informed from lessons of past regulatory failures and ensuring regulator accountability. The paper begins with the historical context and traces the lessons from the UK’s financial crisis and assesses the likely direction that future regulation may take. The Historical Context

174 See T. Prosser, op. cit., p.38 The term is taken from H. Arthurs, Without the Law, Administrative Justice and Legal Pluralism in Nineteenth- Century England Toronto: University of Toronto, 1985. P.169. Also see: T. Prosser, “ Regulation and Social Solidarity “ (2006) 33 Journal of Law and Society 364-87.


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The end of the nineteenth century located England as “the workshop of the world” with a plethora of regulatory organisations. Many were modelled on the role of Boards supported by parliamentary inquiry. This form of regulation and regulator owed much to the history175 of statistical thinking and the innovations that accompanied mathematical and statistical study being applied to social problems, including public health, pollution and waste176. The revolution that transformed England from an agrarian to an industrial society continued into the 20th century.177 Studies on smallpox178, insanity and the causes of poverty were undertaken. Local statistical surveys identified inadequate poor law provisions and Boards of Public Health were formed to fill the gaps. Water and sanitation systems proved inadequate in the face of the growth of new towns and cities and lead to a variety of health problems including the 1831-2 cholera outbreak, which claimed 32,000 lives.179 The poor sanitary conditions were identified in the 1842 Parliamentary Report on the Sanitary Condition of the Labouring Population of Great Britain, which perhaps marks the beginning of environmental legislation. The House of Commons became a focal point for the collection of statistics on societal concerns from poverty and crime to unemployment. A series of Nuisance Removal Acts and the Public Health Act 1848 were introduced on the basis of this theory. Powers were given to local authorities to construct sewers, licence slaughterhouses and lodgings, and remove nuisances. The General Board of Health, a central government department, received default powers to regulate and enforce local authority powers and duties. The Public Health Act 1872 divided the country into sanitary areas and gave local authority enforcement powers. The Public Health Act 1875 consolidated the law on all aspects of public health180 and formed the foundation of the modern law on public health. There were major changes in housing law as well, with local authorities given powers to demolish unfit housing and erect buildings for working class tenants181. Similarly, environmental health considerations became a major focus of the legislation on food standards and health. The Housing, Town and Country Planning etc Act 1876 created in embryo the development of a system of town and country planning182 in Britain and came from concern that the problems of unregulated housing and overcrowding risked outbreaks of typhoid and cholera. Standards were also set for

175 A general historical analysis may be found in: C. Bell and R. Bell, City Fathers: The Early History of Town Planning in Britain Penguin, 1972. M.W. Flinn, ed., The Medical and Legal Aspects of Sanitary Reform Leicester: Leicester University Press, 1969. 176 See: On science see; John Gribbin, Science A History Penguin, 2003, A Wohl, Endangered Lives: Public Health in Victorian Britain London: Methuen, 1984 and also: C. Ponting, A Green History of the World, London: Sinclair-Stevenson, 1991. 177 W.M.Frazer, A History of English Public Health 1834-1939 (1950),R.A.Lewis, Edwin Chadwick and the Public Health Movement 1832-1854 (London,Longman,1952),M.W.Flinn, Public Health Reform in Britain (Macmillan,London, 1968). Evans, op. cit. p.12. Joel Mokyr (ed) The Economics of the Industrial Revolution (1985), U.S.A.; Rowman & Littlefield Publishers. Abbott Payson Usher An Introduction to the Industrial History of England Boston: Houghton Mifflin Company, 1920. 178 William Black, Observations Medical and Political on the Smallpox (london, 1830) 179 Francis McManus, Environmental Health Law Blackstone Press,1994 p.4. 180 In Scotland see the Public Health (Scotland) Act 1897. 181 see the Housing of the Working Classes Act 1885 and 1890. Also see the Shafestbury Act 1851 and the Torrens Act 32 & 32 Vict.c.130. 182 See: The Town and Country Planning Act 1947.


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the manufacture, sale and consumption of food and drink under the Adulteration of Food and Drugs Act 1872 and the Sale of Food and Drugs Act 1875.

The Poor Law Commissioners’ reports show that statistics on disease and its causes was accumulated from local and national surveys and linked the medical science and social science of the time, providing a basis for law reform. Both official and private183 statistical surveys co-existed and parliamentary select committees began to develop a statistical basis for parliamentary information. Government departments also began to collect statistical information. A Statistical Department, which gathered data on trade and manufacturers, worked from 1832 in the Board of Trade. This was followed by statistical sections being established in the Colonial Office, the Home Office and the Inspector-General of Imports and Exports. A General Register Office was set up under the Registration Act 1836 and indexed, collated and recorded the returns on births, deaths and marriages. The foundation for the use of statistical and scientific data as an aid to the resolution of social and environmental problems was truly established. Such information and degrees of transparency informed the early systems of regulators and regulation.

The outcome was the Alkali Acts of 1863 and 1868184 intended to control emissions from part of the heavy chemical industry. It was these that created the first inspectorate. The Rivers Prevention of Pollution Act 1876, brought forward the prevention and control of river pollution. This Act together with the Alkali Acts heralded the beginning of a pollution control strategy and laid the foundations of the "inspectorate" approach to regulation. The work of the Royal Commissions, the statistical societies and individuals collecting statistics recognised the important use of scientific statistics and data in support of law reform and in addressing regulatory problems.

The historical legacy provides an explanation of the tensions between regulation as a means of control and regulation as an enterprise linked to governing. The UK engaged in a twinning arrangement between regulatory control and regulatory governance that has proved resilient to economic and political change. There was private ownership of many utilities in the UK particularly gas, water and electricity, coal and transport. Private ownership sought monopolies over the supply and distribution networks. Local authorities partly owned or in some cases ran some of the gas and electricity companies. The end of the second world war brought a wave of nationalised industries and this defined their role and existence on the basis of public ownership in the public interest as public goods and services. Statutory powers accompanied many of the nationalisation arrangements within a theoretical model of public accountability. Ministerial responsibility and a select committee on the nationalised industries exercised oversight. Day to day control was in practice delegated to the nationalised company. Ministers struggled to exercise much overall control especially over investment decisions. The 1980s and 1990s witnessed the end of nationalised industries when state assets were sold off to the private sector. Nationalised monopolies required competition and action on consumer protection as well as the discontinuation of many of the cross subsidies that came from public ownership. Privatisation legislation resolved many of these issues through a new framework of pricing controls ( RPI-X was often used as a formula, based on the retail price inde), economic and competition regulation. Vulnerable customers

183 The best examples given by Cullen op. cit.p,23. were the various leading hospitals; Bethlem, Greenwich, St Thomas's, St Bartholomew's and St Lukes. 184 See: The Alkali, etc., Works Regulation Act 1906.


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required protection. At first the rise of the independent regulator was often ad hoc and sectorally specific, centred around a single regular as Director General. The Ofdog culture linked accountability with independence and expertise in the specific sector. Regulators and accountability: defining the public interest Post privatisation regulation has continued to develop partly a means of promoting competition within an EU framework and also in response to many different political agendas. The previous Labour government favoured defining the role of the regulator around social, economic and environmental considerations. Distributive concerns were addressed and institutional capture tackled in many instances through the replacement of the single regulator with a regulatory commission, particularly for energy and telecommunications markets. While competition policy remained, there were priorities set and efficiency goals to be achieved. The model adopted was close to the accountability view of transparency but also aligned with regulation as an enterprise close to the governance of the economy. This has led to detailed debate about the nature of regulation itself. Political considerations were strongly in evidence at this time.The “ better regulation agenda” as it was optimistically called had begun under the Conservative government in 1985 based on the idea of reducing administrative burdens and decreasing the cost of regulation185. Deregulation policy was shaped by a series of White Papers in 1985, 1986 and 1988186. A Cabinet Committee on regulation was established and this led to an ante- red tape virus that spread across Whitehall culminating in the Deregulation and Contracting Out Act 1994 after another series of White Papers187. The 1994 Act was further extended by the Regulatory Reform Act 2001 and then again by the Legislative and Regulatory Reform Act 2006. The movement in favour of deregulation was not confined to the UK as a similar approach was evident in the European Community, now European Union188. The invigoration of the light touch agenda was reinforced by the Hampton Report189 and the setting up of a Better Regulation Programme under the Better Regulation Executive, separated from the Cabinet Office since 2007. Hampton recommended the streamlining of many regulatory bodies and at the same time the co-ordination of regulatory policy with a regulatory impact assessment as part of each policy initiative. Adopting single strategies, reducing administrative burdens and driving regulation from the centre appears to offer an attractive style of regulation. Central government using traditional command and control techniques has sought to master the role of regulators while regulators look to decreasing controls and increasing autonomy among those regulated. The tensions are well explained by Black:

Indeed, rather than negating the decentred analysis, the observation that the state is seeking to increase its centralised control is its natural corollary. Either

185 See: the DTI White Paper, Lifting the Burden Cmnd 9571 (1985). 186 DTI White Paper, Building Businesses Not Barriers Cmnd 9794 (1986) and Releasing Enterprise CM 512 (1988) 187 DTI, Deregulation: Cutting Red Tape, (1994), Thinking About Regulation: A Guide to Good Regulation (1994); Getting a Good Deal in Europe (1994). 188 R. Baldwin, Is better regulation smarter regulation? (2005) Public Law 485 189 Philip Hampton, Reducing Administrative Burdens: Effective Inspection and Enforcement Final Report London: HM Treasury, 2005.


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through the establishment of “meta-regulators” to regulate non-state regulators as in the case of the accounting, medical and legal professions, or through the internal regulation of other governmental regulators, central government is seeking to enhance its steering capacity190.

The Macrory Review191 that followed the Hampton Report, was asked to look at the role of sanctions and the functioning of criminal sanctions. This is a critical part of the regulatory system. Regulators require a range of incentives and sanctions in order to be effective. The Macrory Review accepted that the existing use of criminal sanctions for regulatory offences was required. He also recommended that a new punitive regulation system was necessary rather than reliance on simple moral persuasion or good behaviour. He recommended an extension of the range and variety of penalties available to regulators. He adopted the principle that a regulators’ own sanctioning powers should be used rather than recourse to the formalised use of the criminal courts. Macrory’s recommendations were largely accepted by the government of the day. New compliance codes and greater managerial controls were also favoured, in his review, as a way of making the compliance arrangements more effective. The implementation of many of the Macrory Review’s recommendations can be found in the Regulatory Enforcement and Sanctions Act 2008. This underlines the shift beyond the criminal courts for the application of sanctions to regulator based systems of sanctions and enforcement. The Act underlines the five principles of regulation set out in Hampton namely enforcement action should be transparent, accountable, proportionate, consistent and targeted. The impact of the Hampton and Macrory Reports is important in setting the future direction for regulation in the United Kingdom. The Hampton Report reinforces and encourages a targeted approach to regulation that requires all regulators to perform risk assessments and to adopt an effective, efficient and proportionate response while not placing unnecessary burdens on business. The underlying philosophy is that financial information should only be sought when required. Intervention should be targeted and not invasive or detrimental to market conditions. Since 2010, the Coalition Government has introduced the One-in, One-out rule to achieve the main objectives which is to reduce unnecessary regulation and by cutting red tape it is hoped to deliver economic growth. Poorly designed, disproportionate or uncoordinated regulation is seen as an impediment to innovation and productivity192. The policy to increase deregulatory measures and refrain from additional legislative burdens is tightly policed and is monitored by a Regulatory Policy Committee. Any proposed regulatory responsibilities including statutory powers have to be assessed and subject to Impact Assessment. The One–in, One-Out policy requires that the cost of new regulations must be compensated for by a corresponding cut. Regulatory policies are increasingly driven by the demands of the government of the day. This may not always be consistent with the ideals of an independent and

190 J. Black, Tensions in the regulatory state (2007) Public Law 58 at p. 66. 191 R. Macrory, Regulatory Justice: Sanctioning in a post-Hampton World: A Consultation Document London: Cabinet Office, May, 2006 and Regulatory Justice: Making Sanctions Effective London: Cabinet Office, November, 2006. 192 HM Government, One-in,One-out: Second Statement of New Regulation Department for Business, Innovation and Skills, 2011.


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autonomous regulator accountable to Parliament, removed and distant from the regulatory policy making set by the Government of the day. It is fair to say that there are many forms of independence that might be used to protect regulators from direct political intervention. There is an attempt to ring fence the appointment process. One notable innovation is the use of parliamentary select committees to conduct hearings into appointments. Examples include the appointment of the Chair of the Care Quality Commission in 2008, the Children’s Commissioner in 2009 and the appointment of the Chair of the Office of Budget Responsibility in 2010. Frustrations over the regulation of the financial sector have also encouraged MPs to consider how the Bank of England governor should be appointed in the future. For example a private members Bill193 is currently before Parliament on the approval of any Bank of England governor being subject to the House of Commons Treasury Select Committee. This follows the precedent set by the Budget Responsibility and National Audit Act 2011 which requires the Chancellor of the Exchequer when appointing the chair to the Office of Budget responsibility to seek the consent of the Treasury Committee of the House of Commons. This is also consistent with the appointment of the Comptroller and Auditor General with the agreement of the Public Accounts Committee. The process of guarding the regulators is very much part of what Dawn Oliver calls “.. a complex web of accountees, including ministers and parliamentary committees194.” This involves actors such as the Ombudsman, the National Audit Office and various Parliamentary Select Committees, including the work of the House of Commons Public Administration Committee, the Treasury Committee, where regulatory supervision is relevant, and the Public Accounts Committee (PAC) and the Business Innovation and Skills Committee. Overall there have been some improvements on the work of Select Committees of the House of Commons known as the Wright Committee Reforms(named after its chairman former labour MP Tony Wright).There is now the Backbench Business Committee , Chaired by a member of a non-governing party, together with amended rules on electing members by secret ballot, are intended to reflect more cross party voices but outside the direct patronage of the Whips. This is designed to strengthen Parliamentary scrutiny over the Executive. This is the first business committee of any kind established by the House to give backbench MPs an opportunity to bring forward debates of their choice. The House of Lords Constitution Committee stands out for its expertise and attention to detail in contributing to supervision. It has provided one of the few systematic studies of regulators and their accountability including carefully considered recommendations195. The House of Lords EU Committee does its fair share of analysis and provides a forum for inquiry and written responses from ministers.

193 House of Commons: Research Paper 12/35 Bank of England ( Appointment of Governor) Bill 8 2012-13 ( 3rd July 2012). 194 D. Oliver, “ Regulation, Democracy and Democratic Oversight in the UK” in D. Oliver, T. Prosser and R. Rawlings, eds., The Regulatory State Oxford: Oxford University Press,2010 242-266. p. 251 195 House of Lords Constitution Committee, “ The Regulatory State: Ensuring its Accountability HL 68 ( 2003-04) Also the House of Lords Committee on the Regulators, “UK Economic Regulators” HL 189 ( 2006-07).


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The role of the National Audit Office (NAO) is significant196. The NAO undertakes regular Hampton surveys of regulatory red tape. The Government’s latest, White Paper, Open Public Service (July 2012) sets the agenda for expansion of market led provision over public goods and services. The NAO Report makes clear how risk assessment of the market197 is an important part of regulatory supervision as a means of protecting public money. , The Financial Crisis and the implications for the UK regulatory system One of the major impacts of the financial crisis is on the UK banking system and the economy as a whole. Julia Black has estimated that collectively Governments in the US, UK and EU injected over $4.8 trillion into the support of their financial institutions.198 The UK is currently forecast by the OECD to have the tenth highest debt of the 31 leading economies.199 UK gross public debt increased from 46.0 % of GDP in 2006 to 82.2% in 2010. The effects of the financial crisis on state debt is likely to be of long standing. In 2012 gross public debt is forecast to be 97.2% of GDP and in 2013 to be 102.3%.The UK is running a budget deficit set in 2011/12 to be £576 billion with government spending forecast to be £703 billion. Primarily the budget deficit is financed through the sale of government bonds. As of June 2012 Quantitative Easing reached £375 bn as the Bank of England struggles to encourage economic growth in the UK economy, currently in recession.200 While the economic scale of the financial crisis is clear for all to see, there are important constitutional and regulatory effects. Institutional architecture alone does not determine successful regulation. The future success of financial regulation will largely depend on the type of regulation, the competences of the regulators and the effectiveness of risk assessment. Much can be learned from the post-2008 experience of the FSA. The Turner Review201 undertook an in depth review of mistakes and lessons to be learned from the FSA’s failures including its failure to predict the vulnerability of Northern Rock. The publication of the Turner Review was followed by a period of self-examination with much discussion about the fundamentals and style of financial regulation that was most appropriate and effective. There was also a debate about accountability and greater responsibility amongst the banks. Past banking failures, BCCI202 in 1991, Johnson Matthey Bank

196 See: Ed Humpherson, “Auditing Regulatory Reform” in D. Oliver, T. Prosser and R. Rawlings, eds., The Regulatory State Oxford: Oxford University Press,2010 266-282. 197 NAO, Delivering public services through markets: principles for achieving value for money June, 2012NAO, 2012 198 Julia Black, “ The Credit Crisis and the Constitution” in D. Oliver, T. Prosser and R. Rawlings, eds., The Regulatory State Oxford: Oxford University Press,2010 92-128, p.92. 199 See: HC Standard Note SN/EP/6054 Government borrowing and debt: international comparisons ( 27th January 2012). Also see: HC Standard Note: SN/EP/6167 The budget deficit: a short guide ( 20th December 2011). 200 Quantitative easing is where the Bank of England prints additional funds in return for bank securities. 201 FSA, The Turner Review: A regulatory response to the global banking crisis London: March, 2009. 202 Lord Bingham, Inquiry into the Supervision of the Bank of Credit and Commerce International HC (1991-2) 198.


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(JMB)203 in 1984 and Barrings Bank204 in 1995 raises questions about the viability of the UK’s banking sector. The Northern Rock collapse had the potential to start a run on the main High Street Banks and financial institutions and posed a much more serious risk. The failures of financial regulation particularly of Northern Rock, contributed to a rethink of financial regulation in general. The Turner Review205 recommended a strengthening of regulation and a more robust approach to Risk Management and Governance206. From a regulatory viewpoint, the original adoption by the FSA of a principles based “light touch” regulatory system had been largely consistent with a general approach to regulation that found support amongst the main political parties. It was found wanting and ironically by the FSA , its most enthusiastic supporter. In fact, at the time the rejection by the FSA of principles based regulation- the main cause of the lack of appropriate bank supervision, tended to divert attention from the fact that amongst the major political parties the FSA’s approach had been welcomed and supported. It is clear that what ever the failings of principles based regulation and its shortcomings there was considerable support for its continuation on the basis of saving costs, reducing red tape and minimising regulatory burdens Consequently the accountability model of an independent regulator is seriously undermined by regulatory governance supported by political parties. While Hampton and Macrory favour a continuation in the deregulation strategy, their analysis of the need for risk assessment and strategic use of tougher penalties is also consistent with the FSA’s past approach to regulation. High profile fines and convictions were used as a means of enhancing the profile of the regulator rather than delving into the overall picture of financial control and stability. Both reports raise issues about how in general regulators are to be held to account. The reliance on legal forms of accountability through penalties and sanctions makes the assessment of regulatory decisions primarily based on compliance with codes and legal rules. Risk based accountability often enhances managerial accountability within the regulatory body. In many instances this is open to interpretation but may become a form of self regulation of the regulators themselves whose test of failure is seen as the assessment of the risk that has itself been defined by the regulators based on the self-assessment of the financial company. The latter is vulnerable to the company’s own limitations and the financial know-how of senior managers. This form of accountability is less than satisfactory in the banking world in particular, where banking supervision rarely comes to the surface in the day to day discussion of regulation and only becomes publicly discussed in the aftermath of a banking failure. Reliance on “know how” or expertise leaves much to the expert at the local

203 The Bank of England decided to rescue the JMB and offered 50% of the £150 million of guarantees in return for bank ownership at a token amount. The various London Clearing Banks and the other four members of the gold bullion club provided the remaining guarantees. The rationale for take-over came from a fear of loss of confidence in the banking system and undesirable consequences from a knock on effect. 204 See: Sixth Report Treasury and Civil Service Committee, The Regulation of Financial Services in the UK HC 1994-5 332-I . 205 See Generally the FSA, The Turner Review: A regulatory response to the global banking crisis London: March, 2009 206 FSA, The Turner Review: A regulatory response to the global banking crisis London: March, 2009


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level. Supervision is not easy to achieve. There is also the problem of “poacher” and “game keeper” in terms of the recruitment of suitably qualified staff to act as regulators. Close regulatory connections with the company’s being regulated may lead to “ institutional capture”. Technically risk assessment of high risk investments is often dependant on luck as much as judgement; a market of risk is the core of some sectors of the banking industry. It will be remembered that the history of the Bank of England from the 18th and 19th century is one of a private form of regulation that depended on self-enforcement and access to complex and technical financial information. Confidentiality and internal systems of control have strong influences on the culture of regulation that ring fenced the Bank from too much political interference and media intrusion. The decision to replace the FSA with the Bank of England raises questions about how the Bank of England as the main financial regulator will transform its role from its past inheritance?

There is potential for serious conflict in the approaches to regulation. The Coalition Government is strongly committed to cutting red tape; reducing the regulatory burden and government intervention. It has “culled” a number of regulatory bodies, reduced funding and recruitment to others and has the potential to take this further by reducing the impact of regulation in general. There is an ideological preference for less rather than more and the “ less” may be defined as light touch rather than broad intervention. Tony Prosser suggests that there are some dangers:

However, it is easy for the emphasis to shift to a hostility to regulation as such; as the title of a Better Regulation Taskforce report put it “ Regulation – Less is More”207.

This leaves uncertain how effective regulation is expected to be? It also represents a management shift in two incompatible directions. One approach is currently favoured by the FSA in the direction of a tougher regulatory approach with an increased reliance on prosecutions and less dependency on institutions undertaking their own due diligence. The other approach is to relax regulation and adopt some form of “ principles based regulation commensurate with a lighter touch regulatory approach208. In the aftermath of the failure of effective regulation during the 2008 financial crisis, the FSA set about reforming itself and introducing changes in its approach to regulation. The FSA came under sustained criticism for its failures, particularly, in not preventing the collapse of Northern Rock and in not foreseeing the extent of the financial crisis. The election of the Coalition Government in May 2010 led to wide ranging and radical reforms. The Financial Services Act 2010, introduced by the new Coalition Government, made substantial changes to the FSA, and its powers and duties as part of wide ranging changes to prudential financial regulation.209 It was announced that the FSA is to be abolished and its functions split up. The FSA is to

207 T. Prosser, “Models of Economic and Social Regulation” in D. Oliver, T. Prosser and R. Rawlings eds., The Regulatory State: Constitutional Implications Oxford: Oxford University Press, 2010 p.48. 208 Legal Services Board. Business Plan 2009/10 and The Solicitors Regulation Authority Achieving the Right Outcomes ( 2010) It is also in evidence in Health and Safety Executive see the consultation paper CD 234 Proposals to implement the third list of indicative occupational expose limit values and related risk assessment consultation papers. 209 Some additional powers have been added including a new financial stability objective and additional enforcement powers. This includes co-operation with the Treasury, Bank of England and other relevant statutory bodies. Disciplinary powers have also been strengthened.


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be renamed the Financial Conduct Authority (FCA) and will focus on consumer protection and market oversight. The main task of prudential supervision of banks is to be moved within the Bank of England into an independent subsidiary the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA). Ellis Ferran notes:

Likely transition costs for HM Treasury, the Bank and the supervisory authorities were initially estimated to be in the region of £50 million spread over three years, but after initial consultations, the estimated figure has been increased to between £90 and £175 million.210

Throughout the current period of transition during 2012, the Financial Services Authority (FSA) with a staff of nearly 4,000211 has provided an important link between the old and incoming new systems prior to their gradual introduction in the coming months. In terms of regulator accountability there are worrying lessons to be gained.

The Bank of England will be at the apex of the system of financial regulation in the UK under a system of macro-prudential regulation aimed at addressing risk and association of banking with the wider economy. Doubts have remained about the Bank of England’s ability to achieve this aim, given its past regulatory history and its involvement in the 2008 financial crisis. In the past banking failures have been attributed to problems with the Bank’s capacity to predict and overview systemic weaknesses. The Government’s belief is that a central bank focused structure for financial supervision is desirable because the central bank “has a competitive edge due to their first hand exposure to markets and the depth of their staff’s experience in the functioning of financial firms and markets”.212 Within the Bank of England there will be a new Financial Policy Committee (FPC) with responsibility for preventing credit and asset bubbles and ensuring overall financial stability. There will be several additional advisory bodies with specific responsibilities. These include, the Prudential Regulatory Authority (PRA) a legally distinct subsidiary, with responsibility under the Bank of England for micro-prudential supervision of day to day matters relating to bank safety and soundness. Its main focus is on the prudential regulation of financial firms. The PRA will have many of the FSA supervision and enforcement powers. It will have shared responsibilities in consumer matters with the Financial Conduct Authority (FCA) that has responsibilities for investor protection, market supervision and regulation as well as the business conduct of banks and financial services. Consumer protection will be at the centre of its main activities. Originally the FCA was to be called the Consumer Protection and Markets Authority (CPMA) but after initial consultations it was renamed the Financial Conduct Authority (FCA).

The FCA inherits many of the FSA’s responsibilities but the main test of the FCA will be to ensure consumer protection amidst changes in derivates trading as a consequence of changes in the United States. The role of the Bank of England will be paramount through providing the necessary guidance to negotiate the regulation of exchanges, the payment systems for derivates and the facilities for securities and derivatives. All of which fall within the remit of the FCA. The PRA and FCA were intended to have their own independent enforcement powers but this seems to have

210 Ellis Ferran, “The Break-up of the Financial Services Authority” Oxford Journal of Legal Studies Vol. 31 no. 3 (2011) 255-480 p.456 211 FSA, Annual Report 2010/11 pps. 99-100. 212 Para. 2.14 White Paper.


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been modified with the FCA taking the lead role and having additional powers to enforce consumer rights. One important movement in terms of independence and the model of regulatory accountability is the creation of the Office of Budget Responsibility is an innovation marking out the necessity for an independent body to oversee the government’s handling of the economy and to act as a check on the Treasury. This serves to underline one of the foundations of UK government accountability. The financial crisis has had profound effects on the way banks are regulated and the effectiveness of constitutional scrutiny. It is important to consider these questions in the context of banking regulation in the UK, that is the soon to be replaced, Tripartite arrangements under the Financial Services and Markets Act 2000 – the Bank of England, the Treasury and the Financial Services Authority (FSA). The Coalition government made major architectural changes to this tripartite arrangement of financial regulation including making the Bank of England the key financial regulator with the abolition of the FSA and the splitting up of its functions. This adds considerable uncertainty especially in the unproven nature of these changes. Political tinkering is much in evidence in choosing the most appropriate form of regulation and whether this will prove effective is very much open to discussion. Could outcome based regulation offer a more effective form of regulation or is the Government’s desire to return to a light touch form of principles based regulation moving the goal posts once more?

The new structure of regulation provides the Bank of England with a pivotal role. It is unclear how this will work in practice specifically, the interrelationship between the Bank of England, the FCA and the PRA. The main driver of the changes is not only the politics of abolishing the FSA but a strong political engagement to create a new system of regulation213. To what extent will the new arrangements have operational independence? How will the FCA be held to account? The changes mark an important break from the Tripartite system ( The Treasury, FSA and the Bank of England) and a major change in the regulatory architecture which raises a fundamental question about the desirability of giving primacy to the Bank of England, The two models of regulation control and governance are likely to be intertwined more closely than in the past. The key issues, however, go to the suitability of the Bank of England to have regulatory pre-eminence. As the central bank, it also has to retain pre-eminent responsibility to oversee money and payments systems and retains the role as lender of last resort. It will also continue to have ultimate responsibility for systemic risk. Given the responsibilities and burdens of regulatory oversight, undoubtedly there are questions as to how the Bank of England is to act as the major financial regulator. It is clear that future developments in legislative reforms will have to take account of the current nature of a crisis in confidence in the regulatory system. Three issues are worth considering. First, there is a strong demand for greater public accountability over the banking sector. Second there is a noticeable distrust in expert systems and a growing frustration with public institutions. Third, the role of parliamentary scrutiny has weakened considerably given the reputation of MPs following the corruption scandals over MPs expenses. The setting up of an independent inquiry into the LIBOR scandal has also proved controversial: the Government favoured the use of the Treasury Committee, the opposition favoured a judge-led independent inquiry. In

213 See: Eilis Ferran, “ The Break-up of the Financial Services Authority” (2011) Oxford Journal of Legal Studies 455.


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the event the Government view prevailed and the Treasury Committee will report by the end of the year. Limited parliamentary debate was possible during the height of the crisis and the rescuing of Northern Rock. The Bank of England’s powers to manage the crisis under the Banking Act 2009 limited Parliamentary oversight. Stabilization options were not subject to parliamentary scrutiny as the legal powers did not require prior authorisation or parliamentary legislation. There are also questions about the effectiveness of various constitutional actors including select committees. Criticism of the Bank of England has already been noted especially in terms of the debate over transparency and effectiveness. Doubts remain as to how the Bank of England will develop its new regulatory role after the FSA is disbanded. One of the most interesting issues to arise from the financial crisis is the role of the Treasury which has been the subject of criticism that it failed to predict the financial crisis and take the relevant steps to avert its consequences. A recent internal review of the Treasury’s Management response to the financial crisis214 undertaken by Sharon White makes a number of findings and recommendations. The findings included recognising the additional support provided within the Treasury and work load attended to by Treasury officials. Lessons gained include better contingency planning and mobilisation, establishing better links between financial stability and macroeconomic policy, continuous monitoring of financial risks and procurement of external advisers where required. Various recommendations are included to strengthen the workings of the Treasury. Crisis management is at the heart of the strategy with proactive risk assessment as part of a new management style. Salaries for civil servants also need to be addressed in a department where there is an average annual turnover of 25% of staff. Retaining expertise is challenging and difficult especially when the private sector attracts higher salaries and more attractive employment opportunities. Organisational challenges remain for the future including clarity about protecting the taxpayers’ interests through risk assessment and evaluation. The success of the Government’s financial reforms will depend on providing sufficient integration with the Bank of England and the new regulatory authorities. Drawing together the different strands of constitutional impact is challenging. Much can be made of the advice received within the civil service and made available to ministers. Tension between public sector advice and private sector expertise may leave regulatory agencies struggling to compete. Perhaps the greatest constitutional problem is to make the civil service more reactive and better trained to contend with private operators and their expertise. Austerity budgets within national systems add to the pressure on democratically elected governments to balance popular support with external pressures for fiscal responsibility. National interests protected by constitutional authority have set up tensions within the European Union. Since March 2009, the Bank of England has been active in pursuing a policy of Quantitative Easing (QE). This is undertaken by the Governor of the Bank of England, with the tacit agreement of the Chancellor of the Exchequer. The reporting mechanism is through the Monetary Policy Committee (MPC). The Governor of the Bank of England may be called before the Treasury Committee or the Public Accounts Committee and questioned , but this is very much after the event. Total

214 HM Treasury, Review of HM Treasury’s response to the financial crisis, March 2012


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amounts of Quantitative Easing are £325 bn to 9th February 2012215 with an additional £50bn in June 2012 making a total of £375 bn. Conclusions The question of are regulators accountable may be considered in different ways. If regulation is seen in terms of control, the regulators are subject to a wide variety of constitutional devices – annual reporting, there is oversight offered by Parliamentary select committees, the National Audit Office and Ombudsman. Dawn Oliver216 seeks to improve and strengthen parliamentary accountability systems through the creation of a Joint Select Committee modelled on the Joint Committee on Human Rights. Another alternative, though unlikely in the current climate of budgetary cuts is some form of standing Royal Commission. The model here is the Royal Commission on Environmental Pollution which was recently abolished. If regulation is seen as an economic model of enterprise then accountability is more complex and intrinsically bound up with policy making and government priority setting in budgetary controls. This form of accountability operates along traditional lines of ministerial accountability. In the UK the role of an independent regulator is linked to policy choices and priorities set by the Government of the day. Financial regulation has shown the problems and vulnerabilities of regulation when the style of regulation may favour the markets in the short term but may not be effective enough to prevent examples such as Northern Rock. Accountability systems have to address both economic models - regulation as control and regulation as enterprise. Making regulators accountable may only be achieved when systems of accountability address both aspects. There is likely to be an on-going debate about effective regulation in the light of the financial crisis and contradictions in reducing regulation while strengthening the financial soundness of many institutions217 through the better regulation agenda and robust forms of risk evaluation.

Are regulators accountable? Gérard Marcou

Professor at the University Paris 1 Panthéon-Sorbonne Sorbonne School of Law, UMR of Comparative Law

Regulators have an increasing roll in policy-implementation, but also in policy-making in key sectors of the global economy. As a consequence, the responsibility of elected political bodies in these policies is in fact increasingly dependent upon them. The independence of regulators, which is deemed to guarantee rights and legitimate interests of individuals and legal subjects may turn to a deficit of accountability of regulators and hollow the capacity of governments in policy-making. However, before confronting the mechanisms of independence of regulators to their accountability it seems necessary to clarify some conceptual issues of the discussion, which is developing in France and in Britain on partially different basis, in order to avoid misunderstandings. I. Questions on conceptual issues

215 House of Commons: Quantitative easing SN/EP/4997 ( 22nd March 2012). 216 D. Oliver, “ Regulation, Democracy and Democratic Oversight in the UK” in D. Oliver, T. Prosser and R. Rawlings, eds., The Regulatory State Oxford: Oxford University Press,2010 242-266. pps 263-4. 217 House of Commons , Themes and Trends in Regulatory Reform HC 329-II


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The multiplication of independent administrative authorities is one of the major changes occurred in government structure during the last past years. This multiplication, but not the origin of such institutions, has been fostered by the new public order of the economy, based on the generalisation of competition and market relationships in all economic sectors. Competition is no longer only the result of private business relationships, it has turned to be a basic norm of public law enforced by government for the general public interest and corresponds to a new institutional interpretation of economic relationships. A number of economists consider that markets have to be regulated by institutions organised outside of the political sphere218. The European integration process has strongly supported this paradigmatic change. However, these authorities question basic principles of the democratic state, such as the separation of powers and the political responsibility of governments. But, from the viewpoint of the law, they are never organised outside of the public power, they are rather a new form of its exercise and this raises the question of the substance and purpose of this alleged independence. Starting from their own legal tradition, European countries have developed such authorities under rather different organisational and legal forms: they may be independent on the executive power or on the contrary subject to the authority of a minister; they may be legal subjects or not; they may cover several sectors or only one each; they may have quasi-judicial powers or not, and so on; their jurisdiction may be on the economy or not (see the newly created Defender of Rights in France - constitutional review 2008). Furthermore, there are terminological issues to be solved, which are also conceptual issues. The word "regulation" is now widely used but there is in Europe no commonly accepted definition of "regulation", and in particular the EU legislation does not give any definition of it, also when it provides for "regulatory authorities". Then, the word "regulation" refers in English to rules, rule-making, implementation and compliance. In French as well as in other European languages, there is a difference between "régulation" and "réglementation" (see also: "Regulierung" and "Regelung"; "regulación" and "reglamentación"). This uncertainty is reflected in variations in linguistic versions of EU directives: in the French versions, the directive 21/2002 on electronic communications provides for an "autorité réglementaire nationale" whereas the directive 73/2009 on the electricity market provides for an "autorité nationale de régulation"; but, in the English versions, we find the same words: "national regulatory authorities". This has consequences on the scope of discussions. The notion of regulation is much widely used in discussions in English law than in French law. It is possible to refer to regulatory developments of the 19th century on industrial activities. John McEldowney may refer to Nuisance Removal Acts, to the Poor Law commissioners, to the beginnings of town planning, to the Sale of Food and Drugs Act, to Alkali Acts, as first experiences of regulation and control over industries, and first steps of a "twinning between regulatory control and regulatory governance". In France, such legislations were adopted as well, but they never were devised as "régulation" in the present meaning of the word; this was a matter of "police administrative", a basic function of the State conceptualised by administrative law as a consequence of the separation of powers introduced by the French Revolution, meaning that the function of establishing offenses is performed under the control of the judicial authority,

218 In France, in particular: Tirole, J. (1993 and 1995), Théorie de l'organisation industrielle, tomes I et II, Paris, Economica.


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whereas administrative authorities have to prevent and remove risks of trouble of the public order. So called "polices spéciales" are police powers making possible additional restrictions to individual freedom because of the special risk resulting from a particular activity. For example, the first piece of legislation on nuisance and pollution is an order of Napoleon the First in 1810. For the implementation of such legislation, specific inspections were also created (for nuisances, for health, for work safety...) as in Britain; later on, some of them were placed under the authority of the prefects). But, in France, such arrangements have never been seen as "régulation". This word appeared first in the field of thermodynamics in order to describe how to keep a stable balance between interacting physical factors. It was picked up much later by sociologists, economists and political scientists as an analogy within the framework of a system analysis. One of the typical uses of the word was the conceptualisation of the relationships between local politicians and the State administration by the formula "régulation croisée"219. In the field of law, it was used by the Council of State in its report of 1983 on independent administrative authorities to characterise the mission of such authorities as "something intermediary between policy-making, which belongs only to elected bodies or bodies directly controlled by them, and service management, which is the business of administrations under their hierarchical power or oversight" and aimed at achieving "the kind of balance between rights and duties that is designed by the law"220. Nevertheless, it is only from the late eighties that the word "régulation" began to be widely used by lawyers221; this is closely correlated with the major change in economic policy resulting from the European Single Act 1987 that has engaged the single market integration process, involving the dismantling of public monopolies and the submission to market rules of economic sectors until then under State control. In this context, the mainstream in the literature as well as in political discourses has been to use the word "régulation" to describe a basic change in economic policy, with the State withering away from a command economy based on public sector and planning towards a market based economy within which the State has to set framework rules and to orient behaviours with economic incentives222. For most lawyers, this turn did not require a new conceptualisation, but only a new systematisation of the public law of the economy223. For several authoritative authors, the so-called "régulation" was only using classical legal instruments of the "police administrative"224. As a consequence, most textbooks of administrative law do not devote much place to "régulation".

219 Grémion, P. (1976), Le pouvoir périphérique: bureaucrates et notables dans le système politique français, Paris, Le Seuil. 220 Conseil d'Etat, "Rapport public 1983", Etudes et Documents 1983-1984, n°35, p.20. 221 Autin, J.-L. (1995), "Réflexions sur l'usage de la régulation en droit public", in: Miaille, M. (dir.), La régulation entre droit et politique, Paris, L'Harmattan "Logiques juridiques". 222 Prager, J.-Cl. / Villeroy de Galhau, F. (2003), Dix huit leçons sur la politique économique. A la recherche de la régulation, Paris, Le Seuil. 223 Typical for this position is: du Marais, B. (2004), Droit public de la régulation économique, Paris, Presses de Sciences Po / Dalloz, in particular pp.482 s. 224 For Pierre Delvolvé, "régulation" is only a new set of special police powers for the safeguard of competition (1998, Droit public de l'économie, Paris, Dalloz, pp.427 and 561 s.); for Yves Gaudemet, "régulation" is an "economic police justified by the explicit objective to open and maintain competition" ("La concurrence des modes et des niveaux de régulation. Introduction", Revue française d'Administration publique, 2004 n°109, p.14).


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However, a minority of authors have supported the view that a new conceptualisation was needed as a consequence, not only of the economic policy, but also of the changing economic public order225. For Marie-Anne Frison-Roche, the generalisation of the market was supporting the formation of a new branch of law, beyond the traditional distinction between private law and public law, enforced by a new type of institutions, the independent regulatory authorities226. For Gérard Marcou, "régulation" is a new function of public administration, to be distinguished from "police" and "service public", it is part of public law, its purpose is to enforce the balance designed by the law between the implementation of new market rules in sectors where they did not apply and the achievement of non economic public policy goals that would be impossible on a pure market basis. Following this conception, "régulation" is not the exclusive function of "regulators"; it is on the contrary a function shared by other public authorities, in first place the Government and ministers227. Whereas M.-A. Frison-Roche does not consider the relationships between "régulation" and "police", G. Marcou emphasises that regulation goals differ from police goals. As a whole, the debate on regulation is in France on terms that differ from the terms of the debate in the UK. However it is possible to bridge both approaches, taking advantage of the distinction proposed by Tony Prosser between two economic models of regulation: the accountability model and the governance model, summarised by John McEldowney by the contrast between regulation as control and regulation as an enterprise. It is possible to interpret in that way the regulatory functions performed in France by independent administrative authorities - or other institutions vested with the function of "régulation". As far as such authorities deliver permissions, settle disputes between companies or issue penalties for breach of their obligations by companies, they perform regulation as "control", we are in the accountability model. When they analyse market changes, issue rules and economic or technical matters, give advices to the Government on public policy, they perform "régulation" as an enterprise, they cooperate with the Government and with economic subjects, we are in the governance model. But, by contrast with the British approach, "régulation" is generally bound in France with a competitive environment, whereas in the UK it has a much wider scope. As a consequence, the issue of accountability, and hence the substance of the alleged independence, have to be considered differently in both cases. As far as regulation as control is concerned, the independence of regulatory bodies is fully justified. This is independence with respect to economic subjects within their jurisdiction with respect to other public bodies. The assessment of the situation of an economic subject with regard to its legal duties, the infliction of a penalty, the adjudication of a dispute settlement, issuing licenses, all these decisions have to be taken in conditions that guarantee the addressee impartiality and fairness in the

225 Marcou, G. (2009), “L’ordre public économique aujourd’hui. Un essai de redéfinition”, Annales de la Régulation 2009, Institut de Recherche Juridique de la Sorbonne, pp.79-103. 226 Frison-Roche, M.-A. (2001), "Le droit de la régulation", Recueil Dalloz, chronique 7, p.610. 227 Marcou, G. (2005), "Régulation et service public. Les enseignements du droit comparé"; pp.11-63 dans: Marcou, G. / Moderne, F. (dir.), Droit de la régulation, service public et intégration régionale, Paris, L'Harmattan "Logiques juridiques", 2 vol.; Marcou, G. (2006), "La notion juridique de régulation", Actualité juridique Droit administratif n°7, 20 février, pp.347-353.


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handling of his case. This should not be biased by partisan or other undue considerations. As a consequence, regulatory bodies have to be organised and to proceed in such a way that legal subjects within their jurisdiction can trust them. Then, their accountability should be limited to judicial review by courts and overall parliamentary control, without any possibility to interfere in individual cases. By contrast, as far as regulation as enterprise is concerned, whereas independence with regard to economic subjects within their jurisdiction has still to be preserved, there is no justification to independence of regulators with respect to Government and Parliament. Regulators (including independent administrative authorities) are then co-actors in policy-making, for which they provide expertise, but they do not have the final decision on policy choices; this is why their rule-making activity is usually limited or subject to final approval or instructions by the Government, not only in France but also in all European countries. This distinction also facilitates further differentiation between regulatory bodies. It is obvious that general competition authorities perform regulation as control. They only have to ensure compliance with competition rules, and they can inflict heavy penalties in case of non compliance; they have neither dispute settlement nor rule-making power. Nevertheless, they may act as advisory bodies for other regulatory bodies or for the Government. By contrast, sector regulation extends to regulation as enterprise; regulatory bodies are involved in policy-making and rule-making directly or through their participation to the government process; following EU directives, economic sector regulators have also to perform a dispute settlement function. Usually, regulators of the financial and banking sectors are considered as paramount examples of regulation, both under British and French understanding of regulation, and the ongoing financial crisis focuses public attention upon them. This can be disputed on the basis of several considerations. First, these are the only sectors for which another technical term is currently used: "supervision" (in French: "surveillance"). The "regulators" have to supervise the financial markets, the banks and insurance companies. Supervision was put forward first in the declaration of the Pittsburgh summit of October 2009, announcing a review of the rules applicable to financial activities; the document did not use the word "regulation". Second, with the establishment of the three EU financial supervisory bodies in 2010228, the purpose was to organise the "supervision" of banks, insurance companies and pension funds, financial markets and brokers at the EU level and to set up a "macro-prudential supervision" based on the cooperation between these authorities, also in charge of overseeing the national supervisory systems. According to common understanding and current practice, supervision includes the power of the supervisory authority to investigate at any time on the situation of any financial institution and, in extreme cases, to remove the management. This not "light touch regulation", this is potentially a pervasive and coercive regulation, and in case of identified risks, the EU supervisory body is entitled to take steps towards national supervisory bodies that would practice a too much "light touch regulation". Lastly, reforms reinforcing the overall authority of the central bank upon supervisory bodies, in France (ordinance of 21 January 2010 and law of 22 October 2010) as in the UK, suggest that supervision is indeed a regulation of a different nature. In France, the new Autorité de Contrôle Prudentiel is an independent administrative authority chaired by the governor of the central bank; it replaces with extended powers the former Commission bancaire,

228 See regulations of the Council and the Parliament of 24 November 2010, n° 2010 / 1092 to 1095.


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Autorité de contrôle des Assurances et des Mutuelles and two other bodies. It has three tasks: i) deliver licenses and leaves; ii) perform "permanent supervision of the financial situation and operation conditions" of banking and insurance institutions; iii) oversee the compliance with the rules deemed to protect their clients. For these purposes, the ACP exercises control powers, police powers and sanction powers (see: Financial and Monetary Code, art. L.612-1)229. Unfortunately, there is little evidence that these arrangements enable governments to put the financial sector under control, but this is another story. In this context we can observe contradictory tendencies. the EU requires more independence, whereas governments are looking for more accountability II.

229 For more details, see the dossier "La régulation bancaire et financière" published by the journal: Revue de Droit bancaire et financier, vol. 12, n°4 juillet-août 2011, p.56, in particular: Lasserre-Capdeville, J., "La convergence du droit régissant l'Autorité des marchés financiers et l'Autorité de contrôle prudentiel", p.57, et: Kovar, J.-Ph., "Les autorités européennes de surveillance: organes des régulateurs nationaux, agences européennes de régulation ou autorités européennes de régulation?", p.70.


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Independence and accountability Independence and accountability are ambiguous notions that need to be further elaborated. Independence with regard to whom and for which purpose? Accountability to whom and of what? Both are closely linked with each other. Whereas governments are inclined to strengthen the accountability of regulatory bodies, the EU law requires more "independence" of regulatory bodies in sectors regulated by EU legislation. For sure, accountability is not control; independence is possible only within the framework of the law and subject to judicial remedies; but judicial review is not accountability either. But, various institutional and sociological factors support a growing independency of regulation with regard to governments, in particular at the European level. A) Regulatory objectives and accountability The requirements and the form of accountability depends very much on the regulatory goals. The main question is the following: is "régulation" for the benefit of the regulated industries or for the benefit of the society as a whole, for the well being of users or customers? Accountability to political bodies is justified only in the last option. But, precisely, nobody has ever pretended that regulation was just for the benefit of regulated industries. If it is for the benefit of society, if it is a public interest, it is legitimate that regulatory bodies are subject to guidance by political bodies, but in case of individual decisions. This has various implications. One of the most important is on financing: it is dubious to grant own resources directly paid to regulatory bodies by regulated industries. If it is so, how can be avoided that the managers and shareholders expect regulatory bodies to deserve their own interests and the personnel of the authorities to be concerned in first place by the satisfaction of the regulated industries? This is no direct breach of the requirement of independence with respect to regulated industries, and this independence is guaranteed by all kinds of obligations imposed upon members of the regulators, but creates an environment more favourable to the interests of the regulated industries. In France, only the Financial Markets Authority (AMF) is fully funded from own resources; the Higher Health Authority, in charge of the accreditation of health care institutions, of medical care protocols and of the evaluation of medicines reimbursed by the Social Security, is also largely funded by regulated institutions. In both cases, there is a strong risk of a deviation towards neo-corporatism. B) Various concepts of independence related with accountability There are various conceptions of the independence of regulatory bodies across European countries. Broadly speaking, we can distinguish two models: 1) Independence with regard to other public bodies as well as regulated industries: This is the French conception; there exist now about 40 authorities of that kind, most of them are independent administrative authorities (e.g. without legal personality), but only a minority are vested with "régulation" functions in the French sense. The first ones were created to protect specific human rights with regard to government, and were therefore established as independent (see the National Commission on Informatics and Freedom, to prevent abusive files of personal data). This model was available when it was necessary, in 1996, to organise the regulation of telecommunications independently from the government since the historic operator France Telecom was still a public corporation. Italy, Spain, Greece, Portugal were largely influenced by this conception. Authorities are less numerous in Italy, where


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the Council of State considers that the Government is not responsible for them: "autorità ubicate fuori del circuito della responsabilità politica" (C. di Stato, 12 February 2007). Spain is the first country that has introduced a general legal framework for all independent authorities that are regulatory bodies. These authorities are defined as "being vested with organic and functional autonomy, full independence with respect to public administration and market operators" (L n°2/2011, 4 March). They are legal subjects, the government appoints all members subject to prior consultation of the competent parliamentary commissions, but cannot issue sector-specific guidance. 2) Independence with respect to regulated industries but not with respect to government This the position of all other European countries, in particular in the UK. The constitution commission of the House of Lords, in its report of 2004 on the "regulatory State", supported the appointments by secretaries, rather than by an independent commission with the following argument: « The appointments are being made in order to carry out public policy for which Government has responsibility. It reflects part of the checks and balances within the regulatory system as a whole, and, most fundamentally, carries the clear message that Ministers retain the responsibility, through a democratically elected Government, for the overall operations of the regulatory state »230. In Germany also, the constitution as interpreted by the Constitutional Court makes impossible to design regulatory bodies for which the government would be accountable to the parliament, and therefore that would not be accountable to the government. They are "independent higher federal authorities" (unabhängige Oberbundesbehörde): e.g. they are not part of the ministerial administration but are subject to the authority of the minister that is entitled to direct them published general instructions. Furthermore, the German regulatory model makes a clear distinction between the competition authority (Bundeskartellamt), the regulatory authority for network industries (Bundesnetzagentur, law of 13 July 2005) and the supervisory authority of financial markets and banks (BaFin: which is a legal subject by contrast with previous ones but performs its tasks under strict control of the federal minister of the economy). 3) The EU law model First directives required only the independence of the national regulatory authorities with regard to the regulated industries. Only from 2008, new directives on postal services, on electronic communications and the energy market required full independence of national regulatory authorities from other public bodies. Later on, the Court of Justice supported this orientation in its sentence of 9 March 2009 "Commission c. Germany" concerning the implementation of the directive on the protection of personal data by private persons. A regional legislation was declared in breach of EU law because it provided for the authority of the minister of the Land upon the Data Protector. The Court rejected the argument of the federal government according to which the authority of the minister was not deemed to interfere in the competence of the Data Protector, but to take care that he will implement correctly the directive. On the contrary, the Court declared that it is not contrary to democratic principles that an independent regulatory authority be outside of the government, accountable to the parliament and subject to judicial review. But,

230 House of Lords, Select Committee on the Constitution, The regulatory state : ensuring its accountability, 6th Report of Session 2003-2004, HL Paper 68, vol. 1, par. 125.


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after this sentence, Belgium is the only country that aligned on the position of the Court of Justice with the sentence of the Constitutional Court of Belgium of 18 November 2010 (n°130/2010): against previous jurisprudence of the Council of State, the Constitutional Court decided that the regulator of telecommunications could issue regulations subject to judicial review and parliamentary control. Before this sentence the position of the Council of State that regulations could be issued only by an authority accountable to the parliament. C) Accountability in law: new steps towards more accountability Generally we observe a tendency to organise better the accountability procedures before the parliament. In France, the Council of State did a review of the development of independent administrative authorities, in its report for the year 2001231. It recommended to avoid new creations, emphasised the political responsibility of the government and that such authorities are part of the State machinery, not outside of it, but are not subject to the authority of the Government. Furthermore, the Council of State has promptly extended its substantial judicial review to all regulations issued by such authorities. Later on, several parliamentary reports criticised the lack of accountability of independent administrative agencies and made proposals to reinforce the role of the parliament in "régulation" matters232. One of the consequences of the last report was the article 106 of the budget law for the fiscal year 2012. This article requires from 2013 from the Government to submit yearly a report to the Parliament with the budget bill, on expenditure, revenues and staff of each independent administrative authority; this report includes a presentation of the strategy of each authority, with objectives and performance indicators. However, it remains to be seen what will be the content of such reports, whether it will be limited to management issues or whether this will allow a parliamentary discussion on "régulation". Nevertheless, we can observe that recent yearly reports take care to recite their relationships with parliament and parliamentary committees and their exchanges with ministries and other public bodies. In Spain, the law of 2011 provides for a full report every three years with an evaluation of the activity of each regulatory authority and of regulation orientations. As a whole, various reforms and new practices reflect greater attention from the governments for the accountability of regulatory authorities. D) Accountability in practice Despite better provisions ensuring the accountability of independent regulatory authorities, serious doubts can be raised on the capacity of governments to keep control over "régulation". A first reason derives from the multiplication of independent regulatory authorities in a context of budgetary stress. In France, the staff of regulatory bodies has been formed by transfers from the ministries and then they have recruited experts according to their needs. As a consequence, there has been a massive shift of expertise from the government administration to such regulatory bodies, which, as

231 Conseil d'Etat (2001), "Rapport public 2001: Les autorités administratives indépendantes", Etudes et Documents, n°52. 232 Gélard P. (2006), Rapport sur les autorités administratives indépendantes, Office parlementaire d'évaluation des politiques publiques, Assemblée Nationale n°3166 / Sénat n°404, 2 vol.; Dosière, R. / Vanneste (2010), Les autorités administratives indépendantes, Rapport d'information au nom du comité d'évaluation et de contrôle des politiques publiques, Assemblée Nationale, n°3925, 2 vol.


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pointed out by the Council of State, are not under the authority of the Government. According to the Dosière / Vanneste report, the total staff of independent administrative authorities (including those with legal personality) is under 4,000; only 16 among 42 employ more than 20 persons233. But, those of the economic sector are among the more numerous, although their chairman usually complain that they have less than their counterparts of other countries. According to yearly reports 2011 of such authorities, the AMF employs 428 persons, the ACP almost 1,000 and contemplates a sharp increase to 1,150 until the end of 2012 (most of them are indeed recruited as personnel of the central bank and under this status), ARCEP has 167 agents and CRE 131. Most personnel are recruited outside of the civil service whereas most of the highest positions are occupied by members of the "grands corps" of the State civil service. It would be relevant to compare with the staffing of the ministries for the corresponding sectors, but there is no doubt that the staff of independent regulatory bodies is increasing of over 5% every year whereas the staff of ministerial departments is under pressure to cut positions every year234. As a consequence, the Government is nowadays extremely dependent in policy-making on the independent regulatory authorities created by the law. Another consideration is the increasing importance of European networks. EU legislation has provided for European agencies in regulated sectors; this is not new, but the recent directives of 2008 and 2009 have strengthened the powers and the capacities of such agencies, namely the European organisation of regulators of electronic communications, the Agency of cooperation of energy regulators and the supervisory authorities of the financial sector. Beyond their own tasks, these agencies exchange their views and elaborate shared conceptions on the development of their sector. They publish own positions, such as in 2006 in favour of further steps in opening the energy markets235. This harmonisation process is based on technical and economic expertise, and will then the basis for proposals to governments in policy formulation. Furthermore, operators have also organised their lobbies at the EU level in order to influence the development of EU policies and legislations. The shift of personnel from enterprises to regulators, can also contribute to harmonise views. Lastly, specialised academic circles work with agencies and operators. All this suggests that "régulation" supports the formation of an epistemic community that contributes to make governments more dependent. The hypothesis of the "epistemic community" was formulated first by Peter M. Haas in 1991 in order to explain the emergence of cooperation at the international level through the harmonization of expertise236. According to Mikael Sundström, the relevance of epistemic communities in policy-making depends on four factors237: - the type of issue-area: issue-areas that are relevant for governments at the domestic or international level, or both;

233 Op. cit. previous footnote, p.48. 234 Ibid. 235 For example: ERGEG's Assessment of the Development of the European Energy Market 2006, ref. E06-MOR-02-03, 6 December 2006. 236 Haas, P.M. (1992), "Introduction: epistemic communities and international policy cooperation", International Organisation, vol. 46, n°1, pp.1-35. 237 Sundström, M. (2000), A Short Introduction: What is an Epistemic Community?, in http://www.svet.lu.se/joluschema/epistcomm.pdf


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- Information complexity: because of complexity and uncertainties of scientific, technical or economic, or other, issues, decision-making needs external sources of expertise, and the need generates deference paid to technical expertise; - Community cohesion: the hypothesis of the epistemic community assumes that "aggregate community views prevail over views of individual members"238; this means consensus knowledge will be widely widespread and that the cost of dissent could be high as well in symbolic as in material terms; - Links to policy-makers: this is the basis of the influence; it is structured on the basis of academic institutions, private think-tanks and government institutions developing expertise in the field concerned, and these institutions are integrated in international networks. As a consequence, when these four factors are present, it can be expected that agreement will be reached at the political level more easily, since all political leaders will be briefed on the basis of the same consensus knowledge of the community. Sundström writes that "the actors may not realise it, but their actual power to affect things has now been reduced to the point of inexistence". This conclusion is surely exaggerated, and political views may prevail, as reflected in the compromise of 2009 in the new energy package, since France and Germany, among others could obtain the possibility to maintain vertically integrated energy groups only with provisions ensuring the independence of the management of network infrastructure. But empirical research has already shown the relevance of this approach for the understanding of EU policy-making239; the development of complex regulatory policies

238 Ibid. p.6. 239 Richardson, J. (1996), "Policy-making in the EU", pp.4-23 in: Richardson, J. (ed.), European Union, power and policy-making, London / New York, Routledge.


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