Rule of Law and Separation of Powers cases

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A and Others v Sec of State for the Home Department (2004) UKHL 56 (The Belmarsh Case)

Facts: This case involved 9 non-British nationalists who had been detained in Belmarsh prison under a derogation which gave the Government extended powers to detain foreign nationals on terrorism charges without trial, with no real prospect of being released. The House of Lords looked at the legality of the detention of these people.

Held: The House of Lords found that the Government had exceeded their powers by using a derogation here: the detention was discriminatory and disproportionate. “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.” (Lord Nichols)

M v Home Office (1993) 3 WLR 433

Facts: M was a teacher from Zaire (Dem Rep of Congo) and came to the UK in 1990 on a false passport seeking political refuge. He had been beaten for his anti-governmental activities in Zaire, so he became an asylum seeker. His application for asylum was processed by the Home Office and they found he could not seek political refuge, so sent him back to Zaire. On the afternoon he was to be deported, M appealed hoping to gain access to judicial review but was unsuccessful. He tried again a few hours later and the judge said he wanted time to consider the matter, so got M’s deportation to be postponed. However, M was deported about half an hour after the case went to court – the Home Office did not stop the deportation in any way. So, had the Home Secretary, by ignoring the judge’s decision, committed a contempt of court? The Home Secretary argued that ministers worked for the crown and the crown could not prosecute itself in its own courts

Held: The Court found that the Home Secretary was guilty of contempt of court – this is to ensure court rulings are obeyed. Ministers had to act in accordance with the idea of the Rule of Law; they were under the Rule of Law in the same way as everyone else and they are not above the law

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McGonnell v UK (2000) 30 EHRR 289

Facts: This case took place in the European Court of Human Rights (ECtHR). McGonnell owned land in Guernsey and applied for planning permissions. The bailiff (the president of Guernsey’s legislative body) presided over his planning application

Held: Under Article 6 there needs to be an independent and impartial tribunal. The ECtHR found that there was a lack of objective impartiality in this case because the bailiff sat in both an executive and legislative position

The Court said any direct involvement in the passage of legislation could cast doubt on his judicial impartiality

The planning permission was therefore allowed

R (on the application of S) v Secretary of State for the Home Department [2006] EWCA Civ 1157

Facts: The European Convention on Human Rights (ECHR) became part of our law through the passage of the Human Rights Act 1998. In this case 9 Afghan nationals hijacked an aircraft in 2001 and flew in into Stansted airport. Once they arrived they surrendered to the police. They were sentenced for 5 years imprisonment, but the court of Appeal quashed the decision due to an error of law. After release they applied for asylum under Article 3 of the ECHR (i.e. prohibition of torture): they were part of an organisation against the Taliban and there was a strong chance they would be tortured or killed if they returned. The Home Secretary rejected the claims saying they would be fine, but an appeal found they would be at risk

Held: The Court of Appeal said that the Home Secretary had too much discretion about whether he can deport someone on his own judgement, which undermines the Rule of Law

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