Judicial Review of Executive Decisions in Public Emergencies

Introduction

The British courts have at times been called upon to consider the legality of the executive decisions when such decisions are related to the question of whether there exists a public emergency which necessitates certain kinds of actions from the government. This has happened when the nation was at war as during the World War I and World War II and also in recent times when the threat of terrorism has been used by the government to enact laws or policy that respond to such threats through extraordinary measures. The question that then comes before the court is whether it can decide on the legality of the action or whether the action of the government is justiciable or not. It has been noted that the British judiciary has been reluctant to question the executive declarations of emergency because of the ‘inherently political’ nature of decision-making in relation to what can be constituted as public emergency, which has been considered by public lawyers to be beyond the scope of legitimate judicial oversight. The decisions taken by the courts in such cases have either seen judges treat executive decisions with great deference or refuse to consider that the action of the executive is beyond the scope of judicial review.

One of the most important cases that exemplify the latter position taken by the court is in the Belmarsh case, in which the court refused to allow the use of the argument that the government can decide that there is a public emergency which the court is then not allowed to test the legality of. On the other hand, there is a long line of cases which suggests that courts may take a deferential position when it comes to powers exercised by the executive in the domain of national security. For example, in the Council of Civil Service Unions ex.p Minister for the Civil Service, Lord Diplock has opined that the question of national security is “par excellence a non justiciable question.” In another case, Lord Donaldson MR has opined that the question of national security is the “exclusive responsibility of the executive.” These decisions may suggest that ‘decision whether there exists a public emergency threatening the life of the nation rests solely with the Government and is not justiciable’

This essay discusses whether this statement correctly summarises the role of the judiciary in cases involving national security decisions. Primarily, the two decisions that are a part of this discussion are the Council of Civil Service Unions v Minister for the Civil Service, and A v Secretary of State (Belmarsh). This essay argues that the statement that the opinion that the determination of the question of public emergency threatening the life of the nation rests solely with the government and is not justiciable is incorrect because it does not take into account the legal issues involved in the decisions of executive authority in the conflict between the rights of individuals as guaranteed by the European Convention of Human Rights and the exercise of the executive authority, which may require judiciary take a less deferent stance.

Public emergency cases and the role of the judiciary

When cases involving the use of executive power in national interest come before the British courts, the courts are faced with the issue of the standard of deference that they are to accord to the executive decision. As the judgments in the two cases of Council of Civil Service Unions, and Belmarsh, indicate, courts are pulled in opposite directions when addressing this point due to the application of two different principles. The first principle demands from the court that it give effect to its duty to protect civil liberties and human rights, not only as a common law principle but also as per the mandate of Human Rights Act 1998, Section 4, which demands compatibility between domestic legislation and European Convention of Human Rights. The observation of Simon Brown LJ is pertinent in this context where his Lordship said that the “court’s role under the Human Rights Act is as the guardian on human rights. It cannot abdicate this responsibility.” While on one hand, the court may consider itself duty bound to give effect to the protection of the rights of the individual, it may be pulled in the opposite direction due to the “principle of legitimacy of the government’s authority to act in the interests of national security.”

The historical application of judicial review indicates that there is a general understanding that the “the executive is better placed that the judiciary” in the field of “evaluation of intelligence about a national security issue.” In Council of Civil Service Unions, the dimensions of judicial review were explained by Lord Diplock as including execution of prerogative powers that impacted private rights or legitimate expectations. In the same case, Lord Roskill had opined that where the executive acts under a prerogative power so as to affect the rights of the citizen, then judicial review can be done. As the decisions in different cases indicates, even in the times of public emergency, courts may review the decisions of the executive. The World War I and World War II era decisions are a good starting point for this discussion on the question of the justiciability of the executive decisions. These cases indicate the commonly experienced pull in different directions that the courts in England have had to deal with when they are faced with the issue of judicial review of executive decisions in

national interest. In R v Halliday, the House of Lords was called upon to adjudge the legality of the internment order of the Secretary of State using the powers given under the Defence of the Realm (Consolidation) Act 1914. The House of Lords refused to interfere with the order as the purport of the exercise of the order was national security. During the

World War II, Liverside v Anderson saw the House of Lords taking a position of deference to the executive power on national security question wherein it held that if the Secretary had “reasonable cause to believe” that a person is of hostile origins or associations, he can validly

exercise the power to make an order of detention against that person. However, it was also held that the court could see if the power given to the Secretary of the State has been properly exercised or not or rather if the executive had honestly considered the question of whether the individual against whom the power is being exercised is of hostile origins. This suggests that the House of Lords did not consider that the question of executive power was completely outside the scope of judicial review and that the courts could consider whether the power of the executive was properly exercised or not. This is also borne out by the decision in yet

another World War II case of R v Home Secretary ex Parte Budd, in which the court held that there are two admissible grounds for challenging the decision of the executive with relation to the question of national security, which are related to whether the power has been honestly exercised and whether the order was properly made out or not. Therefore, it may be argued that the decisions of the executive with relation to whether there exists a public emergency may not be completely outside the purview of judicial review.

Granted that the authorities discussed above are not directly concerned with the decision of the executive on the determination of public emergency, but are related to orders made by the executive in the time of emergency; nevertheless, the grounds for admitting orders of the executive in such cases can be used as indications of how far the judiciary is ready to treat executive powers with deference. The Belmarsh case indicates that the judiciary is not always ready to treat executive power with regard to determination of the existence of public emergency with utmost deference and that the judiciary is ready to at times consider whether the power is properly exercised or not. Therefore, the Belmarsh case is the most prominent case in recent times which shows the judiciary rejecting the argument that it needs to give a high level of deference to the decision of the executive. Like the executive decisions made in the emergency period of war during the World War I and World War II, the executive decision which led to the Belmarsh case was also justified by the government on the basis of national security. It was argued that national security was threatened by acts of terrorism, which became a major national security concern in the wake of the terror attacks against the United States of America on 11 September, 2001. The British parliament responded to this national security concern by enacting the Anti-Terrorism, Crime and Security Act 2001. One of the principal provisions of this Act was to allow the government to make orders of detention against foreign terror suspects which could be given effect to for an indefinite period of time. As the UK derogated from the ECHR for the purpose of the Anti-Terrorism, Crime and Security Act 2001, Article 5 which protects right to liberty and security was not available to the detainees. However, Article 14 was successfully used by the detainees to argue that they had right against non-discrimination.

The House of Lords was called upon to decide whether there existed an incompatibility between the indefinite detention provisions of this Act and the human rights provisions in the European Convention of Human Rights. Article 15 of the ECHR allows the government to derogate from the provisions of the ECHR if there is a “war or other public emergency threatening the life of the nation” and provided that there is no derogation from “Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (§ 1) and 7,” which are the three absolute rights under the Charter. The question of whether there is a public emergency threatening the life of the nation is decided by the government. In

Belmarsh the decision was taken and the Anti-Terrorism, Crime and Security Act 2001 was enacted. Therefore, the Act was enacted by the British Parliament by the government invoking Article 15 of the ECHR. The question before the House of Lords in Belmarsh was whether this decision was lawful or not; in other words, the House of Lords was called upon to decide: (i) whether the government’s derogation from the ECHR in respect of the challenged detention measures was lawful; and (ii) whether the statutory provisions under which the claimants had been detained were compatible with the ECHR. By a majority of eight to one, the House of Lords decided that the derogation order was to be struck down and that there was an incompatibility between the legislation and the ECHR, as per the Human Rights Act 1998, Section 4. Eventually the parliament had to repeal the provisions relating to indefinite detention from the Anti-Terrorism, Crime and Security Act 2001.

The Belmarsh case also saw the issue of ‘doctrine of political question’ being taken up in the court. The ‘doctrine of political question’ is used by the courts to take a stance where they will not interfere in matters and give deference to the political will, especially with respect to national security issues. Lord Bingham spoke about the doctrine of political question in his judgement of A and Others v. Home Secretary. Then again, in R (Gentle) v The Prime Minister, the House of Lords held war making powers to be in the executive domain and outside the scope of judicial review. In general, the doctrine of political question has been applied by the judiciary to decline judicial review into areas of national importance when such questions are considered to come within the domain of the executive policy or the royal prerogative. Therefore, the two cases that are being primarily discussed in this essay, Council of Civil Service Unions ex.p Minister for the Civil Service and A and Others v Secretary of State for the Home Department indicate how the deference for executive decision making for whether public emergency exists can see different approaches being taken. On one hand, there is the application of the doctrine of political question which requires the judiciary to give deference to the executive on issues that are political nature; on the other hand, the nuanced approach taken in Belmarsh indicates that the courts are also ready to consider the legality of the executive decision making in certain circumstances. Against this background, one can also compare the contrasting viewpoints taken by Lord Bingham and Lord Hoffman in Belmarsh.

On the question of the executive power to determine the existence of public emergency and the judicial power of oversight, Lord Bingham wrote that “great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment.” He also noted that he did not accept the full breadth of the argument on judicial deference owed by the courts to the political authorities but he did note that the “more purely political a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision.” However, if there is legal content in any issue, the potential role of the court is also increased because it is the “function of the courts and not of political bodies to resolve legal questions.” Having said this, Lord Bingham noted that this question was more a political one based on the observations of Lord Hoffman. On the other hand,

Lord Hoffman turned to the question of liberty as a right and the power of the Home Secretary in the case. He noted that the “power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial. Nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom.”

These are two very different approaches to considering how far the powers of the executive for determination of an existence of public emergency are outside the scope of judicial review. In the opinion of Lord Bingham, the determination of existence of public emergency is a political question and for that reason it is outside the scope of judicial review. He does not consider the possibility of there being some legal question involved in the use of the power. On the other hand, Lord Hoffman considers that the power of the executive cannot be used in a way that unreasonably interferes with the liberties and rights of the people and to that extent that there is a question of individual liberties involved, the executive power comes within the domain of judicial review. Going back to the discussion at the beginning of this section, it may be reiterated that the judiciary is caught between two opposing principles, one that demands respect for human rights and compatibility between domestic law and the European Convention of Human Rights (this took precedence in Lord Hoffmann’s judgment) and the other that demands respect for the executive’s power to determine whether public emergency exists as a political question in which judiciary ought not to interfere (this took precedence in Lord Bingham’s judgment).

Lord Hoffmann’s position is the correct one because it strikes a balance between the power of the executive to make determinations with regard to public emergency and national security issues and individual rights as protected by the Human Rights Act 1998, but does not treat such determinations as completely outside the scope of judicial review. This accords with the view taken by the courts in World War I and World War II era cases discussed above. In both those cases, the courts did treat the executive decisions with deference but also noted the reasons based on which judicial review could still be carried out. In other words, the idea of deference to the executive in political questions was never meant by the common law as depicted in Liverside and Halliday, to be one that is to be treated with absolute deference and with no scope for judicial review. This is the line that is followed by Lord Hoffmann, but ignored by Lord Bingham. It may be mentioned that Lord Hoffmann’s explanation on judicial deference in R (ProLife Alliance) v BBC is correct where he notes that “although the word “deference” is now very popular in describing the relationship between the judicial and the other branches of government, I do not think that its overtones of servility, or perhaps gracious concession, are appropriate.” In the War era cases this explanation of deference is seen where the courts have refused to treat executive decisions as completely outside the scope of judicial review. Lord Hoffmann has followed the same line of reasoning in Belmarsh. On the other hand, by treating the decision as the executive as a political question involving no legal questions, Lord Bingham has neglected the fact that the UK is bound by the provisions of the European Convention of Human Rights and as such the courts are also meant to give deference to the Human Rights Act 1998, Section 4 which requires that the national legislation is compatible with the European law. In this context, considering the use of Article 15 simply on the basis of executive decision to derogate from the convention is inappropriate. It does involve a legal question, which Lord Bingham has neglected to consider.

Conclusion

It would be incorrect to say that the determination of the question of public emergency threatening the life of the nation rests solely with the government and is not justiciable. Such a statement does not accord with the role played by the courts in the emergency war era cases and with the duty of the courts to give effect to human rights recognised by the Human Rights Act 1998. Lord Bingham’s position in Belmarsh is incorrect to that extent because it does not take into account the legal issues involved in the decision of executive authority and opts to consider the executive decision as a political question completely outside the scope of judicial review.

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List of cases

A and Others v. Home Secretary [2005] 2 AC 68.

A v Secretary of State [2004] UKHL 56.

Council of Civil Service Unions ex.p Minister for the Civil Service [1985] AC 374.

International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728.

Liverside v Anderson [1941] UKHL 1.

R (Gentle) v The Prime Minister [2006] UKHL 20.

R v Halliday [1917] AC 260.

R v. Home Secretary, ex. p. Cheblak [1991] 1 WLR 890.

R v. Home Secretary ex Parte Budd [1942] 2 KB 14.

R (ProLife Alliance) v BBC [2004] 1 AC 185

Secretary of State for the Home Department v Rehman [2003] 1 AC 153.

Books

De Smith, Woolf and Jowell’s, Principles of Judicial Review (Sweet and Maxwell 1999).

Fenwick H, Civil Liberties and Human Rights (Oxon: Routledge, 2007).

Jowell J, ‘Judicial Deference and Human Rights: A Question of Competence’ in P. Craig and R. Rawlings (eds.), Law and Administration in Europe (Oxford: OUP 2003).

Slapper G and Kelly D, The English Legal System: 2015-2016 (Routledge 2015).

Journals

Clayton R, ‘Judicial Deference and Democratic Dialogue: the Legitimacy of Judicial Intervention under the Human Rights Act 1998’ (2004) Public Law 33.

Cram I, ‘Beyond Lockean Majoritarianism?—Emergency, Institutional Failure and the UK Constitution’ (2010) 10 (3) Human Rights Law Review 461.

Steyn, ‘Deference: A Tangled Story’ [2005] Public Law 346.

Others

Poole T, ‘Courts and Conditions of Uncertainty in ‘Times of Crisis’ LSE Law, Society and