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Workshop 8.4 - post-GCHQ - Coggle Diagram
Workshop 8.4 - post-GCHQ
Context
After GCHQ the higher courts confirmed that there was nothing inherently special about the prerogative power.
The manner of its exercise should be just as reviewable by the courts on the way in which statutory powers were exercised.
Concerns persist over the nature of some prerogative powers which were seen to involve matters engaging issues of higher policy. The question, therefore, was to what extent the judiciary as an unelected body should be able to intervene in such areas.
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Subsequent patterns
Following the concerns raised by Lord Roskill in GCHQ , there has been a further expansion of the remit of JR.
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In matters involving substantive issues the approach applied by the judiciary is contextual. This applies equally, in principle, to situations in which they are asked to review the exercise of prerogative or statutory power.
Expanding judicial involvement - R v SoS for Foreign and Commonwealth Affairs, ex parte Everett [1989] 1 All ER 655
This case concerns an application for a new passport from a UK national who had an arrest warrant issued for him.
Everett challenged the refusal by the FSO to approve his application based on its policy relating to those suspected of past criminal activity.
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The important aspect, was the court's acknowledgement that this was a matter suitable for JR.
The FCO failed to ague that the case was non-justiciable because the power to grant passports was a prerogative power.
Taylor LJ said that the grant or refusal of passports was a matter of a administrative decision affecting the rights of individuals and their right to travel.
Prerogative of mercy - R v SoS for the Home Department, ex parte Bentley [1944] QB 349
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Bentley was hanged for murder in 1953, later the case was viewed as amounting to a serious miscarriage of justice.
The court dismissed the government's argument that the matter was entirely non-justiciable. The government's argument was based on Lord Roskill's comments in GCHQ, but the courts classified his concerns as being obiter and non-binding.
The court distinguished between full pardons (which they saw to be an issue of higher policy) and other considerations which the Home Secretary could have taken into account (including conditonal pardons).
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Defence of the realm
Smith, Ellis and Allbutt v Ministry of Defence [2013] UKSC 41
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The claimants (who represented soldiers killed in active service in Iraq) claimed that the Ministry of Defence had been negligent in the provision of equipment and training.
The court recognised that decisions taken by military commanders in relation to military engagement should not be subject to JR because of the danger of judicialising warfare.
R v Ministry of Defence, ex parte Smith [1996] QB 517
This was a challenge to the MoD's policy at the time of not allowing homosexuals to be employed in the armed forces.
Smith and three others were dismissed from the army because of their sexuality. They claimed that this decision was unreasonable and irrational.
The Court of Appeal found that the court had a role to play in this matter which had a profound effect on the livelihood and employment rights of the four individuals.
Bingham: "It is not the constitutional role of the court to regulate the conditions of service in the armed forces of the Crown, not has it the expertise to do so. But it has the constitutional role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power."
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