Public Law Essay

Georgina is an MP for Stoke-on-Well who is unhappy with the (fictitious) Patriotism in Universities Bill which empowers universities to penalise foreign students who through their coursework, express ‘anti-democratic ideas and thoughts which are derogatory of the common Christian heritage of Western Nations’. She thus wishes to apply for an injunction to prevent the Bill from being presented for Royal Assent. In order to advise Georgina on what to do and how to go about a remedy for her problem, it is essential that we understand the working and processes of Parliament.

The British Parliament operates a Bi cameral system, i.e. a two chamber assembly, consisting of the House of Commons and the House of Lords, along with the Queen in Parliament. Within the palace of Westminster, elected representatives sit in the House of Commons. Since the Parliament Acts of 1911 and 1949, the House of Commons ahs undoubtedly become the superior chamber, with the Prime Minister and most of the senior members of the Cabinet.

Bills maybe introduced in either House, though the more important Bills will start from the Commons, before it goes to the Lords for scrutiny.

As a supreme law making body in the U.K, the British Parliament has the ability to make and unmake any law as they see fit. To pass a new act of Parliament a Bill must first be introduced into one of the Chambers. Most of the legislation that is generated in a Parliament will be put forward by government departments. A small number called Private members Bills are sponsored by individual MP’s, though in reality it is very difficult to actually get a private members Bill to become an act, due to the partisan nature of Parliament. Without the support of a major political party, such Bills are almost certainly doomed for failure1. However there have been a few notable exceptions. For example David Steels Private members Bill that allowed abortion to become legal on the mainland. Abortion Act 1967. And Sidney Silverman’s Bill Abolition of the Death Penalty Act of 1965.

Public Bills are those that affect the general populace. There are two types:

1. Government Bills: This is the government’s legislative programme. Manifesto commitments, enacting new lams to new situations. The main point here is that they are put forward by government Ministers with the help of an unbiased civil service.

2. Private Members Bill: (As noted above) these are public Bills sponsored by individual MP/Lords who do not have the expertise of the civil service at their disposal.

Private Bills are those bills that are addressed to one person, a local authority, or even a public utility. They are not of general application, and tend to deal with a particular request, e.g. permission to build a new tunnel port, or to allow satellite broadcasting.

In reality the legislative process is an extra- Parliamentary event. Most of the legislation that is passed had already gone through extensive consultation programmes, possibly a political campaign, and recommendations from various bodies such as the Law commission, Royal commissions or even directives from the EU.

Bills maybe introduced in either the Commons or the Lords2. By convention Money Bills must be introduced in the commons. The relevant Minister introduces Government Bills. All Bills regardless of where they start must go through the following stages, and then repeated in the other chamber.

First Reading: A copy of the Bill is presented to the Clerk of the House who reads the Title out loud on the floor of the House. An order is made for printing, and a date set for the second reading.

Second Reading: It is a stage that the general principles and purpose of the Bill are debated. No amendments are allowed at this stage. The debate will normally involve the whole House. Section 19 of the Human Rights Act states that a Minister sponsoring a Bill must make a declaration at this stage that the Bill conforms to the rights protected in the Human Rights Act. Or that it does not, and the governing bodies reason why.

Committee Stage: The most important role of scrutinising the details of the Bill clause by clause by one of the House’s Standing Committees. A typical committee has 15-50 members sitting in proportion to their party’s strength in the Commons. For very important Bills a Committee of the whole House may sit.

Report Stage: A report is delivered to the House of the amendments made by the standing committee. These may be accepted or rejected. If a committee of the whole House had considered the Bill there will be no report stage.

Third Reading: Normally takes place straight after the Report Stage. Unlikely to be any major amendments at this stage.

Proceedings in the other House: The process is repeated, bearing in mind the Parliament Acts of 1911 and 1949

Royal Assent: As a constitutional monarchy, the Queen must sign all Bills. After she does so it becomes an Act. By convention she never refuses.

Parliament’s main role is to keep a check on the power of the executive. This goal can be achieved in a number of ways. Collective and Ministerial Responsibility. Media coverage of most of the proceedings in Parliament, and of course public opinion. There are however a number of mechanisms that exist in parliament to curtail their power.

An injunction (course of action Georgina is applying for) is a remedy. Rights depend upon remedies3 there is no better example of a remedy than habeas corpus. Habeas corpus is a prerogative writ used to challenge the validity of a person’s detention, either in official custody or in private hands4. It is usually obtained by petitioning the sovereign. The right to personal freedom was almost a by-product of the procedural rules. Remedies have both good and bad effects. It is good as emphasis falls on practical methods of enforcing any right. A remedy is considered to have a bad effect when it comes to be looked upon as a thing in itself, cut-away from the legal policy to which it ought to give expression. No right of Appeal used to exist against the disembarking of habeas corpus in cases of imprisonment on a charge of a criminal nature- a grave and irrational defect which is t last now cured by legislation5 . So basically saying, a remedy is a method that is used at law for the enforcement, protection, or recovery of rights or for obtaining redress for their infringement6.

Administrative law is ‘ordinary law’, enforced by the ordinary courts and thus becomes particularly plain from a large part played by the ordinary remedies of private law, such as actions for damages, injunctions, and declarations. For example, an authority exceeds its power to a point that it has no legal right to act. If this act constitutes a tort, breach of contract or any other legal wrong, it is just as liable to an action for damages as is any private individual.

Injunctions are one of the standard remedies of private law. It is an order requiring some person to refrain from breaking the law, in this case Georgina will possess an order to stop the Bill from receiving Royal Assent as it is infringing convention articles of the Human rights Act, therefore we can say that it is in breach of contract, and is enforced if necessary by imprisonment or fine for contempt of court. An injunction is considered as an equitable remedy, meaning that id derives from the former Court of Chancery, and that it has a discretionary character. Most of the important remedies are discretionary- injunctions, declarations, certiorari, and prohibition. The only marked effect is that there is some tendency for the court to refuse the remedy where the defendant has some other equally good remedy, available or where he has been guilty of delay or in some other way has forfeited the court’s sympathy.

It is also possible for the court to grant a mandatory injunction which is a positive order to do some act rather than a negative order to refrain from ultra vires actions. Injunctions as just as readily available against public authorities as they are against private persons, and they tend to fulfil their usual function of providing a valuable alternative to actions for damages. The courts are seldom deterred by the fact that an injunction against a public authority is a particularly drastic step, coming in the way of the governmental giants to stop them in their tracks. They are not as co-operative with the pleas of administrative convenience. ‘Even if chaos should result, still the law must be obeyed’.7

One of the commonest uses of an injunction is to prevent the commission of continuance of nuisances8. A good example of this exists in the case of Pride of Derby & Derbyshire Angling Association, Ltd. v. British Celanese Ltd [1953] where a fish mongers company sued municipal and industrial effluents for pollution of rivers which was damaging the fishing industry. Injunctions to prohibit the invasion of private rights were granted against all three defendants, and it made no difference in principle that one was a commercial firm, one a local government authority and the other a nationalized industry9.

The injunction was momentarily suspended so the corporations could develop a sewage scheme which was backed by statutory authority. But it should be kept in mind that private rights can be expropriated only by statutory authority. A public authority will fully respect the courts order, but it is not unknown where an authority has been tardy in its obedience, for the courts to threaten to fine or imprison its members or officers for contempt. So as a result we can see that the injunction was the remedy which effectively stopped the local authority from using its powers so as to cause unauthorised damage or distress.

A limit to the injunction, imposed but the court itself, is that it must not interfere with processes of Parliament. As regards its proceedings within its own walls. Parliament is, of course, privileged from any judicial intervention. But there are extra-mural matters where a line has to be drawn. The court follows the principle that it will not interfere to prevent some matter being brought before Parliament as a question of public policy, even though it may be a breach of contract to bring it forward10. In light of the infringement of the Human Rights Convention Articles, a declaration might’ve been issued. This remedy is one that enables disputes to be settled before they reach a stage where a right is infringed.

The (fictitious) Patriotism in Universities Bill violates several conventional articles. As stated in the convention rights of the Human Rights Act 1998, articles 16 and 17 state that: the former permits the imposition of restrictions on the political activities of aliens (in which case Irene is considered an alien); while the latter deals with the abuse of rights by providing that no state, group of persons has any right to engage in any activity or perform any act aimed at the destruction of any of the convention rights. It is also in violation of article 13 which states: that everyone whose Convention Rights and freedoms are violated ‘shall have an effective remedy before a national court’. Section 1 provides that the Convention Rights are to have effect for the purposes of the Act subject to any derogation or reservation11. There also exists a reservation in place relating to art 2 of the first Protocol (dealing with education). There is no reason in principle why a derogation order should not be subject to judicial review as going beyond the grounds for which derogation is permitted by art 15 of the convention12.

Judicial review is the simplified procedure by which, since 1977, prerogative and other remedies have been obtainable in the High Court against inferior courts, tribunals, and administrative authorities. On application for the judicial review of a decision, the court may grant a quashing order, mandatory order, prohibition order, declaration or injunction, it may also award damages13.

On application of judicial review, High Courts have discretionary power by the 1981 Act to make a declaration or grant an injunction whenever an application for judicial review has been made seeking that relief, if it would be just and convenient to do so14. Prerogative orders, concerning matters of public law, declarations and injunctions may be granted on an application for judicial review.

After closely analysing each of the aspects within this issue, it would be safe to advise Irene to bring a judicial review against Stoke-on-Well University as it has violated several convention articles namely:

Articles 16 and 17 state that: the former permits the imposition of restrictions on the political activities of aliens (in which case Irene is considered an alien); while the latter deals with the abuse of rights by providing that no state, group of persons has any right to engage in any activity or perform any act aimed at the destruction of any of the convention rights

Article 13 which states: that everyone whose Convention Rights and freedoms are violated ‘shall have an effective remedy before a national Court’

Section 1 which states: the Convention Rights are to have effect for the purposes of the Act subject to any derogation or reservation.

If she revolves her action against the University around these defences, she is quite likely to succeed. For one she has the Human Rights Act floating on her side as the University are also in breach of her common right to Freedom of Speech. If her course of action is successful then she may be entitled to damages, in this case for example, a provision for appeal, or a remarking of the paper in biased conditions.