The politics of judicial review and the Human Rights Act

The HRA heightened the potential for conflict between the judges
and the executive and Parliament, but the relationship was
already subject to some tension as a consequence of the
operation of judicial review, as can be seen in a number of
cases.

In Mv Home Office, the House of Lords decided that the court

has jurisdiction in judicial review proceedings to grant interim and
final injunctions against officers of the Crown, and to grant interim
and final injunctions against officers of the Crown, and to make a
finding of contempt of court against a government department or
a minister of the Crown in either his personal his official capacity.
M v Home Office is of signal importance in establishing the
powers of the courts in relation to the executive. It is also
interesting to note that in delivering the leading speech, Lord
Woolf quoted extensively from, and clearly supported, Diceys
view of the Rule of Law as involving the subjection of all, including
State officials, to the ordinary law of the land.
In November 1994, the government suffered two damaging blows
from the judiciary. In R V Secretary for Foreign Affairs ex p
World Development Movement Ltd (1995), the QBD Court
held that the Secretary of state had acted beyond its powers in
granting aid to the Malaysian government in relation to the
Pergau Dam Project. The financial assistance was given, not for
the promotion of development per se, as authorized by the
Overseas Development and Co-operation Act 1980, but in order to
facilitate certain arms sales.
In R v Secretary of state for the Home Department ex p for
the Home Department ex p Fire Brigade Union:

The COA held that the Home Secretary had committed an abuse
of power in implementing a scheme designed to cut the level of
payments made to the subjects of criminal injuries.
It was not open for the Secretary of State to use his prerogative
powers to introduce a complexity new tariff scheme contrary to
the intention of Parliament as expressed in the CJA 1988.
R v Secretary of state for the Home Department ex p Venables
and Thompson
Even the Lord Chancellors have not escaped the unwanted
control of judicial review, and in March 1997, John Witham
successfully argued that the Lord Chancellor had
exceeded his statutory powers in removing exemptions
from those in receipt of State income support. The
exemptions had been removed as part of a wider measure to
increase court income by raising fee levels.
Rose LJ stated that there was nothing to suggest that Parliament
ever intended a power for the Lord Chancellor to prescribe fees
so as to preclude the poor from access to the courts (R v Lord
Chancellor ex p Witham).
The Home Secretary is subject to more claims for judicial review
keeping in view his centrality in the operation of the Criminal
Justice system and immigration.
The CJA 1988 introduced compensation as of right in particular
and limited instances where people have been wrongly
imprisoned. Prior to that, the Home Secretary had a discretionary
power to make payments to such people and he retained that
power in relation to cases that do not come under the CJA 1988.
These discretionary payments may be made to the victim or their
family where appropriate, in exceptional circumstances. The
question is what amounts to exceptional circumstances?

In R v Sec. of State for the Home Department ex p Tawfick, the

Divisional court was asked to review the Home Secretarys refusal
to make a discretionary payment to the claimant.
Tawfick had been found guilty of conspiracy to steal and handling
stolen goods. He applied for compensation and was refused and
sought judicial review of the Home Secretarys decision but, again
on reconsideration, the Home Secretary refused to make a
compensation award.
The court held that the circumstances of his case were of such an
exceptional nature as to warrant payment, and that the Home
Secretary had fallen into error.