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Five Fact Friday - The Value of Justice

Five Fact Friday - The Value of Justice

Last week was Justice Week, a week-long series of events run by the Bar Council, the Law Society and the Chartered Institute of Legal Executives.

Although the aim of Justice Week is to highlight and promote the work of legal organisations and professionals in protecting the rule of law, the particular focus is on boosting the support and understanding of the justice system among young people. 

As part of the event, the Law Society released three podcasts, each looking at a case ‘that changed everything’ (for better or for worse).  Here, we take a look at those same cases as well as a couple of others that have proved important in the protection of the rule of law in the UK.

1. Lee v Ashers Baking Company Ltd

Often referred to as the “gay cake” case, the Supreme Court confirmed in this case that people in the UK could not legally be forced to promote a message they fundamentally disagreed with. 

Mr Lee was a LGBTQ+ rights activist who, in 2014, ordered a cake from Ashers Baking Company Ltd, based in Belfast, on which he wanted the words “Support Gay Marriage”.  Same-sex marriage was not, at that time, legal in Northern Ireland.  The owners of the bakery (Mr and Mrs McArthur) refused to produce this cake on the basis that they felt that it was promoting a message that was offensive to their religious beliefs.  They returned his payment.  Mr Lee sued the bakery for £500 in damages on the basis that it had discriminated against him on the basis of his sexual orientation.  The bakery appealed and Mr Lee won again but that decision was also appealed by the bakery, this time to the Supreme Court.

The Supreme Court had two questions to consider.  First, whether the bakery had discriminated against Mr Lee on the basis of his sexual orientation and, second, whether the bakery had discriminated against Mr Lee on the basis of his political beliefs (which would have been contrary to the Northern Ireland Act 1998 and the Human Rights Act 1988).  The court found that there had been no discrimination on either count as the bakery’s refusal was on the basis of the message they had been asked to convey, not on Mr Lee’s sexual orientation.  They would have refused to make the cake whomever had asked them. 

The case is cited by some as a victory for freedom of speech and religious expression whilst others see it as a defeat for equality of LGBTQ+ rights.

2. R (UNISON) v Lord Chancellor

Sometimes referred to as the ‘tribunal fees’ case, the Supreme Court found that fees for employment tribunals were unlawful because they impeded access to justice and were contrary to the rule of law.

UNISON, which is the UK’s largest trade union, began proceedings against the Lord Chancellor after the government had decided to introduce a £1,200 fee for anybody that wanted to bring a claim to an employment tribunal.  UNISON argued that the Lord Chancellor, who claimed to have the statutory power to introduce such a fee under the Tribunals, Courts and Enforcement Act 2007, had no such power to do so.  The Supreme Court agreed and the case is generally seen as a victory for those that want to ensure that everybody, not just those that can afford it, has access to justice. 

3. R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland

Often referred to as Miller II, or the prorogation case, this one is still fresh in the mind for most.  Prorogation is, in very simplified terms, the suspension of parliament for a few days whilst one parliamentary session ends and a new one begins. 

The Supreme Court found that the Prime Minister’s advice to the Queen that Parliament should be prorogued was unlawful and that, as a result, the Order in Council which permitted the prorogation was null and Parliament had never, in fact, been prorogued. This case is generally seen as one of the most important constitutional decisions in British history and supporters of the decision have claimed that it was successful in defending democracy and the ‘separation of powers’ principle (the idea that the executive/government, the legislature/parliament, and the judiciary should all act to balance one another out) which is so crucial to the constitution of the United Kingdom.  Critics accused the judiciary of a foray into politics

4. Entick v Carrington

This case dates back to 1765 and, although most outside of the legal profession will have never heard of it, the judgment is among the most important decisions in UK law.  

In 1762, four of the King’s armed messengers, including the King’s Chief Messenger, broke into the home of John Entick, a schoolmaster and writer.  They were searching for evidence that Entick was the author of a seditious paper that was circulating at the time.  They caused £2,000 of damage, the equivalent of over £400,000 today.  Entick sued for trespass.

The King’s men argued that they were acting on a warrant that had been issued by the Secretary of State for the Northern Department (the predecessor to the Foreign Office) and that they could not be liable for trespass.  The Court found, however, that the Secretary of State did not have any statutory right to issue such a warrant and that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law.  This principle remains largely intact today.

5. Council of Civil Service Unions v Minister for the Civil Service

This case concerned the decision of the Government in 1984 to use the ‘Royal Prerogative’ to ban employees of GCHQ from joining a trade union.  The decision was challenged by the Council of Civil Service Unions. 

Up until this point, it had been generally accepted that Royal Prerogative powers, that is in very simplified terms, a power that is legally left in the hands of the Crown (i.e. the Government) rather than being passed to Parliament, could not be challenged by judicial review.  Although the court ultimately found in favour of the government, accepting it’s argument that allowing GCHQ employees to join a union would not be in the interest of national security, it also confirmed that Royal Prerogative powers could, in fact, be subject to judicial review.  It is another example of the judiciary acting as a balance to executive power.

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