International Transport Roth GmbH & Ors v Secretary of State For the Home Department [2002] EWCA Civ 158
Citation:International Transport Roth GmbH & Ors v Secretary of State For the Home Department [2002] EWCA Civ 158
Rule of thumb: Can criminal offences be created under Regulations? As a general rule, no – criminal offences should be created by an Act of Parliament & not Regulations, unless there is an extremely clear mandate for this from an Act of Parliament (which there was not in this case).
Judgment:
The basic facts of this case were that the Home Secretary made it a strict liability criminal offence if Police found illegal immigrants hiding in a lorry driver’s cargo. These Regulations were struck down as the Home Secretary did not have the right to create criminal laws like this and had gone beyond the mandate given them to by Parliament in doing so. This was also held to be a violation of the right to freedom of trade/free movement of goods.
‘Against this background, the first principle which I think emerges from the authorities is that greater deference is to be paid to an Act of Parliament than to a decision of the executive or subordinate measure: see in particular the two citations of Lord Woolf set out above, from Lambert and Poplar. Where the decision-maker is not Parliament, but a minister or other public or governmental authority exercising power conferred by Parliament, a degree of deference will be due on democratic grounds – the decision-maker is Parliament’s delegate - within the principles accorded by the cases. But where the decision-maker is Parliament itself, speaking through main legislation, the tension of which I have spoken is at its most acute. In our intermediate constitution the legislature is not subordinate to a sovereign text, as are the legislatures in “constitutional” systems. Parliament remains the sovereign legislator. It, and not a written constitution, bears the ultimate mantle of democracy in the State. The second principle is that there is more scope for deference “where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified” (perLord Hope in Kebilene, cited above). In the present case we are principally concerned with Article 6, which does not on its face require any balance to be struck: it contains no analogue of paragraph 2 in Articles 9 – 11, dealing with political rights. It is thus a context which militates against deference. But even here, there is no sharp edge.... The third principle is that greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts. The first duty of government is the defence of the realm. It is well settled that executive decisions dealing directly with matters of defence, while not immune from judicial review (that would be repugnant to the rule of law), cannot sensibly be scrutinised by the courts on grounds relating to their factual merits: see Chandler v DPP [1964] AC 763 at 790 per Lord Reid and 798 per Lord Radcliffe, and the recent case of Marchiori [2002] EWCA Civ 03 at paragraphs 33 – 38 of the judgment given by myself. The first duty of the courts is the maintenance of the rule of law. That is exemplified in many ways, not least by the extremely restrictive construction always placed on no-certiorari clauses. The fourth and last principle is very closely allied to the third, and indeed may be regarded as little more than an emanation of it; but I think it makes for clarity if it is separately articulated. It is that greater or lesser deference will be due according to whether the subject-matter lies more readily within the actual or potential expertise of the democratic powers or the courts. Thus, quite aside from defence, government decisions in the area of macro-economic policy will be relatively remote from judicial control: see for example Ex p. Nottinghamshire CC [1986] AC 240 and Ex p. Hammersmith and Fulham LBC [1991] 1 AC 521...’ Laws LJ
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.