This lecture presented a personal view of the judicial review process to law students at Queen’s University, Belfast. In 2003 I was subject to a stop and search by police, while on my way to a demonstration. The police used powers conferred on them by the Terrorism Act 2000. Ever since I have been involved with a case that has tested that piece of legislation, and the ways in which it has been used by the police. Essentially, our argument is on two levels. First, the legislation itself is not in keeping with the weight and tradition of British law and is in conflict with aspects of the European Convention on Human Rights (referred to as the Convention throughout), so the ultimate solution would be to rewrite it. Second, the way the legislation is being used by the police is not as Parliament intended, so the solution would be limitations on use to the police.
The lecture explains sections 44-47 of the Terrorism Act and gives an overview of the judicial review process. I then look at three issues brought up by the case. First, the relationship between the judiciary and the state in the context of national security is examined. I argue that we see a complex and shifting relationship that belies any simple view of the ‘separation of powers’. Second, I look at the degree to which the judiciary takes a role in governing use of discretionary powers by the police. I argue that the judicial review process contains a blind spot where the complaint is systematic, but informal misuse of exceptional police powers whether that be against peaceful protesters or against people on the basis of race or religion. Third I run through some aspects of human rights legislation, to the degree that they are relevant to our case.