As a public body created and regulated by statute Bio Medic is accountable to the public. • Public accountability is evidence by the legislative provision creating specific duties and obligations. • The decision to conduct experiments without the prior approval of the House of Lords as mandated by Section 2 of the Embryology Act is a breach of statutory duty. The decision can be challenged on the basis that it represents a breach of statutory duty. • This would require an examination of the legislator’s intention with respect to creating the duty to seek prior approval of the House Lords before conducting experiments.
• In reviewing the decision the courts will typically look at parliamentary intention and while taking it as a paramount concern, the courts will also look at the policy consideration giving rise to the public authority’s/company’s decision. The courts are concerned with the public interest protected by the statutory duty. Since such a breach does not give rise to a private law remedy in damages, the public law remedy properly lies in judicial review of the unauthorised decision taken by Bio Medic. • Judicial review is an administrative function which permits the courts to supervise public power exercised by a public body created by statute.
• By virtue of judicial review the decision taken by Bio Medic to conduct experiments without first obtaining the statutorily required approval of the House of Lords can be reviewed on the grounds that the decision was made illegally or irrationally or the procedure for taken the decision was improper. • The strongest ground for judicial review in Bio Medic’s case is illegality. As Lord Diplock stated in Council of Civil Service Unions v Minister for the Civil Service , those making a decision as public authorities: “…must understand correctly the law that regulates his decision-making power and must give effect to it.
” Judicial review will force Bio Medic to cease all unapproved experiments and compel them to comply with the statutory provision mandating that prior approval precedes any and all future experiments. Question 2. • The conditions imposed by the Constable on the march organized by Chris and Nazeem must be examined by reference to Article 11 of the European Convention on Human Rights and Section 12 of the Public Order Act 1986. Article 11 provides for peaceful assembly and Section 12 makes provision for the imposition of conditions on public processions.
The conditions imposed by the constable with respect to the termination of the march at a certain point and that the number of protesters remain at a maximum of 100 appear to be disproportionate to the peaceful nature of the demonstration. The demonstration amounts to no more than a peaceful march in protest of government policies, more especially the activities of Bio Medic. • Even so the European Court of Justice has remained restrained in its approach to domestic measures to constrain free assembly by virtue of limitations and conditions.
For instance in Gustafsson v Sweden Case no. 15573/89 ECHR 20 the court ruled that: “In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and, in particular, in assessing the appropriateness of State intervention to restrict action…and the wide degree of divergence between the domestic systems in the particular area under consideration, the Contracting States should enjoy a wide margin of appreciation in their choice of the means to be employed. ”