Judicial Review, Human Rights and the
Constitutional Role of the Courts
The Grievance chain
• Idea that remedies are available at different levels
• Strictly informal e.g. citizen’s advice bureau, law
centres, and citizen’s charter.
• More formal but not strictly legal e.g. ombudsman
with investigatory powers but can only recommend
remedies
• Tribunals as administrative remedies – large case
load, diverts issues from courts and can give legal
remedies e.g. compensation, unfair dismissal.
• Courts e.g. judicial review : formal remedy of last
resort. Typically empowered to quash decisions of
public bodies.
Introduction
• The emergence of judicial review is linked to the
Diceyan notion of the rule of law.
• There will be reference to the distinction between
review and appeal and the special nature of public
law remedies.
• The significance of changes in judicial policy with
reference to the Wednesbury case, Ridge v Baldwin
and the GCHQ case.
• The impact of the Human Rights Act
• Discussion of selection of case which illustrate the
increased profile of the courts.
Examples of JR cases
• challenge to an attempt by a local authority to ban stag hunting
ex parte Fewings [1995].
• whether a woman could use her late husband’s sperm ex parte
Blood [1997]
• Deprivation of constitutional right of access to the courts ex
parte Whitam [1998]
• Whether bids for the national lottery had been conducted fairly
by the statutory regulator, OFLOT: see R v The National
Lottery Commission, ex parte Camelot Group PLC [2001]
EMLR 43
• challenge to the admissions policy of state aided jewish faith
school on the grounds that this was discriminatory on grounds of
ethnicity: R (on the application of E) (Respondent) v
Governing Body of JFS and the Admissions Appeal Panel
of JFS (Appellants) [2009]
Cooper v Wandsworth Board of Works (1863) 14
CB (NS) 180 '...the justice of the common law will
supply the omission of the legislature'.
Ridge v Baldwin [1964] Chief constable dismissed
without a hearing. This is regarded as the leading
case. Lord Reid indicated that these rules will be
applied on a wide basis, both as to content and
context. The claimant has a common law right to be
treated fairly where rights are affected, as here.
Put differently, a legitimate expectation re procedural
fairness is recognised, now reinforced by Article 6
ECHR
Judicial review and the role of the courts
The fundamental assumption accepting the Diceyan view of the
constitution is that the courts exercise a control function, and
that this function is now performed using the judicial review
procedure.
Judicial review is NOT an appeals procedure. Appeals are often
routinely available to courts or tribunals. An aggrieved citizen
who wishes to challenge a decision must first exhaust existing
avenues.
The courts under the JR procedure operate to consider whether
the public authority has acted lawfully. The remedies are not
designed to compensate victims or guarantee final outcomes
but simply to ensure the legality of decisions taken. Typically
unlawful decisions will be set aside.
JR Remedies and Procedural Reform
Lord Diplock developed the exclusivity principle
because he recognised the special character of
public law remedies.
• Quashing Order/Certiorari has the effect of
quashing an ultra vires decision. If the remedy is
granted an ultra vires decision will be rendered VOID.
• Mandatory Order/Mandamus - instructs (mandates)
an authority to do its statutory duty, which may be to
exercise its statutory discretion lawfully in the future
• Prohibiting Order /Prohibition - serves to prohibit
the authority from acting unlawfully in the future.
Remedies contd
• Declaration - not imposed by the court but states
what the legal position is between the parties. Often
sufficient for public bodies who are not prepared to
act unlawfully.
• Injunction (equitable remedy) that usually prevents a
body from acting.
• Damages only available in limited circumstances in
public law.
The reach of public law in a contracting
state
JR is an exclusively public law remedy, recognised by Lord
Diplock in O'Reilly v Mackman [1982].
Following the introduction of new procedures JR must be used.
Key decision - R v Panel on Takeovers and Mergers, ex parte
Datafin [1987] not only source of power but the nature of the
functions.
Contrast other cases especially where contractual relationship
exists:
The Jockey Club R v Disciplinary Committee of the Jockey
Club, ex parte Aga Khan [1993].
Liberalisation of the rules of standing
Rules of standing: RSC Order 53 r.3(7) that the court shall not
grant leave to apply for JR unless the applicant has a 'sufficient
interest' in the matter to which the application relates
IRC v National Federation of Self-Employed and Small
Businesses Ltd [1981] [Fleet Street Casuals (or Mickey
Mouse) case] Challenge to a settlement with printers reached by
the inland revenue by a group with no direct interest in the
matter.
Recognised that standing should not be a general impediment
to using the JR procedure.
Representative groups routinely represented in JR cases.
The Wednesbury Decision
Associated Provincial Picture Houses v
Wednesbury Corporation [1948]
The Sunday Entertainments Act 1932 states it is “to permit and regulate
the opening and use of places on Sundays for certain
entertainments…”. It legalised such Sunday openings as had been
purportedly permitted earlier and prescribed a procedure by which any
licensing authority could apply for an Order allowing Sunday opening in
that licensing area.
Sunday Entertainments Act 1932 legalised Sunday opening of cinema
under conditions that ‘the authority think fit to impose’. WC inserted
condition that no children under 15 admitted whether or not with adult.
Objectionable to cinema owners.
There was much concern around this time about the impact of the
cinema on children. The Home Office and the Department of Education
set up a Departmental Committee in 1947 to consider the effects of
cinema attendance on children with a view to seeing whether changes
were necessary to conditions of admission.
Cinema going in the 1940s
The blanket prohibition on cinema admission of children all day on
the Sabbath can only mean that Wednesbury Corporation an
elected local council in a town with a strong tradition of religious
observance thought that children (no doubt, with their parents)
should do other things on the Sabbath.
On the other hand, in an age where 25 million plus of the
population went to the cinema at least once a week Gaumont
cinemas were horrified by the idea that a decision to ban
children would set a precedent for other towns to follow which
would dent their profits.
A further apparent anomaly was the lack of consistency between
the town of Wednesbury which imposed this ban and other
neighbouring cities and towns including Birmingham which
allowed children to visit cinemas on a Sunday.
Lord Greene’s judgment
Challenge failed as the condition fell within the discretionary
power of the public authority.
1. Authority must have contravened the law.
2. Burden of proof on claimant.
3. Court must not substitute itself for the authority and become a
Court of Appeal.
4. Decision could be set aside only because unlawful e.g.
relevant and irrelevant considerations not taken account etc or
because of unreasonableness of an altogether different type.
What is Wednesbury unreasonableness?
Warrington LJ in Short v Poole Corporation [1926] Ch 66, 90, 91
gave the example of the red-haired teacher, dismissed because
she had red hair. That is unreasonable in one sense. In another
sense it is taking into consideration extraneous matters. It is so
unreasonable that it might almost be described as being done in
bad faith ...'.
the courts will only interfere with the exercise of a discretion
when an authority has come to a conclusion so unreasonable
that no reasonable authority could ever have come to it.
The Courts and Resource Allocation
R (on the application of Rogers) v Swindon NHS Primary
Care Trust and Sec of State for Health [2006]
A breast cancer sufferer was denied the drug Herceptin by her
local health authority on grounds that it could not afford to fund
this treatment. Contested as in breach of Article 2.
“ ….‘judges look at the rights of individuals; health managers
have to balance the rights of many different patients’. Such
opinions … reflect persistent anxieties as to the constitutional
and institutional competence of the courts to adjudicate upon
polycentric questions, such as those which arise in the context
of health care rationing, and are rooted in an overly narrow
conception of public law’s function as a vehicle for the
preservation of individual autonomy against the collective goals
pursued by the organs of the state” (K. Syrett p.669).
GCHQ Main grounds explained
Judicial activism of the 1960s, reform of procedure and new
judicial approach
Council for Civil Service Unions v Minister for the Civil
Service [1985] challenged the banning of unions at GCHQ by
the government, hence GCHQ case:
Lord Diplock set out the grounds as follows:
1. Illegality with many sub-grounds
2. Irrationality also termed Wednesbury unreasonableness
3. Procedural impropriety/natural justice
Proportionality as a ground was anticipated - it now applies
under HRA.
Illegality: legal limits on discretionary
powers
Padfield v Ministry of Agriculture [1968] Limits on discretion
even if the power appears to be widely drawn:
'If the minister in any such case so directs’.
R v S of S for For Affairs, ex p World Development
Movement [1996]
Did the Malaysian Pergau Dam project fall under a
‘developmental purpose’. Rose LJ
'Whatever the Secretary of State's intention or purpose may
have been, it is, ... , a matter for the courts and not for the
Secretary of State to determine whether, on the evidence before
the court, the particular conduct was, or was not, within the
statutory purpose’.
Further in exercising discretion the decision-maker is required to
take account of relevant considerations and ignore irrelevant
considerations
Human Rights Act 1998 and Judicial
Review
Public authorities are placed under a statutory under s.6 to have
regard to the convention rights of citizens.
Under the act a breach of convention right by a public authority
becomes a ground of review / also a defence to alleged unlawful
conduct.
The HRA s.3 grants the courts powers to interpret legislation to
render it compatible with the convention but it does not allow the
courts to invalidate primary legislation.
Rather, they have the power under s.4 to issue ‘a declaration of
incompatibility’ which draws attention to the breach of the right
but leaves it up to Parliament to change the offending law.
There is a fast track procedure to enable legislation to be
amended. Citizens can still take their case to Strasbourg.
Human Rights Act: Proportionality review
R v SS for Home Department, ex parte Daly [2001] concerned a
challenge to regulations under section 47(2) of the Prison Act Act 1952
allowing the prison authorities to search cells without the prisoner
present. A remand prisoner who had private correspondence with his
lawyer relating to his trial argued that this rule was unlawful.
Lord Steyn stated that a proportionality test would be applied:
(a) the legislative objective is sufficiently important to justify limiting a
fundamental right;
(b) the measures designed to meet the legislative objective are
rationally connected to it;
(c) the means are no more than is required to accomplish the objective.
Held that the policy contained in this rule constituted a breach of Article
8 of the convention since it constituted a disproportionate interference
with the prisoner’s rights. The same objective could have been
achieved by less intrusive means.
A & Others v Home Secretary [2004] (the
“Belmarsh detainees” case)
•
•
•
•
•
the indefinite detention under the Anti-Terrorism Crime and Security Act
2001 without trial of a group of non British nationals suspected of being
terrorists. This was held to be unlawful
The provision to detain contrary to ECHR Art. 5 required a derogation
under Art. 15.
The derogation would only be valid if strictly required for a public
emergency threatening the life of the nation.
On this issue a wide margin of appreciation was given by the judges to
the government. Held this was a political issue and only the
government has access to the security information upon which such a
judgment could be made. Lord Hoffman dissented ‘no threat to the life
of the nation’.
But he measures were discriminatory against foreign nationals and thus
contrary to Article 14 of the ECHR.
Impact of the Belmarsh Decision
•
•
•
•
•
The Human Rights Act 1998 (Designated Derogation) Order 2001 was
quashed on account of its incompatibility with Article 15 ECHR.
Although the House of Lords issued a declaration of incompatibility
under section 4 of the HRA this declaration could not nullify the
legislation directly. The suspects remained in prison.
‘There is no shift to a merits review, but the intensity of review is
greater than was previously appropriate’
‘The speeches of these eight senior judges amount collectively to what
is the finest assertion of liberty that has emerged from a British court
since at least Entick v Carrington …’ Gearty
The Prevention of Terrorism Act 2005 was passed by Parliament in
March 2005 and the Act replaces Part IV of the 2001 Act i.e. the power
to order indefinite detention without trial on grounds of reasonable
suspicion with control orders.
Conclusion
• Sophisticated grounds of JR have been established under the
common law on a case by case basis.
• These grounds serve to constrain the discretionary powers of
public authorities.
• This, in turn, raises important questions relating to placing limits
on judicial intervention. The Wednesdbury test imposed a high
threshold, keeping the courts from being drawn into the political
process.
• The HRA and proportionality has tended to increase the profile
of the courts.
• This raises the question of whether the UK is moving towards a
judicial constitution. Should judges be the final arbiters on issues
such as resource allocation?