The Background Of Judicial Review Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Judicial review is available to all citizens who feel there has been a wrongful decision made during their cases. State controlled organisations have duties to provide these services. [1] The duties are mainly from legislation but also arise in the common law such as the duty of the police to enforce criminal laws. However, in all situations they must always act in a fair manner to ensure that justice is preserved. If this is not the case, those citizens who have been wrongfully treated are entitled to, as a last resort, apply to the High Court for assistance. This is judicial review and is governed by Order 53 of the Rules of the Supreme Court 1965 and by Section 31 of the Supreme Court Act 1981.

Judicial review came about with the evolution of the UK’s unwritten constitution and the relations between the public authorities and citizens as well as the emergence of a difference between public law and private law. In 1885, Dicey declared that there is no difference between public and private law. [2] However, in 1982, Lord Denning recognised that there was a difference and that there are remedies against both private and public law.

It was here that public law has made its most spectacular advance. The Court of Appeal made a preliminary skirmish in O’Reilly v Mackman [3] . To understand the significance, it is important to look at the 100 years before 1950. At this time, the only remedies to public law were in the form of writs of certiorari, mandamus and prohibition. However, these had a very limited scope and had many procedural disadvantages.

After 1950 there were advances on two fronts. One advance was to extend the remedy by writs to cover more misdoings by public authorities such as errors of law and going outside their jurisdiction. The other was to the equitable remedies of declaration and injunction available against public authorities for breach of public law. Each had its advantages and disadvantages and the complainant could choose which suited him best.

There was a turning point in the law which led to the creation of judicial review. This was seen in Barnard v National Dock labour Board. [4] This was a dock worker who was suspended from his job. The power to suspend workers had been given by Parliament to the National Dock Labour Board (NDLB). The applicant suspected that as a matter of routine this power had been unlawfully delegated to the port manager. There was however no way of establishing this from the notice of suspension. Proof of the point could only be gathered through the NDLB’s documents and by cross examining its members. However, the defendant made such documents available on receipt of the writ, instead of arguing immediately that the declaration was an inappropriate remedy. Given that the court knew for sure that the NDLB’s action had been substantively unlawful in this case, the striking out motion was unlikely to succeed. The rationale informing the judgement was well put by Lord Denning. [5] 

‘If the tribunal does not observe the law, what is to be done? The remedy by certiorari is hedged round by limitations and may not be available. Why, then should not the court intervene by declaration and injunction? If it cannot so intervene, it would mean that the tribunal could disregard the law… in certiorari there is no discovery whereas in an action for a declaration there is. The plaintiffs only discovered the true position shortly before the trial, about two and a half years after the suspension. That shows that, but for these proceedings, the truth would never have been known.’ [6] 

The case is of crucial significance in illustrating the intimacy of the linkage between matters of ‘mere’ procedure and the substantive reach of administrative law. Bernard can be seen as heralding a shift in the courts attitudes both towards government bodies (i.e being more willing to subject executive action to scrutiny) and towards the citizen (i.e being more willing to protect individual interests against government encroachment.) In broader terms it took a step towards understanding the rule of law. This was reinforced by the 1959 decision in Pyx Granite co Ltd v Ministry of Housing and Local Government (MHLG) [7] The applicant was attempting to challenge the lawfulness of conditions attached to planning permission. It was out of time to proceed by certiorari and so sought to use a declaration. The MHLG argued that certiorari should be seen as an exclusive remedy in these circumstances. The court rejected the contention that the public law route should be the only means through which a plaintiff might challenge the lawfulness of decision of this sort:

‘I know of no authority for saying that if an order or decision can be attacked by certiorari the court is debarred from granting a declaration in the appropriate case. The remedies are not mutually exclusive; though no doubt there are some orders where the only appropriate remedy is certiorari.’ [8] 

The Law Commission turned its attention to this confusion in 1971. Its first proposal was that UK’s administrative law should recognise an entirely separate procedural system for public law matters. However, this attracted criticism on the grounds that the Law Commission had not satisfactorily defined what was meant by ‘public law’ and that the proposal was not compatible with the English legal tradition. [9] 

These proposed reforms were followed by further proposals in 1976, which were much simpler. [10] They envisaged a dual procedure in which the declaration and injunction would be available either through private law procedures or through a new mechanism known as an application for judicial review. The proposals represented a balanced approach towards the concerns about protecting citizens against unlawful executive decision making and protecting lawful government decision making from frivolous applications. [11] 

These reforms were initially implemented by an amendment to the Rules of the Supreme Court which introduced a modified Order 53. The changes were given a statutory basis in Section 31 of the Supreme Court Act 1981. [12] The new order encompassed all the prerogative remedies available. The first case under this rule was De Falco v Crawley Borough Council [13] where Lord Denning approved the process. [14] 

This was the beginning of judicial review as it is known today. It created a two stage process for an application. Firstly, there is an application to the court for leave and secondly, an application for the review itself. [15] For the court to grant the application, the applicant must show that there is an arguable case that there is an available remedy and that there is no other option than to use judicial review. This is based on a balance of probability that the applicant’s interest have been harmed by a failure to discharge a public duty. [16] 

Judicial review will only be granted if the failure by the public body is unlawful. However, the court will not intervene unless the failure is so unreasonable that no reasonable person could have ever exercised the failure in the way complained about. This presumption shows that judicial review is not concerned with the merits of decisions made in the exercise of public power; instead it is only concerned with procedure. Although this is correct, it does not take into account judicial review in practise.

1.2 Judicial Review in Practice

Judicial review is a form of court proceedings in which a judge reviews the lawfulness of a decision or action made by a public body. An unlawful decision can be challenged on a number of grounds such as illegality, irrationality and unfairness. These factors were established in the case of Council of Civil Service Unions v Minister for the Civil Service. [17] In this case, Lord Diplock recognised these three grounds as factors which are needed to process. He explained each ground individually.

Illegality

To do with illegality, he said that this ground means that the decision maker ‘must understand correctly the law that regulates his decision-making power and must give effect to it.’

This means that a decision may be illegal for a number of reasons but the most common are that the decision is made by the wrong person, as seen in the case Barnard v National Dock labour Board [18] , it may be that the decision is an error of law where an authority has misunderstood a legal term causing it to act inappropriately. This was seen in R v Secretary of State for the Home Department, ex parte Khawaja [19] Â where the House of Lords held that the question of whether they were illegal immigrants was based on a question of fact of which the authority got wrong. However, this is based on reasonableness which was demonstrated in R v Hillingdon Borough Council ex Parte Pulhofer [20] Â where the local authority had to provide homeless people with accommodation. The argument was that the applicants who lived in one room where not homeless and thus they were not entitled to be provided with accommodation.

Another way is if the power is used for a purpose which is not what they were envisaged for. An example of this is R v Secretary of State for Foreign Affairs Ex parte the World Development Movement. [21] The Secretary assigned the funds for a project to construct a power station in Malaysia. The House of Lords held that this was not the purpose envisaged by the statute and the Minister therefore exceeded his powers.  Other examples include Bromley Council v Greater London Council [22] and R v Home Secretary ex parte Fire Brigades Union. [23] 

The final way of acting illegal is ignoring relevant considerations or taking irrelevant considerations into account. There are many cases which demonstrate this. Examples include Padfield v Ministry of Agriculture, Fisheries and Food. [24] Here, the Minister refused to mount an inquiry into a matter because he was afraid of bad publicity and also in R v Inner London Education Authority, ex parte Westminster City Council, [25] Â where the London Education Authority used its powers for the purpose of convincing the public of its political point of view. In all these cases, the authorities have based their decisions on considerations, which were not relevant to their decision making power and have acted unreasonably.

Irrationality or Wednesbury principle

The second ground is irrationality which under Lord Diplock's classification a decision is irrational if it is ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.’ [26] This standard is also known as Wednesbury unreasonableness, after the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [27] where it was first imposed.

The courts will consider the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. Case examples include Strickland v Hayes Borough Council [28] and R v Derbyshire County Council ex parte The Times. [29] 

Procedural Impropriety

The final ground is procedural impropriety which occurs when the rules of natural justice have not been adhered to. This was seen in the Aylesbury Mushroom Case. [30] However, as pointed out by Lord Steyn in Lloyd v McMahon [31] Â  ‘the rules of natural justice are not engraved on tablets of stone.’ There are however, several main areas of natural justice that shouldn’t be breached. These are the rule against bias, as seen in R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte [32] , the right to a fair hearing and the duty to give reasons. Case examples here are R v Altrincham Justices ex parte Pennington [33] and Ridge v Baldwin. [34] 

As seen in the cases mentioned, an applicant can apply for judicial review on a variety of reasons as long as they apply to one or more of the grounds.

1.3 The legal procedure to apply for Judicial Review

The legal basis of the procedures for making an application for judicial review is sections 29, 31 and 43 of the Supreme Court Act 1981 and Order 53. Everything provided for in Order 53 must now be interpreted and applied in the light of ‘revolutionary’ culture which underpins the new civil procedure rules (CPR) the overriding objective of enabling the court to deal with cases justly. [35] More particularly:

‘Dealing with a case justly includes, so far as practicable-

Ensuring that the parties are on an equal footing;

Saving expense;

Dealing with the case in ways which are proportionate-

To the amount of money involved;

To the importance of the case;

To the complexity of the issues; and

To the financial position of each party;

Ensuring that it is dealt with expeditiously and fairly; and

Allotting to it an appropriate share of the court’s resources, while taking into account the need to allot the resources to other cases’ [36] 

However, most practices and procedures for making an application of judicial review are not greatly affected by the enactment of the CPR. The two main features that distinguish Order 53 from other forms of litigation are:

An applicant may not commence an application for judicial review without first obtaining the permission of the High Court to do so. Other types of civil proceedings are started when the court issues a claim form at the request of the claimant. [37] 

There is a requirement that applications for permission be made ‘promptly and in any event within 3 months from the date when grounds for the application arose unless the court considers there is a good reason for extending the period within which the application shall be made. [38] 

Applications are dealt with separately from other forms of litigation. Pending applications are placed on the Crown Office List and are determined by one or more of the specialist High Court Judges nominated by the Lord Chief Justice.

Order 53 provides for a single procedure for seeking and obtaining one or more of the prerogative remedies of certiorari, prohibition and mandamus. [39] An application may also seek an injunction, a declaration and damages in the same application. The Order 53 procedure has acted as an important catalyst in the growth of judicial review and the development of legal principle in the field of administrative law. The procedure usually consists of 2 but there can be 3 or 4 stages:

The application for permission of the court to commence proceedings;

An interlocutory stage;

The hearing of the substantive application; and finally

Any appeal

The requirement to obtain permission from the court is a controversial point. There have been calls for both its abolition and then on the other hand the support for its retention. [40] 

There are many purposes for this stage. Firstly, it may safeguard public authorities by deterring or eliminating clearly ill-founded claims without the need for them to become a party to litigation. The requirement may also prevent administrative action being paralysed by a pending, but possibly spurious, legal challenge. [41] Secondly, for the High Court, the permission procedure provides a mechanism for the efficient management of the growing judicial review caseload. A large proportion of applications can be disposed of at the permission stage. Thirdly, for access to justice, it may be advantageous since it enables the litigant to expeditiously and cheaply obtain the view of a High Court judge on the merits of his application. [42] 

1.4 Accepting or refusing an application

To determine whether an application is granted or refused there is no set criteria as such. However, section 31 of the Supreme Court Act 1981 and Order 53 refer expressly to two grounds which should be used to refuse an application. These are where there has been a delay in applying to the court [43] or where the applicant does not have a sufficient interest in the matter to which the application relates. [44] However, it has been held that with issues with delay [45] and locus standi [46] should ordinarily be left to be dealt with at the full hearing. In practice, only in the clearest cases will permission be refused on either of these grounds alone [47] In recent cases, it has also been held that an applicant must have a legal personality in order to have sufficient interest in the case. Therefore, permission may be refused where an unincorporated association brings proceedings under its own name.

It will be refused where applications are:

Frivolous, vexatious or hopeless

Made by busybodies with misguided or trivial complaints of administrative error [48] 

Misconceived

Unarguable or groundless

Where there is more appropriate alternative procedure or

Where an application for judicial review is an appropriate procedure.

Permission may also be refused on grounds of policy, principally that to subject certain sorts of judicial review challenge would be detrimental to effective administration [49] Concern has been expressed that it is wrong to have such a broad discretion at such a preliminary stage of the litigation process especially since in many cases, the principle may only emerge late in the proceedings. There has also been concern about the variation in the rates of grant of permission between different subject areas of judicial review and also between different judges. [50] 

One of the most common grounds upon which permission to apply for judicial review is refused is that an applicant has failed to pursue a more appropriate method to satisfy their grievance. The courts take the view that judicial review should be the last resort once all alternative methods are exhausted. This is because the system becomes ‘clogged up’ with unnecessary cases which are capable of being dealt with elsewhere. However, the applicant will not be required to resort to some other procedure if that other procedure is less convenient or otherwise less appropriate [51] 

The applicant can challenge the refusal which has become a popular thing to do in recent times. This can be done by the applicant renewing their applications to another judge or the Court of Appeal or by the respondents applying to set aside the grant of permission. If a written application is refused the applicant may renew his application within 10 days to a judge in open court where it will be dealt with de novo [52] Where it is a civil matter there is a further right to renew within seven days at the Court of Appeal. A significant proportion of renewed applications for permission are successful. [53] 

1.5 The form of the application

When applying to the court, the applicant must fill in a form with a full statement that identifies and describes the applicant, sets out the relief sought and the grounds which it is sought. [54] It must be supported by written evidence verifying the facts relied upon. [55] All applications are usually dealt with on paper unless an oral hearing is requested. These applications are determined by a single nominated judge.

Oral applications tend to be used where the facts are complex, the legal submissions subtle or the applicant has delayed making the application for permission. A hearing may also be more effective to create publicity for an applicant’s cause. In some cases, even if the applicant hasn’t requested an oral hearing, the court may order there to be one. These can be for example school closures and analogous issues. [56] Written applications have the advantage of being less costly for the applicant, there is no need to instruct counsel to appear. It is sensible to make applications in writing, where it is quite clear that leave should be granted.

However, any application should be made promptly and in any event within 3 months from the date when grounds for the application first arose unless the court considers there is a good reason for extending the period within which the application should be made.

1.6 Appeals for reform of the preliminary stages of application

There have been calls for reform of the permission stage, in its 1994 report [57] , the Law Commission considered it essential that a procedure such as the permission requirement be retained to filter out hopeless applications. It still recognised that a number of reforms were necessary. Firstly, the permission stage was to be renamed the ‘preliminary consideration’. Secondly, all preliminary considerations should be without an oral hearing. Thirdly, the Rules are redrawn to provide express criteria to be applied. Under these proposals it would be possible for the judge determining the case to invite the respondent to give information on a prescribed form on matters such as its decision making procedure, any internal review taken, what alternative remedies are available to the applicant and other reasons why they should no proceed.

Once permission has been granted, the application is commenced by issuing a claim form under Part 7 of the CPR which must be served on all persons who are directly affected. In addition, the court may allow any person who desires to be heard in opposition and who appears to be a proper person to be heard but who has not been served with the notice or summons, to be so heard. There are however, no express provisions for third parties to intervene in support of an application. The respondent has 56 days to file written evidence in reply. Extensions will only be granted in circumstances which are wholly exceptional and for the most compelling reason.

Order 53 provides for the making of applications in respect of disclosure of documents and cross-examination of people who have been given written evidence. [58] In practice, unless the applicant can show a prima facie breach of public duty, disclosure will not usually be granted. [59] The courts have encouraged public bodies to adopt the practice of filing written evidence which discloses all relevant matters. [60] 

If the challenge is on the grounds of irrationality according to Wednesbury [61] , full disclosure of the type which is a matter of routine in general civil proceedings will seldom be ordered. [62] Applications for disclosure ‘in the hope that something might turn up’ are regarded as an illegitimate exercise, at least in the absence of prima facie reason to suppose that the deponent’s evidence is untruthful. [63] 

2 Is the ECHR compatible with the UK law of judicial review?

The creation of the ECHR has created some issues within the judicial system of the UK. In this chapter these issues will be considered with the effect the ECHR has had.

2.1 What is the ECHR?

The European Convention on Human Rights is an international treaty by which signatory states oblige themselves to secure certain rights to persons within their jurisdiction. [64] Anyone who feels that a state has breached its obligations under the Convention and has exhausted all the domestic remedies, such as judicially reviewing a body, can seek redress at the ECtHR.

The Convention itself is separated into three sections. The first, contains the fundamental rights and freedoms which the signatory states have to guarantee to its citizens. These refer to:

The physical integrity and dignity of a person including the Right to Life [65] , Prohibition of Torture [66] , Freedom from Slavery [67] and the Right to Liberty. [68] 

Due procedure before courts of law including the Right to a Fair Trial, [69] Prohibition of Retroactive Criminal legislation, [70] and the Right to an effective legal remedy. [71] 

The protection of personal life including the Right to a Private Life, [72] Freedom of Thought, [73] the Right to Marry, [74] and Freedom from Discrimination. [75] 

Communication and participation in society including the Right to have Freedom of Expression [76] and Freedom of Assembly. [77] 

Section two deals with the European Court of Human Rights (ECtHR). This governs the competencies of the Court, the election of judges and sets out rules of procedure applying before the Court. The rules laid down in the Convention are supplemented by Rules of Court which the Court has adopted. [78] 

The third section contains miscellaneous provisions. [79] 

The ECHR was drafted in the aftermath of World War Two after the atrocities committed across Europe, in particular the terror of the Holocaust. It was created for two main purposes. Firstly, it was to ensure that certain fundamental rights and freedoms were protected and secondly, to create a group of stable democracies all governed by the rule of law across Europe. Until this, the protection of human rights had been considered a matter between states and persons under their jurisdiction. This was because the concept of national sovereignty had prevented states or the international community from interfering with the way human rights were safeguarded in other states. [80] 

2.2 Parliamentary Sovereignty

However, since the incorporation of ECHR, there has been demise in this power. This has occurred only recently since the ECHR has become directly enforceable into UK law through the Human Rights Act 1998(HRA)

This Act came into force in October 2000 and comprises numerous sections which codify the protections of ECHR into UK law. Essentially it gives further effect to rights and freedoms guaranteed under the ECHR. It requires that all public bodies must comply with Convention rights and that individuals can take human rights cases into UK domestic courts. Schedule 1 [81] contains the main articles. These main articles include, to name a few;

The Right to respect for private and family life. [82] There is no general right to privacy in UK law but the courts can now apply HRA. A case illustrating this is Campbell v. MGN Ltd. [83] where Naomi Campbell sought to assert here right to a private life.

Freedom of thought, conscience and religion. [84] This is regarded as one of the most important human rights; and there is no difference between the protection offered by the common law, and that guaranteed by the ECHR. [85] 

Freedom of expression. [86] This is the right to hold your own opinions and to express them freely without government interference. This includes the right to express your views aloud or through articles, books, tv, radio and art. It is especially useful for newspapers, however as has been seen recently by the Levison enquiry, this Article needs to be balanced with Article 8. A case which demonstrates this is Venables and Thompson v. News Group Newspapers. [87] 

Freedom of assembly and association. [88] Simply put by Lord Denning this right is ‘the right for everyone to meet and assemble with his fellows to discuss their affairs and to promote their views’. [89] 

There are many more which are included in Schedule 1 of the HRA such as the Right to life, [90] the Right to a fair trial [91] and the Right to marry [92] 

In the UK, the principle of parliamentary sovereignty has always been paramount in its unwritten constitution and has long been seen as the core of democratic practice [93] since the Bill of Rights in 1689. The superior position of the elected legislature and its majority rule have been central principles to the unwritten English constitution. [94] The resulting doctrine was that Parliament had ‘the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.’ [95] 

This means that Parliament is supreme in that any law enacted by it becomes the law of the land and is final. [96] 

However, the ECtHR construes the need for its rulings to be supreme. The UK, because of its incorporation, therefore, has to follow their rulings even if they are sometimes narrow in scope. The HRA gives effect in domestic law to the rights and freedoms contained within the ECHR. The Act, namely Section 2 [97] , requires that the UK courts must take into account any decision made by the ECHR and apply it when relevant. This has caused quite a ‘stir’ and has led to a large debate surrounding Section 2 as to whether there should be this control over UK parliament.

The first of these arguments is that when presented with a decision of the ECtHR, there are problems in the application in UK courts. According to Sir Stephen Sedley, some judges saw their role, for maintaining the rule of law and thus preserving sovereignty, as providing adequate protection for human rights in the UK. In doing so, they faced a particular problem in the way that the UK constitution was understood. For judicial review, the individual had to prove there had been a negative implication on them, imposed by a public body. This was problematic when linked to sovereignty. [98] 

It is generally accepted that the courts developed judicial review as an aspect of the rule of law. [99] Thus, judges are to maintain the rule they must protect human rights. However, this created a problem as they became limited as to what they could do. They could not directly question a law produced by Parliament as this would undermine the supremacy of that Act and this sovereignty. However, the ECHR was capable of making them challenge the substance of English law which effectively undermines sovereignty. The same was said in that by the incorporation of the broad spectrum of human rights into UK law would lead to the demise of the British system of Parliamentary sovereignty and would thus have a direct effect on judicial review proceedings.

2.3 The ‘Proportionality’ principle

The growth of domestic judicial review has meant that the practice of reviewing UK legislation in accordance with the ECHR has played a role in undermining parliamentary sovereignty. If the will of Parliament is already being constrained by a group of European law professors sitting in Strasbourg, then there will be considerable consequences on the UK. This is because the practice of judicial review in the UK is understood by those principles laid out by Lord Diplock in the case of Council of Civil Service Unions v Minister for the Civil Service [100] .

The three principles are the only way that a claimant can bring a claim against an authorative body who has acted outside of its power. The second principle is irrationality, where a decision is so outrageous that a sensible person would not have come to that conclusion. This principle is also known as Wednesbury unreasonableness after a decision made in the case of Associated Provincial Picture House Ltd v Wednesbury Corporation [101] where this principle was first imposed. This is used for cases of judicial review in the UK. However, since the incorporation of the ECHR, there has been the creation of a new principle which has caused a considerable effect in the law of judicial review.

There has been a controversial debate about this principle in that when the UK took to using the HRA, it incorporated the ECHR’s principle of ‘proportionality’ by default.

The main concern of judges in the UK is that proportionality doesn’t focus on the typical legality of the decision making, as the Wednesbury principle does. Instead, it focuses on the merits of the decision making. Proportionality grants judiciaries wider powers to consider the merits of a decision. Broadly, it necessitates an assessment of the balance between interests and objectives. The decision made must be proved to have been necessary to meet a legitimate aim, and the most reasonable way of doing so. [102] 

However, in R v Secretary of State for the Home Department, ex parte Daly [103] Lord Steyn accepted that this principle can be applied in UK law by a three stage test. He observed this from the case of de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [104] Lord Clyde observed that in determining whether a limitation by an act, rule or decision is arbitrary or excessive the court should ask itself:

‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’ [105] 

Lord Steyn concluded that stated that ‘these criteria are more precise and more sophisticated that the traditional grounds of review.’ [106] 

Traditionally, judicial review in the UK has been limited to ascertaining whether the actions of administrative bodies have been exercised within the powers conferred upon them by Parliament [107] Once a body acts illegally against the principles set, it essentially has attempted to undermine the supremacy of Parliament. The Wednesbury principle is an extension of this. This test is a strict one, and is broadly value neutral or legally positivistic in its application. [108] It is generally understood that this principle goes further and requires that public bodies take into account the interests of citizens in their activities so much so that they are affected proportionately. It has been said that the application in the UK could result in unclear lines of authority, and the regrettable situation of courts overruling the decisions of bodies who derive power from democratically elected institutions. Allowing the courts to empower themselves to overrule decisions on their merits and substitute their own preferences would lead to judicial assumption of quasi-executive power. This, it is argued, would be constitutionally inappropriate. [109] Lord Roskill saw the use of proportionality as necessitating an unlawful imposition into executive power. Judicial review would become an appeal against a decision, rather than an assessment of that decision’s legality and legitimacy. This had never been the objective of review and it was beyond the courts authority to grant such an extended power. Lord Lowry concurred with Lord Roskill, stating that ‘there can be very little room for judges to operate the proportionality doctrine in the space which is left’ between ‘conventional judicial review’ and the forbidden appellate jurisdiction’. [110] Following Brind [111] , there have been several cases where the courts have explicitly refused to consider proportionality as criteria for review, instead applying the Wednesbury test strictly. In the International Stock Exchange case, Popplewell J stated that ‘proportionality is not a free standing principle in domestic law’ and it ‘would not be proper’ to apply it. [112] Maurice Kay J in R(Medway Council) v Secretary of State for Transport [113] states ‘the test remains Wednesbury’.

However, the HRA requires that the UK courts ‘must take into account’ [114] the judgements and decisions of the ECtHR. It is from here that it can be seen that the HRA has allowed the European test of proportionality a statutory footing in the UK’s judicial review procedure as noted by Lord Steyn by his test.

There has been a debate as to whether Parliament and the courts should be bound by the ECHR and whether they, as they were set out to do, should have the final say in determining what the law should be. This has most recently been demonstrated in the Abu Quatada case [115] , where the UK court’s decision was overturned by the ECtHR. The Supreme Court’s President, Lord Phillips said ‘it’s quite plain that, so far as issues of ECHR are concerned, we are not really supreme… the Strasbourg court has the last word’ [116] 

However, this is contrasted by Lord Judge who said ‘we must take into account the decision of the ECHR but we are not bound by them’ [117] This enforces the principle of parliamentary sovereignty and preserves it.

It can be argued that by allowing the proportionality test into UK law creates some confusion especially with the Wednesbury principle has been created and there have been difficulties in applying the modifications as the two have become mixed together. The first set of cases which incorporated the proportionality test, shortly after the incorporation of the ECHR, demonstrate this. The Kebilene [118] case was very influential in this area. It was noted that a reviewing court should recognise that ‘there is an area of judgement within which the judiciary will defer… the considered opinion of the elected body… whose act or decision is said to be incompatible with the convention.’ [119] 

This shows that Parliamentary sovereignty is preserved as with all cases, the UK judiciary can declare a matter of law incompatible with the ECHR. In Daly [120] , Lord Steyn and Lord Bingham acknowledged that the construction of the HRA Act required the proportionality test to be applied, and confirmed that there was therefore a separate ground of review for HRA and ECHR decisions. [121] However, they did not condone the application of proportionality to all domestic irrationality review.

Therefore, this shows that the majority of judges are reluctant to apply the proportionality test on the grounds that it infringes on the UK’s domestic judicial procedure and creates some procedural confusion as to what principle to apply. This shows that the incorporation of the ECHR and HRA has adversely affected the way that judges can apply a remedy for judicial review in both domestic and international cases. However, it does go to show that the judiciary are not bound to follow the ECHR on its application of the test, therefore showing the sovereignty is still intact.

2.4 Values and Culture

A further argument is that the ECHR fails to take into account the UK’s culture and the fact that the UK’s values and indeed its constitution are very distinct from the rest of Europe. The views of the UK on a particular matter will be viewed differently by another EU country. This shows that rights contained within the ECHR do not correspond to the needs of the people within individual countries which makes it irrelevant in some cases. However, there is a margin of appreciation. This is a theoretical space which allows for Strasbourg to grant national authorities to fulfil their obligations under ECHR. [122] This recognises the diverse cultures of each Member State and that it was difficult to identify a set of Human Rights which would benefit all of them. Further to this, it allows member states to balance their sovereignty with their obligations of the ECHR. [123] This was first show in the case of Handyside. [124] This case concerned the publication of an obscene book which was seized. The appeal was taken to the ECtHR on the basis of freedom of expression where it was held that there was no breach based on the margin of appreciation. However, given that the purpose was to create a common standard, it meant that the state must give up a considerable part of their sovereignty in order for the two to work alongside each other. Thus, although considering some of the UK’s culture and values, it means that part of the sovereignty of the UK’s parliament has been sacrificed for this reason.

This means that judges should apply the domestic law to provide an effective remedy for those who are seeking to judicially review a public body for a breach of their rights but will still need to consider the ECHR in doing so. However, to maintain their sovereignty, where there is a legitimate reason, then the UK judiciary should not follow Strasbourg and the judiciary and the UK courts will be able to assert that applying the rules of the ECtHR would not be acceptable.

However, it must be noted that there are arguments to the effect that the values of the UK are considered in that the ECHR was originally drafted by a majority of British judges. Therefore, it can be said that the values of the UK will have been taken into account considerably. However, although this may have been the case, since the convention was created, the way it is implemented and the values of the UK judiciary will have changed making it incompatible.

This shows that the HRA was incorporated by, the then, Labour government with the pretence that it would incorporate the ECHR into the UK’s domestic legislation. However, they did not consider the effect that this would have on parliamentary sovereignty and how it would affect those seeking to judicially review an over powerful authority. They also failed to notice that the UK has considerably different values and beliefs which are now no longer actually seen as British rights as they are now controlled by Strasbourg in the ECtHR. Their thinking was drastically wrong and the incorporation has not furthered UK human rights. Instead, it has most likely hindered people being able to achieve the best outcome which they would have been able to achieve had they been able to apply domestic legislation. Thus by signing, they accepted a limit on the sovereign rights of the UK.

Therefore, this demonstrates that parliamentary sovereignty has been affected by the incorporation of the ECHR as it has had an effect on the UK’s legislation, creating confusion on which laws to apply and because it is not British specific, it has affected the way the judiciary are able to make decisions and come to conclusions especially for those cases of judicial review. This is because the judges are scared to make a decision on a judicial review case as they are afraid that on appeal to the ECtHR, the court will over rule the decision, like that as seen recently in Abu Qutada. [125] 

2.5 Interpretations of Human Rights Legislation

This links in with parliamentary sovereignty and how the ECHR fits in with UK legislation.

Advocates of the ECHR had assumed that incorporation could only be achieved by changing UK legislation to fit the ECHR purpose. There were never any suggestions that in doing so, the House of Lords or any other UK court would be impeded. Lord Denning hinted that this was the case in Birdi [126] stating that the convention should be construed, de jure, as an authorative source of law, which is binding on all executive bodies and is this directly effective in UK courts.

However, the UK has been found to have breached the ECHR on a number of occasions. This has been explained by the fact that although intended to, the convention has not been fully incorporated into domestic law. There would have been significant implications for UK courts if it was seen to oblige the ECtHR to disapply any domestic statutory or common law provision which could not be construed to comply. Lord Irvine of Lairg QC echoed this and vowed to ensure Britain led the way in championing human rights rather than being ‘grudgingly driven to swallow the medicine prescribed to us by the court in Strasbourg.’ [127] 

However, since incorporation, the impact of the ECHR on UK law is evident. There have been changes to some pieces of UK legislation so as to fit within the ECtHR rulings. There are several examples where this has been the case namely; the Contempt of Court Act 1981 which was passed following the Sunday Times v UK [128] where the government had to amend the law in accordance with the ECtHR. Other examples are the Mental Health Act 1983 and the Special Immigration Appeals Commission Act 1997. This is because the incorporation has given the ECHR superior status to the UK law rules, delegated legislation and previous statutes.

It is highly likely that some domestic law will be in breach of the ECHR. However, it may be argued that had the ECHR not been incorporated, the outcomes by domestic legislation could have produced a judgement by the domestic courts.

Moreover, the incorporation has had an effect on statutory interpretation. This is because the ECHR’s jurisprudence has its own ‘ripple effect’ which has led to a radical alteration of accepted common law principles and techniques of statutory interpretation. Some have argued that if ‘enthusiastically embraced by courts, it provided a moral launch pad for more far reaching re-definition of constitutional understandings.’ This is shown in Derbyshire County Council v Times Newspaper Limited [129] , R v Secretary of State for the Home Department ex parte Leech (No2) [130] and R v Secretary of State for Social Security ex parte Joint Council for Welfare of Immigrants. [131] 

However, Lord Wilberforce has expressed that ‘the very language used which is interpreted by the courts is difficult.’ This view was echoed by Lord Denning about the Treaty of Rome. The convention rights are in extremely broad and general terms and the usual distinction between legislation and interpretation are easily blurred. This is because the ECHR, unlike the UK law, is not black letter law which was shown to be the case by Lord Woolf in Poplar. [132] In this case, he observed that when determining the question of a public function, the section ‘should be given a generous interpretation’ which gave practitioners a wide scope for argument on this point. This shows that the law can be interpreted and is not, so to speak, set in stone. However, Lord Nicholls stressed that any interpretation must be compatible with ‘the underlying thrust’ of the legislation, and not require the courts to undertake ‘legislative deliberation.’ [133] Lord Roger phrased his approach in similar language, that courts were not able to ‘change the substance of a provision entirely.’ [134] 

2.6 Declarations of Incompatibility

To combat this issue, the courts have devised a declaration of incompatibility.

Section 3 HRA provides that primary and subordinate legislation must be ‘read and given effect in a way which is compatible with Convention Rights’ but only ‘so far as it is possible to do so.’ Where it is not possible under Section 4(2) HRA a declaration of incompatibility can be issued.

A declaration of incompatibility is a declaration issued by judges in the UK that they consider that the terms of a statute to be incompatible with the UK's obligations under the HRA. ‘It is merely a flag that alerts Parliament that people's human rights are being infringed.’ [135] However, the declaration of incompatibility is often seen as a last resort [136] as the judiciary will attempt to interpret primary legislation as being compatible. [137] Lord Steyn in R v A [138] said that a piece of legislation ‘should be possible to interpret without the ECHR.’

However, this affects the UK’s legislation in that Acts will need to be disapplied if they do not fall into line with human rights in accordance with the ECHR. A recent example of this was in 2009 in the case of Wright v Secretary of State for Health [139] were the House of Lords made a declar