JR: Rights, Reasonableness, and Proportionality Flashcards
COMMON LAW and the ECHR
What is meant by illegality for the purposes of JR?
decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it…’ - Lord Diplock in GCHQ (understanding the law and applying it correctly)
How do the Courts establish what illegality is?
Courts will establish :
taken into account an irrelevant consideration (or failed to take into account a mandatory relevant consideration);
acted for an improper purpose;
unlawfully delegated their discretion; - exception to ministers.
unlawfully fettered their discretion (e.g., by following an over-rigid policy laid down in advance); or
Is illegality merely a matter of statutory interpretation? How did the court answer this Q in the case of World Development Movement?
- World Development Movement - held that economic must be economically sound.
This is an example of courts ‘reading in’ where it was not stated in the statute but added as an effect of statutory interpretation.
- so it is not just a matter of interpretation but sometime the courts ‘read in’
What is discretionary power
discretionary power = Power of choice (still must be w/in scope of power)
Usually indicated by use of word ‘may’ - v ‘must’ which is obligation to do something.
Why is discretionary power necessary for effective public administration?
Public bodies have more specialist knowledge, and there may be a more efficient (faster) response to issues, flexibility to decision making.
If discretionary power is necessary for good public administration, why were some public law scholars so suspicious of it?
- Why suspicious? - Dicey’s first rule of law principle of regular law as opposed to arbitrary power (ie discretionary power).
- Why worry? - abuse of power, lack of transparency, discrimination/bias/unfairness
1) What is Wednesbury unreasonableness?
2) What are the differences between Lord Greene MR’s explanation of unreasonableness in Wednesbury and Lord Diplock’s definition of irrationality in GCHQ?
3) Why is the threshold for intervention on the ground of Wednesbury unreasonableness set so high?
1) Wednesbury Unreasonableness Test:
- a decision is unreasonable if it’s so irrational no reasonable authority would have made it. - courts should consider whether the authority considered all relevant factors and ignored irrelevant ones -
2) Diplock introduced irrationality TEST- broader scope of review-
- a decision which 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 to be decided could have arrived at it. [pp 410-411]
- Uses term ‘person’ rather than ‘authority’
- ‘Moral standards’ and ‘defiance of logic’ may provide a broader use of the principle
- This approach could be considered to be more perverse
- In practice both tests are used.
DIFFERENCE:
- Greene considers whether all relevant factors were considered and whether irrelevant ones were ignored - which could lower the threshold.
- These principles specifically look at outcome of process rather than process itself.
3) The bar is set very high for respect of Parliamentary Sovereignty and the primacy of Parliamentary Acts.
How have courts applied the Wednesbury test in (a) cases involving fundamental rights; and (b) cases involving economic and social policy not involving fundamental rights?
HUMAN RIGHTS:
- Fundamental rights: judiciary applies heightened scrutiny to the Wednesbury test so as not to allow the scope to be too broad.
- ANXIOUS SCRUTINY : the bar for Wednesbury test is lowered slightly.
- Burden of proof shifts to public body who was decision maker. - they need to justify a compelling reason. (Only some is necessary, no need to provide in depth justification).
- case ex: R v Secretary of State for Home Departments, ex parts Simms (2000) also in ex parte Smith.
- HL emphasised that any interference with fundamental rights must be justified by a compelling reason.
- In ex parte Smith it was found that public body did provide justification
ECONOMIC AND SOCIAL POLICY:
SUPER WEDNESBURY: (Deferential Approach) - courts are less likely to intervene - allowing public authorities to be recognised for their own expertise and power of discretion.
- Highest bar for Courts to intervene.
- Situations where this is likely:
- Where The court doesn’t have access to all the information as to why public body has come to the decision it has.
- Where a high degree of expertise is necessary (ex Ex Parte B - child with leukaemia case)
POLYCENTRIC DECISIONS: lots of different factors that need to be made up to come to a decision and it is not in the best interest to intervene. - look at Elliot and Thomas to help clarify polycentric decision making
Ex: R v Ministry of Defence, ex parte Smith (1996)
- Court upheld decision of military policy emphasising courts should not interfere in matters where gov is making policy decisions based on social or economic considerations
1) What is the proportionality test?
2) What is its status in English administrative law?
3) How, if at all, does it differ from the Wednesbury test?
1) Proportionality test: COURTS WILL ASK
- (i) Is the legislative objective sufficiently important to justify limiting a fundamental right?
- (ii) Is the measure rationally connected to the legislative objective?
- (iii) Could a less intrusive measure have been used?
- (iv) Has a fair balance been struck between the rights of the individual and the interest of the community? (a.k.a. narrow proportionality or proportionality stricto sensu)
2) In context of fundamental rights: weighing importance of the Right against the reasons for the decision. If the Right is fundamental, threshold for showing unreasonableness is lower.
3) Proportionality test is only used in retained EU law and in regards to HRA 1998
Clearer, more structured - but might tiptoe into repeal (?)
How does s 6 of the Human Rights Act 1998 affect the grounds upon which judicial review of administrative action may be sought?
S6) HRA 1998: It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
It limits the scope of their discretion so that they must be within the compatibility of Convention rights, unless there is not other alternative, or the Court is following primary legislation which cannot be made compatible with Convention rights.
ex parte Bugdaycay
PRINCIPLE:
- introduced ANXIOUS SCRUTINY - ie proportionality (pre HRA so pre actual proportionality test) - into JR in regards to HR
FACTS:
- An asylum seeker sought judicial review of the Home Secretary’s decision to refuse his application.
- He argued that if he returned to Kenya, he would be removed to Uganda where he feared he would be killed.
HELD
- The House of Lords held that the Secretary of State had acted unlawfully.
ex parte Brind (pre-HRA CASE)
PRINCIPLE:
Lord Templeman—the ban was lawful as it was not disproportionate: ‘the interference with freedom of expression is minimal and the reasons given by the Home Secretary are compelling.’
FACTS:
- In 1988, the Home Secretary announced a ban on direct broadcasting of members of organisations in Northern Ireland, such as Sinn Fein, which were associated with terrorist groups.
- To circumvent the ban, broadcasters would use actors to dub the words of such members. (Just the audio was banned of the actors(?) - so the same actors dubbed themselves…
Brind was a journalist and sought judicial review of the government’s ban.
Brind argued that the ban was irrational and breached Article 10 ECHR (freedom of expression).
ex parte Simms
PRINCIPLE:
to override fundamental right it must FIRST be in clear words
- in the absence of express language or necessary implication of the contrary the COURTS PRESUME THAT EVEN MOST GENERAL WORDS WERE INTENTED TO SUBJECT THE BASIC RIGHTS to the individual.
PRICNIPLE OF LEGALITY in Simms:
‘Fundamental rights cannot be overridden by general or ambiguous words … In the absence of express language or necessary implication to the contrary, the courts … presume that even the most general words were intended to be subject to the basic rights of the individual.’
ex parte Leech
To allow the Secretary of State to interfere with fundamental rights would require express wording in the 1952 Act.
- Presumption of statutory interpretation - there is no express wording permitting such act and therefore is unlawful to do so.
UNISON
PRINCIPLE:
- leading case on impeding access to justice in JR. (double check)
FACTS:
- UNISON sought JR for employment tribunal fees
- argued it restricted access to justice
HELD:
- decided on CL grounds and constitutional right of accessing justice
- degree of intrusion to the right was greater than justified by legitimate objectives (ie transferring costs to users, incentivising earlier settlement, disincentivise weak claims)
Ex parte Smith
PRINCIPLE:
- The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.’ - David Pannick QC’s submission (accepted by CA)
- Wednesbury threshold may be lowered in HR cases but still very high.
- court refused to apply a test of proportionality - so there are criticisms that judges failed to show the courage of their own convictions—that the executive had been unable to provide compelling justification for serious breaches of (common law) constitutional rights.
FACTS:
- there was a policy similar to don’t ask don’t tell
- Smith was discharged for being gay
HELD:
- Accepted submission but held that the decision was WITHIN the range of reasonable responses.
Anxious Scrutiny pros and cons
In Favour:
Paul Craig - anxious scrutiny reveals that courts can readily engage in more searching review than classic Wednesdbury unreasonableness w/out trespassing on terrain properly occupied by the administration .
- doctrine of anxious scrutiny requires:
- reasoned decision-making AND
- enhanced rationality review by the court
- the duality of the two above give the doctrine strength (both elements are central to accountable gov.)
Criticism:
- in practice the cases that actually touch upon the principle are too complex to be treaded by such a simple principle.
- political and legal considerations of fundamental rights protection are very difficult and subjective - cannot be right that such questions should be regarded as more rather than less suitable to judicial determination…
Smith and Grady v UK (1999)
Smith took her case to the ECtHR and won.
- breach of Art 8 of ECHR (right to respect for private and family life)
-breach of Art 13 ECHR
FOUND that the modified Wednesbury was inadequate for the protection of rights protected by ECHR.
Art 8 ECHR
Right to respect for private and family life.
Art 8 (2): ECtHR interprets para 2 as requiring proportionality.
APPLICATION OF HRA TO PARLIAMENT/Public AUTHORITIES
Application to Parliament:
S(3) - as far ass possible, primary legislation must be read in compatibility with Convention rights.
S(4)- If not possible then (thus incompatible) the court can make declaration of incompatibility and send back to Parliament (which Parliament can do what they want with it - usually they will repeal it with new Act)
Application to Public Authorities:
S(6) unlawful for public authority to act in a way which is incompatible with a Convention right.
- - S(6) added a new (statutory) ground for judicial review.
PROPORTIONALITY TEST & AUTHORITY
the courts will ask:
(first three accepted in R(Daly)
1) Is the legislative objective sufficiently important to justify limiting a fundamental right?
2) Is the measure rationally connected to the legislative objective?
3) Could a less intrusive measure have been used?
4) Has a fair balance been
struck between the rights of the individual and the interest of the community? (a.k.a. narrow proportionality or proportionality stricto sensu)
When to use reasonableness vs proportionality tests?
CASES INVOLVING CONVENTION RIGHTS
- court will apply proportionality test
- court will substitute judgment on proportionality, balancing the individual right and public interest
- court will not merely assess the reasonableness of the public authority’s decision.
CASES NOT INVOLVING CONVENTION RIGHTS
- court will apply Wednesbury unreasonableness and the traditional (common law) (ie GCHQ) grounds of review.
