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The Human Rights Act 1998 and the Standard of Substantive Review

Published online by Cambridge University Press:  25 July 2001

Mark Elliott
Mark Elliott*
Affiliation:
University of Cambridge; St. Catharine’s College, Cambridge
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Abstract

The role of English courts in reviewing the substance of administrative decisions (as opposed to the procedure by which such decisions are made) has traditionally been confined by the Wednesbury doctrine, which permits judicial intervention only if the decision is unreasonable or aberrant. The European Court of Human Rights, however, adopts a more intrusive approach to substantive review which is founded on the principle of proportionality. This article examines the likely implications of the Human Rights Act 1998 for substantive review in the English courts. Two specific issues, concerning the scope of the proportionality test in English administrative law, are considered. First, is the proportionality principle’s impact likely to be felt beyond the human rights context such that it may, in time, wholly displace the Wednesbury doctrine? Secondly, given that intending claimants under the Human Rights Act must satisfy a stricter test of standing than claimants for judicial review, must litigants who wish to question the legality of administrative action on human rights grounds but who are unable to satisfy the Act’s standing requirement rely on the orthodox principle of Wednesbury review, rather than on the more incisive proportionality test?

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Articles
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The Cambridge Law Journal , Volume 60 , Issue 2 , July 2001 , pp. 301 - 336
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Copyright © Cambridge Law Journal and Contributors 2001

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Footnotes

I am grateful to Christopher Forsyth for his helpful comments on a draft of this paper. The usual disclaimer applies.

References

1 See generally Cambridge Centre for Public Law, The Human Rights Act and the Criminal and Regulatory Process (Hart, Oxford 1999)Google Scholar.

2 The classic example would be the decision in Malone v. Metropolitan Police Commissioner [1979] Ch. 344 in which the domestic court refused to treat invasion of privacy as being actionable per se. Cf. Malone v. United Kingdom (1984) 7 E.H.R.R. 14. See also the recent decision of the Court of Appeal in Douglas v. Hello! Ltd. (The Times, 16 January 2001).

3 Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 at 410, per Lord Diplock.

4 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 at 234, per Lord Greene M.R.

5 This situation may arise if a claimant which wishes to challenge the legality of government action on the ground that it breaches one or more of the Convention rights is unable directly to invoke the Human Rights Act because it cannot characterise itself as a “victim” of the alleged human rights violation. An intending claimant must, according to s. 7(3) of the Human Rights Act, establish “victim” status in order to demonstrate “sufficient interest” for standing purposes. This point is explained in greater detail in section IV, below.

6 Contrast the failure of the claimants in R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517 before domestic courts which adopted rationality as the criterion of substantive review, with their success in Smith v. United Kingdom [1999] I.R.L.R. 734 and Lustig-Prean v. United Kingdom (2000) 29 E.H.R.R. 548 before the European Court of Human Rights which applied the proportionality doctrine. This case is discussed in section II, below.

7 Of course, the paradigm applied by the court is a function of the context within which the specific decision-making process occurs. As Lord Bridge remarked in Lloyd v. McMahon [1987] A.C. 625 at 702, “the so-called rules of natural justice are not engraved on tablets of stone”.

8 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 at 234.

9 Council of Civil Service Unions V. Minister for the Civil Service [1985] A.C. 374 at 410.

10 Although cf. R. v. Chief Constable of Sussex, ex parte International Traders’ Ferry Ltd. [1999] 1 All E.R. 129 at 157, per Lord Cooke, for a less extreme formulation of the reasonableness test.

11 See, inter alios, Lord Irvine of Lairg, “Judges and Decision-Makers: The Theory and Practice of Wednesbury Review” [1996] P.L. 59; J. Jowell, “Of Vires and Vacuums: Judicial Review in Constitutional Context” [1999] P.L. 448; Elliott, M.C., The Constitutional Foundations of Judicial Review (Hart, Oxford 2001)Google Scholar, ch. 6.

12 Sir John Laws, “The Limitations of Human Rights” [1998] P.L. 254 at 259-260.

13 See, e.g., Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997.

14 For instance, if an unsuccessful applicant for a licence establishes that the agency's refusal was substantively unlawful, the only remaining option open to the decision-maker is to grant the licence. Consequently, in situations such as this, the court's view of the substance of the case is de facto substituted for that of the designated decision-maker.

15 See generally Jowell, J. and Lester, A., “Proportionality: Neither Novel nor Dangerous” in Jowell, J. and Oliver, D. (eds.), New Directions in Judicial Review (London 1988)Google Scholar.

16 [1996] Q.B. 517.

17 The emergence of this approach is particularly evident in the speeches of Lord Bridge in R. v. Secretary of State far the Home Department, ex parte Bugdaycay [1987] A.C. 514 at 531 and R. v. Secretary of Stale far the Home Department, ex parte Brind [1991] 1 A.C. 696 at 748749.

18 [1996] Q.B. 517 at 554, approving the submission of David Pannick Q.C.

19 [1996] Q.B. 517 at 540-541.

20 [1996] Q.B. 517 at 540.

21 Smith v. United Kingdom [1999] I.R.L.R. 734; Lustig-Prean v. United Kingdom (2000) 29 E.H.R.R. 548.

22 That the Court reached this conclusion is unremarkable, in light of its previous Article 8 jurisprudence on sexual orientation. See principally Dudgeon v. United Kingdom (1982) 4 E.H.R.R. 149; Norris v. Republic of Ireland (1991) 13 E.H.R.R. 186.

23 Following the decisions of the European Court of Human Rights in Smith and Lustig-Prean, the prohibition on homosexuals in the armed forces has been lifted, and an Armed Forces Code of Social Conduct has been adopted.

24 Although Article 13 is excluded from the schedule of Convention rights to which the Human Rights Act seeks to give effect, it is unlikely that English courts will ignore Article 13 considerations. Since Wednesbury review constitutes an inadequate remedy for Article 13 purposes, English courts must, of necessity, have recourse to more intrusive tools of review in cases involving the Convention rights if the Human Rights Act's objective of “bringing rights home” is to be realised.

25 Although it should, of course, be noted that Smith has very important implications not just at a general level, vis-à-vis the standard of substantive review, but also in the specific context of sexual orientation discrimination. Even before the Human Rights Act 1998 entered into force, the impact of the Smith litigation was felt in the context of domestic employment law when the Employment Appeal Tribunal held, in MacDonald v. Ministry of Defence [2000] I.R.L.R. 748, that the term “sex” in the Sex Discrimination Act 1975 should be construed as covering “sexual orientation” as well as “gender”. Cf the more restrictive approach of the European Court of Justice in relation to sexual orientation discrimination: Case C-249/96, Grant v. South West Trains Ltd. [1998] E.C.R. 1-621.

26 I. Hare, “Privacy and the Gay Right to Fight” [2000] C.L.J. 6 at 8.

27 Craig, P.P., Administrative Law (London 1999) at 586Google Scholar. See also Craig, P.P., “The Impact of Community Law on Domestic Public Law” in Leyland, P. and Woods, T. (eds.), Administrative Law Facing the Future: Old Constraints and New Horizons (London 1997)Google Scholar; Craig, P.P., “Unreasonableness and Proportionality in UK Law” in Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe (Hart, Oxford 1999)Google Scholar.

28 For a well-known example, see Case 120/78, Rewe Zentrale AG v. Bundesmonopoverwaltung fur Branntwein [1979] E.C.R. 649 (“Cassis de Dijon”’). See also Article 5 of the EC Treaty for a statement of the general importance of proportionality within the Community legal order.

29 See, e.g., R. v. Secretary of State for the Environment, ex parte National and Local Government Officers’ Association (1992) 5 Admin. L.R. 785.

30 I. Loveland, “A Fundamental Right to be Gay under the Fourteenth Amendment?” [1996] P.L. 601.

31 See Elliott, M.C., The Constitutional Foundations of Judicial Review (Hart, Oxford 2001)Google Scholar, ch. 6.

32 As evidenced by the refusal of the domestic courts in R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517 to engage in proportionality review.

33 See, inter alios, Sir Thomas Bingham, “The European Convention on Human Rights: Time to Incorporate” (1993) 109 L.Q.R. 390; Lord Woolf of Barnes, “Droit Public—English Style” [1995] P.L. 57; Sir Robin Cooke, “Fundamentals” [1988] N.Z.L.J. 158; Sir John Laws, “Law and Democracy” [1995] P.L. 72.

34 See, e.g., R. v. Secretary of State far the Home Department, ex parte Brind [1993] A.C. 696; R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517.

35 R v. Director of Public Prosecutions, ex parte Kebilene [2000] 2 A.C. 326 at 355.

36 It is undeniable that, even before the Human Rights Act entered into force, some courts appeared to be willing to engage in proportionality review: for an example see R. v. Secretary of State far the Home Department, ex parte [2000] 2 A.C. 115. However, it is also indisputable that there existed a general judicial ethos of caution in this area which, in turn, suggests that the judges considered the Human Rights Act to be necessary to the establishment of the constitutional legitimacy of a more intensive, post-Wednesbury model of substantive review.

37 This argument is supported by Lord Irvine of Lairg, “The Modern Development of Public Law in Britain and the Special Impact of European Law” (1999) 11 Singapore Academy of Law Journal 265 at 281-282.

38 J. Jowell and A. Lester, “Beyond Wednesbury. Substantive Principles of Administrative Law” [1987] P.L. 368.

39 Craig, P.P., “The Impact of Community Law on Domestic Public Law” in Leyland, P. and Woods, T. (eds.), Administrative Law Facing the Future: Old Constraints and New Horizons (London 1997)Google Scholar at 283.

40 The mode of analysis adopted under the proportionality principle is described above in relation to the decision of the European Court of Human Rights in Smith v. United Kingdom [1999] I.R.L.R. 734 and Lustig-Prean v. United Kingdom (2000) 29 E.H.R.R. 548. For further discussion, see Craig, P.P., Administrative Law (London 1999)Google Scholar at 590-591.

41 R. v. Secretary of State for the Home Department, ex partr Brind [1991] 1 A.C. 696 at 748-749.

42 See R. v. Director of pubic Prosecutions, ex parte Kebilene [2000] 2 A.C. 326 at 380-381, per Lord Hope, for discussion of the “discretionary area of judgment”, which, he says, requires the court to “recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention”.

43 See generally SirLaws, John, “Wednesbury” in Forsyth, C.F. and Hare, I.C. (eds.), The Golden Melwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade (Oxford 1998)Google Scholar at 186-187.

44 See generally R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517.

45 R. v. Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council [1991] 1 A.C. 521 at 597.

46 See generally G. de Burca, “The Principle of Proportionality and its Application in EC Law” (1993) Y.E.L. 105.

47 See, e.g., Case 331/88, R. V. Minister for Agriculture, Fisheries and Food, ex parte FEDESA [1990] E.C.R. 1-4023. The Court also relaxes the standard of review in relation to some aspects of member state action. See, e.g., Case 34/79, R. v. Henn [1979] E.C.R. 3795 and Case 41/74, Fan linen v. Home Office [1974] E.C.R. 1337 in which the Court appeared to apply a test more akin to reasonableness than proportionality in assessing the legality of restrictions placed, respectively, on the free movement of goods and persons.

48 Tridimas, T., “Proportionality in European Community Law: Searching for the Appropriate Standard of Scrutiny” in Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe (Hart, Oxford 1999)Google Scholar at 70-72.

49 This view is supported by Lord Hoffmann who, extra-curially, has argued that no bright-line distinction can or should be drawn between the principles of rationality and proportionality. See Hoffmann, Lord, “The Influence of the European Principle of Proportionality upon UK Law” in Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe (Hart, Oxford 1999)Google Scholar.

50 On the development of the principle of legitimate expectation, see C.F. Forsyth, “The Provenance and Protection of Legitimate Expectations” [1988] C.L.J. 238. On the principle of substantive expectation, see P.P. Craig, “Substantive Legitimate Expectations in Domestic and Community Law” [1996] C.L.J. 289; M.C. Elliott, “Coughlan'. Substantive Protection of Legitimate Expectations Revisited” [2000] J.R. 27; M.C. Elliott, “Legitimate Expectation: The Substantive Dimension” [2000] C.L.J. 421.

51 See generally P.P. Craig, “Substantive Legitimate Expectations in Domestic and Community Law” [1996] C.L.J. 289.

52 Hoffmann, Lord, “The Influence of the European Principle of Proportionality upon UK Law” in Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe (Hart, Oxford 1999)Google Scholar at 108.

53 [1995] 2 All E.R. 714 at 731.

54 [1997] 1 W.L.R. 906.

55 A similar approach had earlier been advocated by Laws J. in R. v. Secretary of Slate for Transport, ex parte Richmond-upon-Thames London Borough Council [1994] 1 W.L.R. 74 at 94.

56 R. v. North and East Devon Health Authority, ex parte Coughlan [2000] 2 W.L.R. 622. I have observed elsewhere (see [2000] J.R. 27) that the Coughlan decision sits uncomfortably with the mainstream pre-incorporation jurisprudence on the standard of review, given that it embraces a form of review which transcends Wednesbury supervision without seeking to reconcile that approach with those authorities (notably R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 A.C. 696 and R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517) which regarded it as constitutionally unacceptable for the courts to adopt the proportionality test in the absence of legislative intervention. However, now that proportionality has undoubtedly been introduced into domestic law by the activation of the Human Rights Act, the more significant aspect of Coughlan concerns the guidance which it supplies vis-à-vis the potential for Wednesbury and proportionality to co-exist as complementary principles of substantive review. It is that aspect of the decision which is considered in the present paper.

57 [2000] 2 W.L.R. 622 at 645.

58 It is, however, worth noting that there appears to be a gap in the Coughlan categorisation. It seems to envisage a direct correlation between the nature of the expectation and the mode of protection. Categories one and three envisage (different forms of) substantive protection of substantive expectations, while category two commends procedural protection of expectations which relate to the adoption of a procedure. This appears to overlook the possibility of protecting substantive expectations procedurally (by, for example, requiring that an individual is consulted and given reasons before his or her expectation of a specific outcome is frustrated).

59 [1985] A.C. 318 at 338.

60 [2000] 2 W.L.R. 622 at 646.

61 There is a clear analogy here with the principle of fairness in administrative law which, it is well-accepted, is a variable phenomenon which acquires precise meaning only within a concrete factual context. As Lord Mustill explained in R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 A.C. 531 at 560, “The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.”

62 [2000] 1 W.L.R. 1115.

63 [2000] 1 W.L.R. 1115 at 1130.

64 On different approaches to standing, see generally D. Feldman, “Public Interest Litigation and Constitutional Theory” (1992) 55 M.L.R. 44.

65 R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617.

66 See generally Wade, H.W.R. and Forsyth, C.F., Administrative Law (Oxford 2000)Google Scholar at 678-688.

67 See, e.g., R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd. [1996] 1 W.L.R. 386.

68 On the distinction between the “sufficient interest” and “victim” tests, see generally J. Miles, “Standing under the Human Rights Act 1998: Theories of Rights Enforcement and the Nature of Public Law Adjudication” [2000] C.L.J. 133.

69 On the victim test, see generally Harris, D.J., O’Boyle, M. and Warbrick, C., Law of the European Convention on Human Rights (London 1995)Google Scholar at 630-638.

70 Lord Irvine of Lairg, H.L. Deb. vol. 583 col. 831 (24 November 1997).

71 J. Miles, “Standing under the Human Rights Act 1998: Theories of Rights Enforcement and the Nature of Public Law Adjudication” [2000] C.L.J. 133 at 142-147.

72 [1996] Q.B. 517.

73 See, e.g., R. v. Lord Chancellor, ex parte Witham [1998] Q.B. 575.

74 R. v. Secretary of State for the Home Department, ex parte Leech [1994] Q.B. 198 at 213.

75 R. v. Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115. For discussion, see M.C. Elliott, “Human Rights in the House of Lords: What Standard of Review?” [2000] C.L.J. 3.

76 M. Hunt, “The ‘Horizontal Effect’ of the Human Rights Act” [1998] P.L. 423.

77 This argument is founded on the fact that s. 6(1) refers only to “public authorities”.

78 Cm 3782, Rights Brought Home: The Human Rights Bill (London 1997) at 8.

79 Following decisions such as Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 and R. v. Panel on Take-overs and Mergers, ex parte Datafin pic [1987] Q.B. 815, judicial review extends to prerogative and de facto, as well as statutory, powers (on which see generally Elliott, M.C., The Constitutional Foundations of Judicial Review (Hart, Oxford 2001)Google Scholar, ch. 5). However, since the majority of discretionary power is conferred by statute, the present argument—which concerns the impact of s. 3 of the Human Rights Act on the scope of statutory powers—is still of potentially broad application.

80 See, inter alios, D. Oliver, “Is the Ultra Vires Rule the Basis of Judicial Review?” [1987] P.L. 543; P.P. Craig, “Ultra Vires and the Foundations of Judicial Review” [1998] C.L.J. 63. For reinterpretations of ultra vires theory, see C.F. Forsyth, “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” [1996] C.L.J. 122; M.C. Elliott, “The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law” [1999] C.L.J. 129; Elliott, M.C., The Constitutional Foundations of Judicial Review (Hart, Oxford 2001)Google Scholar, ch. 4. For further discussion, see Forsyth, C.F. (ed.), Judicial Review and the Constitution (Hart, Oxford 2000)Google Scholar.

81 Feldman, D., “Convention Rights and Substantive Ultra Vires” in Forsyth, C.F. (ed.), Judicial Review and the Constitution (Hart, Oxford 2000)Google Scholar at 266.

82 Elliott, M.C., “Fundamental Rights as Interpretative Constructs: The Constitutional Logic of the Human Rights Act 1998” in Forsyth, C.F. (ed.), Judicial Review and the Constitution (Hart, Oxford 2000)Google Scholar.

83 M. Fordham and T. de la Mare, “Anxious Scrutiny, the Principle of Legality and the Human Rights Act” [2000] J.R. 40 at 47.

84 However, I have argued elsewhere that s. 3(1) must form the focus so far as the application of the Convention rights to statutory powers is concerned. This conclusion is based on the argument that the Convention rights must be applied to statutory powers through the application of interpretative methodology in order to take account of the facts that the Human Rights Act is neither intended to prevail over earlier legislation nor entrenched vis-à-vis future legislation. See Elliott, op. cit. n. 82.

85 Fordham and de la Mare, op. cit. n. S3, at 47.

86 On this debate see, inter alios, M. Hunt, “The ‘Horizontal Effect’ of the Human Rights Act” [1998] P.L. 423; Sir Richard Buxton, “The Human Rights Act and Private Law” (2000) 116 L.Q.R. 48; Sir William Wade, “Horizons of Horizontality” (2000) 116 L.Q.R. 217; N. Bamforth, n. 87.

87 N. Bamforth, “The Application of the Human Rights Act 1998 to Public Authorities and Private Bodies” [1999] C.L.J. 159; N. Bamforth, “The True ‘Horizontal Effect’ of the Human Rights Act 1998” (2001) 117 L.Q.R. 34.

88 Although cf. Wade, op. cit. n. 86.

89 The reconciliation is achieved by combining the interpretative machinery established by s. 3 with the declaration of incompatibility (s. 4) and fast-track amendment process (s. 10).

90 Since writing this article a number of cases have been decided which impact upon the role of proportionality under the Human Rights Act 1998. In particular, two decisions of the House of Lords should be noted.

First, R. v. Secretary of State for the Home Department, ex parte Daly [2001] U.K.H.L. 26 (The Times, 25 May 2001) provides clear and authoritative guidance regarding the role of proportionality in judicial review cases under the HRA. It establishes that, although the proportionality test does not require the court to substitute its judgment on the merits for that of the primary decision-maker, that test generally involves stricter scrutiny of executive decisions than the reasonableness test. Their Lordship explicitly rejected the approach commended by Lord Phillips M.R. in R. (Mahmood) v. Secretary of State for the Home Department [2001] 1 W.L.R. 840 in which he said that the reviewing court's evaluation of the necessity of human rights infringements should be based on the notion of reasonableness, and implicitly rejected the assumption underlying the judgment of the Court of Appeal in R. v. Secretary of State for the Home Department, ex parte Isiko [2001] 1 F.C.R. 633 that proportionality and rationality supply equivalent levels of judicial review.

Secondly, in R. v. Secretary of State for the Environment, Transport and the Regions, ex parte Holding and Barnes pic [2001] U.K.H.L. 23 (The Times, 10 May 2001), Lord Slynn explained that, while proportionality is different from the Wednesbury principle, the difference is simply one of degree. This is consistent with the argument, advanced in this article, that rationality and proportionality are complementary and related modes of review which can and should co-exist within English administrative law. For detailed discussion of recent cases on proportionality and the Human Rights Act, see M.C. Elliott, “Scrutiny of Executive Decisions under the Human Rights Act: Exactly how ‘Anxious’?” [2001] Judicial Review (forthcoming).