The human rights act 1998 and the standard of substantive review

Cambridge Law Journal

Volumn 60, Issue 2, 2001, Pages 301-336

  Elliott, Mark ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 85011486648     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197301000137     Document Type: Article

References (125)

1. See generally Cambridge Centre for Public Law, The Human Rights Act and the Criminal and Regulatory Process (Hart, Oxford 1999).
2. The classic example would be the decision in Malone v. Metropolitan Police Commissioner [1979] Ch. 344
3. 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.
4. See also the recent decision of the Court of Appeal in Douglas v. Hello! Ltd. (The Times, 16 January 2001).
5. Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 at 410, per Lord Diplock.
6. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 at 234, per Lord Greene M.R.
7. 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
8. in Smith v. United Kingdom [1999] I.R.L.R. 734
9. 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.
10. 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
11. “the so-called rules of natural justice are not engraved on tablets of stone”.
12. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 at 234.
13. Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 at 410.
14. 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.
15. See, inter alios, Lord Irvine of Lairg, “Judges and Decision-Makers: The Theory and Practice of Wednesbury Review” [1996] P.L. 59
16. J. Jowell, “Of Vires and Vacuums: Judicial Review in Constitutional Context” [1999] P.L. 448
17. M.C. Elliott, The Constitutional Foundations of Judicial Review (Hart, Oxford 2001), ch. 6.
18. Sir John Laws, “The Limitations of Human Rights” [1998] P.L. 254 at 259–260.
19. See, e.g., Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997.
20. See generally J. Jowell and A. Lester, “Proportionality: Neither Novel nor Dangerous” in J. Jowell and D. Oliver (eds.), New Directions in Judicial Review (London 1988).
21. [1996] Q.B. 517.
22. The emergence of this approach is particularly evident in the speeches of Lord Bridge in R. v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] A.C. 514 at 531
23. R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 A.C. 696 at 748–749.
24. [1996] Q.B. 517 at 554, approving the submission of David Pannick Q.C.
25. [1996] Q.B. 517 at 540–541.
26. [1996] Q.B. 517 at 540.
27. Smith v. United Kingdom [1999] I.R.L.R. 734
28. Lustig-Prean v. United Kingdom (2000) 29 E.H.R.R. 548.
29. 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
30. Norris v. Republic of Ireland (1991) 13 E.H.R.R. 186.
31. Although it should, of course, be noted that Smith has very important implications not just at a general level, vis-a-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
32. 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. I-621.
33. I. Hare, “Privacy and the Gay Right to Fight” [2000] C.L.J. 6 at 8.
34. P.P. Craig, Administrative Law (London 1999) at 586.
35. See also P.P. Craig, “The Impact of Community Law on Domestic Public Law” in P. Leyland and T. Woods (eds.), Administrative Law Facing the Future: Old Constraints and New Horizons (London 1997)
36. P.P. Craig, “Unreasonableness and Proportionality in UK Law” in E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Hart, Oxford 1999).
37. 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.
38. 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.
39. I. Loveland, “A Fundamental Right to be Gay under the Fourteenth Amendment?” [1996] PL. 601.
40. See M.C. Elliott, The Constitutional Foundations of Judicial Review (Hart, Oxford 2001), ch. 6.
41. 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.
42. See, inter alios, Sir Thomas Bingham, “The European Convention on Human Rights: Time to Incorporate” (1993) 109 L.Q.R. 390
43. Lord Woolf of Barnes, “Droit Public---English Style” [1995] P.L. 57
44. Sir Robin Cooke, “Fundamentals” [1988] N.Z.L.J. 158
45. Sir John Laws, “Law and Democracy” [1995] P.L. 72.
46. See, e.g., R. v. Secretary of State for the Home Department, ex parte Brind [1993] A.C. 696
47. R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517.
48. R v. Director of Public Prosecutions, ex parte Kebilene [2000] 2 A.C. 326 at 355.
49. It is undeniable that, even before the Human Rights Act entered into force, some courts appeared to he willing to engage in proportionality review: for an example see R. v. Secretary of State for the Home Department, ex parte Simms [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.
50. 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.
51. J. Jowell and A. Lester, “Beyond Wednesbury: Substantive Principles of Administrative Law” [1987] P.L. 368.
52. P.P. Craig, “The Impact of Community Law on Domestic Public Law” in P. Leyland and T. Woods (eds.), Administrative Law Facing the Future: Old Constraints and New Horizons (London 1997) at 283.
53. 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
54. Lustig-Prean v. United Kingdom (2000) 29 E.H.R.R. 548.
55. For further discussion, see P.P. Craig, Administrative Law (London 1999) at 590–591.
56. R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 A.C. 696 at 748–749.
57. See R. v. Director of Public 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 he incompatible with the Convention”.
58. See generally Sir John Laws, “Wednesbury” in C.F. Forsyth and I.C. Hare (eds.), The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade (Oxford 1998) at 186–187.
59. See generally R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517.
60. R. v. Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council [1991] 1 A.C. 521 at 597.
61. See generally G. de Burca, “The Principle of Proportionality and its Application in EC Law” (1993) Y.E.L. 105.
62. 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.
63. See, e.g., Case 34/79, R. v. Henn [1979] E.C.R. 3795 and Case 41/74
64. Van Duyn 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.
65. T. Tridimas, “Proportionality in European Community Law: Searching for the Appropriate Standard of Scrutiny” in E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Hart, Oxford 1999) at 70–72.
66. 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 Lord Hoffmann, “The Influence of the European Principle of Proportionality upon UK Law” in E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Hart, Oxford 1999).
67. 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.
68. On the principle of substantive expectation, see PP. Craig, “Substantive Legitimate Expectations in Domestic and Community Law” [1996] C.L.J. 289
69. M.C. Elliott, “Coughlan: Substantive Protection of Legitimate Expectations Revisited” [2000] J.R. 27
70. M.C. Elliott, “Legitimate Expectation: The Substantive Dimension” [2000] C.L.J. 421.
71. See generally P.P. Craig, “Substantive Legitimate Expectations in Domestic and Community Law” [1996] C.L.J. 289.
72. Lord Hoffmann, “The Influence of the European Principle of Proportionality upon UK Law” in E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Hart, Oxford 1999) at 108.
73. [1995] 2 All E.R. 714 at 731.
74. [1997] 1 W.L.R. 906.
75. A similar approach had earlier been advocated by Laws J. in R. v. Secretary of State for Transport, ex parte Richmond-upon-Thames London Borough Council [1994] 1 W.L.R. 74 at 94.
76. R. v. North and East Devon Health Authority, ex parte Coughlan [2000] 2 W.L.R. 622.
77. 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
78. 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.
79. [2000] 2 W.L.R. 622 at 645.
80. [1985] A.C. 318 at 338.
81. [2000] 2 W.L.R. 622 at 646.
82. 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 he 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.”
83. [2000] 1 W.L.R. 1115.
84. [2000] 1 W.L.R. 1115 at 1130.
85. On different approaches to standing, see generally D. Feldman, “Public Interest Litigation and Constitutional Theory” (1992) 55 M.L.R. 44.
86. R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617.
87. See generally H.W.R. Wade and C.F. Forsyth, Administrative Law (Oxford 2000) at 678–688.
88. 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.
89. 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.
90. On the victim test, see generally D.J. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (London 1995) at 630–638.
91. Lord Irvine of Lairg, H.L. Deb. vol. 583 col. 831 (24 November 1997).
92. 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.
93. [1996] Q.B. 517.
94. See, e.g., R. v. Lord Chancellor, ex parte Witham [1998] Q.B. 575.
95. R. v. Secretary of State for the Home Department, ex parte Leech [1994] Q.B. 198 at 213.
96. R. v. Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115.
97. For discussion, see M.C. Elliott, “Human Rights in the House of Lords: What Standard of Review?” [2000] C.L.J. 3.
98. M. Hunt, “The ‘Horizontal Effect’ of the Human Rights Act” [1998] P.L. 423.
99. Cm 3782, Rights Brought Home: The Human Rights Bill (London 1997) at 8.
100. Following decisions such as Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374
101. R. v. Panel on Take-overs and Mergers, ex parte Datafin plc [1987] Q.B. 815
102. judicial review extends to prerogative and de facto, as well as statutory, powers (on which see generally M.C. Elliott, The Constitutional Foundations of Judicial Review (Hart, Oxford 2001), 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.
103. See, inter alios, D. Oliver, “Is the Ultra Vires Rule the Basis of Judicial Review?” [1987] P.L. 543
104. P.P. Craig, “Ultra Vires and the Foundations of Judicial Review” [1998] C.L.J. 63.
105. 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
106. M.C. Elliott, “The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law” [1999] C.L.J. 129
107. M.C. Elliott, The Constitutional Foundations of Judicial Review (Hart, Oxford 2001), ch. 4.
108. For further discussion, see C.F. Forsyth (ed.), Judicial Review and the Constitution (Hart, Oxford 2000).
109. D. Feldman, “Convention Rights and Substantive Ultra Vires” in C.F. Forsyth (ed.), Judicial Review and the Constitution (Hart, Oxford 2000) at 266.
110. M.C. Elliott, “Fundamental Rights as Interpretative Constructs: The Constitutional Logic of the Human Rights Act 1998” in C.F. Forsyth (ed.), Judicial Review and the Constitution (Hart, Oxford 2000).
111. M. Fordham and T. de la Mare, “Anxious Scrutiny, the Principle of Legality and the Human Rights Act” [2000] J.R. 40 at 47.
112. 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 he 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 entrenchedvis-à-vis future legislation. See Elliott, J.R. n. 82.
113. Fordham and de la Mare, J.R. n. 83, at 47.
114. On this debate see, inter alios, M. Hunt, “The ‘Horizontal Effect’ of the Human Rights Act” [1998] P.L. 423
115. Sir Richard Buxton, “The Human Rights Act and Private Law” (2000) 116 L.Q.R. 48
116. Sir William Wade, “Horizons of Horizontally” (2000) 116 L.Q.R. 217
117. N. Bamforth, n. 87.
118. N. Bamforth, “The Application of the Human Rights Act 1998 to Public Authorities and Private Bodies” [1999] C.L.J. 159
119. N. Bamforth, “The True ‘Horizontal Effect’ of the Human Rights Act 1998” (2001) 117 L.Q.R. 34.
120. Although cf. Wade, L.Q.R. n. 86.
121. 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.
122. 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
123. 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.
124. Secondly, in R. v. Secretary of State for the Environment, Transport and the Regions, ex parte Holding and Barnes plc [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.
125. 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).