Advantages and disadvantages of Judicial Review (JR) PDF

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Weighing the advantages/disadvantages of JR...

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Discuss the advantages and disadvantages of Judicial Review (JR) on the grounds of proportionality, drawing examples from UK, EU and ECHR case law and commentary from scholarly opinion. Proportionality is a ground of Judicial Review under the Human Rights Act 1998 where Convention rights are engaged. Proportionality in this context requires the striking of a “fair balance... inherent in the whole [European] Convention [on Human Rights]” between the interests of the community and the rights of an individual. 1 Recent years have seen a reshape in the norms of English judicial review. Wednesbury unreasonableness and ultra vires seems to be held in contempt against the language of rights and proportionality2 particularly since the seminal case of Daly. Lord Lester and Jeffrey Jowell present that JR on the grounds of proportionality moves towards a more substantive concept of value and reason, thus establishing a better legal principle. This results in the test having a better structure than its predecessor. Benefits of this discour ages judges from obscuring their social and economic preferences, as witnessed in Wednesbury. Furthermore, Allan and Beatty present that this higher order framework, established by the Human Rights Act 1998, constrains all public authorities, including Parliament. This harmonises the autonomy of each person with the general will of the community. A possible disadvantage of such conceptual apparatus is that it does not share the same simplicity as the Wednesbury test.

Recent times have seen a shift in the classical model, known as the Wednedbury test with the doctrine of proportionality. In place of review based on ultra vires, 3 courts now demand ‘justification of alleged rights-infringing behaviour and the adoption of a constitutional methodology of proportionality, balancing of rights…and reasoned elaboration.’4 Hunt argues that this development, of which the Human Rights Act 1998 has been the catalyst, re-establishes our concepts of law and legality away from formalistic concepts such as the separation of powers and ultra vires towards more substan-

1 Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 A.C. 167, [19] 2 N. Bamforth and P. Leyland Public Law in a Multi-Layered Constitution (Oxford, Hart, 2003) 3 T. Poole ‘The Reformation of English Administrative Law’ (2009) 3 4 M. Taggart, ‘The Tub of Public Law’ in D. Dyzenhaus (ed.), The Unity of Public Law (Oxford Hart, 2004) 475.

tive concepts of value and reason. 5 This move establishes a better legal principle. Lord Lester and Jeffrey Jowell commend such a movement. This is mainly because the lack of structure in the Wednesbury test allows judges to obscure their social and economic preferences more easily than would be possible were they to be guided by established legal principle.

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This ‘more precise and more sophisticated test’ allows a ‘somewhat

greater’ intensity of review that its predecessor. Particularly as it ‘may require the reviewing court to assess the balance which the decision maker struck.’ 7 This, therefore, indicates that JR on the grounds of proportionally introduces an element of structure into the exercise, by directing attention to factors such as appropriateness, necessity and the balance or imbalance of benefits and disadvantages. 8 This structure establishes a better and more formal legal principle, which stands in stark contrast to the conclusion of the Wednesbury test, whereby only a very extreme degree of unreason ableness can bring an administrative decision within the legitimate scope of judicial invalidation.9 Such a test was described as a ‘retrogressive decision in English administrative law.’10 This ‘higher order framework,’ constituted by the HRA, ‘constrains all public institutions’ including Parliament and over which the proportionality test reigns. This harmonises the autonomy of each person with the general will of the community. 11 This stems around the idea that ‘deference’ must mutate to fit this new constitutional framework: that is, the leeway or discretionary room for manoeuvre that the court grants a public authority on account of its expertise or authority. Jeffrey Jowell, like Allan, argues that it is no longer appropriate for courts to defer on grounds of constitutional competence, which relates to the authority of the body to decide the relevant

5 D. Dyzenhaus, ‘The Rule of (Administrative) Law in International Law’ (2005) s127, 139. 6 Lord Lester and Jeffrey Jowell, “Beyond Wednesbury: Substantive Principles of Administrative Law” [1987] P.L. 368, 381. 7 R. v Secretary of State for the Home Department Ex p. Daly [2001] UKHL 26; [2001] (133) (Lord Steyn) 8 Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 W.L.R. 1591, 94 9 R. v Secretary of State for the Home Department Ex p. Daly [2001] UKHL 26; [2001] 2 A.C. 532. 10 ibid 32 (Lord Cooke)

11 Thoma sPo ol e‘ Ther e f or ma t i o nofEn gl i s ha dmi ni s t r a t i v el a w’( 2009)9

question.12 These evolving restrictions on deference limits public institutions, which in turn, protects the independence of each individual. David Beatty is a key advocate of this idea, whereby he proposes that proportionality accounts for almost ‘every case in which courts have responded politically to protect people’s general welfare.’ There fore, any arguments for courts to defer to the expertise of officials should be rejected, as proportionality is the sole ‘conceptual apparatus’ that judges need to harmonise the autonomy of each person with the general will of the community’. David Dyzenhaus extends this doctrine of proportionality to the ‘human rights era’ itself, in which judges consider their roles to be ‘guardians of the values that sustain the relationship be tween individual and state, in which the individual is understood as the bearer of human rights.’13

A proposed disadvantage of JR on the grounds of proportionality is that it does not share the simplicity of the Wednesbury test, despite all of its defects. Lord Walker acknowledged the common belief that the Wednesbury rule is unsatisfactory and that it must be replaced by a more complex approach, when human rights are in play (ie proportionality) But the scope and reach of the Human Rights Act is so extensive that there is no alternative. He observed that it may be a ‘mistake’ to bed down the Human Rights Act, incase they go too far ‘in attempting any comprehensive statement of principle.’ It is clear that any simple ‘one size fits all’ formulation of the test would be im possible.”14 Regardless, in the English Administrative Law, both tests, ‘Wednesbury’ and ‘proportionality’ co-exist. In the cases of Huang and Daly, the English Courts have considered both Common Law and Article 8 of the Human Rights Act 1998. Both cases demonstrated a deviation from the traditional Wednesbury test of unreasonableness and shown leniency towards proportionality. It is further suggested that the two tests are substantially the same, however, Lord Cooke addresses this in Daly. He believes this idea has reached it ‘quietus that the protection of Convention rights afforded by

12 P. Craig, R. Rawlings Law and Administration in Europe’ (1st edition, Oxford University Press 2003) 68 13 n 5 14 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 A11 ER 680

traditional English judicial in [the ECtHR decision in] Smith and Grady ”. In spite of this, it cannot be concluded that the principle of Wednesbury unreasonableness has been completely replaced by the doctrine of proportionality in England. This essay has outlined both the advantages and disadvantages of Judicial Review on the grounds of proportionality. This doctrine creates a movement towards a more substantive concept of value and reason, which establishes a better legal principle. This provides more guidance for judges, allowing less scope form them to obscure their so cial and economic preferences, as seen in the Wednesbury test. A more structured and precise test allows a greater intensity of review, as it directs attention to factors such as appropriateness and necessity. This stands in stark contrast to its predecessor in which only a very extreme degree can bring an administrative decision within the le gitimate scope of judicial invalidation. This higher order framework constrains all public authorities, including Parliament. Mainly due to the idea that ‘deference’ must mutate to fit this new constitutional framework, in which it is no longer appropriate for courts to defer on grounds of constitutional competence. This, in turn, protects the independence of each individual, as proportionality accounts for protection of people’s general welfare. This essay has outlined a possible disadvantage of such model, in that it does not share the same simplicity as its predecessor. Whilst it can be said the advantages far outweigh the disadvantages, in addition to Huang and Daly demonstrating a deviation from the Wednesbury test and shown leniency towards proportionality, it cannot be said that the unreasonableness has been completely replaced by the doctrine of proportionality in England.

ECHR case

Smi t handGr adyvUK( 1999)29EHRR 493

UK Ca s e s As s oc i a t e dPr o vi nc i a lPi c t ur eHo us e sLt dvWe dn e s b ur yCo r p[ 1 9 4 7]2A11ER6 8 0 Hua n gvSe c r e t a r yo fSt a t ef ort h eHomeDe p a r t me n t[ 20 0 7]UKHL1 1, [ 2 0 0 7]2A. C. 1 6 7 Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 W.L.R. 1591 R. v Secretary of State for the Home Department Ex p. Daly [2001] UKHL 26; [2001]

Ta bl eo fLe g i s l a t i o n Huma nRi g h t sAc t19 9 8

Bi bl i o gr a phy Andrew Le Sueur The rise and ruin of unreasonableness? (2004) D. Dyz e nh a us , ‘ Th eRul eof( Ad mi ni s t r a t i v e )La wi nI nt e r n a t i ona lLa w’( 2005)

Lo r dLe s t e ra ndJ e ffr e yJ o we l l , “ Be y ondWe dne s bur y :Su bs t a nt i v ePr i n c i pl e so fAdmi ni s t r a t i v eLa w”[ 19 87] Micheal Taggart, ‘The Tub of Public Law’ in D. Dyzenhaus (ed.), The Unity of Public Law (Oxford Hart, 2004) Nicholas Bamforth and Peter Leyland Public Law in a Multi-Layered Constitution (Oxford, Hart, 2003)

Paul Craig, Richard Rawlings Law and Administration in Europe’ (1st edition, Oxford University Press 2003)

Pa ulDa l y‘ We d n e s bu r y ' sr e a s o na nds t r u c t u r e ’( 2 0 11 )

Tho ma sPo ol e‘ Ther e f o r ma t i ono fEn g l i s ha d mi ni s t r a t i v el a w’( 2 0 09 )...