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Judicial Review, Human Rights and the Constitutional Role of the Courts


Judicial Review, Human Rights and the Constitutional Role of the Courts * * * The Grievance chain Idea that remedies are available at different levels Strictly ... – PowerPoint PPT presentation

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Title: Judicial Review, Human Rights and the Constitutional Role of the Courts

Judicial Review, Human Rights and the
Constitutional Role of the Courts
The Grievance chain
  • Idea that remedies are available at different
  • Strictly informal e.g. citizens advice bureau,
    law centres, and citizens charter.
  • More formal but not strictly legal e.g. ombudsman
    with investigatory powers but can only recommend
  • Tribunals as administrative remedies large case
    load, diverts issues from courts and can give
    legal remedies e.g. compensation, unfair
  • Courts e.g. judicial review formal remedy of
    last resort. Typically empowered to quash
    decisions of public bodies.

  • The emergence of judicial review is linked to the
    Diceyan notion of the rule of law.
  • There will be reference to the distinction
    between review and appeal and the special nature
    of public law remedies.
  • The significance of changes in judicial policy
    with reference to the Wednesbury case, Ridge v
    Baldwin and the GCHQ case.
  • The impact of the Human Rights Act
  • Discussion of selection of case which illustrate
    the increased profile of the courts.

Examples of JR cases
  • challenge to an attempt by a local authority to
    ban stag hunting ex parte Fewings 1995.
  • whether a woman could use her late husbands
    sperm ex parte Blood 1997
  • Deprivation of constitutional right of access to
    the courts ex parte Whitam 1998
  • Whether bids for the national lottery had been
    conducted fairly by the statutory regulator,
    OFLOT see R v The National Lottery Commission,
    ex parte Camelot Group PLC 2001 EMLR 43
  • challenge to the admissions policy of state aided
    jewish faith school on the grounds that this was
    discriminatory on grounds of ethnicity R (on the
    application of E) (Respondent) v Governing Body
    of JFS and the Admissions Appeal Panel of JFS
    (Appellants) 2009

  • Cooper v Wandsworth Board of Works (1863) 14 CB
    (NS) 180 '...the justice of the common law will
    supply the omission of the legislature'.
  • Ridge v Baldwin 1964 Chief constable
    dismissed without a hearing. This is regarded as
    the leading case. Lord Reid indicated that these
    rules will be applied on a wide basis, both as to
    content and context. The claimant has a common
    law right to be treated fairly where rights are
    affected, as here.
  • Put differently, a legitimate expectation re
    procedural fairness is recognised, now reinforced
    by Article 6 ECHR

Judicial review and the role of the courts
  • The fundamental assumption accepting the Diceyan
    view of the constitution is that the courts
    exercise a control function, and that this
    function is now performed using the judicial
    review procedure.
  • Judicial review is NOT an appeals procedure.
    Appeals are often routinely available to courts
    or tribunals. An aggrieved citizen who wishes to
    challenge a decision must first exhaust existing
  • The courts under the JR procedure operate to
    consider whether the public authority has acted
    lawfully. The remedies are not designed to
    compensate victims or guarantee final outcomes
    but simply to ensure the legality of decisions
    taken. Typically unlawful decisions will be set

JR Remedies and Procedural Reform
  • Lord Diplock developed the exclusivity principle
    because he recognised the special character of
    public law remedies.
  • Quashing Order/Certiorari has the effect of
    quashing an ultra vires decision. If the remedy
    is granted an ultra vires decision will be
    rendered VOID.
  • Mandatory Order/Mandamus - instructs (mandates)
    an authority to do its statutory duty, which may
    be to exercise its statutory discretion lawfully
    in the future
  • Prohibiting Order /Prohibition - serves to
    prohibit the authority from acting unlawfully in
    the future.

Remedies contd
  • Declaration - not imposed by the court but states
    what the legal position is between the parties.
    Often sufficient for public bodies who are not
    prepared to act unlawfully.
  • Injunction (equitable remedy) that usually
    prevents a body from acting.
  • Damages only available in limited circumstances
    in public law.

The reach of public law in a contracting state
  • JR is an exclusively public law remedy,
    recognised by Lord Diplock in O'Reilly v Mackman
  • Following the introduction of new procedures JR
    must be used.
  • Key decision - R v Panel on Takeovers and
    Mergers, ex parte Datafin 1987 not only source
    of power but the nature of the functions.
  • Contrast other cases especially where
    contractual relationship exists
  • The Jockey Club R v Disciplinary Committee of
    the Jockey Club, ex parte Aga Khan 1993.

Liberalisation of the rules of standing
  • Rules of standing RSC Order 53 r.3(7) that the
    court shall not grant leave to apply for JR
    unless the applicant has a 'sufficient interest'
    in the matter to which the application relates
  • IRC v National Federation of Self-Employed and
    Small Businesses Ltd 1981 Fleet Street Casuals
    (or Mickey Mouse) case Challenge to a settlement
    with printers reached by the inland revenue by a
    group with no direct interest in the matter.
  • Recognised that standing should not be a general
    impediment to using the JR procedure.
  • Representative groups routinely represented in
    JR cases.

The Wednesbury Decision
Associated Provincial Picture Houses v Wednesbury
Corporation 1948
  • The Sunday Entertainments Act 1932 states it is
    to permit and regulate the opening and use of
    places on Sundays for certain entertainments.
    It legalised such Sunday openings as had been
    purportedly permitted earlier and prescribed a
    procedure by which any licensing authority could
    apply for an Order allowing Sunday opening in
    that licensing area.
  • Sunday Entertainments Act 1932 legalised
    Sunday opening of cinema under conditions that
    the authority think fit to impose. WC inserted
    condition that no children under 15 admitted
    whether or not with adult. Objectionable to
    cinema owners.
  • There was much concern around this time about
    the impact of the cinema on children. The Home
    Office and the Department of Education set up a
    Departmental Committee in 1947 to consider the
    effects of cinema attendance on children with a
    view to seeing whether changes were necessary to
    conditions of admission.

Cinema going in the 1940s
  • The blanket prohibition on cinema admission of
    children all day on the Sabbath can only mean
    that Wednesbury Corporation an elected local
    council in a town with a strong tradition of
    religious observance thought that children (no
    doubt, with their parents) should do other things
    on the Sabbath.
  • On the other hand, in an age where 25 million
    plus of the population went to the cinema at
    least once a week Gaumont cinemas were horrified
    by the idea that a decision to ban children would
    set a precedent for other towns to follow which
    would dent their profits.
  • A further apparent anomaly was the lack of
    consistency between the town of Wednesbury which
    imposed this ban and other neighbouring cities
    and towns including Birmingham which allowed
    children to visit cinemas on a Sunday.

Lord Greenes judgment
  • Challenge failed as the condition fell within
    the discretionary power of the public authority.
  • 1. Authority must have contravened the law.
  • 2. Burden of proof on claimant.
  • 3. Court must not substitute itself for the
    authority and become a Court of Appeal.
  • 4. Decision could be set aside only because
    unlawful e.g. relevant and irrelevant
    considerations not taken account etc or because
    of unreasonableness of an altogether different

What is Wednesbury unreasonableness?
  • Warrington LJ in Short v Poole Corporation
    1926 Ch 66, 90, 91 gave the example of the
    red-haired teacher, dismissed because she had red
    hair. That is unreasonable in one sense. In
    another sense it is taking into consideration
    extraneous matters. It is so unreasonable that it
    might almost be described as being done in bad
    faith ...'.
  • the courts will only interfere with the exercise
    of a discretion when an authority has come to a
    conclusion so unreasonable that no reasonable
    authority could ever have come to it.

The Courts and Resource Allocation
  • R (on the application of Rogers) v Swindon NHS
    Primary Care Trust and Sec of State for Health
  • A breast cancer sufferer was denied the drug
    Herceptin by her local health authority on
    grounds that it could not afford to fund this
    treatment. Contested as in breach of Article 2.
  • .judges look at the rights of individuals
    health managers have to balance the rights of
    many different patients. Such opinions reflect
    persistent anxieties as to the constitutional and
    institutional competence of the courts to
    adjudicate upon polycentric questions, such as
    those which arise in the context of health care
    rationing, and are rooted in an overly narrow
    conception of public laws function as a vehicle
    for the preservation of individual autonomy
    against the collective goals pursued by the
    organs of the state (K. Syrett p.669).

GCHQ Main grounds explained
  • Judicial activism of the 1960s, reform of
    procedure and new judicial approach
  • Council for Civil Service Unions v Minister for
    the Civil Service 1985 challenged the banning
    of unions at GCHQ by the government, hence GCHQ
  • Lord Diplock set out the grounds as follows
  • 1. Illegality with many sub-grounds
  • 2. Irrationality also termed Wednesbury
  • 3. Procedural impropriety/natural justice
  • Proportionality as a ground was anticipated - it
    now applies under HRA.

(No Transcript)
Illegality legal limits on discretionary powers
  • Padfield v Ministry of Agriculture 1968 Limits
    on discretion even if the power appears to be
    widely drawn
  • 'If the minister in any such case so
  • R v S of S for For Affairs, ex p World
    Development Movement 1996
  • Did the Malaysian Pergau Dam project fall under
    a developmental purpose. Rose LJ
  • 'Whatever the Secretary of State's intention or
    purpose may have been, it is, ... , a matter for
    the courts and not for the Secretary of State to
    determine whether, on the evidence before the
    court, the particular conduct was, or was not,
    within the statutory purpose.
  • Further in exercising discretion the
    decision-maker is required to take account of
    relevant considerations and ignore irrelevant

Human Rights Act 1998 and Judicial Review
  • Public authorities are placed under a statutory
    under s.6 to have regard to the convention rights
    of citizens.
  • Under the act a breach of convention right by a
    public authority becomes a ground of review /
    also a defence to alleged unlawful conduct.
  • The HRA s.3 grants the courts powers to
    interpret legislation to render it compatible
    with the convention but it does not allow the
    courts to invalidate primary legislation.
  • Rather, they have the power under s.4 to issue
    a declaration of incompatibility which draws
    attention to the breach of the right but leaves
    it up to Parliament to change the offending law.
    There is a fast track procedure to enable
    legislation to be amended. Citizens can still
    take their case to Strasbourg.

Human Rights Act Proportionality review
  • R v SS for Home Department, ex parte Daly 2001
    concerned a challenge to regulations under
    section 47(2) of the Prison Act Act 1952 allowing
    the prison authorities to search cells without
    the prisoner present. A remand prisoner who had
    private correspondence with his lawyer relating
    to his trial argued that this rule was unlawful.
  • Lord Steyn stated that a proportionality test
    would be applied
  • (a) the legislative objective is sufficiently
    important to justify limiting a fundamental
  • (b) the measures designed to meet the
    legislative objective are rationally connected to
  • (c) the means are no more than is required to
    accomplish the objective.
  • Held that the policy contained in this rule
    constituted a breach of Article 8 of the
    convention since it constituted a
    disproportionate interference with the prisoners
    rights. The same objective could have been
    achieved by less intrusive means.

A Others v Home Secretary 2004 (the Belmarsh
detainees case)
  • the indefinite detention under the Anti-Terrorism
    Crime and Security Act 2001 without trial of a
    group of non British nationals suspected of being
    terrorists. This was held to be unlawful
  • The provision to detain contrary to ECHR Art. 5
    required a derogation under Art. 15.
  • The derogation would only be valid if strictly
    required for a public emergency threatening the
    life of the nation.
  • On this issue a wide margin of appreciation was
    given by the judges to the government. Held this
    was a political issue and only the government has
    access to the security information upon which
    such a judgment could be made. Lord Hoffman
    dissented no threat to the life of the nation.
  • But he measures were discriminatory against
    foreign nationals and thus contrary to Article 14
    of the ECHR.

Impact of the Belmarsh Decision
  • The Human Rights Act 1998 (Designated Derogation)
    Order 2001 was quashed on account of its
    incompatibility with Article 15 ECHR.
  • Although the House of Lords issued a declaration
    of incompatibility under section 4 of the HRA
    this declaration could not nullify the
    legislation directly. The suspects remained in
  • There is no shift to a merits review, but the
    intensity of review is greater than was
    previously appropriate
  • The speeches of these eight senior judges amount
    collectively to what is the finest assertion of
    liberty that has emerged from a British court
    since at least Entick v Carrington Gearty
  • The Prevention of Terrorism Act 2005 was passed
    by Parliament in March 2005 and the Act replaces
    Part IV of the 2001 Act i.e. the power to order
    indefinite detention without trial on grounds of
    reasonable suspicion with control orders.

  • Sophisticated grounds of JR have been established
    under the common law on a case by case basis.
  • These grounds serve to constrain the
    discretionary powers of public authorities.
  • This, in turn, raises important questions
    relating to placing limits on judicial
    intervention. The Wednesdbury test imposed a high
    threshold, keeping the courts from being drawn
    into the political process.
  • The HRA and proportionality has tended to
    increase the profile of the courts.
  • This raises the question of whether the UK is
    moving towards a judicial constitution. Should
    judges be the final arbiters on issues such as
    resource allocation?
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