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Discuss the impact of the Human Rights Act 1998 on the law of judicial review with particular regard to the development of irrationality and proportionality. (1250 words)
In 1998, the new Labour Government introduced the Human Rights Bill which passed through Parliament to become the Human Rights Act 1998. The purpose of this fundamental and highly significant piece of legislation was to incorporate into English law the European Convention on Human Rights. This was a document that was forged largely as a response to the horrors of the Second World War, and reflected the common feeling of the need to protect universal rights that were common to all human beings. The significance of the HRA 1998 has already been more far-reaching than most legislation would ever be. An area in which the significance of the HRA 1998 was greatest was that of judicial review. This essay will assess the precise impact that the Act has had on judicial review, with particular attention paid to the principles of irrationality and proportionality.
Judicial review is a process by which the judicial arm of the state determines whether specific incidences of the exercise of executive power are lawful. This means the courts are able to assess the legality of decisions taken by the public executive bodies. Judicial review in its modern guise was really ushered in by the case of O’ Reilly v Mackman (1983). This case established the principle that public law decision ought properly to be challenged by the process of judicial review rather than by ordinary action. The process, then, predated the Human Rights Act 1998, but this significant piece of legislation affected the process significantly.
What are the grounds for judicial review? The two central cases, both of which predate the HRA 1998, are Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) and Council of Civil Service Unions v Minister for the Civil Service (1985). The former case laid down what became known as the ‘Wednesbury principles’, which are, broadly, that the exercise of a discretion by a public body must be real and genuine; that in exercising such a discretion, only relevant matters should be considered; that the discretion must not be exercised for reasons of bad faith or dishonesty; and that the discretion must only be exercised for the purpose for which it was intended. In that case, Lord Greene also added the general principle that such a discretion should be exercised ‘reasonably’. In the later GCHQ case, Lord Diplock identified three categories of grounds under which judicial review could be brought: illegality; irrationality and procedural impropriety. The latter two of these will be focused on, particularly because it is in these two areas that the impact of the HRA 1998 has been most notable.
Proportionality is a concept that is prominent in the ECHR, and now that this has been incorporated into English law, judicial review must take more account of it. In the GCHQ case, Lord Diplock identified proportionality as a ground for review which might expand and be extended in the future. The concept of proportionality relates to the appropriateness of a decision to the circumstances, and whether such a decision is ‘over-the-top’ or superfluous. As a ground for judicial review, it can be argued where a less onerous decision would have suited the circumstances of the case. The ground of proportionality has been controversial since its inception, for the reason that a court reversing a decision-maker’s decision because it is ‘disproportionate’ is rather close to the court questioning the decision on its merits which is expressly not the jurisdiction of courts in judicial review. This explains why, prior to the HRA 1998, courts were cautious about using this ground for review. The case of R v Barnsley Metropolitan Borough Council, ex parte Hook (1976), however, provided an exception. Here Lord Denning stated that “there are old cases which show that the court can interfere … if a punishment is altogether excessive and out of proportion to the occasion.”
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Aside from this case, however, there are not many instances in the English common law prior to the HRA 1998, of the courts challenging an executive decision on the ground of proportionality. Now, however, whenever a person’s Convention right is breached or has potentially been breached, the English courts are obliged to consider proportionality. In the words of Lord Irvine, when he was Lord Chancellor, the courts will have to “apply the Convention principle of proportionality. This means the court will look substantively at the question. It will not be limited to a secondary review of the decision-making process but at the primary question of the decision itself.”
An early post-HRA 1998 case in which the courts considered the effect of that Act on judicial review was R v Secretary of State for the Home Department, ex parte Daly (2001). The case was concerned with a prisoner’s rights in relation to his legal correspondence. The House of Lords held that the prison authorities’ actions in infringing the prisoner’s rights in the name of security was greater than was necessary, and hence was disproportionate. Significantly, in this case, Lord Steyn stated that “the intensity of review [of the decision being reviewed] is somewhat greater under the proportionality approach [as opposed to more traditional approaches to judicial review].” This, then, reflects one of the major effects on judicial review that the HRA 1998 has had; it gives the courts the possibility of a more intense review of the decision in question. As was mentioned above, one can also see the potential for constitutional controversy in this, as it often comes very close to the court replacing the executive decision with its own one.
The approach of proportionality was also considered by Lord Clyde in De Freitas v Permanent Secretary of Ministry of Agriculture (1999), in which he said the court should ask “…the means used to impair the right or freedom are no more than is necessary to accomplish the objective.” This was in relation to a Convention right (as was the Daly case). It is, then, important to recognise that in non-Convention right cases of judicial review, proportionality is still not a distinct ground for review. The impact of the HRA 1998, then, is in this respect limited to cases involving alleged breaches of Convention rights. This situation is, however, likely to change as domestic administrative law falls into synchronisation with European Community law.
Finally, in terms of the effect of the HRA 1998 on the principle of irrationality, it should be noted that that this principle is very close to that of proportionality, and therefore the effect of the HRA 1998 is similar. The label ‘irrationality’ has been criticised in itself for wrongly suggesting the appropriate test is one of the logicality of the decision; the label ignores the role of morals; and the label may be “unnecessarily rude”. This in turn gave rise to a call for an alternative label for this ground for review, one of which was in fact ‘proportionality’. This was highlighted in the case of R v Secretary of State for the Home Department, ex parte Brind (1991).
The effect of the HRA 1998 on judicial review, then, has been most marked in relation to the grounds for review, and in particular, on the concept of proportionality and irrationality, which have been considered to be almost interchangeable.
European Convention on Human Rights
Human Rights Act 1998
Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223
 AC 374
De Freitas v Permanent Secretary of Ministry of Agriculture  1 AC 69
O’ Reilly v Mackman  2 AC 237
R v Barnsley Metropolitan Borough Council, ex parte Hook  3 All ER 452
R v Secretary of State for the Home Department, ex parte Brind  1 AC 696
R v Secretary of State for the Home Department, ex parte Daly  2 AC 532
Leyland, P., and Woods, T. (2002), Administrative Law, 4th Edition (Oxford: OUP)
Parpworth, N (2004) Constitutional and Administrative Law, 3rd Edition (London: LexisNexis)
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