#16117 - Discretion Wednesbury Proportionality - Administrative Law

Textbook 3

Craig – Chapter 20 3

Chapter 21 – Rationality and Proportionality 9

Wednesbury Unreasonableness 12

*Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223 (CA) 12

*Secretary of State for Education v. Tameside MBC [1977] AC 1014 13

R. v. Environment Secretary ex parte Hammersmith and Fulham LBC [1991] 1 AC 521 (HL) 13

*R. v. Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd [1999] 2 AC 418, [1999] 1 All ER 129 14

*R (British Civilian Internees - Far Eastern Region) v Secretary of State for Defence [2003] EWCA Civ 473, [2003] QB 1397 14

R. (Rogers) v Swindon NHS Primary Care Trust [2006] EWCA Civ 392; [2006] 1 W.L.R. 2649 15

Proportionality 15

*R. v. Home Secretary, ex parte Daly [2001] UKHL 26, [2001] 2 AC 532 15

*R. (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363 16

*Sinclair Collis v Secretary of State for Health [2011] EWCA Civ 437 16

Youssef v. Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3, paras [51] to [61] 17

Human rights act 17

R v SS Home Department Ex Parte Simms 17

R (Alconbury) v Secretary of State for the ENvironment, Transport and Regions 19

Proportionality, Margin of Appreciation and deference under hra 21

R (Prolife Alliance) v BBC 21

A v Secretary of State for the Home Department 24

R (Begum) v Governors of Denbigh High School 26

Huang v Secretary of State for the Home Department 28

Miss Behavin v Belfast City Council 29

R (Quila) v Secretary of State for the Home DepartmenT 30

AXA v Lord Advocate 30

Bank Mellat v Her Majesty’s Treasury 31

Pham v Secretary of State for the Home Department 32

Keyu v Secretary of State for Foreign and Commonwealth Affairs 32

Rationality/Proportionality Debate 33

Taggart, ‘Proportionality, Deference, Wednesbury [2008] NZLR 423 33

*Craig, ‘Proportionality, rationality and review’ [2010] NZLR 265 33

*Hickman, ‘Problems for Proportionality’ [2010] NZLR 303 34

*Sales, ‘Rationality, Proportionality and the Development of the Law’ (2013) 129 LQR 223. 35

*Williams, ‘Structuring Substantive Review’ [2017] PL 99 36

The deference debate 37

Hunt, ‘Sovereignty’s Blight: Why contemporary public law needs the concept of “due deference”’, Chapter 13 in Bamforth & Leyland (eds.), Public Law in a Multi-layered Constitution (2003) 37

Lord Steyn, ‘Deference: a Tangled Story’ [2005] PL 346 37

*TRS Allan, ‘Human Rights and Judicial Review: A Critique of Due Deference” (2006) CLJ 671 38

*King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 OJLS 409 39

Craig, UK, EU and Global Administrative Law 40

I. HUMAN RIGHTS ACT 1998

Pre-HRA the ECHR could only be relied on in domestic courts in limited circumstances.

• Ex p Brind: no presumption that statutory discretion should be exercised in conformity with Convention

But these circumstances were growing (Lord Bingham, HC Deb. Col. 146, July 1996)

• Ex p Bibi: ECHR could be used as aid in construction of ambiguous primary legislation

• Ex p Norney: ECHR could be used as an aid in interpreting legislation enacted as a result of an adverse judgment from ECtHR

• Derbyshire CC v Times: could assist in determining the ambit of common law rights

HRA allowed courts to adjudicate directly on ECHR rights rather than force applicants to have recourse to Strasbourg

S2 provides that a court determining a question arisen under HRA must take into account any judgment, decision, declaration or advisory opinion of the ECtHR. This is not binding – so if precedent conflicts with ECtHR decisions, then judge will follow precedent but can give leave to appeal (eg. Kay v Lambeth)

More precise interpretation of s2 is contentious

• Ex p Ullah: mirror principle – the duty of national courts is to ‘keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”

That national courts should do no less is not contentious lest claimants have a strong incentive to appeal to ECtHR (Alconbury, Anderson), but nevertheless courts have resisted ECtHR caselaw when they felt that it misunderstood UK legal rules (Horncastle)

But that they should do no more is more controversial

• Re P: Cs (unmarried homosexual couple) were prevented by Northern Irish statute from adopting a child, and though the ECtHR hadn’t pronounced on the issue, HL found that:

  • The rule was disproportionate

  • The developing state of ECtHR jurisprudence meant that it was likely that the ECtHR would find such a ruling

  • The margin of appreciation in any case allowed the UK to go further than the ECtHR

  • Convention rights under HRA were domestic rights so HL was free to give what it considered to be a principled interpretation

• Ambrose: Lord Kerr said that we shouldn’t adopt an ‘attitude of agnosticism’ and not recognize a right simply because Strasbourg hasn’t spoken. Bjorge agreed, arguing that this was preferable to Ullah and more coherent with the common law tradition

II. LEGISLATION: INTERPRETIVE OBLIGATION AND DECLARATION OF INCOMPATIBILITY

HRA framers didn’t like ‘hard constitutional review’ (courts can strike down legislation) as it was unsuited to the UK history of Parliamentary sovereignty, so opted for a softer review:

• S19: Minister in charge of a Bill must make a statement of compatibility before second reading (s19(1)(a)), or a statement that although he couldn’t make a statement of compatibility, he wished the House to proceed with the Bill (s19(1)(b))

• S3: Court must read legislation so far as it is possible to do so in a way compatible with Convention rights

• S4: Court can make a declaration of incompatibility if satisfied that the legislation is incompatible, but only certain courts the lowest being the High Court (s4(5))

  • No effect on the validity of the provision and not binding on parties to the proceedings (s3(2) and 4(6)), but triggers s10, which gives ministers the right to amend the legislation to remove the incompatibility (s10(2) – Henry VIII clause)

  • Crown has a right to notice when the court is considering whether to issue a declaration and has the right to be joined as party to the proceedings (s5)

• S10: Henry VIII clause allows Ministers to amend offending legislation through secondary legislation

  • Can repeal both primary and secondary legislation, even other than those containing the offending provisions (sch 2 para 1(2))

  • Can be retrospective (sch 2 para 1(1)(b))

i. The meaning of section 3

Its legislative history provides little guidance

• Lord Chancellor: courts have the strongest jurisdiction possible to interpret legislation compatibly unless it is impossible to construe a statute in that way

  • Supported by fact that no ambiguity is needed (Lord Irvine)

• Home Secretary: courts should not distort the meaning of statutory language to produce implausible meanings

Early cases have interpreted it differently, sometimes using it to save non-compliant statutes and sometimes not

• R v A: s3 requires the courts to ‘subordinate the niceties of the language in s41(3) [the alleged offending provision] to broader considerations of relevance’ (Lord Steyn) while Lord Hope gave a more cautious reading

• Lambert: s3 was used to imply that s28 Misuse of Drugs Act, which on a natural reading imposes a legal burden of proof on the accused (reverse burden of proof), imposed only an evidential burden to be compatible with art 6(2) ECHR

• Roth: a statute imposing a reverse burden of proof on hauliers who intentionally or negligently allowed illicit entry into the UK could not be saved by s3 because it would require a radically different approach to comply with the Convention

But the modern approach must be seen in light of Ghaidan which decided

1. Application of s3 is not dependent on ambiguity

2. S3 can require courts to depart from unambiguous meaning the legislation would otherwise bear

3. It is open to the court to read in words that change the meaning of enacted legislation to make it Convention compliant subject to constraint that it is a ‘possible’ interpretation of the legislation

4. There are limits to s3

   1. courts can’t adopt a ‘meaning inconsistent with a fundamental feature of legislation’ - meaning imported must be ‘compatible with the underlying thrust of the legislation’

   2. courts shouldn’t adopt an interpretation for which they are ill-equipped (eg. an interpretation that would bring far-reaching change of a kind best dealt with by Parliament)

Subsequent cases were decided in accordance with Ghaidan principles, but academics have differed as to the construction of s3 and how far the courts should go in reading legislation to make it compatible. Factors to bear in mind:

1. Two senses of legislative intent are at play – the intent behind the allegedly offending legislation, and intent behind s3

2. Wording of legislation is not conclusive after Ghaidan, but the court will not adopt a meaning that is inconsistent with a fundamental feature of the legislation, or that the court is ill-equipped for. Thus, Ghaidan adopted a midway approach between Lord Steyn’s radical approach and Lord Hope’s cautious one. Although how Ghaidan applies to individual cases will still be contentious, it provides welcome guidance because it is more nuanced than the previous cases

3. The interpretation of s3 significantly impacts the relationship between the courts and legislature: the more it is used, the less the need for a declaration and the less legislation is sent back to Parliament. But on the other hand taking s3 too far risks significantly undermining the workability of the entire statutory scheme

4. Sir Jack Beatson: If s3 allows...