Chapter 8 Notes on key cases

Substantive fairness

Re Findlay [1985] AC 318: The Home Secretary changed his policy on the use of his discretionary power to release serious offenders on parole, so that prisoners who had committed especially heinous crimes would stay in prison longer. Four prisoners challenged the decision on the grounds (among others) that the view of the Parole Board was a relevant consideration which the Home Secretary had not considered, and that the decision unfairly breached their legitimate expectation of earlier release under the old policy. The House of Lords held in favour of the Home Secretary. On the relevance of the Parole Board’s view, Lord Scarman held for the unanimous court that the Home Secretary could decide it for himself. Lord Scarman accepted the view of Cooke J in CREEDNZ Inc v Governor General [1981] 1 NZLR 172, that the law requires a consideration to be taken into account only ‘when the statute expressly or impliedly identifies considerations required to be taken into account’ or when it would be Wednesbury-unreasonable not to take it into account (Findlay 334). On the legitimate expectation point, Lord Scarman held that because the statute was designed to enable the Home Secretary to implement a policy, ‘the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute’ (338).
R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386: The Overseas Development and Co-operation Act 1980 gave the Foreign Secretary ‘power, for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people, to furnish any person or body with assistance, whether financial, technical or of any other nature.’ In order to encourage Malaysia to buy British aircraft, the Foreign Secretary promised to give over two hundred million pounds from the overseas development fund to Malaysia for the construction of a dam that was plainly uneconomical. The Divisional Court issued a declaration that the decision had been unlawful. The case reasserts the holding in Padfield that it is ‘a matter for the courts and not for the Secretary of State’ to determine the purposes for which a statute confers powers (401).The case is also important for the law of standing; see p 404.
R v Inland Revenue Commissioners, ex p Unilever [1996] STC 681: The Revenue refused a claim to a tax benefit from Unilever on the ground that it was made outside the two-year statutory time limit. But the Revenue had established a practice of not enforcing the limit; they had allowed late claims thirty times over a period of 25 years. The Court of Appeal held that the refusal was unlawful in the circumstances. The case is authority for the proposition that such a decision can be struck down for substantive unfairness, but only if it is ‘so unfair as to amount to an abuse of power’.
R (Daly) v Home Secretary [2001] UKHL 26: In prison rules authorizing searches of prisoners’ cells, the Home Secretary introduced a rule requiring correspondence between a prisoner and his lawyers to be examined in the prisoner's absence. The House of Lords held that the rule was unlawful: because it was a blanket rule, it was too great an interference with the prisoner’s common law right to legal professional privilege (16) and with his privacy under Article 8 of the European Convention on Human Rights. The case is a proportionality classic. Lord Steyn took the opportunity to offer an explanation of what he said was the difference between proportionality under the European Convention on Human Rights, and the traditional common law grounds of review:‘First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights.’ [27]

But note that in Daly, proportionality reasoning was also used in the application of the common law (see Lord Bingham’s speech, particularly at [19]). Proportionality was already used in the common law, before the Human Rights Act 1998, when the principle of legality (see p 266) applies. The principle is that the common law protects certain fundamental values (including access to confidential legal advice) by refusing to allow administrative authorities to use broad powers (such as the Home Secretary’s power to make rules for prisons) in ways that are disproportionately detrimental to those values (see pp 19-21).
R (Bibi) v Newham LBC [2001] EWCA Civ 607: The Council had promised the claimant permanent accommodation within 18 months. The Council did so because it had advice that the family had a legal right to it. But the House of Lords then held that there was no such right, and the council refused to provide the permanent accommodation it had promised. The Court of Appeal held that the claimant had a legitimate expectation of permanent accommodation. That did not mean that the Council had a duty to give them permanent accommodation. The legitimate expectation was a consideration that the Council had a duty to consider in deciding the claimant’s application.
R (Wilkinson) v Broadmoor Special Hospital [2001] EWCA Civ 1545: Doctors decided that they needed to administer medical treatment under restraint to a mentally ill patient. In a claim for judicial review of the decision, the patient wanted to cross-examine the doctors, and the Administrative Court refused. The Court of Appeal allowed the patient’s appeal, holding that the evidence from the doctors was necessary because the court had to decide the facts, and had to decide the merits of the proposed forcible treatment. The case is a reminder of the principle of relativity (p 10): the court’s role in reviewing an administrative decision relates to the issues at stake and the way in which they affect the claimant. The Wednesbury principles do not apply to a case like Wilkinson, where the claimant’s liberty is at stake.
R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213: Miss Coughlan had a statutory right to accommodation in a nursing home. To encourage her to move into a particular home, the Health Authority promised her that she would be able to stay there for life, but they later proposed to move her to another home on the ground that her home had become unsuitable for the health service and unaffordable. The Court of Appeal upheld an order quashing the decision to close the home. The Court held that it is unlawful to frustrate a substantive legitimate expectation if doing so ‘is so unfair that to take a new and different course will amount to an abuse of power’ [57] or ‘is so unfair as to be a misuse of the authority's power’ [82]. See pp 286-9 on the ambiguous effect of this landmark case.
R (Begum) v Denbigh High School [2006] UKHL 15: Shabina Begum had been wearing the shalwar kameeze to school for two years. At the beginning of a new school year she came to school with her brother and another man who insisted that she should be able to attend school in the jilbab, ‘a long shapeless dress ending at the ankle and designed to conceal the shape of the wearer's arms and legs’ [79]. The school’s uniform code allowed the shalwar kameeze, but prohibited the jilbab. The Court of Appeal held that the school had violated her rights to freedom of religious belief (Art 9 of the European Convention) and to education (Art 2 of the First Protocol to the Convention), because the school officials had not asked themselves whether the impact on her freedom of religion, and on her education, was proportionate to their need to protect the rights of other schoolchildren. The House of Lords reversed that decision and held in favour of the school. The Law Lords held that the court had to ask, ‘was the right to manifest a religious belief restricted in a way which is not justified under article 9(2)?’ (Lord Hoffmann [68]) –and not whether the school had asked itself that question. The proportionality of the uniform policy was held to depend on its effect in protecting the rights of other schoolchildren, and on that question the Law Lords deferred to the school authorities. Lord Bingham said, ‘It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this’ [34].
Case C-310/04 Spain v Council [2006] ECR I-07285: A case that illustrates striking similarities between the grounds of review in English law of decisions such as the by-law decision in the Wednesbury case, and review of the law-making decisions of the European institutions under the Treaty. The European Court of Justice held that the Council had not genuinely exercised its discretion to make rules changing the Common Agricultural Policy, because it had not considered the undeniably relevant factor of the impact of a change in cotton subsidies on the cotton processing industry. The Court held that ‘the fundamental principle of the protection of legitimate expectations’ had not been infringed, because no one has a legitimate expectation that a body with a discretion to change its policy will not do so. But the Court held that the principle of proportionality (‘one of the general principles of Community law’ [97]) had been infringed; the measure was ‘manifestly inappropriate’ [98] to its objective because its impact had not been properly considered.
R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60: After pressure from the Government and from BAE Systems Ltd, the defendant had abandoned an investigation into allegations that BAE Systems Ltd bribed Saudi Arabian officials while negotiating a large sale of aircraft. The Saudis had threatened to stop buying British aircraft and to stop cooperating in anti-terrorism measures if the investigation continued. The Divisional Court held that stopping the investigation had been unlawful because it was contrary to the rule of law; the House of Lords overturned that decision and held that, in exercising his discretionary power to conduct criminal investigations, the Director could take into account the danger to public safety in Britain.
R (Hurley) v Secretary of State for Business Innovation and Skills [2012] EWHC 201: students in the lower sixth form challenged the government’s decision to allow universities to charge fees up to £9000 per year. The claimants argued that the change was a breach of the right to education under Protocol 1 Art 2 of the Convention; that argument failed because the judges were not prepared to pass judgment on the public interest in reducing the cost to the Treasury of higher education. But the claimants persuaded the Divisional Court that the Secretary of State had failed to give ‘the rigorous attention to the PSEDs [public sector equality duties under the Equality Act 2010 s 149] which he was obliged to do’ [97]. Yet the Court refused to quash the regulations allowing the fee increase, implying that the breach of the duty was a technicality because ‘the particular decision to fix the fees at the level reflected in the regulations was the subject of an appropriate analysis’ [99], and pointing out that quashing the regulations would cause ‘administrative chaos’ [99].