Chapter 3 Guidance on answering the critical questions

Convention rights and administrative law

1. Is judicial review for incompatibility of administrative action with Convention rights justified by constitutional principle?

Consider how any judicial review of administrative action is justified by constitutional principle. The first constitutional principle of administrative law is that good government requires responsible government. Judicial review of administrative action is a process, independent of the government, which aims to prevent arbitrary administrative action by imposing the rule of law on the executive, and thus aims to uphold responsible government.
So if judicial review for incompatibility of administrative action with Convention rights was also aimed at preventing arbitrary government, it could be justified by the same constitutional principle. Are any of the Convention rights aimed at curbing arbitrary government and upholding the rule of law? What about Article 5 (prohibiting arbitrary executive detention), Article 6 (requiring fair procedures) and Article 7 (prohibiting retrospective criminal penalties)?
And what about Article 2 (the right to life) and Article 3 (the prohibition on torture)? That we all have a duty to not to torture or kill people is true regardless of the Convention, but these articles give these rights particular legal effect, with independent processes for determining the application of the rights and for remedying violations. Might such processes act as a limit on arbitrary government, thus justifying judicial review of administrative conduct for compatibility with these rights?
What about the ‘political freedoms’ of thought and religion, expression and association? Does protecting these freedoms work to limit arbitrary government e.g. by protecting freedom to criticise the government, and by protecting the ability to form alternative political parties and associations? Of course these freedoms do more than just uphold the rule of law, but do they in part also help prevent arbitrary government?
Might it also be true to say that many of the freedoms protected by the Convention are themselves constitutional principles, so that there is no problem finding constitutional justification for judicial review of incompatible administrative action? Consider Lord Templeman’s remark in R v Home Secretary ex p Brind [1991] 1 AC 696, before the Human Rights Act was passed: ‘Freedom of expression is a principle of every written and unwritten democratic constitution’ (750).
Finally, don’t forget that the constitutional principle of parliamentary sovereignty requires courts to abide by acts of Parliament, including the Human Rights Act.

2. How does the Human Rights Act 1998 promote the rule of law? Does it pose dangers to the rule of law?

First, consider how the Human Rights Act promotes the rule of law.
- Section 6 of the Human Rights Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.
- Consider that many of the Convention rights are aimed at curbing arbitrary government by imposing the rule of law on the administration (e.g. Article 5 (prohibiting arbitrary executive detention), Article 6 (requiring fair procedures) and Article 7 (prohibiting retrospective criminal penalties)).
  - So, might the judges’ ability to quash administrative action that is incompatible with these Convention rights help to promote the rule of law?
- Secondly, consider the dangers the Human Rights Act poses to the rule of law.
  - English judges need to make judgments of proportionality in applying the Convention rights. This means they have to:

But assessing the objectives of a government measure and deciding on their value is not generally an exercise that judges are well-equipped to carry out. The government and the legislature are better placed to make some such assessments. So might proportionality judgments have the potential to conflict with the separation of powers?
The separation of powers is linked to the rule of law, as the latter requires some (but not all) executive functions to be controlled by law (where such control can help prevent arbitrary government and can promote reasonable decisions). But are government decisions regarding the proper objectives of government action executive decisions that ought to be controlled by law? If not, allowing judges to carry out assessments of these objectives conflicts with the rule of law.
Remember, too, the rule of law value of finality in decision making, which brings resolution to public disputes. Bringing disputes to an end is actually essential to government by law. Of course, that doesn’t mean that all court proceedings are against the rule of law! But it means that there is a general reason not to allow administrative decisions to be questioned in judicial proceedings unless there is some good reason.

3. Should English courts be less deferential than the Strasbourg Court in applying the qualified Convention rights?

Consider the rationale behind the margin of appreciation recognized by the Strasbourg Court. The European Court of Human Rights defers (to some degree) to the judgment of the national authorities in applying the public interest limitations. This is because the application of public interest limitations can legitimately vary between countries depending on the prevailing societal attitudes and concerns. And the national authorities of the contracting states are better placed that the European Court of Human Rights in Strasbourg to evaluate local needs and conditions. (See Sahin v Turkey Application no. 44774/98(2005) 41 EHRR 8, [100]).
Since English courts are no worse placed than the British Government to evaluate local needs and conditions, it may be that English courts should be less deferential to the government than the Strasbourg court in the application of qualified rights.
But what if the government action limiting the Convention-protected-freedom involves questions of competing resources, or matters of sensitive national security? Are the English courts best placed to assess the value of such government action? In such cases, might it not be appropriate for the English courts to be at least as deferential as the Strasbourg court?
Remember also, as the European Court of Human Rights stated in Buckley v UK Application No. 20348/92 23 EHRR 101: ‘The scope of this margin of appreciation is not identical in each case but will vary according to the context’[74]. In some cases, the Strasbourg Court allows the national authority little or no margin of appreciation. So should English courts always be less deferential than the Strasbourg Court, even where the latter allows the national authority little or no margin of appreciation?
Might it depend on the circumstances of the case?

4. Are there proportionality tests for the application of all Convention rights?

Consider the majority of the Convention rights, which indicate that limits may be imposed on the freedom protected under certain circumstances. Can it safely be said that these rights will involve proportionality tests?
The interesting articles are those without any ‘paragraph two’ indicating when the freedom might be limited. Think about the ‘right to life’ in Article 2. Does an infringement of Article 2 involve any proportionality test? There is no proportionality test at all in the right not to be intentionally killed, but what about the right to proportionate process in public inquiries into deaths? This element of Article 2 involves proportionality.
Now think about Article 3. If a claimant establishes that he was tortured, is this enough to prove that his Article 3 right was infringed? Can a proportionality justification be provided for torture? (hint: see 3.6)

5. Neither House of Parliament is a ‘public authority’ for the purposes of the Human Rights Act s 6(3). Why not?

The primacy of legislation is preserved by the Human Rights Act.
- There is nothing to prevent Parliament passing a statute that is incompatible with the Convention (s 19 statements of compatibility are not a pre-requisite)
- Issuing a declaration of incompatibility does not affect the validity or continuing operation of primary legislation (s 4)
- An action is not unlawful (even though it is not Convention-compatible) if it was carried out because of, or to give effect to, primary legislation (s 6(2))

Would it make sense for legislation to be protected, but for the Houses of Parliament (who pass legislation) not to be?

Even if the Houses of Parliament were public authorities for Human Rights Act purposes, would Members of Parliament be protected from judicial review anyway by the Bill of Rights 1689?
What sort of problems would a departure from Parliamentary immunity from judicial review create? Think about how this would square with the principles of British constitution. With Parliamentary sovereignty? With representative democracy? With the separation of powers? With the requirement of comity between institutions?

6. Why does the Human Rights Act define ‘primary legislation’ to include an ‘Order in Council made in exercise of Her Majesty’s Royal Prerogative’ (s 21(1))? How does that provision affect judicial review of the prerogative?

Think about the public authority duty in s 6. What would happen if a public authority acted incompatibly with the Convention because of an Order in Council? Would that be unlawful, if an Order in Council is included in the definition of ‘primary legislation’? See s 6(2) of the Human Rights Act.
Might this limit the judicial review of the prerogative for compliance with the Convention?
Why did the government include Orders in Council in the definition of ‘primary legislation’? Might the government have wanted to retain a government measure insulated from judicial scrutiny on the basis of the Convention?
How much difference will this limitation make to judicial review of the prerogative in reality? Think about the fact that the prerogative can be exercised other than by way of Order in Council. Consider also that judicial review of the prerogative is often limited by the non-justiciability of the subject matters involved (national security, diplomatic relations etc).

7. Section 19 of the Human Rights Act provides that:

‘A Minister of the Crown in charge of a Bill in either House of Parliament must…
(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights; or
(b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.’

Suppose that a Minister makes a statement that in his view a bill is compatible with Convention rights, but in fact the bill is incompatible with Convention rights. Does a person aggrieved by the Minister’s conduct have any legal remedy?

Could a person seek judicial review of the Minister’s decision to make the statement? Think about the Bill of Rights 1689 (Article 9, under the title ‘Freedom of Speech’ in the ‘Introductory text’ section). Would the statement be a proceeding in Parliament, and thus immune from judicial review?
Apart from the Bill of Rights 1689, is there a need for judicial action to hold ministers to account for such statements? Could Parliament itself perform that function?

8. Could you get judicial review of a governmental decision not to ask Parliament to amend legislation that a court has declared to be incompatible with a Convention right?

Does the Human Rights Act 1998 provide for any judicial control of the Government’s decision whether to introduce a remedial order to amend legislation that has been declared incompatible with a Convention right (see Section 10)?
Think again about Article 9 (freedom of speech and proceedings in Parliament) of the Bill of Rights 1689.
Would it be compatible with the design of the Human Rights Act, for judges to have control over the political process for fast-track amendment of incompatible legislation? Is this the sort of things judges ought to have control of?

9. Can a remedial order under s 10 of the Human Rights Act be quashed by a court as ultra vires?

Is delegated legislation subject to judicial review? Is there any rule that a regulation cannot be subjected to judicial review just because it has been approved by both Houses of Parliament (see 7.3.4)?
Might this mean that perhaps judges do have some control over the process for the amendment of legislation? If so, it is patently clear that judicial review would not be available simply on the ground that, because the legislation was incompatible with a Convention right, the Government acted unlawfully in not making a remedial order, or that a remedial order was unlawful because it failed to remove the incompatibility.
In practice, might the courts simply refuse to quash a remedial order, on the ground that the Act was designed to leave it to the Government and each House of Parliament to decide whether a remedial order ought to be made?

10. Why do the privacy and political freedom Convention articles (Articles 8, 9, 10, 11) allow only those limits on freedom and privacy that are ‘necessary in a democratic society’? Why not allow those limits that are just or reasonable?

First, is the test that the courts apply in practice when deciding whether government action infringing a political freedom is justified really one of necessity? Is it not more accurate to call it a test of proportionality?
Does the use of the word ‘necessary’ (rather than ‘just’ or ‘reasonable’), when indicating permissible limits on the freedoms, help to underline the importance of the freedoms?
The Convention rights are supposed to ‘trump’ other concerns and objectives. If all that was needed to restrict the freedom was some ‘just’ limit, would the pre-eminence of the interests protected by the Convention rights be achieved?
If judges had to decide whether the limits were just or reasonable, might this present an even greater risk to the separation of powers and the rule of law than the test of necessity/proportionality?