Table of Contents

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

Textbook

Craig – Chapter 20

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...

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