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Discretion Wednesbury Proportionality Notes

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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
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Page 1 *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

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Page 2 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:
o 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
o 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
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Page 3 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))
o 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)
o 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))
o 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
ADMINISTRATIVE LAW: REVIEW OF DISCRETION (II)

Page 4 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 a. 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'
b. 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 courts to change the meaning of statutes, we'll have statutes that don't mean what they say, which increases opacity - a solution may be that whenever s3 is used in this way, textual amendments be made to the statute. Without this, "the quest for transparency and clarity faces a considerable obstacle ... that has nothing to do with drafting styles"
III. ACTS OF PUBLIC AUTHORITIES: A NEW HEAD OF ILLEGALITY
i. The legislation
S6(1) HRA provides that it is unlawful for a public authority to act in a way incompatible with a
Convention right. It creates a new statutory head of illegality for breach of a Convention right -
a freestanding ground of challenge. Before HRA, it couldn't be argued that administrative action was unlawful simply because it violated a Convention right (though it might make the action Wednesbury unreasonable or convince the court that a relevant consideration wasn't taken into account)
S6(2) qualifies this - S6(1) doesn't apply if by virtue of a statute the authority couldn't have acted differently (s6(2)(a)), or if the authority was giving effect to a statute that couldn't be read in a way compatible with Convention rights (s6(2)(b)) (thus to prevent indirect attacks on legislation)
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Page 5 ? Wilkinson: A statute only allowed giving benefits to widows and not widowers, and so an authority didn't give C (widower) benefits. C challenged this as discrimination but Lord
Hoffmann held that the statute couldn't be read in a way as to include widowers (even under Ghaidan) and therefore the authority was protected by s6(2)(a)
But the s6(2) qualification has been interpreted narrowly - eg. it doesn't apply to incompatible secondary legislation that isn't the necessary consequence of the primary legislation (Bono)
ii. The relationship between s6(2)(a) and s6(2)(b)
-Hooper: C argued that provision of benefits to widows and not widowers breached arts 8 and 14 ECHR and claimed under s6 because s4 couldn't have given them the benefits.
The House agreed that s6(2) was there to prevent Cs from using s6(1) to circumvent the opportunity afforded to Parliament to revise the legislation found to be incompatible, by attacking the authorities acting under it (safeguards PSov). But they disagreed as to the relationship between the provisions:
o Lord Hope: s6(2)(a) is where statute imposes a duty to act in a certain way,
whereas s6(2)(b) is where statute gives a discretion and this discretion must be exercised in order to be convention compliant

Lord Brown: s6(2)(b) only provides a defence if the discretion can never be exercised in a way that is convention compliant but will not provide an answer to the requirement that discretions generally be exercised in convention compliant manners. Therefore, if the discretion is turned into a duty by the Convention (Lord
Hope's case), s6(2)(b) provides no defence.
iii. Acts of public authorities: the scope of s6
Two types of public authorities as defined by s6(3):
1) Core public bodies, who are always within the ambit of s6 no matter the nature of the act complained of (eg. government bodies)
2) Hybrid bodies that are only caught when performing functions of a public nature within s6(3)(b) and not when they are exercising private functions (s6(5))
Distinction was recognized in caselaw
-Aston Cantlow: their lordships agreed that s6(5) didn't apply to core public authorities as everything they do is assumed to be public
This is consistent with ECtHR which applied the Convention to state institutions that were exercising private functions as employers rather than legislators or Executive (Swedish Engine v Sweden)
a. Test for core public authorities
A body is a core public body if it is "governmental in a broad sense of that expression" (Aston
Cantlow), such as government departments, local authorities, police, armed forces. Relevant factors include possession of special powers, democratic accountability, public funding,
obligation to act in public interest, statutory constitution.

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Page 6 Core public bodies do not have Convention rights (Aston Cantlow), which encouraged courts to adopt a narrow definition, eg. by not including NGOs who are entitled to bring actions before the ECtHR under Art 34.
b. Test for hybrid public authorities
There is no universal test for when a hybrid body is performing a public function (Lord Nicholls,
Aston Cantlow) but factors include extent of public funding, whether it's exercising statutory powers or taking the place of central/local governments, or is providing a public service.
Lord Bingham listed more factors (YL): nature and extent of public interest in function,
statutory power or duty in relation to the function, state regulation/supervision/inspection, etc.
A factor-based approach was endorsed by Baroness Hale, Lord Mance, Lord Scott and Lord
Neuberger in YL
c. Application of the test for hybrid public authorities
Factor based system means contention in application to individual cases
-Aston Cantlow: church council served notice on D to repair the church. CoA held that the church council was within HRA either because it was a core public authority or was at least a hybrid authority, but HL said it was neither, because although it had certain links with the government it was a religious and not governmental organization. Thus it wasn't a core public authority. The fact that the public had an interest in the maintenance of the church didn't make its notice of a public nature.
The contention is particularly strong when public bodies have contracted out the provision of certain services
-Donoghue: Local authority created a housing association and gave it much of its housing stock. CoA held that a body performing an activity that otherwise a public body would be under a duty to perform doesn't make it a public function - otherwise, a small hotel requested by an authority bound to provide bed and breakfast accommodation, to provide such accommodation, would be bound by the HRA, which cannot be the intention. A
number of factors must be considered: existence of statutory authority, control by the public authority, etc. According to these criteria, the housing association was a public authority: it was created and controlled by a public authority, members of the public authority sat on its board...
-Leonard Cheshire: A housing foundation ran a 'home for life' where most patients were placed there by their local authority, who also paid for their placements pursuant to statutory powers. CoA held that the housing foundation was not a public body because there was no other evidence (than the payment by the authority) that it was performing a public function, and that payment was not of itself determinative
-YL: C suffered from Alzheimer's, and D1 had a statutory duty to provide her with accommodation, which D1 contracted out to D2, an independent healthcare provider that accommodated C along with independent fee paying residents. When D2 wanted to terminate C's housing, C argued that D2 fell within s6(3)(b), challenging the basis and decision in Leonard Cheshire. Majority of HL rejected this - there is a distinction between function of a local authority for those in need of care who couldn't make arrangements for themselves, and that of a private company in providing such care on a
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