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Public Law
1996

Judges and decision makers: the theory and practice of Wednesbury review
Lord Irvine of Lairg Subject: Constitutional law. Other related subjects: Administrative law Keywords: Constitutional law; Judicial decision making; Judicial review *P.L. 59 My subject in this article is the foundation on which the practice of administrative law is based. How much discretion do public bodies really have in the exercise of their decision-making powers? How ready will the courts be to intervene to overturn decisions which are challenged before them? The answers to these questions encapsulate the constraints within which all of us--advocates, academics and judges--carry on the day to day business of administrative law. Let me begin with a recognition that the consequences of the democratic deficit, the want of Parliamentary control over the executive in recent years, have been, to an important degree, mitigated by the rigours of judicial review. I pay tribute to the high quality of judicial review in this country. It has so often rightly held the executive to account and improved the quality of administrative decision-making. Now is a timely moment to evaluate the legal relationship between the decision-makers and the courts. Many longstanding assumptions about the ability and the desire of government to provide for its citizens have had to yield in the face of a frequently unedifying conflict over scarce resources, a conflict for which the High Court has increasingly provided the battleground.1 As the pressure on public funds grows ever greater, and staff levels are reduced, so the resources available not only for public spending but also for decision-making itself are squeezed. Public authorities in the 1990s take an ever growing number of potentially reviewable decisions, often under considerable pressure, and in an environment where the time and resources to reach and reflect on them is reducing. Inevitably the quality of public decision-making is put at risk. Unquestionably, judicial review has caught the imagination of those affected by controversial public decisions (and perhaps more importantly their legal advisors) and the number of applications for judicial review continues to grow *P.L. 60 apace. These challenges come not only from individuals but increasingly also from pressure groups, who seek to use judicial review as a means of influencing the policy of government when conventional tactics of political persuasion have failed.2

The principles of Wednesbury review

I start with a restatement of the principles which are generally accepted to be axiomatic of the system of judicial review in this country. They have come to sum up the constitutional role of the courts in public law cases. These principles in large part inter-relate. They are that judicial review is not an appellate procedure; the court must not substitute its opinion for that of the decision-maker; the court must rule only upon the legality of a decision and not upon its correctness; the court will concern itself with the manner in which a decision is reached rather than with the substantive merits of the decision itself. These principles undoubtedly have superficial appeal, condensing complex constitutional choices into user-friendly slogans. In reality, however, they offer only limited assistance in determining the true limits of judicial review. To say that the courts will merely concern themselves with the legality of decisions and not with their merits tells us nothing about the circumstances in which a decision will be held to be illegal. These circumstances are to be defined by the courts and it says much about the misleading nature of the aphorisms of public law that they are as widely accepted now as they were 50 years ago, yet the range of circumstances in which decisions may be struck down has been extended beyond recognition. I would suggest that the ritual incantation of these legalistic home truths has done much to obscure notable developments in the scope and intensity of judicial review. A considered analysis of the intensity of judicial review must include two additional elements: first, an understanding, and an account, of why it is that judicial review should never be an appellate process, that the court should adjudicate only upon the legality of a decision and not upon its merits; and

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second, a formulation of substantive principles of judicial review which truly reflect the constitutional underpinnings which are so readily attributed to them.

The constitutional basis of judicial review

These principles rest upon the constitutional imperative of judicial self-restraint. There are at least three bases for this imperative. First, a constitutional imperative : public authorities receive their powers from Parliament which intends, for good reason, that a power be exercised by the authority to which it is entrusted. This is because each and every authority has, within its field of influence, a level of knowledge and experience which justifies the decision of Parliament to entrust that authority with decision-- *P.L. 61 making power.3 Secondly, lack of judicial expertise : it follows that the courts are, in relative terms, ill-equipped to take decisions in place of the designated authority. This is all the more true where the decision in question is one of policy; and the further into the realm of policy an issue lies, the more reluctant a court should be to interfere with the authority's decision.4 Thirdly, the democratic imperative : it has long been recognised that elected public authorities, and particularly local authorities, derive their authority in part from their electoral mandate. The electoral system also operates as an important safeguard against the unreasonable exercise of public powers, since elected authorities have to submit themselves, and their decision-making records, to the verdict of the electorate at regular intervals.5 What this reduces to is a doctrine of judicial self-restraint in deference to the sovereignty of Parliament. The traditional doctrine of separation of powers requires that the three basic functions of government--legislative, executive and judicial--are the distinct preserve of separate branches. The courts may not decide either on the validity or the desirability of legislation. It was not ever so. In Bonham's Case in 1610 Coke C.J. maintained that: when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.6 So also five years later, in Day v. Savadge, Hobart C.J. said: even an act of parliament made against natural equity is void in itself; for jura naturae sunt immutabilia, and they are leges legum. 7 Such notions form no part of the modern law, though I will discuss later the attempt by some to revive them as part of the law of judicial review. They became obsolete when the supremacy of Parliament was finally established by the revolution of 1688.8 As Willes J. put it in 1871, the judges could not act as regents over what is done by Parliament with the consent of the Queen, Lords and Commons.9 In 1986, Lord Templeman spoke of Parliament exercising the supremacy of power conferred on Parliament by the unwritten constitution of the United Kingdom, subject to quinquennial democratic control and to the daily force of public opinion.10 There is a superfluity of judicial statement to this effect.11 *P.L. 62 The legislative supremacy of Parliament is not merely a legal concept, a principle of the common law, recognised and applied by the decisions of the courts. It is also the result of political history and is ultimately based on fact, that is, general recognition by the people and the courts.12 It is Professor Hart's ultimate rule of recognition.13

The substantive principles of judicial review

The final element of a normative description of judicial review is the formulation of substantive principles of judicial review which faithfully reflect the constitutional imperative of judicial self-restraint. This exposition of public law principles is neither novel nor surprising. It is drawn directly from the speech of Lord Greene in the Wednesbury case, the locus classicus of British administrative law.14 Lord Greene started with a maxim: that the court does not act as an appellate authority, but as a judicial authority concerned only with the issue of whether the public authority has contravened the law by acting in excess of the powers which Parliament has confided in it. Its justification is that the public body is entrusted by Parliament with the decision on a matter with which the knowledge and experience of that authority can best be trusted to deal. He then outlined substantive principles of judicial review which truly reflect the constitutional basis

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which he ascribed to them. First, that a decision-maker has a broad discretion as to the factors which are to be taken into account before a decision is made, a discretion which is only restricted if the governing statute clearly requires that a particular factor must be considered, or must not be considered. Second, the celebrated principle of Wednesbury unreasonableness, that once the decision-maker has properly determined the range of relevant considerations, the weight to be given to each consideration is a matter within its discretion and a decision will only be struck down as unreasonable where it is so unreasonable that no reasonable decision-maker could have made it. Lord Scarman observed in the Nottinghamshire case that no question of constitutional propriety arose in Wednesbury .15 His further observation, that the Master of the Rolls was not concerned with the constitutional limits for the exercise of judicial power in our parliamentary democracy cannot, however, be sustained. Lord Greene M.R. was unquestionably addressing the boundaries of judicial review beyond which it would be constitutionally inappropriate to trespass. The court was not a court of appeal which could substitute its decision for that of the decision-maker, who acted under powers conferred by Parliament. This would amount to a wrongful usurpation of power by the judiciary.16 Since 1948, Wednesbury review has come to be used as shorthand for that constitutional school of thought which advocates judicial self-restraint in *P.L. 63 public law matters. Moreover, it is shorthand which the vast majority of lawyers would still acknowledge to be the guiding principle of our system of judicial review. The very restrictiveness, however, of the Wednesbury principles has put them under attack. First, there have been attempts to modify them, in cases where fundamental rights are said to have been restricted and where national economic policy has come under challenge. Secondly, various grounds for judicial review, developed by the courts in the years since Wednesbury, including improper purpose, breach of natural justice and failure to respect legitimate expectations, have been treated as hard-edged principles. There, the opinion of the court is determinative and the opinion of the decision-making body must conform to it if its decision is to survive challenge. Wednesbury review, in contrast, expresses a strong preference for soft-edged decisions, in which the opinion of the decision-making body may differ from that of the court yet still fall within a band of legitimate responses.17 Thirdly, the legal systems of the European Union and of the European Convention on Human Rights, whose approach to judicial review is markedly different from our own, have had an increasing influence, both direct and indirect.

The challenge to the Wednesbury principles

The standard of Wednesbury unreasonableness, which has been renamed (as irrationality) and reformulated, but until recently not challenged, sets an onerous standard for review of the merits of public decisions. There is, however, recent authority which could support the contention that a class of case may exist where it would be appropriate for there to be a conceptual shift away from Wednesbury in the direction of a lower threshold of unreasonableness. On the other hand there is also recent authority which could support movement in the opposite direction: that another class of case may exist where it would be appropriate for there to be a higher threshold of unreasonableness (super-Wednesbury as Simon Brown L.J. in the Divisional Court dubbed the concept in R. v. Ministry of Defence ex parte Smith ).18 I will consider each suggested class of case in turn.

Lower threshold: fundamental rights cases

Irked by the restrictiveness of Lord Greene M.R. in Wednesbury and Lord Diplock in CCSU v. Minister for the Civil Service, 19 so that it might be thought that there was little room for conceptual development beyond the existing formulations, Laws J., in an important article, based on his 1992 ALBA Lecture,20 has advocated that the greater the intrusion proposed by a body possessing public powers over the citizen into an area where his fundamental *P.L. 64 rights are at stake, the greater must be the justification which the public authority must demonstrate. He maintained that, if accepted, this would be no more a usurpation of constitutional propriety than is the conventional Wednesbury approach itself.21 Laws J. lays claim, therefore, to a conceptual shift away from Wednesbury unreasonableness, but a shift as justifiable as Wednesbury itself. There is authority which may provide some support for these propositions.22 Lord Bridge in Brind went as far as to suggest a judicially ordered hierarchy of values so that the court was perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing

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public interest will be sufficient to justify it.23 Such justification was a decision for the Secretary of State alone (the primary judgment) but it was for the court to determine whether that decision could reasonably have been made (the secondary judgment). Lord Ackner, however, decided Brind on traditional Wednesbury grounds, whilst observing: In a field which concerns a fundamental human right--namely that of free speech--close scrutiny must be given to the reasons provided as justification for interfering with that right.24 It is hard to see Brind as marking a conceptual shift away from Wednesbury. There is now the authority of Neill L.J. in the NALGO case that the Wednesbury threshold of unreasonableness is not lowered in fundamental rights cases.25 This must be correct. The effect of Brind is that, where the issue is whether an acknowledged fundamental right should be restricted, then the decision for the Secretary of State must be two-stage: first, to acknowledge the fundamental right; second, to decide whether there is an important competing public interest which justifies its restriction. Consistent with Wednesbury, however, the court can only require of the Secretary of State a decision-making process in this form where the fundamental right is unquestioned, representing an undoubted value of our democratic society. For example, an alleged right to hunt stags, a highly controversial activity which fell to be examined in the recent case of R. v. Somerset County Council, ex parte Fewings, would not qualify.26 Lord Bridge's presumption in Brind should therefore be read as no more than a recognition that it would be perverse for a Secretary of State to fail to recognise that such fundamental rights, as the right to life or freedom of expression, can be overridden only by an important competing public interest. This approach should apply only to cases where by reason of the *P.L. 65 accepted values of our democratic society, it would be perverse to maintain otherwise--values that no democratic politician, consistently with his status as such, could be heard to deny.27 The primary judgment where the balance of public interest lies should be for the Secretary of State. There have been a number of recent judicial statements to the effect that the courts will be particularly alert when scrutinising the behaviour of the executive where fundamental rights are at stake. For example, Simon Brown L.J. stated in ex parte Smith that: When the most fundamental human rights are threatened, the Court will not, for example, be inclined to overlook some perhaps minor flaw in the decision-making process or adopt a particularly benevolent view of the Minister's evidence, or exercise its discretion to withhold relief.28 However, such suggestions have been accompanied by a more general assertion that the courts will intervene more readily, and on the basis of a lower standard of Wednesbury unreasonableness in fundamental rights cases. Simon Brown L.J. himself stated in R. v. Coventry Airport, ex parte Phoenix Aviation, 29 that the courts would adopt a more interventionist role to protect and uphold the rule of law, just as it would in fundamental rights cases. On this approach, the court would be invited to exercise a much tighter control over the merits of a decision where it perceives a threat to fundamental rights. This is to stray far beyond the limits laid down in Brind, and to lead the judges into dangerous territory. In practice, few cases which touch upon the protection of fundamental rights reflect the beguiling simplicity of the legal slogan. The political and legal choices which import consideration of fundamental rights protection are among the most difficult and the most subjective, and offer immense scope for political and philosophical disagreement. It cannot be right that such questions should be regarded as more rather than less suitable to judicial determination. The approach adopted in Brind, which states conclusively that the Wednesbury threshold of unreasonableness is not lowered in fundamental rights cases, must prevail.30

Higher threshold: decisions concerning national economic policy

Two recent decisions of the House of Lords represent a high-water mark in judicial self-restraint, where decisions concerning national economic policy are *P.L. 66 concerned.31 The House did not go so far as to hold that such decisions are non-justiciable but powerfully indicated that, in practice, they will be, unless in the most exceptional circumstances. The Nottinghamshire case concerned a report by the Secretary of State, approved by resolution of the House of Commons, specifying the limits of public expenditure by local authorities and therefore the distribution of the tax burden between taxpayers and ratepayers. In the earlier part of the leading judgment, Lord Scarman appeared to hold that the decision under challenge was reviewable if there was a prima facie case of

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bad faith, improper motive or perversity, that is if the consequences of [the Secretary of State's] guidance were so absurd that he must have taken leave of his senses.32 He appeared, however, then to exclude perversity in the operative part of his judgment. He held that since the proposed action complied with the statute and had been approved by the Commons: it is not for the judges to say that the action has such unreasonable consequences that the guidance upon which the action is based and of which the House of Commons had notice was perverse and must be set aside Judicial review is a great weapon in the hands of the judges: but the judges must observe the constitutional limits set by our parliamentary system upon their exercise of this beneficent power.33 In the next case, the Hammersmith case,34 which also concerned a national economic policy choice, Lord Bridge appears to have reinstated perversity as a potential ground of challenge, but in some new and higher form. He held that Nottinghamshire meant that: [the decision] is not open to challenge on grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity The courts would be exceeding their proper function if they presumed to condemn the policy as unreasonable. (Emphasis added) Understandably, Simon Brown L.J. in ex parte Smith interpreted these decisions as defining a concept of super-Wednesbury irrationality.35 The danger with Lord Bridge's judgment is that it suggests that there is a level of irrationality short of manifest absurdity which may found judicial review in the ordinary case. This encourages applications on a false basis. Lord Diplock in the GCHQ case defined a Wednesbury unreasonable decision as one which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.36 That leaves no scope for super-Wednesbury *P.L. 67 irrationality. If Hammersmith recognises such a concept then it is in principle unsound and went further than was necessary to express the judicial self-restraint appropriate to this class of case.37 In summary, the standard of Wednesbury reasonableness is, to some extent, under direct attack. A more subtle form of challenge is, however, the techniques by which the Wednesbury threshold is sidelined and ignored. Challenges based on Wednesbury unreasonableness rarely succeed. Successful challenges are typically put in terms of relevancy, illegality or procedural impropriety.

Wednesbury relevance and improper purposes

Wednesbury insists that the merits of a decision are for the decision-maker. The Wednesbury principle of relevance is premised upon the view that the decision-maker is in the best position, by reference to the statute, its purposes and the powers it confers, to determine the range of factors which bear upon his decision. The statute may expressly, or by necessary implication, provide that some factors must, and some must not, be considered, but there is a margin of appreciation within which the decision-maker may decide for himself which considerations should play a part in his reasoning process.38 Thus, there are three categories of consideration: those that must, those that must not and those that may, in the decision-maker's discretion, be taken into account. An important part of Wednesbury is the recognition of this free area of optional considerations. In Tesco Stores Ltd v. Secretary of State for the Environment, Lord Keith held that: It is for the courts, if the matter is brought before them, to decide what is a relevant consideration. If the decision-maker wrongly takes the view that some consideration is not relevant and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision-maker to attribute to the relevant consideration such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense.39 Lord Keith should not be taken to be denying the third category of optional considerations. He is holding only that it is for the courts to decide whether a consideration is mandatorily included or excluded by the statute. With respect to Laws J., he went wrong at first instance in ex parte Fewings, the case in which Somerset County Council prohibited stag-hunting on land which it held for the benefit of their area because he failed to recognise this third category, of optional considerations, which may be taken into account consistently with the terms and the purposes of the statute. Having held

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stag-hunting to be lawful, he concluded that the court would hold moral *P.L. 68 considerations to be irrelevant unless there was express statutory authorisation for these to be taken into account. That is the wrong test. The true question was whether Somerset as the decision-maker was prohibited by the statute from taking these considerations into account when deciding the activities it would permit on land it held for the benefit of its area. Absent a statutory prohibition, these considerations were plainly permitted. When Sir Thomas Bingham M.R. in the Court of Appeal held that he did not accept Laws J.'s view that moral considerations were necessarily irrelevant to the decision whether stag-hunting promoted the benefit of its area, he was regarding such considerations as within the optional third category.40 Simon Brown L.J. held that they were at least that but in addition he thought they were necessarily relevant.41 The decision in Padfield has an important impact upon Wednesbury relevance.42 Just as the court may construe a statute as requiring the inclusion or exclusion of a particular consideration, so also it is for the court to determine the policy and objects, or purpose(s), of the Act by construing it as a whole. The consequence is that the activities of public bodies are constrained not only by the express words of the statute but also by such purposes as the court may see fit to imply from the statute as a whole when a decision is challenged. The determination of a statutory purpose is a hard-edged decision, a matter of law for the court. It arises prior to any assessment of the relevance of the factors which may have been taken into account by the authority,43 and to a large extent will condition the outcome of that assessment. The characterisation by a court of what would undoubtedly qualify as a relevant consideration as the purpose of the statute plainly restricts the decision-maker's discretion to adopt other considerations as relevant. In this context, the Pergau Dam case merits close attention.44 The issue in that case was whether the grant of aid to fund the construction of the Pergau dam in Malaysia was for the purpose of promoting the development of Malaysia within the meaning of section 1(1) of the Overseas Development and Co-operation Act 1980. The Divisional Court glossed the statute by inserting the word sound before development purpose in the statutory provision. That decided, it was a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose. Since the grant of aid was, in the court's view, economically unsound, that was the end of the matter and all the other political and economic considerations, such as the promotion of regional stability, good government, human rights and British commercial interests, which the Secretary of State had taken into account in deciding not to rescind the offer of aid, mattered not. It is not obvious why the court's function was not spent in construing the statute as sanctioning the promotion of sound development, so that it would be *P.L. 69 for the Secretary of State on all the facts to decide, subject to Wednesbury, whether the proposed development was sound. True, on the strong facts of the case, the Secretary of State might well have acted perversely had he decided that this development was sound, but, in principle, this primary factual judgment should have been for the decision-maker, not the court. The general rule is that if, on its true construction, a statutory criterion is a flexible and evaluative one, whose rational application to the same facts may produce conflicting conclusions, it is the view of the rational decision-maker, and not the view of the court, which governs.45 The soundness of a development in the context of an overseas aid statute requires evaluation and that should be for the Secretary of State not the court. Even on its own terms--that the decision whether the proposed development was in fact sound was for the court--the Pergau Dam decision dramatically illustrates the impact of treating a factor, such as the soundness of a proposed development project, not as a mandatory relevant consideration for the Secretary of State to weigh alongside other relevant considerations, but as the purpose of the statutory provision. The courts should take care to abstain, under the mantle of construction, from elevating what is, in truth, a mere relevant consideration into a or the purpose of a statutory provision, thus curbing a valuable and legitimate facet of administrative autonomy.

The rise of other principles of hard-edged review Natural justice

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Natural justice, or the duty to act fairly, has, since Ridge v. Baldwin in 1964,46 been extended to provide a procedural ground of review in most areas of public law. Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decisions.47 Few would disagree that the enforcement of procedural safeguards on behalf of those affected by public decision-making is one of the great advances of modern administrative law. Natural justice, however, like justice itself, is far from being a natural concept,48 or one with an invariable content. The basic tenets of natural justice, that a man may not be judge in his own cause and that a man's defence must be fairly heard, are universally accepted but their detailed requirements in any specific context are always for debate. We are regularly told by the courts that the rules of natural justice are not engraved on tablets of *P.L. 70 stone, that the standards of fairness which they imply are not immutable, and that their demands will differ according to the particular circumstances.49 Nonetheless, the Court of Appeal has insisted that, where natural justice applies, what it requires in context is a matter of law for the court, which is the author and sole judge of procedural standards.50 That is, natural justice as a ground of review is hard-edged. There is no room for a legitimate difference of opinion between the decision-maker and the court. This proposition is highly disputable. It is clear that it is for the court to decide whether the duty to act fairly arises. It is also clear that the content of the duty will be variable and will depend on the nature of the decision and the surrounding circumstances. There is much authority, however, that the court should only intervene if the procedures applied by the decision-maker are so unfair that they could not have been reasonably adopted.51 This alone is the approach which respects the Wednesbury doctrine. Not only that: the contrary view which currently prevails is highly inefficient. The hearing comes first, the court afterwards. Thus a lengthy hearing, conducted reasonably by the expert body concerned, may be set aside because the court's view of the requirements of fairness, within a band of reasonably fair procedures, differs from that of the decision-maker.

Legitimate expectations
The doctrine of legitimate expectations is another of the most significant judicial inventions in the field of public law.52 Just as it is a hard-edged decision for the court to determine whether the duty to act fairly arises under a statute, so also whether a legitimate expectation exists is a hard-edged decision for the court because its existence is the foundation for the duty to act fairly. The decision, however, whether that legitimate expectation may be trumped because of an overriding public interest must be for the decision-maker, subject to Wednesbury. Expectations created in an individual by the past conduct of a public authority may give rise to the right to be consulted before a decision is taken,53 and also to locus standi for the purposes of challenging a public decision.54 An issue, however, has arisen on the authorities between Sedley J. and Laws J. (though others have been allowed to join in) whether there is a doctrine of both substantive and procedural legitimate expectation, or only of the latter. The issue is not unrelated to the fact that from the Bar they argued the case of ex parte Ruddock on opposite sides before Taylor J. (as he then was) in 1986.55 The *P.L. 71 legitimate expectation advanced in Ruddock was a substantive expectation, that the Secretary of State would only tap telephones in accordance with published criteria. Laws J. had argued that the doctrine of legitimate expectation relates only to cases where the applicant's expectation is of being consulted or given the opportunity to make representations before a certain decision adverse to him is made. That submission was rejected by Taylor J.56 Simon Brown L.J. also accepted, in R. v. Devon County Council, ex parte Baker 57 that there can be a substantive legitimate expectation, that is, an expectation capable of giving rise to an entitlement to a substantive benefit that the claimant asserts cannot be denied to him, and not merely a right to be consulted. Laws J., however, returned to this issue in R. v. Secretary of State for Transport, ex parte Richmond LBC. He denied the utility of any concept of substantive legitimate expectation and held that: the law of legitimate expectation only goes so far as to say that there may arise conditions in which, if policy is to be changed, a specific person or class of persons affected must first be notified and given the right to be heard.58

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Laws J. was pressed by Counsel with R. v. Home Secretary, ex parte Khan. 59 In that case the Court of Appeal had held that if the Secretary of State undertakes to allow a person [into the country] if certain conditions are satisfied, [he] should not be entitled to resile from that undertaking without affording interested persons a hearing, and then only if the overriding public interest demands it . Counsel argued that these two conditions had therefore to be satisfied before the Secretary of State could change tack. Not so, held Laws J.: the second condition would make the court the judge of the merits of the proposed policy change and therefore the argument had to be rejected because the court is not the judge of the merits of the decision-maker's policy. With respect, this was no ground for rejecting Counsel's argument that the law recognised substantive legitimate expectations. The courts have held that fundamental rights (Brind ) and substantive legitimate expectations (Khan ) may only be trumped where the decision-maker is Wednesbury reasonable in deciding that an overriding public interest so demands. Yet as Brind shows, this does not mean that the court's view is substituted for that of the decision-maker: the primary judgment is for the decision-maker, the secondary for the court. Sedley J. had his opportunity to return to the fray in R. v. Ministry of Agriculture, ex parte Hamble Fisheries. 60 He expressly recalled his and Laws J.'s rival submissions as Counsel in Ruddock and, rightly in my view, held that the *P.L. 72 law did recognise a substantive legitimate expectation.61 Sedley J. then held that: it is the court's task to recognise the constitutional importance of ministerial freedom to formulate and to reformulate policy; but it is equally the court's duty to protect the interests of those individuals whose expectation of different treatment has a legitimacy which in fairness out-tops the policy choice which threatens to frustrate it.62 I would respectfully suggest that this is part right, part wrong. It is part right in the sense that just as the availability of the protection of natural justice is a hard-edged decision for the court, so also it is for the court to decide whether a legitimate expectation exists and, if it does, what it requires.63 But, Sedley J. is wrong, I submit, insofar as he holds that the issue whether the Secretary of State may override a legitimate expectation, properly recognised by him as such, is also a hard-edged decision for the court. This is surely contrary to the essence of the decisions in both Wednesbury and Brind, which hold that this kind of issue is for the designated decision-maker. To fail to recognise that, at this stage, the primary judgment is for the Secretary of State, and only the secondary judgment for the court, and to strike down the overall decision on the basis of the Secretary of State's refusal to treat a legitimate expectation acknowledged by him as trumping the policy change in the particular case, is no more than judicial irredentism: it is to advance from a hard-edged decision on the existence and extent of a legitimate expectation (which is proper) to a hard-edged review of the merits of the Secretary of State's overall decision as to whether that legitimate expectation may be overridden (which is improper). The court may only properly intervene where it can hold that the Secretary of State in exercising his primary judgment was unreasonable in a Wednesbury sense in deciding that there was a public interest which should override a recognised legitimate expectation. Only thus can due weight be given to the constitutional imperative of respect for the merits of public decisions.

Jurisdictional error of law

Error of law, the classic ground of review for illegality, is perhaps the most obvious example of hard-edged review, of the court substituting its view for that of the decision-maker. Allegations of error of law are generally concerned with the interpretation of statutory provisions and, whilst very many statutory provisions are susceptible of a range of reasonable interpretations, the tribunal must have selected that particular interpretation which is favoured by the court if it is not to be guilty of an error of law. The collapse of the distinction between jurisdictional and non-jurisdictional errors of law, so that any decision *P.L. 73 affected by any error of law made by an administrative tribunal or inferior court, is open to certiorari has broadened further the scope of hard-edged review.64 Where, for example, a tribunal has the power to confer benefits upon successors in title, as in Anisminic, 65 or upon people who carry out improvements amounting to structural alterations, as in Pearlman, 66 both of which terms do not by any means have a single clear meaning, the court may substitute its own view as to what constitutes a successor in title or a structural improvement, for that

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of the decision-maker. It is crucial to recognise, however, that decision-making powers are conferred by Parliament upon particular tribunals because it is envisaged that they will acquire experience and expertise in specialist matters. An interventionist approach to judicial review for error of law may, in part, undermine the raison d'tre of the system of specialist administrative tribunals, which are intended by Parliament in most cases to replace, and not merely to supplement, the decision-making powers of the court. In the South West Yorkshire Transport case the House of Lords insisted that statutory interpretation is exclusively for the court so that there can be only one right answer to a question of construction--what the court decides.67 The House recognised, however, that certain statutory terms,68 have an inherent vagueness so that even when the court has determined the correct interpretation to be placed upon them, their application in any factual situation still gives rise to a spectrum of permissible outcomes. This falls short of the American doctrine of rational choice under which very many if not all statutory terms have a range of interpretations which may rationally be accorded to them so that it is sufficient for the tribunal to act on an interpretation within the range, although not the interpretation that the court itself would give.69 In English law, however, where the court-determined construction gives rise to a flexible and evaluative criterion, then it is for the decision-maker to apply it to the facts and the courts will not question that application provided it is Wednesbury reasonable. The dividing line between the two approaches in practice is distinct, although narrow. What is clear, however, is that our courts, as courts of construction only, should abstain from assuming any primary judgment over the application of the correct construction to the facts of the case.

The influence of European law

Finally, I turn to the incoming tide of European law which has inevitably had a significant impact on the theory and practice of judicial review.

*P.L. 74 Proportionality
First, the range of potential grounds for judicial review has expanded, most controversially, in the shape of proportionality, the principle that the restrictions imposed by a measure must correspond proportionately to the ends which it seeks to achieve. The fundamental objection to proportionality is that it invites review of the merits of public decisions on the basis of a standard which is considerably lower than that of Wednesbury reasonableness and would involve the court in a process of policy evaluation which goes far beyond its allotted constitutional role. Proportionality requires the court to address questions involving compromises between competing interests which in a democratic society must be resolved by the legislature.70 In the administrative context, they are plainly questions whose decision is entrusted by Parliament to the decision-maker. As Lord Lowry expressed it in Brind : The judges are not, generally speaking, equipped by training or experience, or furnished with the requisite knowledge or advice, to decide the answer to an administrative problem where the scales are evenly balanced, but they have a much better chance of reaching the right answer where the question is put in a Wednesbury form.71 As a general principle of Community law, proportionality is already an integral component of judicial review where the decision or measure under challenge falls within an area covered by EC legislation. It also plays a part in those cases where our courts currently have regard to the principles of the European Convention on Human Rights, and there are isolated instances of the application of proportionality in purely domestic contexts.72 However, the prevailing judicial view is undoubtedly that of the House of Lords in ex parte Brind, 73 which rejected the application of proportionality outside the European context. The refusal of the courts to adopt proportionality into the English law of judicial review is the high water mark of the courts' strict adherence to Wednesbury principles. There is no escape from an acceptance that a proportionality test would lower the Wednesbury threshold of unreasonableness. True it is that under the European Convention, Member States are entitled to a margin of appreciation in assessing whether a restriction of human rights can be justified,74 but Neill L.J. was plainly correct in holding that this margin *P.L. 75 of appreciation [does not] cover so many degrees of latitude as that afforded by the traditional Wednesbury doctrine.75

The spillover effect

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The most significant effect of European influence in constitutional terms, has been the recognition of the European Communities Act as a species of fundamental law, which, unless and until it is repealed pursuant to a political decision to withdraw from the European Union, accords precedence to Community law over all inconsistent provisions of domestic law, past and future. Acts of Parliament may therefore be suspended,76 disapplied,77 or declared to be illegal,78 to the extent that they conflict with the precepts of Community law. Furthermore, following the Francovich case,79 the British courts must now provide a remedy in damages for loss caused by the impact of illegal primary legislation. E.C. law therefore requires our courts to perform a number of tasks which would have been unthinkable even 20 years ago. The effects of these new developments have been felt even outside the field of application of European law. The decision of the House of Lords in M. v. Home Office 80 to uphold the grant of an injunction against the Home Secretary in a matter which had no European element followed directly from Factortame (No. 2) where, following a ruling of the European Court of Justice, the House made a limited exception to the rule that injunctions could not be issued against the Crown. Pepper v. Hart is arguably another example of this spillover effect, reinforcing in domestic matters the purposive method of statutory interpretation which is required when applying legislation in the Community law field.81

Judicial supremacism and judicial self-restraint

It must be recognised, however, that the constitutional developments which have accompanied British membership of the European Union, startling as they may seem, have all been sanctioned by Parliament itself. Parliament enacted the European Communities Act 1972, and so gave effect to E.C. law within the U.K. Recently, however, a number of English judges, notably Lord Woolf, have written extra-judicially that in certain purely domestic circumstances the courts may hold invalid statutes duly passed by Parliament. Lord Woolf has argued that the courts could justifiably refuse to recognise and give effect to legislative action which sought to undermine the rule of law by *P.L. 76 removing or substantially impairing the powers of review of the High Court.82 Laws J. has asserted that: The democratic credentials of an elected government cannot justify its enjoyment of a right to abolish fundamental freedoms The need for higher order law is dictated by the logic of the very notion of a government under law the doctrine of Parliamentary sovereignty cannot be vouched by Parliamentary legislation; a higher-order law confers it and must of necessity limit it.83 He also maintained that sovereignty lies not in Parliament but in the constitution, which consists of a framework of principles, such as democracy and respect for human rights, which are fundamental and cannot be denied, even by Act of Parliament.84 Further, Sedley L.J. has written that the Diceyan doctrine of the sovereignty of Parliament has given way to a bi-polar sovereignty of the Crown in Parliament and the Crown in its courts, to each of which the Crown's ministers are answerable--politically to Parliament, legally to the court.85 Similar views had earlier been expressed in New Zealand by Sir Robin Cooke, the distinguished President of the New Zealand Court of Appeal. In a series of cases and writings, he has advanced the view that the concept of a free democracy requires judicial limitation on legislative power. Some common law rights, he argues, such as the rights to democracy and to an independent judiciary, are so fundamental that even Parliament could not override them.86 All this is a throwback to the language of Coke C.J. in 1610, the later judicial rejection of which I outlined at the outset. Of these suggestions, four things must be said. First, they are contrary to the established laws and constitution of the United Kingdom and have been since 1688. I cite two judicial statements of the highest authority. Lord Wright has held: Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty. If an Act of Parliament is alleged to curtail the liberty of the subject or vest in the executive extraordinary powers of detaining the subject the only question is what is the precise extent of the powers given In the constitution of this country there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.87 *P.L. 77 And Lord Reid has held: It is often said that it would be unconstitutional for the U.K. Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would

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regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid.88 Secondly, many would regard as inconceivable, on the part of any Parliament which we can presently contemplate, any assault upon the basic tenets of democracy which might call for the invocation of the judicial power claimed. I am as conscious as any, however, of the need for eternal vigilance. But, if there ever were such an assault, it would surely be on the political battlefield that the issue would be resolved. I have to wonder whether it is not extrajudicial romanticism to believe that judicial decision could hold back what would, in substance, be a revolution.89 Certainly, if such a tide in our affairs were ever to come, it would be for the judges of that time, and not of today, to decide how they should properly respond. The South African experience does show that the judges may have a role90 ; and I am ready to suppose that the judges of tomorrow might gain some comfort in their endeavours from the extra-judicial writings of distinguished judges of today. Thirdly, the danger with any extra-judicial claim of right to review the validity of any Act of Parliament is that to many it smacks of judicial supremacism. The role and significance of the judiciary in our society will be hugely enhanced if the European Convention on Human Rights is incorporated by Parliament into our law. This is opposed in principle by the Conservative Party. It is supported by the Labour Party and the Liberal Democrats. Incorporation of the European Convention should be a strong candidate for prompt legislation by an incoming government. The traditional objection to incorporation has been that it would confer on unelected judges powers which naturally belong to Parliament. That objection, entertained by many across the political spectrum, can only be strengthened by fears of judicial supremacism. Fourthly, it has to be made plain that those judges who lay claim to a judicial power to negate Parliamentary decisions, contrary to the established law and usages of our country, make an exorbitant claim that could only even be advanced were the courts ever to be presented with parliamentary decisions that were inconsistent with the fundamental tenets of a free democracy and therefore unworthy of judicial respect. The very basis of the claim, however--the superior political legitimacy of decision-making based on democratic processes--tells against greater activism in judicial review today where *P.L. 78 no-one would claim that the decisions for review, made under statutory powers, are other than democratically valid. It has therefore to be acknowledged that this claim serves only to underline the theme of my address this evening, that it is the constitutional imperative of judicial self-restraint which must inform judicial decision-making in public law. This article is based on the 1995 Administrative Law Bar Association lecture delivered on October 16, 1995 in Lincoln's Inn Old Hall. The author would like to thank Jason Coppel for his assistance in the preparation of this lecture. P.L. 1996, Spr, 59-78

1. 2.

See, for example, R. v. Home Secretary, ex parte P and G, The Times, May 19, 1994; R. v. Home Secretary, ex parte Fire Brigades Union [1995] A.C. 513; R. v. Gloucestershire County Council, ex parte Mahfood, The Times, June 21, 1995. See, for example, R. v. Inspectorate of Pollution, ex parte Greenpeace Ltd (No. 2) [1994] 4 All E.R. 329; R. v. Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 W.L.R. 386; C. Harlow and R. Rawlings, Pressure Through Law (1992). Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 K.B. 223, 230 (per Lord Greene M.R.). CREEDNZ Inc. v. Governor General [1981] N.Z.L.R. 172, per Richardson J. at pp. 197-98; R. v. Ministry of Defence, ex parte Smith, The Times, November 6, 1995, per Bingham M.R. Slattery v. Naylor (1888) 13 A.C. 446; Kruse v. Johnson [1898] 2 Q.B. 91. (1610) Co. Rep. 113b. Day v. Savadge (1614) Hob. 85, 97. Pickin v. British Railways Board [1974] A.C. 765, per Lord Reid at p. 782. Lee v. Bude & Torrington Railway (1871) L.R. 6 C.P. 576, 582. R. v. Secretary of State for the Environment, ex parte Nottinghamshire CC [1986] 1 A.C. 240, 265. See O. Hood Phillips, Constitutional and Administrative Law (7th ed., 1987), p. 521. ibid., at p. 50. H. L. A. Hart, The Concept of Law (2nd ed., 1995), p. 108.

3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

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14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

supra, n. 3. ex parte Nottinghamshire CC, supra, n. 10, at p. 249. R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 A.C. 697, per Lord Ackner at p. 757. For the use of this terminology, see R. v. Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 W.L.R. 23, per Lord Mustill at p. 32; M. Fordham, Judicial Review Handbook (1994), pp. 107-115. [1995] 4 All E.R. 427, 441 and 445. [1985] A.C. 374. Is the High Court the Guardian of Fundamental Constitutional Rights? [1993] P.L. 59. ibid., at p. 69. R. v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] A.C. 514, per Lord Bridge at p. 531; ex parte Brind, supra, n. 16. ibid., at pp. 748-749. ibid., at p. 757. R. v. Secretary of State for the Environment, ex parte NALGO [1993] Admin. L.R. 785. [1995] 1 All E.R. 513 (D.C.); [1995] 1 W.L.R. 1037 (C.A.). See Nardell [1995] P.L. 27. A similar approach already affects the law of legitimate expectation. Where an individual has proceeded on the basis that the Secretary of State has undertaken that he will enjoy a benefit if he satisfies certain conditions, it has been held that the Secretary of State should not be entitled to resile from that undertaking without affording interested persons a hearing and then only if the overriding public interest demands it (emphasis supplied): R. v. Home Secretary, ex parte Khan [1984] 1 W.L.R. 1337, per Parker L.J. at p. 1334. supra, n. 18. [1995] 3 All E.R. 37, 62. See ex parte NALGO, supra, n. 25, per Neill L.J. at p. 798. This view is confirmed by Bingham M.R. in ex parte Smith, supra, no. 4. ex parte Nottinghamshire CC, supra, n. 10; R. v. Secretary of State for the Environment, ex parte Hammersmith LBC [1991] 1 A.C. 521. ibid., at p. 247. ibid., at pp. 250-251. supra, n. 31. supra, n. 18. supra, n. 19, at p. 410. Bingham M.R. in ex parte Smith, supra, n. 4, rightly held that the Wednesbury test was sufficiently flexible to cover all situations. See also Simon Brown L.J. dissenting in ex parte Fewings (C.A.), supra, n. 26, at p. 1049. Tesco Stores v. Secretary of State for the Environment [1995] 1 W.L.R. 759. supra, n. 26, at p. 1046. ibid., at p. 1049. Padfield v. Minister of Agriculture [1968] A.C. 997. See, for example, ex parte World Development Movement Ltd, supra, n. 2. ibid. Edwards v. Bairstow [1956] A.C. 14; see also ex parte South West Yorkshire Transport Ltd, supra, n. 17, per Lord Mustill at pp. 32-33. On the Pergau Dam case see also L. Collins [1995] King's College L.J. 20, at p. 22. Ridge v. Baldwin [1964] A.C. 40. R. v. Commission for Racial Equality, ex parte Hillingdon LBC [1982] A.C. 779, 787; see also R. v. Home Secretary, ex parte Doody [1993] A.C. 154, 168. per Megarry V.C. in McInnes v. Onslow-Fane [1978] 1 W.L.R. 1520, 1530. See, for example, Lloyd v. McMahon [1987] A.C. 625, per Lord Bridge at p. 702; R. v. Maze Prison Visitors, ex parte Hone [1988] 1 A.C. 379, per Lord Goff at pp. 391-92; ex parte Doody [1993] 3 W.L.R. 154, per Lord Mustill at p. 168. R. v. Panel on Take-overs and Mergers, ex parte Guinness PLC [1990] 1 Q.B. 146, per Lloyd L.J. at p. 183. Halsburys Laws (4th ed., 1989), Vol. 1(1), para. 84, p. 160, n. 14. See Schmidt v. Home Secretary [1969] 2 Ch. 149 for the inception of the doctrine. R. v. Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association [1972] 2 Q.B. 299; Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629. O'Reilly v. Mackman [1983] 2 A.C. 237; Re Findlay [1985] A.C. 318. [1987] 1 W.L.R. 1482. This was acknowledged by Dyson J. in R. v. The Governors of Haberdashers' Aske's Hatcham College Trust, ex parte Tyrell (unreported, transcript, pp. 20 and 24). [1995] 1 All E.R. 73, 88.

28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57.

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58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

[1994] 1 All E.R. 577, 595-96. supra, n. 27. [1995] 2 All E.R. 714. See Himsworth, p. 46 supra. ibid., at pp. 723-24. ibid., at p. 731. See, for example, per Lord Diplock in the GCHQ case, supra, n. 19, at p. 408. Page v. Hull University Visitor [1993] A.C. 682, per Lord Browne-Wilkinson at p. 701. Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147. Pearlman v. Keepers and Governors of Harrow School [1979] Q.B. 56. supra, n. 17. In that case, substantial part of the United Kingdom in s.64(3) of the Fair Trading Act 1973. See, for example, Chevron USA v. NRDC, 467 U.S. 837 (1984) 84; P. Craig, Administrative Law (3rd ed., 1994), pp. 375-383. per Hoffmann J. in Stoke-on-Trent CC v. B & Q plc [1991] Ch. 48, 69, analysing the proportionality of the Sunday Trading provisions of the Shops Act 1950. But see J. Jowell, Proportionality: neither novel nor dangerous in Jowell and Oliver (eds.) New Directions in Judicial Review (1988). supra, n. 16, at p. 767. See, for example, R. v. Barnsley MBC, ex parte Hook [1976] 1 W.L.R. 1052; R. v. Highbury Corner Justices, ex parte Uchendu, The Times, January 28, 1994. supra, n. 16 c.f. Himsworth p. 46 supra. A similar margin of appreciation for the decision-maker can be detected in the case-law of the Court of Justice: see, for example, R. v. Minister for Agriculture, Fisheries and Food, ex parte FEDESA, Case C-331/88 [1990] E.C.R. I-4023. And see Jones [1995] P.L. 430 on the margin of appreciation under the European Convention on Human Rights. ex parte NALGO, supra, n. 25, at p. 798. R. v. Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 A.C. 603. For example, Marshall v. Southampton and South West Area Health Authority (No. 2) [1994] 2 W.L.R. 292. R. v. Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 A.C. 1. Francovich v. Italy, Case C-6/90 [1991] E.C.R. I-5357. And see Lewis [1993] P.L. 151. [1994] 1 W.L.R. 377. See R. v. Registrar General, ex parte Smith [1991] 2 All E.R. 88, per Staughton L.J. at p. 95 and Le Sueur [1991] P.L. 326; on Pepper v. Hart, see Oliver [1993] P.L. 5; see generally, A. O'Neill, Decisions of the European Court of Justice and their Constitutional Implications (1994), chapter 5. Lord Woolf, Droit Public --English Style [1995] P.L. 57, 67-71. Laws J., Law and Democracy [1995] P.L. 72, 81-93. ibid. Sedley J., Human Rights: a Twenty-First Century Agenda [1995] P.L. 386. See, for example, New Zealand Drivers Association v. New Zealand Road Carriers [1982] 1 N.Z.L.R. 374, 390; Fraser v. State Services Commission [1984] 1 N.Z.L.R. 116, 121; Taylor v. New Zealand Poultry Board [1984] 1 N.Z.L.R. 394, 398; Te Runanga o Wharekauri Rekohu Inc. v. Attorney-General [1993] 2 N.Z.L.R. 301; Fundamentals (1988) N.Z.L.Rev. 158. Liversidge v. Anderson [1942] A.C. 206, 260-61. Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, 723. My views are echoed by Forsyth, Of Fig Leaves and Fairy Tales: The Ultra Vices Doctrine, the sovereignty of Parliament and Judicial Review [1996] C.L.J. (forthcoming). See, for example, Harris v. Minister of the Interior [1952] 2 S.A. 428. 2010 Sweet & Maxwell and its Contributors

71. 72. 73. 74.

75. 76. 77. 78. 79. 80. 81.

82. 83. 84. 85. 86.

87. 88. 89. 90.