I bear more grudges than lonely High Court Judges.

During an Administrative Law essay in my second year, I got a little bored, as occasionally happened during a law degree. I started to place Morrissey and The Smiths references in just to liven myself up a bit: reworking their titles in, incorporationg something I love with something I enjoy. To my surprise my supervisor actually placed his own reference into his marking: both the best and most nerdy thing that has ever happened to me.  

“…. it is clear that the court’s approach to an issue of proportionality under the [European] Convention [on Human Rights and Fundamental Freedoms] must go beyond that traditionally adopted to judicial review in a domestic setting…. There is a place in hell for me and my friends, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test …. The national front disco must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time …. The first of the gang to die must be judged objectively….” (MORRISSEY in R (SB) v. Governors of Southpaw Grammar School [2006])

Discuss. Is “a shift to a merits review” avoided in all cases?

The avoidance of merits review, breaching the review-appeal divide religiously observed by English courts, was generally successful throughout the predominance of the Wednesbury reasonableness test before the advent of the Human Rights Act and the proliferation of the proportionality test.  Since when, it has become evident that the latter has provided a more forensic and discriminating examination of discretion.  Certain commentators (notably Irvine) have questioned exactly how consistently this method can adjudicate decisions without recourse to merits review, weighing the relevant factors of the decision and denouncing the conclusion of the administrative body.  The doctrine of deference helps to keep the courts at bay (to the dismay of Allan among others), but there is lively debate as to whether we should be in favour of such judicial restraint.  We might Ask ourselves whether a system which requires the courts to inspect the weight placed on various factors can ever really be anything other than a form of merits review.

Certainly the pre-Human Rights Act proportionality test left anything which could seriously be called merits review beyond the courts’ reach.  In Brind the Lord Bridge adopted a balancing exercise of sorts between fundamental rights and the broader public interest, as a more rigorous form of review than mere Wednesbury unreasonableness; Lord Lowry rejected the notion of a full-blown proportionality test in no uncertain terms, decrying it as unconstitutional and undemocratic, outside the competence of the court and liable to increase applications for appeals from the government’s business.  In the prisoner confidentiality case, Simms, Lord Steyn executed a proportionality test which weighed the rights and interests in light of the purpose of the statutory scheme, before the enactment of the HRA.  But these exercises of necessity and proportionality were in pursuit of common law rights, and their scope was much narrower than what the HRA of Tomorrow would bring.

Examples demonstrating the methodological and substantive rigorousness of the proportionality test include the Belmarsh case.  The Lords in that case were willing to challenge the secretary of state despite claims of national emergency – a claim traditionally anathema to review – where it was evident that the discrimination of foreign nationals was unnecessary.  The court is required to collate the rights and interests at stake, ask whether the decision of the executive was necessary to meet the objectives of the particular scheme, and balance the interests to ensure that the decision does not involve a disproportionate infringement of the rights.

As Lord Bingham noted in Daly, the courts will often reach similar decisions via the proportionality test as they would under Wednesbury, essentially with individual rights considerations balanced against public interests and the doctrine of deference (see below).  What difference does it make? Lord Steyn did raise the matter that, by going further than recognising the relevant factors by actually assessing the weight placed upon each one, the courts were exceeding the traditional intensity of review afforded by Wednesbury.  The risk of the courts performing an innately executive task, calibrating the pros and cons before making a decision of their own on the merits of the case, is much greater when the nature of the test necessitates an evaluative inspection of the relevant considerations.

The doctrine of deference has been a powerful (and controversial) factor in the courts’ willingness to extend review to administrative decisions, and the intensity of such review, which acts as a limitation on the possibility of outright merits review.  Kavanagh sums up the dichotomy in terms of the courts’ two primary obligations within a constitutional framework: while the courts must be willing to undertake review, which to be effective must include some substantive review of the decision, they must also appreciate the institutional competence of the executive in light of the powers conferred onto it by Parliament.   Where the subject matter demands technical expertise or is particularly policy-based, the courts are not best placed to adjudicate upon the appropriate weight given to different concerns.   Deference does have its disadvantages, as Allan notes: that courts will compromise their reasoning and their ability to set aside illegitimately disproportionate decisions, and that the courts lose their impartiality in favour of the government.  Perhaps the courts should not be so Wide to receive these arguments simply from the nature of their source.  Is it really so strange to place greater faith in governmental discretion, though?  Kavanagh disputes the grounding of these fears, arguing that there is a legitimate difference between deference and non-justiciability, and that the courts are still exercising and important, impartial arbitration function which must be considered in the light of the respective roles of the courts and the executive.  There are good reasons why the courts should give greater respect to official decisions within certain areas heavily influenced by policy or concerning matters which have broad consequences, where the courts are not in The Loop, in terms of the democratic imperative and the accountability of the executive; so we should not Panic when the courts decide to defer.  In any case, the courts have less opportunity to usurp the government when they acquiesce.

The limits of the doctrine are at times unclear.  The specific areas of its application are changeable.   It was demonstrated in the Belmarsh case that Hart’s “spatial” theory of deference is not universally applied: despite the ace card of national security being a central argument of the government, the balancing exercise nevertheless concluded with a declaration of incompatibility.  There is also a certain variability in the extent of its application.  In Huang, Bingham claimed to be rejecting the language of deference and the association with obsequiousness, but the substance of deference remains.  The court was still willing to place greater weight on the decision maker’s argument, or demand less strenuous justification for it.

There are instances where the court is unwilling to give the executive the benefit of the doubt, and so risk a resort to taking their own merits review regardless the previous decision, as where the decision-maker fails to exercise his or her expertise.  The ratio in Miss Behavin’, was that the likelihood of thorough review increases in cases where the decision maker has failed to consider the ramifications of their decision in pursuit of a balancing of interests.  This appears logical: the entire purpose of deference is undermined where the better-placed analyser does not analyse.  We see in Quila that the courts are willing to apply this rule when the government “uses a sledgehammer to crack a nut” without addressing the balance to be set, here, by applying an immigration restriction to prevent forced marriages while at no stage assessed the extent to which this could Break up the family dynamic of certain immigrants, and the effect this would have on Disappointed, legitimate couples.  The balance wasn’t merely Maladjusted, it was non-existent.  But Lord Brown’s dissent raised some interesting questions: the court, being unsatisfied that the measure was necessary, did not consider the idea that if the government were to have considered these factors thoroughly, the balance was very much for them to strike, whether the pros and cons met the aims of the overall policy.

Laws LJ in Mahmood summarised the conflict well: judges must stay loyal both to convention rights and the legitimate claims of democratic power; the proportionality test does not authorise them to stand in the shoes of parliament’s delegates, and there must be a principled distance between court’s adjudication and administrator’s decision-making on merits.  But despite Years of refusal to officially make that leap, there will always be an element of merits review as long as the courts are obliged to assess the weight to the relevant factors, beyond their inclusion in the decision-making process alone.

Comments: A good, clear answer that shows that you have understood and thought about the issues. The main weaknesses (highlighted in more detail in my comments above) were, first, that your argument wasn’t as developed as it could have been at some points, and second, that you could usefully have said more about the different forms of deference and their (potential) Operation at the different stages of the proportionality test.

I got a low First and a recommendation for the live album Rank. 

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