We are witnessing a reconfiguration in the law of judicial review, intimations of which can be found on the surface of both the cases and the commentary. The language of Wednesbury unreasonableness and ultra vires increasingly gives way to talk about rights, proportionality and deference. This semantic recasting of judicial review reflects deeper mutations that go to the very heart of the discipline. These changes, because they are structural and fundamental, may well in time come to be spoken of in the way that we speak now of those foundational turn-of-the-century casesFootnote 1 that induced Dicey to revoke his hostility to the very idea of administrative law,Footnote 2 or the “fairness revolution”Footnote 3 in judicial review in the 1960s.
The era we are leaving, one still haunted by the ghosts of that former age, and especially the “Holy Trinity” of ‘60s cases, Ridge v. Baldwin,Footnote 4Anisminic,Footnote 5 and Padfield,Footnote 6 had at its core concerns relating to the examination of powers and procedures. The animating belief of that system was, in essence, a formalist one. Through the policing of Parliament's grants of power to subordinate officials (the core of the notion of ultra vires) and the application of judge-made principles of procedural fairness would abuses of public power be curtailed and the rule of law maintained. The individual was, in a sense, fundamental within this structure – for why else operate a complicated system designed to protect against potential governmental overreach if not ultimately in the interest of individuals? But, in another sense, the individual was marginal to the business of the court, providing a trigger for an action but not necessarily the focal point of legal analysis and argument. For the purposes of the judicial inquiry, the individual's good tended to be sublimated within the common good of protecting the political community from abuses of public power – a pattern more suited perhaps to a less individualist age, one more at home with ideas of collectivism.Footnote 7
This conceptual matrix allowed little room for substantive review – that is, for the (more or less direct) examination of the reasonableness of the impugned decision or action. Within this framework, rights specifically and substantive review more generally were not so much outlawed as repressed. The curious and ambivalent nature of the Wednesbury formula – the test governing substantive review until the recent advent of proportionality – exemplifies this predicament. The test – judges should not interfere with a governmental decision unless that decision was “so unreasonable that no reasonable authority could ever have come to it”Footnote 8 – was in a double sense peripheral. Not only did it apply, in its ungainly and circuitous manner, to a subset of marginal (exceptional, “extreme”) instances of governmental misbehaviour – a long-stop category, if you like. To that extent, the test was a self-denying ordinance well suited to the post-war era of judicial austerity which produced it.Footnote 9 But it was also peripheral in the sense of being an outlier to the conceptual system of which it was part. Whereas it was (fairly) easy to make sense of powers and process review under the old framework, substantive review in general and the Wednesbury test more specifically remained the odd one out. Since, whatever the attempts to disguise it, the fundamentally substantive nature of the test – it asks the courts to inquire, after all, into “reasonableness” – jarred with the formalist presuppositions of the general conceptual framework the courts said they were applying.
The marginal nature of Wednesbury may explain some of the complications that surrounded its application. Certainly, the self-denying – indeed almost savagely limitedFootnote 10 – nature of the test and its lack of fit with the conceptual apparatus within which it operated meant that rights and other substantive interests were often corralled within the test at pain of self-contradiction. (“Unreasonable, perhaps; but really so unreasonable … ?”) Alternatively – and more commonly – substantive interests were worked into judgments beneath the surface of concepts, so to speak, typically smuggled in under the capacious and usefully protean blanket of fair procedure.Footnote 11 Perhaps this is what a formalist system of judicial review has to do in order to retain some normative purchase.Footnote 12 But these moves did mean that judicial review, a phenomenon which at the best of times seems to take on an Alice in Wonderland quality, was in its classic English guiseFootnote 13 marked by a particularly pronounced separation between reality and rhetoric, truth and text. Indeed, the more persuasive arguments for increased substantive review picked up on this characteristic of the old order, and held out the prospect that new concepts like proportionality might make the judges more honest in their reasoning.Footnote 14
Rights and substantive review, like Cinderella, have escaped subservient positions to take centre stage. The extent of this transformation is such that it would take a brave theorist today to deny rights some substantial role in contemporary public law. (There is plenty of room to disagree on the precise nature of the role of rights,Footnote 15 however, or about whether the recent influx of rights is ultimately a good thing.Footnote 16) For the era we are now entering is marked by a much more direct and frequent recourse to arguments about rights – especially but not exclusively those of the European Convention on Human Rights (“ECHR”)Footnote 17 – and other substantive considerations. A recent study conducted by the author and a colleague found, for instance, that the incidence of human rights and rights-related cases has increased dramatically since 2000 – these cases now constitute about half the workload of the House of Lords.Footnote 18 The tipping point identified in the study is scarcely surprising. While there had been an increase in rights talk in cases like Bugdaycay,Footnote 19Witham Footnote 20 and Smith,Footnote 21 only the introduction of the HRA facilitated the kind of deep, structural change we have seen since.Footnote 22 The Act, by requiring courts to apply ECHR rights and to pay attention to the jurisprudence of the European Court of Human Rights, squared the circle between the desire for a more upfront application of substantive judicial review and the constitutional need for Parliament to sanction such a development.Footnote 23
But does this mean that the future of judicial review is now tied to the destiny of the HRA? The hypothetical is worth pausing over since, if this were so, it would mean that the developments being touted here as fundamental are in fact fragile and quite possibly transient. If the Act facilitated the restructuring of judicial review, then does it not follow that this restructuring could be undone by the repeal of that Act? Not necessarily. Even if reformation does induce counter-reformation and Parliament reverses its position on the issue of judge-protected rights, this would not necessarily lead to a simple reversion to the status quo ante. For this particular genie is one that would be hard to force back into the bottle. The current domestic trend towards greater judicial protection of rights (and related developments concerning proportionality) runs with the grain of global developments in public law and related fields,Footnote 24 in which human rights seem to find more varied and ever stronger juridical footholds. And it is unlikely that British courts, now they have learned this new language, are going to be easily induced to stop using it. Indeed, to do so now would be to put them in direct conflict with the European Court of Human Rights (“ECtHR”) which declared in the post-HRA case Smith and Grady v. United Kingdom Footnote 25 that the protection of Convention rights afforded by traditional English judicial review – and particularly the Wednesbury test, even in its strongest, “anxious scrutiny” manifestationFootnote 26 – was inadequate.
We can assume, then, that the changes discussed here are with us to stay. Judicial review, at least the contexts where rights are in play, has adopted a different method – and with it, one suspects, a meaningfully different function. The move from Wednesbury to proportionality is totemic, as the judges who instigated it were well aware. In Daly, which made proportionality the test of substantive review where (ECHR) rights are in play, Lord Cooke said that the “view that the standards [of proportionality and Wednesbury] are substantially the same appears to have reached its quietus in [the ECtHR decision in] Smith and Grady”.Footnote 27 Proportionality, Lord Steyn observed in the same case, is a “more precise and more sophisticated” test which allows for a “somewhat greater” intensity of review than its predecessor: in particular, it “may require the reviewing court to assess the balance which the decision maker struck” and “may go further than the traditional grounds of review as it may require attention to be directed to the relative weight to be accorded to interests and considerations”.Footnote 28 Academic commentators, free from the strictures of judge-speak, often go further when extrapolating the difference between old and new. The new method is seen, at least by some, to entail a radical move from older patterns of judicial review. “What rights-centred adjudication has done – and this is revolutionary – is to fundamentally and irrevocably change the methodology, and hence the rules, of the public law game.”Footnote 29
Two features of “new order” judicial review can be highlighted. First, the lack of any built-in limit to the proportionality test – whereas the essence of Wednesbury was its limiting, self-denying aspect (“so unreasonable … ”) proportionality is plastic and can in principle be applied almost infinitely forcefully or infinitely cautiously, producing an area of discretionary judgement that can be massively broad or incredibly narrow – and anything else between. (In fact, it is almost certainly the very flexibility of proportionality that has driven the current academic craze for discussing the notion of judicial “deference”.Footnote 30) Second, whereas the focus of Wednesbury falls on the nature of the impugned decision (“was it so extreme in its defiance of logic or of accepted moral standards … ?”) proportionality aims more directly at protecting the claimant's right(s). With this change in focus comes a change in promise: judicial review in the old order offered (in the context of substantive review) to protect against official behaviour at the outer edges of acceptability; it now holds out the promise of prioritising and protecting rights even against official action which, while arguably reasonable, cannot be justified as proportionate to the right(s) in play. This aspect of the proportionality principle has led some commentators to talk about the creation of a “culture of justification” surrounding new, rights-based judicial review.Footnote 31 But this cannot be quite right – what else was “traditional” judicial review but a mechanism for demanding from government (certain kinds of) justification for (certain kinds of) impugned decisions? Better to say that proportionality review offers the possibility of a different – and potentially deeper – inquiry into the reasons offered by government for its interference with rights and similar interests.
Doubtless, the normative assumptions that underpin proportionality have the capacity to spill over into other areas of judicial review where rights are not necessarily directly in play. Rights also tend to have their own logic and momentum, which lends them an imperialist (opponents would say necrotising) streak. But this is not to say that everything will change. Familiar tests relating to issues of delegation, improper purpose, the relevancy of considerations, reason-giving, bias and so on will remain. (Indeed, they may even keep generating the lion's share of business within the Administrative Court.) Even Wednesbury might survive as a test for unreasonableness outside the context of rights.Footnote 32 It has done so (just) to date, despite calls for its head, although few would be surprised if the House of Lords stepped up to perform what one senior judge referred to as its “burial rites”Footnote 33 (perhaps to replace it, in emulation of a recent move of the Canadian Supreme Court,Footnote 34 with a simpler test of “reasonableness”). Judicial review will continue to resist the urge to recast it purely and simply as an instrument for the protection of individual rights. And the perennial, defining – perhaps even axiomatic – conflicts that beset judicial review in all contexts and places – between “private rights and public advantage”,Footnote 35 technocratic expertise and democratic governance, politics and law – will continue to play out (although they will sound more frequently now in a rights-based register). One driver behind this state of affairs will be pressure from litigants, who will be drawn to the (relatively) powerful remedies that rights-based judicial review currently offers. For rights-based litigation offers both a more direct route to attacking governmental decisions and, for the successful applicant, stronger remedies. As Mike Taggart puts it, why wander through maze of administrative law when you can cruise the motorway of constitutional law?
But while the general outlines of “reformation” judicial review are becoming tolerably clear, significant dimensions remain under-explored. Insufficient attention has been paid, in particular, to the relationship between courts and administrators within the new framework. Two questions concerning that relationship are addressed in this article. First, should courts impose a general duty on public authorities to articulate their decisions in the language of rights and proportionality? And, second, should courts give any weight to public authorities' proportionality and rights-based assessments? These are defining questions: the answers we give to them will help in significant measure to shape the nature of the new order of administrative law. Finding good answers to these questions takes more than windy invocations of lawyer-friendly buzz phrases like “the rule of law”, “the separation of powers” or (a current favourite) “a culture of rights”. A better approach begins by examining doctrinal developments (actual and potential) in terms of their likely impact on public administration. Such an approach is pursued and defended here.
Problem 1: The “Sin” of Omission?
The first problem, which I call the (putative) sin of omission, centres on the question of how the courts should respond when an agency has not consciously approached the taking of the decision under review through a framework of rights. It addresses the question: do public authorities now have to look at all relevant decisions through the prism of the European Convention? The issue was central in the Denbigh High School case. The case concerned the school's uniform requirement for girls. The policy, which was adopted after wide consultation, was designed to satisfy religious requirements. The claimant, Shabina Begum, believed that the shalwar kameeze (trousers and tunic) – which was permitted by the policy – did not comply with the requirements of her religion, and insisted that she should be allowed to wear the jilbab (a full-length dress). The school refused to allow her to attend the school until she complied with the policy; Begum refused to attend unless she was allowed to wear the jilbab. She was subsequently accepted at a different school.
Overturning the first instance judgment,Footnote 36 the Court of Appeal held that Begum's right to religious freedom under Article 9 ECHR had been violated. The School authorities had erred, it said, in failing to consider her case in an appropriately rights-responsive manner. More specifically, they had not applied a full-scale proportionality analysis of the case at hand,Footnote 37 and for that reason the application should succeed. “The School did not approach the matter in this way at all. Nobody who considered the issues on its behalf started from the premise that the claimant had a right which is recognised by English law, and that the onus lay on the School to justify its interference with that right.”Footnote 38 Note that the judgment said nothing about whether as a matter of substance the School's decision to exclude Begum was justified; it relates solely to the decision-making process the School had followed when deciding Begum's situation.Footnote 39 “Nothing in this judgment should be taken as meaning that it would be impossible for the School to justify it stance if it were to reconsider its uniform policy in the light of this judgment.”Footnote 40
The House of Lords allowed the school's appeal, the majority considering that there had been no interference with Begum's Art. 9 rights since the claimant and her family had chosen the school voluntarily and could, without undue difficulty, have gone to another school where she was allowed to wear a jilbab.Footnote 41 The issue of justification under Art. 9(2) was also considered, and the court held that the limitation on Begum's right to manifest her religion was justified. Lord Bingham criticised the procedural approach of the Court of Appeal to this question. The focus of decision-making under the HRA, he said, was not on whether a decision is the product of a defective process, but on whether the applicant's rights have been violated. Proportionality must be judged objectively by the court, and a proceduralist approach would introduce a new formalism into administrative practice.Footnote 42 Lord Hoffmann's criticism was more direct: Article 9 is concerned with substance, not procedure and it confers no right to have a decision made in any particular way. “What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2?” Public authorities – in this instance, headteachers and school governors – “cannot be expected to make such decisions with textbooks on human rights law at their elbows.”Footnote 43
One reason why this issue will continue to arise, despite the House of Lords' ruling in Denbigh, is that there are some occasions when the imposition of an obligation to consider an issue in Convention rights-specific terms is justified. In some contexts it will be entirely appropriate to require a decision-maker to bring its mind to bear directly on rights-related questions. Consider deportation decisions, for instance. Ex p Razgar concerned a challenge to the Home Secretary's decision to certify as manifestly unfounded the applicant's claim that removal from the UK would amount to a breach of Article 8. (Razgar argued that the psychiatric treatment and medication he was receiving for post-traumatic stress disorder and depression would not be replicated were he to be returned to Germany under the terms of the Dublin Convention.) The House of Lords decided, by a majority, that the Home Secretary was not entitled to certify the case in this way. But what is important for our purposes is that all the Law Lords agreed that the Home Secretary had to bring his mind to bear directly on the question of rights – in our terminology, that he had to approach the issue through the “European Convention prism”. Lord Bingham, with whom Lord Steyn and Lord Carswell agreed, said that where removal is resisted in reliance to Article 8 the Secretary of State must consider the same questions that an immigration adjudicator would ask, namely:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved? Footnote 44
Baroness Hale in her dissenting speech agreed with the majority on this point. The Home Secretary, she said, “had to ask himself how an appeal might fare before an adjudicator. He also had to bear in mind that the adjudicator is an integral part of the decision-making process and thus would have to consider the issue of proportionality on the evidence before him.”Footnote 45 The Court of Appeal had earlier taken a similar approach. Dyson L.J. said that it was “clearly correct” to say that the Home Secretary had to address, in the context of immigration control, specific questions relating to the possible violation of ECHR rights: “(a) to what extent (if at all) is the ECHR right engaged by their removal; (b) what is the threshold of seriousness of harm; and (c) what is the appropriate level of risk of that harm occurring. These questions must be addressed by the Secretary of State when he considers whether to certify that an allegation of breach of human rights is manifestly unfounded” under the relevant section of the Immigration and Asylum Act 1999.Footnote 46
Another reason why the “sin of omission” question will continue to arise goes deeper. Some see the emerging pattern differently from the House of Lords in Denbigh. T.R.S. Allan has long regarded public law as a jurisprudence of rights.Footnote 47 Turning his attention to recent doctrinal changes, Allan celebrates the coherence gained as a result of “the gradual disappearance of rigid doctrinal barriers to judicial review” and deplores the new doctrine of judicial deference which threatens, he says, to play in adjudication under the HRA a similar role to that performed by justiciability in a previous era. While he accepts that, in some cases, courts should defer to decision-makers on democratic grounds, “any search for an independent theory or doctrine of deference is almost certainly misguided”.Footnote 48 Murray Hunt's theory of “due deference” is identified as an example of this (misguided) type. Although he doubts the value of “spatial language of areas or margins of discretion”, Hunt argues that a “rich conception of legality and the rule of law” should accord “a role for the democratic branches in the definition and furtherance of fundamental values”.Footnote 49 This position is anathema to Allan, who regards the task of articulating the nature and limits of the (new) constitutional order as pre-eminently a matter for the courts.
Another target of Allan's criticism is Laws L.J.'s (dissenting) judgment in International Transport Roth GmbH. In what amounts to an attempt to create a framework for the calibration of deference, Laws L.J. specified four principles for determining the level of deference owed by a court to a public authority. First, more deference should be shown to an Act of Parliament than to a subordinate measure or executive decision. Second, there is more scope for deference “where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified”. Third, greater deference is owed where the subject-matter is within the constitutional responsibility of the decision-maker, and less when it lies within the constitutional responsibility of the courts. Fourth, the degree of deference also depends on whether the subject-matter lies within the expertise of the decision-maker or the court.Footnote 50 Allan finds this and like approaches objectionable largely because he sees the very notion of deference as “non-justiciability dressed in pastel colours.”Footnote 51 Judicial deference, he says, is either an empty or a pernicious doctrine. It is empty if it “purports to implement a separation of powers between the courts and other branches of government”, since such a separation is secured by “the proper application of legal principles defining he scope of individual rights”. It is pernicious if “it permits the abdication of judicial responsibility in favour of reliance on the good faith or good sense or special expertise of public officials, whose judgments about the implications of rights in specific cases may well be wrong”.Footnote 52 Thus, a judge who allows her own view of a case to be displaced by the contrary view of public officials should be considered to have “forfeit[ed] the neutrality that underpins the legitimacy of constitutional adjudication”.Footnote 53 Considerations not directly related to the right in question – for instance, those that relate to “characteristics of the decision-maker or its procedures” – are classified as “external considerations” inappropriate for judicial consideration:
The only proper question for the court to consider is simply whether or not the decision falls within the sphere of decision-making autonomy that the claimant's right, on its correct interpretation, allows. The relative expertise of the decision-maker and the excellence of its procedures are relevant insofar as they generate convincing arguments – good reasons for curtailing rights grounded in reasonable policies and supported by clear evidence. The court must be persuaded by the reasons, however, rather than impressed by expertise or procedural competence.Footnote 54
Elements of Allan's rights-centred conception of administrative law find support elsewhere.Footnote 55 Jeffrey Jowell also believes we have entered a new constitutional era in which the system of “administrative review” suited to the old order has been replaced by a “higher-order framework”, constituted by the HRA, which “constrains all public institutions” including Parliament and over which the proportionality test reigns.Footnote 56 Like Allan, Jowell argues that ideas of deference must mutate to fit this new constitutional framework. He argues that it is no longer appropriate for courts to defer on grounds of constitutional competence, which relates to the authority of the body to decide the relevant question. Although, unlike Allan, he sees it as generally appropriate for a court to defer on grounds of institutional competence, which refers to the capacity (or relative expertise) of a body to make the relevant decisions.Footnote 57 David Beatty celebrates, with Allan, the fluid and anti-formalist character of “new-style” judicial review. His book The Ultimate Rule of Law is a paean to the proportionality principle, which is identified as the centrepiece of the new constitutional law. Proportionality accounts, he says, for “virtually every case in which courts have responded politically to protect people's general welfare and well being”.Footnote 58 In an argument intended to have general application, he proposes the unencumbered use of the proportionality principle by courts. Prudential arguments calling for courts to defer to the expertise of officials are to be rejected: proportionality is the “only conceptual apparatus judges have, and all that they need, to harmonize the autonomy of each person with the general will of the community”.Footnote 59 Indeed, in his understanding of the subjective nature of rights and his willingness to shut out “external” (non-rights based) elements from judicial consideration, Beatty goes further than Allan. His extreme position culminates in the (ludicrous) claim: “Rather than evaluate the competing interests at stake against some external, objective standard or principle, judges try to assess the affected parties' own understanding of how significant the law being tested is for them.”Footnote 60
How might advocates of this court-centred approach to the new framework of rights respond to the question posed at the start of this section: how should a court respond when an agency has not consciously approached the issue at hand through a European Convention prism? The question is not specifically addressed in their work, but it is plausible to assume that they might favour the imposition of a general duty on public authorities to approach relevant decision-making through a Convention framework. Certainly, this position is consistent with some of the arguments Allan and Beatty make.Footnote 61 If creating a culture of justification is the overriding objective, then requiring public authorities to justify their decisions explicitly in terms of rights and related values might be seen as entirely justified. Only by requiring public authorities to express themselves throughout the decision-making process in rights-based terms can we ensure that a rights-respecting culture develops. Silence on the question of rights denotes a failure to do what a good decision-maker is required to do: consider the implications of its decisions in terms of the rights upon which they may impact. Others commentators, who share the same root assumptions, have already made this case. Tom Hickman, for instance, argues that the Law Lords' rejection of a proceduralist approach to the application of proportionality amounts to the “muzzling” of the HRA. He argues that courts should instead set minimum requirements for decision making in human rights cases that require basic procedural steps to be taken and, where reasons for a decision are appropriate, that show that the decision maker has considered the impact of the decision on the affected person.Footnote 62
This hardline position on rights makes sense only if one accepts two related propositions. First, that administrative law is essentially a vehicle for protecting the rights of individuals from the potential misuse of public power.Footnote 63 Second, that such rights are fundamental aspects of personhood that can only be properly protected by courts.Footnote 64 But these propositions only work if administrative law is understood to operate as though it were a kind of hermetically sealed juridical order, removed from the concerns and realities of government. The approach is flawed because it is blind (or insensitive) to institutional contextFootnote 65 and, were it applied consistently to the “sin of omission” question, would make a mockery of rights-based judicial review. By requiring (as the Court of Appeal did in Denbigh) that decisions should be struck down on the basis of purely procedural flaws – any mistaken application by administrators of the lawyers' test of proportionality – this approach would at best induce a box-ticking mentality among decision-makers and at worst the ossification of public administration. This is why the Law Lords rejected it. They realized that a requirement that all relevant decisions be made through the European Convention prism might reproduce the state of administrative paralysis that Roscoe Pound said resulted from the overly dogmatic approach of common law courts in the 19th century.Footnote 66 Somewhat paradoxically given the hardliners' opposition towards legal dogmatism, this approach entails a deeply unattractive jurisprudence that is both highly intrusive and highly formalist. It produces the perverse outcome of wins for rights-claiming applicants even where the rights-based arguments they adduce are, as a matter of substance, transparently weak.Footnote 67
Imposing a general duty on public authorities to couch decisions in Convention-friendly terms would have the effect of establishing rights and proportionality as the lingua franca of public administration. But this proposal is to be avoided. Public authorities work within a variety of structures and frameworks, and through a broad range of discourses.Footnote 68 These multifarious patterns, as Richard Stewart observes, result no doubt from “our tendency to hedge our bets in matters of governance”.Footnote 69 Judicial review must respond to – and match up with – a polyglot patchwork of institutions and players, and a multiplicity of contexts and structures. But those who would impose a general duty to make decisions through the European Convention prism call, in effect, for the imposition of a uniform pattern on this complex structure, a pattern in which legalistic human rights reasoning would become a primary benchmark. To enter this brave new worldFootnote 70 would be to displace other generally more pressing and quite legitimate concerns: efficiency, policy delivery, risk assessment, innovation, redistributive justice, fairness to all, and the like. This outcome might suit those who share the über-liberal dream of realising “in Kantian terms, a republican ideal” of government under the moral law.Footnote 71 (It may also hold some basic appeal to lawyers brought up to prize order and coherence.) But the aim of reducing the polyphony of contemporary public administration to a monodic plainchant set by the judges is misguided. Omitting to think and speak in the language of Convention rights should not necessarily be regarded as a sin. To emphasize procedure at the expense of substance is to mistake the nature of Convention rights.Footnote 72 It also ignores the complexities of modern administration.
What is needed is a more ecumenical approach, one less committed to a model of public policy and administration in which people (and especially judges) act like moral philosophers, and more cognisant of the role that administrative context plays in judicial review, rights-based or otherwise. One such model is provided by Jerry Mashaw, who presents what he calls a prudential approach to the issue of statutory interpretation in the context of American administrative law. Recognizing the (frequently ignored) fact that administrative lawyers inhabit “a legal world where agencies are of necessity the primary official interpreters” of statutes,Footnote 73 he rejects the view of the world of administration as a kind of normative desert. We should work to uncover, Mashaw says, something that he calls “civil servants' values”. Statutory interpretation by agencies should be conceived as a legal practice in its own right, with its own customs and normative constraints. This practice perforce operates in that “awkward space” between facts and norms;Footnote 74 and, within this practice, the interpretation of statutes by agencies is best understood as part of agency policy development. “Administration is not just a question of exercising authoritative jurisdiction within a hierarchical system of political and legal accountability.”Footnote 75 One consequence of this perspective is to shift understandings of what “law” means in this context. Law in the modern administrative state, Mashaw says, is “fundamentally about empowering and instructing administrative officials, not about prescribing rules of conduct”.Footnote 76 The agency is to be seen as the primary “guardian or custodian of the legislative scheme”. This is entirely appropriate, he continues, since agencies “have a direct relationship with Congress that gives them insights into legislative purposes and meaning that are likely to be much more sure-footed than those available to courts in episodic litigation”.Footnote 77
The prudential approach offers a model of the relationship between court and administration that recognizes the fundamentally ancillary or “de-centred” nature of judicial reviewFootnote 78 and is, as such, useful for our purposes. The reality of interpreting and applying law within the administrative context is that it is public authorities themselves who are the principal actors. Judicial review can only ever be “sporadic and peripheral” to a greater or lesser degree, as countless empirical studies past, present and (no doubt) future attest.Footnote 79 Instead of concluding from this that judicial review is therefore somehow otiose or illegitimate – the response of John Griffith perhaps,Footnote 80 or of critical legal scholars like Alan HutchinsonFootnote 81 – the prudential approach sets out a framework in which we can make sense of this peripheral status. Far from diminishing judicial review, the prudential approach allows us to make sense of its particular strengths. Courts have a distinctive legitimacy when it comes to dealing with not only rights but also such issues as relevance, proper purpose, rationality and procedural fairness. By policing such matters when they arise in litigation, courts may help to produce an administrative environment in which it is easier to ensure that public bodies act lawfully and, incidentally, better respect rights and other cognate interests.
The sensitivity to primary actors (agencies/public authorities) that characterises the prudential approach gives rise to the idea that it is part of the court's task in the administrative law context to establish a system of incentives for responsible administrative behaviour (by providing disincentives for “bad”). It does not assume, as some might, that public authorities operate in a kind of normative vacuum. (Nor, for that matter, a legal vacuum, since the prudential model recognizes that interpreting law is an integral part of policy making within bureaucracies.) It suggests that the courts have an important role in reinforcing and upholding the responsibilities that public authorities have for the interpretation and application of law. Certainly, the process of statutory interpretation by public authorities is in the worst instances open to manipulation and abuse, and these should rightly be corrected by courts. And, although the prudential model does not speak directly about judicial review where rights are at stake, there is no reason why it should not have application in that context. Indeed, if its basic elements and operating assumptions are correct then how can it be otherwise? If it is true that public authorities have primary responsibility for interpreting law, then there is no reason that the law relating to human rights should fall outside this purview. If it is true that the central task of the court in the normal instance is to reinforce and police this responsibility, then why should it be fundamentally different where rights are concerned? Rights change everything, then, but in another sense they change nothing.
Problem 2: The “Sin” of Commission?
The second question is, in a sense, the opposite of the first. It asks how courts should respond when a public authority consciously and explicitly comes to a conclusion about rights and proportionality. When a public authority has examined and reached a decision at least partly through a consideration of its impact on rights, the reviewing court is faced with a choice: either it can ignore the authority's own assessment of rights and proportionality, or it can give some – at least provisional – weight to that assessment.
This issue – which I will call the (putative) sin of commission – has also received attention in the cases. Much of the discussion to date has been conducted in the language of deference.Footnote 82 The most elaborate analysis of this sort was Laws L.J.'s painstaking attempt in International Transport Roth to delineate general principles of deference, referred to in the previous section.Footnote 83 The House of Lords has generally been more reticent. Lord Hoffmann, while noting the “current popularity of the word ‘deference’ to describe the relationship between courts and other political bodies”, did not think that “its overtones of servility, or perhaps gracious concession, are appropriate to describe what is happening”.Footnote 84 These comments are echoed in the Report of the House of Lords in Huang v. Secretary of State for the Home Department, where the weighing of various factors was said to be not “aptly described as deference” but rather the “performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice”.Footnote 85
But remarks of this sort only scratch the surface of the “sin of commission” question, since they relate more to questions of semantics than substance. (The position adopted by the House of Lords to the relevant authorities in its decisions in Rehman or Gillan, for instance, can only plausibly be described by the word “deference” or a close synonym.Footnote 86) The issue was explored in Belfast City Council v. Miss Behavin' Limited, which involved a challenge to the Council's decision to prevent the claimants from opening a sex shop in an area of Belfast. The argument that the decision violated the claimants' Article 10 right to free expression was swiftly rejected.Footnote 87 The House was divided, however, on the separate question of what weight should be accorded to the views of public authorities involved in making decisions which are alleged to infringe Convention rights. On one side, Lord Hoffmann sought to extend the scope of the post-Denbigh orthodoxy:
A construction of the Human Rights Act which requires ordinary citizens in local government to produce such formulaic incantations would make it ridiculous. Either the refusal infringed the respondent's Convention rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the decision lawful. If it did not, it would not matter if the councillors had never heard of article 10 or the First Protocol.Footnote 88
Other members of the court adopted a different approach. Baroness Hale said that the court is “bound to acknowledge” that the local authority is better placed to decide whether the right (in this case) to sell pornography should be restricted. But the respect that was due the authority depended on the way it had approached that question:
The views of the local authority are bound to carry less weight where the local authority has made no attempt to address that question. Had the Belfast City Council expressly set itself the task of balancing the rights of individuals to sell and buy pornographic literature and images against the interests of the wider community, a court would find it hard to upset the balance which the local authority had struck.Footnote 89
Lord Neuberger agreed with Baroness Hale. When reaching a licensing decision of this sort, a local authority “would be well advised”, he said, to take the right to freedom of expression into account. While such an assessment “cannot be conclusive”, “it seems to me consistent with what Lord Bingham and Lord Hoffmann said in Denbigh … that where a council has properly considered the issue in relation to a particular application, the court is inherently less likely to conclude that the decision ultimately infringes the applicant's rights.”Footnote 90
We are presented, then, with a choice. One approach – represented by Lord Hoffmann in Miss Behavin' – regards the assessment by a public authority of rights and proportionality with complete indifference, since the decision as to whether a Convention right is infringed is exclusively a matter for the court. The other – articulated most clearly by Baroness Hale in the same case – argues that the general approach of the court should be to show some measure of regard or respect for the way in which an authority handled rights-based concerns.
Lord Hoffmann's approach does have a certain appeal. It starts from the observation that, for the HRA to have real legal purchase, it must be up to the courts to make authoritative determinations as to what Convention rights require. (Save perhaps (a) in relation to declarations of incompatibility under s.4 of the Act, where it is clear that, formally speaking at least, Parliament (or the government?) has the final say and (b) subject to what the ECtHR might have to say about such determinations.) This point is surely correct – the HRA aims after all (and inter alia Footnote 91) to increase judicial protection of ECHR rights. It follows that no assessment of what Convention rights require of a public authority by the authority itself can be determinative. (This, one might say, is the closest the HRA gets to having its own “Marbury v. Madison moment”.Footnote 92) This being so, Lord Hoffmann continues, it must be for the courts to decide in all cases what Convention rights require and so any determination by a public authority of the rights issues at stake is strictly speaking irrelevant to the judicial construction of the ECHR or the HRA.
It is the last stage of the argument which is, I think, overstated. To see why, we need to return to Baroness Hale's approach to find out what it was seeking to achieve. This approach, which seeks to allow some accommodation of public authorities' determination of rights in judicial calculations, incorporates something akin to the Chevron “due deference” doctrine that operates in American administrative law.Footnote 93Chevron gave an authoritative answer to the question: should courts decide questions of statutory interpretation on their own, or should they give some weight to the views of the relevant agency? The case established a two-step inquiry.Footnote 94 Under step one, the question is whether Congress has “directly decided the precise question at issue”, or whether Congress has unambiguously banned what the agency proposes to do. Under step two, courts ask whether the agency's interpretation of the statute is reasonable. The result, according to a leading commentator, “is that under Chevron, agency interpretations of law should be upheld if they are reasonable and if they do not contradict the clear instructions of Congress. The court is not authorized to reject the agency's interpretation merely because the court disagrees, all things considered, about how the statute should be interpreted.”Footnote 95
Similar doctrines apply, in one form or another,Footnote 96 in many (perhaps most) jurisdictions.Footnote 97 The decision to focus here on Chevron is due partly to the doctrine's familiarity and also because it has been the subject of considerable academic discussion.Footnote 98 The analogy is not intended to be exact – Chevron applies to the interpretation of federal statutes by agencies, whereas our focus is the application of ECHR rights by public authorities. But it is instructive for our purposes. The Chevron approach is based on the proposition that agencies are typically in a better position than are courts to assess the relevant considerations. The doctrine responds, then, to the complexity of administrative decision-making and recognises that statutory interpretation is part of the policy-making task. It operates (or is meant to operateFootnote 99) as a remedy for the “institutional blindness”Footnote 100 that can otherwise beset judicial review to the detriment of public administration. Significantly, it also reinforces what might be called the existing chain of responsibility from Congress to agency (and back). As Mashaw observes, Chevron recognizes (and emphasizes) the “convergence of interpretation and policy making that both counsels judicial caution and establishes administrative responsibility”.Footnote 101
Is there an argument that judges should apply something like a Chevron test in the application of ECHR rights? Some would certainly think not. They would say that Baroness Hale's approach would neuter the rights-based structure of “reformation” judicial review, since it would amount, in Allan's memorable phrase, to a doctrine of “non-justiciability dressed in pastel colours”.Footnote 102 It would allow the court to renege on its duty to delineate the contours of the new administrative law. But before deciding to cast one's lot with Hoffmann and the hardliners, consider that the point of Chevron is not only to counsel judicial caution when dealing with agency interpretations of statutes. It is also designed to establish agency responsibility for such determinations. In the English context, if we assume that the courts settle the previous (“sin of omission”) question by deciding not to impose a general duty on authorities to take decisions through the Convention prism – a reasonable assumption given the state of the authorities – then the non-deferential “Hoffmann approach” in fact breaks this chain of responsibility. If an authority's own assessment of rights has no bearing in a case of judicial review, then the authority is equally damned whether it approaches a decision in rights-related terms or whether it does not. It certainly would have no court-mandated incentive to think and act openly in a manner compatible with rights. If the underlying goal is to encourage an administrative culture that respects rights, then this approach may ultimately prove counterproductive.
The alternative solution allows courts to attach presumptive weight to an authority's calculations about rights and rejects the top-down, court-centred approach of Lord Hoffmann and the hardliners. It accepts that when making a proportionality assessment a complete absence of any consideration by the authority of whether it went too far in relation to the right(s) at stake makes it harder to argue that the impugned decision was proportionate. But it insists that the converse should also be true. Where the authority can show that it approached the question cognisant of the rights at stake and sought to balance those rights against legitimate public interests, then the court should be slower to rule that the authority acted outside its discretionary area of judgement. (Note that this approach does not by any means preclude a hardening of the standard of review in suitable cases – say, in reviewing the application of counter-terrorism laws.Footnote 103 There will be instances – no doubt many – when the authority's own assessment of the rights interests at stake will be judged inadequate by the court. As Martin Shapiro points out, courts often run two seemingly conflicting lines of authority, one asserting that the court has the final say on what law means and the other deferring to agency interpretation.Footnote 104) The approach being defended here does not require authorities to work with “textbooks on human rights law at their elbows”.Footnote 105 Nor does it insist that all public authorities must learn to parrot the language of human rights law. But it does try to give credit where an authority has thought seriously about the important interests at stake – and tries not to be too dogmatic about whether such consideration deploys the language of ECHR rights and proportionality directly, or whether it does so in more general, less lawyerly terms.
Arguments in favour of this approach have tended to take the form of an appeal to administrative complexity. Jowell argues, as we have seen, in favour of giving deference where questions of what he calls “institutional competence” arise: that is, where the public authority, for reasons of capacity or expertise, is better placed than the court to consider the issues at stake.Footnote 106 But perhaps the best argument in its favour is more pragmatic and relates to the objectives of the HRA. For Baroness Hale's approach gives authorities a direct incentive to think in terms of human rights, since decisions are less likely to be struck down by a court if they are articulated in these terms. Not only would this create a space in which an agency could assume responsibility for the initial translation of rights discourse into the specific administrative context in which the agency operates. It would also take an agency's assessment of rights and proportionality seriously, thereby opening up the possibility of some sort of exchange on human rights matters between courts and administrators,Footnote 107 an unlikely prospect if the top-down model is preferred. The alternative approach should be favoured, then, because it represents the best route towards inculcating a plausible rights-respecting culture within the structures and pathways of administration. While some might mourn the loss of juridical control that is inherent to this solution, the watering down of legal control should be seen as the price to be paid for securing an administrative culture of rights-conscious justification.
Conclusion
The terrain of administrative law has often been fought over by those who would see the subject as virtually synonymous with judicial review of administrative action and those who would understand it more broadly as the law relating to the administration. One group tends to spotlight administrative decision-making by judges, particularly their supervisory jurisdiction. The other observes that much of administrative law is developed and enforced within the administration itself and forms a complex system in which the court play an important but marginal role. The first group tends to emphasize individual rights. The second puts equal weight on public needs (and public wrongs).Footnote 108 While the embrace of rights by English courts since the HRA might be taken by some as a sign of the victory of the first view over the second, it is in fact nothing of the sort. What it does mean is that the old disputes need to be recast, rethought and played out in a different register.
In his work on speculative ontology, Alain Badiou suggests that his subject pivots between the poles of Unity and Totality. “It has been so from the very beginning of metaphysics, since it is possible to show that Plato essentially has the One prevail over the All, whilst Aristotle made the opposite choice.”Footnote 109 Perhaps a similar opposition prevails in the discipline of administrative law. One side – the “Platonists” – sees the new order of public law as the primary site of the progression towards the fulfilment of the Idea of the Rule of Law. In this vision, the “one Law” is essentially the law of rights and is understood as being fundamentally and necessarily the province of the courts.Footnote 110 This is the vision of Unity. By contrast, the “Aristotelians” tend to be more empirical than Idealist, their goal being to capture and make sense of the totality of the social world of which administrative law forms a part. This perspective inclines them to see the court as but one institution amongst many – albeit one with particular powers and authority – and rights as one normative priority – albeit an important and distinctive one – amongst many. This is the vision of Totality. No doubt this is a harder vision to capture and express, since it requires the commentator to work through a complicated and shifting relationship between courts and the world of administration in which the courts (and even law) cannot always be primary.
This article offers an argument which, while recognising that judicial review is changing quite profoundly, denies that these changes amount to the introduction of a straightforward hierarchical relationship in which courts control the administration in the name of protecting the Law that relates to rights. It rejects Unity, then, in the name of Totality, offering instead a conception of judicial review in which rights and proportionality play important roles but which also recognizes the ancillary or de-centred nature of that system.Footnote 111 It suggests that, inasmuch as the “framers” of the HRA intended the Act to create some sort of “culture of rights” among public authorities,Footnote 112 this objective cannot be realised through a model which calls for an austere construction of rights denuded, as it were, of the administrative and normative context in which they play out – a model which enjoins judges to regard issues and interests exterior to rights as “exterior” and therefore irrelevant. Such a rigid approach may indeed sometimes be required, particularly where Convention rights that allow for no qualification are in play. But these instances will be relatively rare. More often than not, judicial calculations about rights will also involve a consideration of administrative context and behaviour. And this process entails, or so I have suggested, the establishment of a structure in which the responsibilities that public authorities have in relation to rights are reinforced by the courts. This does not necessarily amount to a counsel of caution. It is perfectly consistent with the vigorously enforcing of Convention rights by courts in appropriate cases.
More specifically, the article has examined two questions, the answers to which will help determine the shape of the emerging system of judicial review. The first question asks whether a public authority's silence on the question of rights at the decision-making stage should itself count as a breach of the HRA-imposed duty not to infringe Convention rights. Some might be tempted to answer this question in the affirmative – certainly that was the approach of the Court of Appeal in Denbigh. Such an approach might find support in the theories presented by writers such as Allan and Beatty, who advocate a conception of constitutional politics in which the court is the central agent within a culture of rights-based justification. A public authority's silence on the question of rights might, from this perspective, be regarded as a failure to do what a good decision-maker is now required to do: namely, to articulate its decisions through a framework of Convention rights. I have argued that the House of Lords were right to reject this approach in Denbigh. Not only would the other approach lead to a formalist and proceduralist jurisprudence, it also fails to pay sufficient regard to the diversity of contemporary governance structures.
The second question asks whether the court should give provisional weight to an authority's own assessment of the rights issues at stake. This question divided the House of Lords in Miss Behavin'. Lord Hoffmann argued that no weight should be given to an authority's “incantations” of human rights: “no display of human rights learning” on the authority's part can make no difference to whether or not its decision infringed the Convention. By contrast, Baroness Hale and Lord Neuberger thought that where an authority has considered the human rights implications of its decision, then the court is “inherently less likely to conclude that the decision ultimately infringes” Convention rights. The line charted by Lord Hoffmann is more likely to find favour with hardline advocates of rights-based public law. Allan, for instance, argues that deference is tantamount to reneging on the judicial task of articulating the nature and limits of the new constitutional order. Non-rights related considerations are, for him, not properly matters for the court. This court-centred approach to creating a rights-based culture is ultimately self-defeating since, were it consistently applied, there would be no (legal) incentive for public authorities to examine decisions through a “European Convention prism”. Baroness Hale's approach is preferable precisely because it provides such an incentive. Her solution also allows greater scope for public authorities to internalise human rights discourse within their own structures, and opens up the possibility of productive dialogue between courts and administrators on human rights matters.
Underneath these responses lie not only two different visions of rights in administrative law, but also two different visions of the role of rights in contemporary structures of governance. Both recognise that the discipline is undergoing profound change – the “normative turn” identified by Dyzenhaus.Footnote 113 But the hardliners present a vision of administrative law that has been effectively assimilated by human rights, while the other approach articulates a conception of administrative law that seeks to accommodate rights and the doctrines that relate to them within a wider conception of administrative justice. These different perspectives generate different understandings of the basic elements of the new order. While some hardliners might re-imagine due process requirements as centring on the duty to articulate one's decisions in rights-based terms, the alternative approach rejects such a course, arguing that the judicial assessment of procedural requirements remains inescapably contextual, and may or may not involve rights. And while hardliners tend to stigmatise considerations other than rights as external to judicial decision-making, the alternative approach insists that (even in cases involving rights) the immediate political and administrative context surrounding impugned decisions remains vital for judicial consideration.Footnote 114 More significantly, these two models also tell different stories about the process of juridification that necessarily accompanies the introduction of legally enforceable human rights.Footnote 115 For the hardliners, the court stands at the heart of a system of rights-based constitutional politics and any public authority can in principle be called before the court to give an account of its decision-making in terms relating to the rule of law, understood in its “thick” or value-laden sense. From this hub, principles of legality and equality are expected to radiate outwards (or downwards) across the range of public administration. Objecting to a court-dominated model that would turn the age of rights into an “era of scholasticism”Footnote 116 in which public administrators are obliged to work their way through a legalistic maze, advocates of the other approach tend to be more empirical in outlook and ecumenical in attitude. They suggest, that is to say, that the starting point for courts in their contribution to the development of the “new” administrative law should be an awareness both of the difficulty of trying to situate rights within the multiplicity of existing governance structures and of the desirability of taking seriously a public authority's attempt to work out for itself what rights mean.
