The seminal case of Council of Civil Service Unions v. Minister for the Civil Service (GCHQ case) (1985) clearly established the various grounds by which judicial review were to be conducted. Lord Diplock stated, “One can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality”, the second “irrationality” and the third “procedural impropriety.” It is unsurprising that since then, courts have struggled to apply these three heads coherently and often time, at the practical level, the distinction between the classifications have been purely academic and have not been rigidly drawn in the judicial review cases. And on many occasions, there have been considerable overlap between illegality and irrationality/unreasonableness. In fact, some commentators have gone so far as to conclude that there should be only one ground of substantive review, that is to address the issue as to whether or not the decision-maker has acted beyond his power. But, despite this, they remain an essential starting point for all judicial review cases. In the absence of any express procedural requirement contained in the Act and the subsequent regulation, it will be difficult to assess if the Home Office has been guilty of Procedural Impropriety and so we should move on to illegality and irrationality. Starting off with the first head, that is legality, it appears from the facts that a lawful order has been made, given the Defence and Security Act 2003 empowers the Home Secretary to make regulations for the detention of suspected terrorists in his absolute discretion. As Lord Diplock states in the GCHQ case, “By illegality as a ground for review I mean that the decision-maker must understand correctly the law that regulated his decision-making power and must give effect to it.” He goes on to state that judicial intervention will be enforced if illegality exists, “Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.” On the issue of legality, Scroggs does have a strong chance of establishing illegality if he is able to prove to the courts that the Home Secretary, in his deciding to detain him, might have taken irrelevant considerations into account, such as his brother having been convicted of assaulting a politician in Germany. As mentioned earlier, this analysis of legality borders on the other head, that is rationality. Irrationality, being defined by Lord Diplock in the GCHQ case as “a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it.” It was established in Bromley LBC v. Greater London Council (1983) that if a public body takes an irrelevant consideration into account or fails to take note of relevant consideration in making a decision, the decision will be ultra vires. Granted that ministers, having been conferred discretionary powers by Parliament through the enactment of relevant Acts, do possess a “margin of appreciation” within which he may decide whether or not to take into certain considerations in arriving at a particular decision (R v. Sommerset CC Ex p. Fewings (1995)), the appropriate considerations must be taken into account, in which case, Scrogg’s brothers conviction could not amount to one. It has also been established by past judicial review cases, such as Wheeler v. Leicester CC (1985), Padfield v. Minister of Agriculture, Fisheries and Food (1968) and Congreve v. Home Office (1976), that administrators in their exercise of discretion should not do so for an improper purpose but in order for Scroggs to prove this point, he would have to persuade the court to consider the reasons for the Home Office’s suspicion of Scroggs. It would be prudent at this point to make an important distinction. It must be remembered that the function of the courts, with regards to judicial review, is not to consider the merits of the case but rather, to consider the steps by which the public body, for that matter, the Home Office took to arrive at the decision to detain Scroggs. This distinction, albeit artificial and seemingly trivial, is important because unfettered judicial intervention would frustrate the executive and the overreaching governing doctrine of separation of powers. This brings us to Scrogg’s next hurdle. The regulation, in its anticipation of possible judicial intervention and scrutiny, provides that no decision of the minister “may be challenged or questioned in any court of law”, such a decision being “final and conclusive.” Will the courts respect such an ouster clause?
The question of how courts should approach ouster clauses was first settled in Anisminic v. Foreign Compensation Commission (1969), and affirmed subsequently in Cornwall County Council ex p. Huntingdon (1992). It was held by the House of Lords that such a use of a clause could not protect something which purported to be “a determination but which in fact is no determination at all. (Lord Reid)” In other words, a decision made on the basis of an error of law, in its being outside the powers of the relevant body, was to be regarded as a nullity and not a decision. For this reason, it could not preclude judicial examination by a standard ouster clause, like the one Scroggs is confronted with. What would constitute an error of law then? “Any error of law made by an administrative tribunal in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question and the decision…would be a nullity (Lord Diplock).” Scroggs might therefore, be able to show that the Home Office had considered the wrong issues in its arriving at the decision that there was a high chance that he was a likely to be a terrorist and that the best way to avert that would be to detain him. The problem is that given the heightened risk of terrorism today, and in light of the approach taken in A v. Secretary of State for the Home Department (House of Lords) (2005), where it was established that more purely political the question is, the less likely it is to be an appropriate matter for judicial review. Also, as seen in cases such as Pulhofer v. Hillingdon LBC (1986), the reviewing courts have historically been reluctant to interfere in matters which are inherently heavily policy or politically laden. In R. v. Minister of Defence, ex p. Smith (1996), it was mentioned that “only the rarest cases would today be ruled strictly beyond the court’s purview, which is only those cases involving national security where the courts lacked the experience or material to form a judgment on the issues.” In other words, with Scroggs being suspected of being a terrorist and given that there has been expert advice favouring his detention, he might even be faced with the possibility that the courts might consider it inappropriate to exercise their power of judicial review on the general basis that they feel that a judicial resolution might not be appropriate. But ultimately, given judicial review’s contextual and circumstantial nature, it would be a balancing exercise for the courts, to determine whether or not they would be qualified to perform their roles in the particular context.
Another possible head or ground that the courts might consider Scrogg’s detention on is the principle of “proportionality,” which Lord Diplcok in the GCHQ case foresaw further development on a case by case basis. This doctrine of proportionality, s well established part of the jurisprudence of the ECHR, and the ECJ now being an integrated part of English Law, the court might therefore be willing to consider, whether or not Scrogg’s detention is warranted in the face of the Home Office’s suspicions. Granted that it was established in the GCHQ case that the exercise of prerogative power was reviewable, there is no assurance with regards to policy laden issues, that given the obvious infringement of rights, the courts will find in favour of the individual claimant. It is for that reason, that Scroggs will face an uphill battle in persuading the court to even perform judicial review, much less issue a quashing order.
