The Proportionality test inevitably takes judges in to the review in to realms of merits review in proceedings under the Human Rights Act 1999. Discuss
The 'Proportionality' test inevitably takes judges in to the review in to realms of 'merits review' in proceedings under the Human Rights Act 1999. Discuss
Although the courts considered issues of Human Rights under the European Convention of Human rights it wasn't until its incorporation under the Human Rights Act 1998 that it fully became effective. As a result courts were given new powers especially under sections 3 and 4 which considered issues of compatibility. In terms of Judicial review a whole new spectrum came into play in regards to the intensity of review permitted under the test of proportionality. It is this test which I will be discussing as its acceptance into English law has resulted in the question what is the role of judges under this principle and how far can they go in assessing decisions before overstepping their boundaries and entering into the 'realms of merits review.'
Prior to the HRA
Before entering into a discussion about the test itself it is useful to look at the background to judicial review prior to enactment of the Human Rights Act. The traditional test adopted was stated in a case of Associated Pictures v Wednesbury Corpn 1 where it was held that in order to submit that a decision made by an administrative body was unlawful 'it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to.'2 However in cases involving issues of human rights violations a heightened test was taken with its application being demonstrated in the case of R v Ministry of Defence ex parte Smith3 which concerned a policy created by the Ministry of Defence banning homosexuals from being a member of the armed forces. The applicant contended that this amounted to a breach of their right to private life under article 8 of the European Convention. It was held that when assessing the reasonableness of a decision in the context of human rights 'the more substantial the interference with human rights, the more the court will be required by way of justification before it is satisfied that the decision was reasonable.' 4The courts in upholding the policy stated that they could not in their current position ask the question of whether the policy was proportionate in responding to the public needs. They also remarked that in doing so there would be a shift in the constitutional balance as regards to the roles of the courts and the legislature.5 This case seems to assume that prior to the act judges took the view that in applying the proportionality test, the courts would have to assess the policy itself, which would perhaps result in them moving beyond their supervisory role, suggesting that the proportionality test does lead to merits review.
A more explicit consideration of this issue can be observed in Brind,6the leading case on proportionality before the enactment of the HRA. The facts of this case were that the Home Secretary had issued directives under the Broadcasting Act 1981 preventing certain people involved in organisations that were stated in the legislation to broadcast certain matters. The justification for the policy was that it was necessary in order to prevent terrorism, and the claimant's main argument was that the policy was disproportionate to the objective. In rejecting the proportionality argument the House entered into a discussion as to the consequences that would ensue as a result of accepting this type of review. The general view of the Lordships were that proportionality would go beyond their judicial functions with Lord Roskill stating that 'to apply that principle in the present case would be for the court to substitute its own judgement of what was needed to achieve a particular objective...'7Lord Ackner further added that in articulating a higher standard of review than Wednesbury, it would inevitably mean that 'an inquiry into and a decision upon the merits cannot be avoided.'8 These judgements clearly show that the court were of the view that proportionality would mean that the judges would enter into an area of merits review.
The Human Rights Act
However despite these reservations, the incorporation of the European Convention of Human rights into English domestic law in the form of the Human Rights Act 1998 meant that it was now necessary for the courts to consider whether policies were proportionate in those instances where there had been a violation of convention rights. Article 6(1) provides that 'it is unlawful for a public authority to act in a way which is incompatible with one or more of the convention rights.' It is further stated that:
'Subsection (1) does not apply to act if: a) As a result of one or more provisions of primary legislation, the authority could not have acted any differently or
b) As the result of one or more provisions made under primary legislation which cannot be read or given effect in a way which is compatible with the convention rights, the authority was acting so as to give effect to or enforce those provisions.9
The problem with this act is that it gives no indication as to how the courts should define the appropriate standard of review. This leaves the question wide open to the courts which, consequently has led to a variety of approaches. An attempt to shed some light on this matter is examined in the case of Daly10, which was the first case to consider the establishment of proportionality under the new act. This was an action whereby the applicant challenged a policy under the Prison Act 195211 which allowed prison officers to examine legally privileged correspondence in searching a prisoner's cell without them being present. It was put forward by the applicant that this was an infringement of his right to privacy under article 8 of the convention. In approving the test applied in Smith v UK12 the Lordships laid down the three stage test which the courts need to consider in cases where there is an alleged breach of human rights. In emulating Lord Clyde's test in De Freitas v Permanent Secretary of Minister of Agriculture13 it was stated that when determining if a particular measure taken is arbitrary or excessive the court should ask itself whether:
i) the legislative objective is sufficiently important to justify limiting a fundamental right;
ii) the measures designed to meet the legislative objective are rationally connected to it;
iii) the measures used to impair the right or freedom are no more than it is necessary to accomplish the objective.
In discussing this new process Lord Steyn went on to identify three differences between the traditional approach to review under Wednesbury and this new approach, the first being that the doctrine of proportionality in some cases would require the courts to balance the relevant factors of a decision maker rather than just assessing whether it was within the range of reasonable decisions. The second distinction he makes is that the proportionality test may involve considerations to be directed to how much weight should be attributed to the relevant interests and thirdly that the heightened test developed in Smith was still not suitable for the protection of human rights.14 In assessing these differences it could be argued that by requiring the courts to assess the balance of the primary decision maker's policies which, could involve looking at the pros and cons of the conflicting interests then the courts cannot avoid making a decision based on merits. However Lord Steyn disagrees with this assumption, in his judgement, highlighting that there is a 'material difference' between the old and new methods of judicial review he states that 'the differences in approach...may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review.'15 Thus if we were to follow this view, as long as judges follow this structured approach and look at the relevant factors in the correct way, then merits review will not occur and consequently, judges would not be overstepping their boundaries, respecting the doctrine of separation of powers.
Professor Jowell also agrees with this view stating that 'the respective roles of judges and administrators are fundamentally distinct and will remain so.'16 In rejecting the argument that the proportionality test leaves no discretion for decision makers on matters of policy, he comments that the Human Rights Act does not permit judges to question the merits of the policies themselves as this goes beyond their judicial capacity. 'Stricter scrutiny and abandonment of Wednesbury obscurity does not mean that the courts will be entitled to ignore the limitations in competence of their own role.'17 Therefore, Jowell would support the ...
This is a preview of the whole essay
Professor Jowell also agrees with this view stating that 'the respective roles of judges and administrators are fundamentally distinct and will remain so.'16 In rejecting the argument that the proportionality test leaves no discretion for decision makers on matters of policy, he comments that the Human Rights Act does not permit judges to question the merits of the policies themselves as this goes beyond their judicial capacity. 'Stricter scrutiny and abandonment of Wednesbury obscurity does not mean that the courts will be entitled to ignore the limitations in competence of their own role.'17 Therefore, Jowell would support the notion that if the courts acknowledge that their role does not enter into a debate on the qualities of the decision itself, and they leave a margin of discretion for the primary decision makers, accordingly proportionality does not led to merits review as the quote professses.
However this leads to the complex question as to how should the courts approach the issue of proportionality when it isn't possible to identify what the objective of a measure is to the standard needed, especially in those policies where there were a variety of different views held by parliament before enacting the legislation. The courts had tended to take the position of deference which ignores the balancing act required and avoids the danger of moving into the realms of merits review The House of Lords have taken this approach in matters involving 'broad social policy' and in cases where the public body has made some attempt to accomodate for the individual rights as they did in Shayler18 where they found the measure was proportionate even though less interfering measures were available. It would suggest that as long as the administrative body makes some minor reference to convention rights, the courts will deem it proportionate. The way the courts made their judgment is questionable as they failed to weigh up competing interests, perhaps through fear of upsetting the constitutional boundary; But in order for the fundamental rights of individuals to be protected the proper act of balancing interests needs to take place and the courts should not avoid doing this.
There are various cases on the subject of proportionality which support the view that the courts will defer to decision makers on matters of policy when it feels it is does not possess the relative expertise to make an to make an appropriate ruling. Samaroo19 involved two foreign nationals who had previously been granted permission to stay in the United Kingdom and therefore had become settled and had established families. As a result of being convicted of serious drug offences they were made subject to deportation orders by the Secretary of State which the applicants challenged on the ground that it interfered with their right to family life under article 8 of the European Convention. In applying the principle of proportionality to this case Dyson LJ20 stated that a balance needed to be made between the applicant's rights and that of the aim of the policy which was the prevention of crime. In addressing this issue, the extent of how much scope the court would give to the Secretary of State depended on a variety of factors such as how much the right was related to social and economic factors. In taking these factors into account the court held that the Secretary of State was allowed a wide margin of discretion. This case illustrates that the court will still be very cautious in applying the proportionately test and will tend to steer away from those issues which are of broad social policies as a way of avoiding balancing such technical issues, as these are matters for parliament. By allowing the concept of deference to be afforded to administrative officials, the courts are not acting beyond their roles by substituting their own views on what the correct policy should be.
However this approach to proportionality has been criticised by various academics such as Jowell and Beatty21 who are of the opinion that it is no longer appropriate for the courts to defer on the premise that they to do not possess the relevant expertise. In doing this they are unable to protect individual's fundamental rights properly. However if this is the case and courts should not be permitted to defer on such matters then there are those who argue that there will always be an aspect of merits review in any case on proportionality. The problem is illustrated in the quote of Baroness Hale 'what may be proportionate interference with a less important right might be a disproportionate interference with a more important right. The concept of what is necessary in a democratic society also has to accommodate the differing importance attached to certain values in different member states.'22 There is always a difficulty in assessing the meaning of a convention right, as individuals have conflicting interests. The courts will always be required to look at the meaning of any convention terms and furthermore it is always for the courts to have the final say in whether or not a decision is proportionate. This will always involve merits view in that sense, a view supported by Craig.23 'It is clear that the courts do substitute judgement on certain issues under the Human Rights Act. This is so is relation to the meaning of many of the convention terms that arise before the court pursuant to the HRA.'
Tom Hickman24 also supports this proposition, according to his opinion when looking at the test of Daly there is a tension in the structure of proportionality. It allows the judges both the ability to assess the substance of the decision when asking whether or not it violates a convention right, but is also gives the assertion that proportionality is not merits review. Since the first assumption requires an evaluation by the courts of the reasoning for and against this decision which has made, according to Hickman it will always be necessary for the courts to substitute their own view for assessing whether any decision made is proportionate. Therefore to reiterate Craig's statement the courts do engage in merits review in this sense. However merits review in this sense is similar to in the traditional test present in Wednesbury as the court is required in that case to consider accordingly, on their view as to whether a decision is reasonable, so the judges are merely performing their judicial functions as they always have, thus the courts are still maintaining their boundaries of their responsibilities.
So if we were to accept that merits review is present in every decision made does this mean the distinctive role of the administrative bodies are made redundant? Hickman answers this question in the negative stating that in order to avoid collapsing into what he calls 'full merits review25' there is need to a preserve the boundaries between what is in the public's interest and what is proportionate, this allows the different bodies to perform separate functions legitimately. This poses the question as to what the courts should consider in deciding whether an objective is disproportionate. Wilson26 responds to this question stating that the court is to make a 'value judgement...with reference to the circumstances prevailing when the issue has to be decided.' In those cases where the courts use information such as that of Hansard reports, it provides an aid only to the courts understanding, but beyond that it is of no relevance. In agreeing with Hickman's view the courts held that 'the courts are called upon to evaluate the proportionality of the legislation not the adequacy of the minister's exploration of the policy options or of his explanations to Parliament...27'The main tenet of Hickman's argument is that in order to prevent merits review in the unlawful sense a procedure needs to be articulated, while at the same time providing an allowance for the courts involvement in reviewing conflicting interests, to conclude whether the balance struck is proportionate.
The Procedural Approach
There are those who believe that the test laid down in De Freitas is sufficient enough to provide an adequate basis as to how courts should go about making their decision on proportionality, but what methods are the courts to use in assessing whether the measures to achieve the objective 'are no more than necessary.28' A key case which has caused a great deal of discussion as to what factors the court should take into account when determining what makes a decision proportionate is Denbigh.29 This concerned a school girl who was of the Muslim faith and arrived at her school wearing a 'jilbab' which was what was required as part of her strict faith. This was not permitted as part of the school's uniform policy and she was asked to go home and return wearing the correct school uniform which should be noted did accommodate for the Muslim dress in a moderate way. Bengum sought judicial review of the decision by the school governors for not allowing her to attend the school wearing the 'jilbab' and claimed that her exclusion was unlawful because of her right to manifest her religion under article 9(1) of the convention of Human Rights30 was being limited. In allowing the claimant's appeal, the Court of Appeal in reviewing the whether or not the infringement was justified using the proportionality test stated that the schools failure in not giving the correct weight to the decision and by not following the proper test in making the decision meant that they had not satisfied the appropriates standard. Brooke LJ31 outlined a six stage process which the school should have considered when making its uniform policy which was as follows:
(i) Has the claimant established that she has a relevant Convention right which qualifies for protection under Art. 9(1)?
(ii) Subject to any justification that is established under Art. 9(2), has that Convention right been violated?
(ii) Was the interference with her Convention Right prescribed law in the Convention sense of that expression?
(iv) Did the interference have a legitimate aim?
(v) What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim?
(vi) Was the interference justified under Art. 9(2).
After setting out the relevant test the judge concluded the 'school did not approach the matter in this way at all...therefore, because it approached the issues in this case from an entirely wrong direction and did not attribute to the claimant's belief the weight they deserved, the school is not entitled to resist the declarations she seeks.'32 The procedure adopted by the Court of Appeal would strongly suggest that this type of application of the proportionality test does lead to merits review, as the judges were not looking at the substance of the decision and asking the question whether or not the policy itself was proportionate to the aim pursued. Instead the judges based their decision on the way the school had come to adopt the policy and concluded that the school was wrong basing their judgement on what the courts considered in their own view to be the best way of addressing the process.
The decision has been heavily criticised both by academics and the House of Lords alike. In stating what the appropriate role to be assigned to judges is Lord Bingham took the view that 'the house is not, and could not be invited to rule whether Islamic dress or any feature of Islamic dress, should or should not be permitted in the schools of this country. That would be an inappropriate question for the House in its judicial capacity.33' It went on further to re comment rejecting the Court of Appeals approach in saying that a decision made on this basis would result in 'judicalisation on an unprecedented scale.'34 Thus according to the Lordships they would also agree that a decision based on the procedure is a form of judicial activism and would result in judges acted 'ultra vires'. For the Lordships in Denbigh the correct approach when asking the question how the courts should respond to decisions which claim to be a disproportionate response is that they need to look at the practical outcome and not the quality of the decision. By attending to the issue in this form the courts are not basing the proportionality test according to what they would have done and thus are avoiding merits review. Although this assumption is questionable Pool35 critiquing the Court of Appeal's procedural approach states that it be the wrong thing for the public authority to do for two reasons. The first being that the whole test is based on mistake, thus a claimant could succeed if the authority doesn't consider one aspect, which is not effective. Furthermore he agrees with Craig's view that proportionately is a test for the judges and that there is a need to maintain the distinction between the roles of judges and administrative bodies in order to have an effective, objective process. However this approach is problematic as to how the court should deal with those cases where the decision maker makes no definitive explanation as to how they considered the rights of individuals under the convention. It has been noted by the courts that where the 'court is deprived of assistance of primary decision makers 'considered opinion" on convention issues. The courts scrutiny is bound to be closer and the court may have no alternative but to strike the balance for itself, give due weight to such judgements as were made by the primary decision maker on matters he or it did consider.'36This view acknowledges that there is a much more difficult analysis needed where there is no persuasive consideration by the decision maker available, and the courts may be forced to substitute their own view on the matter, illustrative of the characteristics of merits review, although the courts would not agree with that inference.
Belfast City Council v MisBehavin37 also followed the same reasoning as the House of Lords in Denbigh. This concerned a refusal by the council to grant the company a licence for the use of the premises as a sex shop on the ground that the suitable number of sex shops in the relevant area was nil. In arriving at its decision the council possessed representations and objections by members of the public made after the expiry of the 28 day period given. The House of Lords allowing the council's appeal held that the local authority in considering its decision to grant or refuse a licence, had a discretion to take all the relevant matters into account including late objections. In questioning what would be the correct standard of judicial review of the decision they stated that the relevant question was not whether the Local Authority had properly considered if the applicant's rights under the convention would be violated as proposed by the Court of Appeal. Instead it should be asked whether there had been a violation of those rights and consequently if the council had exercised its powers of judgement rationally and in accordance with the relevant statutory provisions its decision could not be said to be a disproportionate constraint on the applicant's convention rights.38 In criticising the Court of Appeals approach Lord Hoffman took the same stance as those Lordships in Denbigh stating that 'the court of appeal did not say that the applicant's Human rights to operate a sex shop had been infringed, instead it said that its convention rights had been violated by the way the council had arrived at its decision.'39 Thus again the courts took the view that the correct procedure in dealing with convention rights is to assess the issue as 'one of substance rather than procedure'.40 Both these cases illustrate that the courts have tended to favour a substantial approach to judicial review under the HRA act, as in their view the procedural approach would be one of merits review.
However Richard Gordon41 opposes the view that the procedural process is not an adequate formula and contends that the substantive approach adopted by the House of Lord in Denbigh is a far more dangerous exercise in regards to merits review. Basing his opinion on those emulated in Begum Tower Hamlets42 he presents three main arguments. The first is that the substantial approach would extend to role of the judge to that of the legislator in the way that it would be for the court rather than the decision maker to conclude whether the measure in question had a legitimate aim. The decision maker would therefore have no function in assessing whether the aim was legitimate in relation to the convention rights, before a court's ruling, which effectively places a huge amount of power with judges. Gordon does not agree that we can place policy and proportionately in distinct categories, they interlink with each other, and to give the courts and administrative bodies separate responsibilities is unrealistic and also would have constitutional implications in respect to the principle of the separation of powers. Therefore, to sum up this argument simply, according to Gordon if the courts adopt the substantive approach, as the cases seem to suggest is an approach they favour, this leads to merits review as it allows the courts to go beyond their supervisory role when assessing legitimacy of the aim.
The second argument he presents is that by attempting to avoid the structured approach to the Human Rights Act in making decisions, it weakens the rationale for the those areas of discretionary judgement and deference permitted which is a very important aspect of proportionately, in ensuring the borders between the courts and the legislature are enforced. As Lord Hope pointed out in R v DPP ex p. Kebliene43 that when weighing up conflicting interests on the principle of proportionately 'In some circumstances it will be appropriate for the courts to recognise that there is an area of judgement within which the judiciary will defer on democratic grounds to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the convention.' Gordon argues that if we reject the Court of Appeals approach in Denbigh then there would be no proportionality judgement to defer to. This would basically leave the court free to make the only objective judgement on the issue which would also upset the principle of the rule of law as there would be no higher body to exercise limitations on the courts if uses its power excessively. The third argument he presents is that by not adopting the structured approach it would mean that the court becomes the primary decision maker in convention terms and therefore 'would have to embark on a detailed merits enquiry whenever the public authority chose not to do so.'44 This could mean that the court would have to look in detail at the facts of the case themselves as there is no other body permitted to do so, which goes against the courts original assertion that proportionality would not allow this. Although these arguments Gordon presents are convincing he still does not address the claim that by introducing the procedural approach, the courts are still required to evaluate the way the authorities have come to their decision, it would seem that both the substantive and procedural approach to proportionately possess elements of merits review, thus supporting the notion that it does indeed always inevitably lead to merits review.
A final aspect to consider is the recent case of Huang45 which although it is not a judicial review case it does offers an explanation on what the courts current position to proportionality is. Both cases concerned the Secretary of State's refusal of the claimant's immigration applications, finding that the claimants did not qualify to remain in the UK, both claimants appealed on the ground that their removal would infringe their right to family life under article 8 of the Convention of Human Rights.46 It was stated in the judgement that when assessing the proportionality of a decision it would give effect to the paramount need to determine a fair balance between the individual's rights and the public's interest. In other words the court weren't just looking at whether it was proportionate; a decision could be proportionate in one sense, but the courts must look at the overall outcome in judging the balance which seems to suggest that merits review is necessary in this context. This case is important to note when debating what type of matters the courts have be enabled to legitimately rule on in determining proportionately. Here it was held that if the matters involved a subject of policy then the appellant authorities should defer to the Secretary of State. However if the matter involved issues other than policy, such as matters of fact, the courts should not invoke the concept of deference. This provides a clear distinction on the courts responsibilities; however this can only be limited to Huang to those debates involving immigration applications and has not yet been allowed to apply to on a wider scale. Nevertheless, the reasoning presented in this case could be applied more widely in the future to those matters of fact in an attempt to protect convention rights can be seen as prescribed under article 6 of the European Convention. 'While this may disturb the legislative allocation of competences under numerous administrative schemes it cannot be regarded as undermining democratic governance such that deference forbids it. On the contrary, fact-finding is a core judicial review'. 47
Shift to merits review
Before concluding on this issue I would briefly like to outline the relevance of a shift to merits review. If the courts have indeed as the quote proposes moved to an area of merits review, what justification could they rely on in legitimising this change of role. The answer lies in the rights based model48 where it has been suggested that the courts should always interpret legislation and apply administrative discretion to the best of their ability in accordance with fundamental human rights. The Human Rights act provides the basis for this shift in approach, however the court must be careful as to not go too far in abusing their power.
So does the proportionately test mean that there has been a change to judicial review resulting in merits review? This is a complex question, with no definitive answer. The courts have tended to take the view that although undoubtedly the incorporation of the Human Rights Act has marked a change in status constitutionally they are adamant that it does not mean a shift to merits review with various declarations being made in the case law as I have discussed above to that effect. However the courts have struggled to find a balance as to how intensely they should apply the test and the cases suggest that it depends on the subject matter in question. It would seem that the courts have avoided merits review on those social matters which cause great political debate and have favoured the option of deference. On the other hand it could be argued that the adoption of the proportionality test does always involve an element of merits review as it is impossible to give an objective review, when striking a balance between an individual's rights and public interest. Unless the courts adopt a strict standard by which they could adhere to in applying the doctrine of proportionately, it is impossible to determine if overall the courts have entered into the realms of merits review, instead you would need to look the issue on a case by case basis.
Bibliography
Books and Journal Articles
Beatty, D. (2004) The Ultimate Rule of Law, Oxford: Oxford University Press
Craig, P.P. (2008) Administrative Law, 6th edition, London: Sweet and Maxwell
Craig, P. (2003) "Judicial Review, Intensity and Deference in EU law" in David Dyzenhaus, ed. (2004) The Unity of Public Law, Oxford: Hart p335
Gordon, R. (2006) "Structures or Mantra? Some Puzzles in HRA Decision Making," Judicial Review 136-140
Jowell, J. (2000) "Beyond the rule of law: towards constitutional judicial review." Public Law 671
Leigh, I. and Masterman, R. (2008) Making Rights Real: The Human Rights Act in its first decade, Oxford: Hart
Leigh, I. (2002) "Taking Rights Proportionately: judicial review, the Human Rights Act and Strausbourg." Public Law 265-287
Poole, T. (2005) "Legitimacy, Rights and Judicial Review," Oxford Journal of Legal Studies 697-725
Poole, T. (2005) "Of headscarves and heresies: the Denbigh High school case and public authority decision making under the Human Rights Act," Public Law 685
Poole, T. (2009) "The Reformation of English administrative law," Cambridge Law Journal 142-168
Rivers, J. (2006) "Proportionality and the variable intensity of review," Cambridge Law Journal 174-207
Turpin, T. and Tomkins, A. (2007) British Government and the constitution: text and materials, 6th edition, Cambridge: Cambridge University Press
Cases and Legislation
Associated Provincial picture House Limited v Wednesbury Corporation [1948] 1 KB 223
Belfast City Council v Miss Behavin Ltd [2007] UKHL 19
Begum v Tower Hamlets LBC [2003] 2 A.C. 430
Broadcasting Act 1952
De Freitas v Permanent Secretary of Minister of Agriculture, Fisheries, Lands and Housing [1999] 1 A.C. 69
European Convention for the Protection of Fundamental Freedoms article 8 and 9
Huang v Secretary of State for the Home Department [2007] UKHL 11
Human Rights Act 1998 s.3, 4, 6
R (on the application of Begum) v Denbigh High School Governers [2007] 1 A.C. 100
R (on the application of Begum) v Denbigh High School Governers (CA) [2005] EWCA CIV 199
R v Secretary for the Home Department ex parte Brind [1991] 1 A.C. 696
R (on the application of Countryside Alliance) v Attorney General and another [2007] UKHL 52
R (on the application of Daly) v Secretary for the Home Department [2001] 2 A.C. 532
R v DPP, Ex p Kebliene [2000] 2 A.C. 326
R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840
R (on the application of Samaroo) v Secretary of State for the Home Department [2001] EWCA Civ 1139
R v Shayler (David Michael) [2002] UKHL 11
R v Ministry of Defence Ex p. Smith [1996] QB 517
R (Williamson and others) v Secretary of State for Education and Employment [2005] UKHL 15
Smith and Grady v United Kingdom (1999) 29 EHRR 493
Wilson v First County Trust Ltd (No 2) [2004] 1 A.C. 816
Associated Provincial picture House Limited v Wednesbury Corporation [1948] 1 KB 223
2 Ibid., at p230
3 [1996] Q.B. 517
4 Ibid., at p564-565
5 Ibid., at p.541
6 R v Secretary for the Home Department ex parte Brind [1991] 1 A.C. 696
7 Ibid., at p 750
8 Ibid., at p 762
9 Human Rights Act 1998 s.1(2)
0 R (on the application of Daly) v Secretary of State for the Home Department [2001] 2 A.C. 532
1 Prison Act 1952
2 Smith and Grady v United Kingdom (1999) 29 EHRR 493
3 De Freitas v Permanent Secretary of Minister of Agriculture, Fisheries, Lands and Housing [1999] 1 A.C. 69 at p80
4 Supra n.11 at p547
5 Supra n.11 at p548
6 Jowell, J. (2000) "Beyond the rule of law: towards constitutional judicial review." Public Law at p681
7 Ibid.,
8R v Shayler (David Michael) [2002] UKHL 11
9 R (on the application of Samaroo) v Secretary of State for the Home Department [2001] EWCA Civ 1139
20 Ibid., at para 36
21 Jowell, J. "Beyond the Rule of Law" P.L. 671 and Beatty, D. The ultimate rule law, Oxford: Oxford University Press
22 R (on the application of Countryside Alliance) v Attorney General and another [2007] UKHL 52 at p777
23 Craig, P.P. (2008) Administrative Law, London: Sweet and Maxwell at p592
24Hickman, T. (2008) "The substance and structure of proportionality." Public Law pp694-716
25 Ibid., at p699
26 Wilson v First County Trust Ltd (No 2) [2003] UKHL 40 At p843
27 Ibid.,
28 Supra. n. 11
29 R (on the application of Begum) v Denbigh High School Governors [2007] 1 A.C. 100
30 Article 9 of the European Convention of Human Rights 'Freedom of thought, conscience and religion'
31 [2005] EWCA CIV 199 at p3376
32 Ibid., at p3389
33 [2007] 1 A.C. 100 at p107
34 Ibid., at p125
35 Poole, T. (2005) "Of headscarves and heresies: the Denbigh High school case and public authority decision making under the Human Rights Act," Public Law pp685-695
36 Belfast City Council v Mss Behavin Ltd [2007] UKHL 19 at p1435
37 Ibid.,
38 Ibid., at p1435-1436
39 Ibid., at p1425
40 Ibid.,
41 Gordon, R. (2006) "Structures or mantras? Some new puzzles in HRA decision making," Judicial Review pp136-140
42 Begum v Tower Hamlets LBC [2003] 2 A.C. 430
43 R v DPP Ex p. Kebilene [2000] 2 A.C. 320
44 Supra n.42 at p139
45 Huang v Secretary of State for the Home Department [2007] UKHL 11
46 Article 8 Convention for the Protection of Human Rights and Fundamental Freedoms 'Right to respect for private and family life'
47 Leigh, I. and Masterman, R. (2008) Making Rights Real: The Human Rights Act in its first decade, Oxford: Hart at p166
48 Craig, P.P. (2008) Administrative Law, London: Sweet and Maxwell at p18-19
