384 General Principles of Constitutional and Administrative Law

A deeper level of review is required in cases governed by the Human

Rights Act 1998. Contrary to the normal principle, this may require

the court to assess the weight of the evidence not merely to decide that

a rational basis exists. Interference with a right protected by the

European Convention on Human Rights must be ‘necessary’ to meet

to a pressing social need of a kind stipulated in the Convention (see

Chapter 18). It is debatable whether this is a matter for the court or for

the minister since it is essentially a political judgement having no

objectively correct answer. The prevailing view is that the matter is

primarily for the minister within what is often called the ‘discretion-

ary’ area of judgement. However, the courts will ensure a rigorous

scrutiny by requiring the minister to give especially strong justifica-

tion backed by convincing evidence. ‘When anxiously scrutinising an

executive decision that interferes with human rights the court will ask

the question, applying an objective test, whether the decision maker

could reasonably have concluded that the interference was necessary

to achieve one or more of the legitimate aims recognised by the Con-

Vention’ (per Lord Phillips mr in r. (Mahmood) V. Secretary of State

(2000) at para. 32; see also R. v. Secretary of State for the Home

Department ex parte Simms [1999] 3 All ER 400 at 411).

For example, in R. v. Secretary of State ex parte Daly (2001),

government policy was that a prisoner’s confidential correspondence

with his lawyer could be examined in the absence of the prisoner in

order to ascertain that it was genuine. The House held that, although

the policy satisfied the bare rationality test, it was contrary to Art. 8

of the European Convention on Human Rights (respect for corre-

spondence). A reasonable minister could not have concluded that the

policy was necessary for the legitimate goal of keeping order in prisons.

The House emphasised that in human rights cases the rationality

threshold was not enough and that the court must ‘anxiously scrutinise’

the decision to ensure that the minister gave proper weight to the

right at stake.

Lord Bingham went further. He based his reasoning firstly on the

common law approach that there was no reasonable justification for the

policy. However, he also said that, under the Human Rights Act,

‘domestic courts must go beyond the ordinary Wednesbury standard

and themselves form a judgement whether a convention right has been

breached (conducting such an inquiry as is necessary to form that

judgement’ ([2001] 3 All ER at 455). Lord Bingham could be interpreted

as saying that, at least in some cases, the court will not defer to the

minister’s discretion but will decide for themselves that the interference

was justified (see below, 18.5.3).

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Lord Cooke (para. 32) went beyond the human rights context.

He described the Wednesbury case as ‘an unfortunately retrogressive

decision in English administrative law, in so far as it suggested that only

a very extreme degree (of unreasonableness) can bring an adminis-

trative decision within the scope of judicial invalidation’. He empha-

sised that the level of interference should vary with the subject matter.

‘It may well be, however, that the law can never be satisfied in any

administrative field merely by a finding the decision under review is

not capricious or absurd.’

The intensive human rights level of review and the orthodox

approach sometimes produce the same outcome. By contrast in

R. (Farrakhan) v. Secretary of State (2001), it was held that a decision

to ban a leader of an anti-semitic group from entering the UK was an

unlawful restriction upon freedom of expression in that the Secretary

of State had no concrete evidence that the visit would result in violent

disturbances. The Secretary of State’s decision, like that in Brind

(above) would probably have satisfied the Wednesbury test.

16.5.1 Proportionality

The level of review required in a human rights case can be expressed

in the doctrine of proportionality, which in different manifestations is

an important feature of the laws of many other countries and of EC

Law and the European Convention on Human Rights. Proportion-

ality broadly requires that government action must be no more intru-

sive than is necessary to meet an important public purpose. As Lord

Diplock rather ponderously put it in R. v. Goldsmith [1983] 1 WLR 151

at 155, proportionality ‘prohibits the use of a steam hammer to crack a

nut if a nutcracker would do.’ In De Freitas v. Permanent Secretary

(1999) endorsed by Lord Steyn in R. v. A. (2001) the Privy Council

outlined the proportionality test as follows. Whether:

(i) The legislative objective is sufficiently important to justify limiting

a fundamental right. The court will not normally decide this

question itself, since this would be entrenching on democracy but

will satisfy itself that a reasonable minister could have reached

this conclusion.

(ii) The measures designed to meet the legislative object are rationally

connected with it.

(iii) The means used to impair the right or freedom are no more than

is necessary to accomplish the objective. This is the most impor-

tant factor.

386 General Principles of Constitutional and Administrative Law

English courts have sometimes objected to proportionality on the

ground that it takes the court too far into the political merits (see Hone

v. Maze Prison Visitors [1988] 1 All ER 321 at 327–9; Brind v. Secretary

of State for the Home Department (1991); Tesco Stores v. Secretary of

State for the Environment (1994); R. v. Chief Constable North Wales

Police ex parte AB (1998)). Therefore English law has sometimes fallen

foul of the ECHR because it has failed to reach the standard of

necessity required by the proportionality doctrine. In R. v. Minister

of Defence ex parte Smith (above), which concerned a decision to ban

active homosexuals from the army the court reluctantly refused to

intervene even though a human right was in issue on the ground that a

court did not have sufficient expertise to assess the importance of

military requirements. Smith was later rejected by the European Court

of Human Rights which, in Smith and Grady v. UK (1999), held that

the Wednesbury threshold of unreasonableness was too high to satisfy

the European Convention because it excluded any consideration of

whether the interference with the applicant’s rights answered a press-

ing social need or was proportionate to the national security and pub-

lic order aims pursued (see also Sunday Times v. UK (1979); Observer

and Guardian Newpapers v. UK (1991); cf. Vilvarrajah v. UK (1991)

14 ECHR 248 at 292).

It is not clear whether proportionality would apply outside the

Human Rights Act and EC contexts. In R. (Alconbury) v. Secretary of

State [2001] 2 All ER 929 at 976 Lord Slynn stated that proportion-

ality was different from Wednesbury but emphasised that ‘the differ-

ence in practice is not as great as is sometimes supposed’. He thought

that proportionality and Wednesbury should not be kept in separate

compartments and that ‘even without reference to the 1998 Act the time

has come to recognise that this principle is part of English Adminis-

trative law, not only in when judges are dealing with community acts

but also when they are dealing with acts subject to domestic law’ (see

also Council of Civil Service Unions v. Minister for the Civil Service

[1984] 3 All ER 935 at 950 per Lord Diplock, and Lord Cooke in Daly

(above)). Proportionality will be discussed further in Chapter 18.

16.6 Procedural Impropriety

16.6.1 Statutory procedural requirements

This topic illustrates the elastic nature of contemporary judicial

review. Failure to comply with a procedural requirement laid down by

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statute (such as time limits, consultation or giving required informa-

tion or notice) could make a decision invalid. However, the courts are

reluctant to set aside a decision on purely technical grounds. Tradi-

tionally the courts have tried to rationalise this by distinguishing

between ‘mandatory’ (important) and ‘directory’ (unimportant) pro-

cedural requirements by reference to the language of the governing

statute. Recently they have abandoned this approach in favour of a

flexible response to the particular context. Using their discretionary

power to withhold a remedy, the courts will set a decision aside for

procedural irregularity only if the harm or injustice caused to the appli-

cant by the procedural flaw outweighs the inconvenience to the govern-

ment or to innocent third parties in setting the decision aside (see e.g.

Coney v. Choice (1975); London and Clydesdale Estates Ltd v. Aberdeen

District Council (1979); R. v. Immigration Appeal Tribunal ex parte

Jeyeanthan (1999)). However the courts may not be willing to allow

administrative efficiency to override a statutory right of the public to

be consulted. In Berkeley v. Secretary of State for the Environment

(2000), the House of Lords held that a local authority was required to

make environmental information relating to a planning application

for a football stadium available to the public even though the council

successfully argued that it already had adequate environmental evi-

dence before it. Lord Hoffman in particular, reflecting the broad

concept of democracy suggested that public consultation was an end in