HOW TO USE JUDICIAL REVIEW TO BRING A

HUMAN RIGHTS CLAIM

Judicial review is the most important and commonest way of bringing a human rights
claim. It is available only from the High Court, or to be more precise, from what is now
known as the Administrative Court. Judicial review can be used to challenge the legality
of a decision taken by a public authority such as a government minister or department,
a local authority, a lower court or a statutory body such as the Monopolies and Mergers
Commission or the Human Fertilisation and Embryology Authority. If your claim is
specifically based on an alleged violation of a Convention right, then you can bring it
only if you are a victim of the decision. Judicial review is different from an appeal. In
order to have the right to appeal against a decision there has to be a statute, an Act of
Parliament, specifically providing for it. Appeals are mostly made against court
judgments, although there also are certain administrative bodies from whose decisions
it is possible to appeal. There is a hierarchy of courts, with the possibility of appeal lying
from one level to the next and culminating in the House of Lords. You will generally
need permission to lodge your appeal. The court hearing the appeal will normally have
the right to decide the whole case again, and if it wishes, to substitute its own decision
for that of the court below 1. This is precisely where a judicial review differs from an
appeal. The court conducting a review is concerned to determine the lawfulness, but not
the merits, of the decision under review. The natural corollary to this is that though the
court could quash the impugned decision that is, set it aside; it could not substitute its
own decision for that of the original decision maker. However, a recent procedural
change now allows the court to do just that, with the result that the substantive law has
been changed by the back door2. Does the distinction between a review and an appeal
have any practical meaning any more, or is it merely a distinction without a difference?
If properly respected, the distinction is an important one with very real practical effects.
But the recent ‘procedural’ change is only the latest of a series of nails which have been
driven into the coffin of judicial self-restraint. Nevertheless, the very clear way that Lord
Brightman put the position in 1982 is still supposedly the law today: Judicial review is
concerned, not with the decision, but with the decision-making process. Unless that
restriction on the power of the court is observed, the court will in my view, under the
guise of preventing the abuse of power, be itself guilty of usurping power 3.

WEDNESBURY
In the most famous judicial review case of all, commonly known as Wednesbury,
decided in 1947, the issue was the lawfulness of a decision taken by a local authority.
The Sunday Entertainments Act 1932 gave local authorities the power to grant a licence
to cinemas to show films on Sundays ‘subject to such conditions as the authority think fit
to impose’. A cinema in the Wednesbury area applied to the local council for such a
licence. The council agreed to grant them a licence but attached to it the condition that
no children under 15 were to be admitted to the Sunday shows even if accompanied by
an adult. This condition made the licence practically useless to the cinema. What was

1
. See the discussion of the meaning of these terms in Chapter 1.
2
. See Chapter 1.
3
. Chief Constable of North Wales v Evans [1982] 3 All ER 141 at 154 (HL).

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the point of Sunday cinema if children could not attend? It has to be remembered that
this all happened in the days when English family life still existed. The cinema
proprietors challenged the lawfulness of this restrictive condition. In his judgment Lord
Greene was at pains to stress that the question was not whether he or his fellow judges
would have allowed children in, but the very different and much narrower question of
whether the local authority had been acting lawfully in taking the decision that they took.
In short, the court engaged in a judicial review is not allowed to ‘second guess’ the
original decision. In a review the power of the court is much less than in an appeal 4. In
the words of Lord Greene MR: The power of the court to interfere in each case is not as
an appellate authority to override a decision of the local authority, but as a judicial
authority which is concerned, and concerned only, to see whether the local authority
have contravened the law by acting in excess of the powers which Parliament has
confided in them. This last phrase is fundamental: the right to make the decision under
review was given by Act of Parliament not to the courts but to the local authority. For a
court to substitute its own decision for that of the local authority would amount to a
usurpation of the right of the local authority, and could even be seen as an attempt to
subvert the intention of Parliament. Wednesbury is now over half a century old and has
been subjected to a tremendous onslaught from judicial activists or judicial
supremacists who want to expand the power of the judiciary. One senior judge has
gone so far as to predict that ‘the day will come when it will be more widely recognised
that the Wednesbury case was an unfortunately retrogressive decision in English
administrative law, in so far as it suggested that there are degrees of unreasonableness
and that only a very extreme degree can bring an administrative decision within the
legitimate scope of judicial invalidation 5.’ This remark appears to miss the point that
Lord Greene was at such pains to make. In cases of this kind, said Lord Greene, ‘[t]he
law recognises certain principles. . . . What, then, are those principles? They are
perfectly well understood.’ Lord Greene then goes on to set out these principles. They
are really quite simple.

Illegality. Is the decision under review lawful? In Wednesbury itself, as we have seen,
Parliament had allowed the local authority to grant Sunday licences ‘subject to such
conditions as the authority think fit to impose’. This is a very wide discretion indeed.
Was the local authority acting within what Lord Greene called ‘the four corners of this
discretion? If it had stepped outside these four corners, it would have been acting ultra
vires, or beyond its powers, and its decision could have been quashed by the court. But
so wide was the discretion granted to it by Parliament that this was not the case here at
all. Its decision to include the restriction against children under 15 was therefore lawful
and could not be set aside by the court even if the judges had disagreed with it.

Unreasonableness. Once it is found that the decision under review is not unlawful, that
would normally be the end of the matter – unless the decision was perverse or
unreasonable in the extreme. Lord Greene’s formulation of what is still termed
‘Wednesbury unreasonableness’ echoes down the years. For a decision to be set aside
4
. Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223, per Lord Greene MR.
5
. R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26,
[2001] 3 All ER 433 at 447, para 32, per Lord Cooke of Thorndon.

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as ‘unreasonable’, said Lord Greene, it has to be ‘so unreasonable that no reasonable
authority could ever have come to it’. The word ‘ever’ emphasizes just how extreme the
degree of unreasonableness has to be before the court can act. This is deliberate. If the
threshold of unreasonableness were lowered, judges would be allowed to set aside
administrative decisions simply because they did not happen to agree with them. This
would amount to a usurpation of the power of the original decision maker by the judge
concerned. Lord Greene explained this important point as carefully as he could: Some
courts might think that no children ought to be admitted on Sundays at all, some courts
might think the reverse. All over the country, I have no doubt, on a thing of that sort
honest and sincere people hold different views. The effect of the Judicial review
legislation is not to set up the court as an arbiter of the correctness of one view over
another. It is the local authority who is put in that position and, provided they act, as
they have acted here, within the four corners of their jurisdiction, the court, in my
opinion, cannot interfere.

Procedural impropriety. This third ground of judicial review is concerned not with the
actual decision itself but with the way the decision was taken. In short, it is about natural
justice. As this was not in issue in Wednesbury it is not mentioned there, but it is a very
ancient and important ground.

Q.Is Wednesbury still good law? And does it really make any difference whether it
is or not?
A.Wednesbury is still supposedly good law, though now under frontal attack from
activist judges. And yes, it makes a great deal of difference whether it is in force
or not.
In a lecture given in 1995 Lord Irvine of Lairg, the future Lord Chancellor, delivered a
powerful blast against ‘judicial supremacism’ and in favour of the traditional
Wednesbury approach, advocating ‘judicial self-restraint in public law matters . . . which
the vast majority of lawyers would still acknowledge to be the guiding principle of our
system of judicial review’6. Lord Irvine took issue with the idea expressed by a High
Court judge that ‘the greater the intrusion proposed by a body possessing public powers
over the citizen into an area where his fundamental rights are at stake, the greater must
be the justification which the public authority must demonstrate 7.’ The main target of
attack of those opposed to Wednesbury is the high threshold of ‘Wednesbury
unreasonableness’. Such critics favour what Lord Irvine described as ‘a lower standard
of Wednesbury unreasonableness in fundamental rights cases’ and a more
‘interventionist role’ for the courts. ‘On this approach, the court would be invited to
exercise a much tighter control over the merits of a decision where it perceives a threat
to fundamental rights.’ Lord Irvine warned that this approach led the judges ‘into
dangerous territory’: The political and legal choices which import consideration of
fundamental rights protection are among the most difficult and the most subjective, and
offer immense scope for political and philosophical disagreement. It cannot be right that
6
. Lord Irvine of Lairg [1996] Judges and decision-makers: the theory and practice of Wednesbury review,
Public Law 59 at 63.
7
. Sir John Laws (1993) Is the High Court the guardian of fundamental constitutional rights?, Public Law 59 at
69.

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such questions should be regarded as more rather than less suitable to judicial
determination. The approach adopted in Brind,8 which states conclusively that the
Wednesbury threshold of unreasonableness is not lowered in fundamental rights cases,
must prevail9. Those words were written before the passing of the Human Rights Act.
With the Act in place the anti-Wednesbury forces have been able to draw sustenance
from the European Convention on Human Rights insofar as it is incorporated into
English law by the Act.

Q. Do the courts now have greater powers in judicial review cases involving
human rights? If so, what practical effect does this have?
A. The courts have tended to arrogate greater powers to themselves where
‘fundamental rights’ are concerned. But the law on judicial review is in disarray,
with several approaches competing with one another.

In a leading case four homosexual members of the armed forces challenged their
discharge from the service as irrational. At first instance the approach adopted was
described as follows: I approach the case . . . on the conventional Wednesbury basis
adapted to a human rights context and ask: can the minister show an important
competing public interest which he could reasonably judge sufficient to justify the
restriction? The primary judgment is for him. Only if his purported justification
outrageously defies logic or accepted moral standards can the court, exercising its
secondary judgment, properly strike it down 10. Except for the requirement that ‘the most
anxious scrutiny is accorded when fundamental rights are in issue’ the standard of
irrationality applied here is, if anything, stricter than the well-known definition of
Wednesbury unreasonableness. The Court of Appeal adopted the position that where
fundamental human rights were involved a ‘heightened scrutiny’ test was applicable:
‘The more substantial the interference with human rights, the more the court will require
by way of justification before it is satisfied that the decision is reasonable’ in the sense
that it is within ‘the range of responses open to a reasonable decision-
maker11.’Nevertheless the Court of Appeal upheld the first instance decision against the
four service personnel, who then took their case to Strasbourg, where a unanimous
court found a ‘grave violation’ of their rights under Article 8 12.Subject to the doctrine of
the margin of appreciation the Strasbourg court had no hesitation in judging the merits
of the ministry’s decision: The court recognises that it is for the national authorities to
make the initial assessment of necessity, though the final evaluation as to whether the
reasons cited for the interference [with the applicants’ private lives] are relevant and
sufficient is one for this court. A margin of appreciation is left open to contracting states
in the context of this assessment, which varies according to the nature of the activities
restricted and of the aims pursued by the restrictions 13. The Strasbourg court took the
8
. R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 697.
9
. Lord Irvine of Lairg (1996) Judges and decision-makers: the theory and practice of Wednesbury review,
Public Law 59 at 65.
10
. R v Ministry of Defence, ex parte Smith [1995] 4 All ER 427 at 447.
11
. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 257 (CA), per Bingham MR.
12
. Lustig-Prean and Beckett v UK (1999) 29 EHRR 548 99/53.
13
. Ibid, at §81.

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opportunity of aiming a broadside at what they saw as the undue restrictions placed on
the domestic courts by the conventional approach to judicial review: The threshold at
which the High Court and the Court of Appeal could find the Ministry of Defence policy
irrational was placed so high that it effectively excluded any consideration by the
domestic courts of the question of whether the interference with the applicants’ rights
answered a pressing social need or was proportionate to the national security and
public order aims pursued, principles which lie at the heart of the Court’s analysis of
complaints under Article 8 of the Convention 14.Now that the HRA and the Convention
can be applied directly by the domestic courts, can they too go for the jugular as the
Strasbourg court did here?

‘PROPORTIONALITY APPROACH’
The last-quoted passage was cited with approval in Daly, a case involving the rights of
convicted prisoners. Lord Steyn there identified two alternative approaches to judicial
review: the traditional Wednesbury approach and the ‘proportionality approach’, which
he admitted may ‘sometimes yield different results’. What exactly is the difference? ‘The
intensity of review,’ according to Lord Steyn, ‘is somewhat greater under the
proportionality approach’. And: ‘Even the heightened scrutiny test developed [by the
Court of Appeal in the case on homosexual service personnel] is not necessarily
appropriate to the protection of human rights.’ Does this mean that in human rights
cases the courts should exercise even greater powers than envisaged there to set aside
administrative decisions? Apparently recognizing that this ‘proportionality approach’
looked very much like an attempt on the part of the court to judge the merits of the
decision under review – which was totally forbidden under the traditional approach as a
usurpation of the position of the original decision maker – Lord Steyn found it necessary
to state quite starkly, ‘This does not mean that there has been a shift to merits review 15.’

‘MERITS REVIEW’?
Yet is that not exactly what Daly was: a ‘merits review’? George Daly, a long-term
prisoner, objected to the new policy requiring a prisoner’s privileged legal
correspondence to be searched in the prisoner’s absence. Daly lost in the Court of
Appeal, which held ‘that the policy represented the minimum intrusion into the rights of
prisoners consistent with the need to maintain security, order and discipline in
prisons16.’But this decision was reversed by a unanimous House of Lords. The relevant
legislation, section 47(1) of the Prisons Act 1952, provides that: ‘The Secretary of State
shall make rules for the regulation and management of prisons . . . and for the
classification, treatment, discipline and control of persons required to be detained
therein.’ This is a very widely drawn power indeed. Moreover, there was no challenge to
the right of prison officers to search a prisoner’s cell, including his privileged documents.
In other words, there was a tacit recognition by the applicants themselves that convicted
prisoners were not entitled to the same rights of ‘respect for their private and family life’
as everybody else. The only objection was to the requirement that the prisoner step
outside his cell while the search was being conducted. In these circumstances it is hard
14
. Smith and Grady v UK (1999) 29 EHRR 493 at 543, para 138
15
. R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26, [2001] 3 All ER 433 at 446,
para 28, per Lord Steyn.
16
. Quoted by Lord Bingham, ibid, p 444 para 21.

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to see the House of Lords judgments in Daly as anything other than an attempt to
substitute their own decision for that of the Home Secretary.

‘CONTEXT IS EVERYTHING’
Lord Steyn adopted the view that ‘the intensity of review in a public law case will depend
on the subject matter in hand’, adding, ‘That is so even in cases involving Convention
rights. In law context is everything17.’Context is everything? What does this mean? If this
means that principles are subordinate to facts and that the courts should decide matters
‘on a case by case basis’ (to use a phrase much beloved of some members of today’s
judiciary), then it is less than reassuring, as it threatens to increase subjectivity and
uncertainty at the expense of objectivity, certainty, predictability and therefore of justice.
Context is everything? If this means that the subject matter of the case is all important,
then it becomes even more disquieting. For what this implies is that a case will be
treated differently according to the identity of the applicant. And this is arguably borne
out by an examination of court decisions. Is it entirely fanciful to suggest that the courts
appear unduly concerned to protect the rights of convicted killers and other criminals,
prisoners in general and asylum seekers? The recent cases of Venables and Thompson
(the murderers of little Jamie Bulger), the childkiller Mary Bell, the murderer Anthony
Anderson and the Afghan hijackers differ in many respects but all have one thing in
common: victory for convicted criminals18.

‘POLICY DECISIONS’ v ‘DETERMINATION OFRIGHTS’

Yet another fashionable approach to judicial review was suggested by Lord Hoffmann,
who drew a distinction between ‘policy decisions’ and ‘a determination of rights’. In the
interests of democracy, policy decisions, or decisions as to what the public interest (or
general interest) requires, should be made ‘by democratically elected bodies or persons
accountable to them’. Examples of such decisions are questions of taxation, town and
country planning, and road construction. ‘In that way,’ said Lord Hoffmann, ‘democratic
principle is preserved19. When it comes to individual rights, however, Lord Hoffmann
recommends a different approach: There is no conflict between human rights and the
democratic principle. Respect for human rights requires that certain basic rights of
individuals should not be capable in any circumstances of being overridden by the
majority, even if they think that the public interest so requires. Other rights should be
overridden only in very restricted circumstances. These are rights which belong to
individuals simply by virtue of their humanity, independently of any utilitarian calculation.
The protection of these basic rights from majority decision requires that independent
and impartial tribunals should have the power to decide whether legislation infringes
them and either (as in the United States) to declare such legislation invalid or (as in the
United Kingdom) to declare that it is incompatible with the governing human rights
instrument. But outside these basic rights, there are many decisions which have to be
made every day (for example, about the allocation of resources) in which the only fair
17
. R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26, [2001] 3 All ER 433 at 446,
para 28, per Lord Steyn citing R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840.
18
. See the discussion in Chapter 3.
19
. R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23, [2001] 2 All ER 929 at 980, para
69.

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method of decision is by some person or body accountable to the electorate 20.
Unfortunately, however, the distinction between ‘policy decisions’ and ‘determinations of
rights’ is not as clear-cut as Lord Hoffmann’s classification might lead us to believe.
Immigration policy is a good example. Is it a matter of public interest or of individual
rights? If it is treated as a matter of public policy, the appropriate approach by the courts
should be judicial self-restraint, with reluctance on the part of the judges to interfere with
decisions taken by the elected legislature and democratically accountable executive. In
fact, however, this is one of the prime areas of particularly marked judicial activism or
even judicial supremacism, presumably on the assumption that it concerns fundamental
individual rights. Lord Hoffmann’s assertion that ‘there is no conflict between human
rights and the democratic principle’ is really an expression of an elitist theory of
democracy, which is at loggerheads with the normal ‘electoral’ theory of democracy.
The electoral view sees democracy as a system of government designed to give voice
to the wishes of the majority. By contrast, the elitist view sees democracy as a system
of government embodying certain ‘liberal’ or even ‘politically correct’ social and political
values, whether they are held by the majority or not. The problem with the elitist theory
of democracy is that it is an attempt to impose certain values on society regardless of
the views of the majority. In the normal sense, therefore, this elitist approach can be
seen as fundamentally undemocratic or even anti-democratic. To return to our example,
is it wrong for Parliament and the government to seek to control the influx of asylum
seekers? Seen as a policy decision with wide popular support, such measures should
surely be subject to minimal interference from the courts. Instead we find that it is an
area where the courts are more inclined than in almost any other to strike down
government policy. The justification for this is that, when looked at from the point of view
of individual asylum seekers, which is how the courts tend to view it, it is an area of
fundamental human rights entitling the courts to maximum interference. Which view is
correct? It cannot be stressed enough that a right enjoyed by one person necessarily
entails a reciprocal obligation owed to him or her by another. So, if asylum seekers are
accorded the right to be supported at public expense, this right imposes an obligation on
taxpayers to support them. Likewise, one person’s rights will be likely to compete with
those of others. So, for example, if asylum seekers are given the right to free housing,
this cannot but detract from others’ rights to free housing. Upon examination, therefore,
the assertion that there are some human rights that are so fundamental that they have
to be upheld by the courts in the face of opposition by the majority turns out in reality to
be a doctrine giving judges the power to impose their own social and political values on
society21.

20
. Ibid, para 70.
21
. Lord Hoffmann at least recognizes that, by contrast with both the legislature and the executive, judges are
not democratically accountable. Cf the views of Sedley LJ, discussed in Arnheim, Principles of the Common
Law, Duckworth, London (forthcoming).