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The distinction between appeal and review, which English administrative law has traditionally embraced, reflects the proper balance between judicial control and executive autonomy. However, the Human Rights Act 18 fundamentally changes the nature of the relationship between the judiciary and the administration. Discuss.

In examining this statement, let us first consider the true nature of the distinction between appeal and review. One such distinction was illustrated in the case of Quigly v Chief Land Registrar (1), whereby Lord Hoffmann LJ remarked that; A right of appeal to the court is entirely a creature of statute. So it follows that there must be a specific statutory provision before an appeal to a court against the decision of a public authority is allowed. This is not so for judicial review, which can be described as, ...the exercise of an ancient and inherent supervisory jurisdiction…by which excess or abuse of public power may be restrained or remedied (Turpin, British Government and the Constitution, pg. 575).

A further and perhaps more fundamental distinction was emphasised by Lord Green MR in Associated Picture Houses Ltd v Wednesbury Corporation (148), where he stated that judicial review, is not an appellate authority to override the decision of the local authority but rather is concerned with whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.

So, through the process of judicial review, the courts must concern themselves not with the merits of the particular decision, simply whether it is lawful; a decision may be wrong or unfair in the eyes of the judge, but it will still stand if it is deemed to be lawful. It is when the judge deems a decision wrong and substitutes his own opinion that it becomes an appeal. For the judge to do so within the judicial review process would be to undermine the doctrine of the separation of powers and would be entirely unacceptable in a modern democratic society. Instead, it is for the courts to uphold democracy by ensuring that Ministers are acting lawfully, i.e. within the scope of the powers entrusted to them by Parliament. In a nutshell appeal is about merits, review is about process.

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But is this really the case? Do the courts really respect the rigid restrictions imposed upon their jurisdiction with regards judicial review? It is true to say that the courts have always been more concerned about the decision-making process than the actual outcome or its implications. This policy was embodied by the Wednesbury reasonableness test, formulated by Lord Green MR and providing that a court may only set aside the conclusion reached by a decision-maker if the decision is so unreasonable that no reasonable authority could have come to it. In the more recent GCHQ case, Lord Diplock ruled that a decision may be irrational and hence unlawful only if it is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question could have arrived at it. The underlying notion behind both of these rulings is that the courts should disapprove of the substantive content of decisions only in extreme circumstances. Whilst this still allows some substantive analysis of the decisions, it only allows exclusion of exceptionally outrageous ones, leaving full discretion to the administrative authority below this high standard. More importantly, the judges do not substitute the authoritys decision for one of their own. This is- arguably- as it should be, respecting the discretion of democratically elected decision-makers and those with the specialist knowledge to best enable them to make the decision.

However, since Wednesbury, there has been a gradual shift in the courts attitude towards judicial review. One such explanation for this is the influence of our European counterparts. The European Convention on Human Rights, which came into force in 15, declares certain human rights and freedoms, which are or should be protected by the law in each state. It provides political and judicial procedures by which alleged infringements of these rights may be examined at an international level. The Convention had a deep influence upon the English courts, and the delicate balance that had been attained between judges and decision-makers. In R v Secretary of State for the Home Department ex p. Bugdaycay (187), the right to life was recognised as meriting the most anxious scrutiny of an administrative decision. In R v Secretary of the State for the Home Department ex p. Leech (no. ) (14), the Court of Appeal struck down a Prison Rule made under a broad discretionary power permitting the Home Secretary to regulate and manage prisons. The particular rule allowed the prison governor to censor correspondence between the prisoner and his solicitor. Lord Steyn held that this deprived the prisoner his constitutional right of access to justice, and that such a right could only be interfered with where there was a pressing need, and even then the intrusion should be the minimum necessary.

It is clear that these decisions were made with regard to the ECHR and the fundamental rights that it embodies. It is also clear that the courts took a different approach to the previously accepted one when these rights were at stake, performing a more anxious scrutiny of the decision and not simply determining whether the decision was Wednesbury unreasonable. The test appears to have moved towards more of a proportionality test, as endorsed by the European Court of Justice, which inevitably means that the courts have taken a more substantive approach.

Yet, European influence cannot entirely be held responsible for the courts changing attitude to judicial review. The introduction of the Race Relations Act 176 and the subsequent Race Relations (Amendment) Act 00 placed upon public authorities a duty to conduct their affairs with due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups. Therefore, when reviewing the decisions of these authorities, a court may decide that a decision is not Wednesbury unreasonable, but nonetheless does not comply with the terms of the 000 Act and is therefore unlawful; the Wednesbury standard inevitably being lowered to accommodate such a decision.

So, it is shown that contrary to the question statement, without the aid of the Human Rights Act 18 our courts have begun to shift the boundaries of judicial review by explicitly endorsing a higher order of rights inherent in our constitutional democracy. Where there is a breach of a constitutional right, the court will scrutinise the justification for the breach more intensely than the Wednesbury test permits. As Lord Bingham MR stated in R v Ministry of Defence ex p. Smith (16), 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 beyond the range of responses open to a reasonable decision-maker

A wider test than the Wednesbury test was also used in the case of R v North and East Devon Health Authority ex p. Coughlan (000). This case involved four chronically ill patients who were promised a home for life in a special nursing home by the local health authority. The authority later reneged on that assurance and the Court of Appeal held the authoritys actions unlawful, thus upholding the doctrine of substantive legitimate expectations. The court decided that the frustration of the substantive expectation was so unfair as to amount to an abuse of power, the test being whether there is a sufficient overriding interest to justify a departure from what had previously been promised. Surprisingly, the Court ruled that this is not a matter to be decided on the basis of the rationality or the Wednesbury test, but is a question for the court.

One of the justifications that the Court used for this approach, which arguably puts the judges in the position of policy-makers, was that the authoritys conduct was in breach of Section 8 () of the Human Rights Act (Everyone has the right to respect for…his home…). So even in advance of the implementation of the Human Rights act, the court was willing to both lower the Wednesbury reserve, and to collapse the decision-makers discretionary area of judgement and leave it to the courts to determine whether the violation of the right was justified.

When the Human Rights Act 18 was implemented in October 000, the ground was already prepared for a more intensive method of review and the courts had already become accustomed to using proportionality as the standard. The Human Rights act merely cemented its use in preference to the Wednesbury test, as was conclusively determined in Lustig-Prean v UK (1). Prior to this, the case of R v Ministry of Defence ex p. Smith (16) showed an incorporation of the Wednesbury test into the proportionality process in order to achieve a result compatible with the need to recognise and protect human rights whilst keeping ministerial autonomy intact. Sir Thomas Bingham MR in the Court of Appeal said that, The court may not interfere with the exercise of administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But …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.

Applying this test, the Court of appeal held that the discharge of the claimants from the army on the sole grounds of their homosexuality was not unlawful. However, when the claimants took their case to Strasbourg, the European Court of Human Rights held that the United Kingdom had unlawfully interfered with their private lives, contrary to Article 8 of the Convention. The scrutiny that the decision was subjected to by the British courts was held to be insufficient; although the initial stages of the process (balancing the rights with the reasons for derogating from them) were almost identical in both courts, the British courts went on to apply the Wednesbury test, whilst the European Court went on to ask whether the UK governments policy was necessary in a democratic society. So this was an unequivocal direction that, insofar as human rights are concerned, Wednesbury scrutiny will not suffice.

Does this, however, mean that the margins between appeal and review have been irrecoverably erased? According to Jowell (Beyond the Rule of Law Towards Constitutional Judicial Review CLJ 000 67) to equate proportionality with a means test is both too simple and wrong. Proportionality involves a sophisticated four-stage process, determining firstly whether the action pursued a legitimate aim; secondly whether the means employed were suitable to achieve that aim; thirdly whether the aim could have been achieved by a less restrictive alternative and, finally, whether the derogation was justified overall in the interests of a democratic society. So a weighing-up is made of the rights that have been derogated and the reasons of the derogation, the derogation only being allowed if there were no less restrictive means by which the decision-maker could have achieved his aim. The emphasis here is on judicial identification of disproportionate avenues of administrative action, rather than judicial dictation of a single proportionate response; judges are limiting the responses open to the decision-maker, but not, as is the case in appeal, substituting their own right response.

This was illustrated in the case of R (Daly) v Secretary of State for the Home Department (001). The claimant successfully contended that the policy of excluding prisoners from their cells whilst conducting searches was unlawful to the extent that it precluded prisoners presence during the examination of legal correspondence. The case was explicitly decided by reference to the principle of proportionality. Lord Bingham began by determining that the policy infringed the claimants right to legal professional privilege then observed that the policy was prima facie justified by the competing public interest in prison security, since legal correspondence may be a hiding place for illicit material. Rather than asking whether this was reasonable in the Wednesbury sense, Lord Bingham said it was necessary to ask whether…the policy can be justified as a necessary and proper response to the acknowledged need to maintain security, order and discipline. It was held that although it was possible to exclude prisoners who posed a particular security risk, the blanket exclusion policy constituted a disproportionate infringement of the relevant right.

In this case, Lord Steyn commented that, there is an overlap between the traditional grounds of review and the approach of proportionality…But the intensity of review is somewhat greater under the proportionality approach. He went on to explain that proportionality is about the courts balancing the constituent elements of the decision, as opposed to simply determining whether it is unreasonable or not. The point was emphasised that, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relevant weight accorded to interests and considerations. However, their Lordships were at pains to emphasise that the proportionality doctrine and the appeal-review distinction can co-exist. According to Lord Steyn, applying proportionality in human rights cases does not mean that there has been a shift to merits review…the respective roles of judges and administrators are fundamentally distinct and will remain so.

This would appear to be correct, despite the misgivings of Lord Ackner in R v Home secretary ex p. Brind (11), who claimed that, The European test of whether the interference complained of corresponds to a pressing social need must ultimately result in the question Is the particular decision acceptable? and this must involve a review of the merits of the decision. With respect, this has proven to be a fallacy. Whilst the more intensive scrutiny of a proportionality test inevitably involves a more substantive approach, taking into consideration the acceptability of the decision in a democratic context as opposed to simply terming it unreasonable, the judges are not substituting their own opinion and so it is not a merits-based appeal. Whilst substantially limiting the options available to the decision maker may give the same effect as the judges inserting their own opinion, scaling down options is nonetheless fundamentally different from imposing a single response.

Not only has the proportionality method ensured the protection of fundamental human rights, it has opened up the review process, clarifying the underlying reasons for decisions and ensuring that both court rulings and ministerial decisions are considered and obtained systematically. As well as this, the separation of powers doctrine remains intact because ultimately it is the minister and not the court that makes the final decision, only with regard to the ever-important human rights context. As Lord Steyn rightly stated, In law, context is everything.

The nature of the relationship between the judiciary and the administration has undergone a change, with the courts effecting a more anxious scrutiny of executive decisions. Yet this change did not owe in its entirety to the introduction of the Human Rights Act 18, and as we have seen, came about long before this Acts contemplation. Any change that has occurred is surely a positive step in the active protection of rights, whilst executive autonomy, so fundamental to our constitution has though the considered proportionality process, remained intact.

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