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Annual Lecture 1999 : The Modern Development of Public Law in Britainl and the Special Impact of European Law

Speaker: The Right Honourable The Lord Irvine of Lairg, Lord High Chancellor of Great Britain
Date:
1999-09-10T00:00:00+08:00

1. INTRODUCTION

 

I am honoured to have been invited to give this sixth Annual Lecture to the Singapore Academy of Law. I follow a line of distinguished speakers from Commonwealth countries who have given the Annual Lecture since its inauguration in 1994. Let me for one moment remember Lord Chief Justice Taylor. He delivered the Inaugural Lecture. His premature death in April, 1997, took from us a strong leader who was held in the highest regard in Britain and across the common law world.

 

The Singapore Academy of Law was established in 1988 primarily to promote continuing legal education and to provide a forum for informal interaction between members of the different branches of the legal profession in Singapore. However, in 1995, the role of the Academy was extended to include, among other things, the undertaking of activities and projects relating to the study, development and operation of laws and legal systems and the facilities, information technology and infrastructure in support of them.

 

I am hugely impressed by the way in which you, in Singapore, have harnessed the benefits of information technology to improve the efficiency of your civil procedural system. The most obvious example of this is the Electronic Filing System launched in 1997. I understand that the Academy has, or soon will, take over responsibility for its running, and already operates the LawNet system in Singapore. I am afraid that we, in the United Kingdom, have yet to realise the full potential of information technology in the area of civil procedure and have much to learn from you.

 

However, the use of information technology is only one of the many changes which have taken place in the administration of justice in Singapore since Chief Justice Yong Pung How, also President of the Academy, took office. One of the most fundamental was the abolition of the final right of appeal to the Judicial Committee of the Privy Council in London. Whilst we value greatly our links with Singapore, both historical and modern, it is clearly right that the final court of appeal for Singapore should be determined by Singapore and be one that is closely responsive to the needs of Singapore. Other less substantive changes, such as that in relation to court dress, are changes of which I am sure many of the English judiciary are envious!

 

You have also instituted a number of procedural reforms in the Supreme Court with a view to reducing the cost and time of proceedings. These reforms have largely been successful in reducing the backlog of cases and for that I congratulate you. We have recently instituted procedural reforms in England and Wales with a view to achieving a similar end – primarily ensuring that the time and cost of proceedings are proportionate to the value of the claim. I mention these reforms because I strongly endorse your President’s stated view that the courts are accountable to the public for the efficiency of the legal system.

 

At the opening of this legal year your Chief Justice commented that it marks the 30th anniversary of the passing of the Supreme Court of Judicature Act in Singapore. He rightly took pride in the fact that, in the ensuing years, you have not simply preserved but have enhanced the rule of law. He noted the heightened public expectations of the legal system, and the need not only to meet those expectations but to strive to surpass them.

 

The way in which the role of government has evolved over recent decades has contributed substantially to the public’s increased expectations of the legal system. The United Kingdom is a case in point. In Britain, it has traditionally been Parliament’s function to ensure that government is conducted responsibly. However, as the role of the state steadily expanded, it became increasingly apparent that Parliament could no longer, on its own, secure accountable government. This is the context within which modern administrative law evolved in the United Kingdom. As Lord Mustill put it, in order to "avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers, the courts have had no option but to occupy the dead ground [left by Parliament] in a manner, and in areas of public life, which could not have been foreseen 30 years ago".

 

Against this background, it is my purpose today to address some of the most significant recent developments in English public law and, in particular, to explore why British administrative law has developed in the way that it has. However, before turning to specific principles of public law, it is necessary to consider the constitutional context within which it has grown. Only by understanding the key components of that constitutional framework, and the way in which those components interrelate, is it possible to appreciate why English administrative law exists in its current form - and how it is likely to evolve in the future.

 

2. ENGLISH ADMINISTRATIVE LAW

IN ITS CONSTITUTIONAL CONTEXT

 

2.1 Public Law and Constitutional Principle

 

Public law is, inevitably, the product of a complex interaction of social, political and legal forces. However, it is undoubtedly the case that, pre-eminent among the numerous influences which have shaped the development of administrative law in England and Wales, are the twin principles of parliamentary sovereignty and the separation of powers. Let me consider each of these in turn.

 

2.1.1 The Separation of Powers

 

It has long been accepted that a proper balance of powers is fundamental to any concept of constitutionalism. The idea which lies at the core of the separation of powers theory - that the legislative, executive and judicial functions of government should be discharged by independent institutions - is strikingly simple. Unsurprisingly, however, the way in which different countries give expression to this concept is coloured by their own legal and political traditions.

 

In the United Kingdom, the approach taken is essentially pragmatic and there is no mechanical adherence to a rigid doctrine of the separation of powers. As political, legal and social conditions evolve over time so, too, conceptions change of what the respective institutions of government should do, and of the powers which each should exercise over the others.

 

Lord Denning, who died earlier this year after reaching his hundredth birthday, made a profound contribution to the development of modern administrative law in Britain. Writing twenty years ago, he recognised that, "The great problem before the courts in the twentieth century has been: In an age of increasing power, how is the law to cope with the abuse or misuse of it?" It is the flexible pragmatism that lies at the heart of the British conception of the separation of powers which has permitted the courts to rise to precisely this challenge. Lacking either a sovereign constitutional text or a legislative foundation on which to base a modern system of public law, the courts set about the task of adapting ancient remedies, such as the prerogative writ of certiorari, to more contemporary needs. Such organic development is the hallmark of British public law, which continues to evolve as circumstances require. Thus, for example, growing judicial awareness, in the 1980s, of the way in which some quasi-governmental functions were coming to be discharged by non-statutory agencies prompted the courts to extend the reach of their supervisory jurisdiction in order to permit the legal regulation of such bodies. In this way, the informal flexibility of the unwritten constitution and the pragmatic theory of the separation of powers which underlies it have been central to both the inception and evolution of contemporary administrative law in Britain.

 

2.1.2 The Sovereignty of Parliament

 

This, however, is only part of a larger constitutional picture. As well as understanding the constitutional forces which have made possible the organic growth of public law, it is also necessary to appreciate the limits which constitutional principle has imposed upon its development. It is the doctrine of parliamentary sovereignty which exerts the most profound influence in this area: let me outline, briefly, how it has shaped the constitutional framework within which judicial review has developed.

 

The theory of legislative supremacy is one of the fundamental pillars of our constitution. Viewed in its contemporary setting, it expresses the primacy which is attached to democracy in the United Kingdom, by precluding interference with that which has received the approval of the legislature. For this reason, the courts are not constitutionally permitted to question legislation which has been passed by Parliament. Judicial review in Britain is therefore restricted to administrative action, and does not extend to primary legislation.

 

As well as determining what the courts may review, the doctrine of parliamentary supremacy profoundly affects how they exercise their supervisory jurisdiction. It is a function of Parliament’s sovereignty that it can choose in whom to vest decision-making power. It is therefore crucial that the courts should carefully distinguish between the legality of executive decisions and their merits. While adjudication on the former is pre-eminently a matter which lies within the constitutional province of the judiciary, the latter is not: if the courts enquired into the merits of decisions which a democratically-elected Parliament had remitted to a specific agency, the judges would - contrary to Parliament’s intention - usurp the agency by acting as primary decision-maker. This, in turn, would undermine both the constitutional principle of parliamentary sovereignty and the democratic imperative on which it is based.

 

I shall have a good deal more to say about these issues later, when I consider how the constitutional framework impacts upon specific principles of administrative law. My present concern, however, is with the nature of that framework itself. This context, within which judicial review has evolved in Britain, is a combination of informal flexibility and fixed principle. It is the former which has permitted the organic development of administrative law in the United Kingdom, while the latter demarcates the outer limits of the courts’ public law role. Only by understanding that these are the foundations on which judicial review rests in England and Wales is it possible to appreciate why our judges have fashioned the superstructure of administrative law as they have.

 

2.2 External Influences on British Public Law

 

Thus far, I have considered the internal constitutional factors which have shaped the development of public law in Britain. However, the context within which administrative law exists has also been influenced, in recent years, by external forces. These derive from legal systems which are not based on the common law tradition, and they result from the close relationship which now exists between the United Kingdom and the other countries of Europe. I shall turn, in a moment, to the impact of the European Convention on Human Rights and its incorporation into domestic law; first, though, let me consider how Britain’s membership of the European Union has affected the UK’s constitutional framework.

 

2.2.1 The Influence of European Union Law

 

It is crucial to the proper functioning of the EU that European law should have uniform effect throughout all fifteen member states. National courts play a key role. They do so by seeking, wherever possible, to interpret national law consistently with Community law, thus ensuring that the latter takes effect throughout the Union. Occasionally, however, it is simply not feasible for a national court to construe domestic law in this way. In the leading case of Factortame, the European Court of Justice held, and the British courts accepted, that in such situations domestic tribunals must be willing to set aside national legislation in order to secure effect for Community law. Thus it was possible, in that case, for the House of Lords to grant interim relief, so disapplying municipal legislation which contradicted certain principles of EC law. In this way the courts have acquired a limited jurisdiction to review primary legislation and, to this extent, parliamentary sovereignty is curtailed so long as the United Kingdom remains part of the European Union. Indeed, it is clear from the European Communities Act 1972 that Parliament voluntarily accepted this limitation of its sovereignty.

 

In order to evaluate the constitutional implications of this development, it is important to distinguish between what may be termed Parliament’s ultimate sovereignty and its contemporary sovereignty. Lord Denning expressed the opinion, in 1979, that if Parliament were to pass a statute with the clear intention of acting inconsistently with Community law, and said so in express terms, then the courts would have to give effect to such legislation,notwithstanding the conflict with EC law. Although not all commentators share this view, it is certainly unquestioned that Parliament could enact legislation to withdraw the United Kingdom from the European Union. For this reason, it is said that Parliament’s ultimate sovereignty remains intact.

 

In contrast, while Britain remains a member of the EU, Parliament’s contemporary sovereignty is limited in the sense that national law must, in the final analysis, yield to Community law, at least in the absence of express derogation. This is of considerable importance to the theme of my lecture today. The limitation, by EU law, of Parliament’s contemporary sovereignty has profoundly affected the constitutional framework which accommodates British public law. Although the direct impact of Factortame relates only to judicial review of legislation which conflicts with Community law, it was inevitable that a development of such significance would also have more subtle, indirect consequences for public law. Let me give an example of this phenomenon at work.

 

In the Factortame case, the House of Lords was asked to grant an interim injunction in order to suspend the operation of certain provisions of the Merchant Shipping Act 1988. Their Lordships held that, as a matter of English law, such relief could not be granted, due to the existence of a common law rule preventing the issue of injunctions against the Crown. The House then asked the European Court of Justice whether that common law rule was compatible with Community law. The European Court held that it was not - and, since Community law takes priority over municipal law, it followed that the common law rule could not operate to prevent relief being granted against the Crown in cases involving Community rights.

 

Three years after its Factortame decision, the House of Lords was again required, in the case of M v. Home Office, to consider the availability of injunctions against the Crown. That case, however, did not possess any European dimension, which meant that their Lordships were under no Community law obligation to hold that such relief was available. Nevertheless, in the wake of the Factortame decision, the House departed from the common law rule prohibiting injunctive relief against the Crown, and upheld the grant of an injunction against the Home Secretary.

 

As I said earlier, public law in the UK is profoundly influenced by the broader constitutional framework within which it subsists. British membership of the European Union has significantly modified that framework by reorienting the relationship between the judiciary and the other branches of government in cases which engage Community law. And, although the courts’ power to review primary legislation is confined to such cases, decisions such as M v. Home Office demonstrate that the constitutional change effected by membership of the Community has a broader resonance which impacts upon the development of public law in purely domestic contexts.

 

2.2.2 The Influence of the European Convention on Human Rights

 

Apart from EU law, the other major external influence on British public law - and the constitutional framework which accommodates it - is the European Convention on Human Rights. This will assume greater relevance still when, in October 2000, the entry into force of the Human Rights Act will incorporate the Convention into domestic law. Incorporation was long overdue, and the failure to incorporate was particularly aberrant in light of the crucial part that the United Kingdom played in the conception and drafting of the Convention. It gives me great personal pleasure that this situation is soon to be put right, and that British citizens will then be able to enforce their rights under the Convention in national courts, rather than being required to undertake the costly and time-consuming step of presenting their cases to the European Court of Human Rights in Strasbourg.

 

This is not to say that, pending incorporation, the Convention has no relevance in domestic law. It is, for instance, used by the courts to aid the construction of ambiguous legislation; it may influence the development of the common law when it "is not firmly settled", and it shapes the way in which judges exercise their discretion.

 

However, the Convention’s relevance will be immeasurably greater once the Human Rights Act enters into force. Government and other public authorities will, for the first time, be placed under an enforceable obligation to act in a manner which respects the Convention rights. Courts will have to construe national law consistently with the Convention wherever possible, thus ensuring that the vast majority of English law is rendered compatible with the Convention. And, where interpretative endeavour fails to secure such an outcome, the higher courts will have the power to declare that UK law is defective in the sense that it fails to comply with the requirements of the Convention. Although this does not give the judges any power to overturn incompatible legislation, a declaration of incompatibility will trigger a fast-track procedure under which the deficiency can be remedied.

 

Through the medium of the Human Rights Act, the influence of the European Convention on English public law will be twofold. Its direct impact will be seen in the infusion of national administrative law with a new set of rights-based principles which individual citizens will be able to enforce against public authorities.

 

Like European Community law, though, the Convention will also influence English public law in more subtle, less direct ways. The Human Rights Act strikes a careful balance between, on the one hand, the practical imperative of effective rights protection and, on the other hand, the preservation of the theory of parliamentary sovereignty. This balance is achieved by maintaining the sovereignty principle, while changing the environment within which Parliament will, in future, exercise it. The new powers of the courts to issue declarations of incompatibility will focus legislators’ minds, more clearly than ever before, on human rights issues. Consequently, while Parliament will certainly retain its sovereignty, it will be much less likely to use it in a manner which is insensitive to the values embodied in the Convention. What this will reduce to is a political doctrine of legislative self-restraint in deference to human rights considerations.

 

The result of this is that, while the fundamental parameters represented by sovereignty theory will remain, the dynamics of the relationships between the courts, the executive and Parliament will, within those ultimate limits, subtly change. In this manner, the Convention, through the Human Rights Act, will exert an indirect as well as a direct influence on British public law by modifying the constitutional landscape within which it is situated.

 

3. ENGLISH PUBLIC LAW, EUROPEAN INFLUENCE

AND THE BRITISH CONSTITUTION

 

I have been concerned thus far to identify the key factors which have impacted upon the development of public law in the United Kingdom, and to explore the manner in which they interrelate. Let me now turn from the general to the more specific, by exploring the relationship between the constitutional framework which I have just sketched and some of the most significant recent developments in English public law. In particular, I should like to consider the way in which specific principles of European administrative law have begun to infiltrate British law. It will become apparent that, while English public law is a product of both internal constitutional principle and external influences, the extent to which the latter may take root in domestic law is ultimately determined by the former. Let me focus on two particular principles of European public law: first, the doctrine of legitimate expectation; and secondly, the doctrine of proportionality.

 

3.1 Legitimate Expectation

 

3.1.1 The Principle of Legitimate Expectation

 

Yong Pung How C.J. had occasion, in the case of Abdul Nasir bin Amer Hamsah v. Public Prosecutor, to consider the role of legitimate expectation in public law. He commented that, in developing that doctrine, the courts in Singapore were seeking to give effect to the idea that certain "expectations could, in suitable circumstances, be deserving of protection, even though they did not acquire the force of a legal right".

 

The facts of the GCHQ case provide a good illustration of the sort of situation in which English courts are willing to invoke the legitimate expectation doctrine. Members of a trade union had traditionally been consulted before major changes were made to their conditions of service; consequently, when the right to union membership was revoked without any prior consultation, judicial review was sought. In the House of Lords, Lord Fraser commented that, if national security considerations had not prevented the courts from intervening in the dispute, he would have been willing to hold that the union members had an enforceable expectation to be consulted. Thus it is now well established in English law that expectations can be protected procedurally by, for example, requiring consultation or a hearing before established practice is departed from.

 

3.1.2 Substantive Expectation: A European Influence

 

The European Court of Justice, however, has gone further, by holding that the doctrine of legitimate expectation possesses a substantive, as well as a procedural, dimension. The distinction between substance and procedure in this context is of considerable practical - and, as we shall see later, constitutional - significance. Take, for example, the person who plans a course of conduct on the basis that a public authority will follow a particular policy which it has announced, only to find that he later suffers disadvantage when the original policy is abandoned in favour of a new one. If legitimate expectations were protected only procedurally, the most that the individual could hope for from a court would be an order requiring consultation before the change of policy. If, however, legitimate expectation is a substantive - not merely a procedural - institution, the position is very different. It is then open to a court to require the public authority to confer upon the individual the substance of the benefit which he expected to receive under the policy or, at the very least, to protect the individual’s interests by means of transitional arrangements when the new policy is introduced.

 

3.1.3 The Response of English Law

Our courts have reached conflicting decisions on the extent to which English law permits the protection of substantive expectations. In the case of Richmond London Borough Council, Laws J, (now Laws LJ), unequivocally held that "the law of legitimate expectation ... only goes so far as to say that there may arise conditions in which, if policy is to be changed, a specific person or class of persons affected must first be notified and given the right to be heard". Not all judges, though, share this view. In particular, Sedley J., (now Sedley LJ), whose views I shall consider in a moment, has spoken strongly in favour of protecting substantive expectations.

 

In my opinion, the answer to this conundrum is to be found from a consideration of the constitutional context within which administrative law subsists and evolves. In particular, it is crucial to recognise that there exists, in this area, a constitutionally important distinction between matters of procedure and substance which, in turn, impacts upon the proper role of the judiciary in the public law field.

 

When a court protects an expectation by procedural means, this has a minimal impact on the administrative autonomy of the relevant authority. This is because the imposition of a procedural requirement merely constitutes a condition precedent to proposed policy change, and does not in any sense attenuate the authority’s ultimate freedom to alter its policy. The implications of procedural protection of expectations are equally modest when the role of the court is considered: judicial insistence that a certain procedure must be implemented before a policy is altered creates no risk of the judge usurping the role of the public authority, since the court is only concerned with how, not whether, the policy is changed. Procedural protection of legitimate expectations thus presents no constitutional difficulty: the courts remain within their proper constitutional sphere and the ultimate autonomy of public authorities is never placed in jeopardy.

 

The position is different if an expectation is protected substantively. Consider, first, the impact of this on the public decision-maker. The provision of substantive relief may well have the effect of preventing the agency in question from departing from its existing policy. This, in turn, represents a very significant reduction in the freedom which the public authority enjoys in formulating and implementing policy. Substantive protection of expectations also carries with it important implications for the role of the courts since, once judges begin to adjudicate on the content and substance of executive decisions, the risk arises that they may, in effect, take over the role of the decision-maker, so exceeding their proper constitutional function.

 

It is certainly not my view that the judiciary should never review public decision- making on substantive grounds. However, in light of the constitutional implications which I have outlined, it is essential that the courts exercise particular caution in this area. The question, therefore, is not whether expectations should ever be protected substantively. The real issue concerns the criteria by which the courts ought to determine when substantive protection is appropriate.

 

One answer to this question was suggested by Sedley J. in the Hamble Fisheries case. He said that it is "the court’s duty to protect the interests of those individuals whose expectation of different treatment has a legitimacy which out-tops the policy choice which threatens to frustrate it". On this view, the court balances the merits of the relevant policy against the value of the individual’s expectation and, whenever the latter outweighs the former, substantive relief may be granted in order to preclude departure from the policy.

 

The difficulty with this approach is that it permits a court to prevent a change in policy whenever it disagrees with the public authority’s evaluation of the relative importance of, on the one hand, satisfying the individual’s expectation and, on the other hand, instituting a new policy. It is not the constitutional function of a court to decide what the policy of the executive ought to be, and whether that policy can be changed. That is properly a matter for the decision-making agency which Parliament has designated. It follows that judicial intervention on substantive grounds is warranted only when the agency has very clearly exceeded the authority which Parliament conferred upon it. Consequently, it is only right for a court to grant substantive relief if the public authority was manifestly unreasonable in deciding that the benefit of changing its policy justified frustration of the individual’s expectation.

 

This test - known as the Wednesbury doctrine - strikes the correct balance between judges and decision-makers, and our Court of Appeal has now clearly stated that this approach must be applied in the context of substantive expectation. In this way the British courts have embraced the idea of substantive legitimate expectation, already well established in the jurisprudence of the European Court of Justice; but this European influence has been accommodated by English law in a way which takes account of internal constitutional principle.

 

3.2 Proportionality

 

3.2.1 Proportionality: A European Influence

 

Let me now move on to consider the doctrine of proportionality. It originated in Germany in the late nineteenth century, and now finds expression - to a greater or lesser degree - in the administrative law of many European countries, as well as in the jurisprudence of the European Court of Justice.

 

Proportionality also occupies a central role in the case law of the European Court of Human Rights. In the fundamental rights context, the principle of proportionality dictates that, when public policy requires the qualification of a particular right, the limitation imposed must go no further than is strictly necessary. For example, in the Sunday Times case, the House of Lords had granted an injunction prohibiting the publication of an article which concerned a matter that was due to be litigated. The Strasbourg Court accepted that the injunction had been issued in order to protect the integrity of the judicial system, and that this was a legitimate aim. At the same time, however, it was clear that the injunction had the effect of limiting free expression, which is a right enshrined in the Convention. The Court therefore applied the proportionality test in order to determine whether the restriction on free speech was lawful, and concluded that it was not: the restriction was disproportionate to the aim being pursued because the issuing of an injunction "was not necessary in a democratic society for maintaining the authority of the judiciary".

 

3.2.2 The Response of English Law

 

In light of the importance of proportionality in European law, I wish to examine the extent to which it has influenced - and ought to influence - English public law. I have already noted that proportionality is a useful tool in the human rights context. The courts in the United Kingdom have clearly recognised the importance of upholding fundamental rights: to this end, as they interact with public authorities, British citizens already enjoy a comprehensive set of procedural rights under domestic administrative law. It is, however, the status of substantive rights - freedom of expression, freedom of movement, and so on - with which I am presently concerned, since it is in this area that the attitude of English courts to proportionality is revealed most clearly.

 

The case of R. v. Ministry of Defence, ex parte Smith is a good starting point. The applicants challenged, by way of judicial review, the British government’s policy of prohibiting persons of homosexual orientation from serving in the armed forces. This, said the applicants, constituted a breach of Article 8 of the European Convention, which requires respect for an individual’s private life. The judgment of Simon Brown L.J., in the Divisional Court, demonstrates with particular clarity the present attitude of English courts to the doctrine of proportionality. Having accepted that the government’s policy did engage the applicants’ human rights, Simon Brown L.J. went on to consider whether there existed a compelling public interest which could justify that policy. His Lordship concluded that the arguments were finely balanced, but said that, in his view, those who sought to condemn the policy had the stronger case. Thus it appears that, had the courts used the proportionality test in Smith, they might have concluded that the qualification placed on the applicants’ rights was not proportionate to the aim being pursued.

 

In reality, however, the courts did not analyse the facts of Smith by reference to the proportionality principle. Instead, they held that the government’s policy would be unlawful only if it could "properly be stigmatised as irrational". As Lord Bingham M.R. held in the Court of Appeal, the more substantially a government decision interferes with human rights, "the more the court will require by way of justification [for that interference] before it is satisfied that the decision is reasonable [in the Wednesbury sense]". Nevertheless, the crucial point is that, at the present time, English courts continue to evaluate the legality of decisions which engage human rights by reference to the Wednesbury rationality test, not the proportionality principle.

 

Against this background, I should like to address two specific points. I will consider, in a moment, the likelihood of proportionality taking root as a general principle of English administrative law, freed from Wednesbury clothing. First, however, let me focus on the domestic role of proportionality in the particular context of human rights.

 

3.2.3 Proportionality, English Law and Human Rights

 

It may, at first glance, seem odd that the English courts have refused to deploy the proportionality doctrine in human rights cases, particularly in light of the role which it plays at the European level. In order to understand why this position obtains, it is - as ever - necessary to look to the constitutional framework within which our courts develop public law.

 

The Wednesbury principle reflects a particular conception of the respective constitutional roles of the judiciary and the executive, and of the relationship which ought to exist between them. Within this framework, primary responsibility for decision-making rests with public authorities acting under powers conferred by Parliament. While the courts serve a crucial function - by ensuring that public administration is conducted according to law - their role is, ultimately, secondary. This means that a government decision cannot be overturned simply because a court disagrees with it.

 

There are three good reasons which explain why this is so. First, there exists a constitutional imperative: if Parliament confers decision-making power on a particular agency, the courts would frustrate Parliament’s sovereign will if they arrogated that power to themselves. Secondly, there is the pragmatic imperative: the courts, particularly on substantive matters of policy, have considerably less expertise than the designated authority; it is, therefore, desirable that the authority itself should make such decisions because it is better equipped to do so. And, thirdly, there exists a democratic imperative: the electoral system operates as an important safeguard against misuse of public power by requiring many public authorities to submit themselves to the verdict of the electorate at periodic intervals. If this system of political accountability is to function, it is important that the decision-making role of those agencies is not usurped by the courts.

 

This is the constitutional philosophy which gives rise to the distinction between legality and merits, which I mentioned towards the beginning of this Lecture, and it is precisely this philosophy which the Wednesbury principle embodies by permitting judicial intervention on substantive grounds only when the court concludes that a decision is aberrant. In contrast, the proportionality principle would require the judiciary to make a far more detailed evaluation of the merits of public decisions which, in turn, would fundamentally change the nature of the relationship which obtains between judges and decision-makers.

 

The courts here in Singapore have arrived at broadly the same conclusion. In Chng Suan Tze v. Minister for Home Affairs, Wee Chong Jin C.J. addressed the role of proportionality in the public law field in Singapore. He concluded that "this principle has not been established as a separate ground of review"; instead, proportionality "can be subsumed under ‘irrationality’". Since the courts in Singapore are only willing to set aside decisions which are so disproportionate as to be irrational, it follows that the Wednesbury principle remains the touchstone in Singapore as in Britain.

 

Indeed, any other approach would involve judicial usurpation of a function that lies within the constitutional province of the executive. As Simon Brown L.J. commented in Smith, although British judges fully recognise that "the protection of human rights is ... a matter with which the courts are particularly concerned and for which they have an undoubted responsibility", they nevertheless "owe a duty too to remain within their constitutional bounds and not trespass beyond them".

 

It is true that English courts will begin to use the tool of proportionality in cases which affect fundamental rights once the Human Rights Act is activated next year. The crucial point, however, is that the courts will do this because Parliament will have ordained that they should. In the British constitutional system, the three branches of government are not equal and co-ordinate: Parliament is the senior partner, and Parliament alone is able to change the constitutional ground rules. This central feature of the UK’s constitution explains why, notwithstanding the considerable influence exerted by the principle of proportionality, English courts have, until now, been unable to embrace it in the domestic context. This, in turn, illustrates one of the fundamental themes of my Lecture today: that, while modern English public law is a complex product of internal constitutional principle and external influence, the extent to which the latter may affect administrative law is ultimately determined by the former.

 

3.2.4 Proportionality: A General Principle of English Public Law?

 

Since proportionality will come to be used by English courts in human rights cases the critical question is whether this mean that proportionality will become a general principle of administrative law? In other words, will the entry into force of the Human Rights Act lead to a change in the standard of review, from rationality to proportionality, in all public law cases, whether or not they possess a human rights dimension?

 

Opinion is presently divided. A number of writers urge that proportionality should be used as a general principle of administrative law. In particular, they argue that it constitutes a more transparent and structured methodology than what has been termed the "blunt tool" of Wednesbury unreasonableness. I do not share this view. The fact that proportionality will become an established ground of judicial review in cases brought under the Human Rights Act does not necessarily mean that it ought then to be viewed as the proper standard of review in every public law case. This follows for two related reasons.

 

The courts have rightly refused to use the proportionality test until the Human Rights Act is activated. The entry into force of that Act will not, of course, have any bearing on the consequences which follow from applying the proportionality doctrine: it will remain the case that, in using proportionality as a ground of review, executive action will be subjected to considerably more rigorous scrutiny than it is, presently, under the Wednesbury doctrine. The effect of the Act, therefore, is not to change the implications of proportionality-based review but, rather, to ordain that the use of proportionality is constitutionally acceptable notwithstanding that it carries such implications. In this sense, the Act will form a warrant which will confer constitutional legitimacy on proportionality-based review. It is, however, perfectly clear from the Human Rights Act that this warrant extends only to cases which, in the first place, engage fundamental human rights. It follows that the considerations based on constitutional propriety which have, to date, rightly deterred English courts from embracing proportionality will, in the future, continue to apply to cases which do not fall under the new human rights legislation: it is the Human Rights Act which will justify the courts’ shifting from rationality- to proportionality-based review, and it is therefore that Act which ought to determine the compass of the proportionality principle.

 

There exists a second factor which points towards the same conclusion. It is already a well-established principle in English public law that judicial review does not constitute a monolithic standard of supervision. Rather, the intensity of review in any particular case is determined by its facts and context. For example, the courts accept that it is appropriate to adopt a relatively deferential attitude to decisions concerning national economic policy. In contrast, although they are, at present, ultimately constrained by the Wednesbury principle, the courts certainly subject executive action which engages human rights to much more thoroughgoing scrutiny. Thus it is possible to envisage a continuum along which cases of different types lie, ranging from those which attract only a modest degree of judicial scrutiny, to human rights cases which lie at the other end of the spectrum and which are, quite properly, scrutinised with great rigour. This recognises that the need for judicial review varies according to the context. Different levels of intervention - and tools of differing intensity - are therefore required at the various points which lie along the continuum. Fundamental rights possess a normative resonance which makes the incisive tool of proportionality an appropriate method by which to uphold them. Such a high degree of judicial intervention in the administrative process is not, however, appropriate in other contexts. It is for this reason that the intrusive device of proportionality should be confined to the special area of human rights, and should not be perceived as a panacea which constitutes the uniform standard for judicial review in every case. Influential though the European principle of proportionality is, the extent to which it ought to be embraced by English law is ultimately determined by our constitutional framework.

 

4. CONCLUSION

 

The creation of a modern system of public law is perhaps the greatest achievement of the English courts in the twentieth century. The development of administrative law in Britain can be properly understood only when it is viewed within its broader constitutional setting. English public law is, in this sense, a product of the specific constitutional arrangements that obtain in Britain and which, in turn, are themselves a reflection of our particular political and social heritage.

 

However, these are no longer the only influences which shape the evolution of public law in the United Kingdom. In 1991, our present Lord Chief Justice, Lord Bingham, remarked that it would not be long before "England ... ceased to be a legal island, bounded to the north by the Tweed, and joined, or more accurately rejoined, the mainstream of European legal tradition, at least as an associate member". We are currently witnessing precisely that phenomenon. As I mentioned earlier, the effects of British membership of the European Union have spilled over into purely domestic contexts by contributing to the ongoing evolution of both the British constitutional framework and the body of public law which it accommodates. The incorporation of the European Convention will also profoundly impact upon the future direction of public law in the United Kingdom - and, at the same time, will allow English courts to start making a real contribution to the development of human rights jurisprudence in Europe.

 

These developments, however, have not occurred - nor, I trust, will they progress in the future - at the expense of domestic constitutional principle. The task of the legal community - in Britain, as elsewhere - is to find ways of allowing municipal law to be enriched by external influences in a manner which respects, rather than ignores, our constitutional heritage. In the United Kingdom, this task arises primarily in the context of our relationship with the legal institutions of Europe. Singapore - although it is based, like Britain, on the common law system - is subject to different influences. Thus the influences of your own near neighbours will, no doubt, play a part in shaping the future of the common law here in Singapore.

 

I was struck by the crest of the Academy and, in particular, by the way in which it combines symbols which represent universal legal principles with symbols - the lion and the orchid - which represent Singapore. I think that this imagery accurately reflects the theme of my lecture today - of the importance of an outward-looking attitude which is receptive to external legal influences, while, at the same time, seeking to accommodate such influences in a manner that is sensitive to national constitutional frameworks, and to the political and cultural heritage on which they are founded. The geographical distance which separates Britain and Singapore means that many of the influences which affect our respective legal systems are different. Nevertheless, one of the fundamental legal challenges presented by the increasingly global age in which we live is that of accommodating external influences in a way which is consistent with national tradition. That challenge is something which we continue to share - and we can learn from each other as we attempt to meet it.

 

Thank you for your kind hospitality - and let me wish you every success in what I am sure will be a long and bright future.48

 

 

 

 

R. v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, 567.

The Discipline of Law (London 1979), 61.

See, principally, R. v. Panel on Take-overs and Mergers, ex parte Datafin plc [1987] Q.B. 815. See further, on the extension of the supervisory jurisdiction to non-statutory powers, R. v. Criminal Injuries Compensation Board, ex parte Lain [1967] 2 Q.B. 864; Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374.

As a result of British membership of the European Union, this proposition is now subject to one limited qualification which is discussed at 2.2.1, below.

Indeed, national courts are required, as a matter of Community law, to adopt this approach to interpretation. See the decisions of the European Court of Justice in Case 14/83, Von Colson v. Land Nordrhein-Westfalen [1984] E.C.R. 1891; Case C-106/89, Marleasing S.A. v. La Comercial Internacional de Alimentacion S.A. [1990] E.C.R. I- 4135.

R. v. Secretary of State for Transport, ex parte Factortame Ltd. (No. 2) [1991] 1 A.C. 603.

See ibid., at p. 659, per Lord Bridge.

Macarthys Ltd. v. Smith [1979] 3 All ER 325, 329. This view is shared by T.C. Hartley, The Foundations of European Community Law (Oxford: Oxford University Press, 1998), 4th edn., p. 255: "Community law will always prevail [over inconsistent primary legislation] unless Parliament clearly and expressly states in a future Act that the latter is to override Community law ..."

For example, it seems to be the opinion of H.W.R. Wade, "Sovereignty - Revolution or Evolution?" (1996) 112 L.Q.R. 568, 570-571, that Community law will always take priority over inconsistent national law even if the domestic provision in question expressly derogates from EC law. On this view, the primacy of Community law in the UK could only be ended by the enactment of legislation effecting British withdrawal from the European Union which, Professor Wade accepts, remains within Parliament’s competence.

[1994] 1 A.C. 377.

For a useful summary of the pre-incorporation relevance of the Convention in English law, see Lord Bingham, H.L. Deb., 3 July 1996, cols. 1465-1467. For detailed analysis, see M. Hunt, Using Human Rights Law in English Courts (Oxford: Hart Publishing, 1997).

See R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 A.C. 696.

Attorney-General v. British Broadcasting Corporation [1981] A.C. 303, 352, per Lord Fraser. See also Derbyshire County Council v. Times Newspapers Ltd. [1992] 1 Q.B. 770; Rantzen v. Mirror Group Newspapers (1986) Ltd. [1994] Q.B. 670.

See Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248; R. v. Khan (Sultan) [1997] A.C. 558.

Human Rights Act 1998, s. 6.

Ibid., s. 3(1).

Ibid., s. 4.

Ibid., s. 4(6).

Ibid., s. 10.

Section 19 will have a similar effect. It requires a ministerial statement to be made, before the second reading of a bill, concerning its compatibility with the Convention rights. Parliament will, no doubt, scrutinise with particular rigour any draft legislation which, in the opinion of the relevant minister, may conflict with the Convention.

[1997] 3 S.L.R. 643, 657.

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374.

Ibid., at pp. 400-403.

For discussion of the substantive legitimate expectation doctrine both in English and European law, see P.P. Craig, "Substantive Legitimate Expectations in Domestic and Community Law" [1996] C.L.J. 289.

See, e.g., Case 74/74, CNTA S.A. v. Commission [1975] E.C.R. 533.

See also, on this point, my "Judges and Decision Makers: The Theory and Practice of Wednesbury Review" [1996] P.L. 59.

R. v. Secretary of State for Transport, ex parte Richmond-upon-Thames London Borough Council [1994] 1 W.L.R. 74, 93. See also R. v. Secretary of State for the Home Department, ex parte Ruddock [1987] 1 W.L.R. 1482.

See R. v. Ministry of Agriculture Fisheries and Food, ex parte Hamble (Offshore) Fisheries Ltd. [1995] 2 All E.R. 714.

Ibid., at p. 731.

This epithet derives from the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, in which Lord Greene M.R. famously said that an executive decision which was "so unreasonable that no reasonable authority could ever have come to it" was liable to be impugned by the courts as an unlawful abuse of discretion.

See R. v. Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 All E.R. 397.

The proportionality doctrine is known, in Germany, as the principle of Verhaltnismassigkeit.

See, e.g., Case 120/78, Cassis de Dijon [1979] E.C.R. 649.

See Attorney-General v. Times Newspapers Ltd. [1974] A.C. 273.

See Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245.

[1996] Q.B. 517.

Ibid., at p. 533.

Ibid., at p. 540.

Ibid., at p. 554, following the decision of the House of Lords in R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 A.C. 696, which - pending the entry into force of the Human Rights Act 1998 - remains the leading authority on the status of the European Convention in English law and on the standard of review which is to be applied in human rights cases.

The position is very different, of course, in relation to matters of procedure. It is open to the courts to impugn issues of decision-making procedure, and to require a better process to be followed, without first having to conclude that the original procedure followed by the agency was so defective that no reasonable agency would ever have adopted it. The Wednesbury doctrine therefore operates to confine the role of the reviewing court only in relation to matters of substance, not procedure. Space precludes detailed analysis of why this is so. However, the essential reasoning is captured well by J. Jowell, "The Scope of Judicial Review: Ultra Vires in Constitutional Context" (paper delivered at a conference on "The Foundations of Judicial Review", Cambridge Centre for Public Law, 22 May 1999): "The tenets of procedural fairness do not require a utilitarian evaluation of preferred outcomes. They are not therefore based upon policy evaluations best suited to elected officials or their agents in a democracy ... [I]t is not seriously contended that the imposition of procedural norms is beyond the constitutional capacity of judges, who aim thereby not to achieve any particular social or economic outcome but to ensure only that the decision was fairly arrived at."

[1989] 1 M.L.J. 69, 87.

[1996] Q.B. 517, 541.

Although the Act does not explicitly refer to the principle of proportionality, it is clearly implicit in the scheme of the legislation that the courts will be permitted to make recourse to that doctrine. In particular, s. 2(1) directs that, when British courts and tribunals are dealing with issues which relate to the Convention, they must take into account (inter alia) the jurisprudence of the European Court of Human Rights which is, of course, imbued with the theory of proportionality.

See, inter alios, J. Jowell and A. Lester, "Proportionality: Neither Novel nor Dangerous" in J. Jowell and D. Oliver (eds.), New Directions in Judicial Review (London: Stevens, 1988); P.P. Craig, "The Impact of Community Law on Domestic Public Law" in P. Leyland and T. Woods (eds.), Administrative Law Facing the Future: Old Constraints and New Horizons (London: Blackstone Press, 1997).

This term was used to describe the Wednesbury principle by Craig, op. cit., n. 44, at p. 283.

See, e.g., Nottinghamshire County Council v. Secretary of State for the Environment [1986] A.C. 240.

Lord Bingham made this remark in his 1991 F.A. Mann Lecture, "‘There is a World Elsewhere’: The Changing Perspectives of English Law" (1992) 41 I.C.L.Q. 513, 514.

I am grateful to Mr Mark Elliott, Fellow of St Catharine's College, Cambridge, for his valuable assistance in the preparation of this Lecture.