European Law and the UK Judicial Review System: Did EU Membership Limit This Unique Apparatus?
Judicial review is a process by which the courts in the United Kingdom can review the actions of public bodies, such as government departments or local authorities, to ensure they are acting lawfully and within the limits of their legal powers. The purpose of judicial review is to ensure that public bodies act in accordance with the law and do not abuse their powers. However, it is not concerned with the merits of the decision made by the public body, but rather with the legality of the decision-making process. The scope of the current article is concerned with assessing the overall impact of the UK’s participation in the EU on the judicial review system. It is to be submitted that European law had enhanced the scale of the jurisdiction judges enjoyed in judicial review cases, and while it could be argued that it also had placed significant limits, in certain scenarios, on the availability of this unique judicial process, this can only be seen in the context of an expanded arrangement of raisable issues.
Over time, the judicial review system in the UK has developed so-called ‘grounds of review’, i.e., the bases upon which the courts will seek to intervene and take some action regarding an administrative or other public law decision. In the famous GCHQ case, these grounds have been listed as irrationality, procedural impropriety, and illegality (and further ones, namely proportionality, were not ruled out).[1] If in fact the ground of proportionality was a real addition to the list, this could be seen as highly significant. Proportionality is not a principle which has ever per se been put forward by the common law as such; its origins lie in European law, especially in the case law of the Court of Justice of the European Union (CJEU). This principle has been recognised as arising from the “settled case-law of the CJEU”.[2] It is a matter so strongly linked to the functioning of EU law that practically all the four freedoms of movement (goods, services, labour and establishment) operate within its modus vivendi.[3] The effect of proportionality on British judicial review is well illustrated by R v Home Secretary, ex parte Daly.[4] Lord Steyn highlighted that proportionality forms a unique test for assessing administrative decisions (in this case specifically, the matter challenged was a prison policy), which is distinct form the well-established unreasonableness (irrationality) ground.[5] The question then stood how would this European principle enhance British judicial review, as it appeared not to add much considering the unreasonableness ground. Lord Steyn answered in the following manner:
“The intensity of review is somewhat greater under the proportionality approach. […] I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed [in previous case law] is not necessarily appropriate to the protection of human rights.”[6]
Inadvertently, Daly was a landmark constitutional case for Lord Steyn’s emphasis and delineation of the operation of proportionality, a concept imported from European law, in a unique system concerned with the United Kingdom’s judicial oversight of public decisions. It would at first sight appear that proportionality played a purely positive role in this system. Was it not enhanced by according greater jurisdiction for judicial oversight as this European concept went ‘further’ than the British ones? Certainly, when this is taken in the context of human rights, as mentioned above, it must be concluded that European law has enriched British judicial review with a further layer of human rights protection and accountability of administrative decision-makers. This was however not the only contribution of the EU’s legal order to UK’s judicial review.
Amongst the oddities of the judicial review system are the rules on standing, i.e., who is eligible to raise a challenge to public decisions in the first place. Obviously, if no one can even bring an issue forward, the essential step of interference by the court will never be reached. The Senior Courts Act states:
“No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”[7]
While a detailed examination of who has or has not ‘sufficient interest’ would be outside the scope of this article, it is to be noted that this is a broad and flexible test, which is satisfied by organisations such as pressure groups, etc. However, a different test (extremely so in terms of the degree of flexibility to be applied to possible claimants) was created for those seeking a claim under the European Convention on Human Rights:
“A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
bring proceedings against the authority under this Act in the appropriate court or tribunal, or
rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.”[8]
Thus, in cases where Convention rights are under attack, the challenge can only be brought by a direct victim, which, for obvious reasons such as financial resources or ignorance of law, makes the system of judicial review severely limited in access in such cases. Of course, a claimant may seek to try to find a way to bring a claim forward by trying to fit it in the previously established categories, but this will make the claim that much less likely to succeed. Therefore, while Convention rights were a valuable source of protection for UK citizens, it must be noted that their translation into judicial review proceedings was such as to create a more restricted test for possible claimants.
The limited test of standing in the outlined scenarios must however be taken into account only in the context of an expanded availability of judicial review in terms of the issues that a claimant can bring forward. The same legislation which specifies possible claimants also puts into law the proposition that “[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right”.[9] And as seen above, this could have been relied on in “any legal proceedings” and would also apply to omissions, not just positive acts.[10] As stated in one public law textbook, “[i]t follows that decisions of public authorities are subject to judicial review and may be held unlawful, even if apart from the Act no such claim could have been made”.[11]
It is therefore concluded that, on the whole, European law has played a remarkably positive role in enhancing the British system of judicial review. The jurisdiction of judges in judicial review cases has been increased by European law. A new ground of review has been added, and more issues can be raised using the apparatus as a consequence of the domestic implementation of the European Convention on Human Rights. Although it could be argued that the law has also imposed limits on the availability of this process in Convention cases, this must be understood in the context of the greater set of issues that can be raised due to the Convention’s articles.
Table of Cases
Case C‑639/11 Commission v Poland [2014] ECLI:EU:C:2014:173
Council of Civil Service Unions and Others Appellants v Minister for the Civil Service Respondent [1985] A.C. 374
R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 3 All ER 433
Bibliography
Bradley A, Ewing K and Knight C, Constitutional & Administrative Law (18th edn., Pearson 2022)
‘EDPS Guidelines on Assessing the Proportionality of Measures That Limit the Fundamental Rights to Privacy and to the Protection of Personal Data’ (2019) <https://edps.europa.eu/sites/edp/files/publication/19-12-19_edps_proportionality_guidelines_en.pdf> accessed 17 February 2023
Human Rights Act 1998
Senior Courts Act 1981
[1] Council of Civil Service Unions and Others Appellants v Minister for the Civil Service Respondent [1985] A.C. 374
[2] ‘EDPS Guidelines on Assessing the Proportionality of Measures That Limit the Fundamental Rights to Privacy and to the Protection of Personal Data’ (2019) <https://edps.europa.eu/sites/edp/files/publication/19-12-19_edps_proportionality_guidelines_en.pdf> accessed 17 February 2023.
[3] See for example: Case C‑639/11 Commission v Poland [2014] ECLI:EU:C:2014:173
[4] R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 3 All ER 433
[5] Ibid [24]-[28]
[6] Ibid [27]-[28]
[7] Senior Courts Act 1981, sub-s. 31(3)
[8] Human Rights Act 1998, sub-s. 7(1)
[9] Ibid, sub-s 6(1)
[10] Ibid, sub-s 6(6)
[11] Anthony Bradley, Keith Ewing and Christopher Knight, Constitutional & Administrative Law (18th edn., Pearson 2022) 756.