The Jersey Law Review - June 2002

APPEALS AND JUDICIAL REVIEW AFTER THE HUMAN RIGHTS (JERSEY) LAW 2000

Andrew Le Sueur

As in many other legal systems, courts in Jersey use two main methods to control the legality of government action: legislation allows “persons aggrieved” by decisions of public authorities to appeal to the Royal Court;^[1] and there is now a procedure by which persons with “sufficient interest” in a decision may seek judicial review in situations where no statutory right of appeal exists.^[2]  The purpose of this article is to consider how the scope of the Royal Court’s appellate and judicial review functions may be affected by the coming into force of the Human Rights (Jersey) Law 2000 (“the Human Rights Law”). This re-examination of the Royal Court’s role takes place against a background of legal flux. In a series of Jersey cases, there have been significant shifts in understanding of the Royal Court’s appellate role; and in England, the courts have been engaged in a reappraisal of the scope of their supervisory and appellate roles following the coming into force of the Human Rights Act 1998.

Some of the distinctions often drawn in domestic law between appeals and judicial review will become less important in cases involving Convention rights. Article 7 of the Human Rights Law – which makes it “unlawful for a public authority to act in a way which is incompatible with a Convention right” – creates both a ground of appeal (where an appeal mechanism already exists) and a ground for seeking judicial review. The overriding imperative for the Royal Court will be to ensure, so far as it is possible to do so, that Convention rights are protected and similar techniques will need to be used whether the case reaches the court on an appeal or an application for judicial review – unless primary legislation clearly prevents the court from doing so.^[3]

Whatever the general status of English precedent in Jersey law,^[4] Jersey lawyers will inevitably look for guidance or inspiration from English case law on the Human Rights Act 1998, on which the Human Rights Law is closely modelled.^[5] Some caution is, however, required in carrying out such exercises in comparative law. While it is clear that Convention rights should generally be given consistent interpretation and application in the UK and Jersey, there are differences between the role of the Royal Court and the Administrative Court,^[6] especially in relation to appeals, that need to be borne in mind. Where appeals exist, the legislative technique in Jersey is almost always to create what may be called “full” appeals. Laws either provide that a person “may appeal” or, in the case of the Island Planning (Jersey) Law 1964, “may appeal … on the ground that the decision of the Committee was unreasonable having regard to all the circumstances of the case”. As discussed below, for several years there has been controversy about the scope of the Royal Court’s function on such appeals. It has been argued that there is “a gradual movement towards the Royal Court, on such appeals, asserting the right to substitute itself for the original decision-maker,” ^[7] though a recent judgment of the Royal Court imposes a restrictive gloss on this trend.^[8]

In contrast to Jersey’s system of judicial control, full appeals – or “appeals by way of rehearing” – from public authorities to the Administrative Court in England are rare. They are largely confined to the relatively arcane field of disputes arising from some of the decisions of statutory professional disciplinary bodies.[9] The English tradition has been for appeals to be confined to “points of law” with a strong preference for issues of primary fact and the merits of administrative decisions to be left to the original decision-maker.^[10]

THE IMPACT OF CONVENTION RIGHTS

The Human Rights Law will provide a new tool for the Royal Court to fashion the scope of its function, its procedures and remedies.^[11]  This will call for some re-examination of the scope of the Royal Court’s appellate and judicial review rôle in two principal respects^[12] -

      the extent to which it is necessary for the court itself to make it own findings of primary fact and, if needs be, to substitute its own determination of the facts for that of the primary decision-maker;

      the extent to which the court should scrutinise the judgements and conclusions of the original decision-maker about the merits of the case — for instance, whether in all the circumstances it is desirable for development permission to be refused.

These boundaries to the scope of the court’s rôle are linked by the common consideration of judicial deference to public authorities. In England, the House of Lords has recently emphasised the need for courts, when working out the scope of their functions, to respect the notion of democratic accountability, especially in situations where complex determinations must be made as to what is desirable in the public interest: the Convention seeks to ensure the rule of law, not the rule of lawyers.^[13] Arguably, this approach needs to be applied with even more vigour in Jersey’s small legal and political system. In addition to democratic considerations, expertise provides a further reason for deference. Public officials may have greater technical, scientific or other expertise than a judge hearing litigation is capable of possessing.

In examining how Convention rights are likely to affect the ambit of the Royal Court’s powers on appeals from States’ committees and in applications for judicial review, it is necessary to differentiate three categories of Convention right as the court’s fact-finding role and the relevance of judicial deference varies between them.^[14]  “Convention rights” should not be regarded as homogenous. In each category, the national court is required to perform different tasks in its overall role of protecting Convention rights.

First, Article 6(1) provides that “In the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”. Here the function of the national court is to ensure a fair trial. The concept of civil rights and obligations is not restricted to civil litigation between private individuals; it includes disputes with public authorities over the issue of licences, the regulation of development on a person’s land, though not, apparently, determinations of tax liability.^[15]  Article 6(1) will therefore often but not always be engaged in appeals and judicial review even if no other Convention right is at stake. Here the Royal Court will need to ensure that, so far as it is possible to do so in the light of primary legislation and taking account of the Strasbourg case law, that it has sufficiently “ full jurisdiction” to exercise control over a public authority’s decision.^[16]  Article 6(1) is said to create an absolute right, but one that has a variable content. What this means will be considered in more detail below.

Secondly, there are the expressly and generally “qualified” Convention rights, notably Articles 8 to 11. Here the function of the national court is to protect the Convention rights in question by carrying out a balancing exercise, weighing the individual right or freedom against specified competing public interest considerations. The Royal Court may be called upon to adjudicate on whether interferences with those rights are “necessary in a democratic society”. Article 8, protecting rights to family and private life, is likely to be particularly important in relation to decisions by the Housing Committee and the Planning and Environment Committee. Article 13 is important in this context. It provides that “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 13 is not one of the Convention rights incorporated by the Human Rights Law or the Human Rights Act. This does not, however, however, mean that it is irrelevant to understanding the scope of the courts’ role. On the contrary, the requirement of effective remedies to protect Convention rights suffuses the European Court of Human Rights’ case law.^[17]

Thirdly, there are Convention rights, which are absolute, including Article 2 (the right to life) and Article 3 (the prohibition of torture and inhuman and degrading treatments). For present purposes, those Convention rights that are qualified by specific factors, including Article 5 (right to liberty and security), fall within this category. Here the function of the national court is simply to protect the Convention right in question; there is no question of any general competing public interest considerations being put into the scales.

With these three categories of Convention rights in mind, we can turn to examine in turn the role of the Royal Court in finding facts and considering the merits of public authority decisions.

COURTS AS PRIMARY FACT FINDERS

On appeals and judicial review, the Royal Court may need to deal with matters of primary fact^[18] insofar as this is needed to:  (a) provide a fair trial under Article 6(1); (b) conduct the balancing exercise when adjudicating whether an infringement of Articles 8 to 11 is “necessary in a democratic society”; and (c) to determine whether one of the absolute rights has been violated. The reason why a court may need to deal with factual issues is different in each of these three situations – the requirements of fact-finding vary with the context and also the nature of the Convention rights at stake.

In England, it appears to be relatively rare for a person to wish to take legal proceedings in order to challenge findings of primary fact by public authorities.^[19] The same is probably true in Jersey (where examples of primary fact-finding might include the questions whether if development permission is given for a new house it will be occupied by a “member of the agricultural community” and, in relation to housing consents, what evidence exists that compels a conclusion that a person would suffer “hardship” if consent were to be refused).

Fact-finding in order to create a fair trial under Article 6(1)

In some situations, a person challenging the determination of a public authority — whether on an appeal or judicial review — will be denied a fair trial unless the court has power to examine the factual evidence on which the public authority’s decision is based, and if needs be to substitute its own findings of fact. The requirements of Article 6(1) in this respect have been set out in a series of judgments by the European Court of Human Rights (“the European Court”) developing the concept of a national court with “full jurisdiction”.^[20] In Le Compte and others v Belgium, the European Court held that Article 6(1)

“… draws no distinction between questions of fact and questions of law. Both categories of question are equally crucial for the outcome of proceedings relating to ‘civil rights and obligations’. Hence, the ‘right to a court’ and the right to a judicial determination of the dispute cover questions of fact as much as questions of law.”^[21]

This has been subject to some qualification in later cases. In Bryan v United Kingdom, a case concerning the challenge to the legality of development control, in a concurring opinion Mr Nicolas Bratza said -

“… the requirement that a court … should have ‘full jurisdiction’ cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court … must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned.”^[22]

The European Court has not provided very much guidance as to which contexts require review of facts and which do not. It has, however, recognised that in disputes relating to development permission, national courts will be regarded as having sufficiently “full jurisdiction” notwithstanding that they do not have power to “revisit the facts of the case”.^[23]  In Alconbury, Lord Hoffmann stressed, ‘full jurisdiction’ does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires”.^[24] By way of contrast, in the review or determinations of appeals relating to professional disciplinary matters, the national court may be expected have a greater fact-finding role.^[25]

            In English law, the courts’ fact-finding role is broadly similar irrespective of whether the case is an appeal on point of law or a claim for judicial review.^[26] Several recent cases have considered whether this fact-finding role complies with the requirements of Article 6(1). Prior to the Human Rights Act, English courts were generally reluctant to become arbiters of the fact in this context, leaving this fact-finding role to the original decision-maker. Scrutiny of facts could take place only in limited situations: where it was alleged that a factual conclusion was based on no or inadequate evidence; where it was contended that a factual conclusion was Wednesbury unreasonable; where the primary decision-maker was required expressly or impliedly to take a specific fact into account and failed to do so; and where the finding of a fact was a condition precedent to the exercise of power by the primary decision-maker.^[27]

In Alconbury, Lord Slynn hinted at the desirability of broad powers to review primary facts. Citing two academic authorities with approval, he suggested that material errors of fact could be reviewed (though, strictly speaking, this part of his speech is probably obiter).^[28] Lord Clyde, the only other member of the House to consider the point in any detail was, however, far more cautious.^[29]

The same caution as to the extent that – Article 6(1) apart – English law permits review of facts can be seen in a subsequent Court of Appeal decision. In Adan v Newham LBC,^[30] it was held that section 204 of the Housing Act 1996 (under which people claiming to be homeless and aggrieved with a housing authority’s determination could appeal to county courts on points of law) was incompatible with Article 6(1).^[31]  In cases where an allegedly homeless person wished to challenge the housing authority’s findings of primary fact —for instance when a person had arrived in the housing authority’s area and why she had left her previous accommodation— they were prevented from doing so because the appeal was confined to “points of law”.^[32]  Brooke LJ was sceptical that “a court of supervisory jurisdiction should be able to look at the factual evidence before the [decision-making] body and decide that it had made a mistake of fact susceptible of review when it preferred to believe one witness rather than the other”.^[33] He went on to say that there are “very powerful judicial statements throughout the common law world” which suggest that a court of supervisory jurisdiction has no power to interfere in “cases in which complaint is made that an administrative decision-maker got the facts wrong by preferring one version of the facts to another when it could reasonably have accepted either version”.^[34] In conclusion, he held that “What is quite clear is that a court of supervisory jurisdiction does not, without more, have the power to substitute its own view of the primary facts for the view reasonably adopted by the body to whom the fact-finding power has been entrusted.”^[35]

The Court of Appeal in Adan assumed (without a great deal of discussion) that in this context “full jurisdiction” under Article 6(1) required the ability to review primary facts. Had the case been a claim for judicial review, the court could, presumably, have developed the common law grounds of review so as to enable greater factual review. The case was, however, an appeal on point of law. The majority of the court held that it was not possible to read the statutory provision creating this right of appeal as including review of factual issues.

The approach of the majority in Adan, which was obiter, was doubted only a few weeks later by a differently constituted Court of Appeal in Tower Hamlets LBC v Begum (Runa).^[36] Accommodation was offered to a homeless person in a block of flats that was, the appellant said, afflicted by drug problems and racist neighbours. The appellant argued that, because of these facts (which the council disputed), it was wrong of the council to regard her refusal to move there as unreasonable. Laws LJ (with whom the other two members of the Court agreed) concluded that the section 204 right of appeal did indeed confer “full jurisdiction” on the county court.  This was because “judged as a whole, this statutory scheme lies towards the end of the spectrum where judgement and discretion, rather than fact-finding, play the predominant part”. Although in the present case there were “sharp issues of primary fact calling for determination”, this was relatively unusual. In most cases “there will be no real question of fact, and the decision will turn on the weight to be given to this or that factor against an undisputed background: whether the offered accommodation is too far from the children’s school; whether there are too many stairs given the claimant’s ill health; whether there are enough bedrooms given the size of the family and so on”. Laws LJ held that compliance or otherwise of the statutory appeal scheme with Article 6 could not vary from case to case, according to the degree of factual dispute arising, as that would involve a wholly unsustainable departure from the principle of legal certainty.  Whether the approach in Adan or that in Begum is followed in subsequent cases remains to be seen.

As already noted, appeals in Jersey are rarely if ever expressly confined to points of law. The problem of primary legislation preventing the court exercising fact-finding functions is, accordingly, unlikely to arise very often, if at all. Should it be required to do so, the Royal Court will in most situations be able to interpret its powers to determine appeals from public authorities so as to include intensive scrutiny of primary facts.  In relation to judicial review, the Royal Court may find itself in the position of taking the lead from Lord Slynn in Alconbury and developing its case law so as to enable it to carry out the factual review that Article 6(1) requires in some contexts.

Fact-finding as an aspect of adjudicating on qualified rights

A second situation where the Royal Court may need to deal with factual issues is in relation to the generally qualified Convention rights, especially Articles 8 to 11. Here the reason for fact-finding is not to ensure a fair trial, but rather to enable the court to carry out the role required of it in determining whether these Convention rights have been interfered with by a public authority and, if so, whether the interference is “necessary in a democratic society”. Recent debate in England has focused the extent to which the qualified Convention rights require courts, in the exercise of their supervisory jurisdiction, to conduct meritsreview; this is dealt with below. There is, however, a prior question: on what factual basis should the court proceed? At first sight, the answer may seem fairly straightforward. A national court is required to make those factual determinations that are needed in the task of carrying out the balancing exercise. This much is implicit in R. v Secretary of State for the Home Department, ex p. Daly. A prisoner challenged the Home Secretary’s authorisation to search cells during which there was a possibility that inmates’ legal correspondence could be read. Lord Bingham of Cornhill said in relation to Article 8 

“Now, following the incorporation of the Convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy”. (Emphasis added).^[37]

For reasons about to be discussed, the English courts have not have provided an express and clear statement of the position.

Fact-finding in relation to absolute Convention rights

It is worth repeating the obvious point that in relation to absolute rights it is no part of the national court’s role to weigh up competing public interest considerations. The court’s function is simply to adjudicate on whether there has been an infringement and therefore a violation of the right in question. In carrying out this task, the fact-finding approach of the court cannot logically be more restrictive than where qualified Convention rights are in issue — though there will normally be a narrower range of primary facts relevant to the determination, simply because no evidence about rival public interest factors falls to be considered.

This said, the English courts have not been altogether consistent in their approach on the question whether a national court itself has responsibility for finding the primary facts of a case where one of the absolute Convention rights is at stake. In R. v Secretary of State for the Home Department, ex p. Turgut^[38] a Turkish Kurd asylum seeker applied for judicial review of a decision of the Secretary of State refusing his application for exceptional leave to remain on the ground that he would suffer ill treatment in terms of Article 3 if returned. In this case, decided before the Human Rights Act came into force, but with an eye on its impending arrival, the Court of Appeal asked itself -

“Is it for this court to assume upon such a challenge the primary fact-finding role? Must we, in other words, decide for ourselves whether on all the material before us we for our part regard the applicant (and those in like case) as subject to the risk in question? Or are we exercising what still remains essentially a supervisory jurisdiction, heightened though our responsibilities would undoubtedly be in the context of so fundamental a human right as that at stake here?”

Simon Brown J concluded that (emphasis added) -

“the domestic court’s obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State’s decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed. All that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State’s conclusion on the facts.

Three reasons were given for this. First, the Convention right involved here was both absolute and fundamental. Secondly, the court said that it was “here … hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is placed before it”. Thirdly, the court recognised “at least the possibility that the Secretary of State had (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind”.   In circumstances such as these, Simon Brown LJ said, “what has been called the ‘discretionary area of judgment’– the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant’s removal (see Lord Hope of Craighead’s speech in R. v DPP ex p. Kebilene^[39]) - is a decidedly narrow one.”  The court’s fact-finding role is therefore, on this view, still a supervisory one but carried out with great intensity.

In a later Court of Appeal decision, R. (on the application of W) v Broadmoor Hospital,^[40] a somewhat different approach to fact-finding seems to have adopted. A compulsorily detained patient had been incarcerated for 34 years following his rape of a child. He sought judicial review of a decision to administer treatment without his consent. It was contended on his behalf that so to do would violate his rights under Articles 2 and 3 (as well as 8) of the Convention. There was a divergence of expert medical opinion as to the nature of the patient’s condition and whether he had capacity to decide whether to accept prescribed medication. For the patient, it was argued that the court carrying out the judicial review should permit the three doctors to be cross-examined. This time Simon Brown LJ held that:

“… given that the prospective Convention breaches alleged are either fundamental (those now asserted under Articles 2 and 3) or such as obviously raise questions of necessity and proportionality (those asserted under Articles 8 and 14), the court’s need so far as possible to investigate and resolve the medical issues becomes even plainer [than before the Human Rights Act was in force].  …

It seems to me that the court must inevitably now reach its own view both as to whether this appellant is indeed incapable of consenting (or refusing consent) to the treatment programme planned for him by the first respondent as his [responsible medical officer] and, depending upon the court’s conclusion on that issue, as to whether the proposed forcible administration of such treatment (a) would threaten the appellant’s life and so be impermissible under Article 2, (b) would be degrading and so impermissible under Article 3, and (c) would not be justifiable as both necessary and proportionate under Article 8(2) given the extent to which it would invade the appellant’s right to privacy.”^[41]

An explanation for the disparity in Simon Brown LJ’s approach in the two cases relates to the role of the courts in considering the merits of the cases, discussed below. Between Turgut and Wilkinson the English courts had a change of heart about the role of the court in the weighing up exercise required by the qualified rights in Articles 8 to 11.^[42] It is now clear that the court applies a proportionality, not an unreasonableness, test. This switch in test requires a different approach to fact-finding in relation to the qualified rights (see above).  It ought therefore to follow that if in relation to the qualified rights the courts are prepared to substitute their own findings of fact for that of the original decision-maker, that they should also do so in relation to the absolute rights.

THE COURTS AND MERITS REVIEW

In England, much of the judicial and academic debate about the impact of the Human Rights Act has revolved around the question whether, where Convention rights are at stake, courts exercising supervisory jurisdiction now need to review the merits of the original decision – something traditionally regarded as anathema.

Before considering the situation in Jersey after the Human Rights Law comes into force, it is necessary to take stock of the existing case law on the Royal Court’s appellate and judicial review functions. In relation to judicial review, the position in Jersey is generally accepted to be broadly the same as in the English legal system. The grounds of judicial review – broadly illegality, procedural impropriety and irrationality – do not permit the court to consider the merits of the original decision, though the substance of the decision may be impugned insofar as it is irrational.^[43]

In relation to the Royal Court’s function on appeals from public authorities, the position has been less clear. Leaving aside possible differences between particular rights of appeal,^[44] there has been a trend in the cases away from taking a “judicial review” approach to appeal powers to acknowledging that the Royal Court has a broader range function. Overruling the approach taken by the Royal Court in a previous case,^[45] in 1996 the Court of Appeal held that article 21(1) of the Island Planning (Jersey Law) created a full appeal.^[46]  The role of the Royal Court “is not merely to consider whether any reasonable body could have reached the decision which the Committee did reach, but to decide whether the court considers that the decision was, in its view, unreasonable”. In an appropriate case, the Royal Court can re-write a condition in what it considers to be a reasonable form. In 2000, the Court of Appeal again emphasised the broad scope of the court’s role on an appeal (this time under the Housing Law),^[47] where the powers of the Royal Court are “substantially wider than those which the court would have if there were an application for judicial review.” Southwell JA, giving the leading judgment, acknowledged that the wording of article 12(1) of the 1949 Law differed from that of article 21 of the Island Planning (Jersey) Law 1964 and preferred not to express any finally concluded view as to the ambit of the court’s powers under article 12 as the matter had not been fully argued. Nevertheless, he said that it was plain that on an article 12 appeal -

“The Court has a duty to consider not only whether the Committee has acted within its powers and in accordance with the appropriate procedure (the judicial review function), but also to form its own view, not just as to whether any reasonable body could have reached the decision which the Committee reached, but whether the decision was, in the view of the Court, unreasonable (review function). In performing this function the Court is entitled to allow whatever weight it thinks appropriate to the experience and knowledge of the Committee.”

Recently, however, in Token Ltd v Planning and Environment Committee,^[48] the Royal Court has added an important gloss on this. Accepting submissions by the Solicitor General that Fairview Farm did not entitle the court to find that the Committee’s decision was reasonable but quash it because the Court had reached an equally reasonable but different decision, the Bailiff held -

“The Court may think that a Committee’s decision is mistaken, but that does not of itself entitle the Court to substitute its own decision. The Court must form its own view on the merits, but it must reach the conclusion that the Committee’s decision is not only mistaken but also unreasonable before it can intervene. There is an element of semantics here but there is, nonetheless, a qualitative difference between finding that a decision is unreasonable, rather than simple mistaken. To put it another way, there is a margin of appreciation before a decision which the Court thinks to be mistaken becomes so wrong that it is, in the view of the Court, unreasonable.”

How will the function of the Royal Court be affected by the Human Rights Law? Two points need to be emphasised again. First, the distinction between appeals and applications for judicial review will be far less significant than in the past. The role of the Royal Court in cases where Convention rights are in issue must now be fashioned not so much by distinctions in domestic law between appeals and review, or the wording of particular rights of appeal, but by the overarching duty of the court to strive to provide fair trials (if Article 6 is engaged) and effective remedies (for the other Convention rights). Secondly, different categories of Convention right need to be distinguished.

Merits review and Article 6(1)

The reason for a court to consider whether merits review is needed in relation to Article 6(1) is to ensure that there is a fair trial for the determination of a person’s civil rights and obligations. As we have already seen, the concept of the court having “full jurisdiction” is important here.^[49] As in relation to the power to find facts, so with merits review; in some situations, it is required whereas in other contexts it is not. Where merits review is required, then the Royal Court when determining an application for judicial review will have to depart from case law which restricts the court from examining the merits of the decision. Where a case reaches the Royal Court by way of an appeal, the statutory provisions creating the appeal mechanism will have to be read, so far as it is possible to do so, to enable the court to review the merits of the decision.

            In the field of development control, recent Strasbourg and English decisions have stressed that the traditional judicial review approach – preventing the English courts from substituting their own judgments for those of the impugned decision-makers – is generally sufficient to ensure adequate judicial control of the administrative decisions in issue.^[50] That the scope of judicial review proceedings enabled a decision “to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors” satisfies Article 6(1) in the context.  According to Lord Slynn in Alconbury, “none of the judgments before the European Court of Human Rights requires that the court should have ‘full jurisdiction’ to review policy or the overall merits of a planning decision”.^[51]  Lord Hoffmann agreed, saying that Article 6(1) “conferred the right to an independent and impartial tribunal to decide whether a policy decision by an administrator such as the Secretary of State was lawful but not to a tribunal which could substitute its own view of what the public interest required”.^[52] In other fields of governmental decision-making, however, it is clear that to have “full jurisdiction”, national courts do require the power to review the merits of a decision and if necessary substitute their own view for that of the original decision-maker.

Merits review and the qualified Convention rights

After the Human Rights Law, the novel task for the Royal Court will be to determine whether interferences with  rights under Article 8 to 11 are “necessary in a democratic society”. A court may need to form its own view about the merits of the case in relation to the qualified Convention rights not because of the need for the court to provide a fair trial (as in Article 6(1)), but because this is necessary to carry out the balancing of competing public interest considerations against the rights in question. There is a major difference between the court’s function in relation to the generally qualified Convention rights and the absolute rights (discussed below). Where the generally qualified rights are at stake, the concept of “margin of discretion”^[53] – or “discretionary area of judgment”^[54]– is relevant, whereas this concept has no role whatsoever in relation to absolute rights.

The English case law on the Human Rights Act is instructive. At first it failed fully to capture the new approach required. In R. on the application of Mahmood v Secretary of State for the Home Department,^[55] an asylum seeker who had married a British woman and had two children while waiting for his application to be determined by the Home Office argued that his forcible removal from the United Kingdom would be contrary to Article 8 (right to respect for family life). The Court of Appeal canvassed three possible approaches to the standard of review. It concluded that the correct approach was as follows -

“When anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention. When considering the test of necessity in the relevant context, the Court must take into account the European jurisprudence in accordance with section 2 of the 1998 Act.” ^[56]

In a subsequent case, the House of Lords held that this was too couched in the traditional language and reminiscent of Wednesbury correctly to capture the role of the court. Rather than apply an approach based on reasonableness, Lord Steyn (with whom their other Lordships agreed) held that Wednesbury reasonableness was not the standard to be applied. Instead, a test based on the concept of proportionality, which was materially different to unreasonableness, was to be employed.^[57]  Lord Steyn sketched out three characteristics of proportionality:

“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 R v Ministry of Defence, Ex p Smith^[58], is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. … In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.”^[59]

Lord Bingham echoed this, saying that “domestic courts must themselves form a judgment whether a Convention right has been breached”.^[60]  What is clear, however, is that the courts may afford the public authority whose decision is challenged a “margin of discretion”. Obviously this is not the same as the high degree of deference required by the Wednesbury approach – not even the threshold of “anxious scrutiny” that the English courts had developed to review cases where fundamental common law rights were at issue.

Academic and judicial opinion is divided as to the extent to which the adoption of proportionality as the technique for determining compliance with the qualified rights amounts to a shift in the court’s function from one of supervision to merits reviews.^[61]  Whether or not it can properly be characterised as merits review, the use of the proportionality test will certainly lead to deeper scrutiny of decisions than occurred in the past.

Merits review and the absolute Convention rights

A court has a distinctive function in cases where an absolute Convention right (such as Article 3) is at stake. Two concepts central to the court’s role in relation to the generally qualified rights – proportionality and a margin of discretion – have no place. The court is not here seeking to ensure that public authorities have struck a fair balance between individual rights and competing social interests (as they do in relation to Article 8 to 11). That this is so is illustrated by Chahal v UK,^[62] a family of Sikhs – including members who in India had high profiles because of their political activities – challenged the Home Secretary’s decision to remove them from the United Kingdom to India. They claimed that, in violation of Article 3, deportation would put their lives in peril. The Home Secretary’s decision to deport was made on grounds of national security; he believed Mr Chahal to be involved in terrorism. The Chahals appealed to an “advisory panel” set up to hear representations in deportation cases concerning national security. The Chahals failed to convince the panel or, on the subsequent judicial review, the High Court that they should not be deported. On an application to the European Court, it was held that there were “deficiencies” in the English judicial review process, and the prior review by an advisory panel to the Home Secretary, which resulted in a breach of Article 13 in relation to the Chahals’ rights under Article 3. The European Court stressed the importance of the Article 3 and held -

“151.    In such cases, given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the Court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State.

152.    Such scrutiny need not be provided by a judicial authority but, if it is not, the powers and guarantees which it affords are relevant in determining whether the remedy before it is effective.”

Leigh argues that this approach – stressing the need for independent scrutiny – requires the national courts to carry out merits review in cases involving absolute Convention rights (even if, which is arguable, they do not in relation to the generally qualified rights).^[63]  Certainly there are indications, for example in the Wilkinson case discussed above, that the English courts will not shy away from dealing with the merits of a case if this is needed to protect the absolute right in question.

Concluding remark

Like England and Wales, the Jersey legal system will face several years of flux as it works out how best to give effect to Convention rights. Debates in the run-up to the enactment of the Human Rights Law and the Human Rights Act included arguments about the impact of the reforms on the legislative and executive branches of government.  What has become clear in England and Wales over the past 18 months is that the devil is in the detail; the new constitutional relationships between the courts and other branches of government need to be worked out on a case-by-case basis, bearing in mind not only the Strasbourg jurisprudence but also the nature of democratic government.  As Laws LJ recently observed -

“A democratic system of government is the premise of all the Convention’s philosophy, underlined by multiple references to what is ‘necessary in a democratic society’, a phrase which not only invokes the claims for proportionality, but also calls for respect for the elected arm of the State.”^[64]

As this article has sought to demonstrate, however, the degree and manner of “respect” depends on the particular Convention right in question.

Andrew Le Sueur is Barber Professor of Jurisprudence at The University of Birmingham and a door tenant at Brick Court Chambers, London. Email: a.lesueur@bham.ac.uk