The problem is illustrated in the quote of Baroness Hale 'what may be proportionate interference with a less important right might be a disproportionate interference with a more important right. The concept of what is necessary in a democratic society also has to accommodate the differing importance attached to certain values in different member states. '22 There is always a difficulty in assessing the meaning of a convention right, as individuals have conflicting interests.
The courts will always be required to look at the meaning of any convention terms and furthermore it is always for the courts to have the final say in whether or not a decision is proportionate. This will always involve merits view in that sense, a view supported by Craig. 23 'It is clear that the courts do substitute judgement on certain issues under the Human Rights Act. This is so is relation to the meaning of many of the convention terms that arise before the court pursuant to the HRA. '
Tom Hickman24 also supports this proposition, according to his opinion when looking at the test of Daly there is a tension in the structure of proportionality. It allows the judges both the ability to assess the substance of the decision when asking whether or not it violates a convention right, but is also gives the assertion that proportionality is not merits review. Since the first assumption requires an evaluation by the courts of the reasoning for and against this decision which has made, according to Hickman it will always be necessary for the courts to substitute their own view for assessing whether any decision made is proportionate.
Therefore to reiterate Craig's statement the courts do engage in merits review in this sense. However merits review in this sense is similar to in the traditional test present in Wednesbury as the court is required in that case to consider accordingly, on their view as to whether a decision is reasonable, so the judges are merely performing their judicial functions as they always have, thus the courts are still maintaining their boundaries of their responsibilities.
So if we were to accept that merits review is present in every decision made does this mean the distinctive role of the administrative bodies are made redundant? Hickman answers this question in the negative stating that in order to avoid collapsing into what he calls 'full merits review25' there is need to a preserve the boundaries between what is in the public's interest and what is proportionate, this allows the different bodies to perform separate functions legitimately. This poses the question as to what the courts should consider in deciding whether an objective is disproportionate.
Wilson26 responds to this question stating that the court is to make a 'value judgement… with reference to the circumstances prevailing when the issue has to be decided. ' In those cases where the courts use information such as that of Hansard reports, it provides an aid only to the courts understanding, but beyond that it is of no relevance. In agreeing with Hickman's view the courts held that 'the courts are called upon to evaluate the proportionality of the legislation not the adequacy of the minister's exploration of the policy options or of his explanations to Parliament…
27'The main tenet of Hickman's argument is that in order to prevent merits review in the unlawful sense a procedure needs to be articulated, while at the same time providing an allowance for the courts involvement in reviewing conflicting interests, to conclude whether the balance struck is proportionate. The Procedural Approach There are those who believe that the test laid down in De Freitas is sufficient enough to provide an adequate basis as to how courts should go about making their decision on proportionality, but what methods are the courts to use in assessing whether the measures to achieve the objective 'are no more than necessary.
28' A key case which has caused a great deal of discussion as to what factors the court should take into account when determining what makes a decision proportionate is Denbigh. 29 This concerned a school girl who was of the Muslim faith and arrived at her school wearing a 'jilbab' which was what was required as part of her strict faith. This was not permitted as part of the school's uniform policy and she was asked to go home and return wearing the correct school uniform which should be noted did accommodate for the Muslim dress in a moderate way.
Bengum sought judicial review of the decision by the school governors for not allowing her to attend the school wearing the 'jilbab' and claimed that her exclusion was unlawful because of her right to manifest her religion under article 9(1) of the convention of Human Rights30 was being limited. In allowing the claimant's appeal, the Court of Appeal in reviewing the whether or not the infringement was justified using the proportionality test stated that the schools failure in not giving the correct weight to the decision and by not following the proper test in making the decision meant that they had not satisfied the appropriates standard.
Brooke LJ31 outlined a six stage process which the school should have considered when making its uniform policy which was as follows: (i) Has the claimant established that she has a relevant Convention right which qualifies for protection under Art. 9(1)? (ii) Subject to any justification that is established under Art. 9(2), has that Convention right been violated? (ii) Was the interference with her Convention Right prescribed law in the Convention sense of that expression?
Did the interference have a legitimate aim?(v) What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim? (vi) Was the interference justified under Art. 9(2). After setting out the relevant test the judge concluded the 'school did not approach the matter in this way at all… therefore, because it approached the issues in this case from an entirely wrong direction and did not attribute to the claimant's belief the weight they deserved, the school is not entitled to resist the declarations she seeks.
'32 The procedure adopted by the Court of Appeal would strongly suggest that this type of application of the proportionality test does lead to merits review, as the judges were not looking at the substance of the decision and asking the question whether or not the policy itself was proportionate to the aim pursued. Instead the judges based their decision on the way the school had come to adopt the policy and concluded that the school was wrong basing their judgement on what the courts considered in their own view to be the best way of addressing the process.
The decision has been heavily criticised both by academics and the House of Lords alike. In stating what the appropriate role to be assigned to judges is Lord Bingham took the view that 'the house is not, and could not be invited to rule whether Islamic dress or any feature of Islamic dress, should or should not be permitted in the schools of this country. That would be an inappropriate question for the House in its judicial capacity. 33' It went on further to re comment rejecting the Court of Appeals approach in saying that a decision made on this basis would result in 'judicalisation on an unprecedented scale.
'34 Thus according to the Lordships they would also agree that a decision based on the procedure is a form of judicial activism and would result in judges acted 'ultra vires'. For the Lordships in Denbigh the correct approach when asking the question how the courts should respond to decisions which claim to be a disproportionate response is that they need to look at the practical outcome and not the quality of the decision. By attending to the issue in this form the courts are not basing the proportionality test according to what they would have done and thus are avoiding merits review.
Although this assumption is questionable Pool35 critiquing the Court of Appeal's procedural approach states that it be the wrong thing for the public authority to do for two reasons. The first being that the whole test is based on mistake, thus a claimant could succeed if the authority doesn't consider one aspect, which is not effective. Furthermore he agrees with Craig's view that proportionately is a test for the judges and that there is a need to maintain the distinction between the roles of judges and administrative bodies in order to have an effective, objective process.
However this approach is problematic as to how the court should deal with those cases where the decision maker makes no definitive explanation as to how they considered the rights of individuals under the convention. It has been noted by the courts that where the 'court is deprived of assistance of primary decision makers 'considered opinion" on convention issues. The courts scrutiny is bound to be closer and the court may have no alternative but to strike the balance for itself, give due weight to such judgements as were made by the primary decision maker on matters he or it did consider.
'36This view acknowledges that there is a much more difficult analysis needed where there is no persuasive consideration by the decision maker available, and the courts may be forced to substitute their own view on the matter, illustrative of the characteristics of merits review, although the courts would not agree with that inference. Belfast City Council v MisBehavin37 also followed the same reasoning as the House of Lords in Denbigh.
This concerned a refusal by the council to grant the company a licence for the use of the premises as a sex shop on the ground that the suitable number of sex shops in the relevant area was nil. In arriving at its decision the council possessed representations and objections by members of the public made after the expiry of the 28 day period given. The House of Lords allowing the council's appeal held that the local authority in considering its decision to grant or refuse a licence, had a discretion to take all the relevant matters into account including late objections.
In questioning what would be the correct standard of judicial review of the decision they stated that the relevant question was not whether the Local Authority had properly considered if the applicant's rights under the convention would be violated as proposed by the Court of Appeal. Instead it should be asked whether there had been a violation of those rights and consequently if the council had exercised its powers of judgement rationally and in accordance with the relevant statutory provisions its decision could not be said to be a disproportionate constraint on the applicant's convention rights.
In criticising the Court of Appeals approach Lord Hoffman took the same stance as those Lordships in Denbigh stating that 'the court of appeal did not say that the applicant's Human rights to operate a sex shop had been infringed, instead it said that its convention rights had been violated by the way the council had arrived at its decision. '39 Thus again the courts took the view that the correct procedure in dealing with convention rights is to assess the issue as 'one of substance rather than procedure'.
Both these cases illustrate that the courts have tended to favour a substantial approach to judicial review under the HRA act, as in their view the procedural approach would be one of merits review. However Richard Gordon41 opposes the view that the procedural process is not an adequate formula and contends that the substantive approach adopted by the House of Lord in Denbigh is a far more dangerous exercise in regards to merits review. Basing his opinion on those emulated in Begum Tower Hamlets42 he presents three main arguments.
The first is that the substantial approach would extend to role of the judge to that of the legislator in the way that it would be for the court rather than the decision maker to conclude whether the measure in question had a legitimate aim. The decision maker would therefore have no function in assessing whether the aim was legitimate in relation to the convention rights, before a court's ruling, which effectively places a huge amount of power with judges.
Gordon does not agree that we can place policy and proportionately in distinct categories, they interlink with each other, and to give the courts and administrative bodies separate responsibilities is unrealistic and also would have constitutional implications in respect to the principle of the separation of powers. Therefore, to sum up this argument simply, according to Gordon if the courts adopt the substantive approach, as the cases seem to suggest is an approach they favour, this leads to merits review as it allows the courts to go beyond their supervisory role when assessing legitimacy of the aim.
The second argument he presents is that by attempting to avoid the structured approach to the Human Rights Act in making decisions, it weakens the rationale for the those areas of discretionary judgement and deference permitted which is a very important aspect of proportionately, in ensuring the borders between the courts and the legislature are enforced. As Lord Hope pointed out in R v DPP ex p.
Kebliene43 that when weighing up conflicting interests on the principle of proportionately 'In some circumstances it will be appropriate for the courts to recognise that there is an area of judgement within which the judiciary will defer on democratic grounds to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the convention.
' Gordon argues that if we reject the Court of Appeals approach in Denbigh then there would be no proportionality judgement to defer to. This would basically leave the court free to make the only objective judgement on the issue which would also upset the principle of the rule of law as there would be no higher body to exercise limitations on the courts if uses its power excessively.
The third argument he presents is that by not adopting the structured approach it would mean that the court becomes the primary decision maker in convention terms and therefore 'would have to embark on a detailed merits enquiry whenever the public authority chose not to do so. '44 This could mean that the court would have to look in detail at the facts of the case themselves as there is no other body permitted to do so, which goes against the courts original assertion that proportionality would not allow this.
Although these arguments Gordon presents are convincing he still does not address the claim that by introducing the procedural approach, the courts are still required to evaluate the way the authorities have come to their decision, it would seem that both the substantive and procedural approach to proportionately possess elements of merits review, thus supporting the notion that it does indeed always inevitably lead to merits review.
A final aspect to consider is the recent case of Huang45 which although it is not a judicial review case it does offers an explanation on what the courts current position to proportionality is. Both cases concerned the Secretary of State's refusal of the claimant's immigration applications, finding that the claimants did not qualify to remain in the UK, both claimants appealed on the ground that their removal would infringe their right to family life under article 8 of the Convention of Human Rights.
46 It was stated in the judgement that when assessing the proportionality of a decision it would give effect to the paramount need to determine a fair balance between the individual's rights and the public's interest. In other words the court weren't just looking at whether it was proportionate; a decision could be proportionate in one sense, but the courts must look at the overall outcome in judging the balance which seems to suggest that merits review is necessary in this context. This case is important to note when debating what type of matters the courts have be enabled to legitimately rule on in determining proportionately.
Here it was held that if the matters involved a subject of policy then the appellant authorities should defer to the Secretary of State. However if the matter involved issues other than policy, such as matters of fact, the courts should not invoke the concept of deference. This provides a clear distinction on the courts responsibilities; however this can only be limited to Huang to those debates involving immigration applications and has not yet been allowed to apply to on a wider scale.
Nevertheless, the reasoning presented in this case could be applied more widely in the future to those matters of fact in an attempt to protect convention rights can be seen as prescribed under article 6 of the European Convention. 'While this may disturb the legislative allocation of competences under numerous administrative schemes it cannot be regarded as undermining democratic governance such that deference forbids it. On the contrary, fact-finding is a core judicial review'.