Human Rights Act 1998 and Parliamentary Sovereignty

The Human Rights Act 1998 (the “1998 Act”) has implemented the European Convention on Human Rights (Convention). Section 3(1) of the 1998 Act provides that the primary legislation and subordinate legislation must be read and given effect, ‘so far as it is possible to do so’, in a manner compatible with the Convention rights. Section 3(2)(b) and (c) provide that the compatible reading “does not affect the validity, continuing operation or enforcement of any incompatible” primary legislation and subordinate legislation. Section 4(1) gives authority to the court to determine this compatibility in regard to a primary legislation. Section 4(2) provides that the court ‘may’ make a declaration if a provision of a legislation is not compatible with a Convention right.

This essay will critically analyse Section 3 and Section of 4 to determine whether the judicial review power challenges the basic UK constitutional principles, in particular Parliamentary Sovereignty. This essay proposes that it does not. Rather it complements Parliamentary Sovereignty.

Parliamentary Sovereignty means that the Parliament is the supreme legal authority, which can enact or repeal a law. The courts cannot overrule any legislation. The Parliament cannot pass laws that restricts or prohibit future Parliaments from changing the laws. The Diceyan concept of Parliamentary sovereignty provides for the supreme power of the Parliament, which alone could limit its own law-making power. Cases such as Cheney v Conn and British Railways Board v Pickin conform to this principle. In the former case, the High Court held the UK Parliament has the ultimate supremacy in regard to challenging a statute and that the law passed by the Parliament is the highest form of law. In the latter case, the House of Lords held courts must consider and apply the Acts and they cannot challenge the validity of the Acts.

1. The UK Parliament, ‘Parliament's authority’ (2022) accessed 10 January 2022 .
2. D. Nicol, EC Membership and the Judicialization of British Politics (Oxford University Press 2001) 1.
3. Cheney v Conn, 1 All ER 779 (1968).
4. British Railways Board v Pickin AC 765 (1974).
5. Cheney v Conn, 1 All ER 779 (1968).
6. British Railways Board v Pickin AC 765 (1974).

The UK Parliament centralises all the powers. However, there are arguments and events that suggest a limitation on Parliamentary Sovereignty. For example, it is claimed that many legal principles and case laws were established after the UK joined the EU and hence, the UK is bound by EU laws and the rulings of ECJ and ECtHR. For example, reading the rulings and Section 4 of the 1998, cases rulings such as Van Gend en Loos and Costa, provide that any EU domestic laws cannot override EU law. Section 4 of the 1998 Act empowers the court to declare a provision incompatible with ECHR rights. Thus, in considering the UK exit from the EU, the courts may consolidate more power to constraint the UK Parliament. Alternatively, the UK Parliament may not need to follow or adopt EU laws and case laws thereby retaining its sovereignty.

The role of the courts in determinating the question of compatibility could be reviewed from the four rules of judicial interpretation. Firstly, the literal rule requires courts to give their plain, ordinary or literal meaning to statutory words. This conforms to Parliamentary Sovereignty.

Secondly, according to the Golden rule, if the first rule results to an absurd result, the court may depart from the literal meaning to avoid absurdity or of injustice. This conforms to Section 3(1) phrase, ‘so far as it is possible to do so’, in a manner compatible with the Convention rights.

Thirdly, the mischief rule provides more discretion to the court to identify any gap of or mischief in a law before its enactment. This rule is more relevant to the current question being analysed in this essay. The reason is that the discretionary review may bring uncertainties with attempt to create legal meaning of a legislation. However, it does not affect sovereignty as all the law-making power is centralised with the Parliament and that this gap finding is regarding a law before enactment. This rule confirms with Section 3(2)(b) and (c) of the 1998 Act.

1. Case 26/62 NV Algemene Transport – en Expeditie Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen, ECR 1 (1963).
2. Case 6/64 Flaminio Costa v ENEL, ECR 585 (1964).
3. Michael Gordon, ‘The UK's sovereignty situation: Brexit, bewilderment and beyond…." (2016) 27(3) King's Law Journal 333-343.
4. Wouter Werner, Netherlands Yearbook of International Law 2016: The Changing Nature of Territoriality in International Law (T.M.C. Asser Press 2017) 297.
5. Rebecca Huxley-Binns and Jacqueline Martin, Unlocking The English Legal System (Taylor & Francis 2013) 63.
6. Richard Ward, Amanda Akhtar and Amanda Wragg, Walker & Walker's English Legal System (Oxford University Press 2011) 40.
7. Rebecca Huxley-Binns and Jacqueline Martin, Unlocking The English Legal System (Taylor & Francis 2013) 65-66.
8. Heydon’s case (1584) Co. Rep 7a.

Fourthly, the purposive approach allows flexibility of interpretation to meet changing social demands by allowing interpretation to find the true meaning of the legislation. However, this approach may create a tension due to different interpretation that may threaten the sovereignty principle. Alternatively and appropriately, this approach conforms with the purpose of Section 4 that is to intervene where a situation is not predictable or where the language is ambiguous.

To conclude, the extent of judicial review is limited to ‘so far as it is possible to do so’ and does not affect any law in existence passed by the Parliament. Hence, parliamentary sovereignty is retained and the judicial review power complements and enforces this principle.

Legislation

The Human Rights Act 1998

Cases

• British Railways Board v Pickin AC 765 (1974).
• Cheney v Conn, 1 All ER 779 (1968).
• Case 26/62 NV Algemene Transport – en Expeditie Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen, ECR 1 (1963).
• Case 6/64 Flaminio Costa v ENEL, ECR 585 (1964).
• Heydon’s case (1584) Co. Rep 7a.

Books

• Huxley-Binns R and Jacqueline Martin, Unlocking The English Legal System (Taylor & Francis 2013)
• Nicol D, EC Membership and the Judicialization of British Politics (Oxford University Press 2001)
• Martin J, Cambridge International AS and A Level Law (Hodder Education 2017)
• Murphy R and Frances Burton, English Legal System (Taylor & Francis 2020).
• Partington M, Introduction to the English Legal System 2013-2014 (Oxford University Press 2013)
• Slapper G and David Kelly, The English Legal System (Routledge 2013)
• Ward R, Amanda Akhtar and Amanda Wragg, Walker & Walker's English Legal System (Oxford University Press 2011)
• Werner W, Netherlands Yearbook of International Law 2016: The Changing Nature of Territoriality in International Law (T.M.C. Asser Press 2017)

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1. Jacqueline Martin, Cambridge International AS and A Level Law (Hodder Education 2017) paragraph 4.6.3.
2. Gary Slapper and David Kelly, The English Legal System (Routledge 2013) 106.
3. Ryan Murphy and Frances Burton, English Legal System (Taylor & Francis 2020).
4. Ibid.
5. Martin Partington, Introduction to the English Legal System 2013-2014 (Oxford University Press 2013) 56-58.

Journals

• Gordon M, ‘The UK's sovereignty situation: Brexit, bewilderment and beyond…." (2016) 27(3) King's Law Journal 333-343.

• The UK Parliament, ‘Parliament's authority’ (2022) accessed 10 January 2022 .

This essay will explore the role of Wednesbury unreasonableness in context to its suitability to scrutinise the government. Lord Green MR ruled that whether or not an act of a public authority is reasonable is subject to the act being “so absurd that no sensible person could ever dream that it lay within the powers of the authority”.

The first part of the test emphasises on whether the right issues were considered while it was reaching its decision. In R (DSD and NBV) v The Parole Board, the decision of the Parole Board to release the black cab rapist John Worboys was held to be ultra vires and to be irrational or unreasonable. The ultra vires doctrine allows the court to enforce the limits a legislation imposes upon a public office. However, it may create a gap where a public office can draft a provision widely to perform activities that may be incidental to the express powers in the legislation. The wide drafting by the public office means that the literal language has given rise to absurdity or injustice. In this case, the court can always apply the Golden rule to interpret a law to avoid absurdity or injustice.

The second part emphasises on whether the outcome, despite considering the right issues, is ‘so outrageous that no reasonable decision maker could have reached it’. However, it may allow a variable flexibility to the courts to developing new doctrinal approaches, such as anxious scrutiny and modified rationality. For example, Lord Donaldson in R v Devon Council ex parte (1989), equated the Wednesbury unreasonableness test with that of irrationality. Concepts including ‘arbitrary and capricious’; ‘frivolous or vexatious’; or ‘capricious and vexatious’ have been used on similar lines. Lord Brightman used the terms ‘acting perversely’. It seems the term ‘unreasonableness’ has been used as the umbrella concept.

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1. Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223, 229.
2. Hilaire Barnett, Constitutional and Administrative Law (Taylor & Francis 2021).
3. R (DSD and NBV) v The Parole Board [2018] EWHC 694 (Admin), [2018] 3 All ER 417.
4. Ibid.
5. Mark Elliott and Robert Thomas, Public Law (Oxford University Press 2011) 461.
6. Charles Aguma, The Principle of Ultra Vires and the Local Authorities' Decisions in England’ (2013) 15 Eur. JL Reform 267.
7. Richard Ward, Amanda Akhtar and Amanda Wragg, Walker & Walker's English Legal System (Oxford University Press 2011) 40.
8. Rebecca Huxley-Binns and Jacqueline Martin, Unlocking The English Legal System (Taylor & Francis 2013) 65-66.
9. Sarah Worthington, ‘Powers’ in Sarah Worthington and William Day, Challenging Private Law Lord Sumption on the Supreme Court (Bloomsbury Publishing 2020) 301.
10. Voraphol Malsukhum, ‘Influence of the Legal Cultures on the Grounds Relating to Substantive Exercise of Discretion’ (2021) Legal Culture, Legality and the Determination of the Grounds of Judicial Review of Administrative Action in England and Australia. 175-214.
11. R v Devon Council ex parte [1989] UKHL 577.
12. Hilaire Barnett, Constitutional & Administrative Law (Taylor & Francis 2017) 670.

The use of the multiple terms may allow a broad range of interpretation, and particularly require the test of reasonableness to be of a high standard. It is argued that if the standard is too low, the administrative discretion would substitute the judicial discretion. However, Lord Cooke of Thorndon sets a different tone regarding Wednesbury principle in R (Daly) Vs. Secretary of State for the Home Department. He stated that the Wednesbury principle is an ‘unfortunately retrogressive decision in English administrative law’ in that it provides for degrees of unreasonableness and ‘only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation’. Lord Cooke ruled that the degrees of unreasonableness may mean that the extent of judicial review and the deference will also vary with the subject matter. This means that finding a decision as not capricious or absurd is not sufficient.

There are arguments favouring the use of the principle of proportionality, which allows the scrutiny of the administrative action by limiting the exercise of power to means that are proportionate to the objective to be pursued. This has expanded the scope of judicial review based on the Wednesbury principle. The principle of proportionality has been used in multiple cases. In R v Chief Constable of Sussex, Lord Cooke ruled the proportionality principle and the margin of appreciation produce the same result as the Wednesbury principle. However, he redefined Wednesbury test of reasonableness to a simpler formula of whether a concerned decision is one which a reasonable authority would make.

It is argued that the courts have not adopted a systematic and impartial approach while using the Wednesbury principle like the proportionality test demands. It is also argued that proportionality is not replacing Wednesbury but adapting and becoming more than Wednesbury Alternative, it is also argued that the test of reasonableness comprises balancing and weighing; that proportionality does not add much to the existing grounds of judicial review; and that it does not necessarily focus on the administrative weighing and balancing process. Hence, there is no reason to prevent adding proportionality as a general ground of judicial review in UK public law. Further, the Human Rights Act 1998 (Section 3 and Section 4) provides for judicial review of compatibility of legislation to ECHR, which supports the argument for replacing the Wednesbury. The Race Relations (Amendment) Act 2000 imposed this test. The case of Naharajah and Abdi sought proportionality.

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1. R v Hillingdon LBC, ex p. Puhlhofer [1986] UKHL 1.
2. Hilaire Barnett, Constitutional & Administrative Law (Taylor & Francis 2017) 669.
3. Ibid.
4. Ibid.
5. R (Daly) Vs. Secretary of State for the Home Department [2001] UKHL 26.
6. Ibid, 32.
7. Ibid, 32.
8. Hilaire Barnett, Constitutional and Administrative Law (Taylor & Francis 2021) 617.
9. Examples: Bank Mellte v HM Treasury (Non 2) [2013] UKSC 38 & [2013] UKSC 39, R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052; R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd [1999] 2 AC 418
10. R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd [1999] 2 AC 418.
11. Hilaire Barnett, Constitutional and Administrative Law (Taylor & Francis 2021) 671.
12. SHAMAISE PETERS, ‘hould the United Kingdom discard the Wednesbury Unreasonableness test in the National Court and apply the Proportionality test?’ (2018) 13(13) L’Europe Unie 68-73.

To conclude, the first part of Wednesbury could be replaced with the ultra vires doctrine. The second part is replaceable with the principle of proportionality weighing the arguments and the statutory and judicial recognition of the proportionality principles. Hence, Wednesbury unreasonableness should be replaced.

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1. Alex Gewanter, ‘Has Judicial Review on Substantive Grounds Evolved from Wednesbury towards Proportionality’ (2017) 44 Exeter L. Rev. 60.
2. Yossi Nehushtan, ‘The Non-Identical Twins in UK Public Law: Reasonableness and Proportionality’ (2017) 50(1) Israel Law Review 69-86.
3. Carol Harlow and Richard Rawlings, Law and Administration (Cambridge University Press 2009) 678.

Bibliography

Legislation

Cases

• Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223
• R (DSD and NBV) v The Parole Board [2018] EWHC 694 (Admin), [2018] 3 All ER 417.
• Bank Mellte v HM Treasury (Non 2) [2013] UKSC 38 & [2013] UKSC 39
• R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052
• R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd [1999] 2 AC 418
• R (Daly) Vs. Secretary of State for the Home Department [2001] UKHL 26.
• R v Devon Council ex parte [1989] UKHL 577
• R v Hillingdon LBC, ex p. Puhlhofer [1986] UKHL 1

Books

• Barnett H, Constitutional and Administrative Law (Taylor & Francis 2021).
• Elliott Mand Robert Thomas, Public Law (Oxford University Press 2011)
• Harlow C and Richard Rawlings, Law and Administration (Cambridge University Press 2009)
• Huxley-Binns R and Jacqueline Martin, Unlocking The English Legal System (Taylor & Francis 2013)
• Ward R, Amanda Akhtar and Amanda Wragg, Walker & Walker's English Legal System (Oxford University Press 2011)
• Worthington S, ‘Powers’ in Sarah Worthington and William Day, Challenging Private Law
• Lord Sumption on the Supreme Court (Bloomsbury Publishing 2020)

Journals

• Aguma C, The Principle of Ultra Vires and the Local Authorities' Decisions in England’ (2013) 15 Eur. JL Reform 267
• Gewanter A, ‘Has Judicial Review on Substantive Grounds Evolved from Wednesbury towards Proportionality’ (2017) 44 Exeter L. Rev. 60
• Malsukhum V, ‘Influence of the Legal Cultures on the Grounds Relating to Substantive Exercise of Discretion’ (2021) Legal Culture, Legality and the Determination of the Grounds of Judicial Review of Administrative Action in England and Australia. 175-214
• Nehushtan Y, ‘The Non-Identical Twins in UK Public Law: Reasonableness and Proportionality’ (2017) 50(1) Israel Law Review 69-86.
• Peters S, ‘hould the United Kingdom discard the Wednesbury Unreasonableness test in the National Court and apply the Proportionality test?’ (2018) 13(13) L’Europe Unie 68-73

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