INTRODUCTION
[6.01] This chapter considers the scope for substantive review of the discretionary choices of public decision-makers.[1138] Substantive review here refers to those situations where courts grant remedies to applicants who have demonstrated that a decision or other measure is unlawful because it is, for instance, arbitrary, manifestly unjust, subÂstantively unfair, disproportionate, lacking in reason, and/or constitutive of an abuse of power.
In historical terms, courts in Northern Ireland have generally been reluctant to engage in substantive review because judicial review is concerned with the legality of a decision and not with its merits.[1139] However, while the distinction between �review’ and �appeal’ remains of importance, the courts have also developed new principles and doctrines (most notably proportionality and substantive legitimate expectation) that have the potential to result in �closer look’ review. This chapter thus identifies the key features of these doctrines and principles and how they can result in more intensive judicial scrutiny of discretionary choices. It also explains how the courts have sought to reconcile the emergence of the principles with concerns about the need for courts to observe the separation of powers doctrine.[1140][6.02] The chapter begins with a section on the significance of the Wednesbury unrea- sonableness/irrationality principle that has traditionally been synonymous with a restraint-based approach to substantive review. It next considers the importance of the proportionality principle that has long been of application in EU law cases and which has recently assumed an added prominence under the Human Rights Act 1998. There then follow two further sections that consider, respectively, the doctrines of legitimate expectation and equality/non-discrimination.
The conclusion provides a summary of the various sections.[6.03] Two further points can be made by way of introduction. The first concerns the fact that statute will often give a decision-maker a greater or lesser degree of discretion in a matter that comes within its competence (albeit that the extent of any discretion will depend upon judicial interpretation of the statute).[1141] Although the rule is not absolute, courts will tend to be more deferential to substantive choices that are made in areas where the decision-maker has been given a wide discretion and/or where the courts regard the decision as essentially political in nature (the courts here often refer to â€?policy’ decisions).[1142] The rationale for such restraint is founded on the separation of powers doctrine and the understanding that, as the legislature has given the power of decision to the recipient of the delegated power, the courts should not intervene unless the decision-maker has â€?taken leave of their senses’[1143] (substantive review), misunderstood the nature of their power (illegality[1144]), or acted in breach of a procedural requirement (procedural impropriety[1145]). Where, in contrast, the decision-maker has only a limited discretion the courts may be more inclined to grant a remedy in respect of any corresÂponding substantive choices precisely because the range of options open to the decision-maker is smaller. The potential for such intervention is perhaps most apparent where a power is exercised in a way that interferes with, or would interfere with, an individual’s absolute rights at common law or under the Human Rights Act 1998 (see
[6.10] -[6.11] and [6.18]-[6.26]).
[6.04] The second point concerns the scope for substantive review of the legislative choices of the Westminster Parliament when rights under EU law and/or the ECHR are affected by those choices. Although the term â€?substantive review’ is ordinarily assoÂciated with challenges to the choices of administrative and other subordinate decision-makers, the European Communities Act 1972 (as read with the European Union Act 2011) and the Human Rights Act 1998 now provide for (qualified forms of) review of Acts of Parliament that can lead to disapplication of an Act in the EU context and a declaration of incompatibility in the context of the ECHR[1146] (the position in respect of Acts of the Northern Ireland Assembly and Orders in Council made at times when the Assembly has been suspended is different as these may be quashed[1147]).
Where an Act of Parliament is challenged as incompatible with any of the provisions of EU law and/or the ECHR, courts are to resolve the dispute with reference to a range of general principles of European law that include the proportionality principle. This principle, which also applies when administrative acts and decisions are challenged as contrary to EU law or the ECHR, is understood to demand �closer look’ review as it requires courts to assess whether the legislature has struck the correct balance between the objectives that a legislative scheme pursues and the rights and interests that are affected by it.[1148] However, while the courts accept that they should give effect to the principle when reviewing Acts of Parliament, they have at the same time emphasised that there may be a heightened need for self-restraint given that they are dealing with the preferences of a democratically elected legislature.[1149] Substantive review of legislative (and other) choices under the Human Rights Act 1998 has thus been aligned to a �discretionary area of judgment’ doctrine that seeks to limit the judicial role to that deemed constitutionally appropriate (see [6.25]-[6.26]); and case law in the EU context has similarly emphasised that application of the proportionality principle may need to account for a decision-maker’s �margin of appreciation’ (see [6.15]-[6.16]).