SOURCES OF LAW
[1.11] The principal sources of law of potential relevance in judicial review proceedÂings are: statute law (primary and subordinate); the common law (including jurisprudence from other common law systems); EU law; the ECHR; and unincorporated internaÂtional treaties and customary international law.
Judicial receptiveness to arguments developed with reference to these sources of law will, in turn, be crucially affected by understandings of the constitutional role of the courts and of, for instance, the relationÂship between UK domestic law and international law (see further [1.23]). Levels of receptiveness will often also determine the extent of any judicial intervention in adminÂistrative decision-making processes and outcomes.Statute Law
[1.12] Statute law—which is central to virtually all judicial review applications[55]—has historically been synonymous with the ultra vires doctrine whereby courts review the decisions, acts, failures to act, and other measures of public decision-makers for compliÂance with the primary legislation that delegates power to them or imposes a public duty to act.[56] The doctrine has its origins in understandings of the Westminster ParliaÂment as the sovereign source of law in the UK and in that context it links judicial review to the control of decision-making processes/outcomes in the light of the sovereign legislature’s intentions (the doctrine on this basis excludes judicial review of Acts of the Westminster Parliament[57]). The courts’ control function is, however, here constrained by the separation of powers doctrine, as the courts recognise that Parliament has delÂegated power—which can include the power to make subordinate legislation—to the recipient authority and not to the courts. This means that the courts will not assess the merits of a discretionary choice—viz the historical distinction between review and appeal[58] (see [1.03] and [1.05])—and that applications for judicial review will typically be successful only where there has been a breach of procedure or a failure to observe the legal limits of the power.[59] Any scope for substantive review is, from this historical perspective, limited to that set by the standard of Wednesbury unreasonableness: was the decision or other measure â€?so unreasonable that no reasonable authority could ever have come to it’?[60]
[1.13] Northern Ireland statute law is made both by the Westminster Parliament and by the Northern Ireland Assembly (when the Assembly was suspended at different times between 2000 and 2007 matters that fell within its competence were instead legislated for by Order in Council[61]).
While this means that decisions or other measures of public bodies may be challenged on the ground that they are ultra vires the Acts of either legislature, it does not also mean that Acts of the two institutions are constitutionally equivalent. UK constitutional orthodoxy ultimately regards the Northern Ireland Assembly as a recipient of power rather than a sovereign institution,[62] and Acts of the Northern Ireland Assembly may be challenged as ultra vires the Northern Ireland Act 1998[63] (such challenges give rise to �devolution issues’ that must be resolved in the light of the procedural requirements specified in the Northern Ireland Act 1998[64]). Orthodox understandings of the nature of the Assembly and the Belfast Agreement that founded it have in turn been much criticised,[65] and there are judicial dicta that cast doubt on the long-term relevance of that orthodoxy[66] (see [1.28]-[1.36]). However, the existing devolution case law has not yet fully departed from orthodoxy and has noted only that the devolved legislatures enjoy a democratic—though not sovereign—legitimacy that limits the scope for judicial intervention beyond the terms of the devolution Acts.[67]The Common Law
[1.14] The common law is inherently dynamic and underlies developments not just in judicial review but also across the full range of areas of public law and private law.[68] Its use in the specific context of judicial review has, however, led to the argument that the role of the courts cannot be conceived of solely in terms of the courts giving effect to the intentions of Parliament (see [1.12]).[69] The point here is simply that the courts have always used the common law creatively; that it is only the courts that can use the common law in this way; and that the development of judicial review on the basis of the common law therefore occurs independently of the intentions of Parliament.
Such arguments, which draw on the historical fact that the courts’ supervisory jurisdiction rested in the common law (the corresponding procedure is now contained in legislaÂtion[70]), have, in turn, proved controversial. The most obvious criticism has been that an emphasis on judicial use of the common law challenges the UK constitution’s core precept of legislative supremacy by suggesting that the development of the law canoccur beyond that which is expressly or impliedly authorised by Parliament.[71] PropoÂnents of the importance of the common law nevertheless remain unconvinced, arguing that it is fictitious to relate the judge-led method of the common law to the express or implied intentions of the legislature.[72] They moreover argue that ultimate legislative sovereignty remains unaffected insofar as the legislature—here the Westminster ParliaÂment (query the Northern Ireland Assembly too[73])—can legislate to override any judge-led development of the law that is deemed problematic.[74]
[1.15] The area in which judicial use of the common law has been most apparent in the present context is that concerned with general principles of law and the grounds for judicial review.[75] It has long been recognised that the grounds for review are common law creations that determine how closely, and for which reasons, the courts will superÂvise public law decisions and other measures. The grounds have historically been classified under the headings of illegality, Wednesbury unreasonableness/irrationality, and procedural impropriety,[76] although they have long since been developed to include related sub-grounds such as substantive legitimate expectation, equality, and proporÂtionality. While some of these grounds have in turn emerged under the (part) influence of EU law and/or the ECHR, the principal catalyst in the development of new grounds has been the common law. Indeed, the common law here has its broadest meaning, as the grounds may sometimes develop in the light of the comparative experience of other common law systems.[77]
EU Law
[1.16] EU law has effect in domestic law under the terms of the European CommuniÂties Act 1972 and the European Union Act 2011 (on which see [1.28]-[1.30]).
It can on that basis be regarded as statute law, albeit that it is constitutionally distinct in the light of the demands of the EU legal order.[78] EU law commands supremacy over domestic law whenever enacted and in whatever form,[79] and its provisions may be relied upon in domestic courts by individuals where the provisions meet the EU law requirements for direct effect.[80] The institutional competences of the EU now include areas such as justice and home affairs,[81] although EU law remains of primary relevance to national courts insofar as it guarantees the range of social and economic rights associated with free movement and the completion of the EU’s internal market.[82] EU law has therefore been used in Northern Ireland courts to challenge: deportation decisions in respect of Dutch citizens who had been convicted of drugs offences;[83] regulations that govern registration as a student solicitor of the Law Society of Northern Ireland;[84] decisions about the social security entitlements of workers from new accession states;[85] decisions about public procurement;[86] nationality requirements that govern eligibility for employment in certain public service posts;[87] the levels of pay for part-time tribunal chairpersons;[88] public health legislation that placed limits on meat production;[89] the refusal to grant a road service licence to an individual for the purpose of providing a bus service;[90] aspects of planning policy;[91] and the failure of the UK government to introduce legislation to implement the Working Time Directive in Northern Ireland law.[92][1.17] Whenever EU law provisions are in issue there are a number of obligations that are imposed on national courts. These include: the obligation to interpret national law to be consistent with non-directly effective EU Directives that have not been impleÂmented in domestic law (or have been implemented incorrectly);[93] the requirement that national courts refer matters of EU law to the Court of Justice of the European Union (CJEU) in the event that the national court is uncertain as to the meaning of EU law;[94] the requirement that national courts award damages to individuals for a â€?sufficiently serious’ breach of their EU law rights by any of the legislative, executive, or judicial branches of the State;[95] and the requirement that national courts give effect to the general principles of EU law, which include proportionality, equality, legitimate expectaÂtion, and fundamental rights standards found in, among others, the ECHR.[96] This last requirement is of particular interest to judicial review, as it has previously resulted in national courts using general principles of law that were regarded as ill suited to the domestic constitutional context.
The point was particularly true of the proportionality principle, although the more general development of that principle in domestic law has since lessened EU law’s â€?alien’ influence.[97][1.18] Whenever provisions of EU law are not in issue national courts are not bound by the above obligations. However, it does not follow that national court experience with EU law is wholly without relevance. There have been several important cases in which the domestic courts have drawn upon the demands of EU law to inform developÂments in the purely domestic context.[98] EU law can thereby have a â€?spill-over effect’ in judicial review in the sense that it indirectly shapes the outcome of domestic proceedings.[99]
[1.19] Mention should lastly be made under this heading of the significance of the Charter of Fundamental Rights of the European Union (�the Charter’). The Charter was first published as a non-binding declaration of rights,[100] but it now enjoys the status of Treaty law in accordance with Article 6 TEU. In broad terms, it contains a range of civil, political, social, and economic rights that are to be observed by the EU institutions and by the Member States �when they are implementing EU law’[101] (these are clustered within six chapters under the headings of Freedoms; Equality; Solidarity; Citizen’s Rights, and Justice).[102] While it was initially thought that the Charter could not be enforced in UK courts because of Protocol 30 to the Treaty of Lisbon,[103] the CJEU has since ruled, on a reference from the Court of Appeal in England and Wales, that the Charter is enforceable in the UK courts save, it would seem, for those Articles of it that fall under the heading of �solidarity’.[104] This means that the greater part of the Charter is now potentially relevant in any case that involves the implementation of EU law, and early rulings have suggested that the courts will adopt an expansive approach to the question of when EU law is involved in a dispute.[105] The Charter therefore exists as �a dynamic, revolutionary and directly effective measure of EU law’[106] that may either overlap with the ECHR on the facts of a case or offer free standing protection of rights that are not guaranteed by that other instrument.[107] In the event of overlap—ie where the Charter �contains rights which correspond to rights guaranteed’ by the ECHR—�the meaning and scope of those rights shall be the same as those laid down’ by the ECHR albeit that this �shall not prevent [EU] law providing more extensive protection’.[108]
The ECHR
[1.20] The greater part of the ECHR has effect in domestic law under the terms of the Human Rights Act 1998.
Although the ECHR had previously exerted some influÂence on domestic law[109]—viz as part of the general principles of EU law,[110] through courts drawing analogies with the ECHR when identifying the content of the common law,[111] and through the interpretation of ambiguous legislation in the light of the UK’s international obligations[112]—the dualist nature of the constitution entailed that it could not be relied upon directly in the absence of an Act of Parliament.[113] Since the enactÂment of the Human Rights Act 1998 the ECHR has of course been directly arguable and section 2 of the Act requires courts to â€?take into account’ ECHR jurisprudence in respect of the rights listed in Schedule 1 to the Act.[114] These are: the right to life (Article 2); the prohibition of torture, inhuman or degrading treatment (Article 3); the prohibiÂtion of slavery and forced labour (Article 4); the right to liberty and security (Article 5); the right to a fair trial (Article 6); no punishment without law (Article 7); the right to respect for private and family life (Article 8); freedom of thought, conscience and religion (Article 9); freedom of expression (Article 10); freedom of association and assembly (Article 11); the right to marry (Article 12); the prohibition of discrimination (Article 14); restrictions on political activities of aliens (Article 16); the prohibition of abuse of rights (Article 17); limitation on the use of restrictions on rights (Article 18); protection of property (Article 1, Protocol 1); the right to education (Article 2, Protocol 1); the right to free elections (Article 3, Protocol 1); abolition of the death penalty (Article 1, Protocol 6); and death penalty in time of war (Article 2, Protocol 6).[115][1.21] The rights within Schedule 1 are sometimes described as either substantive or procedural in form,[116] although some Articles—for instance the Article 2 ECHR right to life—have both substantive and procedural dimensions. The rights are, moreover, often subdivided into â€?qualified rights’ and â€?absolute rights’, and â€?derogable rights’ and â€?non-derogable rights’. The difference between qualified rights and absolute rights is essentially one that is concerned with the permissibility of interference with the rights. Thus, while qualified rights such as privacy, expression, and association are open to limitation on a number of grounds associated with the public interest (subject to the demands of proportionality and legality),[117] absolute rights—such as the prohibition of torture—are not. This emphasis on the absolute nature of some of the rights likewise informs the distinction between derogable and non-derogable rights: while liberty and fair trial guarantees (for instance) may be derogated from at times of public emergency (subject again to proportionality and so on),[118] [119] absolute rights are to remain unaffected. [1.22] The impact that the ECHR, as another body of constitutionally distinct statute law, has had on judicial review has been far-reaching and is examined more fully in subsequent chapters. However, one point of overarching importance relates to the dynamism of the ECHR and its corresponding capacity to challenge core precepts of judicial review. The ECtHR has emphasised that the ECHR is, among other things, a â€?living instrument’ that is unlike other international treaties,111 â€?autonomous’ in terms of its meaning and content,[120] founded on the principles of democracy and respect for the rule of law,[121] and a â€?constitutional instrument of European public order’.[122] While such statements must be read with the fact that provisions in the ECHR do not always guarantee protection as wide as that in the common law,[123] the ECHR’s general prinÂciples of law—in particular proportionality and legality—envisage increased judicial intervention in decision-making processes that affect fundamental rights. The ECHR can thereby require closer look review in cases under the Human Rights Act 1998 in the sense that courts must assess whether a decision-maker has balanced correctly all interests affected by the decision it has taken. However, to the extent that this recasts the nature of the judicial role in review proceedings, the courts have equally developed a â€?discretionary area of judgment’ doctrine that borrows from the ECtHR’s margin of appreciation doctrine and which seeks to prevent unwarranted judicial interference with administrative and legislative choices.[124] Unincorporated International Treaties and Customary International Law [1.23] Two final sources of law of (potential) importance are unincorporated interÂnational treaties and customary international law.[125] Unincorporated international treaties can, for instance, have some impact where the courts are open to arguments about parallelism in the common law and the need to interpret legislation in the light of international obligations (see, in respect of the ECHR, [1.20]). However, where the courts are not open to such arguments for reasons of constitutional dualism, unincorÂporated international law may be deemed irrelevant.[126] Hence in Re Ts Application[127] the High Court rejected arguments that the applicant had a legitimate expectation that the Secretary of State would make a decision about the applicant’s immigration status in the light of the United Nations Convention on the Rights of the Child (the applicant, who was to be deported, had given birth to a child while residing unlawfully in Northern Ireland).[128] Finding that such arguments would, if accepted, amount to incorporation by the â€?back door’, the court referred to the â€?constitutional importance of the principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation’.[129] While the application for judicial review was successful on other grounds, arguments made with reference to the ConvenÂtion were rejected. [1.24] The position in relation to customary international law is perhaps more complex. Customary norms are those that have â€?attained the position of general accept- ance by civilised nations as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decision’.122 Customary norms have, as such, long been recognised as part of the common law,123 and this allows the courts—which are solely responsible for developing the common law—to have regard to the norms even in the absence of incorporating legislation (although such use of the common law is subject to rules of precedent and to the superior force of statute124). However, while this offers the courts a potentially rich source of standards and values, arguments about the role of customary norms will fail where the applicant cannot establish that a norm has in fact attained customary status. Arguments may also fail where courts consider that use of the common law would involve them in disputes that are essentially political and non-justiciable.125