THE CONSTITUTIONAL PURPOSES OF, AND THE LIMITS TO, THE GROUNDS FOR REVIEW

[4.03] The variable and context-sensitive nature of the grounds for review is the con­sequence of a judicial awareness, on the one hand, of the constitutional importance of judicial review and, on the other, of the fact that there are desirable limits to the judicial role.

�Root Concepts’ of the Common Law and the �Rule of Law’

[4.04] Judicial review’s capacity to constrain, or control, the exercise of public power is largely dependent upon judicial development and application of common law concepts such as fairness, abuse of power, reasonableness, proportionality, and propriety of purpose (the common law may here evolve independently or in the light of EU law and/ or the ECHR⁹). While the imagery of judicial review â€?controlling’ decision-making processes and outcomes offers only a partial perspective on its constitutional purpose(s),¹⁰ use of the common law’s â€?root concepts’ of fairness and so on has long been central to judicial oversight of decisions and other measures.¹¹ â€?Abuse of power’, for instance, has underscored the development of common law notions of â€?improper purpose’ and â€?unreasonableness’,¹² and â€?fairness’ has been central to the emergence of the doctrine of substantive legitimate expectation.¹³ The protection of human rights—whether on

The exercise of power for an improper purpose may involve taking irrelevant considerations into account, or ignoring relevant considerations; and either may lead to an irrational result.

⁹ See, on the spill-over of EU law, [1.18].

¹⁰ See [1.04]-[1.10].

¹¹ The term â€?root concept’ was used by Laws LJ to describe â€?abuse of power’: see R v Department of Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1129.

¹²See R v Department of Education and Employment, ex p Begbie [2000] 1 WLR 1115, 1129, Laws LJ; and Re Croft’s Application [1997] NI 457, 491, Girvan J. And on improper purpose and unreasonableness see further [5.48]-[5.50] and [6.05]-[6.11].

¹³ R (BAPIO) v Secretary of State for the Home Department [2008] UKHL 27, [2008] 1 AC 1003, 1016, para 29, Lord Scott. See further [6.29]-[6.45].

the basis of the common law and/or under the Human Rights Act 1998—is also con­sonant with any/all of the concepts of fairness, abuse of power, and so on, and the courts here review decisions with reference to the �fundamental principle’^[674] of �anxious scrutiny’.^[675]

[4.05] Judicial use of these concepts can, in turn, be traced to the related notion of the �rule of law’.^[676] The rule of law here means that all those who exercise public power must be subject to the demands of legality, whether developed with reference to specific concepts like abuse of power or to some other formulation (for example, a straightfor­ward misunderstanding of the nature of a power or duty).^[677] The rule of law has, as such, also led the courts to emphasise that any decision, or other measure, of a sub­ordinate body that is founded upon statute and characterised by a misapprehension of the law is, in general, unlawful; and they have on this basis further emphasised that the ultra vires doctrine—whereby a decision or other measure is deemed unlawful where it is �outside the power’—should be given its broadest meaning.^[678] Thus, while the courts previously distinguished between errors of law that went to the jurisdiction of a sub­ordinate body and those that were made within the body’s jurisdiction, any error of law is, subject to only very few exceptions, now taken to affect the jurisdiction of the decision-maker and to render a decision or other measure unlawful (see [4.30]-[4.35]).

Non-statutory Power and the Rule of Law: The Royal Prerogative

[4.06] The rule of law can also found challenges to decisions or other measures that are taken on the basis of non-statutory power. Such power includes the royal pre- rogative,^[681] which has been described as �a residue of miscellaneous fields of law in which the executive government retains decision-making powers that are not dependent on any statutory authorisation but nevertheless have consequences’ for the rights of individuals^[682] (the executive for these purposes can include Northern Ireland Ministers, who may, as respects transferred matters, exercise �the prerogative and other executive powers of Her Majesty in relation to Northern Ireland’^[683]). In historical terms, decisions taken on the basis of the prerogative were not subject to judicial review as the powers were regarded as essentially political in form,^[684] and the role of the courts was limited to enquiring into whether a particular power existed and, if so, its extent.^[685] In making this enquiry the courts would consider whether legislation had been enacted in the area in question, as it had long been accepted that legislation would extinguish the non- statutory power, or place it in abeyance.^[686] This rule—which remains of contemporary importance^[687]—has its origins in the doctrine of the sovereignty of the Westminster Parliament and it corresponds to the basic democratic principle that Acts of elected legislatures should trump executive power. Legislatures for this purpose also include the Northern Ireland Assembly, as it has since been established that the prerogative can be extinguished by the �constitutional laws’ of Northern Ireland^[688] (viz lawful Acts of the Assembly/Orders in Council made at times of suspension^[689]).

[4.07] The fact that the prerogative can have a direct impact on the interests of indi­viduals subsequently led the courts to modify their approach to the availability of judicial review, and exercises or non-exercises of the prerogative are now subject to the supervisory jurisdiction of the courts where the issues raised are �justiciable’.^[690] This means that certain prerogative decisions fall within the constitutional jurisdiction of the courts and that judicial scrutiny is thereby legitimate. While the concept can at the same time be criticised for placing some decisions beyond the scope of judicial invigila- tion (see [4.16]), its use has moved the courts towards the fuller review of a significant range of executive powers. The courts thus now sometimes distinguish between non- justiciable matters of �high policy’ (which have historically been said to include making treaties, the dissolution of Parliament, and mobilising the armed forces),^[691] and justi-

The Constitutional Purposes of the Grounds for Review 117 ciable â€?other matters’ (for instance, a decision not to issue a passport to a suspected criminal living outside the UK).³² The courts, moreover, accept that these categories are open rather than closed and that the justiciability of matters can be reconsidered in the light of â€?modern conditions’.³³ Exercises of the prerogative of mercy are, as a result, no longer regarded as immune from review;³⁴ and case law in England and Wales has seen the courts both accept that Orders in Council made on the basis of the preroga- tive—a form of primary legislation³⁵—are subject to review³⁶ and analyse executive decisions in a manner that has taken the courts to the margins of matters of high policy.³⁷

[4.08] The extent to which specific exercises of the prerogative will be subject to the rule of law then depends on how the courts use the grounds for review in any given case.

³²The distinction was made by Taylor LJ in R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett [1989] 1 All ER 655, 660. For a list of the main prerogative powers see A Bradley and K Ewing, Constitutional and Administrative Law, 15th edn (Harlow, Pearson, 2011), pp 248-54.

³³Re McBride’s Application (No 2) [2003] NI 319 (while the administration of the affairs of the army was historically a matter for the sovereign, decisions of an Army Board—here to retain in service two soldiers convicted of murder in a civilian court—was properly subject to review in the modern era).

³⁴ Compare Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, 418, Lord Roskill (prerogative of mercy not justiciable) and R v Secretary of State for the Home Department, ex p Bentley [1993] 4 All ER 443 (Home Secretary’s decision not to recommend a posthumous free pardon for a youth reviewed on the ground that the Home Secretary had considered only an unconditional pardon and had not taken account of other possibilities). And see, eg, Lewis v A-G of Jamaica [2001] 2 AC 50; Re Dunn’s Application [2010] NIQB 54; Re McGeoughs Application [2012] NICA 28; and Re Rodgers’ Application for Leave [2013] NIQB 69.

³⁵ Human Rights Act 1998, s 21.

³⁶ R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453 (legislation at issue in the case found to be lawful).

³⁷ R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76 (Foreign Office policy documents gave a British citizen held at Guantanamo Bay a legitimate expectation that the Secretary of State would consider making representations on his behalf to the US government. The court could thus inquire whether the Secretary of State had given such consideration to the plight of the prisoner, without thereby reviewing any corresponding decision about how best to balance factors such as the gravity of the injustice to the individual and reasons of foreign policy which may lead the Secretary of State to decline to intervene). Compare, eg R (Rahmatullah) v Secretary of State for Foreign and Commonwealth Affairs [2012] UKSC 48, [2013] 1 AC 614 (court not trespassing on matters of foreign affairs when issuing a writ of habeas corpus to the respondent in respect of an individual who was being detained by US forces as a part of the â€?war on terror’: the court had not required the respondent to justify a foreign policy stance or to take a specific course of action, but rather had tested whether the respondent had control of the applicant in accordance with a memorandum of understanding between the UK and US).

³⁸See Re Croft’s Application [1997] NI 457, 486-7, Girvan J: â€?[W]here a decision is made on foot of ministerial or more accurately the royal prerogative it may be that somewhat different considerations apply in relation to a judicial review of such decision as compared to other ministerial or administrative decisions.’

³⁹Eg, Re Hannaway’s Application [1995] NI 159 (Secretary of State for Northern Ireland refused to exercise the prerogative of mercy to allow the remains of an IRA man to be removed from Crumlin Road prison because he was of the opinion that the prerogative of mercy did not apply as burial within prison was not part of the punishment: held that burial was part of the punishment and that the prerogative of

within which a prerogative power is being exercised qualifies the power, or certainly the manner in which it must be exercised. For instance, in Re Downes’ Application⁴ a woman whose husband had been killed by police officers in Northern Ireland chal­lenged the lawfulness of the Secretary of State’s use of the prerogative to appoint the widow of an RUC officer to the position of Interim Victims Commissioner (the holder of the office was to report upon and make recommendations about the interests of those affected by the Northern Ireland conflict pending the creation of a statutory position⁴¹). Part of the applicant’s case was that the appointment had been made without due regard for the merit principle that is contained in a Code on public appointments and, in finding that the Secretary of State had acted unlawfully, the Court of Appeal held that consideration should have been given to the relevant parts of the Code. While the Court accepted that the Code did not apply directly to the appoint­ment at hand and, moreover, that the Minister was not legally bound to comply with the Code, it still held that the Code should have been considered as part of the decision­making process. This therefore amounted to â€?a constraint on the exercise of the Royal Prerogative in this instance... the minister was required to have regard to the terms of the Code before he made the appointment and should at least have sought to comply with them’.⁴²

The Rule of Law and Parliamentary Sovereignty

[4.09] One final issue related to the rule of law concerns the status of Acts of the Westminster Parliament. The rule of law here has a more complex connotation, as the doctrine of parliamentary sovereignty has historically meant that the courts will not review the constitutionality of primary legislation and will accept as supreme the most recent statement of Parliament’s intentions⁴³ (the role of judicial review is thus limited to ensuring that decision-makers—including the Northern Ireland Assembly—act in accordance with the terms of primary legislation that delegates powers to them, or imposes on them a duty to act: see [4.05]⁴⁴). However, while the absolute sovereignty of the Westminster Parliament is, in theory, still central to the constitution,⁴⁵ judicial

mercy was available but that the court would express �no view whatever as to whether or not the Secretary of State should exercise the prerogative to order the removal of the remains. There are arguments for and against such a course and the decision whether to exercise the prerogative in this case is one for the Secretary of State and not for this court’).

⁴⁰ [2009] NICA 26.

⁴¹See now the Victims and Survivors (Northern Ireland) Order 2006, SI 2006/2953, NI 17, as read with the Commission for Victims and Survivors Act (Northern Ireland) 2008; and, eg, Re Williamson’s Application [2010] NICA 8.

⁴² [2009] NICA 26, para 12, Kerr LCJ.

⁴³ Ellen Street Estates v Minister of Health [1934] 1 KB 590, 597, Maugham LJ.

⁴⁴ But on the review of Acts of the Northern Ireland Assembly see Axa General Insurance v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868; and [1.36] and [5.25]-[5.26].

⁴⁵But compare, eg, Lord Steyn’s comments in Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262, 302, para [102]: â€?This is where we may have to come back to the point about the supremacy of Parlia­ment. We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implau­sibly asserts. In the European context the second Factortame decision made that clear. The settlement con­tained in the Scotland Act 1998 also points to a divided sovereignty. Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act 1998 created a new legal order. One must not assimilate the European Convention on Human Rights with multilateral treaties of the traditional

The Constitutional Purposes of the Grounds for Review 119 interpretation of legislation in such a way that, for instance, permits interference with common law fundamental rights only where such interference is provided for expressly or by necessary implication suggests that there are some increasingly important common law limitations to Parliament’s powers.⁴⁶ Constitutional orthodoxy is, moreover, com­plicated by challenges to primary legislation on the ground that it is contrary to EU law and/or to the limited extent associated with declarations of incompatibility with the ECHR: while the rule of law that here â€?binds’ Parliament can be said to be that which Parliament has set for itself under the European Communities Act 1972, the European Union Act 2011, and the Human Rights Act 1998, the description of the Acts of 1972 and 1998 as common law â€?constitutional statutes’ would suggest that the rule of law that binds Parliament may yet develop to take further account of judge-made conceptions of abuse of power, and so on.⁴⁷

Ouster Clauses and Time-limits

[4.10] The courts’ recognition of the constitutional importance of judicial review is perhaps most famously associated with their approach to absolute â€?ouster’ clauses. Such clauses typically provide that, once a decision has been reached by a decision-maker, the decision is to be regarded as final in the sense that it cannot be challenged in a court of law.⁴⁸ While there are dicta to suggest that Parliament may limit access to the courts through use of express language to that effect,⁴⁹ the prevailing approach of the

type. Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.’

⁴⁶Eg, HM Treasury v Ahmed [2010] UKSC 2 and 5, [2010] 2 AC 534; R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115; and Raymond v Honey [1983] 1 AC 1, 10, Lord Wilberforce (cited in, eg, Pettigrew v NIO [1990] NI 179, 182, Hutton J). Although for judicial caution in respect of delimiting the content of common law constitutional rights see Watkins v Home Office [2006] UKHL 17, [2006] 2 AC 395, 417-18, para 58, Lord Rodger.

⁴⁷See M Elliott, â€?Embracing “Constitutional” Legislation: Towards Fundamental Law?’ (2003) 54 NILQ 25; and Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262, 304, para 107, Lord Hope: â€?The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.’ On constitutional statutes see further [1.28]-[1.34] and [5.04]-[5.30]; and on the constitutional significance of the European Union Act 2011 see [1.30].

⁴⁸See, eg, the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988, SI 1988/1846 (NI 16), art 3(3): â€?A designated authority’s decision to give notice of transfer shall not be subject to any appeal or liable to be quashed in any court’.

⁴⁹R v Registrar of Companies, ex p Central Bank of England [1986] QB 1114, 1169, Lawton LJ: there is an â€?overriding rule that Parliament can by a statutory provision exclude recourse to the courts. The courts must, in consequence, refuse to entertain matters in respect of which Parliament by clear words or by neces­sary implication has enacted that they should not have jurisdiction.’ But compare, eg, Jackson v Attorney­General [2005] UKHL 56, [2006] 1 AC 262, 318, para 159, Baroness Hale: â€?The courts will treat with par­ticular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial powers.’ Contrast Baroness Hale’s words in R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663, 682, para 37, where the issue was whether judicial review was available to challenge unappealable decisions of the Upper Tribunal under the Tribunals, Courts

courts is identified with the seminal Anisminic judgment of the House of Lords.⁵⁰ In that case it was held that an ouster clause that sought to prevent challenges to deter­minations of a compensation commission had effect only where the determination in question was a lawful determination.⁵¹ Distinguishing between lawful determinations and determinations that were vitiated by an error of law, the House of Lords held that the latter were merely â€?purported determinations’ that fell beyond the wording of the statute.⁵² The House in that way ensured that the decision-making processes of subor­dinate bodies remained constrained by the rule of law, notwithstanding Parliament’s apparent intention to place certain decisions beyond judicial scrutiny.⁵³

[4.11] The courts are, however, more inclined to accept that judicial review has been ousted where a statute contains a time-limited ouster clause⁵⁴ that is regarded as rea­sonable.⁵⁵ In this context, a statute may (a) provide for a remedy in the face of a determination but (b) require that the remedy be availed of within the specified period of time, after which time the decision of the subordinate body may not be challenged in proceedings.⁵⁶ The courts’ willingness to accept that the jurisdiction of the High Court can here be ousted is essentially unproblematic from a rule of law perspective, as judicial assessment of the legality of a decision can still be achieved through the statutory remedy⁵⁷ (a remedy may even provide for a full appeal, which will allow the court to assess the merit of a decision). However, by accepting that the courts’ jurisdic­tion is thereafter ousted, the courts ensure that decision-makers enjoy the degree of certainty that the time-limit seeks to provide and that â€?good administration’ is taken to require.⁵⁸ Acceptance and prioritisation of the statutory scheme established by Parlia­ment would also be consistent with the doctrine of legislative supremacy, although this

and Enforcement Act 2007: �[T]here is nothing in the 2007 Act which purports to oust or exclude judicial review of the unappealable decisions of the Upper Tribunal. Clear words would be needed to do this and they are not there.’

⁵⁰ Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, cited in, eg, Re CampbelRs Application [2009] NIQB 82, para 36.

⁵¹ Foreign Compensation Act 1950, s 4(4).

⁵² And see, eg, Re Bates’ Application [2004] NIQB 84, para 40, Deeny J, stating that any determination on an appeal under art 12 of the Pollution Control and Local Government (Northern Ireland) Order 1978, SI 1978/1049 (NI 19), must be a real determination and not a purported determination.

⁵³ See, eg, R v McGill & Ors [2006] NICC 6, para 6, Deeny J, reading art 3(3) of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988, SI 1988/1846) (NI 16), in the light of Anisminic.

⁵⁴ See, most famously, Smith v East Elloe RDC [1956] AC 736; followed in, eg Re Bowden; JGS Services Ltd; Re Scalene Investments Ltd [2004] NIQB 32. And see also the Judicature (Northern Ireland) Act 1978, s 22: â€?(1) Any statutory provision to the effect that any order or determination shall not be called into question in any court, or which by similar words excludes any of the powers of the High Court, shall not operate so as to (a) prevent the removal of the proceedings into the High Court by order of certiorari; or (b) prejudice the powers of the High Court to make orders of mandamus. (2) This section does not apply to... (b) any statutory provision specially authorising applications to the High Court within a time limited by that provi­sion’ (emphasis added).

⁵⁵ See W Wade and C Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) p 626.

⁵⁶ See, eg, Local Government Act (Northern Ireland) 1972, Sch 6, para 5(1)(a)-(c), considered in Re Bowden; JGS Services Ltd; Re Scalene Investments Ltd [2004] NIQB 32.

⁵⁷ See, by analogy, R (Hilali) v Governor of Whitemoor Prison [2008] UKHL 3, [2008] 1 AC 805, 840, para 21, Lord Hope, noting the relationship between habeas corpus and a statutory right of appeal under s 34 of the Extradition Act 2003.

⁵⁸ On which see further [1.07].

The Constitutional Purposes of the Grounds for Review 121 rule in respect of partial ouster clauses arguably sits in contrast to that adopted in respect of clauses that are absolute (see [4.10]).^[692]

[4.12] There are two further points of importance about ouster clauses. The first concerns the difference between statutory remedies that are linked to time-limited ouster clauses (which the courts accept as preventing recourse to judicial review) and statutory remedies that are not linked to time-limited clauses (the existence of which remedy does not necessarily prevent recourse to judicial review). Although it is well established that individuals must ordinarily exhaust alternative remedies (whether in statute or in a private law cause of action), the wider body of case law on alternative remedies is underwritten by considerations of pragmatism and the wider interests of justice.^[693] While time-limits are thus taken to oust the jurisdiction of the High Court (that is, because the statute requires that the remedy be availed of within a set time­frame), it does not follow that a failure to use an alternative statutory remedy that is not couched in time-limited terms will mean that judicial review proceedings would be inappropriate. Much will instead depend upon the wider context of the case and of the court’s perception of how far judicial review may play a residual role in providing a remedy and safeguarding the rule of law.^[694]

[4.13] The second point concerns the compatibility of absolute and time-limited ouster clauses with Article 6 ECHR’s guarantees in respect of �civil rights’ (see also [4.19] regarding �conclusive evidence’ certificates). Article 6 ECHR specifies a range of procedural requirements that centre upon the right of access to a court,^[695] and the case law of the ECtHR emphasises that any limitations on rights of access must be propor­tionate and that they cannot provide public bodies with �immunity’ from proceedings.^[696] Absolute ouster clauses would, subject to arguments about the effect of Anisminic (see [4.10]), on that basis appear to be incompatible with the ECHR; and time-limited ouster clauses would likewise appear to be open to challenge if the time-limit does not strike an appropriate balance between the objective it pursues and the rights of the affected individual.^[697] However, before such arguments might successfully be made out, an applicant would have to establish that any clause in question is procedural in form rather than one that determines whether the individual has a substantive cause of action in domestic law (a distinction that is fraught with difficulty^[698]). The individual would further need to establish that they have a recognised civil right within the meaning of

Article 6 ECHR, which can be a matter of some complexity in cases that concern �public law’ rights.^[699]

Context-sensitivity: Justiciability, Reviewability, and Deference

[4.14] The courts’ acceptance that the grounds for review should be applied in a context-sensitive manner (see [4.03]) can be seen in their use of the concept of justi­ciability. For instance, the courts have, on the one hand, drawn upon the concept to justify review where they have considered that the subject-matter of a decision falls within the constitutional jurisdiction of the courts and that judicial scrutiny is thereby legitimate. Such development of the law has occurred most notably in relation to the royal prerogative, where the courts accept that many decisions should now be subject to review notwithstanding the historical exclusion of that review (see [4.06]-[4.08]). In terms of reconciling the change with an awareness of context, the courts have relied upon the fact that some exercises of the prerogative can have implications for the rights and interests of individuals and that judicial control in such circumstances is apposite.^[700]

[4.15] On the other hand, the concept of justiciability has been used to place certain categories of decisions beyond the reach of the courts. The concept in these circum­stances assumes the negative connotation �non-justiciability’, which entails that some decisions are not �subject to the jurisdiction of the courts’^[701] and are thereby effectively immune from review. Use of the concept in this negative form has been particularly prominent in relation to some prerogative powers (see [4.07]), although it has been used in other areas too.^[702] For instance, where public authorities have been sued directly in negligence by individuals who claim to have suffered loss as a result of discretionary choices taken in the light of resource considerations (see [4.28]), the courts have said that such disputes can sometimes give rise to non-justiciable matters of �policy’.^[703] While case law on the point has at the same time become more complex in recent years,^[704] the non-justiciability approach corresponds to the understanding that judicial involvement in matters of policy would involve the courts in taking decisions in the place of authori­ties that the legislature has entrusted with the power of decision (a separation of powers argument^[705]). The courts are here also guided by the concern that frequent awards of damages against public authorities could diminish the quality of services that are provided on the basis of finite resources and for the benefit of the public as a whole.^[706]

[4.16] Use of the concept of justiciability within this latter meaning has, however, often been criticised as having the potential to close off certain decision-making areas entirely from judicial scrutiny, and the trend in more recent case law has been to move away from the concept. The courts have, instead, preferred to find that a particular decision is justiciable but that the manner in which the grounds for review are to be used in a case should be modified to reflect the content of the decision under challenge. The leading Northern Ireland authority on this approach—which may termed as the â€?reviewability’ approach—is Re Shuker’s Application.⁷ The High Court there held that, while a decision of the Attorney-General not to â€?de-schedule’ certain offences under the Terrorism Act 2000 was justiciable, not all of the grounds for review were open to the applicant. Holding in particular that the decision in question was not reviewable on the basis that it had failed to comply with requirements of procedural fairness, the court added that the decision had involved the evaluation of material that was of a sensitive nature and that the court should therefore be reluctant to intrude in the decision-making process. The court moreover noted that Parliament had entrusted the decision-making power to the Attorney-General and that the court should for that further reason exhibit restraint.^{[707] [708]}

[4.17] This reviewability approach is clearly conditioned by an awareness of the need for judicial invigilation to be available in as many cases as possible while at the same time remaining sensitive to the context of those cases. The corresponding restraint of the kind exhibited in Shuker—the context of other cases may equally lead the courts to engage in �closer look’ review^[709]—has previously been referred to as �judicial defer­ence’. Although the courts are sometimes sceptical about the use of �deference’ as a term to describe the judicial role in review proceedings,^[710] the term, as originally con­ceived, was regarded as consonant with the separation of powers doctrine and the understanding that the courts should not usurp the functions of either the legislature or the executive (and neither should either of those branches of the State usurp the judicial function).^[711] The need for judicial self-restraint, however described, is therefore often taken as central to the workings of the grounds for review, particularly as relate to the substantive choices of decision-makers. The need for restraint may likewise inform judicial approaches to statutory interpretation, whether for purposes of delim­iting the powers and duties of a decision-maker ([4.22]-[4.28]) or when reading legislation in the light of the ECHR.^[712]

National Security

[4.18] The nature of the shift from justiciability to reviewability/deference can be seen most clearly in the context of challenges to decisions taken with reference to national security considerations. Matters of national security were previously and par excellence regarded as non-justiciable and the courts accorded the executive an absolute discretion in the area.^[713] The judicial approach has, however, long since changed and it is axiomatic that decisions of ministers can now be subject to judicial review.^[714] While any such review will typically be linked to a presumption in favour of restraint^[715] (which presump­tion may be reflected in, for instance, lessened procedural protections^[716]), the courts accept that some decisions, for instance a deportation decision that has implications for an individual’s right not to be tortured,^[717] or his or her right to a fair trial in his or her country of origin,^[718] are demanding of closer scrutiny. Judicial consideration of the right to a fair trial right has also been central to an ever more complex body of case law on the legitimacy of anti-terrorism measures that have sought, among other things, to limit disclosure entitlements in various legal proceedings.^[719]

[4.19] Much of the impetus for this move towards reviewability has its origins in ECHR case law, which requires that national security considerations are balanced against the rights of individuals (the requirement also underpins aspects of EU law^[720]). Where the rights in issue are found in Article 2 ECHR (life) and/or Article 3 ECHR (prohibition of torture), judicial scrutiny should be more exacting given the absolute nature of those rights.^[721] However, even where absolute rights are not in issue, judicial scrutiny of decisions may still be necessary, with the right to a fair trial again providing an obvious example (that is, where an individual’s �civil rights’ within the autonomous meaning of the ECHR are affected by a decision^[722]). Here, an important line of case law has concerned the government’s use of conclusive evidence certificates that confirm that a particular decision —for instance, not to award a contract to a particular individual—has been taken for purposes of safeguarding national security or of protecting public safety or public order.^[723] Such certificates previously had the effect of preventing tribunals and other bodies from questioning the validity of the certificate^[724] and, while the decision to issue a certificate was itself amenable to judicial review, the High Court tended to focus on whether there was evidence of bad faith on the part of the decision-maker rather than whether there had been a failure, for instance, to take account of relevant considerations.^[725] This limited approach to judicial review, coupled with the absence of any subsequent role for tribunals, was criticised by the ECtHR as contrary not just to the Article 6 ECHR right of access to a court but also to the Article 13 ECHR right to an effective remedy.^[726] Legislation that permits national security certificates to be issued therefore now often provides for a means to challenge certificates before specially constituted tribunals;^[727] and more general changes in the judicial review case law have reflected the need for more demanding scrutiny to be available on a case-by-case basis.^[728]

Law, Politics, and �Soft-edged’ Review

[4.20] One further tool that reflects the context-sensitive nature of judicial review is the so-called �soft-edged’ standard of review. This standard, which is founded on the assumption that there will sometimes be �a higher degree of knowledge and expertise on the part of the decider’ and that the courts should defer to that knowledge �so long as the [decision is taken] in accordance with the proper principles’,^[729] is used by the courts when they consider that judicial restraint would be appropriate. The standard thus corresponds, in an accentuated form, to the orthodox understanding that courts, on an application for judicial review, are not concerned with the merits of a decision and that they should grant a remedy in respect of a substantive choice only where the decision is perverse or of such a kind that no reasonable decision-maker could have taken it (viz Wednesbury unreasonableness and the distinction between �review’ and �appeal’^[730]). The standard has been used in England and Wales in the context of chal­lenges to decisions of economic �policy’,^[731] and the Northern Ireland courts have also drawn upon it in cases that have been taken to involve challenges to �political’ decisions. Many of these cases arose at the time of the initial implementation of the Belfast Agreement,^[732] and the courts emphasised that they did not wish to step outside �their proper function of review’.^[733] The soft-edged standard was thus invoked and/or referred to in cases involving challenges to: the Secretary of State’s assessment of the state of the IRA ceasefire;^[734] the decision of First Minister not to nominate Sinn Fein Ministers to meetings of the North/South Ministerial Council;^[735] and the Secretary of State’s decision as to the appropriate date for Assembly elections in Northern Ireland.^[736] The essence—though not the language—of the standard has also been apparent in more recent cases involving a challenge to a ministerial decision to withdraw funding from a project in a loyalist area of Belfast^[737] and a case in which an applicant challenged joint decision-making on the part of the First and Deputy First Ministers.^[738]

[4.21] Soft-edged review, as with justiciability and reviewability, is consonant with the need for judges to recognise that there are constitutional limits to the role of the courts and to ensure that those limits are meaningful in practice. It is, however, a standard that is also open to variable application and inconsistency in judicial reasoning, par­ticularly as its existence is founded upon an assumed distinction between law and politics or between issues that are suited to judicial control and those that are not (so-called matters of �policy’^[739]). Individual judges may, in short, have different opinions as to whether a case raises issues of law or issues of politics, and the extent to which a decision may be susceptible to review will be determined accordingly.^[740] In other words, while judicial acceptance that a decision raises issues of law will allow the court to review the decision with reference to the requirements of legality, relevancy, reasona­bleness, propriety of purpose, and so on, the understanding that a decision is one for political value judgment will result in the exercise of judicial self-restraint. The likeli­hood of success in an application for judicial review may thus be crucially affected by the answer that the court gives to the prior question of where a decision falls relative to the law/politics divide.