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susceptible to review by the courts and the courts would be exceeding their proper function
if they presumed to condemn the policy as unreasonable.

It must be emphasised that other grounds of challenge remain open in such
cases. The legality of a decision is a matter for the courts, and approval by
resolution of one or both Houses cannot legitimise a decision that is vitiated
by illegality.
672 British Government and the Constitution


If the standard of review under Wednesbury unreasonableness is lowered in
certain policy- or economic decision-making contexts, it is intensi¬ed in other
circumstances. As Laws LJ has remarked, the Wednesbury principle ˜constitutes
a sliding scale of review, more or less intrusive according to the nature and gravity
of what is at stake™ (R v Secretary of State for Education and Employment, ex p
Begbie [2000] 1 WLR 1115, 1130). A more exacting standard of rational decision-
making has been applied by the courts when ˜fundamental™ or ˜constitutional™
rights are said to have been in question: see, for example, Bugdaycay v Secretary
of State for the Home Department [1987] AC 514, 531 and R v Ministry of Defence,
ex p Smith [1996] QB 517, 554. The latter case is particularly important.


R v Ministry of Defence, ex p Smith [1996] QB 517
Four members of Her Majesty™s Armed Services were administratively dis-
charged on the sole basis that they were homosexual. No allegations of sexual
misconduct were made against them. They sought judicial review on the basis
of irrationality.

Sir Thomas Bingham MR: . . . Mr David Pannick, who represented . . . the applicants . . . ,
submitted that the court should adopt the following approach to the issue of irrationality:
˜The court may not interfere with the exercise of an administrative discretion on sub-
stantive grounds save where the court is satisfied that the decision is unreasonable in
the sense that it is beyond the range of responses open to a reasonable decision-maker.
But in judging whether the decision-maker has exceeded this margin of appreciation
the human rights context is important. The more substantial the interference with
human rights, the more the court will require by way of justification before it is satis-
fied that the decision is reasonable in the sense outlined above.™
This submission is in my judgment an accurate distillation of the principles laid down by
the House of Lords in R v Secretary of State for the Home Department, ex parte Bugdaycay
[1987] AC 514 and R v Secretary of State for the Home Department, ex parte Brind [1991]
1 AC 696. In the first of these cases Lord Bridge of Harwich said, at p 531:
˜I approach the question raised by the challenge to the Secretary of State™s decision on
the basis of the law stated earlier in this opinion, viz that the resolution of any issue of
fact and the exercise of any discretion in relation to an application for asylum as a refugee
lie exclusively within the jurisdiction of the Secretary of State subject only to the court™s
power of review. The limitations on the scope of that power are well known and need
not be restated here. Within those limitations the court must, I think, be entitled to
subject an administrative decision to the more rigorous examination, to ensure that it is
in no way flawed, according to the gravity of the issue which the decision determines.
The most fundamental of all human rights is the individual™s right to life and when an
administrative decision under challenge is said to be one which may put the applicant™s
life at risk, the basis of the decision must surely call for the most anxious scrutiny.™
673 The courts: judicial review and liability


. . . The present cases do not affect the lives or liberty of those involved. But they do
concern innate qualities of a very personal kind and the decisions of which the applicants
complain have had a profound effect on their careers and prospects. The applicants™ rights
as human beings are very much in issue. It is now accepted that this issue is justiciable.
This does not of course mean that the court is thrust into the position of the primary decision-
maker. It is not the constitutional role of the court to regulate the conditions of service in the
armed forces of the Crown, nor has it the expertise to do so. But it has the constitutional role
and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of
executive power. While the court must properly defer to the expertise of responsible
decision-makers, it must not shrink from its fundamental duty to ˜do right to all manner
of people . . .™.
The reasons underlying the present policy were given in an affidavit sworn by Air Chief
Marshal Sir John Willis KCB, CBE, the Vice-Chief of the Defence Staff, an officer of great senior-
ity and experience . . . Sir John advanced three reasons. The first related to morale and unit
effectiveness, the second to the role of the services as guardian of recruits under the age
of 18 and the third to the requirement of communal living in many service situations. Sir
John described the ministry™s policy as based not on a moral judgment but on a practical
assessment of the implications of homosexual orientation on military life. By ˜a practical
assessment™ Sir John may have meant an assessment of past experience in practice, or he
may have meant an assessment of what would be likely to happen in practice if the present
policy were varied. His affidavit makes no reference to any specific past experience, despite
the fact that over the years very many homosexuals must have served in the armed forces.
He does, however, make clear the apprehension of senior service authorities as to what could
happen if the existing policy were revoked or varied . . .
The first factor relied on by Sir John, morale and unit effectiveness, was the subject of
searing criticism by Mr Pannick. He submitted that the effect of a homosexual member of
any military unit would depend on the character, ability and personality of the member
involved. He pointed out that many homosexuals had successfully served in the services over
the years. He drew attention to the experience of other disciplined forces such as the police.
He submitted that inappropriate behaviour by homosexual members of the armed forces
could be effectively regulated. He submitted that the ministry should not be deterred from
doing what fairness and good sense demanded by apprehensions of irrational and prejudiced
behaviour on the part of others.
Mr Pannick also criticised the second factor relied on by Sir John. He pointed out that
any service member behaving inappropriately towards an under-age member of the service
could be disciplined and punished in the same way as in society at large. He rejected the
suggestion that homosexuals were less able to control their sexual impulses than
heterosexuals. Again he suggested that the policy of the ministry was pandering to ignorant
prejudice.
Mr Pannick accepted, of course, that members of the services could in many situations
find themselves living together in conditions of very close proximity, although he pointed
out that one of the applicants (by reason of his seniority) and another of the applicants
674 British Government and the Constitution


(by reason of her particular occupation) were in no foreseeable situation likely to share
accommodation with anyone. The lack of privacy in service life was, he suggested, a reason
for imposing strict rules and discipline, but not a reason for banning the membership of any
homosexual. He drew attention to the experience of other disciplined services. He pointed
out that each of the applicants had worked in the armed forces for a number of years without
any concern being expressed or complaints made about inappropriate behaviour. Each of
them had earned very favourable reports. The same, it was said, was true of many other
homosexual members of the services.
Above all, Mr Pannick criticised the blanket nature of the existing rule. He placed great
emphasis on the practice of other nations whose rules were framed so as to counter the par-
ticular mischiefs to which homosexual orientation or activity might give rise. He pointed out
that other personal problems such as addiction to alcohol, or compulsive gambling, or marital
infidelity were dealt with by the service authorities on a case by case basis and not on the
basis of a rule which permitted no account to be taken of the peculiar features of the case
under consideration.
The arguments advanced by Mr Pannick are in my opinion of very considerable cogency.
They call to be considered in depth, with particular reference to specific evidence of
past experience in this country, to the developing experience of other countries and to
the potential effectiveness or otherwise of a detailed prescriptive code along the
lines adopted elsewhere in place of the present blanket ban. Such a reassessment of
the existing policy is already, as I have noted, in train, and I note that the next Select
Committee quinquennial review of the policy is to receive a departmental paper of evi-
dence covering all the matters canvassed on this appeal. What the outcome of that review
will be, I do not know.
The existing policy cannot in my judgment be stigmatised as irrational at the time when
these applicants were discharged. It was supported by both Houses of Parliament and by
those to whom the ministry properly looked for professional advice. There was, to my knowl-
edge, no evidence before the ministry which plainly invalidated that advice. Changes made
by other countries were in some cases very recent. The Australian, New Zealand and Canadian
codes had been adopted too recently to yield much valuable experience. The ministry did
not have the opportunity to consider the full range of arguments developed before us. Major
policy changes should be the product of mature reflection, not instant reaction. The thresh-
old of irrationality is a high one. It was not crossed in this case.


R v Ministry of Defence, ex p Smith is authority for the proposition that, where
˜fundamental™ or ˜constitutional™ rights are at stake, the test of irrationality
will be intensi¬ed. Even this intensi¬ed test of irrationality, however, was
subsequently found by the European Court of Human Rights not to be
su¬cient to meet the demands of the European Convention. Article 13 of
the Convention provides that ˜Everyone whose rights and freedoms as set
forth in this Convention are violated shall have an e¬ective remedy before
a national authority™. Having lost in the Court of Appeal the claimants in
ex p Smith took their case to the European Court of Human Rights. In Smith
675 The courts: judicial review and liability


and Grady v United Kingdom (1999) 29 EHRR 493 the European Court
declared (at [138]) that:

the threshold at which the High Court and the Court of Appeal could find the Ministry
of Defence policy irrational was placed so high that it effectively excluded any considera-
tion by the domestic courts of the question of whether the interference with the
applicants™ rights answered a pressing social need or was proportionate to the national
security and public order aims pursued, principles which lie at the heart of the Court™s
analysis of complaints under Article 8 [right to respect for private and family life] of
the Convention.

For this reason, the Court of Human Rights held that the judgment of the Court
of Appeal in ex p Smith violated the claimants™ rights under Article 13 of the
Convention: even an intensi¬ed test of Wednesbury unreasonableness is not an
˜e¬ective remedy™ in these circumstances, the Court held.
Article 13 ECHR is not domestically incorporated under the Human Rights
Act 1998. It may be thought that this would have limited the impact in domes-
tic judicial review law of the Court™s decision in Smith and Grady. Since the
coming into force of the Human Rights Act, however, the House of Lords has
held that, in cases concerning Convention rights, standards of proportionality
should be used instead of notions of Wednesbury unreasonableness. It is to this
issue that we now turn.


(c) Proportionality
In 1980 the Committee of Ministers of the Council of Europe adopted a rec-
ommendation to Member States (No R(80)2) ˜concerning the exercise of
discretionary powers by administrative authorities™. One of the principles
which it recommended should be followed in the exercise of discretionary
power was that the administrative authority:

maintains a proper balance between any adverse effects which its decision may have on the
rights, liberties or interests of persons and the purpose which it pursues.

This is the principle of ˜proportionality™, which has become central in the
jurisprudence both of the European Court of Justice and of the European Court
of Human Rights. Respect for the principle of proportionality requires that an
authority exercising a power which necessarily has a disadvantageous e¬ect on
private rights or interests, if able to choose between alternative measures,
should adopt the least onerous and should not impose a sanction, restriction or
penalty that is disproportionate in severity or extent to the aim pursued. When
applying Community law our courts must have regard to the principle of
proportionality as embodied in that law (see eg, R v Chief Constable of Sussex,
ex p International Trader™s Ferry Ltd [1999] 2 AC 418).
676 British Government and the Constitution


On the other hand, our courts were initially wary of accepting the principle
of proportionality as a distinct ground of review in domestic cases. While there
were a few cases that followed a line of reasoning analogous to proportionality
(see eg, R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR
1052) and while arguments of proportionality were increasingly raised and
addressed in the courts, outwith the context of Community law the courts were
deeply reluctant to add proportionality to the grounds of judicial review. The
reasons for this were outlined by Lord Donaldson MR in the Court of Appeal
and by Lord Ackner in the House of Lords in R v Secretary of State for the Home
Department, ex p Brind [1991] 1 AC 696 (note, however, that others of their
Lordships in Brind spoke in terms more favourable to the adoption of propor-
tionality as a ground of judicial review, albeit that none of their Lordships
considered that Brind was the appropriate case to introduce such a reform).
Lord Donaldson reminded us (at 722) that:

it must never be forgotten that [judicial review] is a supervisory and not an appellate
jurisdiction . . . Acceptance of ˜proportionality™ as a separate ground for seeking judicial
review . . . could easily and speedily lead to courts forgetting the supervisory nature of their
jurisdiction and substituting their view of what was appropriate for that of the authority
whose duty it was to reach that decision.


Lord Ackner agreed. He suggested that the use of a proportionality test would
inevitably require the court to make ˜an inquiry into and a decision upon the
merits™ of the matter and would, as such, amount to a ˜wrongful usurpation of
power™ (at 762).
The European Court of Human Rights uses the notion of proportionality in
a particular way. This may be explained with reference to Smith and Grady
v United Kingdom (1999) 29 EHRR 493 (see above). Smith and Grady argued
that the investigations into their personal lives that led to their administrative
discharge from the armed services infringed their rights under Article 8 ECHR.
Article 8 is in the following terms:

1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the country, for the preven-
tion of disorder or crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.


It will be seen that the structure of Article 8 is as follows: paragraph 1 contains
the rights protected (ie, the right to respect for private and family life, home and
correspondence). Paragraph 2 contains the requirements that must be met for
677 The courts: judicial review and liability


state or public interference with these rights to be justi¬ed. Three requirements
must be met: (a) the interference must be ˜in accordance with the law™, (b) the
interference must be ˜necessary in a democratic society™ and (c) the interference
must be for a certain prescribed aim, such as national security, public safety, etc.
In terms of its structure, Article 8 is typical of the Convention: Articles 9 to 11
(concerning the rights to freedom of thought, expression and assembly) are
structured identically (see further chapter 11). It is with regard to the second of
these requirements that proportionality comes into play: the European Court
of Human Rights interprets the test of necessity in a democratic society as, in
essence, a test of proportionality. The Court asks if there is a ˜pressing social
need™ justifying the interference. On the facts of Smith and Grady the Court
ruled that there was not, and that Article 8 was violated as a result. As we saw
above, the Court then went on to rule that, because the test of irrationality
employed by the Court of Appeal did not enable that court to examine whether
the interference with Article 8 rights was necessary (only whether it was reason-
able), judicial review on grounds of irrationality failed to provide an ˜e¬ective
remedy™ within the meaning of Article 13.
The decisive move to allow arguments of proportionality to be made in
domestic courts in cases concerning Convention rights came in R (Daly)
v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532.
It is to be noted that this development was not strictly required by the Human
Rights Act 1998. This is for two reasons: ¬rst, Article 13 is not one of the
Convention rights that is domestically incorporated under that Act and sec-
ondly, proportionality is a ground of review that, as we have seen, was devel-
oped by the Court of Human Rights in its case law. The text of the Convention
itself does not use the term. The Convention itself talks of necessity in a demo-
cratic society, of course, but it is the Court that has chosen to interpret that
notion through the lens of proportionality. The Human Rights Act does not

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