The Human Rights Act 1998 and the culture of justification

At first glance, it would appear that the HRA 1998, as interpreted by the case law, upholds the values of accountability found in the culture of justification. Ss 3 and 4 make it clear that the court cannot strike down legislation that is incompatible with Convention rights.

However, difficulties arise when we examine the more precise requirements of a theory of human rights adjudication based upon the culture of justification. Firstly, it is clear from the work of David Dyzenhaus and Murray Hunt that judicial review for human rights requires a particular conception of deference—deference as respect as opposed to deference as submission—if it is to further the ideal of the culture of justification. Although there is evidence that English courts adopt a conception of deference as respect, there are instances when the application of def­erence as respect appears to collapse into deference as submission. As such, courts could fail to provide adequate scrutiny. Secondly, although there is some evidence of courts focusing on scrutinizing the reasons provided by the administration for their actions, courts still appear to focus predominantly on assessing the substance of the legislation or the action of the administration, calling into question the extent to which courts are upholding a culture of justification and facilitating account­ability, or, instead, focusing upon upholding liberal principles of human rights and overturning actions that are contrary to liberal principles of human rights.

1. Respect or submission?

Deference as respect occurs when ‘the court gives some weight to a decision of a primary decision-maker for an articulated reason, as part of its overall review of the justifications for the decision'.^[550] It is contrasted with deference as submission, which occurs ‘when the court treats a decision or an aspect of it as non-justiciable, and refuses to enter on a review of it because it considers it beyond its competence'.^[551] The weight given by the court depends upon an analysis of the relative constitutional and insti­tutional features of the legislature, the executive, and the courts. Constitutional features depend upon the relative constitutional positions of these institutions, recognizing the democratic mandate of the legislature and the constitutional function of the court to uphold the rule of law. Institutional features refer to the relative exper­tise of the legislature, the executive, and the courts. Both depend upon the specific context of the decision or action falling to be examined by the courts. Deference as respect occurs when the judiciary respects the opinion of the executive or legislature, but still determines for itself whether an Act of Parliament or the actions of a public authority contravene Convention rights. Deference as submission occurs when courts accept the determinations of the legislature or executive as a correct account of the definition and application of the Convention right in question.^{[552] [553]} However, it can be hard to delineate between the two, especially if they are viewed as a matter of degree.

The potential for collapse can be illustrated by Lord Hoffmann's analysis of deference in R (ProlifeAlliance) v British Broadcasting Corporation (Prolife).'²'⁴ Prolife wished to broadcast pictures of aborted foetuses as part of its electoral broadcast. The BBC forbade Prolife from broadcasting these pictures, requiring instead that the commentary be accompanied by a blank screen with the word ‘censored’ in place of pictures of aborted foetuses. The Court of Appeal concluded that the broadcasting restriction contravened Prolife’s right to freedom of expression found in art 10 of the European Convention on Human Rights (ECHR) and Sch.1 of the HRA 1998. The House of Lords disagreed. Lord Hoffmann in particular focused on the legislative scheme which governed the powers of the BBC. The legislation made it clear that the BBC had an obligation to restrict the material it broadcast in order to protect the moral sensitivities of the audience. He concluded that such a legislative scheme would not contravene art 10 ECHR, which would enable restrictions to be placed on the right to freedom of expression in order to protect the moral sensitivities of the audience. Once he had reached this conclu­sion, it was clear that the BBC was entitled to apply general standards in order to ascertain whether material would offend moral sensitivities and, therefore, should not be broadcast:

Once one accepts that the broadcasters were entitled to apply generally accepted standards, I do not see how it was possible for a court to say that they were wrong.^[554]

This would appear to advocate a model of deference as submission. If it is not pos­sible for the court to say that the BBC was wrong in its assessment of the balance to be made between freedom of expression and the protection of the moral sensitivities of others, then it would appear that the court must merely accept the opinion of the BBC.

However, Lord Hoffmann later argues that:

Public opinion in these matters is often diverse, sometimes unexpected and in constant flux. General accepted standards on these questions are not a matter of intuition on the part of elderly male judges... I would therefore hesitate a good deal before saying that the broad­casters must have been wrong in saying, as they did, that the images would be offensive to a very large number of viewers.²⁶

To require that the judiciary ‘hesitate a great deal’ before deciding that the BBC had contravened a Convention right does not require the court to refrain from determining for itself whether the restriction placed by the BBC was a propor­tionate restriction on Prolife’s right to freedom of expression. It appears instead to require that the court decides for itself whether the restriction is proportionate or not, albeit also recognizing that the court should give considerable weight to the opinion of the BBC when making this assessment.

The culture of justification aims to facilitate accountability. As such, it requires courts to scrutinize Acts of Parliament and actions of the administration. According

²⁶ [2003] UKHL 23; [2004] 1 AC 185, [80].

to the culture of justification, actions of public authorities are legitimate when they are reasoned, justified, and accountable. Deference as respect aims to achieve this by ensuring that actions are scrutinized by the judiciary, whilst at the same time ensuring that the judiciary does not merely determine the legality of actions of public authorities by assessing whether these actions comply with liberal principles as determined by the judiciary. Deference as submission undermines this aim. It detracts from accountability as, when applied, it effectively empowers the executive or the legislature to determine whether its actions are compatible with human rights with no scrutiny by the judiciary.

2. Process or substance?

The culture of justification rejects theories that rely purely upon arguments from democracy to conclude that courts should not overturn legislation and that liberal principles should not form the basis of criteria of legitimacy that justify human rights adjudication. It would appear, therefore, to be ideally suited to human rights adjudication under the HRA 1998. The HRA 1998 provides for a model of human rights adjudication that combines political and legal accountability. It does not rest purely upon political accountability, with its preservation of democracy, or upon legal accountability. However, the culture of justification also prefers a more procedural as opposed to a substantive approach to human rights adjudication. It is in this sense that difficulties arise in the application of the theory of the culture of justification to the provisions of the HRA 1998 in a manner that may harm accountability.

The HRA 1998 marks a move away from a theory of adjudication that focuses upon the way in which decisions are made towards a theory of adjudication controlling the content of the decision-making process. This can be illustrated, first, from judicial discussion of the shift from Wednesbury unreasonableness^[555] to proportionality through the application of the HRA 1998. As Lord Steyn made clear, proportionality, although perhaps leading to the same outcome in some cases as Wednesbury unreasonableness, is nevertheless, in theory, a more stringent form of review in three regards: it requires courts to assess the balance drawn between a right and competing interests and not merely to determine whether this is within a range of rational responses; it requires courts to examine the relative weight given to rights and competing interests; and it requires an analysis of whether there was a pressing social need and whether the restriction placed on the right to achieve this social need really was necessary in a democratic society.^[556]

Courts are required to focus much more clearly on the substance of the decision, determining whether a right has been infringed.

Dyzenhaus is critical of the shift away from a procedural to a substantive analysis of proportionality, particularly as this applied in the Begum case,^[560] arguing that a shift towards a substantive analysis, especially when proportionality is coupled by deference, can undermine the culture of justification. The culture of justifica­tion requires transparency and reasoned decision-making. It places an onus on administrative bodies to provide reasons for the conclusions that they reach so that these reasons can be scrutinized by the courts through an application of pro­portionality and deference. Although Dyzenhaus would agree that the job of the court is not merely to ensure that proportionality has been applied in the correct way by public authorities, he is concerned that the test applied by the House of Lords inappropriately separates process from substance. Instead of human rights adjudication furthering accountability through ensuring that the administration provides a reasoned account of its decisions, and the courts check that these justifications illustrate that the public authority has limited a human right in a proportionate manner to achieve a legitimate aim, there is a danger that courts will determine for themselves whether a restriction on a right is proportionate. This may mean that courts focus too greatly on substantive principles to the detriment of democratic rights, or that courts, aiming to defer in order to protect democracy, apply a test of proportionality that is insufficiently stringent, failing adequately to protect human rights.^[561]

Dyzenhaus's criticisms are limited to the separation of process and substance found in the Begum case. His argument can be countered by referring to other examples where courts have been sensitive to the inter-relationship between process and substance. Baroness Hale in Miss Behavin recognised that, had Belfast City Council addressed itself to the precise issue of whether the selling of porno­graphic literature should be restricted and how these restrictions should have been enforced in this particular area of Belfast, then the court would have given greater weight to these particular considerations. However, as the City Council had not addressed this issue, then the court was in a position where it had no choice but to decide the issue for itself. These comments demonstrate that Baroness Hale is sensitive to the way in which the proportionality test has both procedural as well as substantive aspects.^[562] In a similar manner, Lady Hale and Lord Wilson in Quila and Bibi found the policy designed to restrict forced marriages to be dispropor­tionate because the minister had failed to provide sufficient evidence to explain why the policy was proportionate. In the words of Lord Wilson:

[o]n any view it is a sledge-hammer but [the Minister] has not attempted to identify the size of the nut. At all events she fails to establish that the interference with the rights of the respondents under article 8 is justified.^[563]

The approach in Quila and Bibi does facilitate accountability as required by the culture of justification. The court focused upon a need for reasons for the balance struck by the legislature between the right to marry of couples who freely wished to marry and the rights of women to be able to resist forced marriages, which in turn impeded their freedom to choose not to marry. The failure to provide a justification for raising the age to 21 from 18 meant that the court concluded that the legislation was not a proportionate restriction on the right to marry. This did not require the court to substitute its assessment of the merits for that of the legislature. It did require the legislature to account for its policy, so that the court could analyse whether their reasons justified a particular policy choice. However, although a recent decision of the Supreme Court, Quila and Bibi does not necessar­ily reflect the general tenor of human rights decisions based upon the HRA 1998. It is difficult to conclude, therefore, whether this marks a shift towards a legitimate approach to human rights adjudication as required by the culture of justification.

3. To give weight or to modify stringency?

The culture of justification requires the application of deference as respect, where courts determine whether a public body has provided a proportionate restriction on a human right through analysing the reasons provided for the restriction, giving appropriate weight to the reasoning of the public authority in the light of its insti­tutional and constitutional features vis-a-vis those of the court. Deference as respect is referred to by Hunt as giving weight and as modifying the stringency with which the proportionality test is applied. This tension is illustrated in the academic commentary on deference as respect, with some academics referring to deference as a modification of stringency with which the test of deference is applied,^[564] and others as where the court gives greater weight to the opinion of the administra­tion when applying a particular legal test.^[565] As Mark Elliott recognizes, there is a latent tension between the two.^[566] This tension gives rise to two problems when assessing whether English law upholds the values of the culture of justification. First, the tension between ‘giving weight' and ‘modifying stringency' may detract from accountability, as confusion regarding how the court exercises deference may detract from its ability to effectively scrutinize the actions of public bodies. Public authorities may focus more on proposing arguments on deference that lower the stringency with which the court examines their actions as opposed to focusing on providing reasoned restrictions on human rights. Second, problems arise from the way in which deference relates to the test of proportionality, particularly when deference is used to modify the stringency with which proportionality is applied. It is hard to determine how far proportionality can be applied less stringently whilst still retaining the characteristics of a control of proportionality.

The case law applying the HRA 1998 does appear confused, detracting from accountability. References can be found in the case law both to the idea that defer­ence requires giving weight to the decisions of public bodies, and that it requires a modification of stringency with which the test of proportionality is applied. Lord Steyn in R (Daly) v Secretary of State for the Home Department appears to adopt a conception of deference that requires a modification of the stringency with which the proportionality test is applied. Although recognizing that proportionality is a more stringent test than Wednesbury unreasonableness, he also relies on the statements of Laws LJ in R (Mahmood) v Secretary of State for the Home Department^[567] recog­nizing that the intensity of review varies according to subject matter, even in cases applying Convention rights.^[568] Similarly, Lord Hoffmann in Belfast City Council v Miss Behavin’ Ltd equated the wide margin of appreciation with ‘the broad power of judgment entrusted to local authorities by the legislature', ^[569] arguingthat:

If the local authority exercises that power rationally and in accordance with the purposes of the statute, it would require very unusual facts for it to amount to a disproportionate restriction on Convention rights.^[570]

Although not expressed specifically in terms of modifying the stringency with which the test is applied, it is clear that this would be the result of Lord Hoffmann's approach. The broad area of discretion afforded to the local authority means that proportionality is applied less stringently—only irrational balances that ignored the purpose of the statute would amount to a disproportionate restriction of the Convention right.

The clearest support for the idea that the judiciary exercise deference by giving weight to the opinions of the executive is found in the judgment of Lord Bingham in Huang v Secretary of State for the Home Department, where he expressly refers to ‘according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.'^[571] Baroness Hale in Miss Behavin also expressly refers to the way in which the court may exercise deference through according the appropriate weight to the opinions of the legislature and the executive, in recognition of their greater expertise and of the better ability of the local council to be in touch with the people affected by these decisions.^[572]

This duality of approaches, combined with a lack of clear statements concerning the nature of deference and the way in which it applies, detracts from the ability of English law to promote accountability as required by the culture ofjustification. If the standard of review to be applied to public authorities is not clear then there is the potential for this lack of clarity to detract from accountability, with legal processes focusing more on the criteria influencing deference than on analysing whether a restriction placed upon a human right is justified. In addition, as Sinclair Collis v Secretary of State for Health illustrates,^[573] even when there is consensus determining the conception of deference and the manner in which it is applied, there can be further confusion regarding the extent to which the intensity of proportional­ity can and should be modified. The case concerned a ban on cigarette vending machines, the aim of the ban being to prevent harm to the health of children through smoking, particularly given the relative ease with which they may purchase ciga­rettes from vending machines. An issue arose as to whether this policy was contrary to EU law as a disproportionate restriction on the free movement of goods. All three judgments recognized that a greater discretionary area of judgement was left to the administration in this area, given that it concerned a matter of public health. All three agreed that this could be achieved through modifying the stringency with which the test for proportionality applied. However, disagreement arose as to the way in which this should be achieved.

Laws LJ referred to the court leaving a ‘wider space for the decision-maker's own judgment as to the application of the standards', such that the ‘broader the margin of appreciation, the less inclined the court will be to strike an autonomous balance of the material factors'.^[574] Arden LJ recognized that courts can apply proportionality more flexibly by according a ‘less intensive level of scrutiny than under a strict test of proportionality'^[575] and Lord Neuberger MR concluded that the applicants would have to present a ‘very strong case indeed' such that the court would not interfere ‘unless satisfied that no reasonable Secretary of State would have concluded that it was right' to have reached that decision.^[576]

Sinclair Collis also demonstrates how modifying the stringency with which proportionality applies may result in the courts applying a test for review different from proportionality—a less stringent application of proportionality can be hard to differentiate from an application of Wednesbury unreasonableness or a test which only deems unlawful ‘manifestly inappropriate' restrictions on human rights. Laws LJ was critical of the way in which counsel for the government advocated that proportionality should be equated with a test of ‘manifestly inappropriate', believing that this undercuts the standard of proportionality, particularly because this may deprive the court of the requirement to examine whether there was a less restric­tive means of achieving a particular goal.^[577] The test as applied by Lord Neuberger MR in the case resembled a test of Wednesbury unreasonableness, where decisions would be struck down if irrational.^[578] Arden LJ, whilst recognising the requirement to apply a test of ‘manifestly inappropriate' as devised by the Court of Justice of the European Union, disagreed with Laws LJ, regarding this as an application of the proportionality test as opposed to a different standard of review.^[579]

It is hard to conclude that English law complies with the criteria of human rights adjudication advocated by the culture of justification. Confusion over whether the judiciary is to give weight or modify the stringency with which proportionality is applied may detract from its ability to provide a clear signal to public authorities regarding the standards they need to adhere to if they are to protect human rights. In addition deference as respect may collapse into a model of deference as submis­sion and English law has a tendency to focus more on substance as opposed to process when applying a test of proportionality, meaning that the judiciary fails to concentrate fully on analysing the reasoning provided by public authorities for harming human rights. The question arises whether these difficulties are merely examples of the practical problems which arise whenever an abstract theory is applied to the real world and needs to be expressed as a legal test, or whether these tensions illustrate a deeper problem inherent to the culture of justification and to the use of accountability as a normative concept capable of justifying judicial review.

D.