THE HUMAN RIGHTS ACT 1998 AND THE STANDARD OF SUBSTANTIVE REVIEW

Abstract

The role of English courts in reviewing the substance of administrative decisions (as opposed to the procedure by which such decisions are made) has traditionally been confined by the Wednesbury doctrine, which permits judicial intervention only if the decision is unreasonable or aberrant. The European Court of Human Rights, however, adopts a more intrusive approach to substantive review which is founded on the principle of proportionality. This article examines the likely implications of the Human Rights Act 1998 for substantive review in the English courts. Two specific issues, concerning the scope of the proportionality test in English administrative law, are considered. First, is the proportionality principle’s impact likely to be felt beyond the human rights context such that it may, in time, wholly displace the Wednesbury doctrine? Secondly, given that intending claimants under the Human Rights Act must satisfy a stricter test of standing than claimants for judicial review, must litigants who wish to question the legality of administrative action on human rights grounds but who are unable to satisfy the Act’s standing requirement rely on the orthodox principle of Wednesbury review, rather than on the more incisive proportionality test?