Jason N.E. Varuhas: Should the common law of review and the law under the Human Rights Act 1998 be “synthesised”?

JNE VaruhasIn the recent decision of Kennedy v The Charity Commission [2014] UKSC 20 Lord Mance speculated that in time some form of “synthesis may emerge” between the common law of review and the law under the HRA. Consonant with this view he said, more specifically, that “there seems no reason” why a proportionality test or something akin to a proportionality test “should not be relevant in judicial review even outside the scope of the Convention and EU law”. No doubt the implications of this statement will be debated endlessly. But it is difficult to see Lord Mance’s statement as establishing proportionality as a head of review at common law: an appeal specifically on point, in which the Court heard full arguments on the matter and itself traversed all relevant arguments, overruled Brind [1991] 1 AC 696, and in clear and express terms stated that proportionality was now a head of review and addressed the implications for Wednesbury, would be required to effect such radical change (see similarly Lord Carnwath’s judgment at [247]).

In similar vein to Lord Mance, some commentators have argued in favour of the “unification” of common law review and HRA law around a set of common functions, norms, methods and concepts (technically they have argued against “bifurcation”, but given – as we shall see – the two fields are bifurcated, what these commentators really desire is unification). Most importantly for proponents of this heady vision, and consonant with the gist of Lord Mance’s views, such unification would entail the mainstreaming of proportionality across common law review.

This post argues against the idea that there ought to be a grand “synthesis” or “unification” of the common law of review and the law under the HRA. The post also advises caution in the reading across of norms, concepts or methods developed in one field to another. For example the justification and character of a particular norm may be dependent on considerations peculiar to the field in which that norm has been developed. Equally, its importation into a different field may cause incoherence, and undermine the distinctively valuable functions performed by the “receiving” body of law. Such considerations, of the distinctiveness of different doctrinal contexts, have largely been ignored in the long-stale Wednesbury-proportionality debate; though Lord Carnwath was attune to them in the final paragraphs of his judgment in Kennedy. In general the focus of the longstanding debate has been a running comparison of the relative advantages and disadvantages of adjectival features of each method, such as whether one is more “structured” or “transparent” than the other. The narrow focus of the debate on such second-order concerns distracts from deeper, far more significant matters.

Consideration of significant features of common law review and human rights law indicate that they are distinct bodies of doctrine which perform radically different functions. While each performs a range of functions the primary function of human rights law is, like certain actions in tort, to afford strong protection to and vindicate fundamental individual, personal interests, whereas the primary function of common law review is to ensure that public power is exercised properly and in the public interest. Once this is recognised it is difficult to make sense of calls for unification. Such claims are akin to arguing that equity and the law of torts ought to unify; the proposition is perplexing.

The Law under the HRA

The primary function of human rights law, and the law’s individualistic rights-based nature, are evident in its significant features:

  • Only the individual rights-holder may bring a claim. Claims are the property of the rights-holder and may not be assigned.
  • Claims are actionable per se: what matters is whether the claimant’s basic rights have been interfered with rather than whether the interference leaves them materially worse off; an interference may well leave a victim materially better off, but it remains the case that their basic interests ought not to have been interfered with.
  • Liability is strict: a defendant authority may be held liable for an interference with basic interests even if they acted reasonably, with meticulous care or with benevolent intentions. This reflects the prime importance the law places on fundamental interests, and their protection against outside interference.
  • Defences, such as proportionality or statutory authorisation, are narrow and construed strictly. For some rights, such as that against torture, there is no defence to breach under the HRA, other than express statutory authorisation.
  • The discretion to refuse relief is exceptionally limited due to the demands of Article 13: there must be an effective remedy for violation of basic rights.
  • Damages are available to redress personal losses; damages claims are paradigms of individuated, personal claims.
  • Claims may be brought via ordinary procedure, alongside other claims based in individual rights such as those in tort. Where they are brought via review procedure, the usual restrictions have been loosened so that, in significant respects, the procedure comes to resemble ordinary procedure.
  • Substantive questions, such as whether a risk was “real and immediate” or “reasonable steps” were taken in the context of the Osman duty, or whether interferences are proportionate, are determined objectively by the judiciary. This follows from the nature of the claim as one of individual right; determination of questions of individual right is a quintessentially judicial function.

There are striking similarities between these features of human rights law and those of the torts actionable per se, which have long performed similar protective functions and are based in individual rights. For example, in trespassory torts, only the rights-bearer may bring a claim, the claim is actionable per se, liability is strict, defences are narrow, specific relief will generally issue to halt ongoing wrongs, damages are available (although approached differently from HRA damages), and claims proceed via ordinary procedure. Such clear links are often obscured by fuzzy thinking in terms of a grand division between public and private law.

The common law of review

Whereas the primary function of human rights law is to afford strong protection to personal interests, the primary concern of common law review is the near-inverse: to ensure public powers are properly exercised according to basic precepts of good administration and in the interests of the public. The law’s principal focus is on the exercise of power itself. This is not to say the law evinces no concern for the individual. It does. But the concern is subsidiary.

Significant features of the law demonstrate this primary function:

  • Public interest standing rules. Unaffected groups or citizens may bring a claim where they have an arguable case. The reason for this is that what is at stake at common law is something we all have a legitimate interest in: the proper exercise of public power for the common good. A rights-based standing rule would be inconsistent with and undermine such function.
  • Remedies are limited to specific-type relief, reflecting the law’s functions: remedies are geared towards regulating and guiding public power so that it is exercised as it ought to be. Relief is discretionary and may be refused where its grant would compromise the public good. Damages are not available; such remedy, which redresses personal losses, would be out of place in a field concerned with the public good, rather than personal interests.
  • The review procedure evinces the law’s public interest ethos. It provides for many safeguards – restrictions on disclosure and oral evidence, short limitation period, permission stage – which serve to protect authorities from disruption in carrying out their tasks in the public interest.
  • Administrative action is presumed valid and the onus is on the applicant to demonstrate unlawfulness, in contrast to human rights law where the onus of justification lies with the defendant. These features are indicative of the law’s principal concern for the public interest: the presumption serves to protect public interests in administrative certainty and citizen compliance with decisions. One might argue that onus is not of great practical significance; but even if this is correct it is nonetheless a marker of the law’s purpose.
  • Review on common law grounds is a supervisory jurisdiction and a measure of last resort. There are several reasons for this. First, it is for the administrative decision-maker to determine what lies in the public interest. Second, administrators know a great deal more about good administration than judges. Third, judicial restraint is necessary so that in seeking to ensure power is exercised in accordance with precepts of good administration and for the public good, judges do not unwittingly undermine those goals through overzealous interference with administration; thus, good administration and pursuit of the public interest form the basis of the review jurisdiction, and the rationale for restraint in exercise of that jurisdiction.
  • The grounds of review also reflect the law’s principal functions.

o   Judges consistently emphasise that public power is only to be used for the public good. Of course, it is not for the judges to say what lies in the public interest; rather the judicial role is to keep administrators broadly “on track” in the exercise of their power. Thus, courts will in general only intervene in circumstances where it is clear that power has not been exercised for the public good, for example where its exercise is shown to have been captured by private or extraneous concerns. To act on irrelevant concerns or with bias or for improper purpose is to deviate from the basis upon which the power has been granted. Similarly, where an administrator acts wholly irrationally, this is indicative of a deviation from the purposes for which power is conferred.

o   A central concern of common law review is to ensure public power is exercised according to ordinary expectations of good administration. Making material errors of fact or making a decision which affects a person without giving them notice or the chance to be heard is not in accord with basic expectations of good administrative practice, and will lead to unreliable decision-making.

These fundamental features indicate the law’s primary function is to ensure public power is exercised properly and in the public interest. Of course, aspects of the law evince a concern for individual interests. But how the law approaches this concern is molded by its primary functions. As Lord Donaldson MR said in Argyll Group [1986] 1 WLR 763, 774, “Good public administration requires a proper consideration of the legitimate interests of individual citizens … But in judging the interest, however legitimate, regard has to be had to the purpose of the administrative process concerned”. Consider the anxious scrutiny reasonableness test applied in human rights cases. The only real onus on the primary decision-maker is to take into account the “human rights” and balance them against other concerns. If she does that, the court will only intervene if the balance struck was wholly irrational. The law’s concern is principally one of good administration: to ensure legitimate interests that might be affected by the decision are accounted for. Beyond that, the decision is for the official. In Kennedy Lord Carnwath similarly observed that even in human rights cases, “the role of the courts [at common law] is often more process than merits”.

Of course, many applicants bring review claims on the basis that they wish to preserve their individual interests. But one must keep separate an applicant’s subjective motivations for bringing a claim and the nature of the body of law which forms the basis of their claim. You may punch me, thereby giving me a claim in battery against you. I bring a legal claim because of my idiosyncratic subjective desire to test some arguments I once made in a journal article on the law of torts. This does not change the fact that the basis of the claim is breach of a personal right not to be beaten up.

The normative basis for a claim at common law is not breach of an individual right, as it is under the HRA. It is breach of a public duty, owed by authorities to the community, for the benefit of the public at large; this is a public wrong, not an individual wrong. This is why, for example, unaffected members of the community are entitled to initiate proceedings, and why damages for personal loss are not available and would be out of place. Individual interests may be taken into account in setting the specific content of these public duties – as in anxious scrutiny cases – but this does not alter the public nature of the duty: a duty on authorities, owed to the polity, not to act irrationally.

It is also worth noting that the principal reason we have this human rights dimension in the common law in the first place is, as Lord Rodger acknowledged candidly in Watkins [2006] 2 AC 395, [64], one of bare politics: English courts were, in the 1980s and 1990s, seeking to ensure compliance with Strasbourg requirements in the absence of a domestic rights-instrument. Some might see it as more than mere coincidence that Lord Mance’s observations in Kennedy come at a time when repeal of the HRA is being mooted by senior Ministers. Where courts alter doctrine according to extrinsic concerns, the result is nearly always to introduce confusion and incoherence into the law.


Thus we have two bodies of law which have radically different internal structures. These differences reflect the radically different functions that the two fields perform. In this light, it is difficult to make sense of claims for unification, synthesis etc: how could one sensibly unify a body of law concerned principally with preservation of the public interest, and a body of law concerned principally with preservation of individual interests? Further, why would we want to do this? The common law serves to ensure administrators exercise their powers properly and for the benefit of the public whom they ultimately serve, while human rights law serves to protect basic individual interests which may be prejudiced by powers otherwise exercised properly for the public good. This all seems perfectly sensible.

Recognition of the importance of doctrinal context provides an answer to the well-worn claim that it is inconsistent that where administrative action touches on “human rights”, challenges will be approached differently under the HRA and at common law. A HRA claim is a claim of right within a body of law dedicated to protection of fundamental individual interests. A review claim is a claim that a court should exercise a secondary remedial jurisdiction to ensure public power is used as it ought to be. Given these differences it makes perfect sense that different approaches are taken. Fundamental features of proportionality under the HRA are only explicable in the light of the doctrinal context in which the test applies. The structure of the test and its strictness derive from the law’s principal concern, to afford strong protection to basic interests. It is because the test is applied within a claim of individual legal right that the primary, objective judgment as to whether an interference is proportionate is for the judiciary. The onus of justification lies with the defendant because proportionality is in the nature of a defence to breach of an individual legal right. None of these contextual features are present at common law. The fundamental error, too often made, is to think of proportionality under the HRA as a ground of review, conceptually analogous to Wednesbury, so that replacing Wednesbury with proportionality would be to replace like with like. But proportionality is not a ground of review: it is a defence in an action for breach of an individual, fundamental legal right, and all of its significant features flow from that context; a context far removed from the common law supervisory jurisdiction and its principal concerns. As Lord Carnwath said in Kennedy, under the HRA “[t]he court’s function … is to decide for itself whether the decision was in accordance with Convention rights; it is not a purely reviewing function”.

Because the focus in proportionality/Wednesbury debates is far too often on the proportionality method, it is worth pausing to reflect on what would be being balanced within the rubric of that method, if it were mainstreamed at common law. Some prominent protagonists of proportionality, such as Paul Craig ([2010] NZ L Rev 265), appear to argue that individual rights and interests ought to anchor the proportionality method, whether these rights and interests are of fundamental status or not. Craig’s normative argument tends to focus on the benefits of proportionality method – the importance of reasoned justification, structure in judicial analysis and simplicity. But Craig offers no serious normative argument to justify a radical shift of focus in the law of review from a central concern for preservation of the public interest (specifically those public interests Parliament intended the relevant administrative powers to be used in aid of), to the central concern of the law being preservation and protection of private interests of individuals and legal entities, such as corporations. Why should the focus of public power in general be upon such special interests rather than the common good?

English law already recognises a body of law concerned with protecting private interests: private law. By virtue of the Diceyan principle of equality, private law applies, in principle, to public authorities just as it applies to private citizens. Why is further protection of individual interests required, especially when human rights, employment, family and equality legislation, and EU law have plugged the most significant gaps in protection of private interests?

And if further protection is warranted, why should that be through review? Why not argue for a new body of law specifically dedicated to protection of the relevant interests, rather than undermine valuable, distinctive functions performed by common law review and/or distort the coherence of the common law.

Further, if common law review is to directly protect private interests, why should that protection stretch to any possible interest that might be affected by administrative action, regardless of its importance? We would need a good argument as to why each possible interest potentially affected by administrative action warrants the intervention of the law. I have not seen such arguments. Further, would it not be preferable that claims concerning low-level interests be left to informal mechanisms such as the Parliamentary Ombudsman? Unification theorists do not generally consider such possibilities, nor do they seriously consider potential detriments which may accompany a radical expansion of judicial review, such as the impact on public interests in administrative certainty, flexibility, efficiency, effectiveness, and expeditiousness, in the exercise of public functions which ultimately serve the interests of all.

 Dr Jason N. E. Varuhas is Dean’s Postdoctoral Research Fellow at the University of New South Wales Faculty of Law and Junior Research Fellow at Christ’s College, University of Cambridge.  This post is a summary of parts of a longer paper, “Against Unification: Recognising the Distinctiveness of the Common Law of Review, and the Law under the Human Rights Act 1998”, forthcoming in H. Wilberg and M. Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart Publishing, Oxford).

(Suggested citation: JNE Varuhas, ‘Should the common law of review and the law under the Human Rights Act 1998 be “synthesised”?’ U.K. Const. L. Blog (28th APril 2014) (availabl at: https://ukconstitutionallaw.org/).