COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(ADMINISTRATIVE AND DIVISIONAL COURT)
Mr Justice Longmore
AND ON APPEAL FROM EPSOM COUNTY COURT
His Honour Judge Cook
London, WC2A 2LL
Tuesday 16 October 2001
B e f o r e :
LORD JUSTICE LATHAM
LORD JUSTICE KAY
| Nina McLellan
Bracknell Forest Borough Council
The Secretary of State for Transport
Local Government and the Regions
|Reigate & Banstead Borough Council
The Secretary of State for Transport,
Local Government and the Regions
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nigel Pleming QC and Robert Latham (instructed by Messrs Dexter Montague & Partners, Berkshire RG1 7UD for the Appellant)
Timothy Straker QC and Sarah-Jane Davies (instructed by Corporate Services – Legal Bracknell Forest Borough Council, Berkshire RG12 1AU for the Respondent)
Philip Sales and Daniel Stilitz ( instructed by Treasury Solicitor for the Interested Party)
Representation to B2/2001/0740
Andrew Arden QC and Christopher Baker (instructed by Head of Legal and Estates Services, Reigate and Banstead District Council for the Respondent)
David Watkinson and Beatrice Prevatt (instructed by John Gallagher, SHELTER, for the Second Defendant/Appellant)
Philip Sales and Daniel Stilitz (instructed by Treasury Solicitor for the Interested Party)
Crown Copyright ©
LORD JUSTICE WALLER :
"Anti-social behaviour by a small minority of tenants and others is a growing problem on council estates … the misery caused to tenants when the enjoyment of their home is spoilt by the activities of their neighbours or others can destroy their whole quality of life. Whole estates can be stigmatised by the anti-social behaviour of a few.
Such behaviour manifests itself in many different ways, including vandalism, noise, verbal and physical abuse, threats of violence, racial harassment, damage to property, trespass, nuisance from dogs, car repairs on the street, joyriding, domestic violence, drugs and other criminal activities, such as burglary.
Tackling the causes and consequences of such behaviour represents a major drain on the resources and time of housing managers. Research has shown that up to 20% of housing managers' time is spent in dealing with questions of neighbour nuisance, and that between 2 and 10% of tenants of any given estate have been the subject of complaint."
"the way in which the courts work results in difficulties in following through possession cases quickly because of delays in getting the cases before the court; inconsistency over what is regarded as acceptable evidence, witness intimidation exacerbated by delays in court hearings, and what authorities see as their difficulty in convincing the courts of the serious nature of the nuisance caused by the tenant."
The Regime of Introductory Tenancies
"(1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling-house.
(2) The court shall make such an order unless the provisions of section 128 apply. "
"(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.
(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.
(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.
(4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun.
The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.
(5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings.
(6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made.
(7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor."
"Where a court makes an order for the possession of any land … the giving up of possession shall not be postponed ... to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order."
Manchester City Council v Cochrane and Another  1 WLR 809 (Cochrane)
"If one were to treat the provisions of section 128 as a form of Scylla and those of section 127(2) as Charybdis, the channel in between available for navigation is remarkably narrow but I see no escape from that analysis even though it does reduce the functions of the court to that of ascertaining that it does have jurisdiction to entertain the proceedings at all. Once it has done so it is required to make a possession order and that, in my view, necessarily involves that it has no discretion in the matter at all."
"It is common ground that the council's duty to comply with section 129(2) is subject to judicial review. Equally it is clear that this duty is a public law duty and the correlative right in the tenants to have it lawfully performed must be a public law right. The county court must in my view have at least jurisdiction to grant an adjournment if satisfied that there is a real chance of leave to apply for judicial review being granted."
The relevant provisions of the HRA
"(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section –
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
4. Declaration of incompatibility
(1) Subsection 2 applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied –
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.
(5) In this section 'court' means –
(e) In England and Wales … the High Court or the Court of Appeal.
(6) A declaration under this section ('a declaration of incompatibility') –
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
6. Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section 'public authority' includes –
(a) a court or tribunal, and …
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(2) In subsection (1)(a) 'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.
8. Judicial remedies
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."
"Article 6. Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Article 8 Right to respect for private and family life
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 prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14 Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
The facts relating to the appeals
Benfield and Forrest
"The Claimant has adopted a regime of Introductory Tenancies, the purpose of this regime being to try to gauge whether persons will be good, reliable tenants, fulfilling their financial responsibilities regarding payment of rent and their social responsibilities, such persons being suitable to become secure tenants. Introductory tenancies have been introduced by the council to ensure that problems with the non-payment of rent and neighbour nuisance are minimised. The regime encourages persons to regularly pay their rent, and generally only those persons who demonstrate that they will reliably pay their rent, become secure tenants. Local Authorities, such as the Claimant, are under a statutory duty to avoid a deficit on the Housing Revenue Account and non-payment of rent causes the Claimant a serious problem in terms of honouring avoidance of the Housing Revenue Account deficit and may have the consequence of passing financial burdens on to those who are already tenants of the Claimant. There is a pressing social need to encourage financial accountability among tenants. That is, if some tenants do not pay rent and run up arrears, other tenants are liable to make up the budgetary shortfall, in the long term, by shouldering rent increases."
Impact of the Convention
"Respect for a person's home is neither an absolute concept, nor, given Article 8(2), an unqualified right. I do find myself puzzled by the learned judge's remark that Article 8 "at first sight … has no application in the present circumstances". It seems to me that any attempt to evict a person, whether directly or by process of law, from his or her home would on the face of it be a derogation from the respect, that is the integrity, to which the home is prima facie entitled."
At paragraph 32 Sedley LJ said:-
"A legal threat to a secure home will, in the ordinary way, engage Article 8.1. In situations where the law affords an unqualified right to possession on proof of entitlement, it may be that Article 8.2 is met, but that is not the present class of case and nothing in this judgment should be taken as impinging on it."
"To evict the defendant from her home would impact on her family life. The effect of Article 8(2) is therefore critical. The starting point is the fact that after the order for possession was obtained, Tower Hamlets continued to owe a limited duty ….."
"Further, even if the applicant's right to respect for her home, as guaranteed by Article 8, could be regarded as having been interfered with by order of the County Court for possession against her, the Commission considers that such interference was clearly in accordance with the law and was also necessary for the protection of the contractual rights of the landlord to have the property back at the end of the tenancy."
Impact of Article 8
"There can be no doubt that the scheme of introductory tenancies does interfere with the exercise of this right (Article 8(1)), but it is of course in accordance with the law as laid down in the Housing Act 1996. The question, therefore, is whether the interference is necessary in a democratic society for the protection of the rights and freedoms of others. Necessary in a democratic society does not mean indispensable; nor does it mean desirable. Convention jurisprudence has decided that it means:
(a) that the reasons given to justify the interference must be relevant and sufficient;
(b) that the interference must correspond to a pressing social need; and
(c) that the interference must be proportionate to the aim pursued: see Handyside v United Kingdom (1976) 1 EHRR 737….."
"It does not seem to me that it is in any way inevitable that the legislation will act disproportionately and for all these reasons there is, in my judgment, no incompatibility with Article 8. Nor, if relevant, do I consider there to be any compatibility with Article 1 of Protocol 1 for all the same reasons. The infringement of that Article was not argued as a separate point."
"We are satisfied, that not withstanding its mandatory terms, section 21(4) of the 1988 Act does not conflict with the defendant's right to family life. Section 21(4) is certainly necessary in a democratic society in so far as there must be a procedure for recovering possession of property at the end of a tenancy. The question is whether the restrictive power of the court is legitimate and proportionate. This is the area of policy where the court should defer to the decision of Parliament. We have come to the conclusion that there was no contravention of Article 8 or of Article 6."
"The judge could have
(i) adjourned the claim for possession to enable the appellants to discharge the rent arrears;
(ii) suspended the possession order for up to six weeks (section 89 HA 1980) which might have enabled arrears to have been discharged;
(iii) adjourned the possession proceedings to allow application for judicial review to be made of the decision to institute or pursue possession proceedings (see Cochrane  1 WLR 809 at 819);
(iv) adjourned the possession proceedings to enable an application to the High Court for a declaration of incompatibility; or
(v) transferred the case to the Administrative Court list for hearing as a judicial review which could lead to a quashing of the decision as incompatible with a Convention right with consequent invalidity of the possession proceedings (see Trustees of Dennis Rye Pension Fund v Sheffield City Council  4 All ER 747 at 755F and Avon CC v Buscott  QB 656). "
"As is well established in the Court's case law, it is for the national authorities to make the initial assessment of the "necessity" for an interference, as regards both the legislative framework and the particular measure of implementation. Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention.
The scope of this margin of appreciation is not identical in each case but will vary according to the context. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities involved."
"[Laws to control the use of property in accordance with the general interest] are especially called for and usual in the field of housing, which in our modern societies is a central concern of social and economic policies. In order to implement such policies, the legislature must have a wide margin of appreciation both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of the detailed rules for the implementation of such measures. The Court will respect the legislature's judgement as to what is in the general interest unless that judgement be manifestly without reasonable foundation."
Section 89 compatibility
"It is thus clear that article 6(1) is engaged where the decision which is to be given is of an administrative character, that is to say one given in an exercise of a discretionary power, as well as a dispute in a court of law regarding the private rights of the citizen, provided that it directly affects civil rights and obligations and is of a genuine and serious nature."
"33. As Social Housing Professionals in a Joint Social Services and Housing Department, our role is to encourage and enable tenants to maintain successful tenancies. Eviction is very much a last resort, and is very often considered to be a failure. We regularly engage with other support agencies to prevent tenants losing their homes, and that remains so under the Introductory Tenancy Scheme.
34. However, as indicated above, the Scheme is a vital tool in the Council's fulfilment of its housing functions and its duties and responsibilities towards all its tenants and forms key part of the Council's strategy for dealing with anti-social behaviour.
35.Introductory Tenancies help to impress on new tenants the significance of their responsibilities under the Tenancy Agreement, and the fact that such an agreement should not be entered into lightly. They also provide a more expedient and certain route to possession in the small proportion of cases in which tenants persistently fail to pay rent or engage in behaviour that seriously affects other residents' peaceful enjoyment of their home and neighbourhood. In these ways they have proved to be a crucial Housing Management tool, both as a deterrent to anti-social behaviour and in minimising rent arrears."
"Parliamentary sovereignty means Parliament can, it if chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts, therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document." . . . .
"151. As the Court has held in the RINGEISEN and KONIG CASES Article 6(1) may be applicable in cases concerning the exercise of such public powers. Nevertheless, Article 6 does not, in the Commission's opinion, prohibit the conferment on public authorities of powers to take action affecting the private rights of citizens. It does not go so far as to provide that all acts, decisions or measures which affect private rights must themselves be taken by a tribunal. Such a conclusion, apart from being in conflict with the common position in the contracting States both today and when the Convention was drafted, would also not be warranted, in the Commission's opinion, by a proper interpretation of Article 6(1).
152. It is plain from the text of Article 6(1) that it does not directly protect the individual's 'civil rights' as such against acts or decisions which modify, annul or otherwise interfere with them. In many circumstances the private rights of an individual are liable to be affected not only by the lawful acts of public authorities but also by those of other individuals or entities exercising countervailing private rights of their own, and indeed by circumstances of a purely factual nature such as the effluxion of time. The mere fact that an individual's private rights are adversely affected by the acts of another party, whether a public authority or not, does not therefore involve a violation of Article 6(1).
154. In the Commission's view the essential role of Article 6(1) in this sphere is to lay down guarantees concerning the mode in which claims or disputes concerning legal rights and obligations (of a 'civil' character) are to be resolved. A distinction must be drawn between the acts of a body which is engaged in the resolution of such a claim or dispute and the acts of an administrative or other body purporting merely to exercise or apply a legal power vested in it and not to resolve a legal claim or dispute. Article 6(1) would not, in the Commission's opinion, apply to the acts of the latter even if they do affect 'civil rights'. It could not be considered as being engaged in a process of 'determination' of civil rights and obligations. Its function would not be to decide ('decidera') on a claim, dispute or 'contestation'. Its acts may, on the other hand, give rise to a claim, dispute or 'contestation' and Article 6 may come into play in that way.
161. An interpretation of Article 6(1) under which it was held to provide a right to a full appeal on the merits of every administrative decision affecting private rights would therefore lead to a result which was inconsistent with the existing, and long-standing, legal position in most of the Contracting States. "
"134 My Lords, this reasoning is in accordance with the way in which, at the outset of this speech, I suggested to your Lordships that, apart from European authority, the case ought to be decided. But it provides a short answer only if it is assumed that article 6 requires no more than that judicial review proceedings be decided by an independent and impartial tribunal. If, however, article 6 is construed as going further and mandating some minimum content to the judicial review jurisdiction, then it is necessary to ask, as I have done at some length, whether the extent of the judicial review jurisdiction available in England and Scotland is sufficient to satisfy the requirements of the European court jurisprudence. As appears from my analysis of that jurisprudence, there is no doubt that the European court has construed article 6 as requiring certain minimum standards of judicial review. This appears most clearly from the Swedish cases to which I have referred.
135. Once one accepts this construction, it makes little difference whether one says, as in Kaplan, that the administrative act does not fall within article 6 at all and the question is concerned only with the adequacy and impartiality of the judicial review, or whether one says, as the European court and Commission have done in other cases, that the administrative act does in theory come within article 6 but the administrator's lack of impartiality can be cured by an adequate and impartial judicial review. The former seems to me a more elegant analysis, but the latter may be necessary in order to explain, in the context of civilian concepts, why the administrative process can be treated as involving at any stage a determination of civil rights and obligations. So, tempting as it is, I am unable to accept Mr Macdonald's short cut."
Is combination of review panel plus judicial review enough to meet the requirements of Article 6?
"The Convention calls for at least one of the two following systems: either the jurisdictional organs themselves comply with the requirements of A6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of A6(1)."
"79 These views of the meaning of "civil rights and obligations" are only of historical interest, because, as we shall see, the European court has not restricted article 6(1) to the determination of rights in private law. The probable original meaning, which Judge Wiarda said in Konig's case, at p 205, was the "classical meaning" of the term "civil rights" in a civilian system of law, is nevertheless important. It explains the process of reasoning, unfamiliar to an English lawyer, by which the European court has arrived at the conclusion that article 6(1) can have application to administrative decisions. The court has not simply said, as I have suggested one might say in English law, that one can have "civil right" to a lawful decision by an administrator. Instead, the court has accepted that "civil rights" means only rights in private law and has applied article 6(1) to administrative decisions on the ground that they can determine or affect rights in private law.
86 In the later case of Albert and Le Compte v Belgium (1983) 5 EHRR 533, in which a similar situation arose, the court said, at paragraph 29, that although disciplinary jurisdiction could be conferred upon professional bodies which did not meet the requirements of article 6(1) (eg because they were not "established by law" or did not sit in public):
"None the less, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1)."
87 The reference to "full jurisdiction" has been frequently cited in subsequent cases and sometimes relied upon in argument as if it were authority for saying that a policy decision affecting civil rights by an administrator who does not comply with article 6(1) has to be reviewable on its merits by an independent and impartial tribunal. It was certainly so relied upon by counsel for the respondents in these appeals. But subsequent European authority shows that "full jurisdiction" does not mean full decision-making power. It means full jurisdiction to deal with the case as the nature of the decision requires.
88 This emerges most clearly from the decisions on the English planning cases, which I shall analyse later in some detail. But the leading European authority for the proposition that it is not necessary to have a review of the merits of a policy decision is Zumtobel v Austria (1993) 17 EHRR 116. The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate government committee heard their objections but confirmed the order. They appealed to an administrative court, which said that the government had taken proper matters into account and that it was not entitled to substitute its decision for that of the administrative authority. They complained to the Commission and the European court that, as the administrative court could not "independently assess the merits and the facts of the case", it did not have "full jurisdiction" within the meaning of the Albert and Le Compte formula. The European court said at para 32, that its jurisdiction was sufficient in the circumstances of the case, "Regard being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the Zumtobel partnership."
"It appears to me that the requirement that a court or tribunal should have 'full jurisdiction' cannot be mechanically applied with the result that, in all circumstances and whatever the subject matter of the dispute, the court or tribunal must have full power to substitute its own findings of fact, and its own inferences from those facts, for that of the administrative authority concerned. Whether the power of judicial review is sufficiently wide to satisfy the requirements of article 6 must in my view depend on a number of considerations, including the subject matter of the dispute, the nature of the decision of the administrative authorities which is in question, the procedure, if any, which exists for review of the decision by a person or body acting independently of the authority concerned and the scope of that power of review."
"110 Mr Bratza's particular insight, if I may respectfully say so, was to see that a tribunal may be more or less independent, depending upon the question it is being called upon to decide. On matters of policy, the inspector was no more independent than the Secretary of State himself. But this was a matter on which independence was unnecessary – indeed, on democratic principles, undesirable – and in which the power of judicial review, paying full respect to the views of the inspector or Secretary of State on questions of policy or expediency, was sufficient to satisfy article 6(1). On the other hand, in deciding the questions of primary fact or fact and degree which arose in enforcement notice appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact."
"114 On ground (b), (issues of fact) the European court noted what, in para 46, it described as:
"the uncontested safeguards attending the procedure before the inspector: the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness and impartiality.
115 It went on to say, at para 47, that, if Mr Bryan had pursued his appeal on ground (b), the High Court, while not being able to substitute its own findings of fact, "had the power to satisfy itself that the inspector's findings of fact or the inferences based on them were neither perverse nor irrational". This was enough to satisfy article 6:
" Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by article 6(1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe member states."
1. it is relevant whether findings of fact are material to the decision;
2. if findings of fact are material to the decision, that will not finally determine whether judicial review provides a remedy in compliance with Article 6;
3. if the facts have themselves been found by "an expert tribunal" sufficiently independent to make it unnecessary for the court to have a broad jurisdiction to review those decisions of fact that is likely to lead to the conclusion that judicial review is sufficient.
"An application for judicial review or the institution of wardship proceedings does enable the English courts to examine a local authority's decision in the matter of access by a parent to his child who is in public care. These two remedies provide valuable safeguards against exercise by the authority of its discretion in an improper manner.
Nevertheless, on an application for judicial review, the courts will not review the merits of the decision but will confine themselves to ensuring, in brief, that the authority did not act illegally, unreasonably or unfairly. Where a care order or a parental rights resolution is in force, the scope of the review effected in the context of wardship proceedings will normally be similarly confined."
"The reversal of a finding of fact in the field of planning would no doubt be highly unusual. I mention Edwards v Bairstow simply to illustrate the generosity with which the courts, including your Lordships' House, have interpreted their powers to review questions of law. A similarly broad and generous approach has been adopted in the development of judicial review extending as it does not only to points of law in the strict and narrow sense but to such matters as the rationality of the decisions and the fairness of the decision-making process. One possibility canvassed in argument was that the powers of review as at present exercised by the courts might be enlarged in order to accommodate the requirements of the Human Rights Act 1998. For my part, at least in the context of the present case, I see no need for that."
"The scope of judicial review
The suggestion was advanced that, if the respondents were correct in their contention that the present proceedings are in breach of article 6(1), the scope of judicial review might somehow be enlarged so as to provide a complete remedy. The point in the event does not arise, but I consider that it might well be difficult to achieve a sufficient enlargement to meet the stated purpose without jeopardising the constitutional balance between the role of the courts and the role of the executive. The supervisory jurisdiction of the court as it has now developed seems to me adequate to deal with a wide range of complaints which can properly be seen as directed to the legality of a decision. It is sufficient to note the recognition of the idea of proportionality, or, perhaps more accurately, disproportionality, and the extent to which the factual areas of a decision may be penetrated by a review of the account taken by a decision maker of facts which are irrelevant or even mistaken: R v Criminal Injuries Compensation Board, Ex p A  2 AC 330, 344-345. But consideration of the precise scope of the administrative remedies is not necessary for the purposes of the present appeals."
"The European Court of Justice does of course apply the principle of proportionality when examining such acts and national judges must apply the same principle when dealing with Community law issues. There is a difference between the principle and the approach of the English courts in Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223. But the difference in practice is not as great as is sometimes supposed. The cautious approach of the European Court of Justice in applying the principle is shown inter alia by the margin of appreciation it accords to the institutions of the Community in making economic assessments. I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing. Reference to the Human Rights Act 1998 however makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied: see R v Secretary of State for the Home Department, Ex p Turgut  1 All ER 719; R (Mahmood) v Secretary of State for the Home Department  1 WLR 840.
This principle does not go as far as to provide for a complete rehearing on the merits of the decision. Judicial control does not need to go so far. It should not do so unless Parliament specifically authorises it in particular areas."
LORD JUSTICE LATHAM:
LORD JUSTICE KAY: