Common law has evolved over the last millennium as individuals have petitioned the courts claiming that those given legal power to be exercised in the public interest have abused that power, usually by exercising that power in their own self-interest. Such ‘judicial review’ of individual decisions has lead to an ever-increasing body of ‘case law’ which, when analysed, outlines the principles and procedures for making lawful decisions.
Common law focuses on the decisions of the powerful rather than on the rights of those affected by the decision as the Human Rights Act does. Common law is then a top-down approach while human rights law is a bottom-up approach. Judicial review may focus on one or the other or both.
Common law examines if a decision is inherently unlawful - whether or not the decision falls within the scope of the legal power given to the decision maker and if the decision pursues the legal purpose, the legitimate aim, for which the decision maker was given that legal power. Even if the decision does fall within the scope and intent of the legal power, that legal power may have been implemented by following an unfair procedure or irrational reasoning and this too can render the decision unlawful. This leads to the 3 categories of ‘grounds’ for judicial review: illegality, procedural unfairness and irrationality.
(a) Illegality: has the decision been taken in accordance with the legal power defined by the wording and intent of the statute and Parliament? Evidence accepted: wording of statute; Government statements introducing the legislation; international law if there is ambiguity in the text.
· Ultra vires: is the decision beyond the scope of the legal power, beyond the boundaries of legal discretion?
o No indication inequality before law is intended, an unjustified distinction.
o Required distinctions under MDA: reasonably safe v unreasonably harmful.
o Required distinctions under HRA/ECHR: self-harm v harm to others
· Improper purpose: does the decision pursue some purpose other than the legal purpose, the legitimate aim?
o Majoritarianism, gaining favour with the majority of the electorate.
o Compliance with unincorporated UN drug Conventions, cf other unincorporated international treaties demanding equal treatment.
· Contrary to HRA/ECHR: does the decision contravene the Human Rights Act?
o See HRA/ECHR - required distinctions under HRA/ECHR: self-harm v harm to others
· Case law: Simms
(b) Procedural Unfairness: has the process of decision making been unfair?
· Actual and apparent bias: does the decision making process appear to have been influenced by self-interest rather than the public interest?
· Fettered discretion: has the decision making process considered all factors within the scope of the legal discretion?
o Is the decision making process open to all relevant evidence including new evidence?
o Has the decision making process considered all regulatory options?
o Is the decision making process transparent, providing full reasons, protecting the right of those affected to be informed?
o Has the decision making process considered the views of those affected equally?
o Have all those affected by the decision been given a chance to make representations, the right to be heard?
(c) Irrationality and proportionality:
For irrationality the court considers:
· has the decision making process considered and correctly weighted all relevant factors and ignored all irrelevant ones?
· has it made the correct distinctions between those in similar situations and those in different ones?
For proportionality the court considers:
· was the measure necessary to achieve the desired objective;
· was the measure suitable for achieving the desired objective;
· did it nonetheless impose an excessive burden on the individual. (This part is often termed proportionality strictu sensu.)’
1. Inequality before the law appears to be caused by bias, is implemented through fettered discretion, lack of consultation and reasons, and failure to meet legitimate expectations and has the effect of severe unequal treatment in terms of regulations and penalties.
2. Apparent bias: association with drugs used by the majority (of public, of voters, of CJS decision makers).
3. Fettered discretion: to Gov policy of unequal treatment; to UN drug Conventions specifying unequal treatment. Not open to evidence or consultation.
4. Lack of consultation with those affected: denial of right to be heard before restrictions on rights imposed; failure to assess likely compliance.
5. Lack of reasons: no challenge possible without reasons.
6. Failure to meet legitimate expectation: that regulations and penalties will be amended in the light of new evidence (both drug risks & regulatory options effectiveness).
7. Unequal treatment: arbitrary, inconsistent and disproportionate regulations and penalties constituting degrading treatment.
8. Bias and fettered discretion result in relevant factors being ignored and/or under-weighted and irrelevant factors being considered and/or over-weighted.
9. Consultation and legitimate expectation are relevant factors that should be considered.
10. Government guidance on decision making is a relevant factor ignored.
11. It is irrational to prohibit harmful behaviour based on a lack of evidence of any harm, as is the case with psychedelic drugs. Cannabis prohibited because ‘not harmless’; magic mushrooms because of ‘concerns’ about harm rather than evidence of harm; LSD because it causes hallucinations without evidence that this poses unreasonable harm.
12. Using the legislation for an improper purpose – sending out signals, deterrence beyond proportionality with risk. Charles Clarke’s concern when calling for a review + SciTech’s comment in their Summary.