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As our courts and lawyers become more familiar with the European Convention and the 2003 Act, there is no reason to believe that the position will be any different here.

So the European Convention on Human Rights is here to stay. What difference will it make in the area of Judicial Review?

First of all, the 2003 Act creates a new ground for Judicial Review since Section 3(1) of the 2003 Act creates a specific statutory duty, subject to any statutory provision or rule of law, for all organs of the State to perform their functions in a manner compatible with the State’s obligations under the Convention provisions.

Secondly, it is likely to significantly alter – how significantly remains to be see – the standard or criteria for Judicial Review.

Thirdly, it will create a new remedy for injured parties.  Under Section 5(4) of the Act, where a court grants a declaration that a section of a statute is incompatible with the Convention, the party concerned can apply to the Attorney General for an ex gratia payment of compensation.  The payment will be on the Strasbourg scale, however, which is anything but generous.

Fourthly, it will lead to some substantive changes in the law.

Judicial Review standards:

Potentially the most radical effect may come about through a change in the standard for granting Judicial Review and it is that aspect on which I want to particularly focus in this paper.  Traditionally the standard for Judicial Review was that set in the Wednesbury case in England in 1947:

The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to have taken into account or conversely have refused ... or neglected to take into account matters which they ought to have taken into account.  Once that question is answered in favour of the local authority, it may still be possible to say that ... they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.  In such a case I think the court can interfere.”4

This approach was summed up in 1982 in R. v. The Chief Constable of North Wales ex parte Evans, where the Court said that Judicial Review

4 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1KB 223

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