[2025] EWHC 2751 (Admin)

Government is separate from Parliament, although there are many connections between the two. The legislative function belongs to Parliament, not the executive. It is Parliament’s intention that defines the policy and objects of an enactment. Accordingly, the reasons why Government promotes legislation cannot necessarily be treated as explaining why Parliament chose to enact it ([166]);

The will of Parliament is expressed solely through the legislation it enacts. Neither Parliament nor individual members give reasons for enacting legislation or for voting in a particular way [167]. Parliament does not operate solely, or even primarily, as a debating chamber. It is also a forum for gathering evidence and extra-cameral discussion, negotiation, and compromise. Voting may be influenced by party policy. Thus, the decisions taken by Parliament are not necessarily capable of being rationalised [168];

It follows that Parliamentary methods of resolving disputes are very different from judicial methods, aimed at the production of decisions by an independent and transparent process of reasoning. That reflects the different nature of its functions. The Parliamentary process arrives at decisions the legitimacy of which is accepted, not because of the quality or transparency of the reasoning involved, but because of the democratic credentials of its decision-makers [169];

Consequently, the courts must be careful not to undermine Parliament’s functions by requiring or encouraging conformity with a judicial model of rationality, which is not suited to resolving differences of political opinion [171]. The intention of Parliament is essentially a legal construct rather than something which can be discovered by an empirical investigation. This is illustrated by the way in which the court identified the rationale for the Hunting Act 2004 [172], referring to R (Countryside Alliance) v Attorney General [2007] UKHL 52; [2008] 1 AC 719 at [40] (and see [137]-[138] below);

When considering whether to make a DoI, the court has to identify the practical effect and the policy objective of the legislation for comparison with the Convention right. What is relevant is the underlying social purpose that the statutory provision seeks to achieve. That purpose is often self-evident, but where it is not, the court may need to look outside the statute to see the complete picture [173];

The court must decide whether the legislation satisfies a proportionality test: whether the means used by the legislation to achieve its policy is appropriate and not disproportionate in its adverse effects. Sometimes the court may need additional background material on the nature and extent of a social problem at which the legislation is aimed, so as to throw light on its rationale. That material may include a White Paper, statements made during a debate on a Bill, or explanatory notes published with a bill. But a ministerial statement should not be treated as synonymous with the objective intention of Parliament [174]-[175];

The courts are to have due regard to the enactment as an expression of Parliament’s will; its proportionality is to be judged on that basis. Proportionality is not to be judged by the quality of the reasons advanced in the course of parliamentary debate, or the subjective thoughts of individual ministers or MPs. Members may have differing reasons for approving legislation, or differing views on its desirability or likely effect, which were not expressed during a debate. So, for example, a lack of a cogent justification for a measure from a minister does not count against its proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister’s exploration of the policy options or of his explanations to Parliament. The court must not evaluate the sufficiency of the legislative process leading up to the enactment of the statute [176];

The degree of respect to be shown to the considered judgment of the democratic assembly will vary according to the circumstances. Relevant factors will include the subject-matter of the legislation, whether it is recent or dates from an age with different values, and whether “Parliament can be taken to have made its own judgment of the issues which are relevant to the court’s assessment”. If so the court will be more inclined to accept Parliament’s decision out of respect for democratic decision-making on matters of political controversy [178]-[180].

In order to decide whether legislation is compatible with Convention rights, the court usually needs to decide whether it strikes a reasonable balance between competing interests. If it can be inferred that Parliament formed a judgment that the legislation was appropriate, notwithstanding its potential impact upon interests protected by the ECHR, that may be relevant to the court’s assessment, because of the respect owed to the legislature’s view. If on the other hand there is no indication that Parliament considered that issue, that factor will be absent, but that will not count against the court upholding the compatibility of the measure. In that situation, the court will have to consider the issue, absent that factor, but paying appropriate respect to the will of Parliament as expressed in the legislation [182];

The court should go no further than to ascertain whether matters relevant to compatibility were raised during the legislative process, so as to avoid assessing the adequacy or cogency of Parliament’s consideration of them. A “high-level review” of whether a topic was raised before Parliament, whether in debate or otherwise should suffice. The court must not treat the absence or poverty of debate in Parliament as a reason supporting a finding of incompatibility [183]-[184].

The court may also take note of the efforts made by parties to campaign against legislation during its passage through Parliament, thus ensuring that their concerns were made known to Parliamentarians [179] and [185]. Referring to Lord Bingham in Countryside Alliance at [8], [40] and [45], this point applies also to consultation exercises and official reports leading up to the laying of the Bill before Parliament.