Khawar Qureshi QC considers the relationship between judicial review and Article 6
There is an undoubted increase in the willingness and ability of the courts to review executive decisions, largely as a result of the impact of the Human Rights Act 1998 (HRA 1998) and the use of the doctrine of proportionality.
It is essentially as a result of the application of the doctrine of proportionality that the House of Lords recently ruled that disclosure might be more readily available in judicial review proceedings, where it is necessary to provide the context of a decision, than was previously the case, ie very rarely (see Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, [2006] All ER (D) 175 (Dec). See this issue p 313).
Tweed signalled a recognition on the part of their Lordships that the factual basis for a decision may be critical in evaluating the propriety of the decision itself. Therein lies the heart of the issue the European Court of Human Rights (ECtHR) was required to consider in Tsfayo v UK (Application No 60860/00) [2006] All ER (D) 177
