Before concluding on this issue I would briefly like to outline the relevance of a shift to merits review. If the courts have indeed as the quote proposes moved to an area of merits review, what justification could they rely on in legitimising this change of role. The answer lies in the rights based model48 where it has been suggested that the courts should always interpret legislation and apply administrative discretion to the best of their ability in accordance with fundamental human rights.
The Human Rights act provides the basis for this shift in approach, however the court must be careful as to not go too far in abusing their power. So does the proportionately test mean that there has been a change to judicial review resulting in merits review? This is a complex question, with no definitive answer. The courts have tended to take the view that although undoubtedly the incorporation of the Human Rights Act has marked a change in status constitutionally they are adamant that it does not mean a shift to merits review with various declarations being made in the case law as I have discussed above to that effect.However the courts have struggled to find a balance as to how intensely they should apply the test and the cases suggest that it depends on the subject matter in question. It would seem that the courts have avoided merits review on those social matters which cause great political debate and have favoured the option of deference.On the other hand it could be argued that the adoption of the proportionality test does always involve an element of merits review as it is impossible to give an objective review, when striking a balance between an individual’s rights and public interest. Unless the courts adopt a strict standard by which they could adhere to in applying the doctrine of proportionately, it is impossible to determine if overall the courts have entered into the realms of merits review, instead you would need to look the issue on a case by case basis.
The Home Secretary can derogate from the ECHR according to art 15. He must still comply with the guidelines set out in Art 15. Lord Bingham said about this “… [I]t seems to me that the rule of law does depend on an unspoken but fundamental bargain between the individual and the state..
. , by which both sacrifice a measure of the freedom and power which they would otherwise enjoy. The individual .
.. accepts the constraints imposed by laws properly made because of the benefits which, on balance, they confer.
The state for its part accepts that it may not do, at home or abroad, all that it has the power to do but only that which laws binding upon it authorise it to do. “19 As a result, the state must always pay attention to the rule of law as it is a part of an assumed agreement with the individual that the state will comply with the rule of law. This unwritten agreement between the state and the individual, means that the individual does not need to live in fear that there will be a problem which means they will be detained for an indefinite amount of time for no apparent reason.This does not seem to be the case when looking at Abassi20, as in that case it was held that Abassi, who had been detained in Guantanamo Bay, had no right to judicial review, as it was held “..
. the underlying principle, fundamental in English law, was that every imprisonment was prima facie unlawful, and that no member of the executive could interfere with the liberty of a British subject except on condition that he could support the legality of his action before a court of justice”21