WEEK 6 - PROPORTIONALITY

R v Home Secretary, ex p Daly

Facts

The Home Secretary issued a document requiring prisoners to be removed from their cells during routine searches, including examination of legal correspondence on the suspicion that the contents are criminal. Daly applied for JR on the basis that these searches breached his common law right that the confidentiality of privileged legal correspondence. 

• Note: this case did not in fact involve convention rights, has the HRA had not been in effect at the time of the facts of this case, thus the comments on proportionality were strictly obiter

Outcome

Outcome

Appeal allowed; the policy infringed upon D’s common law right. The policy is unlawful at common law by intruding into the right to privileged legal correspondence to an extent which is “greater than is justified by the objectives the policy is intended to serve”. s47(1) does not authorise such intrusion, so the SoS had no power to implement the policy, which must be declared unlawful. 

• Lord Bingham → 

The legal background: Any custodial order inevitably curtails the enjoyment by the person confined of right enjoyed by other citizens but it does not wholly deprive them! The remaining rights are; a) the right of access to a court b) the right of access to legal advice c) the right to communicate confidentially with a legal advisor under the seal of legal professional privilege = “such rights may be curtailed only by clear and express words, and then only to the extent reasonably justified to meet the ends which justify the curtailment” 

Applied: I have no doubt that the policy in question infringes on Mr Dalys common law right to legal professional privilege 

1. Can there be ground for doing this? = “plainly there can be - some examination may well be necessary to establish that privileged legal correspondence is what it appears to be and is not a hiding place for illicit materials or information prejudicial to security or good order

2. When does this ground arise? = it is necessary to ask whether to the extent that it infringes a prisoners common law right to privilege, the policy can be justified as neccessary and a proper response to the acknowledged need to maintain security, order and discipline in prisons and to prevent crime 

→ on the facts of this case: In considering these justifications based as they are on extensive experience of the prison service, it must be recognised that the prison population includes a core of dangerous, disruptive and manipulative prisoners, hostile to authority and ready to exploit for their own advantage any concession granted to them. Any search policy must accommodate this inescapable fact. I cannot however accept that the reasons put forward justify the policy in its present blanket form. 

3. Of the European convection: the same result is reached by reliance on the EU convention 

• Lord Steyn →  Obiter remarks additional to concurrence with Lord Bingham = there is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where convention rights are at stake! 

• The “contours” of the principle of proportionality; 1) whether the legislative objective is sufficiently important to justify limiting a fundamental right 2) the measures designed to meet the legislative objective are rationality connected to it; and 3) the means used to impair the right or freedom are no more than is necessary to accomplish the objective 

→ “clearly these are more precise and more sophisticated than the traditional grounds of review”; the starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. 

1. The doctrine of proportionality may requires the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions 

2. The proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations 

3. Even the heightened scrutiny test in Smith is not necessarily appropriate to the protection of Human Rights 

R (Begum) v Denbigh High School Governors

Facts

SB was sent home from school for wearing a jilbab (a long religious garment) was not permitted to return to school until she conformed to the schools uniform policy. SB sought JR of the decision on the grounds that it violated her Article 9 ECHR right to manifest her religion and her art 2 First Protocol right to education. Sb’s appal was allowed in the CoA, who held that her article 9 right to religious expression had been violated. 

• CoA:  adopted a procedural approach to proportionality, holding that the interference with article 9 had been unjustified as the teachers did not consider whether their action was proportionate in the decision making process. 

Outcome

There was no interference with C’a Article 9 right. A decision maker does not have to show that it carried out a proportionality inquiry itself to prove that its measures were proportionate under the HRA. 

• Lord Bingham → To be justified under article 9(2) a limitation or interference must be a) prescribed by law and b) necessary in a democratic society for a permissible purpose, that is, it must be directed to a legitimate purpose and must be proportionate in scope and effect =  The issue is whether the rules and the schools insistence on them were at all proportionate 

• Applied: the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be

• Lord Hoffman → Her right was not in my opinion infringed because there was nothing stopping her from going to a school where her religieon did not require a jilbab or where she was allowed to wear one. Art 9 does not require that one should be allowed to manifest ones religieon. 

2) Even if there had been any infringement this would not have been unjustiifed:

Lord Nicholls & Lady Hale [partial dissent]→ disagree that there was choice but agree that there was

Bank Mellat v Her Majesty’s Treasury

Facts

The treasury imposed financial restrictions on Bank Mellat (BM) on the grounds that it financed Iranian nuclear weapon development. BM applied for JR on the grounds of interference with art 1 ECHR - the right to property, including peaceful enjoyment of business assets. 

• Was T’s interference with BM’s financial dealing a proportionate and rational response to the statutory purpose of hindering Iran's nuclear development? 

Outcome

• Lord Neuberger → On closed hearing proceedings:

1.  If the court decided that it should look at closed material careful consideration should be given by the advocates, and indeed by the court, to the question whether it would nonetheless be possible to avoid a closed substantive herding 

2. If the court decides that a closed material procedure appears to be needed that the parties should try and agree a way of avoiding or minimizing the extent of a closed hearing 

3. If there is a closed hearing, the lawyers representing the party who is relying on the closed material, as well as that party itself, should ensure that, well in advance of the hearing of the appeal a) the excluded party is given as much information as possible and 2) the special advocates are given as full information as possible as to the nature of the passages relied on in such closed documents and the arguments which will be advanced in relation thereto 

4. Finally, appellate courts should be robust about acceding to applications to go into closed session or even to look at closed material. Given that the issues will have already been debated and adjudicated upon, there must be very few appeals where any sort of closed material procedure is likely to be necessary 

“The question depends on an exacting analysis of the factual case advanded in defence of the measure, in order to determine i) whether its objective is sufficiently important to justify the limitation of a fundamental right ii) wethers its is rationally connected to the objective iii) whether a less intrusive measure could be used iv) whether having regard to the consequences a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitable overlap because the same facts are likely to be relevant to more than one of them”

R (Lord Carlile of Berriew) v Home Secretary

Facts

A dissident Iranian Politician was invited by members of the HoL to visit London and discuss human rights and deomcracy concerns in Iran. The Home Secretary barred the Iranian politician from entering the UK on the grounds that it would risk jeopardising the UKs diplomatic and economic relationship wit Iran, and might provoke a violent reaction to UK personnel and property in Iran. Lord Carlile and other members of the HoL applied for JR on the grounds that the decision contrary to their freedom of belief and expression rights under Art 9 and 10. 

Outcome

In areas of foreign policy and national security, predictive assessments of risks by the executive will be given heavy weight, in the absence of contrary evidence, by the courts when conducting proportionality review under the HRA. 

• Lord Sumption → It is well established that the more important the right the more difficult it will be to justify any interference with it. For this purpose Freedom of expression has always been treated as a core right protected by the convention

• proportionality : 

The word deference 

Differnt considerations apply where the question is not what is the constitutional role of the court but what evidential weight is to be placed on the executives judgement, a question on which the human rights dimension is relevant but less significant

Pham v Home Secretary

Facts

Pham was born in Vietnam but acquired British nationality. The Home secretary made an order under s40(2) British Nationality Act 1981 to removes P’s citizenship based on evidence that P had received terrorist training in Yemen. Under s40(4), the home secretary “may not make an order under subsection (2) if he is satisfied that the order would make a person stateless”. When notified of the Home Secretary's decision, the Vietnamese government declined to accept the P was a Vietnamese national. 

 P applied for JR of the deportation order on 2 grounds: 

1. The order was unlawful under domestic law as it infringed s40(4) British Nationality Act 1981 as he would be rendered stateless as a result 

2. The order must be reviewed under administrative standards in EU law such as proportionality as P was an EU citizen by virtue of his British citizenship under Article 20(1) TFEU 

Outcome

The UKSC declined to resolve the question of whether the decision was proportionate because the question of EU law had not been referred properly on appeal from SIAC. However, the outcome at common law would probably be no different.

Common law vs. ECHR vs. EU proportionality

• Lord Carnwath: The proportionality test would apply at common law because the case concerns a “fundamental” (i.e. the removal of citizenship).

  • Lord Mance: “A correspondingly strict standard of judicial review must apply to the power contained in s40(2), and the tool of proportionality is one which would, in my view, and for the reasons explained in Kennedy, be both available and valuable for the purposes of such a review”.
    
    

• Lord Reed – example of common law proportionality?: Where Parliament authorises “significant interferences with important legal rights”, the courts may interpret the statute to require that “any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of that interference: in substance, a requirement of proportionality” (shown in Leech and Daly).

  • Lord Sumption: “But [the courts] have not adopted proportionality generally as a principle of English public law”, which has produced a range of “arbitrary distinctions between essentially similar issues” – this is “hardly satisfactory” (i.e. proportionality would be available in the case of EU rights but not others).

    • To solve this, “although English law has not adopted the principle of proportionality generally, it has for many years stumbled towards a concept which is in significant respects similar” (as in Bugdaycay).

      • “The solution adopted [...] was to expand the scope of reationality review so as to incorporate at common law significant elements of the principle of proportionality”.

      • This was “in substance” a proportionality test, although the court declined to ask whether the decision was proportionate and asked whether a rational minister would think it proportionate.

        • Smith and Grady v UK decided this test was insufficient to protect human rights. 

    • The three differences between rationality and proportionality review identified by Lord Steyn in Daly may be more or less significant depending on the context of the case – in some cases, the range of rational decisions is so narrow as to determine the outcome.

• Lord Reed: This is not to say that even the heightened Wednesbury approach is “identical” to the EU principle of proportionality, but “the application of a test of reasonableness may yield the same outcome as the application of a test of proportionality.”

  • As Lord Slynn in Bank Mellat (No. 2) suggested, “proportionality is not a monolithic principle, expressed and applied in a uniform way”.

    • Like reasonableness review and proportionality under the HRA, the intensity of EU proportionality review “depends on a variety of factors, including the nature of the right which is involved, the seriousness of the interference with that right and the nature of the justification”.

Keyu v Foreign Secretary

Facts

C argued that the Foreign Office should have brought an inquiry into atrocities committed by the Scots Guards in colonial land. The SoS exercised their discretion under s1(1) Inquiries Act 2005 not to order an inquiry into the deaths. C claimed this interfered with the Article 2 right (to life).

• C’s alternative argument (alongside that proportionality should be applied generally): Proportionality should now be “openly adopted” in a human rights context (relying on Craig’s argument that it already applies in the context of fundamental rights).

  • As Lady Hale’s dissent notes, one of the reasons C gave for adopting proportionality instead of Wednesbury was that, in Craig’s view (“The Nature of Reasonableness”), “it is difficult to think of a single real case in which the facts meet this standard”.

Outcome

No ECHR rights were engaged because the killings occurred before UK citizens had the right to petition the ECtHR. The decision was unchallengeable on rationality and proportionality grounds. 

On the rationality argument: D clearly considered the request for an inquiry seriously and rejected it for defensible and relevant reasons, so their refusal cannot be irrational.

On the proportionality argument

• C’s argument: Proportionality should “now be applied in place of rationality in all domestic judicial review cases”.

  • Lord Neuberger: It would “not be appropriate” for a five-justice panel of the court to decide this argument. A decision on this matter is also unnecessary, as the decision would have been found proportional anyway. 

  • Lord Kerr: C would need to demonstrate why proportionality applied where they cannot assert that there has been an interference with their right to have an inquiry. 

• Should the rationality standard be replaced? (Lord Neuberger): This would have “potentially profound and far reaching consequences, because it would involve the court considering the merits of the decision at issue: in particular, it would require the courts to consider the balance which the decision-maker has struck between competing interests [...] and the weight to be accorded to each such interest”. However, this does not involve displacing the DM’s role as the primary decision-maker.

  • The position may be “more nuanced” than C’s argument may suggest – what standard to apply might “depend on the nature of the issue”. 

  • Lord Kerr: “The very notion that one must choose between proportionality and irrationality may be misplaced”. 

    • The difference between them is not as “stark as it is sometimes portrayed”.
      
      

• Issues that must be explored in this debate (Lord Kerr):

  • i) Are irrationality and proportionality “mutually exclusive” and “bluntly opposed”?

  • ii) Does intensity of review operate on a sliding scale, dependent on the nature of the decision, such that “the debate about a ‘choice’ [...] is no longer relevant”?

  • iii) Is there any place in modern administrative law for a “pure” irrationality ground (i.e the traditional Wednesbury formulation)?

  • iv) Does proportionality provide a more structured and transparent means of review?
    
    

• Proportionality where no rights are infringed? (Lord Kerr): Per Lord Reed in Pham, there is a difference between proportionality as a general ground of review and proportionality “as a basis for scrutinising justifications put forward for interferences with legal rights”. 

  • Proportionality and rights: Questioned the “feasibility” of proportionality when there is “no legislative objective and no interference with a fundamental right”, and also no easy way for the “least intrusive means” test to apply.

    • “A more loosely structured proportionality challenge where a fundamental right is not involved”: Quoting Lord Mance in Kennedy, this would involve testing the decision in terms of its “suitability or appropriateness, necessity and the imbalance of benefits and disadvantages”.

    • Applied ^ here: This would require the court to consider whether the government struck the right balance between two “incommensurate values” of protecting finances for little tangible benefit as opposed to exposing historic crimes. 

      • “I have been reluctantly driven to the conclusion that, without an identifiable fundamental right in play, it is difficult to say that the decision not to hold an inquiry is disproportionate”.

Browne v Parole Board [

Facts

C was sentenced to imprisonment and released on licence. He violated the terms of his licence and was imprisoned again. On a parole hearing, the Parole Board did not direct his release. 

• C’s irrationality argument: The risk assessment was irrational because it was based on an alleged assault C committed that had not been properly investigated. 

  • C argued the test “is in fact lower than Wednesbury unreasonableness”, but is instead a question as to whether the conclusion is “seen to be wrong on the evidence with the court conducting a sufficiently rigorous assessment of its own to ascertain the correct conclusion” (as applied in Youssef).

Outcome

The Board did not make an irrational decision because they properly considered the risk posed. Even if proportionality were the correct standard (it is not applicable), the decision would nevertheless still be proportionate.

• On C’s argument that the risk assessment was “wrong”: In order for a court to decide that a multi-factorial risk assessment was wrong, they would need to “redo the exercise from scratch”, but there is no authority that lets a court carry out “full merits review” of the decision, as this would not be to act as an appellate court, but to exercise “precisely the same fact-finding powers as the original tribunal”.
  
  

• On C’s argument that the risk assessment was disproportionate: Proportionality is not the relevant test (i.e. the question “simply cannot arise”) because:

  • The questions of proportionality are “simply inapplicable to a risk assessment. The questions are concerned with a decision: they are a way of testing whether the end justifies the means”, so are not applicable to evidence in reaching that decision.

    • An assessment of high risk of causing serious harm cannot be necessary for an aim or strive to strike a fair balance.

  • The risk assessment here is a prediction of the future, so the proportionality questions cannot easily be applied. 

    • Lord Sumption in Carlile suggested such assessments would not be reviewable on proportionality grounds.

  • Why rationality was appropriate: The “relatively high threshold of irrationality” is appropriate when reviewing the Parole Board’s decisions, as the Board has a “judicial function”, “specialist expertise” and “inquisitorial role”. 

Obiter 

• The basic test to be applied in JR cases involving neither EU law nor Convention rights “remains that of rationality”, with the only modification being that, “in cases involving fundamental rights”, rationality is applied with “the most anxious scrutiny” (Brind; Smith).

  • “These authorities make it plain that proportionality is not a part of English domestic law (that is to say, in cases which do not involve EU law or Convention rights).”

  • “For now at any rate, the common law test for judicial review is based on the underlying principle of rationality”. Although there is “some support” for a proportionality test in cases concerning fundamental right (Kennedy), a “more widespread change” would require the UKSC to overrule Brind and Smith.
    
    

• C accepted that he needed to show that, if proportionality were the right test, it would lead to a different result. However, there is “often no great difference” (as here).

R (DA) v Secretary of State for Work and Pensions

Facts

Housing benefits had been reduced under the revised welfare benefit cap by the Welfare Reform and Work Act 2016. Parliament reduced the cap on welfare benefits to £23,000 (London) and £20,000 elsewhere. Single parents were exempt from the revised cap if they worked 16 hours each week (the aim being to incentivise work). C brought JR, challenging the lawfulness of the revised cap as it amounted to unlawful discrimination against single parents with children under Article 14 read with Article 8.

Outcome

Even if the case in other respects met the tests for discrimination under Article 14, it was not manifestly without reasonable foundation (MWRF) to fail to exempt them from the operation of the cap (if they do not work 16 hours per week).

• Lord Wilson (the test to be applied) in benefits cases: Where proportionality involves controversial issues of social and economic policy, the determination of those issues is for democratically-elected institutions, so “unless manifestly without reasonable foundation, their assessment should be respected”.

  • On the burden: This is for C to establish – when the state justifies the adverse treatment, it establishes justification for it unless C demonstrates it was manifestly without reasonable foundation. But the burden is “more theoretical than real”, as a court should proactively examine whether the foundation is reasonable. 

  • Applied: This present case is principally about economic policy. The decision was not MWRF because the government did evaluate the likely impact of the cap on single parents and believed there were better long-term outcomes for children in households where the adult works. 

    • The government had thus justified its approach.

R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26

Facts

s13 Welfare Reform and Work Act 2016 meant a family making a new claim would not be awarded child tax credit if they were already receiving child tax credit for two or more children (the two-child limit). C claimed that their Article 8 (right to respect for their family and private life) and Article 12 (right to found a family) and Article 14 read with Article 8 (to the enjoyment of the right to respect for their private and family life without discrimination). Women were more likely to be affected than men were – C claimed the benefit was designed to discourage women from having 2+ children. 

Outcome

The two-child limit does discriminate between households – the question is whether the difference in treatment is justified. The difference in treatment is justifiable: the grounds of discrimination (number of children) is not a ground of treatment requiring very weighty reasons and the judgment is one of policy, to which Parliament’s view must be given respect.

• The test to be applied: UK courts have applied a similar approach to the ECtHR – where the ECtHR would allow a wide MoA to the legislature’s policy choice, UK courts allow the DM a “discretionary area of judgment” (under reasonableness or ECHR proportionality).

  • i) The court distinguishes between differences of treatment on certain grounds, where race, gender, religion, etc. are seen as more serious and calling for a strict test of justification and grounds (i.e. age) which are subject to less intensive review. 

    • The “general rule” is that “very weighty reasons” are required to justify discrimination on a suspect ground.

  • ii) A “wide margin is usually allowed to the state when it comes to general measures of economic or social strategy” (where the MWRF test is applied).

    • The MWRF test is not necessarily determinative of the outcome, as a number of other factors may be relevant (i.e. in cases of suspect grounds, were there very weighty reasons?)

  • iii) A wide margin of appreciation may be available even where there is different treatment on the “suspect grounds” where the state is taking steps to eliminate a historical inequality or in times where there is no consensus on evolving rights.

• Applied: “The assessment of proportionality, therefore, ultimately resolves itself into the question as to whether Parliament made the right judgment” – there are no legal standards by which the court can decide the balance between the interests of children in receiving state support and the interests of the public in ensuring parents pay for their children. 

  • “The answer to such a question can only be determined, in a Parliamentary democracy, through a political process which can take account of the values and views of all sections of society”. 

  • The democratic credentials of this measure “could not be stronger”: there is no basis consistent with the SoP on which the court could overturn this judgment.