Wednesbury and Proportionality — Where are We Now?

In preparing for next Term’s lectures on substantive review, I have been reviewing some of the recent English material on proportionality and reasonableness. Here are some thoughts.

A debate has long rumbled on whether proportionality should replace Wednesbury altogether as the applicable standard for substantive review. In R (Association of British Civilian Internees (Far East Region)) v. Secretary of State for Defence [2003] QB 1397, the Court of Appeal appeared to think that Wednesbury’s days were numbered, but that the House of Lords (now the Supreme Court) would have to perform Wednesbury’s “burial rites”.

However, the Supreme Court recently refused to perform the burial rites in Keyu v. Foreign Secretary [2015] 3 WLR 1665. For Lord Neuberger of Abbotsbury, moving from rationality to proportionality would have “potentially profound and far-reaching consequences” (at para. 133), such that “[i]t would not be appropriate for a five-Justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms and very wide in applicable scope. Accordingly, if a proportionality challenge to the refusal to hold an inquiry would succeed, then it would be necessary to have this appeal (or at any rate this aspect of this appeal) re-argued before a panel of nine Justices” (at para. 132). He went on to hold, however, that even on the application of a proportionality test, the challenge to a refusal to order an inquiry into the killing of 24 unarmed civilians by the Scots Guards in what is today Malaysia would fail: “the relevant members of the executive have given coherent and relevant reasons for not holding an inquiry, including expressing a justifiable concern that the truth may not be ascertainable, and a justifiable belief that, even if the appellants’ expectations to the contrary were met, there would be little useful that could be learned from an inquiry so far as current actions and policies were concerned” (at para. 136). Contrast Baroness Hale of Richmond’s conclusion that the refusal to hold an inquiry was irrational:

The reasons given by the Secretaries of State focussed on what might now be learned of contemporary relevance, either to the organisation and training of the army or to promoting race relations, from conducting an inquiry. They did not seriously consider the most cost-effective form which such an inquiry might take. They did not seriously consider the “bigger picture”: the public interest in properly inquiring into an event of this magnitude; the private interests of the relatives and survivors in knowing the truth and seeing the reputations of their deceased relatives vindicated; the importance of setting the record straight – as counsel put it, balancing the prospect of the truth against the value of the truth (at para. 312).

But is this irrationality, in the sense of Wednesbury type 2, or a failure to take into account relevant considerations, in the sense of Wednesbury type 1?

Typically, partisans in the substantive review debate advocate either that proportionality should sweep the board (e.g. Craig, “Proportionality, Rationality and Review” [2010] New Zealand Law Review 265;) or that proportionality and Wednesbury type 2 (usually in a modified form) should both be retained and kept distinct (e.g. Daly, A Theory of Deference in Administrative Law, chapter 5). Perhaps surprisingly, the end result might be a merger of Wednesbury type 2 and proportionality.

The catalyst is the apparent acceptance by the Supreme Court of Professor Craig’s view of the conceptual similarity between Wednesbury type 2 and proportionality:

Both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context. The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance or benefits and disadvantages.

Kennedy v Charity Commission (Secretary of State for Justice intervening) [2015] AC 455, at para. 54, per Lord Mance.

This was taken further in Pham v. Home Secretary [2015] 1 WLR 1591. At para. 60, it was said of Lord Mance’s reasons in Kennedy that “a majority of this court endorsed a flexible approach to principles of judicial review, particularly where important rights are at stake”. Lord Mance himself (writing for a group of four judges on a seven-judge court) found it, in the context of a decision stripping a British national of citizenship (with the corollary that he would also lose the benefits of being a European Union national), “improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or whether it was also required to be conducted by reference to a principle of proportionality derived from Union law” (at para. 98).

Lord Sumption, with whom three other judges agreed, was more expansive. He noted that the use of proportionality in cases involving human rights and EU law but not domestic law produced “some rather arbitrary distinctions between essentially similar issues” (at para. 104. See also Harlow and Rawlings, Law and Administration, 3rd ed. (Cambridge University Press, Cambridge, 2009), at p. 677, Fig. 15.5 “Spaghetti junction”). Here, for instance, the citizenship decision would be reviewed on domestic judicial review grounds, but if it had an EU law aspect would fall to be considered in accordance with the EU principle of proportionality. Nonetheless, despite the failure to embrace proportionality, English law “has for many years stumbled towards a concept which is in significant respects similar, and over the last three decades has been influenced by European jurisprudence even in areas of law lying beyond the domains of EU and international human rights law” (at para. 105).

Significantly, in commenting on Lord Steyn’s discussion of Wednesbury and proportionality in Daly, Lord Sumption said:

It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject-matter. The differences pointed out by Lord Steyn may in practice be more or less significant depending on the answers to these questions. In some cases, the range of rational decisions is so narrow as to determine the outcome (at para. 107).

In the instant case, there were very weighty considerations at both ends of the “sliding scale”, the right to nationality on the one hand and the potential threat to national security posed by Pham (allegedly an Al Qaeda-trained extremist) on the other hand (at para. 108). What will ultimately matter, Lord Sumption seems to suggest, is “the strength of the justification or the breadth of the decision-maker’s margin of judgment” (at para. 109).

This chimes with a comment of Lord Neuberger of Abbotsbury MR (as he then was), made in the EU law context:

The breadth of the margin of appreciation in relation to any decision thus depends on the circumstances of the case and, in particular, on the identity of the decision-maker, the nature of the decision, the reasons for the decision, and the effect of the decision. Further, because the extent of the breadth cannot be expressed in arithmetical terms, it is not easy to describe in words which have the same meaning to everybody, the precise test to be applied to determine whether, in a particular case, a decision is outside the margin. It is therefore unsurprising that in different judgments, the same expression is sometimes used to describe different things, and that sometimes different expressions are used to mean the same thing.

R. (Sinclair Collis Ltd,) v. Secretary of State for Health [2012] QB 394, at para. 200, cited by Lord Carnwath in R. (Rotherham Metropolitan Borough Council) v. Secretary of State for Business, Innovation and Skills [2015] UKSC 6.

On this emergent view, there is no great difference between type 2 Wednesbury and proportionality. Both involve questions of weight and balance, which fall to be assessed in the context of particular factual and legal matrices that create broader or narrower margins of appreciation, depending on the circumstances. Question, though, how useful all of this is. It is all very well to repeat the mantra that ‘in law context is everything’. It undoubtedly is. But does context not need to be cabined in some way, in order to guide lower courts, lawyers and litigants? And are we any closer to answering one of the questions with which we began, viz., what makes a decision unreasonable? On this, some Canadian material may be helpful, because the concept of a “range of reasonable outcomes” is now central to Canadian administrative law: see e.g. Workplace Health, Safety and Compensation Commission v. Allen, 2014 NLCA 42., at paras. 41-42 and 67-69; Delios v. Canada (Attorney General), 2015 FCA 117, at paras. 21-28; Daly, “Struggling Towards Coherence in Canadian Administrative Law: Recent Cases on Standard of Review and Reasonableness” (2017) McGill Law Journal (forthcoming), at pp. 21-24.

But the book is not yet closed. As Lord Carnwath, one of the Court’s leading public lawyers and someone with significant experience of European law and public law as a practitioner and judge, commented in Kennedy: “I remain unpersuaded that domestic judicial review, even adopting the most flexible view of the developing jurisprudence, can achieve the same practical effect in a case such as the present as full merits review under…the HRA” (at para. 267). See also Lord Reed’s doubts in Pham, at para. 115, “that the Wednesbury test, even when applied with “heightened” or “anxious” scrutiny, is identical to the principle of proportionality as understood in EU law, or as it has been explained in cases decided under the Human Rights Act 1998”.

For the moment, we shall have to leave the last word with Lord Kerr:

Final conclusions on a number of interesting issues that arise in this area must await a case where they can be more fully explored. These include whether irrationality and proportionality are forms of review which are bluntly opposed to each other and mutually exclusive; whether intensity of review operates on a sliding scale, dependent on the nature of the decision under challenge and that, in consequence, the debate about a ‘choice’ between proportionality and rationality is no longer relevant; whether there is any place in modern administrative law for a ‘pure’ irrationality ground of review ie one which poses the question, ‘could any reasonable decision-maker, acting reasonably, have reached this conclusion’; and whether proportionality provides a more structured and transparent means of review.

Keyu v. Foreign Secretary [2015] 3 WLR 1665, at para. 278.

This content has been updated on November 28, 2016 at 22:59.