Proportionality & Rights (L9)

Question 1

What did Lord Bridge say in Bugdacay v SoS for the Home Department [1987] AC 514 about fundamental rights pre-HRA?

Answer 1

“… the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”

Saying that Wednesbury irrationality test is not actually a uniform standard of review.
Sometimes it enables government decisions to be scrutinised more strictly, and when important human rights are at stake they should be scrutinised more strictly than when they’re not, hence anxious scrutiny is more appropriate.

Question 1

What is proportionality?

Answer 1

Proportionality is a ground for review of discretionary decision-making by executive bodies.
It can also be used to review legislation (except Acts of the UK Parliament).
In the Diplock categorisation, it is a form of illegality.
It is primarily used to protect fundamental rights.

Question 2

What did Simon Brown LJ say in R v Ministry of Defence, ex parte Smith [1996] QB 517 about anxious scrutiny/the enhanced Wednesbury test?

Answer 2

“Scrupulous” – “the court will not, for example, be inclined to overlook some perhaps minor flaw in the decision-making process, or adopt a particularly benevolent view of the minister’s evidence, or exercise its discretion to withhold relief”.

Question 3

What was said in R v Secretary of State for the Home Department ex parte Brind, [1991] 1 AC 696 about reasons for infringing on fundamental rights?

Answer 3

“In a field which concerns a fundamental human right . . . close scrutiny must be given to the reasons provided for interference with that right.”

Question 4

What was said in R v Secretary of State for the Home Department ex parte Brind, [1991] 1 AC 696 about the need for justification?

Answer 4

“…the courts cannot escape from asking themselves whether a reasonable Secretary of State, on the material before him, could reasonably conclude that the interference with freedom of expression which he determined to impose was justifiable.”

Question 5

What was the test proposed by David Pannick QC and accepted by Sir Thomas Bingham MR in R v Ministry of Defence ex p Smith [1996] QB 517.

Answer 5

‘The more substantial the interference with human rights, the more the courts will require justification before it is satisfied that the decision is reasonable’.

Question 6

What was held about conforming with the ECHR in Smith v and Grady v UK (1999) 29 EHRR 493?

Answer 6

Even the possibility of heightened scrutiny in cases involving fundamental rights was held insufficient to comply with the ECHR.

Investigation into and subsequent discharge of personnel from the Royal Navy on the basis they were homosexual was a breach of their right to a private life under Article 8 ECHR.
The case led to new Armed Forces Code of Social Conduct with no restriction on sexual orientation.

Question 7

What does s3(1) of the HRA provide?

Answer 7

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

Question 8

What does s6(1) of the HRA provide?

Answer 8

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

Question 9

How does s6(2) of the HRA limit s6(1)?

Answer 9

S6(1) does not apply where the public authority could not have acted differently subject to primary legislation.
Sovereignty of parliament!
This proviso is rarely able to save conflicting subordinate legislation because most such powers are very broad!

Question 10

What does HRA s2(1) say about ECtHR precedent?

Answer 10

UK courts “must take into account” decisions of ECtHR so far as “it is relevant to the proceedings”.

Question 11

How has the HRA impacted judicial review?

Answer 11

In effect, breach of convention rights has become a ground of judicial review.
The court is empowered to declare unlawful individual administrative decisions and subordinate legislation, but not primary legislation (s4 declaration of incompatibility).

Question 12

The HRA covers actions of whom?

Answer 12

HRA covers decisions and actions of all public bodies:

s6(1): ‘In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.’

Question 13

What does s29 of the Scotland Act 1998 provide?

Answer 13

(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.
(2) A provision is outside that competence so far as … —
…
(b) it relates to reserved matters,
…
(d) it is incompatible with any of the Convention rights or with [EU] law.

Goes further than the HRA because s29 allows challenges to ‘primary legislation’.
Are Acts of the Scottish Parliament primary legislation?

Question 14

What does s57 of the Scotland Act 1998 provide?

Answer 14

S57:
“(2) A member of the [Scottish Government] has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with [EU] law.
(3) Subsection (2) does not apply to an act of the Lord Advocate—
(a) in prosecuting any offence, or (b) in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.”

Only applies to Gov members, not other public authorities.
Proviso is narrower than the one in s6.

Question 15

What effect has the Scotland Act 1998 had on judicial review?

Answer 15

Provides an additional basis for challenging decisions and actions for breach of convention rights.
The court is empowered to declare asps unlawful.
S29 applies only to asps and s57 applies only to decisions and actions of members of the Scottish Government.

Question 16

What is the proportionality test as set out in Bank Mellat v Her Majesty’s Treasury (No 2) [2014] AC 700; [2013] UKSC 39, at para 20?

Answer 16

In deciding whether a qualified right has been infringed, the court proceeds as follows:
“… the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine:
1. whether its objective is sufficiently important to justify the limitation of a fundamental right;
2. whether it is rationally connected to the objective;
3. whether a less intrusive measure could have been used; and
4. whether, having regard to these matters and to the severity of 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 inevitably overlap because the same facts are likely to be relevant to more than one of them.”

Question 17

How does R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 tell us about the strictness of proportionality review?

Answer 17

“May require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is in the range of reasonable or rational decisions”.
“May go further than the traditional grounds of review in as much as it may require attention to be directed to the relevant weight accorded to interests and considerations.”
“Even the heightened scrutiny test developed in ex parte Smith is not necessarily appropriate to the protection of human rights.”

Question 18

What is important to note about the Daly case when applying it to HRA cases?

Answer 18

Daly is a pre-HRA case but the dicta around intensity of review have been accepted as applying to HRA cases.

Question 19

When might courts defer MORE in fundamental rights cases?

Answer 19

Where a right is qualified and requires a balance to be struck.
Where issues involve questions of social or economic policy.
Where an issue is within actual or potential expertise of democratic government.
Where an issue is within constitutional responsibility of democratic government.
Where it involves an Act of Parliament.

Question 20

When might courts defer LESS in fundamental rights cases?

Answer 20

Where a right is expressed in unqualified terms.
Where an issue is of high constitutional importance or courts well placed to assess need for protection.
Where an issue is within the expertise of the courts.
Where an issue is within the constitutional responsibility of the courts.
Where an issue involves a decision of the executive or a subordinate measure.

Question 21

How does Lord Bingham in Huang v Secretary of State for the Home Department [2007] UKHL 11 refer to a term other than ‘deference’?

Answer 21

at [16].
“Performance of the ordinary judicial task of weighing up the competing considerations… according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice”.

Question 22

How does Lord Sumption in R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department [2015] UKSC 6 refer to a term other than ‘deference’?

Answer 22

at [22].
“Overtones of cringing abstention in the face of superior status… the assignment of weight to the decision-maker’s judgment has nothing to do with deference in the ordinary sense of the term. It has two distinct sources. The first is the constitutional principle of the separation of powers. The second is no more than a pragmatic view about the evidential value of certain judgments of the executive, whose force will vary according to the subject matter”.

Question 23

What does R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 say about common law rights?

Answer 23

Case made clear that proportionality was the test that would apply under HRA.
However, case itself decided in relation to common law rights protecting confidentiality of legal correspondence.
Adopted a test that was – in substance – a proportionality test, albeit did not use the same structure.
“In my opinion the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners… I have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review.” – Lord Bingham [21 – 23].

Question 24

What does Lord Cooke say in HM Treasury v Ahmed [2010] UKSC 2 about common law rights?

Answer 24

at [31].
“To essay any list of these fundamental, perhaps ultimately universal, [common law] rights is far beyond anything required for the purpose of deciding the present case. It is enough to take the three identified by Lord Bingham: in his words, access to a court; access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. As he says authoritatively from the woolsack, such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. The point that I am emphasising is that the common law goes so deep.”

Question 25

What does Lord Mance say in Pham v Secretary of State for the Home Department [2015] UKSC 19 about common law rights?

Answer 25

at [98].
“Removal of British citizenship… is, on any view, a radical step, particularly if the person affected has little real attachment to the country of any other nationality that he possesses and is unlikely to be able to return there. A correspondingly strict standard of judicial review must apply to any exercise of the power… and the tool of proportionality is one which would, in my view and for the reasons explained in Kennedy v Information Commissioner [2014] 2 WLR 808 be both available and valuable for the purposes of such a review… It is therefore 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”.

Question 26

What can the proportionality test be used to protect?

Answer 26

Rights protected by retained EU law.
Rights protected by the ECHR.
Rights recognised by the common law.

Should it become a generally available ground of review, i.e. should it apply to all administrative decisions?

Question 27

How does R (on the application of Keyu) v Secretary of State for Foreign and Commonwealth Affairs demonstrate potential extending of proportionality review?

Answer 27

“The appellants contend that the four-stage test identified by Lord Sumption and Lord Reed JJSC in Bank Mellat v HM Treasury (No 2) [2014] AC 700, 770—771, 790—791, paras 20, 74 should now be applied in place of rationality in all domestic judicial review cases.”
“It 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” (Lord Neuberger, [132]).

Question 28

How do Lord Carnwath’s obiter comments in R (Youssef) v Secretary of State for the Foreign and Commonwealth Office demonstrate potential extending of proportionality review?

Answer 28

“An authoritative review in this court of the judicial and academic learning on the issue… might aim for rather more structured guidance for the lower courts than such imprecise concepts as “anxious scrutiny” and “sliding scales”’ [55].