Judicial review: proportionality

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Introduction

In the last set of notes we looked at how proportionality review under the Human Rights Act might be different to the ‘other’ form of substantive scrutiny we encounter in judicial review – Wednesbury unreasonableness

  • Remember, such review is ‘substantive’ because we are not merely assessing legality conceived of narrowly as excess of jurisdiction etc., but the substance of the decision

We identified that Wednesbury unreasonableness is a high threshold to meet, and that proportionality review may therefore be preferable because it provides for greater scrutiny by the courts

  • Proportionality would also be available in more cases than Wednesbury review - but only where qualified convention rights are ‘engaged.’

Proportionality

These notes define proportionality review more precisely

Remember that the ‘grounds’ for such review is provided for by section 6(1) of the Human Rights Act 1998: “it is unlawful for a public authority to act in a way that is incompatible with a Convention right.”

The qualified rights (Articles 8-11 ECHR) have proportionality review ‘built-in’ to them. In other words, these rights may lawfully be infringed upon by the State, providing the State does so proportionately.

Other rights, which are not qualified, can be derogated from (‘suspended’) in ‘times of war or other public emergency threatening the life of the nation.’

De Freitas v Permanent Secretary of Ministry of Agriculture [1999] (PC)

Note, this is not a Human Rights Act case, but forms the basis for thinking about proportionality review under the Human Rights Act

In this case, a civil servant was pursued by the State for participating in a peaceful demonstration against government corruption in Antigua. Under the Constitution, freedom of expression and assembly is guaranteed whilst permitting certain restrictions that were necessary in the public interest. A civil service code banned civil servants from engaging in any form of political controversy.

It was held that the restraint imposed on civil servants amounted to more than what was necessary to pursue the public interest, and consequently the claimant’s constitutional right has been unlawfully infringed

Endorsing dicta from other Commonwealth jurisdictions, Lord Clyde (giving the judgment of the court) defined the basis or ‘test’ for proportionality review thus:

  • “whether i) the legislative objective is sufficiently important to justify limiting a fundamental right; ii) the measures designed to meet the legislative objective are rationally connected to it; and iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective

De Freitas as discussed in Daly

Lord Steyn endorsed the De Freitas test in this in R (Daly) v Secretary of State for the Home Department [2001] and offered further commentary on what proportionality mean:

  • He said that the limitation of the right must have been “necessary in a democratic society, in the sense of meeting a pressing social need” and the interference with the right must have been “really proportionate to the legitimate aim being pursued”

Huang v Secretary of State for the Home Department [2007]

Two claimants—one from China, the other from Iran—sought indefinite leave to remain (in the first case) and asylum (in the second case). The Home Office rejected both applications, citing the UK Government’s new policy on immigration. What both cases had in common is the link each of the claimants had to the UK by virtue of close family members residing here - in Huang’s case, she was a dependant of her daughter who lived here

One case was successfully appealed to an adjudicator, but both claimants failed in their bids to gain access to the UK when an appeal was heard by the Immigration Appeal Tribunal. On appeal to the Court of Appeal, the first claimant won and the second had the case remitted to the tribunal. On appeal to the House of Lords, both claimants won to the extent that their appeal would be re-heard by the tribunal on a new basis

The legal issue for the courts was whether - and to what extent - the decision-makers were obliged to take into account the right to family life under Article 8 of the ECHR in formulating and applying immigration policy and procedures

In considering what the proper basis is for proportionality review, Lord Bingham considered the decision in de Freitas (at [19]):

  • “The [de Freitas] formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes, from which this approach to proportionality derives. This feature is the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted.”

Proportionality after Huang

The three-part de Freitas test still applies:

  • 1) Is the public objective sufficiently important to justify limiting a right?
  • 2) Are the measures adopted rationally connected to the public objective?
  • 3) Are the measures adopted no more that what is necessary to achieve the public objective?

BUT ALSO, following Huang, there appears to be a fourth question to ask:

  • 4) Has a fair balance been struck between the rights of the individual and the public/societal interests?

Thus, proportionality review has become more sophisticated in that it not only looks at the ‘means and ends’ of a legislative or other objective, but it appraises the fairness of individual and societal interests being weighed against one another

R (Begum) v Denbigh High School Governors [2006]

The claimant, a girl of Muslim faith, attended a school outside her catchment area. Although the school admitted mostly students of Muslim faith, it was not a faith school, admitting students of many different faiths. The school had a school uniform policy which provided for three options for girls - one of which was developed in consultation with the local Muslim community

One day, the claimant arrived at school in a ‘jilbab,’ and was told to go home and come back in school uniform. She didn’t go back to that school and spent around two years without any formal education at all. Although she later moved schools, she sought judicial review of the decision of the school not to admit her wearing the jilbab, in contravention of Article 9 ECHR on freedom of religion

The High Court rejected her claim, but she successfully appealed to the Court of Appeal. On appeal to the House of Lords, the School successfully defended their decision

  • The school, by devising a school uniform policy that they were legally empowered to devise and enforce, was pursuing the objectives of cohesion and harmony - which was a lawful objective

In assessing whether the policy was a proportionate one in the sense that it did not disproportionality infringe upon the claimant’s right under Article 9, the court took into account:

  • That the school had devised its policy in consultation with the Muslim community;
  • That the school was pursuing legitimate objectives in imposing the policy;
  • That the refusal to admit the student without school uniform did not amount to a deprivation of education (the student could either wear the uniform or change schools);
  • That the school was transparent about its uniform policy, and this would be known to any prospective student;
  • That, in weighing up the interests of the claimant and those of the school (including the objectives of cohesion and harmony), the limitation on the Article 9 right was justified

A and Others v Secretary of State for the Home Department [2004] (Belmarsh)

Note, this case is also referred to in the literature as the ‘Belmarsh’ judgment or A and Others No.1

Following the terrorist attacks on the US in September 2001, Parliament enacted the Anti-Terrorism, Crime and Security Act 2001. Section 23 provided for the executive detention of foreign suspects of terrorism with limited judicial oversight

Article 5 ECHR provides for a right to liberty save in a finite number of circumstances

  • The precision of Article 5 (i.e. the fact that liberty can only be deprived for reasons X, Y, and Z) means that that Article 5 is not ordinarily subject to proportionality review
  • As such, Article 5 works as a ‘threshold’ – a certain amount of unauthorised detention would amount to a breach of Article 5

The 2001 Act would require a derogation from Article 5 ECHR ‘in time of war or other public emergency’ (Article 15 ECHR).

  • Indeed, the Government, as a matter of international law, notified the Council of Europe that it was derogating from Article 5
  • As a matter of UK domestic law, the Secretary of State made an order under s.14 HRA to give effect to the derogation domestically

9 foreign nationals, who had been imprisoned under these executive (not judicial) powers sought to challenge their detention in the courts

  • The bases for doing so were extremely limited: the Special Immigration Appeals Commission (a tribunal comparable to the High Court with additional powers to hear evidence in secret, and without the presence of the defendant) deferred to the Government on this national security matter

The case made it to the House of Lords, who sat as a bench of 9 Law Lords (rather than the usual 5)

Belmarsh: House of Lords decision

The court had to decide whether there was a ‘war or other public emergency threatening the life of the nation’ as required by Article 15, and if so, whether the measures adopted were ‘strictly required by the exigencies of the situation’ (the proportionality requirement)

The majority decided to grant a margin of appreciation (or deference) to the Government in respect of their assessment of whether there was a war or other public emergency

However, the House of Lords undertook their proportionality review most energetically

  • Because the 2001 Act dealt with the threat from foreign suspects of terrorism only, the measures adopted were not meeting the legislative purpose of counter-terrorism → this is because the Act was silent on ‘home-grown’ terrorist suspects (British nationals). Also, the Act provided the right of those detained to leave the United Kingdom (since it was a power founded on immigration law, not criminal law)

Lord Hope: “Section 23 of the 2001 Act is not rationally connected to the legislative objective. If the threat is as potent as the Secretary of State suggests, it is absurd to confine the measures intended to deal with it so that they do not apply to British nationals, however strong the suspicion and however grave the damage it is feared they may cause. There is also the point that foreign nationals who present the same threat are permitted, if they can safely do so, to leave this country at any time. Here too there is a clear indication that the indefinite detention of those who remain here as a means of countering the same threat is disproportionate”

The House of Lords couldn't quash the 2001 Act as Parliament is ‘sovereign’

  • BUT, the court did quash the derogation order made under s.14 HRA - perhaps making the issue somewhat more pointed and requiring urgent redress by Parliament
  • The court issued a declaration of incompatibility in respect of s.23 of the Act in that it deprived Article 5 rights in a way that was disproportionate and discriminatory (Article 5 and 14 ECHR)

Lord Hoffman, however, took a slightly different approach:

  • He did not want to treat the matter as one of proportionality – as this would suggest, perhaps, that all that need be done is to extend the powers of executive detention to British nationals too
  • Rather, he thought that there was no such ‘war or other public emergency threatening the life of the nation,’ and on that basis, the derogation order should be quashed

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