The Divisional Court’s judgment in the David Miranda case—Miranda v Secretary of State for the Home Department [2014] EWHC 255 (Admin)—has already attracted a considerable amount of comment, including by Fiona de Londras, Rosalind English, Colin Murray, Carl Gardner and Jake Rowbottom. I want to highlight only one aspect of Laws LJ’s judgment (with which Ouseley and Openshaw JJ agreed), concerning the nature of the proportionality test. Laws LJ referred to the “recent restatement” of that test in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39, in which Lord Sumption said:
[T]he question depends on an exacting analysis of the factual case advanced 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) whether it is rationally connected to that objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
Laws LJ noted that Lord Sumption’s stage (iv), concerning whether “fair balance” has been struck, went further than the version of the proportionality test set out in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, and which was accorded authoritative status in early cases decided under the Human Rights Act 1998. Laws LJ pointed out that the inclusion of the fair-balance question within Lord Sumption’s scheme reflected the approach adopted by the House of Lords in R v Secretary of State for the Home Department, ex parte Razgar [2004] UKHL 27 and Huang v Secretary of State for the Home Department [2007] UKHL 11. The fair-balance test, said Laws LJ, must be “approached with some care” because of the nature of the question which that stage of the proportionality analysis requires the court to confront:
It appears to require the court, in a case where the impugned measure passes muster on points (i) – (iii), to decide whether the measure, though it has a justified purpose and is no more intrusive than necessary, is nevertheless offensive because it fails to strike the right balance between private right and public interest; and the court is the judge of where the balance should lie. I think there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case.
Laws LJ is surely right about this. As I have argued elsewhere, one of the strengths of the proportionality test is that it lays bare the different tasks which courts must perform when engaging in substantive judicial review. There is, as Laws LJ observes, a difference between the fair-balance question and other elements of the proportionality test. For instance, at least in its strict form, the necessity question reduces to an assessment of the relative efficacy of measures having differing levels of impact upon the right—the obligation of the decision-maker being to select the least-restrictive of those measures that are capable of delivering the public-policy objective that is in play. This is ultimately a technical analysis that requires predictions to be made about the likely effectiveness of rival ways of addressing the relevant issue. If this analysis invites deference on the part of the reviewing court, then the reason for such deference—and hence its proper extent—lies in an understanding of the relative institutional competence of the court and the decision-maker.
The fair-balance question is different. That is so because it calls upon the court to compare matters—such as national security and journalistic freedom—that are, in one sense, incommensurable. Until each of the matters that are in tension with one another are invested with value by the court undertaking the review, comparison is rendered impossible by their underlying incommensurability. It follows that fair-balance review calls for the making, by the reviewing court, of value judgments in a way that (say) necessity review does not. Indeed, the judgment in this case—which considers, at some length, the senses in and extent to which journalistic freedom ought to be invested with particular constitutional value—is evidence of precisely this.
This is not to suggest that there is no place for fair-balance review: the fact that a given measure is the least-restrictive way of securing some competing policy objective, and is therefore necessary, cannot be determinative of its proportionality, given the possibility that the public-policy gain may be tiny in comparison with the human-rights loss. It does, however, call for caution, as Laws LJ recognises, and for recognition of the legitimate role that deference, exhibited on democratic grounds, should play when the courts engage with the fair-balance question. Whatever else one might make of it, then, the Miranda judgment is to be welcomed on the ground that it properly appreciates the diversity of judicial tasks which applying the proportionality test calls for, and, as a result, lays the foundations for a more structured and principled approach to deference in such cases.
Public Law for Everyone 