The Supreme Court’s judgment in R (Carlile) v Secretary of State for the Home Department  UKSC 60 (press summary) (judgment) raises some interesting and significant points about the role of the courts when applying the proportionality test in cases concerning interferences with qualified human rights. The central question was whether the Home Secretary had breached the right to freedom of expression in Article 10 of the European Convention on Human Rights. The allegation that she had done so stemmed from her decision to refuse to allow Maryam Rajavi — a “dissident Iranian politician” who had close links to a group that used to be proscribed in the UK under the Terrorism Act 2000 — to enter the UK in order to address British parliamentarians.
The Home Secretary sought to justify this decision on the ground that Rajavi’s presence in the UK would “not be conducive to the public good for reasons of foreign policy and in the light of the need to take a firm stance against terrorism”. More specifically, the Home Secretary argued that permitting Rajavi to enter the UK would be perceived as a “deliberate political move against Iran” by its government; this, it was said, risked destabilising relations between the UK and Iran which, in turn, would be detrimental to the effective conduct of foreign policy and the advancement of UK national-security interests. The Supreme Court held by a 4-1 majority that the Home Secretary’s decision was lawful.
The UK government’s assertion that allowing Rajavi to enter the UK would damage relations with Iran and thereby compromise the UK’s capacity to advance foreign-policy and national-security objectives was central to the case and to the Supreme Court Justices’ judgments. Indeed, a great deal of judicial ink was spilled considering the extent to which courts should be prepared closely to evaluate executive assessments of the foreign-policy and national-security implications of decisions impacting upon human rights — and, conversely, the extent to which reviewing courts ought to defer to such assessments. It is therefore important at the outset to be clear about how Iran’s likely reaction to a decision to allow Rajavi to enter the UK was relevant to the proportionality of the decision not to allow her to do so. Three possibilities present themselves.
First, the likelihood and implications of an adverse Iranian reaction was relevant to the question whether a legitimate competing interest such as national security — potentially capable of justifying an interference with freedom of expression — was in play under Article 10(2). If there were no measurable risk of the UK’s relationship with Iran being damaged, no prospect of collateral damage to the UK’s foreign-policy and related national-security interests would arise and the interference with the Article 10 right would not be justified in even prima facie terms.
Second, the nature of any Iranian reaction was relevant to the necessity question. Was it necessary to exclude Rajavi in order to avoid an Iranian reaction that would destablise the UK’s bilateral relationship with Iran in a way that would be detrimental to the UK’s national-security interests? This turns upon a relative assessment of likely Iranian reactions to different modes of treatment of Rajavi, and involves asking whether the relevant national-security interests could have been protected by means less draconian than prohibiting Rajavi from entering the UK. For instance, it it could be shown that the potential damage to UK-Iranian relations resulting from permitting Rajavi to enter the UK could have been offset through diplomatic dialogue, exclusion would not have been necessary. However, making fine, predictive assessments of this nature inevitably requires detailed knowledge of Iranian sensitivities and raises questions about the relative institutional competence of the courts and the executive.
Third, the likely reaction of Iran is relevant to the fair-balance question. If the UK were to permit Rajavi to enter and address parliamentarians, how damaging to national security would the consequences of Iran’s likely reaction be, and would those negative consequences be sufficiently weighty to justify the restriction of freedom of expression that would result from excluding Rajavi from the UK? This turns partly upon a predictive assessment of the likely nature and force of any Iranian reaction, but it also turns upon a value judgement concerning the relative importance ascribed to the competing matters in play. Would a given amount of damage to UK-Iranian relations — and a given amount of collateral damage to the UK’s national-security interests — be sufficient to justify sacrificing a given amount of freedom of expression by preventing in-person meetings between Rajavi and UK parliamentarians? As Lord Sumption put it, questions of this nature involve the striking of a balance between “two incommensurate values: the Convention rights engaged and the interests of the community relied upon to justify interfering with it”. This raises fundamental questions not about the relative expertise of judges and decision-makers but about their respective constitutional functions.
Against this background, it is inevitable that the Supreme Court was drawn into detailed consideration of what is generally referred to as deference. Lord Sumption took issue in his judgment with the term “deference”; it has, he said, “overtones of cringing abstention in the face of superior status”. However, he did not dispute that there is a proper role for what is usually (if inappropriately) called deference. Correctly understood, said Lord Sumption, deference (a term I will use for convenience) concerns the ascription of weight to executive judgments on either of two grounds. The first such ground, said Lord Sumption, relates to “the constitutional principle of the separation of powers” and “the special constitutional function of the executive”. This raises questions about both how the relationship between courts and the executive is usually conceived and about the extent to which that relationship has been reconfigured for certain purposes by the Human Rights Act 1998 (HRA). Lord Sumption took the view that the Act “did not abrogate the constitutional distribution of powers between the organs of the state”, albeit that it has modified “traditional notions of the constitutional distribution of powers”.
One implication of this is that notions of judicially “forbidden areas” (as Lord Phillips put it in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department  EWCA Civ 1598) have no purchase in HRA cases. As Lord Sumption said, “when it comes to reviewing the compatibility of executive decisions with the Convention, there can be no absolute constitutional bar to any inquiry which is both relevant and necessary to enable the court to adjudicate”. However, it did not follow that “in human rights cases a court of review is entitled to substitute its own decision for that of the constitutional decision-maker. However intense or exacting the standard of review in cases where Convention rights are engaged, it stops short of transferring the effective decision-making power to the courts”.
The second reason for deference identified by Lord Sumption is an institutional one. He said that: “It does not follow from the court’s constitutional competence to adjudicate on an alleged infringement of human rights that it must be regarded as factually competent to disagree with the decision-maker in every case or that it should decline to recognise its own institutional limitations.” In particular, Lord Sumption set out four considerations that he regarded as relevant to questions of deference on grounds of institutional competence:
- While the executive’s assessment of of the implications of the facts is not conclusive, it may be appropriate for a court to ascribe great weight to that assessment, “depending on the nature of the decision and the expertise and sources of information of the decision-maker or those who advise her”.
- Rationality is part of, but is not the whole of, the proportionality test. However, there are certain circumstances in which rationality may be the “only criterion which is capable of judicial assessment”. This is likely to be the case in relation to “predictive and other judgmental assessments, especially those of a political nature”.
- There may not be a single “right” answer “where the justification for a decision depends upon a judgment about the future impact of alternative courses of action”.
- The risk of making a mistake when conducting assessments of this nature means that “the responsibility for a judgment that proves to be wrong should go hand in hand with political removability”.
It is clear, then, that for Lord Sumption, deference is a potentially potent device, capable of blunting proportionality to such an extent as to render it the functional equivalent, in certain circumstances, of the reasonableness test. Against this background, Lord Sumption concluded that the Home Secretary’s decision was proportionate:
We have no experience and no material which could justify us in rejecting the Foreign Office assessment in favour of a more optimistic assessment of our own. To do so would not only usurp the proper function of the Secretary of State. It would be contrary to long established principle which this court has repeatedly and recently reaffirmed. It would step beyond the proper function of a court of review. And it would involve rejecting by far the strongest and best qualified evidence before us. In my opinion it would be a wholly inappropriate course for us to take.
Lord Sumption thus anchors his judgment in an amalgam of the two forms of deference identified in his judgment. It is important to recognise that these two forms of deference rest on quite distinct foundations. Deference on institutional grounds acknowledges the practical limits upon the courts’ adjudicative capacity; in contrast, deference on constitutional grounds implies a normative judgement about the proper allocation of responsibility as between different branches of government. However, while the two forms of deference and the reasons for them are distinct, the distinctions are not watertight; a judge’s conviction as to constitutional propriety may well influence the extent to which she is prepared to concede the that another branch has superior institutional competence. This is a phenomenon that is observable when Lord Kerr’s dissenting judgment is compared with Lord Sumption’s.
Other members of the majority
Before turning to Lord Kerr’s dissent, it is worth saying something about the other majority judgments. Lord Sumption’s approach — unsurprisingly, in the light of other views he has expressed — is strongly sympathetic to the view that courts should defer in certain circumstances to the views of the executive government. Other members of the majority, while agreeing that the Home Secretary’s decision was proportionate, endorsed the idea of deference less fulsomely. Intermediate positions are occupied by Lord Neuberger and Lady Hale. Their position can best be understood by reference to a particular aspect of the disagreement between Lords Sumption and Kerr which is encapsulated in the following dictum of Lord Neuberger:
First, there is the question discussed in Lord Kerr’s para 158 and Lord Sumption’s para 49. Lord Kerr suggests that the court has to decide whether the Secretary of State’s decision in this case was “right” rather than “tenable”, a proposition with which Lord Sumption disagrees. I find neither adjective entirely apt. I agree with Lord Kerr to the extent that the decision is for the court, but Lord Sumption is surely right to the extent that, unless it can be shown to be based on wrong facts or law, not genuinely held, or irrational, the nature of the decision in this case is such that the court would require strong reasons before it could properly substitute its own decision for that of the Secretary of State.
In other words, the court must decide whether the decision is proportionate, but, in doing so, it might ascribe weight to the executive’s view. This point was put clearly by Lady Hale:
I have no doubt that it is for the court to make the proportionality assessment; but I have equally no doubt that on some parts of that assessment the court should be very slow indeed to disagree with the assessment made by the Government.
In the end, Lady Hale concluded — “reluctantly” — that the decision was proportionate. In doing so, she was influenced by considerations pertaining to both of the forms of deference identified by Lord Sumption:
This case has two unusual features bearing on this question in different directions. First, many of the claimants are themselves peculiarly well qualified to assess the importance of the Government’s objectives. They have been in relevant positions in Government or, in the case of Lord Carlile, has served as the Government’s independent reviewer of the operation of our anti-terrorism legislation. Second, they are all (apart from Mrs Rajavi herself), senior Parliamentarians. This means that they are among those who can hold the Government to account in Parliament for the judgments it makes.
It is clear from the tone of Lady Hale’s judgment that she was more troubled by the relatively limited role played by the court in this case; ultimately, however, she reached the same conclusion as Lord Sumption for broadly similar reasons.
The final member of the majority was Lord Clarke. He expressed himself to be “extremely sceptical” about the reasons given by the Home Secretary in seeking to justify her decision. He went as far as to agree with Lord Kerr that the question for the court is “whether the decision of the Secretary of State was right”. Ultimately, however, Lord Clarke concluded that the court should not overturn the decision, not least because he was unconvinced by Lord Kerr’s analysis of the factors that could legitimately be placed in the balance when considering whether the exclusion of Rajavi was justifiable on national-security grounds.
Lord Kerr concluded that the decision was disproportionate. In so deciding, he purported to distinguish sharply between circumstances in which, he argued, deference would and would not be appropriate. As to the assessment of risk, he said that “very considerable respect for the executive decision is called for, although, as Lord Neuberger has said, this cannot be simply ‘franked’ by the courts. Although we must accord the Secretary of State’s view on this issue due deference, we are not required to genuflect in its presence.” However, even on this institutional point, Lord Kerr was ultimately far from deferential for reasons to which I return below.
Whereas Lord Kerr professed (but did not exhibit much) deference in relation to the government’s assessment of the risks that would arise were Rajavi permitted to enter the UK, he argued that deference was not warranted when it came to assessing the importance of the right that has been infringed (and hence the fairness of the balance between the infringement of the right and any public-policy gain thereby secured):
On that issue, the word of the Secretary of State cannot hold sway. Of course, her views are worthy of careful consideration but they are not necessarily – indeed they cannot be if the system is functioning properly – the final word. The whole purpose of having the court assess the proportionality of the measure is to allow an independent judgment to be applied to the prominence to be given to the Convention right which is engaged.
Amplifying this point, Lord Kerr said:
If there has been an interference with Convention rights (and in this case there certainly has been), courts are there to examine whether that interference is justified. That examination must focus on the proffered reasons of the decision-maker but the inquiry necessarily extends beyond that. The courts, charged with the solemn duty by Parliament of deciding whether the political reasons that have actuated the decision to interfere with the particular Convention right justify the interference, have a clear obligation to have proper regard to the importance of the right which has been interfered with. That exercise requires the courts not only to examine the reasons given for the interference but also to decide for themselves whether that interference is justified.
Lord Kerr thus argues that deference may be warranted on institutional but not on constitutional grounds. Before turning to consider what might lie beneath his dismissal of deference on constitutional grounds, it is worth noting the slippage between these concepts illustrated by Lord Kerr’s own judgment. I said above that while he professed a willingness to defer on institutional grounds, he did not actually do so. This is illustrated by his view that the Home Secretary was not entitled to place much weight upon the likely reaction of the Iranian government because if the Iranian government were to react adversely, this would be on the basis of nothing more than “unreasoning and unreasonable views”. Lord Kerr concluded that in determining the weight the Home Secretary was permitted to attach to the Iranian government’s likely views, the fact that “such views are irrational and unjustified should not be left out of account, particularly when this involves a restriction of the guaranteed rights of parliamentarians in this country”.
Reduced to its essentials, Lord Kerr’s position appears to be that the government was not entitled to conclude that Iran’s likely reaction would compromise national security because that reaction would be an unreasonable one. The importance of the right in question meant that the possibility of an unreasonable reaction on Iran’s part had to be ignored or at least marginalised, even if, in fact, it was likely that a negative reaction would ensue and would create a national-security risk. By taking this position, Lord Kerr advocates a high degree of oversight of the government’s decision-making in relation to the assessment of risk, allowing normative considerations pertaining to the perceived importance of the right to shape the court’s evaluation of the government’s factual assessment of the risk. This demonstrates, among other things, that a judge’s conviction as to the constitutional role of the reviewing court has the potential to blunt deference on institutional grounds to executive judgement, and undermines to some extent Lord Kerr’s suggestion that a sharp divide between issues that do and do not warrant deference can be maintained: the strong role ascribed to the court in determining the importance of the right impinged substantially upon, and reduced the possibility of deference in relation to, the executive assessment of risk.
What Lords Sumption and Kerr are really disagreeing about
Ultimately, it is precisely that conviction concerning the inappropriateness of deference on constitutional grounds that divides Lord Kerr from Lord Sumption (and, to some extent at least, other members of the majority). As we saw above, Lord Sumption’s view is that the Human Rights Act has modified but has not “abrogate[d] the constitutional distribution of powers between the organs of the state”. This suggests that constitutional considerations remain an appropriate ground upon which courts might — and sometimes should — exhibit deference towards the executive government. Such thinking is discernible in other majority judgments too, including Lady Hale’s: “foreign policy and national security are the Government’s business – some would say the first business of any Government”.
On this view, the government’s assessment of how important a given national-security objective is deserves a degree of respect because it is the Government’s view. It is implicit in this position that the Government’s view as to the relative importance of the right — relative, that is, to the competing public-policy objective — is deserving of commensurate respect. And, if we are applying these considerations at the fair-balance stage of the proportionality analysis, it is the relative assessment is crucial, since the fair-balance test is, by definition, one that is concerned with the relative importance of the two variables in play.
In contrast, Lord Kerr takes the view that the “constitutional distribution of powers”, as Lord Sumption put it, has been altered radically by the Human Rights Act. On this view, constitutional concerns about judicial respect for the role of the executive are largely eclipsed by the conviction that the Human Rights Act has placed judges in the driving seat when it comes to determining questions concerning rights. As Lord Kerr put it:
In conducting the review of government decisions, courts must, of course, be keenly alive to the expertise and experience that ministers and public servants have by reason of their involvement in affairs of state, an involvement that courts cannot possibly replicate. But if the power and the duty to conduct fearless, independent review of the justification for interference with Convention rights is to mean anything, close, dispassionate and independent examination of the reasons for interfering with those rights must take place. Convincing reasons for the interference must be provided – convincing, that is, to the court that is required to examine and assess them.
The difficulty with this analysis is that it assumes that the lawfulness of decisions that engage qualified human rights necessarily falls to be measured by reference to reasons whose quality the court can test. In some instances, however, questions of lawfulness turn upon the relative value ascribed to incommensurate sets of interests. In Carlile, the government’s “reason” for exclusion was that allowing Rajavi to enter the UK and meet with parliamentarians would prejudice national security by impacting upon the UK’s relationship with Iran in particular ways; but underlying this reason is a value judgment about the importance of national security relative to the freedom-of-expression implications of excluding Rajavi. In such circumstances, whether the public-policy gain justifies the human-rights loss entails the application of a normative calculus — and this raises questions about the relative constitutional functions of the reviewing court and the political decision-maker. As Laws LJ put it in Miranda v Secretary of State for the Home Department  EWHC 255 (Admin), the fourth, fair-balance stage of the proportionality test
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.
The disagreement in Carlile is thus a profound one concerning the relationship between the courts and the executive and about the extent to which that relationship has been reconfigured by the Human Rights Act. Lord Kerr emphasises the “momentous obligations” placed upon the courts by the HRA, inferring from this a conclusion about the extent of the courts’ role. Lord Sumption, in contrast, views the extent of the constitutional reconfiguration effected by the HRA in narrower terms; it entitles courts to scrutinise executive justifications for interferences with rights, but it is does not license review of the intensity contemplated by Lord Kerr.
However, while Lords Sumption and Kerr are ostensibly disagreeing about the extent to which the HRA permits (or requires) courts to perform functions that are out of line with those traditionally ascribed to them, something deeper — pertaining to their respective conceptions of the judicial role — evidently underlies that disagreement. Lord Sumption’s vision of the judicial role is a conservative one (a term that is not intended perjoratively); Lord Kerr’s is a more expansive one. As a result, Lord Sumption is less inclined to view the HRA in the game-changing terms that Lord Kerr is: for Lord Sumption, the HRA modifies, but does not change beyond recognition, the pre-existing separation of powers. The text of the HRA simply does not speak to the questions about the judicial role with which the Supreme Court had to wrestle in Carlile. It is inevitable, therefore, that even if judges choose to characterise their views in terms of their understandings of what the HRA requires, what they are really doing is projecting onto that relatively blank canvas their own preconceived notions of the proper limits of the judicial function. It follows, then, that what really separates Lords Sumption and Kerr is not an interpretative disagreement about the meaning and effect of the HRA, but a more-fundamental ideological dispute concerning the respective functions of judges and politicians.