Proportionality and contextualism in common-law review: The Supreme Court’s judgment in Pham

 

The recent decision of the UK Supreme Court in Pham v Secretary of State for the Home Department [2015] UKSC 19 marks a turning-point in the role of proportionality as a common-law ground of judicial review. Although the case did not ultimately turn upon proportionality, the judgments contain detailed discussion of the doctrine, and evidence judicial support for its availability as a ground of judicial review irrespective of whether the case has a European Union or ECHR dimension to it. And while this judgment does not come out of the blue — other cases have hinted at this development — Pham is particularly explicit and direct. In this way, it arguably represents a landmark in the emergence of proportionality as as common-law head of review.

Background

The key issue in Pham was whether it was lawful for the Home Secretary to strip the appellant of British citizenship and deport him to Vietnam, where he had been born. He acquired British citizenship in 1995 but never renounced his Vietnamese nationality. In 2011 the Home Secretary made an order under section 40(2) of the British Nationality Act 1981 depriving the appellant — who had allegedly participated in terrorist training in Yemen — of British nationality, and notified him that he would be deported to Vietnam. When the Vietnamese Government subsequently argued that the appellant was not a Vietnamese national, the appellant challenged the Home Secretary’s decision on the ground that it would render him stateless.

The case in the Supreme Court turned principally upon the question whether that statelessness argument made the Home Secretary’s decision unlawful. The Supreme Court unanimously held that it did not, since the existence of an apparently arbitrary decision by the Vietnamese Government did not establish that Vietnamese law had operated — either at all or by the date of the Home Secretary’s decision — to deprive the appellant of Vietnamese nationality. Of present interest, however, is an alternative argument that the claimant sought to advance, but which the Supreme Court ultimately declined to resolve. That alternative argument was to the effect that deprivation of British citizenship operated so as to deprive the claimant of his citizenship of the European Union, the latter being parasitic upon the former; that this EU dimension dictated that the Home Secretary’s decision should be reviewed on proportionality grounds; and that the Home Secretary’s decision would not pass muster under the proportionality test.

There was considerable scepticism amongst the Justices about the first pillar of this argument — namely the applicability in the first place of EU law. In particular, Lord Carnwath (with whom Lady Hale and Lords Neuberger and Wilson agreed) and Lord Mance (with whom Lady Hale and Lords Neuberger and Wilson agreed) placed weight on R (G1) v Secretary of State for the Home Department [2012] EWCA Civ 867. In that case, Laws LJ questioned whether decisions pertaining to the citizenship of a Member State become matters falling within the ambit of EU law merely by virtue of the fact that such decisions have knock-on consequences for EU citizenship. However, none of the Justices chose to resolve this question — partly because the EU issue had not been referred to the higher courts by the Special Immigration Appeals Commission, in which this case had originated, and partly because the question might in any event be moot. It is the latter aspect of the Supreme Court’s reasoning that is of present concern.

All four of the judgments given in the Supreme Court embraced the possibility — indeed, the likelihood — that it was unnecessary to decide the EU point because whether EU law was applicable would make no difference to the outcome of the case. The appellant’s argument on this matter turned upon the assumption that establishing the applicability of EU law would unlock the door to a form of judicial review — i.e. review on proportionality grounds — that would otherwise be unavailable at common law. The Supreme Court, however, doubted the veracity of this assumption. It was against this backdrop that the Justices turned to consider the availability of proportionality review in purely “domestic” cases.

Lord Carnwath: Correspondence between Wednesbury and proportionality

Lord Carnwath discussed this matter relatively briefly. In doing so, he placed weight upon the Supreme Court’s judgment in Kennedy v Information Commissioner [2014] UKSC 20 which, he said, endorsed “a flexible approach to principles of judicial review, particularly where important rights are at stake”. He also referred to Paul Craig’s 2013 Current Legal Problems lecture in which Craig argues that “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”. Lord Carnwath indicated that this flexible approach should operate in favour of more stringent scrutiny where the removal of a “fundamental status” such as citizenship is concerned.

Lord Carnwath does not go so far as to endorse explicitly the availability of proportionality in cases where an “important right” or a “fundamental status” is at stake. However, he arguably indicates, at least implicitly, that the relationship between proportionality and rationality is such that the choice of label does not matter a great deal, and that the common law is capable, in appropriate cases, of supplying scrutiny equivalent to that which is available under proportionality.

Lord Mance: Proportionality as a ground of review

Lords Mance, Sumption and Reed, however, went further. Like Lord Carnwath, Lord Mance invoked both Kennedy and Craig. However, he went on not simply to note a degree of correspondence between Wednesbury and proportionality, but expliclitly to endorse the application of the latter at common law:

Removal of British citizenship under the power provided by section 40(2) of the British Nationality Act 1981 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 contained in section 40(2), and the tool of proportionality is one which would, in my view and for the reasons explained in Kennedy …, be both available and valuable for the purposes of such a review.

This unambiguous endorsement of proportionality as a common-law ground of review is important. Equally, important, however is the fact that Lord Mance’s embrace of proportionality was accompanied by a nuanced account of what proportionality review amounts to. Lord Mance introduced this nuance by disaggregating two distinct but often conflated features of substantive review — namely, intensity and structure. Proportionality is often taken to be more intense because it is more structured, but Lord Mance argued — correctly — that this is not so. Instead, he endorsed Lübbe-Wolff’s view that whether proportionality intensifies review “is not determined by the structure of the test but by the degree of judicial restraint practised in applying it”. The purpose of this discussion was presumably to establish that proportionality can exist as as common-law ground of review without threatening fundamental constitutional considerations such as the distinction between appeal and review. In this way, Lord Mance tackles the sort of criticisms levelled at proportionality by Lords Ackner and Lowry in R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, by showing that its adoption need not herald a shift to uniformly more intensive review.

Lord Reed: Proportionality and the principle of legality

If Lord Mance’s judgment demonstrates greater doctrinal depth than Lord Carnwath’s, it is fair to say that Lord Reed’s goes further still. In particular, Lord Reed distinguished between two senses in which the term proportionality is used. In the first place, he observed, it may simply connote a general ground of judicial review that — as cases like R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052 demonstrate — are of relatively long standing. Viewed in this way, however, proportionality is concerned with nothing more than the question of means-ends fit, and does not obviously differ from Wednesbury, given that the use of a sledgehammer to crack a nut — likely with deleterious collateral disadvantages — is readily characterisable as irrational.

However, Lord Carnwath distinguished this from proportionality as a vehicle for “the scrutiny of justifications advanced for interferences with legal rights”. He argued that proportionality in this sense can be seen to have operated at common law in cases such as R v Secretary of State for the Home Department, ex parte Leech (No 2) [1994] QB 198 and R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26. In those cases, the principle of legality — a principle of statutory construction — facilitated proportionality review by means of the reading into the statute of implied prohibitions upon disproportionate interference with rights. As Lord Reed put it:

In [Leech], the legislation was interpreted, against the background of the European Convention on Human Rights , as authorising the minimum intrusion into correspondence passing between a prisoner and a solicitor which was objectively established as being necessary to fulfil the aim of ensuring that the correspondence was bona fide legal correspondence. In a similar context, it was held in the Daly case that the infringement of prisoners’ rights to maintain the confidentiality of their privileged legal correspondence was greater than was shown to be necessary to serve the legitimate public objectives identified.

Lord Reed went on to say that:

One can infer from these cases that, where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality. [Emphasis added]

Significantly, Lord Reed suggested that this interpretative methodology — including its facilitating of proportionality review — might be appropriate in a case such as Pham:

Given the fundamental importance of citizenship, it may be arguable that the power to deprive a British citizen of that status should be interpreted as being subject to an implied requirement that its exercise should be justified as being necessary to achieve the legitimate aim pursued. Such an argument has not however been advanced at the hearing of this appeal, and it would be inappropriate to express any view on it.

This goes further than either Leech or Daly, given that proportionality was never explicitly used in the former, and given that the Convention rights were in play in the latter (albeit that it was decided principally on the basis of common-law rights). In this way, Lord Reed’s analysis in Pham represents the most explicit and authoritative judicial acknowledgment to date of the capacity of the principle of legality to operate as a vehicle for proportionality review in cases lacking any EU or ECHR dimension.

Lord Sumption: A Damascene conversion?

Lord Sumption (with whom Lords Neuberger and Wilson and Lady Hale agreed) was also willing to countenance the possibility of proportionality review at common law. He observed that

although English law has not adopted the principle of proportionality generally, it 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. Starting with the decision of the House of Lords in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514 it has recognised the need, even in the context of rights arising wholly from domestic law, to differentiate between rights of greater or lesser importance and interference with them of greater or lesser degree. This is essentially the same problem as the one to which proportionality analysis is directed. The solution adopted, albeit sometimes without acknowledgment, was to expand the scope of rationality review so as to incorporate at common law significant elements of the principle of proportionality.

It is important to acknowledge that Lord Sumption was not merely describing these developments; he was endorsing them. Indeed, he pointed to what he considered to be the “arbitrariness” of dealing with domestic matters by reference to Wednesbury and cases in which EU or Convention rights are implicated by means of proportionality review. That said, Lord Sumption does not go quite as far as Lord Mance or Lord Reed, in that he does not explicitly support the use of “proportionality” as a domestic head of review. Rather, his approach is closer to Lord Carnwath’s, according to which any rigid distinction between the two grounds of review is somewhat arid, the crucial question being where a given right falls on a “sliding scale, in which the cogency of the justification required for interfering with a right will be proportionate to its perceived importance and the extent of the interference”.

Even so, it may at first glance seem surprising that Lord Sumption is so relaxed about proportionality review — whether in name or in practice — at common law. After all, Lord Sumption has carved out for himself something of a niche since joining the Supreme Court as a conservative on public-law matters. However, the likelihood of Lord Sumption having undergone a Damascene conversation is small. Rather, his position can best be rationalised by recalling the catholic nature of “proportionality”. Indeed, Lord Mance, as noted above, was at pains to emphasise this: he pointed out that recourse to proportionality does not inevitably connote high-intensity review, the doctrine of deference is a key means by which proportionality review may be toned down. This possibility is one that has been exploited to the full by Lord Sumption takes to heart. Indeed, in Carlile, he adopted a conception of deference so radical that it did not merely blunt the potentially sharper aspects of proportionality review, but rather excised them from the adjudicative process altogether. On this view, as Lord Sumption acknowledged in Carlile, “proportionality review” will sometimes entail asking no more than whether the impugned measure is rational. It follows that Lord Sumption’s relaxed stance in relation to proportionality must be viewed in the light of the particular view he adopts about what proportionality means in the first place.

Conclusion: The opportunities and risks of contextualism

The judicial toolbox available to domestic courts in substantive review cases was traditionally a very limited one. The only available tool was Wednesbury, and that doctrine was conceived in monolithic terms that precluded judicial intervention in the absence of administrative or legislative absurdity. Over time, however, the way in which the substantive-review toolbox is conceived has changed in two key ways. On the one hand, Wednesbury began to adopt a more nuanced character, with the emergence of such notions as super-Wednesbury and anxious-scrutiny (or sub-Wednesbury) review. This evidenced the beginnings of a judicial commitment to contextualism: to the notion that the standard of review should vary according to the circumstances of the case. On the other hand, the contents of the judicial toolbox were added to by means of the adoption of proportionality, at least in cases with an EU or (following the activation of the Human Rights Act) an ECHR dimension to them. On this view, however, proportionality occupied a distinct component within the toolbox, since it remained unavailable in purely “domestic” cases.

Pham is important because it reconceives the way in which the toolbox is organised. In particular, it rejects the compartmentalisation sketched above, according to which Wednesbury and proportionality are viewed as rigidly separate; it evidences a contextualist approach which echoes that which underpinned the diversification of Wednesbury; and it extends such contextualism such that proportionality (or something that is its functional equivalent) becomes available at common law where circumsatances warrant it. In this way, Pham eschews rigid distinctions between “domestic” and “European” cases, between “rights” and “non-rights” cases, and between Wednesbury and proportionality themselves. This approach is to be welcomed. Indeed, it is of a piece with an approach that I have advocated elsewhere, according to which substantive judicial review is to be understood as a contextualist endeavour that cannot be undertaken by reference to the sort of crude distinctions sketched above.

There are, however, risks associated with such an approach. Those risks track the two key changes that Pham implies, namely the extension of the range of substantive-review tools to include proportionality and the adoption of contextual criteria to determine the operative approach to review. The first point is that, for all its faults, Wednesbury operated as an important safeguard against judicial overreach. Once it is joined by proportionality — which, if not necessarily more intrusive, is potentially more intrusive — that safeguard is removed. Instead, it becomes necessary to rely upon judicial wisdom both in terms of deciding when recourse to proportionality is in the first place warranted and, when it is, to what extent its intrusiveness should be moderated by recourse to deference. The second point relates to the contextualist approach that, according to Pham, ought now to prevail. Sensibly deployed, such an approach is capable of forming the foundation of a mature, nuanced and sophisticated body of substantive-review doctrine — one that is the servant of principle, rather than a Procrustean bed based on bald categorisation, and one that reflects the full complexity of this area of the law in normative, institutional and constitutional terms. The risk, however, is that such contextualism may collapse into a chaotic regime of single instances that renders substantive review little more than a vehicle for dispensing palm-tree justice in an unpredictable fashion.

Against that background, it is worth concluding by referring to some extra-judicial remarks that Lord Carnwath made in 2013, and about which I have written before. In those remarks, he advocated an astonishingly pragmatic approach to judicial review, according to which judges should ask whether something appears to have “gone wrong” to an extent that warrants judicial intervention:

If the answer appears to be yes, then one looks for a legal hook to hang it on. And if there is none suitable, one may need to adapt one … Generally we [judges] should look to the academics to do the theorising, and to put our efforts into a wider context. That way, we can decide the cases, and then they can tell us what we really meant, so that we can make it sound better next time.

This sort of approach — which makes the New Zealand “simplicity” school look positively complex — carries particular risks under the sort of substantive-review regime envisaged in Pham. Dismantling old doctrinal structures is fine as long as it clears the way for something more useful to take its place. But if it merely opens the door to unprincipled, unpredictable decision-making of the type that Lord Carnwath’s approach obviously invites, then it is to deprecated. Following Pham, English administrative law in this area arguably stands at the threshold of a new era. But whether that era will turn out to be utopian or dystopian remains to be seen — and depends very much on the wisdom of the judges who are in the process of freeing themselves from the shackles that applied when substantive review and Wednesbury unreasonableness were thought to be synonymous.

The arguments advanced in this post are developed (albeit without reference to Pham) in Mark Elliott, “From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification” in Hanna Wilberg and Mark Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart Publishing, forthcoming 2015).