Q: How many Supreme Court Justices does it take to perform the Wednesbury doctrine’s burial rites? A: More than five

Twelve years ago, the Court of Appeal said—in R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence [2003] EWCA Civ 473—that, given its perceived deficiencies when viewed alongside the proportionality doctrine, it was difficult to see ‘what justification there now is for retaining the Wednesbury test’. However, said the Court of Appeal of Wednesbury, ‘it is not for this court to perform its burial rites’. Nor, it would appear, is it for a five-Justice Supreme Court to do so, at least according to this week’s decision of that Court in Keyu v Secretary of State for Foreign and Commonweawlth Affairs [2015] UKSC 69. The issue at stake in Keyu is helpfully summarised in the following terms in the press statement accompanying the judgment:

This appeal concerns the decision of the respondent Secretaries of State for Foreign Affairs and Defence to refuse to hold a public inquiry into events which took place while the UK was the colonial power in the former Federation of Malaya (now Malaysia). The UK government sent troops to the Federation in 1948 in response to an insurgency. On 11–12 December 1948, a patrol of Scots Guards killed 23 unarmed civilians in the village of Batang Kali in Selangor, one of the states of the Federation. The Appellants are related to one or more of the victims.

Much of the case turned upon the whether the refusal to hold an inquiry was unlawful by reference to Article 2 of the European Convention on Human Rights or at common law by virtue of the incorporation of relevant principles of customary international law. For reasons that this post does not consider, both of those arguments failed. The other strand of the appellants’ argument was to the effect that the refusal was unlawful as a matter of domestic law, on the ground that it amounted to an abuse of the discretion that section 1 of the Inquiries Act 2005 confers upon Ministers to establish public inquiries into matters of ‘public concern’.

Although he said that ‘[t]here is no more fundamental aspect of the rule of law than that of judicial review of executive decisions or actions’, Lord Neuberger did not consider that any of the judicial-review principles were breached by the refusal to hold an inquiry. In particular, the respondents had ‘seriously’ considered the request for an inquiry and had rejected it ‘for reasons which are individually defensible and relevant, and which cumulatively render it impossible to characterise their conclusion as unreasonable, let alone irrational’. (I pass over the unexplained implication that irrationality and unreasonableness are separate grounds of review, the former being even harder to establish than the latter. I also pass over the bizarre ex cathedra statement of the judicial-review principles attempted by Lord Neuberger that made no reference to, among other things, the concept of procedural fairness.) Only Lady Hale disagreed: for reasons that are considered below, she would have held the refusal to be Wednesbury unreasonable.

Against this background, three points are worth making. First, it was argued by the appellants that (as Lord Neuberger put it)

the time has come to reconsider the basis on which the courts review decisions of the executive, and in particular that the traditional Wednesbury rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality.

Having incorrectly stated that Lord Diplock had ‘canvassed’ such a possibility in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374—Lord Diplock made no such suggestion: he merely noted that proportionality might one day supplement rationality as a further ground of substantive review—Lord Neuberger concluded that if even if the nettle ought to be seized, it should be not be seized on this occasion. He did not consider it appropriate for a five-Justice panel of the Supreme Court to determine the matter on account of its potentially ‘profound’ constitutional implications. Only a nine-member panel would be competent to effect such a significant change in the law. This observation is intriguing, not only because it renders explicit considerations concerning the size of Supreme Court panels which usually have to be inferred from the number of Justices actually appointed to panels in individual cases, but because it also suggests that a rather exact science is in play. For instance: why would only a nine-Justice panel do? Why not a seven-Justice panel?

Second, whatever the answer to that question might be, it is arguable that the premise underlying Lord Neuberger’s position—that addressing fundamental questions about the relationship between Wednesbury and proportionality raises unusually profound constitutional issues—is misplaced. Indeed, in this respect, Lord Neuberger’s judgment sits uncomfortably with the Supreme Court’s recent judgment in Pham v Secretary of State for the Home Department [2015] UKSC 19 (on which I have written before), albeit that Pham was decided by a sparsely populated panel consisting of a mere five Justices. Lord Neuberger’s reasoning in Keyu presupposes that the choice between Wednesbury and proportionality is stark in a way that Pham suggested it was not. This point was taken most explicitly in Keyu by Lord Kerr, whose judgment is a particularly rich one for substantive-review anoraks. Lord Kerr said that ‘the very notion that one must choose between proportionality and irrationality may be misplaced’. This is correct for two reasons. First, there is no reason why—as Lord Diplock recognized in CCSU—the two principles should not co-exist. And, second, the supposition of a stark choice overlooks the facts that the two principles are themselves catholic and that at their respective margins they begin to resemble one another.

Indeed, this point is very clearly illustrated by Lady Hale’s judgment in Keyu, in which she sets out at some length the matters that ‘any rational decision-maker’ would have considered, the advantages involved in holding an inquiry that a rational decision-maker would have perceived, and the disadvantages that such a decision-maker would have perceived. Ultimately, Lady Hale concluded—applying what she considered to be a rationality test—that the Government had inappropriately struck the balance between, on the one hand, the difficulties and costs that any inquiry would involve and, on the other hand, the ‘public interest in properly inquiring into an event of this magnitude’, ‘the private interests of the relatives and survivors in knowing the truth and seeing the reputations of their deceased relatives vindicated’ and ‘the importance of setting the record straight’. To me, that looks and sounds a lot like what we would generally call proportionality review—or at least the fair-balance stage of the proportionality test. This does not, however, mean that Lady Hale was applying a proportionality test under the cover of Wednesbury rubric; it simply serves to demonstrate the way in which the one test can, and sometimes does, shade into the other. As Lord Mance put it in Kennedy v Charity Commission (Secretary of State for Justice intervening) [2014] UKSC 20, ‘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.’

Third, however, it is important that this sort of contextualism—which is to be welcomed—does not disintegrate into analytical sloppiness or doctrinal shapelessness. An obvious question is whether the proportionality doctrine has anything on which to bite in respect of decisions that do not engage recognised rights. This point was addressed by Lord Kerr in Keyu. He noted that Lord Neuberger had understood the appellants to have contended ‘that the four-stage test identified by Lord Sumption and Lord Reed in Bank Mellat should now be applied in place of rationality in all domestic judicial review cases’. Lord Kerr said that if this was indeed the appellants’ contention, he would ‘question its feasibility’:

In the first instance there is no legislative objective and no interference with a fundamental right; secondly, it is difficult to see how the ‘least intrusive means’ dimension could be worked into a proportionality exercise where the decision did not involve interfering with a right.

In the light of this, Lord Kerr said that he envisaged

a more loosely structured proportionality challenge where a fundamental right is not involved. As Lord Mance said in Kennedy, this involves a testing of the decision in terms of its ‘suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages’.

With respect to Lords Kerr and Mance, it strikes me that they have more work to do here before they are in a position to present a convincing vision of a post-Wednesbury administrative-law world. Indeed, Lord Kerr arguably falls into the very trap—of choosing between Wednesbury and proportionality—that he identifies earlier in his judgment. In particular, his position raises two difficulties.

First, it draws a bright-line distinction between rights and non-rights cases, the implication being that proportionality is structurally ill-suited to all cases of the latter type. Yet Pham, which was concerned with what the Supreme Court in that case characterised as a ‘fundamental status’, suggests otherwise. So too does the case law on substantive legitimate expectations, in which context it is now generally acknowledged that (at least some form of) proportionality review operates.

Second, however, Lord Kerr is right to suggest that there will be types of cases to which proportionality—as conceived in cases like Bank Mellatt—will be structurally ill-suited, even if he overestimates the content of that category. Yet in respect of that catregory, Lord Kerr appears to feel obligated to reimagine proportionality in order that it—as opposed, say, to Wednesbury—can be considered the operative principle of review. Hence the need for a ‘more loosely structured’ notion of proportionality in cases to which structured proportionality is unsuited. But why the need for ‘proportionality’ at all in such cases? If proportionality as it is usually understood is unsuitable, why the need to develop a parallel version of the doctrine—a form of proportionality-lite?

It might seem that this argument leads to a defence of the status quo—in the sense of proportionality and Wednesbury co-existing, even if the boundary between cases falling within the purview of the two principles is shifted so as to acknowledge proportionality’s suitability in respect of (for instance) fundamental-status and substantive-legitimate-expectation cases. However, where I think the argument actually leads is away from the focus on doctrinal labels and towards deeper engagement with the role of the court in substantive-review cases. Such cases, it seems to me, are ultimately about justification: that is, about whether a given administrative decision is supported by reasons that are sufficient to serve as an adequate justification for it. What will count as an adequate justification, and the extent to which the reviewing court will be in a position to determine whether such a justification has been offered, will turn upon a complex set of normative, constitutional and institutional factors including the importance of any value engaged by the decision.

It follows that asking how many Supreme Court Justices it takes to bury the Wednesbury doctrine is to ask the wrong question. What we call Wednesbury review sits in relationship with what we call proportionality review. And those two forms of review, at their respective margins, begin to shade into one another. Lord Kerr’s acknowledgment that in some situations proportionality would need to be reimagined if it were to take Wednesbury’s place, together with Lady Hale’s proportionality-like conception of Wednesbury review, amply illustrate these points. It may be that it will take a nine-member panel of the Supreme Court to grasp the nettle, but it is essential that the right nettle is grasped. The real question is not whether proportionality should supplant Wednesbury, but how the range of approaches to substantive review that each of those concepts embodies relate to one another.