Supreme Court judgments addressing—but not resolving—the future direction of substantive judicial review have been coming thick and fast in the last year or two. Notable examples include Kennedy v The Charity Commission [2014] UKSC 20 (on which I posted here), Pham v Secretary of State for the Home Department [2015] UKSC 19 (blog post) and Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 (blog post). To that list can now be added Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 (press summary) (judgment).

The challenge was to the Secretary of State’s decision to allow the appellant to be designated, on the ground of an alleged association with Al-Qaida, by the Sanctions Committee of the United Nations Security Council. Designation triggers the freezing of the person’s assets. The appellant’s claim was dismissed by the Divisional Court and the Court of Appeal. He appealed (unsuccessfully) to the Supreme Court on a number of grounds. Of present concern is the appellant’s contention that the Court of Appeal went wrong by reviewing the decision on rationality grounds, instead of applying a more searching ground of review (such as proportionality) or engaging in ‘full merits review’ of the decision.

Lord Carnwath, giving the Supreme Court’s only judgment, held that the rubric of ‘rationality’ was inappropriate in the light of the fundamental nature of the rights affected by asset freezing, irrespective of whether those rights were recognised under the European Convention or at common law. However, Lord Carnwath continued, its use of the language of ‘rationality’ notwithstanding, the Court of Appeal had not in substance conducted its review of the decision’s legality inappropriately. This followed because, said Lord Carnwath, even if a proportionality test ought to have been applied, no evidence or arguments had been advanced which satisfied the Supreme Court that the application of that test would have yielded a different result in the circumstances of the present case.

In the course of determining this aspect of the appeal, Lord Carnwath signalled that the law in this area is now ripe for a thoroughgoing review—which would range over all, not only fundamental rights, cases—by the UK’s apex court:

It is to be hoped that an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning on the issue, including relevant comparative material from other common law jurisdictions. Such a review might aim for rather more structured guidance for the lower courts than such imprecise concepts as ‘anxious scrutiny’ and ‘sliding scales’.

He went on to note (referring to Keyu and Pham) that ‘[e]ven in advance of such a comprehensive review of the tests to be applied to administrative decisions generally, there is a measure of support for the use of proportionality as a test in relation to interference with “fundamental” rights’. However, he also observed that

in many cases, perhaps most, application of a proportionality test is unlikely to lead to a different result from traditional grounds of judicial review. This is particularly true of cases involving issues of national security. In Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700 (which concerned another security council regime, relating to nuclear weapons), there was not only majority and minority agreement as to the steps involved in an assessment of ‘proportionality’ (demanded in that case by the relevant statute), but also, within that context, general recognition that on issues of national security a large margin of judgment was accorded to the executive (paras 20-21 per Lord Sumption, para 98 per Lord Reed). The difference turned on contrasting views as to the allegedly discriminatory nature of the restrictions in that case. Similar considerations apply in the present case.

These remarks prompt two comments. First, whether proportionality is likely to yield a different result from the application of ‘traditional grounds of judicial review’ rather depends on what, in the first place, those ‘traditional grounds’ are understood to be. If the reasonableness test is understood to exclude only decisions that verge on the absurd, then there must be clear water between it and proportionality. If, on the other hand, reasonableness is understood in the more nuanced terms advocated by writers like Paul Daly (in his A Theory of Deference in Administrative Law (Cambridge 2012)) and Paul Craig (in his 2013 Current Legal Problems lecture) then the gap between reasonableness and proportionality review necessarily diminishes. Such a view was supported by Lord Mance in Kennedy, in which he said 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.’ Crucially, however, if the relationship between reasonableness and proportionality is conceived of in this more nuanced sense, it is imperative that issues of ‘intensity’ and ‘weight’ are properly addressed through an adequately developed doctrine of judicial deference. In other words, acknowledging that reasonableness and proportionality may be more indistinct than has traditionally been allowed does not licence doctrinal sloppiness: rather, it shifts—to questions of deference—the site at which doctrinal rigour is needed.

Second, to the extent that it is accurate, Lord Carnwath’s observation concerning the capacity of reasonableness and proportionality review to deliver similar outcomes might be thought to undercut his view that a thoroughgoing review of this branch of administrative law doctrine is needed. After all, if the choice of doctrine does not matter, it is presumably not very important whether the existing uncertainty about which applies in given circumstances is allowed to persist. There is, however, another way of looking at this. If Lord Carnwath is right, such that the choice of doctrine generally does not matter, then that suggests that there is something wrong at the doctrinal level: either one of the doctrines is redundant, because we could get by perfectly well with just one of them, or both doctrines are so ill-defined that choice of doctrine questions serve merely to mask underlying but inadequately articulated choices about the nature and form of substantive review in any given case.

This suggests that if the courts are to think further about this area, they ought to start by rolling up their sleeves and sorting out these doctrinal difficulties. However, the reality, as I have argued elsewhere, is that focussing on doctrinal questions such as these is to put the cart before the horse. The outcome of substantive review cases will differ depending upon the justificatory burden under which the court places the decision-maker, and the extent to which the court is prepared to defer when it comes to determining whether that burden has been discharged. Those two variables, and the scope for approaching each of them in more or less demanding ways, yields a substantive review scale that cannot adequately be described by reference to one or two (e.g. reasonableness or proportionality) ‘standards’ of review. Lord Carnwath is therefore correct to suggest that a fundamental review of this area of doctrine is needed, but if it is to be a fundamental review, it must start with the underlying questions and must avoid the sort of doctrinal preoccupation that has sometimes characterised the ‘reasonableness versus proportionality’ debate.

I develop some of these arguments further in my chapter in the book on substantive judicial review—The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart Publishing 2015)—that I recently co-edited with Hanna Wilberg. A pre-publication version of the chapter can be downloaded here. I note in passing that in Youssef, Lord Carnwath was kind enough to refer to the book—further details about which can be found here—as an ‘illuminating collection of essays’ on the subject.