The judgment of the UK Supreme Court in Shvidler addresses key issues about the role of courts generally and appellate courts in particular when it comes to applying the proportionality test — while a powerful dissent from Lord Leggatt discloses a sharp division of judicial opinion about the proper nature of the judicial role in this context.
The Supreme Court’s judgment in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30 concerned challenges — on the ground of disproportionate interference with the rights to property and to respect for private and family life — to sanctions imposed on a company, Dalston Projects Ltd, by way of detaining a boat that it owned, and an individual, Shvidler, by way of freezing his assets worldwide (subject to limited exceptions). The Supreme Court rejected those challenges and upheld the sanctions, which were imposed under the Russia (Sanctions) (EU Exit) Regulations 2019 following Russia’s invasion of Ukraine. In doing so, the court addressed points of fundamental importance regarding the application of the proportionality test, the circumstances in which its application can properly be tempered by the doctrine of deference, and the role of appellate courts when hearing appeals about lower courts’ deployment of the proportionality test. The judgment also contains a striking, powerfully written dissent by Lord Leggatt, who adopts a view of the judicial role that is strikingly at odds with that of the majority.
Majority judgment: Proportionality
The majority judgment — delivered by Lord Sales and Lady Rose, with whom Lord Reed and Lord Richards agreed — contains some helpful clarifications about the proportionality test. First, at [118], the majority confirmed that the test takes the four-part form set out in a number of judgments, including, most recently, the Supreme Court’s judgment in In re JR123 [2025] UKSC 8:
(i) is the aim sufficiently important to justify interference with a fundamental right?
(ii) is there a rational connection between the means chosen and the aim in view?
(iii) was there a less intrusive measure which could have been used without compromising the achievement of that aim?
(iv) has a fair balance been struck between the rights of the individual and the general interest of the community?
Second, the majority judgment contains a useful reminder about the role of the court in cases in which proportionality falls to be applied. At [120], the majority explained that ‘the court has to make its own assessment whether a measure is proportionate to a legitimate aim’ while going on at [121] to say that ‘it is not accurate to say that the court’ — by dint of making that assessment — ‘becomes the primary decision-maker in the full sense of that term’. That is so because the court’s role remains confined to ‘assess[ing] the lawfulness of the authority’s action against the substantive legal criteria which are inherent in the Convention rights, including the criterion of proportionality’. It follows, said Lord Sales and Lady Rose, that: ‘The public authority decides on the action it will take, and hence is the primary decision-maker; but the court makes its own assessment whether such action is proportionate, and hence lawful, or not.’
Third, the majority made it clear that although the courts’ role when applying the proportionality test is not so expansive as to vitiate the distinction between that role and the role of the primary decision-maker, proportionality nevertheless entails a greater degree of judicial scrutiny than the rationality test:
the question whether a measure is proportionate or not involves a more searching investigation than application of the rationality test. Thus, in relation to the test of proportionality stricto sensu, even if the relevant decision-maker has had regard to all relevant factors and has reached a decision which cannot be said to be irrational, it remains open to the court to conclude that the measure in question fails to strike a fair balance and is disproportionate.
Majority judgment: Deference
The majority provided a largely clear and helpful summary of the law on deference. Lord Sales and Lady Rose explained at [123] that:
in the context of the proportionality assessment to be carried out by the court, there is room for appropriate respect and weight to be given to the views of the executive or the legislature as to how the balance between the interests of the individual and of the general community should be struck, depending on the nature of those respective interests.
They went on to say at [124] that the degree of respect to be accorded to a public authority’s view is informed by (among other things) ‘the importance of the right, the degree of interference and the extent to which the courts are more or less well placed to adjudicate, on grounds of relative institutional expertise and democratic accountability’, and recognised at [126] that the final stage of the proportionality test involves judicial consideration of ‘the balance to be struck between two incommensurate values: the Convention rights engaged and the interests of the community relied on to justify interfering with them’. In this case, the majority took the view (at [128]) that the government has ‘special constitutional responsibilities, by contrast with those of a court, in relation to steps taken in an effort to respond to and contain Russia’s invasion of Ukraine’ as well as ‘superior institutional competence to make the relevant assessment whether the sanctions imposed in these cases may serve some useful purpose in responding to and containing Russia’s actions’. Ultimately, the majority concluded at [130] that the Ministers concerned
should be accorded a wide margin of appreciation in making their judgments about whether the objectives of the measures, in terms of responding to and seeking to restrain Russia’s actions in Ukraine, are sufficiently important to justify the limitation of a fundamental right; whether there is a rational connection between the measures and those objectives; whether a less intrusive measure could have been used; and whether a fair balance has been struck between the relevant Convention rights of the individuals and others concerned and the interests of the community, in so far as the balance between the incommensurate elements referred to above involves bringing the public interest factors relied on by the Foreign Secretary and the Transport Secretary into account.
None of this is novel or particularly surprising, although, in the course of considering Lord Leggatt’s dissent below, I suggest that the language of ‘margin of appreciation’ is unhelpful at best, misleading at worst.
Applying the approach outlined above, the majority concluded that there was ‘no doubt that the aim of limiting and deterring Russian aggression in Ukraine is one of the most vital aims that the UK government has been called upon to pursue in recent years’ ([173]); that there was a rational connection between the imposition of the sanctions and that aim; that no less intrusive means could have been used; and that when it came to whether a ‘fair balance’ had been struck, the ‘major importance of the public policy objective’ weighed heavily ([204]), making it sufficient to justify not only the detention of the boat but also the ‘obviously very drastic’ ([210]) impact of the sanctions imposed on Shvidler and his family.
Majority judgment: Appellate courts
Whether the majority was unduly deferential to the government’s view is open to question. There can surely, however, be less room for doubt about the obviously problematic nature of a different aspect of the majority’s analysis, concerning the role of appellate courts hearing appeals against lower courts’ judgments concerning proportionality. At [142], Lord Sales and Lady Rose observed that: ‘Two different approaches are identifiable in the authorities.’ Under the first approach, which can be termed the ‘review approach’:
the appellate court treats its role as confined to a review to check whether the first instance court’s assessment in relation to the proportionality of a measure was arrived at on the basis of a proper self-direction as to the test to be applied and whether the result arrived at was reasonable, in the sense of being within the legitimate parameters of judgment for the judge; if it is satisfied on these points, the appellate court will not intervene, even though it thinks that it might have reached a different view if it had been deciding the issue for itself. This approach gives particular weight to the assessment made by the [first-instance] judge.
The ‘review approach’ can be contrasted with the ‘fresh determination approach’, according to which:
the appellate court does not treat its role as so limited, but instead, in order to decide whether the appeal should be allowed, it makes its own fresh assessment of the proportionality of the measure in question. This approach gives priority to the authority vested in the appellate court to decide and give guidance on legal questions.
In the light of considerable uncertainty about when appellate courts should adopt one or other of the two approaches, Lord Sales and Lady Rose (at [162]) set out six factors that ‘are likely to justify adoption’ of the fresh determination approach:
(i) the relevance of the assessment of proportionality across a range of cases, whether in terms of establishing a point of general principle or approach, the proper interpretation of legislation or the proper development of the common law;
(ii) the nature of the measure in question, since the constitutional responsibility of the senior courts is likely to be engaged in a more acute way in relation to challenges to primary or secondary legislation;
(iii) whether the case involves a claim that legislation or proposed legislation of any of the devolved legislatures is outside competence by reason of incompatibility with Convention rights (since such an important question should again be resolved by a senior court);
(iv) whether the case involves a claim that there is significant incompatibility between primary legislation and Convention rights (since such a claim invites the court to critique what Parliament has done and also because a determination of that issue may later fall to be scrutinised on an application to the European Court of Human Rights, which is likely to be assisted to the greatest degree by a domestic determination of proportionality by a senior court);
(v) the need to resolve differences between divergent strands of authority which may have emerged in the lower courts; and
(vi) the high importance for society of the issue to be resolved and the concomitant public interest in its being directly determined by a senior court.
However, that is not an ‘exhaustive list’: ‘in some situations there may be some other compelling reason for the appellate court to adopt the fresh assessment approach in order to fulfil its constitutional responsibilities’. It need hardly be pointed out that appellate judges faced with this guidance will find themselves in a highly unenviable position, its sometimes abstract and open-ended nature making it very difficult to apply to concrete cases. Indeed, Lord Sales and Lady Rose appeared to concede precisely this point, which led them to supplement the criteria above by way of the following guidance to appellate courts:
Unfortunately, the fact that simple categories do not exist in this area may mean that in circumstances where it is unclear which appellate approach is correct, and there is the prospect of an onward appeal to this court, an intermediate appeal court may find it prudent to make an assessment of proportionality according to both approaches. In fact, it is noticeable that this is frequently done by the Court of Appeal (including in these cases), in which it often explains that not only could it not be said that the judge went wrong in their assessment, but that the court agrees with the assessment they made.
If, on this approach, both assessments align, no difficulty arises. But it is entirely unclear — and the Supreme Court says nothing about — what an appellate court should do if it concludes (a) that on the fresh determination approach, it would consider the impugned measure to be disproportionate but (b) that on the review approach, it considers the first-instance judge’s proportionality assessment to be ‘within the legitimate parameters of judgment’. In the light of this (to which Lewis Graham has also drawn attention), and bearing in mind the limited guidance that the majority’s six non-exhaustive criteria supply in the first place, it seems fanciful that the Supreme Court’s judgment will put to rest the uncertainty that has developed in this area.
Lord Leggatt’s dissent: Separation of powers
It might well be Lord Leggatt’s dissenting judgment that proves to be the most enduring aspect of this case. Indeed, he pointed out at [285] that ‘the famous speech of Lord Atkin in Liversidge v Anderson [1942] AC 206, celebrated for defending the right of individual against the executive even in wartime, was a dissent’, and Lord Leggatt’s own judgment here is arguably cast in a similar mould. At [255], he made plain his strength of feeling, arguing that his difference with the majority turned upon a fundamental disagreement about the separation of powers and about the executive’s and the courts’ roles thereunder:
Underlying my disagreement with the majority of the court is a difference of view about the separation of powers. In their judgment, at paras 126-130, Lord Sales and Lady Rose argue that the executive branch of government should be accorded a “wide margin of appreciation” (ie latitude) in making decisions about the imposition of sanctions on individuals because of the constitutional responsibility of the executive for the conduct of foreign affairs and its “superior institutional competence” in this field. I agree with the need to recognise and respect the separate roles and competences of different organs of the state. I also agree that the courts should recognise and respect the particular constitutional responsibility and institutional competence of the executive in the field of foreign policy. But what I believe to be missing from this account is adequate recognition of the role which, under our constitution, the courts are called on to play in protecting individual liberties.
He went on (at [256]) to say that courts are ‘failing in their duty if they simply rubber-stamp assertions made by the executive to justify invading individual liberties without subjecting those assertions to critical scrutiny’, strongly implying that that was precisely the trap into which the majority had fallen. In particular, he ‘profoundly disagree[d]’ with the view, which he attributed to the majority, that the government should be accorded a wide margin of appreciation ‘on the ground of having greater institutional competence than the courts to judge whether its own decision to restrict the liberty of an individual strikes a “fair balance” between the rights of that individual and the interests of the community’.
Lord Leggatt’s dissent: ‘Fair balance’
In fact, it is not clear that that specific charge is a fair one, given that the majority did not explicitly say it was deferring on the fair balance point on the ground of institutional competence — something that would make little sense, given that the fair balance question, involving, as it does, the comparison of incommensurable matters, invites deference on democratic (or constitutional), as distinct from institutional competence, grounds. However, leaving that point to one side, the general thrust of Lord Leggatt’s dissent is that the majority was much too ready to take the government’s word for it — and that its preparedness to do so was rooted in an essentially impoverished understanding of the nature and purpose of human rights law.
He thus argued at [278] that the language of ‘fair balance’, which is the now-standard nomenclature for the fourth stage of the proportionality test, should be rejected because it ‘embodies a false assumption that there is some common system of measurement which enables benefits to society as a whole to be weighed against costs to the affected individual to decide which outweighs the other and so should have priority’. He went on at [279] to say that weighing ‘the wrong done to an individual’ against the public benefit thereby generated ‘is antithetical to the very idea of rights’ because their function ‘is to set limits to the circumstances in which the interests of individuals may be overridden by the interests of the community at large’. Instead, he said at [280], ‘What is required in deciding whether an interference with a fundamental right or freedom is proportionate is a judgment about whether the interference is just, having regard to its impact on the individual’s rights and the nature and strength of the reasons relied on to justify it.’ How far this differs in reality, as opposed to rhetorically, from the majority’s approach is unclear. Lord Leggatt presupposes at [279] that the fair balance test involves measuring the relative costs and benefits of the impugned measure in terms of ‘money or utility’, and (implicitly) that any cost to the individual can be outweighed by a sufficiently great public benefit. Yet it is not at all clear, either from the majority’s language, its application of that language or the application of the fair balance test in other cases that it as reductive as Lord Leggatt appears to think.
Lord Leggatt’s dissent: Deference
Having criticised the language of ‘fair balance’, Lord Leggatt went on to say that it is for courts, not the executive, to decide whether community interests should prevail over an individual right, because they are ‘better suited’ to deciding that question. In support of that view, he advanced (at [282]–[285]) four reasons: the independence of the courts; the executive’s natural tendency to ‘promote the collective interest’; the courts’ ‘distinctive competence in resolving disputes by applying demanding standards of public reason’; and the courts’ special responsibility to protect individual liberty. This led Lord Leggatt to appear (at [286]) to reject any role for deference in relation to the fair balance stage of the proportionality inquiry:
…I reject the suggestion that the executive is best suited to judge whether it has itself struck a “fair balance” in an individual case between the public interest and a fundamental right or freedom of an individual. In a society committed to the rule of law, judgments about whether encroaching on a fundamental right or freedom is justified by the reasons relied on by the executive for doing so are reserved to independent courts. I consider that judges are abdicating their responsibility if in making these judgments they defer to the executive’s own view that it has struck a “fair balance”.
Having said all of that, Lord Leggatt concluded that it was unnecessary to progress as far as the fair balance question, because the government’s case in relation to Shvidler was ‘so inadequate and lacking in credibility’ that it had failed to establish a rational connection between the sanctions and the aim being pursued. (In contrast, Lord Leggatt agreed with the majority’s conclusion in relation to the detention of the boat.)
Lord Leggatt’s dissent: Commentary
Lord Leggatt’s dissent takes few prisoners. But it is questionable whether his critique of the majority’s approach is entirely fair. He appears to proceed on the basis that the majority deferred ‘to the executive’s own view that it has struck a “fair balance”’. Yet that is not consistent with the way in which Lord Sales and Lady Rose explained matters. Rather, they said (at [123]) that ‘appropriate respect and weight’ should be attached to the executive’s view on relevant matters, noted (at [120]) that ‘the court has to make its own assessment whether a measure is proportionate to a legitimate aim’, and emphasised (at [122]) that this involves ‘a more searching investigation than application of the rationality test’. And there is no indication, later in the majority judgment, that they departed from that approach by simply accepting the government’s view that a fair balance had been struck; rather, the majority determines that question for itself, albeit through a process that involves attaching weight to relevant views advanced by the executive.
It is, however, profoundly unhelpful — for two reasons — that the majority consistently described its approach in terms of extending a ‘margin of appreciation’ to the executive. First, as is well known, the margin of appreciation is a doctrine applied by the European Court of Human Rights in light of particular issues, such as cultural distance, that afflict adjudication by an international court but which have no relevant to domestic adjudication. Second, the use of the language of ‘margin of appreciation’ fails accurately to capture the ascription of weight or respect to the primary decision-maker’s view, and instead risks creating the impression — laid to rest many years ago in the context of domestic proportionality jurisprudence — that the decision-maker benefits from some form of zone of discretion within which the reviewing court cannot properly intrude. It is many years since that spatial notion of deference, given life by the House of Lords in R v DPP, ex parte Kebilene [2000] 2 AC 326, was put to one side in favour of the approach to deference that is accurately described in the detail of Lord Sales and Lady Rose’s judgment in Shvidler but misleadingly labelled in terms of the ‘margin of appreciation’.
Ultimately, although Lord Leggatt’s dissent is powerfully written and provides a great deal of food for thought, it arguably lacks subtlety, serving as an important reminder of the imperative role of the courts under the separation of powers while paying scant regard to legitimate considerations that help to define the extent and limits of that role. Perhaps, however, that is no bad thing. The increasing tendency of the Supreme Court to issue single judgments, combined with the striking degree of consensus that has been manifested by that court in recent years on the sort of issues canvassed by Lord Leggatt, has arguably had the effect of oversimplifying, or at least obscuring, important and contentious issues about the proper role of the courts in this field. Some grit in the oyster is no bad thing, not least because it serves to surface legitimate disagreement, open discussion of which is healthy and necessary. While, therefore, Lord Leggatt’s dissenting judgment might (at least in my view) be wide of the mark in some respects, it nevertheless represents a welcome return to open discussion at the highest judicial level of contested and profoundly important constitutional questions.
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