Proportionality and rationality in judicial review

The reaction to the findings of the Litvinenko inquiry in January 2016 goes some way to demonstrate the iconic significance of public inquiries. This quarter the field not only yielded cross-jurisdictional political controversy but further legal discourse on the understanding of Wednesbury review.

Batang Kali massacre

In Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, the Supreme Court considered the refusal of the secretary of state for foreign and commonwealth affairs and secretary of state for defence to hold a public inquiry into the events of 11-12 December 1948 in the village of Batang Kali in Selangor. The UK, the colonial power in the then Federation of Malaya, now Malaysia, had sent troops in response to an insurgency, which resulted in a patrol of Scots Guards killing 23 unarmed civilians. The appellants were related to the victims.

At the time, it was reported that the operation was the result of detained male bandits attempting to escape en masse. The colonial secretary and the attorney general concluded that had the Guards not opened fire, the detainees would have escaped. But in 1969, after Malaysia achieved independence, one of the Scots guardsmen described the victims as having been murdered in cold blood. The account was confirmed in further interviews.

It was therefore agreed that the Metropolitan Police should investigate. The High Commission in Kuala Lumpur expressed concern that this would pressure the Malaysian government to open its own inquiry, which might cause political difficulties, against a backdrop where it was 'extremely doubtful if a villager's recollections of an incident which happened 22 years ago could ever be accurate, especially as the terrain has since changed beyond recognition'. Ultimately, in the mid-1970s, the conclusion was reached that there was no prospect of criminal proceedings because of concerns about the veracity of the evidence.

In 1992, the BBC released a documentary about the incident, subsequent to which the Crown Prosecution Service reviewed whether it would be necessary to bring a prosecution. However, the review noted it would be pointless to re-open the investigation because the long and prejudicial delay would be likely to lead to an abuse of process argument. Relatives of the victims petitioned to the Queen through the British Embassy, and the Royal Malaysian Police began investigating in 1993; little of substance was achieved and the local enquiry was closed in 1997.

In 2008, a campaign group was formed and an apology was sought, followed by a petition for an inquiry. It was refused at the end of 2010.

With that extensive but necessary background before the Supreme Court, it was contended that a public inquiry was required on three separate but overlapping bases: under article 2 of the European Convention on Human Rights (ECHR); under the principles of customary international law; and through judicial review.

The Supreme Court found that the victims were in the control of the British Army at the relevant time, but utilised the jurisprudence of the Strasbourg decision in Janowiec v Russia (2014) 58 EHRR 30, which confirmed that the provisions of the ECHR did not bind a party in relation to actions that took place prior to the entry into force of the ECHR with respect to that party ('the critical date').

In the case of a death before the critical date, the article 2 investigative duty can arise when the action or omission takes place after the critical date and there is a genuine connection between the death and the critical date. The Supreme Court found that the first limb was satisfied, but that, following Janowiec, the period of time between the triggering event and the critical date should not exceed ten years for there to be a genuine connection. It was found that the critical date was 1966, when the UK gave citizens the right to petition the Strasbourg court in relation to alleged infringements. As a result, the appellants’ arguments failed.

In relation to the second ground, the court rejected the argument based on international law, regarding it as highly unlikely that such a duty had been imposed therefrom.

In respect of the final ground, it was held that the decision to refuse an inquiry could not be considered Wednesbury unreasonable. Further, in respect of the appellants’ arguments to give precedence to proportionality rather than rationality as a basis for review, Lord Neuberger stated that the determination of such an issue could have profound and wide-ranging implications, and as such needed to be argued before a panel of nine justices of the Supreme Court.

Oddly, little insight was offered as to why that particular number of justices was needed, particularly when Lord Kerr went on to highlight that the divergence between the proportionality and irrationality challenge is not as stark as it is sometimes portrayed, which appeared to be tacitly accepted in his conclusion that even with the proportionality challenge, the decision of the court would have been the same.

Sanctions list

Unfortunately, there were no complete answers to the seeming contradictions in Keyu when the commentary on the health of Wednesbury unreasonableness continued in the Supreme Court's decision in Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3. The appeal concerned the decision of the secretary of state to allow the appellant to be added to the sanctions list under UN Security Council Resolution 1617 (2005), which requires UN member states to freeze the assets of those named on the list by the Sanctions Committee. As a consequence of the designation, the appellant became subject to the asset freeze.

The appellant argued that, first, although the secretary of state had made his own decision based on untainted evidence, he was aware that other members of the Sanctions Committee were proceeding on information which was or might have been obtained by torture, and so was obliged not to lend support to the motion.

Further, it was argued that the intended and inevitable effect of the decision was a serious interference with the appellant's right to peaceful enjoyment of his property, which could only be achieved by clear statutory provision or common law rule.

Third, the standard of proof relied upon by the secretary of state (i.e. reasonable grounds to suspect) was too low, and the courts below erroneously applied Wednesbury unreasonableness as the standard of review when the gravity of the decision ought to have attracted a full merits review or at least a proportionality analysis.

The appeal was dismissed by the single judgment of Lord Carnwath. In relation to the first ground, the court noted that the exercise of the secretary of state's power was pursuant to the prerogative powers (an area where the courts can only tread with caution). In order to succeed, the appellant had to demonstrate that there was a breach of a distinct duty to inquire into the reasoning of other members of the Sanctions Committee. It was held that the universal prohibition on torture did not imply a duty on states to inquire into the possible reliance on evidence obtained from torture by other states.

In relation to the second ground, the interference with the appellant's rights was specifically authorised under EU regulations, thereby providing the statutory basis for interference. Considering the third ground, the court acknowledged that the secretary of state's role was to assess risk, which could not be assessed on the balance of probabilities but involved considering whether there was 'sufficient information to provide a reasonable and credible basis for the listing'.

Perhaps the most interesting aspect was the Supreme Court's response to the fourth ground. The ratio focused on the fact that while there was a measure of support for the use of proportionality as a test in relation to interference with fundamental rights, the appellant had failed to demonstrate that the Court of Appeal had in substance failed to conduct its review appropriately because the application of a proportionality review was unlikely to lead to a different result - not dissimilar to the reasoning in Keyu. However, in referencing Keyu, the Supreme Court reiterated the hope that an opportunity would soon arise requiring a further review, to provide more structured guidance for the lower courts.

At the first hurdle, there lies the question of the necessity of a constitutional overhaul of the scope and intensity of review if the application of the two different tests would yield the same result. It is interesting to conceive of a more structured guidance that would accommodate the full range and diversity of decisions that are amenable to judicial review. Two meaty decisions, factually and legally, may have dominated this update, but with the idea of appraisal of judicial review gaining traction, we wait in hope for the case that may have profound and wide-ranging implications for the future. SJ

Saara Idelbi is a barrister practising from 7 Bedford Row