UK Constitutional Law Association

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Jake W. Rylatt and Joseph Tomlinson: Neuberger’s Novelties: Keyu and the Substantive Review Debate

Rylatt-TomlinsonOver the past few decades, the question of substantive review has provided one of the liveliest debates in public law. However, despite a myriad of contributions from courts and legal commentators, we are still left with little certainty as to its nature, scope, and structure. As we near 70 years since Lord Greene’s landmark decision in Wednesbury, and despite some interesting and innovative recent additions to the debate, a distinct sense of fatigue has begun to set in. Such weariness is evident in important recent contributions to the debate, with Paul Craig bemoaning in 2010 that:

It is over 60 years since Wednesbury, and over 250 years since the advent of some form of rationality review in the UK. The bottom line remains that we cannot produce a modern definition of rationality review which is legally authoritative and where the mode of application coheres with the legal test.

And yet, the question remains as important as ever, with the answer ultimately defining the level of control possessed by the courts, and subsequently the executive, vis-à-vis the balancing of competing interests of stakeholders affected by decisions of public authorities. Since Paul Craig’s statement in 2010, the Supreme Court has been asked to grapple with the issue on a number of occasions, including the recent judgment in Keyu v Secretary of State for the Home Department [2015] UKSC 69, which provides the subject of this post.

Keyu concerned a decision by the Secretary of State for Foreign and Commonwealth Affairs not to hold a public inquiry into a series of events that took place in December 1948, when a Scots Guards patrol shot and killed 24 unarmed civilians in the village of Batang Kali in Selangor (at the time a British Protected State in the Federation of Malaya).

The appellants contended that a public inquiry into these events, which they characterized as unjustified murder, was required on three different grounds:

(1)        Under the ‘procedural obligation’ to investigate suspicious deaths pursuant to Article 2 European Convention on Human Rights;

(2)        Under the common law, which has incorporated a duty under customary international law to investigate suspicious deaths; and

(3)        Under the common law, since the decision not to investigate was irrational and/or disproportionate under recognized principles of judicial review.

While the judgments of the individual Justices in Keyu raise a range of interesting questions of both domestic and international law in relation to each of the grounds, this post will focus on ground (3). Specifically, it will be argued that the judgment of Lord Neuberger injects novel analysis into the debate on substantive review.

Novelty One: Classification Of Judicial Review Grounds

The oft-cited modern classification of the grounds of judicial review—consisting of “illegality,” “irrationality,” and “procedural impropriety”—was famously set out by Lord Diplock in the GCHQ case. Bearing this in mind, the characterization of the law of judicial review provided by Lord Neuberger in Keyu makes for interesting reading (at para 127):

The area covered by judicial review is so great that it is impossible to be exhaustive, but the normal principle is that an executive decision can only be overruled by a court if (i) it was made in excess of jurisdiction, (ii) it was effected for an improper motive, (iii) it was an irrational decision, or, as it is sometimes put, a decision which no rational person in the position of the decision- maker could have taken, or (iv) the decision-maker took into account irrelevant matters or failed to take into account relevant matters. An attack on an executive decision based on such grounds is often known as a Wednesbury challenge (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223). If one or more of these grounds (which often overlap to some extent) is or are satisfied, the court may (but need not in every case) quash the decision. If none of these grounds is satisfied, then the decision will almost always stand.

This may be considered a novel characterization of the law of judicial review, for two primary reasons.

First, while it may be “impossible to be exhaustive” in describing the vast terrain covered by judicial review within the parameters of a judgment, it is difficult to understand why, for instance, legitimate expectations—a significant judicial innovation of recent decades—has no explicit place here. A further notable omission is the ground of, what Lord Diplock called, procedural impropriety, which is neither explicitly referenced nor implicit in the four grounds identified.

Second, the ‘standard’ classification of grounds of judicial review noted above considers Wednesbury (under the banner of ‘irrationality’) as horizontally related to the grounds of ‘illegality’ and ‘procedural impropriety.’ Conversely, Lord Neuberger appears to conceive of a vertical relationship between the grounds of judicial review, using a Wednesbury challenge as an overarching, umbrella term, beneath which are a number of ‘grounds’ such as the decision being made in excess of jurisdiction. An alternative, less revolutionary, reading would be that Lord Neuberger is merely using ‘Wednesbury challenge’ as convenient shorthand for any judicial review challenge. However, the common usage of that term, specifically for challenges as to the rationality of a decision, militates against such a reading. Furthermore, this usage of the term Wednesbury as a general shorthand conflicts with other aspects of Lord Neuberger’s own judgment, where he states: “for reasons which are individually defensible and relevant, and which cumulatively render it impossible to characterise their conclusion as unreasonable, let alone irrational.” As pointed out by Mark Elliott, the implication here seems to be that the Wednesbury reasonableness test and irrationality are different.

Novelty Two: Rewriting GCHQ On Proportionality

A second point of novelty arose when Lord Neuberger discussed existing judicial support for the introduction of proportionality as a replacement for Wednesbury unreasonableness. There Lord Neuberger stated (at para 131) that the “possibility of such a change was judicially canvassed for the first time in this jurisdiction by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service.” In fact, Lord Diplock did not canvass that proposition at all. While Lord Diplock in GCHQ canvassed the potential introduction of the proportionality standard, he did not state or even imply that this was necessarily to the exclusion of Wednesbury unreasonableness. In fact, a more accurate reading would be that proportionality was envisaged as necessarily in addition to Wednesbury. After setting out the three grounds of ‘illegality’, ‘irrationality’ and ‘procedural impropriety’, he stated:

That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community (emphasis added).

This is hardly a trifling point as the way in which GCHQ is read has consequences that resonate in the substantive review debate. For instance, some commentators advocate a “structured” public law approach to substantive review, where Wednesbury review sits alongside other standards and the different standards are applied dependent on the particular type of case (for instance, see Ch. 9 of Hickman’s Public Law After the Human Rights Act). For such commentators (and many other commentators), this is an important distinction for the Supreme Court to simply gloss over.

Novelty Three: Authority in Numbers

The two points of novelty raised above pale when compared to Lord Neuberger’s ultimate answer to the Wednesbury/Proportionality dilemma facing the Court, which merits recounting in full:

It would not be appropriate for a five-Justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms and very wide in applicable scope. Accordingly, if a proportionality challenge to the refusal to hold an inquiry would succeed, then it would be necessary to have this appeal (or at any rate this aspect of this appeal) reargued before a panel of nine Justices. However, in my opinion, such a course is unnecessary because I consider that the appellants’ third line of appeal would fail even if it was and could be based on proportionality. [para 132]

The suggestion that it would not be appropriate for a five-Justice panel to decide this issue, which drew quite broad support from other members of the court, is novel at the Supreme Court level. In 2003, the Court of Appeal famously said in R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence that it was no longer apparent “what justification there now is for retaining the Wednesbury test” but “it is not for this court to perform its burial rites.” That demonstration of deference to a superior court is wholly defensible yet it is more of a stretch to characterize the Supreme Court’s obvious reluctance to answer the question in Keyu as a sincere act of judicial deference to higher (or more plentiful) judicial authority.

The broader question resulting from the statement of Lord Neuberger regards the procedures of the Supreme Court for the allocation of Justices to cases, particularly in cases involving matters of great constitutional importance. Specifically, two questions arise: 1) In what circumstances will an enlarged panel of 7 or 9 be utilized; and 2) Who makes the decision to utilize an enlarged panel.

With regards to the first question, the Supreme Court website contains the following guidance:

Criteria to be used when considering whether more than five Justices should sit on a panel:

– If the Court is being asked to depart, or may decide to depart from a previous decision.

– A case of high constitutional importance.

– A case of great public importance.

– A case where a conflict between decisions in the House of Lords, Judicial Committee of the Privy Council and/or the Supreme Court has to be reconciled.

– A case raising an important point in relation to the European Convention on Human Rights.

With regards to the second question, little information is available, with no procedures identified on the website, or in the Rules of Court or Practice Directions. However, in the ground-breaking Final Judgment (2013, Hart) Professor Alan Paterson notes that the panels are ‘largely selected by the Registrar’ and subsequently proposed to the President and Deputy President at a ‘horses for courses’ meeting, who retain ultimate authority for approving the composition of each panel (p. 72).

Drawing together the answers to those two questions, it is apparent that nine Justices could have been allocated to Keyu, on the basis of its profound constitutional implications, to paraphrase Lord Neuberger. It is less apparent why this was not the case.

Conclusion

Beyond Lord Neuberger’s judgment, reading the varied judgments of each Justice in turn leaves an unsettling feeling: even if nine Justices would have been allocated to the case, and the question would have been addressed, would we have been satisfied with the answer(s)? There is good reason to think the answer would be ‘no’ as, while speaking in the language of Wednesbury and proportionality, it was clear that the terms each had different meanings to the different members of the Court. For example, Lord Neuberger stated that proportionality is distinct from Wednesbury in requiring the courts to consider the balance the decision-maker has struck between competing interests, and yet this is arguably what Lady Hale did in her application of Wednesbury. Unless unanimity between the Justices emerges on at least some of the myriad questions arising from the distinction between Wednesbury and proportionality, having nine Justices opining on such a divisive issue may instead be akin to opening Pandora’s Box.

In any case, Lord Kerr, who supported Lord Neuberger’s view, acknowledged (at para 271) that the question would not disappear as a result of the judgment: “I suspect that this question will have to be frankly addressed by this court sooner rather than later.” If the question of substantive review is ever frankly addressed, Keyu is a decision that is likely to be seen, with hindsight, as representative of the conceptual confusion within the Courts.

Jake W. Rylatt is a Graduate Teaching Assistant in International Human Rights Law and Research Assistant to the Legal Tools for Peace-Making Project at the Lauterpacht Centre for International Law, University of Cambridge.

Joseph Tomlinson is a Visiting Lecturer in Law at King’s College London and a PhD Candidate at the University of Manchester.

(Suggested citation: J.W. Rylatt and J. Tomlinson, ‘Neuberger’s Novelties: Keyu and the Substantive Review Debate’ U.K. Const. L. Blog (17th Feb 2016) (available at https://ukconstitutionallaw.org/))

One comment on “Jake W. Rylatt and Joseph Tomlinson: Neuberger’s Novelties: Keyu and the Substantive Review Debate

  1. ObiterJ
    February 17, 2016

    This question of panel size is NOT set out in the Constitutional Reform Act 2005 and I see nothing in the Supreme Court’s guidance to actually require more than five.

    In the Jogee case it was clearly put forward that the UKSC should depart from the House of Lords decision in Powell and English but the court sat with five members and at no point was panel size raised – (at least not in open court). As far as I can see, a 5 member panel has the full authority of the court and that ought to be that.

    It’s all rather odd to see only 5 members sitting on Jogee and the Privy Council case of Ruddock (heard at the same time) but we saw seven members of the Privy Council sitting on a reference to advise Her Majesty as to which of two chaps was entitled to a Baronetcy limited to heirs male of the original grantee. (The answer ought to be quite obvious really!). In truth, the latter hardly needed more than three ! I would argue that the UKSC / JCPC needs to be more clear about the criteria for panel sizes.

    In GCHQ I have always thought that Lord Diplock was doing no more that stating the obvious point that the categories for review were not closed. Thanks for your most interesting post and I am sure that Lord Kerr was right in saying that this will have to sorted out sooner rather than later.

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