An ABC on proportionality – with Bank Mellat as our primer

22 June 2013 by David Hart KC

Bank Mellat v HM Treasury [2013] UKSC 39 (see judgment)

My post of earlier this week explained why the majority of the Supreme Court struck down a direction telling all financial institutions not to deal with this Iranian Bank. The legal ground (involving, as Lord Sumption described it, “an exacting analysis of the factual evidence in defence of the measure” [20]) was that the direction was “disproportionate”. The judgments (particularly the dissenting one of Lord Reed) tell us a lot about the scope of proportionality. And there is a good deal more to it than there might at first sight appear.

So it may be worth doing a bit of a bluffers guide, hand in hand with Lord Reed.

The concept arises in human rights law and in EU law. Its ECHR and EU incarnations derive from German administrative law, but its development in English law shows strong common-law influences. It applies in many different contexts, and the intensity of the review required critically depends on that context as well as the right being interfered with. So it is no simple thing to explain, but Lord Reed at [68] – [76] distils the main elements.

Common law

People sometimes take Lord Clyde’s statement in De Freitas [1999] 1 AC 69, 80 as the be-all-and-end-all of proportionality:

whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

But as has often been pointed out (e.g. Huang [2007] UKHL 11 para 19) this was derived from the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, and that a further element mentioned in Oakes was the need to balance the interests of society with those of individuals and groups. So this has become a fourth criterion: Quila [2011] UKSC 45, para 45.

Lord Reed sets out these four criteria in slightly expanded form at [74]

The approach adopted in Oakes can be summarised by saying that it is necessary to determine

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right,

(2) whether the measure is rationally connected to the objective,

(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and

(4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter…. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.

This, approved as it was by the whole court as a correct statement of principle, is probably going to be the starting point of future discussions of proportionality. (One can ignore the fact that the application of the principle wildly differed between majority and minority, but that is no surprise, as proportionality, however expressed, is a potentially unruly horse laden with value judgments).

Criterion (2) involves rational connection – requiring nothing more than showing the legitimate and important goals are logically “furthered” by the means adopted by government: Lord Reed at [92], citing Canadian authority.

One has to be wary about criterion (3). Lord Reed reminds us that the quest for a less intrusive measure should only go so far. The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line: [75]. As an eminent US judge observed (Blackmun J)

a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois Elections Bd v Socialist Workers Party (1979) 440 US 173, 188-189).

and, as Lord Reed added, especially if that judge was

unaware of the relevant practicalities and indifferent to considerations of cost. [75]

The only difference between Lord Reed and Lord Sumption on issues of principle is as to the ratio and application of A v Secretary of State for the Home Department [2004] UKHL 56 (the Belmarsh case). Lord Sumption for the majority thought that this was directly applicable to the  current case: [25].

The suppression of terrorism and the prevention of nuclear proliferation are comparable public interests, but the individual right to liberty engaged in A…can fairly be regarded as the most fundamental of all human rights other than the right to life and limb. The right to the peaceful enjoyment of business assets protected by article 1 of the First Protocol, is not in the same category of human values. But the principle is not fundamentally different.

Lord Reed was less convinced about the analogy;  A is a more “problematical case” [95], and see [97]; Lord Neuberger agreed at [167]. Lord Hope ducked this difference of analysis: [175].

Strasbourg proportionality

Two things to note about this, guarding against any tendency to extract statements of principle from Strasbourg cases and to use them, unadorned, in domestic cases.

The first is that Strasbourg approaches the matter in “a relatively broad-brush way” – as Lord Reed politely put it [70] – in contrast to the “more analytical approach to legal reasoning characteristic of the common law” leading to “a more clearly structured approach” as summarised above.

The second is that Strasbourg proportionality is “indissolubly linked to the margin of appreciation” – [71] which does not apply in the same way at the national level where courts are better placed to decide whether the appropriate balance has been struck in that national context.

So national proportionality “cannot simply mirror that of the Strasbourg court” [71].

In all cases, its application will reflect the nature of the right being infringed.

EU proportionality

This is now part of the Treaty on European Union (art.5(4)) “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”. The EU concept is put “in more compressed and general terms” than in German and Canadian law: [69]. The EU case law, as Lord Reed delicately adds, is “not always clear, at least to a reader from a common law tradition”.  He cites the most commonly used statement of principle from Fedesa [1990] ECR I-4023, where the ECJ said at [13]

the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.

Again note the context of this, and many EU cases, concerned with clashes between economic freedoms (here, the right to sell hormones for use in agriculture) and EU-wide harmonising and/or public health measures. The intensity of review (the degree of respect given to the primary decision-maker or legislator) depends on the context. As Lord Reed points out later in his judgment [93]-[94] (analysing cigarette-related bans such as Sinclair Collis Ltd) [2011] EWCA Civ 437, and see my post here), even not very convincing nor very telling evidence maybe enough to justify a ban on public health grounds, particularly so when the legislation was directed at changing human behaviour. The courts had to afford a broad margin of appreciation to the decision-maker in these circumstances.

Drawing together the threads

Perhaps it is obvious from the above, but learning on proportionality is not uniform throughout national, EU and Strasbourg courts. Common law case law may justify a domestic decision under scrutiny by the Strasbourg court, but it will not permeate into the way in which the Strasbourg expresses the principle – always designed for wide consumption throughout the Council of Europe countries. Similarly, there is only one-way traffic between EU/CJEU proportionality and the common law – the former has to be followed by domestic courts, but nothing the Canadian or domestic courts say is ever going to leach into CJEU case law. This is not to say that domestic proportionality is inconsistent with either source. It is just a good deal more helpful on the ground; lawyers and judges have rather more structure provided by the cases to assist decision-making than either the CJEU or Strasbourg give us. And you sure need structure when dealing with such an otherwise amorphous principle as proportionality.

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