Be wary of judicial slogans – Jonathan Sumption

SumptionIn his lecture to the Administrative Law Bar Association  earlier this month, Lord Sumption surveys the concept of “anxious scrutiny” – a judicial method which he characterises as a forerunner to the principle of proportionality. The term was actually coined by Lord Bridge in Bugdaycay (1986), and was meant to apply where the rights engaged in a case were sufficiently fundamental, and stretched the traditional “Wednesbury” test to public authority decisions or actions which were not, on the face of it, irrational. (The citation given in the PDF of the speech incidentally is incorrect). The same way of thinking had been arrived at in the US courts a few years earlier, with their “hard look” doctrine, but to Lord Sumption there was something peculiarly English about the “crab-like” way in which our courts approached and eventually acknowledged this doctrine, hitherto alien to the judicial toolbox.

But if we apply anxious scrutiny to the doctrine itself, Sumption suggests, it raises more questions than it answers.

The problem about anxious scrutiny as an approach to administrative decisions was that it was never very clear what it meant. The image of nail-biting anxiety as judges crouched in the road observing the oncoming headlights of a fundamental right was certainly calculated to show that the judiciary were on the case. But what did anxious scrutiny actually involve, and how did it differ from the presumably slapdash or casual scrutiny that was appropriate in less fundamental cases?

In fact, before the arrival of the proportionality test under the ECHR via the Human Rights Act 1998, which allows the court to probe the compatibility of the action under challenge with the need for it in a democratic society, “anxious scrutiny” was just rather a portentous title for a judicial process which was as old as the hills – simply requiring of the decision maker to prove that he had got his facts right. “Mistake of fact is in reality no more than one way in which a decision-maker may find himself taking account of irrelevant factors and failing to take account of relevant ones” – a traditional ground of judicial review. But oddly, even now we have the sharp chisel of proportionality with which to prise open executive decisions, “anxious scrutiny” is still very much around. Sumption finds no less than 598 cases referring to it to it in a quick survey of the last ten years of Westlaw.

So one is bound to ask whether in the current state of the law anxious scrutiny is any more than a slogan: “We try harder”;or at least “We try as hard as the context warrants.” If anxious scrutiny is simply the exercise of the degree of care appropriate to the context, what is so special about it? And what judicial exercise ever called for any other standard?

What worries Sumption – and we should be worried too – is that this kind of sloganising is a stalking horse for judges interfering with decisions of which they do not approve. Traditional public law, as any first year law undergraduate knows, is about review, not merits. Now of course with proportionality we can go straight to the merits, asking whether

the decision answers a pressing social need, whether the decision-maker’s objective is important enough to justify interfering with a human or fundamental right, whether a less intrusive measure could have been used without unacceptably compromising the objective and whether, looking at matters in the round, a fair balance has been struck between the interests of the individual and the community.

This would be all well and good, in a world where a “plain case” of “fundamental rights” presented itself routinely. But it simply doesn’t.  The fact of the matter is that whilst we deploy techniques for protecting human and fundamental rights against government action, we do not respect the constitutional position of the primary decision-maker. This is because, in Sumption’s view, we are not clear about those techniques. He thinks that the only intellectually honest way of explaining what we are doing is “by reference to the decision-maker’s “discretionary area of judgment”, an expression originally minted by the authors of Lester and Pannick, Human Rights Law and Practice (1999).

The human rights fraternity, to be sure, does not welcome the idea that the executive may be peculiarly qualified to make at least some judgments about the justification for interfering with human or fundamental rights, and part of this hostility he suggests is expressed in the over-used word “deference”,

with its overtones of cringing abstention in the face of superior status.

The reason why the decision maker should be allowed this margin for manoeuvre, particularly in decisions based on considerations of national security, is that in such situations the decision turns on a predictive judgment. There are a range of options available to the decision maker which, “looking forward to an obscure future”, the executive is best placed institutionally and constitutionally speaking to choose between, with equal propriety. If we accept this (and again, many won’t) then  rationality in the “unstretched Wednesbury sense” may be the only aspect of the decision which is capable of judicial assessment.  Those who object to such a proposition should step up to the wire and explain why, in a parliamentary democracy,  the person charged with making predictive judgments about the consequences of executive decisions should abdicate before the courts. Judges are not will be politically responsible for those decisions, nor are they potentially answerable with their jobs.

His basic criticism of “anxious” or “heightened scrutiny”

is that it does not help to resolve the problem to which it is addressed, namely how are courts of review to assess the possible justifications for executive or legislative interference with fundamental rights, particularly those derived from the Human Rights Convention. Anxious scrutiny is a way of reconciling this process with the law’s traditional reluctance to engage in a merits review. It avoids the uncomfortable truth that questions of proportionality often do involve merits review, by pretending that the court is simply performing its traditional role but more intensively. This in turn makes it more difficult to develop proper principles for deciding what the limits of merits review should be. It is incumbent on any one who says this to propose an alternative.

The courts should come clean if they’re indulging in a bit of merits review. Sumption acknowledges that in practice, judges can generally be relied on to adjust the decision-maker’s discretionary margin of judgment to the significance of the right being interfered with.  But it’s as important to get the answer right on purpose,

and for reasons that accurately describe the analytical process involved.

This is an elegant and salutary reminder that judges engaged in the business of assessing vexed questions of human rights are no exception to the rule that their decisions should not be driven by their own personal views, and that the rhetoric of “anxious scrutiny”, “proportionality” and so on should not be used as a smoke screen to hide those preferences.

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