proportionality


Vavilov – a restatement of reasonableness – Adrienne Copithorne (2)

6 February 2020 by

In the previous post under this topic, I referred to Mr Justice Binnie’s proposal for the exercise of the standard of reasonableness review in the 2007 case of Dunsmuir v New Brunswick. This would eventually resurface in Vavilov, where the majority of the Supreme Court of Canada held that the starting point should be a presumption that the reasonableness standard applied. In the interim, there had been much academic, practitioner and judicial commentary on the lack of clarity and consistency in the application of the principles espoused by the majority in Dunsmuir in subsequent cases and on the difficulty in applying such principles in claims. Members of the Supreme Court also expressed concerns in subsequent cases, for example, Abella J in Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. The majority in Vavilov explicitly refers to such criticism coming from the judiciary and academics but also from litigants before the Court and organizations representing Canadians who are affected by administrative decisions. As the Court stated,

These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.

The Court also referred to concerns that the reasonableness standard was sometimes perceived as “advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”.


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Proposed ban on ivory is lawful – including antiques

12 November 2019 by


R (on the application of) Friends of Antique Cultural Treasures Ltd v Department for the Environment, Food and Rural Affairs – read judgment

“We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.” (Defra’s statement in consultation in introducing the Ivory Bill)

The Ivory Act 2018, which received Royal Assent in December 2018, proposes to prohibit ivory dealing with very limited exceptions. This includes antique items made with ivory. According to the Government, the Act contains “one of the world’s toughest bans on ivory sales”. No date has yet been fixed for it to become law.

The purpose of the Act is to enhance the protection of African and Asian elephants in the face of ongoing threats to their survival. It does so by prohibiting the sale, as opposed to the retention, of all ivory (that is, anything made out of or containing ivory), subject to a very limited and tightly defined exemptions. These prohibitions are backed by criminal and civil sanctions.

The claimant company represented UK dealers in antique worked ivory such as Chinese fans, walking canes with sculpted ivory tops and furniture with ivory inlay. The appeal of these items is not confined to Sinologist antiquarians. Netsuke, smaller carved ornaments worn as part of Japanese traditional dress, are an example. Even for the non connoisseur, Edmund de Waal’s novel The Hare with the Amber Eyes is a celebration of the significance and aura that these ornaments bestow on their owners, not just for the carving, but for the material of which they are made. Religious, hierarchical, magical, and even medicinal.


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Bank Mellat and disclosure in closed material proceedings

28 October 2015 by

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2015] EWCA Civ 105, 23 October 2015  read judgment

Bank Mellat is an Iranian bank, initially subjected to a 2009 order which prohibited anybody in the UK from dealing with it – until the Supreme Court quashed it:  here, and my posts here and here.  

The Treasury tried again, by orders made in 2011 and 2012 addressed at all Iranian banks, not just Bank Mellat. The EU has now taken over regulation of these banks.

In the current proceedings, the Bank seeks to set the 2011 and 2012 orders aside. These restrictions are, the Treasury says, addressed at the financing of Iran’s nuclear programme, in which all Iranian banks are complicit. Bank Mellat denies this, and the conundrum in the case is how to make sure that the challenge is fairly tried.  Collins J (my post here) thought that the Treasury had not revealed enough about its case, and, in substance, on appeal the CA agreed.

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Supreme Court on EU and ECHR proportionality – back to basics

27 June 2015 by

seo-marketing-320x200R (ota Lumsdon) v Legal Services Board [2015] UKSC 41, 24 June 2015 (see judgment)

The Supreme Court has reminded us, in a tour de force by Lord Reed, that there is no such thing as one-stop proportionality. It varies between ECHR and EU law, and the tests of EU proportionality then vary according to the nature of the EU issue in play.

And all this in a case about trying to improve standards for barristers’ advocacy.

Barristers challenged the Quality Assurance Scheme for Advocates or QASA, on EU grounds. QASA requires barristers in the criminal courts to be assessed by judges before they are allowed to take on certain categories of cases.

Its EU-ness arises in this way.

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Government may weigh rights against national security without courts’ interference

12 November 2014 by

Mujahedin-e-Khalq-OrganizatR (on the application of Lord Carlile of Berriew QC and others) (Appellants) v Secretary of State for the Home Department (Respondent) [2014] UKSC 60 – read judgment

The exclusion of a dissident Iranian from the UK, on grounds that her presence would have a damaging impact on our interests in relation to Iran, has been upheld by the Supreme Court. (My post on the Court of Appeal’s ruling is here).

At the heart of the case lies the question of institutional competence of the executive to determine the balance between the relative significance of national security and freedom of speech. The exclusion order was imposed and maintained because the Home Office is is concerned with the actual consequences of Mrs Rajavi’s admission, not with the democratic credentials of those responsible for bringing them about. The decision-maker is not required by the Convention or anything else to ignore or downplay real risks to national security where they originate from people acting for motives which are contrary to the values of this country.

The following summary of the facts is partly based on the Court’s press release. References in square brackets are to the paragraphs in the judgment.
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Be wary of judicial slogans – Jonathan Sumption

10 November 2014 by

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.
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Letting in a chink of light to closed material cases : Bank Mellat again

5 November 2014 by

brown-blanket-ray-of-lightBank Mellat v HM Treasury [2014] EWHC 3631 (Admin), Collins J, 5 November 2014 –  read judgment UPDATED POST

Fireworks here from Collins J in making sure that Bank Mellat got some disclosure of information in its fight to discharge a financial restriction order against it.

Bank Mellat is an Iranian bank, initially singled out by an 2009 order which prohibited anybody from dealing with it.  The order was part of sanctions against Iran in respect of its nuclear and ballistic missiles programme. However, it bit the dust, thanks to the Supreme Court:  see judgment. I  did a post on that decision, and followed it up with one (here) on the (dis)proportionality arguments which led to the order’s downfall. 

However the Bank was subject to two further orders, made in 2011 and 2012. They led to the freezing of €183m held by it in London. The 2012 order has since been revoked, but the 2011 one remains. This is the subject of the Bank’s application to set it aside. On any view, as Collins J recognised, it had caused very serious damage to the Bank’s business.

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An ABC on proportionality – with Bank Mellat as our primer

22 June 2013 by

seo-marketing-320x200Bank 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.

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Supreme Court considers conditions for removing child for adoption

20 June 2013 by

mother-and-child_1681173cIn the matter of B (a child) (FC) [2013] UKSC 33 – read judgment

This appeal concerned whether a child of two years of age should be permanently removed from her parents and placed for adoption; and, in that regard, whether the child was likely to suffer “significant harm: within the meaning of s.31(2)(a) of the Children Act 1989; and a consideration of whether her permanent removal might interfere with the exercise of the right to respect for family life under Article 8 of the ECHR, and, if so, whether the order  should be proportionate to its legitimate aim of protecting the child.

The following summary is based on the Supreme Court press report. References in square brackets are to paragraphs of the judgment.

Background facts

The child concerned had been removed from her parents at birth under an interim care order. The mother was for many years in an abusive relationship with her step-father. She also had criminal convictions for dishonesty and a history of making false allegations. She had been diagnosed with somatisation disorder, a condition which involves making multiple complaints to medical professionals of symptoms for which no adequate physical explanation can be found.
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Have human rights hijacked the language of morals? – and other questions: Laws

27 November 2012 by

Lord Justice Laws’ Inaugural Lecture at Northumbria University, 1 November 2012 – read here 

This is a fascinating and provocative lecture raising important questions about the extent to which the culture of human rights has become the currency of our moral dealings with each other and the State.

Adam commented briefly on Laws’ speech here but since it deserves a post of its own I will try to capture its essence and highlight some of its main features here without I hope too many spoilers.

Laws suggests, as Adam mentioned, that rights should properly be the duty of the State to deliver as an aspect of the public interest, not its enemy. The problem is that we have exalted rights beyond their status of public goods (along with health care, defence, education and so on) into primary moral values served to us not by the government but by the courts. Consequently these two institutions are seen to be serving opposite interests. The entrenchment of rights in morality in Laws’ view carries great danger.

It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake.
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Upper Tribunal confirms the legitimacy of the new immigration rules – but questions their completeness

8 November 2012 by

MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment

This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see  Adam’s post  on the Home Office’s proposals earlier this year).

Before the new immigration rules were introduced in July,  cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act  2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions  to the automatic deportation regime,  “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.

But then there was a move to set out an extensive, codified definition of the Article 8 balancing factors, in order to

unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life. 
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Policy, possession and proportionality – Nearly Legal

1 January 2012 by

Denry Okpor v London Borough of Lewisham, Bromley County Court 25 October 2011 [Transcript not publicly available]

Adam Wagner represented Mr Okpor in this case. He is not the author of this post.

This was a rolled up permission to appeal and appeal hearing (on which more later) for appeal to a Circuit Judge from a possession order made by a District Judge at Bromley. At issue was whether the District Judge was wrong to reject a) a proportionality defence and b) a gateway B public law defence arising from Lewisham’s failure to follow its own policy. It is interesting as an example of proportionality/gateway B defences in action in the County Court, but also somewhat frustrating, for reasons which will become clear.

Mr Okpor was the secure tenant of Lewisham. At the age of 15 he had been taken into care by Lewisham following abuse. He left care aged 18 in 2006. In 2009, aged 21, he was given the secure tenancy. Mr O went into full time higher education later that year and has remained in full time higher education. This meant that the relevant Children Act 1989 provisions for care leavers continued to apply and would do until he was 24, if still in full time higher education. Mr O was receiving support from the Lewisham Leaving Care Team.

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