“Not a question of process but a matter of substance”: Court of Appeal provides guidance on assessing proportionality

March 4, 2024

by David Illingworth, current Common Law pupil

The joined cases of Dalston Projects Ltd & ors v Secretary of State for Transport and Eugene Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWCA Civ 172, concerned appeals against sanctions imposed on the appellants by the Government under the Russia (Sanctions) (EU Exit) Regulations 2019. Judgment was handed down on 27 February 2024.

In reaching its decision on the appeals, the Court of Appeal issued guidance on the approach to assessing proportionality when the lawfulness of a decision taken by a public authority is challenged under the Human Rights Act 1998. The Court pointed out that “the principles are not always as well understood as they need to be.” The judgment contains some important guidance for practitioners, and for public authorities.

The proportionality principle

It is trite law that, under section 6 of HRA 1998, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Whether or not an act of a public authority is incompatible with a Convention right will often turn on whether it complies with the principle of proportionality. As the Supreme Court made clear in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, proportionality in this context involves four tests:

(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 the measure’s contribution to the objective outweighs the effects on the rights of those to whom it applies.

Singh LJ, with whom Whipple LJ and the Master of the Rolls agreed, set out detailed guidance as to how this test ought to be applied at first instance and by the appellate courts.

The role of first-instance courts

Singh LJ began by noting that some appellate decisions on the proportionality test may be “apt to mislead”: unless read carefully, some judgments seem to imply that the court is merely reviewing the rationality of a decision reached by the decision-maker as to proportionality. That is not the case. Whilst the court must give due weight to the views of the executive or legislature, the court’s function is to decide for itself whether the proportionality principle has been complied with.

How does a first-instance court do that in practice? Much will depend on the context. The significance of the Convention right, the degree of interference with that right, the range of factors capable of justifying the interference, and the extent to which the court is less well placed to adjudicate on the matter than the executive (e.g. national security) will all affect the quality of judicial scrutiny that is required. None of this changes the fundamental point, however: the court at first instance is reviewing the public authority’s act or decision, not as a question of process, but a matter of substance. It can, and must, do so without stepping into the shoes of the decision-maker and remaking the whole of the decision for itself.

The contrast between that approach and the traditional “rationality” approach in judicial review – is illustrated by the decision in Director of Public Prosecutions v Ziegler and Others [2021] UKSC 23, upon which Singh LJ relied. As Lord Sales said in that judgment,

“even if the relevant decision-maker has had regard to all relevant factors and has reached a decision which cannot be said to be irrational, it remains open to the court to conclude that the measure in question fails to strike a fair balance and is disproportionate.”

The role of appellate courts

Singh LJ went on to consider the role of the appellate courts in considering the proportionality principle in an appeal. Having surveyed the authorities, he identified three distinct categories of case.

• Challenges to a judicial finding of fact: where, as in Ziegler, the appeal is by way of case stated, the appellate court is considering an appeal against a judicial finding of proportionality as a question of fact. The usual rules apply: “an appellate court is not entitled to interfere with the first-instance court’s assessment of proportionality (which is a question of fact) except on well-known Edwards v Bairstow [1956] AC 14 grounds, i.e. that the lower court has misdirected itself in law or has reached a conclusion which was not reasonably open to it on the evidence before it.”
• Challenges to a rule or policy: in this category of cases (named for the Belmarsh case, A v Secretary of State for the Home Department[2004] UKHL 56), the court will not accord any deference to the assessment of proportionality by the courts below but will carry out its own proportionality assessment. This category primarily comprises cases concerning the compatibility of a rule (including primary legislation) or a policy with Convention rights.
• Challenges to an administrative decision: in this category of case, the executive, rather than a judge, has made the factual finding that the act in question complies with the proportionality principle. Relying on In Re B [2023] UKSC 33, Singh LJ concluded that this category falls somewhere between the first and second. The appellate court cannot simply substitute its own assessment of proportionality for that of the lower court, as it would in the second category. Nor is it bound by the lower court’s assessment except on Edwards grounds, as in the first category.

How, then, should an appellate court proceed in that third category of cases? Singh LJ identified something of a lacuna in the case law on this point. Taking CPR 52.21 as his starting point, his Lordship concluded the appellate court must decide whether the lower court’s assessment of proportionality was “wrong”. In practice:

“This means, first, that we are not simply rehearing the case as if we were the court of first instance. Secondly, findings of fact by the lower court must ordinarily be respected, especially if it has heard oral evidence on factual matters that were in dispute. Thirdly, the focus must be on the outcome of the assessment of proportionality. We are not confined to asking whether the lower court erred in law or reached a conclusion which was not reasonably open to it. There is a spectrum but if, at the end of the day, we consider that the outcome of the assessment of proportionality was wrong, we can and should say so.”

It is submitted that, in this third category of cases, the appellate court is performing a similar function in relation to the lower court’s decision as the lower courts are in relation to the decision of the executive. In both cases, there is a margin of appreciation (respectively, to the lower court’s factual findings and the views of the executive); the court is not remaking the decision for itself; but must treat the matter as one of substance rather than process, going deeper than a simple review of the decision’s rationality. In effect, the court is considering whether the outcome of the decision is HRA 1998-compatible, insofar as it strikes a fair balance between the objective sought and the Convention rights of those whom that decision affects. That is not the same as remaking the decision itself.

Comment

Practitioners can take heart that even Court of Appeal judges find some of the previous judicial guidance on the proportionality principle “apt to mislead unless read very carefully.” This judgment provides some welcome clarity as to how the courts will approach the proportionality principle as it applies in different factual situations.

For public authorities, the judgment is a useful reminder of the structured approach that the courts will take, following the Bank Mellat four-stage test, to decisions which engage the proportionality principle. Documenting decisions in a way which follows this structured route to assessing proportionality will ensure those decisions are at lower risk of successful challenge in the future. Where decisions that engage Convention rights are concerned, the matter ought always to be, as Singh LJ put it, “not a question of process but a matter of substance”.