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Lucy_Hayes_phThis is the most recent in a string of cases in which the Supreme Court have considered whether proportionality should supplant rationality as the essential substantive (as opposed to procedural) ground at common law for judicial review and if so now how a proportionality test should differ from a rationality one. This judgment does not resolve those questions, but paves the way for it to be considered in detail in the near future.

Background

Mr Youssef is an Egyptian national who came to the UK in 1994, claiming to have been harassed and targeted by Egyptian security forces under then-President Hosni Mubarak. In 1999, he was tried and convicted in absentia by an Egyptian military court for being a member of the terrorist group Egyptian Islamic Jihad.

He was refused asylum in the UK on the basis that there were serious reasons for considering that he was guilty of acts contrary to the purposes and principles of the UN. In 1998 he was arrested and detained in the UK on suspicion of terror-linked activities but was ultimately released without charge. An attempt to deport him was unsuccessful when it came to light that the evidence against him in the Egyptian proceedings was likely to have been obtained through torture.

In 2005, the Egyptian Government requested that the Sanctions Committee of the United Nations Security Council include Mr Youssef on a list of persons “associated with Al-Qaida” and therefore subject to an asset freeze. The UK initially exercised its right to place a hold on Mr Youssef’s designation on this list, knowing of the likelihood that the supporting evidence had been obtained by torture. However, following a separate UK security service assessment based on distinct information, this hold was removed.

The UK Government later decided that Mr Youssef no longer met the criteria for designation, and from 2009 to 2012 actively supported his removal from the list. In 2010, Mr Youssef requested that the Secretary of State extend the request for delisting to include the ground that the Committee’s decision was based on evidence tainted by torture. This request was refused.

In 2014, the Security Council Ombudsperson (who considers applications for delisting) recommended that Mr Youssef be retained on the list. Her decision excluded evidence obtained by torture and was based on public statements made by Mr Youssef which indicated support for Osama Bin Laden and Al-Qaida. The Secretary of State then informed Mr Youssef that he agreed with the Ombudsperson’s recommendation, and would no longer support de-listing.

Appeal based on standard of review

Mr Youssef brought an application for judicial review of, firstly, the legality of the Secretary of State’s decision in 2005 to lift the hold on Mr Youssef’s inclusion on the list, and secondly, the Secretary of State’s refusal in 2010 to challenge the Committee’s potential reliance on torture-tainted evidence.

It was argued that as there had been an interference with fundamental rights (here, Mr Youssef’s right to peaceful enjoyment of his property), a review should not be restricted to “Wednesbury unreasonableness or irrationality”; it should instead have been a “full merits review” or a “proportionality analysis”.

Judgment

Whether the Supreme Court should authorise a general move from the traditional judicial review tests to one of proportionality has been considered in a number of cases recently (see our posts on Keyu, Kennedy and Pham). Lord Carnwath (with whom the other judges unanimously agreed) declined to resolve this issue, but hoped that “an opportunity can be found in the near future for an authoritative review in this court of the judicial and academic learning”. He referred with apparent approval to Lord Neuberger’s statement in Keyu that the implications of such a change could be wide ranging and “profound in constitutional terms”, and so should be considered by an enlarged court.

The court dismissed the submission that a merits review should have been undertaken by the court of first instance. While the Secretary of State’s decision could be judicially reviewable, it would not be appropriate for a national court to substitute its own assessment for the decision of the member states which constituted the committee.

The court agreed that Toulson LJ in the Court of Appeal had been “wrong to lay emphasis on a test based on ‘irrationality’”. Lord Carnwath considered that “there is a measure of support for the use of proportionality as a test in relation to interference with ‘fundamental’ rights”. However, he also considered that “in many cases, perhaps most, application of a proportionality test is unlikely to lead to a different result from traditional grounds of judicial review”.

On the facts, it was not shown that there was any aspect of the Secretary of State’s decision which was in fact open to challenge “even applying a proportionality test”. In any event, Mr Youssef had not shown that quashing the 2005 decision “would have any substantive effect on his present position” as it would not detract from the evidence in the Ombudsperson’s report which had prompted the Secretary of State to support Mr Youssef’s continued designation on the list. The Court emphasised that judicial review is a discretionary remedy, which does not require the court “to ignore the appellant’s own conduct, or the extent to which he is the author of his own misfortunes”. Although the Ombudsperson’s report was not formally in issue (it had only become available after the grant of permission to appeal), the fact remained that there was unchallenged evidence indicating that Mr Youssef was a strong vocal supporter of Al-Qaida.

Comment

The judgment makes it clear that where fundamental rights are interfered with, a proportionality approach to review will be appropriate. However, Lord Carnwath’s assertion that it is unlikely, in many cases, that a different result would be obtained using a proportionality test rather than traditional grounds of judicial review may indicate that there is less of a distinction between these doctrines than some commentators believe. The anticipated review may give a better definition of the doctrines and their differences, or may even assert that one of them is redundant.