Proportionality assessment in Human Rights cases: Court of Appeal sets out approach to be taken by the courts

The Court of Appeal dismissed two appeals concerning decisions made by Government ministers under the Russia (Sanctions) (EU Exit) Regulations 2019 (the “2019 Regulations”). In doing so, the court discussed at length the role of both a first-instance court and an appellate court when reviewing decisions based on proportionality under the Human Rights Act 1998 (“HRA”): Dalston Projects Limited v Secretary of State for Transport and Eugene Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWCA Civ 172

Key Points

• The first-instance court's role is to determine for itself whether an act is substantively compatible with a European Convention of Human Rights (“ECHR”) right. It is not limited to reviewing the public authority's decision-making on conventional public law grounds such as whether it was rational.
• The court does not step into the role of primary decision maker but is still limited to a reviewing function, and may afford a greater or lesser measure of respect to the balance of rights and interests struck by the public authority, depending on the context.
• When considering an assessment of proportionality made on the facts of an individual case by a first-instance court, an appellate court must consider whether the assessment was "wrong". It is not confined to asking whether the court below had erred in law or reached a conclusion not reasonably open to it.

Background

In conjoined appeals, the appellants appealed their unsuccessful challenges against decisions taken by Secretaries of State pursuant to the sanctions regime which addresses the Russian invasion of Ukraine, namely, the 2019 Regulations made under s1 of the Sanctions and Anti-Money Laundering Act 2018 (“SAMLA”). Under ss 38-40 of SAMLA, which provides for court review of certain sanctions decisions, the court must apply the principles applicable in judicial review. The Court of Appeal dismissed both appeals.

Judgment

Before turning to the individual appeals, the Court of Appeal considered in depth the correct approach to reviewing decisions involving an assessment of proportionality under the HRA, noting that although much has been said about these principles they were not always as well understood as they needed to be.

The role of the first-instance court

The question of whether an act is incompatible with an ECHR right is a question of substance for the court itself to decide; the court's function is not limited to reviewing the decision of a public authority. This departs from the court's focus in typical judicial review proceedings. The question whether a measure is proportionate or not involves a more searching investigation than application of the rationality test. 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.

However, the court is not the primary decision-maker and in reviewing a public law decision, it must stop short of transferring such power to itself. The court may make room for appropriate respect to be given to the views of the decision maker and the balance of rights and interests struck, but it is not bound to the decision subject only to review on the grounds of rationality. How much deference, or weight to accord to the decision-maker's views, will depend on the context, including (1) the importance of the right; (2) the degree of interference; and (3) the extent to which the subject matter is one in which the courts are more or less well placed to adjudicate, both on grounds of institutional expertise (e.g. they are the guardians of due process but are much less familiar with an area such as the conduct of foreign relations or national security) and democratic accountability (e.g. when it comes to social and economic policy, including the allocation of limited resources).

The role of the appellate court when considering a proportionality decision by a first-instance court

The normal function of the Court of Appeal under CPR 52.21(1) is to review the conclusion of the first-instance judge, rather than rehearing the issue afresh. The Court of Appeal explained that where an appellate court is considering a decision on proportionality by a first-instance court on the facts of an individual case, it must determine whether the latter's assessment of proportionality was "wrong". In doing so, the appellate court is not confined to asking whether the lower court had erred in principle or whether its conclusion had been reasonably open to it. 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, but if the appellate court considers the proportionality assessment to be wrong, it can and should say so.

Singh LJ (giving the leading judgment) also considered other categories of cases. In cases concerning the compatibility of a rule (including primary legislation) or policy with ECHR rights (as opposed to cases where there has been an assessment of proportionality on the facts of an individual case) the appellate court will not accord any deference to the assessment of proportionality by the lower court, but will carry out its own assessment i.e. it may substitute its own assessment of proportionality for that of the lower court.

Dalston Projects v Secretary of State for Transport

This was a challenge to the Transport Secretary's decision to detain a luxury yacht while it was moored in London on the ground that it was owned, controlled or operated by a person connected with Russia under the 2019 Regulations. The purpose of the detention was said to be to exert pressure on oligarchs, and in turn the Russian regime.

The challenge was on grounds including that that the Secretary of State had used the 2019 Regulations for an improper purpose (under the Padfield principle) and that the detention was an unlawful interference with his right to peaceful enjoyment of his property under Article 1 of the First Protocol (“A1P1”) of ECHR. The court rejected the grounds at first instance.

The grounds of appeal included that the judge’s approach to assessing proportionality under A1P1 was flawed because he stated that the Secretary of State need not demonstrate the effectiveness of each individual detention in achieving the ultimate goal of the sanctions.

The Court of Appeal held that the first-instance judge had not misdirected himself regarding the correct legal approach to the assessment of proportionality. Importantly, the court confirmed that it is the overall effect of the detentions made under the 2019 Regulations that must be considered when determining whether the act was rationally connected to the aim of the legislation, and not the efficacy of each individual detention, noting the common sense point that it would be difficult to demonstrate that any one decision would itself achieve the desired foreign policy outcome. The judge's assessment of proportionality was not wrong. All other grounds of appeal were also dismissed.

Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs

The claimant, a British citizen, challenged decisions of the Foreign Secretary to “designate” him as being subject to an asset freeze under the 2019 Regulations on the bases that there had been a disproportionate interference with his rights under Article 8 (right to private and family life) and A1P1 ECHR. The decision had been made because the claimant was believed to have received significant financial benefits by way of his association with Mr Abramovich, who himself was designated, and an entity carrying on business in sectors of strategic significance to the Government of Russia.

The claim was dismissed at first instance, where the judge concluded that the Secretary of State's proportionality analysis was reasonable. For more information on the first-instance case, see our blog post here.

The fundamental point made on behalf of the appellant was that the judge erred by considering that the court's task was limited to assessing whether the Secretary of State's ultimate conclusion on proportionality was properly open to him rather than conducting the exercise for himself. In light of its own clarifications on the role of the court in reviewing proportionality decisions, the Court of Appeal allowed this ground of appeal, confirming that the court should not be concerned with whether the executive's decision-making process was reasonable – the court's focus must be on conducting the proportionality assessment itself. The first instance judge had confused the need to show appropriate deference to the views of the decision maker with the different question of the court forming its own assessment. However, the Court of Appeal found that it was in a good position to remake the assessment, rather than remit it back to the lower court.

Having considered the issue for itself, the Court of Appeal went on to confirm that the designation decision was proportionate. It was held that a fair balance had been struck between the appellant's rights and the interests of the community. Notably, the court added that "sanctions often have to be severe and open-ended if they are to be effective".

Comment

The Court of Appeal has made it clear that the court should assess proportionality under the HRA for itself, and is not limited to simply considering the rationality of the public law decision maker's assessment. There is therefore greater scope for judicial examination of the underlying decision and its rationale than in other areas of public law challenge.

While on the face of it this decision seems to emphasise the important role that both the first instance and appellate courts play in substantively assessing the proportionality of public bodies' decisions, it ultimately upholds the respective positions of the Secretaries of State. Even when conducting their own assessment, the courts typically show deference to the decisions of public bodies regarding complex policy issues, and this is particularly pertinent in issues of foreign policy and national security where the courts may be especially reluctant to interfere with Government decisions given the sensitivity of the issues at play. The same will not necessarily be true in other spheres and the court must not abdicate its responsibility under the guise of according due weight to the views of decision-makers.