You Say “Tomato”, I Say “Reasonableness”: Pham v Secretary of State for the Home Department [2015] UKSC 19

Shortly after a majority of the Supreme Court of Canada wrote that when fundamental rights are engaged by an administrative decision, “reasonableness requires proportionality” (here, at para. 38), the members of the UK Supreme Court said something very similar in Pham v. Secretary of State for the Home Department, [2015] UKSC 19.

The case was procedurally complex but the main issue was a relatively straightforward one: whether the minister could exercise his discretion to deprive P of British citizenship. P, who was born in Vietnam, argued that this would leave him stateless. Counsel for P also submitted that this would be a violation of European Union law. The Court did not engage with this point on the merits, as it had not been raised before the first-instance decision-maker. Nonetheless, its members took the opportunity to deliver some guidance on the relationship between proportionality and reasonableness.

Lord Neuberger, Lady Hale and Lord Wilson agreed separately with the independent sets of reasons given by Lord Carnwath, Lord Mance and Lord Sumption, but they did not agree with Lord Reed.

Lord Mance was particularly forthright. He saw no difference between EU proportionality and domestic reasonableness review in this context:

Removal of British citizenship under the power provided by section 40(2) of the British Nationality Act 1981 is, on any view, a radical step, particularly if the person affected has little real attachment to the country of any other nationality that he possesses and is unlikely to be able to return there. A correspondingly strict standard of judicial review must apply to any exercise of the power contained in section 40(2), and the tool of proportionality is one which would, in my view and for the reasons explained in Kennedy v Charity Commission, be both available and valuable for the purposes of such a review. If and so far as a withdrawal of nationality by the United Kingdom would at the same time mean loss of European citizenship, that is an additional detriment which a United Kingdom court could also take into account, when considering whether the withdrawal was under United Kingdom law proportionate. It is therefore improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or whether it was also required to be conducted by reference to a principle of proportionality derived from Union law (at para. 98).

So proportionality is certainly an independent head of review for some cases — note the reference to “such a review” of a “radical step” — arising at common law , which is virtually indistinguishable from the test applied in EU law.

Lord Sumption noted that in recent decades, English courts have expanded “the scope of rationality review so as to incorporate at common law significant elements of the principle of proportionality” (at para. 105). There is now “a sliding scale, in which the cogency of the justification required for interfering with a right will be proportionate to its perceived importance and the extent of the interference” (at para. 106). In a passage reminiscent of recent Canadian commentary on the nature of reasonableness review, he said:

It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject-matter…In some cases, the range of rational decisions is so narrow as to determine the outcome (at para. 107).

Lord Carnwath said P had “not shown how” the application of the principle of proportionality “would differ in practice” from the application of a context-sensitive standard of common law unreasonableness (at para. 59). Writing only for himself, Lord Reed found it “helpful to distinguish between proportionality as a general ground of review of administrative action, confining the exercise of power to means which are proportionate to the ends pursued, from proportionality as a basis for scrutinising justifications put forward for interferences with legal rights” (at para. 113). He was the only member of the Court who suggested outright that proportionality might be a general ground of review in all situations.

Does this mean that reasonableness and proportionality have now — for all practical purposes — dissolved into one flexible reasonableness standard which depends on context? Has Pham passed the “spaghetti junction” through the common law blender to make administrative law doctrine more digestible? Not so fast. As Lord Sumption observed in Pham: “The suggestion that at common law the court cannot itself assess the appropriateness of the balance drawn by the Home Secretary between his right to British nationality and the relevant public interests engaged, is in my opinion mistaken” (at para. 108). And the Supreme Court of Canada has never repudiated its statement that, on reasonableness review, a reweighing of the factors considered by an administrative decision-maker is strictly forbidden (Canada (Citizenship and Immigration) v. Khosa, [2009] 1 SCR 339, at para. 61).

These statements are difficult to reconcile with the requirement of the proportionality doctrine that courts assess whether there is a less restrictive alternative means and whether an appropriate balance has been struck between means and ends. It is perhaps not impossible to reconcile reasonableness and proportionality — as Paul Craig notes, both approaches are similar — but it seems to me that changes to one or both doctrines would be required.

For the record, my own view, explained in chapter 5 of A Theory of Deference in Administrative Law, is that reasonableness and proportionality are distinct and should be kept apart. I am also dubious about the sliding scale metaphor. But it is undeniable that proponents of unification will find much in Pham to give volume to their arguments.

This content has been updated on April 7, 2015 at 14:23.