In the recent judgment of Youssef v Secretary of State for Foreign and Commonwealth Affairs  UKSC 3, the Supreme Court highlighted the need for a review of the law on the use of the proportionality test, which may extend beyond the realms of EU law and the European Convention on Human Rights (“ECHR“).
The question in Youssef
In 2013, the appellant brought a judicial review challenging the Secretary of State’s decision to place him on the United Nations’ Consolidated List (the “UN List“) of members of Al-Qaida and its associates. His application was refused and his appeal to the Court of Appeal was unsuccessful. In the Supreme Court one of the appellant’s submissions was that the Court of Appeal had erred by reviewing the decision on the grounds of irrationality. The appellant argued that, given the grave consequences of being placed on the UN List, such as asset freezing, the traditional Wednesbury standard of review, of unreasonableness or irrationality, was insufficient. Instead, he claimed that he was entitled to a full merits review or, failing that, a proportionality assessment, usually limited to cases involving breaches of the ECHR or EU Law.
The Court’s analysis of proportionality
Emphasising the judicial support for the use of proportionality as a test in cases involving an interference with “fundamental rights”, Lord Carnwath referred to the recent case of Pham, in which the Supreme Court endorsed a more flexible approach in reviewing interference with important legal rights. Given the fundamental rights infringed by asset freezing, the reasonableness standard expressed in the Wednesbury test, was inappropriate, regardless of whether those rights derive from the ECHR or common law. Proportionality was the correct approach to take in such a case.
Despite this, Lord Carnwath, delivering the only judgment, continued by noting 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.”
This would especially be the case where national security matters were at risk, where a large margin of discretion would be accorded to the decision-maker. As a result, the Supreme Court questioned whether a proportionality test would have made a difference to the decision being challenged. Ultimately, the Court held that the appellant had failed to identify any particular aspect of the reasoning in the decision which would be open to challenge, even if a proportionality test were applied. As a result, the Supreme Court dismissed the appeal.
Perhaps most notably, Lord Carnwath underscored the importance of a thorough review of the law on proportionality by the Supreme Court in the near future. Paving the way for a detailed consideration of the role of proportionality in judicial review, Lord Carnwath added that:
“Such a review might aim for rather more structured guidance for the lower courts than such imprecise concepts as “anxious scrutiny” and “sliding scales”.”
The Supreme Court appears to envisage a comprehensive consideration of the standards of review that apply in judicial review cases with the aim of resolving the increasing uncertainty around the doctrine of proportionality following recent cases such as Pham v Secretary of State for the Home Department  UKSC 19,  All ER (D) 266 (Mar) and Bank Mellat v HM Treasury (No 2)  UKSC 39;  AC 700.
Hot on the heels of Pham, the decision in Youssef emphasises that the courts are willing to apply a proportionality-based approach outside the sphere of breaches of the ECHR or EU Law. It is evident that the interference of fundamental rights will merit a proportionality analysis, though the intensity of the review will depend upon the context of the decision. Yet, following the Supreme Court’s assertion that, in many cases, a proportionality approach may not result in a different outcome from an irrationality analysis, it is questionable whether there is a clear distinction between the two approaches. A thorough review of the position of proportionality in judicial review would therefore be welcome, not only to clarify the standard of review to be conducted by the courts, but also to delineate the boundaries between irrationality and proportionality.