In Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 the Supreme Court held (by majority) that the government's decision not to hold a statutory inquiry was lawful. However, the executive's statutory discretion as to whether or not to order an inquiry is subject to the Court's jurisdiction. The case also provides further insight into the potential development of proportionality as a ground of judicial review.

1. Key Points

  • The executive's decision as to whether or not to hold an inquiry under the Inquiries Act 2005 (the "2005 Act") is susceptible to judicial review under the traditional grounds.
  • While the decision in Keyu does not move the position much further in addressing the question of whether or not to expand proportionality as a ground of review outside its current remit of cases involving an element of EU law or in relation to challenges based on a right under the European Convention on Human Rights (the "ECHR"), it does provide some insight into the thinking of the Supreme Court on this issue.

2. Background

The Appellants challenged the government's refusal to investigate or establish an inquiry into the killing of unarmed civilians by British soldiers in Malaysia in 1948. The Appellants were relatives of the victims and sought to argue that an inquiry was required under:

  1. (i) Article 2 ECHR (right to life);
  2. (ii) principles of customary international law as incorporated by the common law; and
  3. (iii) the common law by way of judicial review of the Respondents' exercise of discretion under section 1 of the 2005 Act.

Ground (iii) concerned the Respondents' decision not to order an inquiry in 2010/2011 under section 1 of 2005 Act. The Appellants argued that the decision was unlawful and should be quashed accordingly. The Appellants also raised the argument that the time had come to reconsider the basis on which the Courts review administrative decisions, and in particular that the traditionalWednesbury rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality. This meant asking the Court to extend proportionality as a ground of review beyond its current remit of cases involving an element of EU law or where the challenge relates to a right under the ECHR to all administrative challenges – or, at the very least, to challenges involving a fundamental common law right. The Respondents pointed to the reasons given for refusing to hold an inquiry under section 1 of the 2005 Act in 2011/11 as demonstrating the reasonableness and rationality of that decision.

3. The Decision

A majority of the Supreme Court dismissed the appeal on all three grounds. Lady Hale dissented on ground (iii) and would have allowed the appeal.

Judicial review of a decision on whether or not to hold an inquiry

The Court explained that where a member of the executive is given a statutory discretion to take a certain action the Court has jurisdiction to overrule or quash the exercise of that discretion under the traditional grounds for judicial review. In this case, the executive took the decision not to hold an inquiry under the discretion granted in section 1 of the 2005 Act. However, the limit to the exercise of the Court's jurisdiction to judicial review is the well-established principle that the member of the executive is the primary decision-maker and generally better placed than a judge to take the decision in question. An executive decision as to whether or not to hold an inquiry can only be overruled by a court if (i) it was made in excess of jurisdiction, (ii) it was effected for an improper motive, (iii) it was an irrational decision, or (iv) the decision-maker took into account irrelevant matters or failed to take into account relevant matters. The Court thus reaffirmed the traditional grounds for judicial review as the relevant circumstances in which executive actions taken under section 1 of the 2005 Act are susceptible to judicial review.

Common law irrationality challenge

The Court dismissed this ground by majority finding that the Respondents' refusal of an inquiry was not irrational nor Wednesbury unreasonable. Lord Neuberger noted that the Respondents "clearly considered the request for an inquiry seriously and rejected it for reasons which are individually defensible and relevant, and which cumulatively render it impossible to characterise their conclusions as unreasonable, let alone irrational". Some of these reasons included the fact that the different legal backdrop in 1948 meant that any conclusions about the training and command structure of the British Soldiers in 1948 would be of little practical value in the present day and that it was doubtful whether an inquiry could reveal much about earlier investigations given that they were undertaken many years ago.

Lady Hale dissented on this point and found that the Respondents did not take into account "all the possible purposes and benefits of such an inquiry". These included "bigger picture" issues like the public interest in properly inquiring into an event of such magnitude and the private interests of the relatives and survivors. The Respondents' decision, in Lady Hale's view, was therefore not one which a reasonable authority could reach.

Proportionality as a separate ground of judicial review at common law

The Court did not pick up the gauntlet of proportionality and run much further with it than it had in the previous cases of Kennedy v Charity Commission [2015] AC 455 and Pham v Secretary of State for the Home Department [2015] 1 WLR 1591 where various members of the Court acknowledged in obiter comments the "degree of correspondence" between rationality and proportionality as standards of substantive review. Lord Neuberger and Lord Kerr both considered that a five member bench could not determine the issue, as accepting or rejecting that proposition potentially had profound constitutional implications. It would require the Courts to consider the merits of a decision and the balance struck by a decision maker between competing interests, while being careful not to displace the relevant member of the executive as the primary decision maker. In any event, Lord Neuberger considered that the Claimants' would not succeed even if proportionality was the applicable standard of review. Lord Kerr noted some of the "interesting issues" in this debate such as whether irrationality and proportionality are mutually exclusive standards of review and whether it is the structure of proportionality that provides clarity and transparency. Lord Kerr and Lady Hale both agreed, however, that extending proportionality to cases involving a fundamental common law right was one thing but applying proportionality across the board to all cases (e.g. as in the instant case where the issue concerned whether or not to hold an inquiry) would be difficult.

4. Comment

The Court's decision in Keyu on the proportionality issue was much-anticipated in light of Kennedy and Pham. However, the various judgments have raised more questions than they have answered and the status quo remains the same: proportionality is not available as a ground of review unless the case involves an element of EU law or a right under the ECHR. In all other cases, challenges should be brought on a rationality basis. This case also confirms that the traditional heads of review are grounds for challenging executive decisions on whether or not to hold an inquiry under section 1 of the 2005 Act.