Keyu v Secretary of State for Foreign and Commonwealth Affai...

Facts

• The case concerns the 1948 Batang Kali killings in Malaya, in which 24 unarmed civilians were killed by British troops.
• The claimants, relatives of the deceased, sought a public inquiry into the incident.
• The UK government refused to conduct a public inquiry.
• The claimants challenged the refusal, arguing it was unlawful on grounds of irrationality under the Wednesbury standard and, alternatively, on proportionality grounds.

Issues

1. Whether the government's refusal to hold a public inquiry into the Batang Kali killings was irrational under the Wednesbury unreasonableness standard.
2. Whether proportionality should replace or supplement the Wednesbury standard as the test for judicial review outside the context of EU law and the European Convention on Human Rights.
3. Whether a more structured proportionality test offers a preferable framework to the Wednesbury standard for reviewing administrative decisions, particularly where fundamental rights are at stake.

Decision

• The Supreme Court dismissed the appeal, upholding the government's refusal to order a public inquiry.
• The Court acknowledged the increased prominence of proportionality in judicial review but declined to replace the Wednesbury standard with proportionality in all cases.
• Lord Neuberger emphasized that any change from Wednesbury to proportionality would require comprehensive consideration by a larger panel due to its constitutional significance.
• The Court maintained that existing standards should not be altered by the current bench without broader review.

Legal Principles

• The Wednesbury unreasonableness standard sets a high threshold for judicial intervention, requiring a decision to be so unreasonable that no sensible authority could have made it.
• The proportionality test, prominent in EU law and ECHR contexts, asks whether a measure is suitable, necessary, and balances individual rights with the public interest.
• The Supreme Court highlighted the significant constitutional implications of shifting from Wednesbury irrationality to proportionality in general judicial review cases.
• The judgment left open the possibility of adopting proportionality in future cases, especially those involving fundamental rights.

Conclusion

The Supreme Court in Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 reaffirmed the Wednesbury standard for judicial review and declined to universally adopt proportionality, while recognizing the potential for further consideration of this approach in future cases involving administrative decisions and fundamental rights.