I’ve just finished reading a fascinating paper titled ‘Proportionality and Invariable Baseline Intensity of Review’, by Professor Cora Chan. The paper deals with judicial review standards of legislative action under the UK Human Rights Act, and addresses many of the issues that we have touched upon in our discussion of the educational disqualifications case. In particular, borrowing from Joseph Raz, Professor Chan introduces a helpful distinction between “first-order” and “second-order” justifications that the State might adduce in justifying action under challenge. First-order justifications pertain to the merits of the case. In the educational disqualifications case, for instance, first-order justifications involve the government producing evidence to show that uneducated people are unsuited to perform the tasks of governance. The Court can evaluate this evidence alongside contrary evidence offered by the other side, or even on its own terms, and decide if the State’s case is made out. Second-order justifications, on the other hand, involve the State not producing evidence of its claim, but arguing that the Court should refrain from evaluating evidence in the first place, and trust or defer to the State’s unsubstantiated/unproven evaluation. This could be because the State has greater institutional competence or greater legitimacy to balance the competing considerations and arrive at a conclusion. Again, in the educational restrictions case, second-order justifications involve the State arguing that the link between education and governance requires data the State is better placed to evaluate, and that therefore the Court should not substitute its own judgment; or, alternatively, that this is a question of policy that the State can legitimately act upon.
Professor Chan argues that second-order justifications do not have equal force in all cases; they strength of the justifications depend upon the nature of the right, the extent of the restriction, and so on; and indeed, the justifications must themselves be justified by evidence (e.g., the State’s prior record of success or failure). The nub of the paper, in my view, is in the following paragraph:
“The government proves its case solely with first-order reasons of institutional competence when it can adduce reasons and evidence to persuade the court on the merits that it is correct. It relies on second-order reasons of superior intelligence-gathering ability when it claims that there is useful information to support its case but it cannot reveal such information to the court. It relies on second-order claims of superior expertise when it claims that it has general expertise in deciding this kind of issue (eg national security questions) but is unable to persuade the court on the merits of the particular case in question. These second-order claims can only be validly established if the government body can adduce evidence, such as its institutional features, qualifications and past performance, to persuade the court that it indeed possesses the said general expertise or useful intelligence. Likewise, a second-order claim of superior democratic legitimacy in making a certain decision can only be established if the government can produce evidence, such as the degree of public participation in the decision-making process, to show that the decision was indeed democratically made. If a court grants second-order claims without probing their evidential basis, it would be granting mere assertions or presumptions about the government’s superior institutional competence – neither of which can count as cogent second-order reasons.”
In any case, through its extensive review of doctrinal developments in the common law world, the article shows that more and more, jurisdictions are beginning to adopt nuanced and sensitive standards of review of State action where important rights are at stake, and are increasingly abandoning the unsatisfactory, Wednesbury-oriented “rational review” standards. The article deals with questions regarding the burden of proof, the standard of proof, evaluation of evidence, and questions or proportionality, and shows that each question requires searching theoretical discussion.
It is to be hoped that sensitivity to the nuances involved in such cases eventually finds its way into our Article 14 jurisprudence as well.