“HIGH Court overrules May on Litvinenko inquiry”. So read the headline in the Financial Times’ report of the Divisional Court's decision in R. (Litvinenko) v SOSHD [2014] EWHC 194 (Admin). Media reports of court decisions are not especially known for their accuracy. However, on this occasion the use of the term “overrule” to describe the Court's approach to judicially reviewing the Minister's decision not to initiate a public inquiry is apt: the Court approached the case as though it was hearing an appeal from the Minister's decision rather than exercising a supervisory jurisdiction.

Andrew Litvinenko died in London in 2006. The likely cause of death was ingestion of radioactive material. Russia will not extradite those suspected of his murder. Once it was clear that criminal proceedings would not eventuate, the coroner began his inquest. He determined provisionally that his inquiry would include, inter alia, the possible culpability of the Russian state for Litvinenko's death; this determination relied on the view of counsel to the inquest that documents supplied by the UK Government established a prima facie case of Russian culpability, the coroner later endorsing this view in a provisional determination. However, these documents were subsequently excluded from the inquest according to public interest immunity. There being no provision for closed hearings in an inquest, the coroner determined provisionally, then finally, that the state culpability issue would inevitably be excluded from the inquest as it was not possible to conduct a proper investigation without the relevant documents.

In turn, the coroner wrote to the Lord Chancellor requesting that a statutory inquiry be established, on the basis that Litvinenko's death would not be investigated properly otherwise. The coroner considered that such inquiry should investigate all relevant issues pertaining to the death, including those that would otherwise be addressed by an inquest. He placed emphasis on the power of statutory inquiries to hold private hearings, which could be utilised to consider the documents relevant to the state culpability issue; the alternative was that this issue, of great importance in the coroner's view, would not be investigated.

By return letter the Minister advised that an inquiry would not be established, although the matter would be kept under review; in the meantime the inquest would continue. The Minister's decision was the subject of the review proceedings, brought by Litvinenko's widow. The Court quashed the decision.

The Court focused on the Minister's letter. That letter identified a number of “important factors” in favour of an inquiry, such as the coroner's informed view that one should be held and the power of an inquiry to consider sensitive material in private (at [22]). The letter also identified factors against holding an inquiry at this time. These were fully reasoned, and the full quotation of these reasons from the letter takes up two and a half pages of the judgment. They included that whether a public inquiry should be established is best judged at the conclusion of the inquest, that the material excluded from the inquest would not be made public through an inquiry anyway, the expense of an inquiry, and concerns of international relations.

The Court proceeded to pore over those considerations which the Minister considered told against an inquiry, finding fault with the Minister's reasoning, and ultimately finding the decision irrational. The considerations were subjected to the sort of forensic scrutiny an appellate court applies to lower court decisions. Various factors taken into account by the Minister were dismissed in the following terms: “The proposition … is … in my view a bad one”; “I have found the Secretary of State's reasoning difficult to accept”; the reasoning “fails to address the thrust of the Coroner's concerns”; and “[the Minister] will need better reasons” (at [61], [68], [72], [75]). These statements do not suggest a Minister taking leave of her senses, so that the decision was irrational in the Wednesbury sense. Rather they indicate that the Court disagreed with or was not itself convinced by the Minister's reasoning. Crucially, the Court never directed itself as to the appropriate standard of review. However, the standard in fact applied was laid bare in the Court's conclusion: “I have upheld the claimant's challenge to the adequacy or correctness of the … reasons given by the Secretary” (at [73]). This was correctness review, plain and simple.

Such approach would be impermissible even in review challenges concerning human rights, where the most intensive variant of Wednesbury is deployed; even in such a case the final question is whether the balance struck by the decision-maker was so unreasonable that no reasonable decision-maker could have come to it, rather than whether the decision-maker's reasoning was “adequate” or “correct”. Litvinenko was not a human rights case: the decision not to hold an inquiry was not one which was alleged to infringe any individual's human rights. Indeed, it is pertinent to record that the Court found that the investigative duties imposed under Article 2 ECHR were complied with in Litvinenko's case, irrespective of any inquiry.

Far from telling in favour of a sub-Wednesbury standard, the statutory context tells in favour of a very high threshold for judicial intervention, more akin to the super-Wednesbury standard associated with high-level political decisions. The Minister made her decision under the Inquiries Act 2005, s. 1, which states that the Minister “may” initiate an inquiry where “it appears to him” that “there is public concern that particular events may have occurred”. Whether events give rise to a public concern such that an inquiry is warranted is the sort of open-ended question on which reasonable people will naturally disagree, which in turn tells against courts readily intervening because they consider that the Minister's reasoning could be better: “it is not enough if a judge feels able to say, like a juror or like a dissenting member of the Cabinet or fellow-councillor, ‘I think that is unreasonable; that is not what I would have done’ ” (R. v SOSHD, ex p. Brind [1991] 1 A.C. 696, 765). Under the Act, whether an inquiry should be held is to be determined according to the Minister's subjective view. This further tells against any court imposing its own view of what sort of reasoning is permissible, as does the complete absence of any express constraints on the discretion. More generally the discretion is a wide one and it is clear from high authority that:

The general scheme of the Act is also relevant. That Parliament intended the relevant Minister to have ultimate responsibility for and maximal control over core decisions in respect of inquiries is evidenced by significant features of the Act: it is for the Minister to set and amend the terms of any inquiry, appoint the members of the panel and dismiss them, inform Parliament of establishment of an inquiry, and suspend or terminate the inquiry. Moreover, the final report is delivered to the Minister. Given the Act makes clear that decision-making over inquiries is the preserve of government, it is difficult to see how it could ever be permissible for a court to quash a Ministerial decision to hold an inquiry on the basis that the court was not itself convinced by the Minister's reasons for doing so; in principle, review of a refusal to hold an inquiry should be approached no differently.

The Court did observe the “very broad” nature of the discretion, and that the decision whether to hold an inquiry is “difficult and nuanced” (at [75]). This told against the Court declaring or mandating that the Minister must hold an inquiry. We may safely assume that it would be unthinkable for a court ever to issue a mandatory order against a high-ranking Minister in the context of one of the broadest subjective discretions on the statute book. Nonetheless, it is difficult to see how the Court, having identified these features of the discretion, failed to appreciate their relevance to the standard of review.

Another factor telling in favour of restraint is that the Minister is elected and a senior member of government. She has direct democratic legitimacy, which the court lacks, to determine whether an inquiry lies in the public interest. Also, she is responsible to and regularly called to account in Parliament, such that there is no pressing need for the court to act as an accountability mechanism. Further, the decision to establish an inquiry is in significant respects a decision over allocation of public funds; a concern that inquiries involve heavy expenditure is one of the key reasons for bestowing a Minister with wide discretion. Resource-allocation is a function quintessentially for the executive branch, removed from ordinary judicial experience, and with which courts should be reluctant to interfere. Similarly, given the lack of judicial experience of foreign relations and lack of judicial knowledge of the intricacies of the state of foreign relations between the UK and foreign powers (specifically Russia), the confidence with which the Court dismissed the Minister's invocation of such concerns as telling against an inquiry was striking.

None of these concerns – of legal principle, statutory context, or democratic and institutional legitimacy – were considered by the Court because it did not address what review standard ought to be applied. With respect, this was a serious omission.

Litvinenko should be sobering reading for those who advocate supplantation of the Wednesbury standard, a long-standing totem of non-intervention, with a free-standing proportionality or reasonableness-simpliciter standard, and invoke the judicial capacity for self-discipline as the counter-balance which would legitimise such a grand expansion of judicial power.