Proportionality

What is proportionality

Proportionality is a standard of review developed by the courts which is used to determine

the lawfulness of a public authority’s reasoning for infringing upon private rights.
Proportionality is used to assess whether in achieving a legitimate aim, a decision-maker has
done no more than is necessary to achieve that aim; the conduct has been proportionate to
the outcome. This standard engages courts in the merits of public decision-making more
carefully than traditional review standards which is why it has been considered
controversial.

The development of the doctrine

The proportionality principle has grown to become a recognised feature within English
administrative law after an uneasy introduction. The doctrine was established in
governmental law in many countries within the European Community (EC) by the mid 1980s
and thus, was an important feature of the general principles of European Community law as
seen in Bela-Mühle v Grows-Farm GmbH (1977).

This standard was used by the European Courts of Justice and the European Court of Human
Rights (ECtHR) to examine the legality of states’ intervention in fundamental rights to
ensure a public decision does not restrict private interests more than is necessary for
achieving its objective. The fundamental rights concerned are those protected by European
Law under the European Convention of Human Rights (ECHR).

Proportionality was applied into English law through section 2 of the now repealed
European Communities Act 1972 but it wasn’t until 1990s that it was recognised in our
courts. Prior to this, the traditional bases for challenging public decisions through judicial
review (JR) was on three grounds: illegality, unreasonableness and procedural impropriety
(Associated Provincial Picture Houses v Wednesbury Corporation [1947]). Typically, the only
means to challenge the justification for, or merits of, a public body’s decision was through
unreasonableness, as stated by Lord Greene in Wednesbury.

To accommodate this high threshold, two varying Wednesbury standards developed: 1)

“sub-Wednesbury” and 2) “super-Wednesbury”. The former is high intensity where courts
apply more intense or “anxious” scrutiny (Bugdaycay v SoS for Home Department [1987])
and generally concern cases involving fundamental, human rights. The latter is low intensity
with a higher degree of deference for cases concerning economic or social policy; areas
courts feel are outside their jurisdiction and the ambit of JR (Nottinghamshire CC v SoS for
Environment (1986)).

However, it emerged that these two standards were not enough for the exacting, intense
enquiry needed for reviewing fundamental rights. This was first seen in ex parte Smith
(1995) where it was found that employment dismissal on the grounds of private sexual
preference demonstrated lack of respect. When the case reached the ECtHR, it was held
that the sub-Wednesbury standard that had been applied, was not intense enough to satisfy
ECHR standards. The ECHR found the applicants’ discharge from the Royal Navy based on
sexuality, a breach of Article 8, right to a private life. The case gave rise to suggestions of
reform of Wednesbury unreasonableness so that with cases concerning fundamental rights,
decisions are made proportionately to the legitimate aim pursued.

There continued to be judicial caution towards this potential new standard, seen in ex parte
Brind (1991) where the decision was challenged through grounds of it being Wednesbury
unreasonable and disproportionate. Yet the court declined to recognise a wholly
independent ground of proportionality.

However, with the introduction of the Human Rights Act (HRA) 1998, proportionality
became a further established standard for cases brought under the HRA (R (Daly) v SoS for
Home Department (2001)). In Daly, Lord Cooke openly criticised Wednesbury standards
stating that the time will come to recognise that “Wednesbury…was an unfortunately
retrogressive decision in English administrative law…[by suggesting] there are degrees of
unreasonableness and only a very extreme degree can bring an administrative decision
within the legitimate scope of judicial invalidation.”

This attitude appeared to become more widespread with Lord Slyn claiming proportionality
should be recognised as an established principle of administrative law in R (Alconbury) v SoS
for Environment, Transport and Regions [2001]. The first direct Supreme Court (UKSC)
engagement with proportionality was then seen in Pham v SoS for Home Department
[2015] where discussion recognised it for its precise and exacting legal assessment which no
previous tests had achieved.

Furthermore, in R (ABCI – Far East Region) v SoS for Defence (2003) it was stated that
proportionality should be judicially recognised by UKSC to replace Wednesbury
unreasonableness. This was confirmed by Lord Neuberger in Keyu v SoS for Foreign and
Commonwealth Affairs [2015] stating that such a change in English constitutional law would
need full UKSC sanction.

This ongoing discussion and judicial debate was recognised in Youssef v SoS for Foreign and
Commonwealth Affairs [2016] with Lord Carnwath calling for an “authoritative review” of
this area to replace confusion and uncertainty of “imprecise concepts as “anxious scrutiny”
and “sliding scales”.

Despite this increasing discussion and inclination to give proportionality formal

representation, at present, proportionality is still not an available ground for JR.

Controversy of proportionality

The development of a new ground of JR through the common law is clearly problematic
constitutionally. As the House of Lords (HoL) stated in Brind, the courts modification of
common law to produce a new ground, without statutory recognition, appears to be a
possible “usurpation of legislative power”. Lord Lowry claimed: “There can be little room for
judges to operate an independent judicial review proportionality doctrine in the space left
between the conventional judicial review doctrine and the admittedly forbidden appellate
approach” and Lord Ackner was equally conclusive that: “there appears at present, no basis
upon which the proportionality doctrine…can be followed by the courts”.

This seems perhaps an over-exaggeration given that proportionality does not require courts
adopt an appellate jurisdiction. However, there is reasoning that the concept of
proportionality comes close to an overt control of the merits of a decision, i.e. its inherent
rights and wrongs. This appears at odds to the nature of JR which aims to challenge the
process of decision-making, not the actual decision itself. Perhaps it is thus unsurprising that
many see proportionality as a threat to the foundations of English administrative law and
the rule of law.

Furthermore, there are practical issues with proportionality, recognised in ex parte Hook; it
can result in courts invalidating decisions that many might consider sensible. In Hook, a
council’s admonishing of a market stallholder by removing his licence for urinating in the
street was considered excessive. However, it clearly had a legitimate aim of encouraging
respect of hygiene standards and safeguarding employees and other stallholders from
abuse. Thus, the sanction appears as not disproportionately severe yet the court found it
irrational. This problem could be heightened if proportionality was formally construed in law
which would oblige courts to consider intensely if a decision-maker had given correct weight
to a matter.

My opinion

I feel there has been a slight over-exaggeration from courts in the caution with which they
have approached proportionality. Whilst there is no doubt it would be a substantial change
to the current state of law, I do not think it poses a threat to England’s administrative
constitution, especially if controlled within strict guidelines.

I believe there would be substantial benefit replacing Wednesbury unreasonableness tests

with proportionality. Whilst the HoL in Daly rejected the proportionality approach, I agree
with their views on the material differences between unreasonableness and proportionality,
namely the emphasis on requirements of proportionality and legitimate expectation. This
necessity test is the focus of the scrutiny which is not seen under Wednesbury. As Lord
Manse commented in Kennedy v The Charity Commission 2014: “The advantage of
proportionality is that it…[directs] attention to factors such as suitability or appropriateness,
necessity and the balance or imbalance of benefits and disadvantages. There seems no
reason why such factors should not be relevant in [UK] judicial review”.

I agree with Lord Manse; there appears no reason why these factors should not be
considered within UK public law. There seems much sense in Europe’s approach of having a
separate law of public administration to supervise activities of the state with principles of
legitimate expectation and proportionality, to strike a balance between exercising public
functions and protecting private interests. This is because when a case concerns
fundamental rights, it is necessary for there to be a more exact level of scrutinisation
because the stakes are arguably that much higher/more significant to those involved.

Whilst there is a possible argument that doing so could open the floodgates to
proportionality claims, overall, I think proportionality review could be used successfully if
strictly applied depending on the subject matter and circumstances of the case and only in
relation to cases where fundamental/human rights are being impinged by the state.
Arguably, it may not need to be an entirely new judicial ground of review itself, but more a
replacement test within the ground of unreasonableness. Of course, all of this could vary in
light of the findings from the Faulks inquiry which is throwing into question the very
existence of judicial review as it currently stands.

Self-Assessment:

1. In which bracket do you think your assessment falls under in terms of Knowledge and
Understanding?

I think my answer is a merit, I have a good, clear understanding of the legal development of
the proportionality doctrine and how it has culminated in the current state of law. I have
contained a lot of legal authority and expansions on certain authorities where necessary.

2. In which bracket do you think your assessment falls under in terms of Cognitive
skills? Please explain and justify the conclusion you have reached here.

I think my answer is a merit with a thorough analysis of the legal issues in relation to the
doctrine. I think I could improve on this by fully exploring more practical consequences of
the doctrine becoming enshrined within statute but I would need more words and would
need to undertake more detailed research to do this.

3. In which bracket do you think your assessment falls under in terms of Professional
Skills? Please explain and justify the conclusion you have reached here.

I think my answer would be a merit. It is clear and easy to follow, using legal jargon where
necessary but not over-complicating matters. I have approached the response with a clear
structure, suitable for adapting into a speech and have tried to maintain a professional and
mature tone throughout.

4. Identify at least 3 strengths from your assessment answer.

Clear and thorough use of legal authority, engaging language, well-structured and for the
appropriate audience.

5. Identify at least 3 areas that you feel could be improved and taken forward for the
summative assessment.
Further research into understanding the possible impact of the doctrine if legally/formally
recognised, further exploration of cases in more detail, more detailed understanding of how
the impact of Brexit could change UK law in relation to proportionality, a doctrine which is
founded in EU law.

Feedback

What did you do well? 

Your writing is clear and convincing and well structured. The tone was appropriate and
professional.
You demonstrated - and conveyed - a nuanced and sophisticated understanding of the law of
proportionality and reasonableness, with evidence of wider reading around the subject matter.
You showed good awareness of the constitutional context with evidence of academic research
- and I note your point about the impact of Brexit on this area of the law specifically.
How could your answer have been better? Areas for development 
 I would like to see you engage in more detailed and analytical legal discussion -
which I appreciate will come as a natural consequence when you have undertaken
further research.
 Perhaps more on your view as to where you felt the law should be - expressing your
own opinion as backed up with a range of authorities.
Stretch and challenge (a stretching development point to take your performance to the next
level) 
 This was a very good submission and at this stage a high pass/low merit standard. To
develop, you should aim to build on your detailed and nuanced understanding of the
law.