Contents

PROPORTIONALITY................................................................................................................................2
4 question of proportionality – Smith and Grady v UK – lesbians in the army being discriminated......2
Bank Mellat v HM Treasury [2013]:.......................................................................................................4

PROPORTIONALITY
 Proportionality has everything to do with the Human Rights Act. In other words, if the
question that you're going to get has nothing to do with the Human Rights Acts,
proportionality will not apply, so it's a very niche. It's a very specialized ground for judicial
review. It only is relevant when there are human rights issues involved. No human rights, no
proportionality. Very specific, very niche
 The doctrine of proportionality has a link with the concept of unreasonableness or
irrationality. this is the evolution of sub-Wednesbury unreasonableness. Sub Wednesbury is
no longer applicable because of proportionality. Pre-Human Rights Act there was the sub-
wednesbury unreasonableness. Now that we have the HRA 1998, we now have
proportionality to replace sub-wednesbury
 Not an English law concept
 All the European courts used the doctrine of proportionality
 something must be proportionate to something else, it there must be. It must be logical, it
must be relevant. So there is a match. There is a fit.
 Under proportionality, we are essentially looking at whether the power or the decision
making authority is proportionate to the objective that is trying to be maintained.
Proportionate to the objective that is trying to be maintained.
 when we're looking at proportionality from a judicial review point of view, it's about has the
government acted in such a way which is logical and reasonable in order to protect
something?
 Are they going about it, the right way or have they gone overboard? Is it proportionate?
 R v Home Secretary ex parte Brind [1991]
o This was the guy who tried to use proportionality before its time. In 1991 he thought
he could be a champion, a trailblazer, and say, you know what, let me use
proportionality.
 proportionality hinges on the Human Rights Act 1998, because the Human Rights Act 1998
implements the ECHR into English law.
 Before 1998, the ECHR was merely international law. You want to follow. Follow. You don't
want to follow, don't follow your business.
 But now that the HRA is implemented, you must follow the ECHR.
 Public authorities must follow the ECHR. (section 6)
 proportionality works together with wednesbury unreasonableness, but only with regards to
human rights cases. If your case has got nothing to do with human rights, don't use
proportionality. There is no connection, no relevance whatsoever. So if there's no human
rights, you'd have to refer back to wednesbury unreasonableness - that very high threshold
4 question of proportionality – Smith and Grady v UK – lesbians in
the army being discriminated
o A Strasbourg case
o they felt that the country as a whole violated their rights under Article 8, which was
private and family life.
o Q1: Has a protected interest (Human Right) been compromised by the decision?
 A: If yes, which one?
 If answer is yes, move onto the 2nd question
 If no, then stop
o Q2: Was the interest compromised in the pursuit of some legitimate aim?
 you can restrict these rights only if you have a legitimate aim to protect.
 Courts were trying to protect the lesbians bec discrimination = not unified =
= don’t help each other = national security
o Q3: Was it necessary to compromise the protected interest to such an extent in
order to achieve the legitimate aim?
 In order to achieve the greater good
 If not necessary, move to q4
o Q4: Is there an adequate relationship of proportionality between the damage
caused to the protected relationship and the positive consequences that flow from
achieving the legitimate aim?
 you do have a margin of appreciation for all the human rights, because this goes back to
what we learned last semester, that every single country has its own way of doing things
when it comes to human rights, what works in Germany may not necessarily work in France
because the Germans are different from the French, so you need to have flexibility, a certain
level of discretion.
 But any violation must be necessary in a democratic society. so these are all your legitimate
aims - national security, public safety, economic well-being prevention of disorder and
crime, protection of health or morals, protection of their rights and freedoms of others.
 Legitimate interests will always have to do with the rest of society
 So the question you have to ask yourself is, is it justified that I limit this person’s human
rights for the sake of other people, for the greater good? Because sometimes you have to,
sometimes you have to sacrifice the few for the many.
 HRA 1998
o Section 2: domestic courts and tribunals “must take into account” (not binding. Must
consider) ECtHR judgments and decisions
o Section 6: courts and tribunals = public authorities
 every single court and tribunal in the UK, is deemed a public authority and
they must act in accordance with the Human Rights Act and the ECHR. they
have a duty? They have a duty to uphold human rights. They have a duty to
make sure that the rights set out in the ECHR are protected.
 The Human Rights Act gives them a direct command to say you must make
sure that you are ECHR compliant when you are adjudicating on cases
 R (Daly) v SoS for the Home Department [2001] – LANDMARK CASE
o This case marks a shift away from the Wednesbury Unreasonablesness to
proportionality but only when human rights issues are concerned. No human rights
mean u still refer to Wednesbury
 o Secretary of State for the Home Department. This particular department has a very
large jurisdiction they have.
o They oversee prisoners. They oversee immigration. OK, so it's a very large portfolio.
If you are the Secretary of State for the Home Department. But anyhow, this one
had to do with prisoners. this one had to do with prisoners in a specific prison. Now
each prison.
o the policy was that they would have these random cell searches. Random spot
checks, but during these cell searches, the prisoner or prisoners couldn't be in the
cells at that time. Basically, I will come in into your cell. I will check whatever I want
to check, but you cannot be in the room at that time. You have to be outside.
o cell searches are needed, but there is a way to do it where you don't infringe upon
their right to privacy
o So this was really the first case that brings about the idea of proportionality. The
idea that if you're going to infringe upon somebody's human rights, you must do so
in a clear and proportionate manner. It has to make sense. It cannot be too much.
o Test:
 Q1: Is the legislative objective sufficiently important to justify limiting a
fundamental right?
 Are the measures designed to meet the legislative objective rationally
connected to said objective?
 Are the means used to restrict the right or freedom no more than necessary
to accomplish this objective?
 R (Alconbury Developments Ltd) v SoS for the Environment, Transport and the Regions
[2001]
o Judges have accepted proportionality
o “proportionality is part of English law…when they are dealing with acts subject to
domestic law” (per Lord Slynn)
 i.e. Lord Slynn was saying that proportionality is no longer a European.
Doctrine. It was back in the day, but now it is part of us, so we should accept
proportionality.
 Did proportionality destroy wednesbury unreasonableness?
o No. it is still there. U just wont use it when ure dealing with HRA
 R (Association of British Civilian Internees (Far East Region) v SoS for Defence [2003]
o The moment human rights issues are concerned, you won't look at when it's P
unreasonableness anymore. You will straight away look at proportionality
o “…the continuing existence of the Wednesbury test has been acknowledged by the
HoL on more than one occasion” (per Dyson LJ
 basically saying that wednesbury is still alive and well. it's old, but it's still
good law. Proportionality does not kill wednesbury
 Belfast City Council v Miss Behavin’ Ltd [2007]
o Miss Behavin (sex shop) asked City Council for license. CC said no. this violated
freedom of expression. HoL were not convinced by Miss Behavin's argument. their
right to sell porn is not the most important right under freedom of expression
(protection of morals). CC added - where Miss Behavin' wanted to set up the stall
was nearby a school area.
Bank Mellat v HM Treasury [2013]:
o the most recent test for proportionality USE THIS TEST FOR THIS PARTTTT!!!!!!
o if you are ever going to use proportionality in the exam, you need to apply these
four questions. Don't look at Smith and Grady. Don't look at Daly.
o Questions: *if no, don’t procede into the next question
 Was the objective sufficiently important to justify the limitation of a
fundamental right?
 Was the measure rationally connected to the objective?
 Could a less intrusive measure been used?
 Having regard to the above and the severity of the consequences, was a fair
balance struck between the rights of the individual and the interest of the
community?
 If your answer is there was no fair balance struck between the rights
of the individual and the community.
 Is the outcome proportionate or disproportionate? There was no
fair balance.
 Disproportionate.
 Keyu v SoS for Foreign and Commonwealth Affairs [2015]
o has to do with Malaysia
o 1948 - UK gov sent troops to Malaya specifically in Batang Kali, Selangor to curb the
insurgency in the area. they ended up killing 23 unarmed civilians. Keyu (applicant)
was related to one of the victims. at the time, the UK gov publicized it as "we killed
rogues who were trying to escape". many calls for investigation over the years by
independent group. last call = 2008. the gov refused inquiry. hence, JR.
o JR was launched on a couple of grounds:
 by not having the inquiry, it is the violation of article 2 (court dismissed this
bec article 2 of echr did not even exist yet)
 the inquiry is needed on common law grounds bec international law
demands it (court dismissed too)
 u should have JR bec the gov misused its discretion by denying the JR (no
echr) - was the gov unreasonable in not holding the JR? (wednesbury
unreasonableness)