Discretion 2

Question 1

COLLECTION

Should Proportionality supplant Wednesbury? Intro

Answer 1

No, contrary to the stark choice presented by Lord Neuberger in Keyu, the 2 grounds of review can, and should, coexist.

1. the content of substantive review is not exhaustive
2. certain rights and interests are incommensurable. Proportionality is ill-equipped to deal with such cases.
3. the criticisms addressed to Wednesbury are misplaced . They attack the test as it existed in its embryonic stage.

Question 2

COLLECTION

The 2 grounds should co-exist

Answer 2

2 main inadequacies with proportionality for it to fully ‘supplant’ Wednesbury.

1. P is ill-suited to cases which do not involve human rights. This criticism was foreseen in Rotherham MBC, in which it was suggested that P can only be used where there is ‘deviation from a legal standard’. Moreover, it could only deal with the ‘right kind of cases’. Hickman and Taggart elaborate on this, arguing that proportionality cases require a ‘rights motor’. Similarly, uncertainty about P’s ability to deal with all cases can be found in judgments of Lady Hale and Kerr in Keyu. Kerr noted that a ‘more loosely structure’ P could be used. An example case is Corner House.

In addition, Quila illustrates the kinds of cases which P may struggle with. In that case, the HS changed a policy to disallow entry clearance to spouses under 21. The legitimate aim would be to prevent forced marriag. However, the court held that the interests of those betwee 18-21 (Art 8(1) ECHR) were interfered with. Lord Brown dissenting questions whether the suffering sustained within a forced marriage could be compared with the temporary interference with the desire to marry for those between 18-21 He ultimately held that such a question is for an ‘elected politician, not judges’.

On the other hand, the case of Fedesa demonstrates that proportionality can be used to a less intensive form than Wednesbury. This raises a question: why replace W with a parallel doctrine of proportionality or ‘proportionality lite’ as Elliott puts it? Ultimately the view that we must choose between proportionality and W ‘may be very misplaced’ (Lord Kerr Keyu).

Question 3

COLLECTION

Arguments for P supplanting W

Answer 3

Recent SC cases Kennedy, Pham and Youseff reinforce Sedley LJ’s claim in Quila that proportionality now has a ‘life of its own’ and may ‘subsume’ W. There are two arguments.

First, Lord Mance in Kennedy argued that implementation of P would provide ‘structure’ to JR proceedings. This is a view passionately advanced by Paul Craig. Lord Carnwath similarly took the view in Yousseff that all authorities should be reviewed but the more structured guidance was required for the lower courts. This corresponds with criticism of W.

Secondly, Jowell and Lester argued that W is ‘tautologist’ because no reasonable public authority would have taken it. However, ‘no reasonable’ is not exactly ‘any reasonable’. Further, the opacity of the test can bee seen in Wheeler v Leicester CC. The Council prevented a rugby team from using its facilities because the rugby team failed to sanction its players who were on tour in apartheid SA. Lord BW dissenting in the CA identified loosely freedom of expression as the norm. The HL, agreeing with LBW held that the council was ‘unlawful in its decision. It is not clear from the judgments why the HL decided as they did. Jowell and Lester add that the ‘incantation of unreasonableness’ is not in itself adequate justification. ‘Intellectual honesty’ requires more thorough and clear explanation.

Both these arguments are fighting with a W that does not exist. W is not a monolithic test but varies from large discretion in cases of policy i.e. Hammersmith v Fulham to ‘anxious scrutiny’ in Budacay per Lord bridge, Brind and Smith. This flexibility was summed up in Pham, whereby the ‘context will determine the appropriate level of review’.

Ultimately what matters is the culture of review - a ‘culture of justification’ (Taggart) will correspond with greater review, regardless of the tool of review. Further, the claim that using one over the other which carry a connotation of restraint (W) or interference (P) could be easily remedies by a clear statement form a higher court that there should be no default intensity by virtue of its connotation, thus rewriting its intensity.

Question 4

COLLECTION

Should P supplant W?

Answer 4

positing W and P against one another establishes a false dichotomy. Doctrines should only be dismantled of they can be replaced by more useful instruments. Yet, P suffers from inherent inadequacies. Remedying when another tool exists may not be worth it. Moreover, criticisms of W are misplaced, as they attack the ground as it was in its nascent form. Ultimately the onus is on P to make its case, and it has failed to make a successful one.

Question 5

What is W review?

Answer 5

Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223:

“It is true that the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [1926] Ch 66 at 90-1 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense, it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and in fact all these things run into one another”

NB unreasonableness must be ‘overwhelming’, ‘absurd’ and beyond the dreams of ‘sensible people’ and ‘reasonable authorities’.

Question 6

See also Lord Diplock in his famous restatement of the principle in GCHQ [1985] AC 374

Answer 6

“‘Irrationality’ by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review’.

“by ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’… It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”

Question 7

Justified because reserved the review/appeal distinction:

Answer 7

“Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system”.

Question 8

Irvine [1996] PL 59 (theoretical criticims)

Answer 8

See also Irvine [1996] PL 59:

1. The constitutional imperative; that once Parliament has entrusted a body with the ability to make a decision the courts should not lightly interfere with this.
2. The lack of judicial expertise when compared with that of the decision-maker and
3. The democratic mandate, that the courts should not usurp political, democratic controls on the executive.

NB: Jowell justifies judicial deference on these grounds too, using the concepts of “constitutional competence” (separation of powers, which delimits the proper role of various institutions in a democracy) and “institutional competence” (the institutional limitations on what the courts are able to do, as opposed to decision-makers).

Question 9

The current status of Wednesbury unreasonableness

Two important points about the original conception of Wednesbury;

Answer 9

1. It looks, as John Laws puts it (in Forsyth and Hare (eds) The Golden Metwand and the Crooked Cord at 186-7), “monolithic”, i.e. it represented a fixed standard
2. That standard looks extremely high.

Question 10

Different standard of W in field of public administration

Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 Lord Scarman:

Answer 10

To sum it up, the levels of public expenditure and the incidence and distribution of taxation are matters for Parliament

, as in this case, effect cannot be given to the Secretary of State’s determination without the consent of the House of Commons and the House of Commons has consented, it is not open to the courts to intervene unless the Minister and the House must have misconstrued the statute or the Minister has – to put it bluntly – deceived the House…

Question 11

See also R v Ministry of Defence, ex p Smith [1996] QB 517 at 556, Sir Thomas Bingham:

Answer 11

“The greater the policy content of a decision, and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational. That is good law and, like most good law, common sense… the test itself is sufficiently flexible to cover all situations.”

The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable”

Question 12

W in Bugdaycay Lord Bridge absence of the HRA

Answer 12

“surely does not mean that… we are not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it… we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment” (at 531, emphasis added).

Question 13

W outside of human rights contexts

Answer 13

Coughlan on decisions made through “flawed logic”.

Question 14

See also Lord Mance in Kennedy v Charity Commissioners (Lords Neuberger and Clarke agreeing) on W

Answer 14

[51]….The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so- calledWednesburyprinciple: seeAssociated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. The nature of judicial review in every case depends on the context.

Question 15

Does this change reflect an adaption of W?

Answer 15

Craig 21-011:
“the idea that heightened scrutiny in cases concerning rights can be seen simply as a variant of the original Wednesbury test is problematic in both linguistic and conceptual terms.”

“In conceptual terms, it is equally difficult to regard judicial review in rights cases merely as a variant of traditional Wednesbury, since the premises that underlie review in the two contexts differ. The premise that underpins the classic Wednesbury approach, as overlaid by Lord Diplock, is that the courts should be aware of their limited role.

Question 16

Diplock prophecy

Answer 16

Lord Diplock in GCHQ: no reason why
“further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the EEC [as it then was]”

Question 17

What is proportionality?

Answer 17

What is proportionality?

Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 38 identified four issues in particular for consideration under proportionality review:

1. Whether the legislative objective is sufficiently important to justify limiting a fundamental right
2. Whether the legislative objective is rationally connected to the means used to achieve it (suitability)
3. Whether the means used are no more than is necessary to accomplish that objective (necessity)
4. Whether a fair balance has been struck between the rights of the individual and the interests of the community (‘proportionality stricto sensu’ or a test of fair balance)
5. Whether the measure has a legitimate aim in the first place
   1 is separate from but connected to the fair balance issue (cf Lord Kerr, dissenting in Carlile [2014] 3 WLR 1404), 5 is essentially a basic vires question. This leaves the three issues of suitability, necessity and fair balance

Question 18

Is P intensity fixed?

Answer 18

[54] As Lord Bingham explained [in Eastside Cheese], at para 47, proportionality review may itself be limited in context to examining whether the exercise of a power involved some manifest error or clear excess of the bounds of discretion

Question 19

So when can and do the courts use proportionality review?

Answer 19

1. EU law, e.g. if the national administrative court has to check whether the UK’s derogation from the free movement of goods rules is proportionate, e.g. the ITF case. See also the International Stock Exchange case, ex p Else [1992] BCC 11. NB failure by the decision-maker to have regard to this duty to act proportionately may overlap with one of the other grounds of review and constitute a failure to take into account a relevant consideration as in Lindsay v Commissioners of Customs and Excise [2002] EWCA Civ 267. Future of this category of course now depends on our future relationship with EU law.

2. Human rights cases
   a. HRA cases (see subsequent lectures)
   b. Common Law rights cases, e.g. Brind and Bugdaycay. NB now the increasing use of common law rights, e.g. R (Quila) v Secretary of State for the Home Department [2011] UKSC 45

Domestic, non-HRA law:

3. Statutory requirement to use proportionality, e.g. Bank Mellat, above.

4. Substantive legitimate expectation cases. 
ex p Coughlan, Lord Woolf MR: 

“once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy”

“It required the health authority, as a matter of fairness, not to resile from their promise unless there was an overriding justification for doing so. Another way of expressing the same thing is to talk of the unwarranted frustration of a legitimate expectation and thus an abuse of power or a failure of substantive fairness. Again, the labels are not important…They identify a different task for the court from that where what is in issue is a conventional application of policy or exercise of discretion. Here the decision can only be justified if there is an overriding public interest. Whether there is an overriding public interest is a question for the court.”

NB the distinction from Wednesbury: 

“For our part, in relation to this category of legitimate expectation, we do not consider it necessary to explain the modern doctrine in Wednesbury terms, helpful though this is in terms of received jurisprudence”

Compare Nadarajah, Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363 see Laws LJ at [69] referring to proportionality, with Lord Mance, dissenting in R(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), [2008] UKHL 61, [2009] 1 AC 453, at [182]: ‘overtones of another area of public law’. But see also the PC in Paponette v AG of Trinidad and Tobago [2010] UKPC 32.
5. Penalty cases, e.g. ex p Hook [1976] 1 WLR 1052. Lord Denning MR: “there are old cases which show that the court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion.” On this see also R v Manchester Metropolitan University ex p Nolan (unrep 14th July 1993) in which Sedley J held that he would “assume for this purpose that proportionality is potentially available today as a discrete head of challenge in appropriate cases.”
6. Miscellaneous cases
   a. in which the unreasonableness seems to stem from disproportionality, e.g. Bryan v Secretary of State for the Environment CA unrep 5/3/93, cited by de Búrca (Ch 4 of Andenas ed English Public Law and the Common Law of Europe (1998)) in which Legatt LJ held that he would “proceed upon the footing that the court will quash in a proper case as Wednesbury unreasonable, if not directly under the principle of proportionality, the exercise of a discretionary power in which the means used is out of proportion to the object sought to be achieved”. (See also R v General Medical Council ex p Colman [1990] 1 All ER 489; R v Secretary of State for Transport ex p Pegasus Holdings [1988] 1 WLR 990; R v Brent BC ex p Assegai Times 18th June 1987, R v Secretary of State for Health ex p US Tobacco [1992] QB 353).
   b. In which proportionality seems to be used outright, e.g. ex p Phoenix Aviation [1995] 3 All ER 37: Council’s resolution to ban Phoenix air from transporting live animals due to the threat of animal rights protests “was wholly disproportionate to the security risk presented at that time”

Question 20

Authorities against P

Answer 20

R v Secretary of State for the Home Department ex p Brind [1991] 1 AC 696 per Lord Lowry:
“there is no authority for saying that proportionality in the sense in which the appellants have used it is part of the English common law and a great deal of authority the other way. This, so far as I am concerned, is not a cause of regret for several reasons”

Lord Slynn in R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23:

“the time has come to recognise that this principle is part of English administrative law, not only when judges are dealing with Community acts, but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing”


Question 21

Evidence that the tests are not too different

Answer 21

John Laws in R(Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at [19] the higher intensity review to be performed in human rights cases “and the basic Wednesbury rule are by no means hermetically sealed one from the other. There is, rather, what may be called a sliding scale of review.” Wade and Forsyth agree that “it must be emphasised that they are flexible doctrines, depending often upon value judgments and factual evidence, having no sharp edges. They cannot, in Lord Slynn’s words, be kept in separate compartments” (p. 368).

ex p ITF Lord Slynn (at p 439) “in some ways they are though the distinction between the two tests in practice is in any event much less than is sometimes suggested.”

Question 22

Wade and Forsyth

Answer 22

“Goodbye to Wednesbury?” (p 371): “The Wednesbury doctrine is now in terminal decline, but the coup de grace has not yet fallen, despite calls for it from very high authorities”.

Question 23

Kennedy v Information Commissioner Lord Mance (Lords Neuberger and Clarke agreeing) suggested a different approach:

Answer 23

[54] The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing 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 judicial review even outside the scope of Convention and EU law.

Question 24

What did Lord Neuberger and Hughes hold in Keyu?

Answer 24

It would not be appropriate for a five-justice panel of this court to accept, or indeed to reject, this argument, which potentially has implications which are profound in constitutional terms and very wide in applicable scope….

[133] The move from rationality to proportionality, as urged by the appellants, would appear to have potentially profound and far reaching consequences, because it would involve the court considering the merits of the decision at issue:

• nb would it??

Question 25

What did Lord Mance argue in Keyu?

Answer 25

Lord Mance did not take issue with this approach, because having reiterated the general views he expressed in Pham and Kennedy, he noted that whichever approach was adopted the outcome would be the same on the facts of the case (Keyu at [143]).

Question 26

What did Hale argue in Keyu?

Answer 26

Baroness Hale suggested that she thought there remained a meaningful role for Wednesbury, particularly in cases where no fundamental right was at stake (on which see further below) but this is at least in part because she was conceiving of Wednesbury in its wider version, including relevant/irrelevant considerations (at [313]).

Question 27

Taggart’s view

Answer 27

• Bifurcation of administrative law into ‘rights’ and ‘public wrongs’
• However, rights does not just mean those contained in Bills of Rights, also includes common law rights (p 469)
• P 448: ‘I do not think we should get rid of Wednesbury unreasonableness in its traditional role of a residual ‘safety net’ in cases not involving ‘rights (what I call ‘public wrongs’), but I do think that the time has come for variable (Wednesbury) unreasonableness to be subsumed by proportionality where ‘rights’ are involved.’ P. 477: ‘I am not persuaded that proportionality should sweep the rainbow of review or that variable intensity reasonableness review should either.’ So proportionality for rights cases, whether contained in Bills of Rights or common law, old nearly monolithic Wednesbury everywhere else.

Question 28

Hickman’s view:

Answer 28

‘it is neither justified nor desirable for the courts to adopt proportionality as a general criterion of review. I do not argue that proportionality should be limited to cases involving Convention Rights… [ECHR and HRA] However, I do not accept that proportionality should be applicable automatically to all judicial claims… Instead, a proportionality test should be applicable in categories of case to which its application can be justified, where the mere application of a reasonableness standard is not sufficiently protective. Such categories include cases where a substantive legitimate expectation has been established, cases where there is discrimination on a protected ground and cases in which a public authority has imposed a penalty.’ Outside this it is not wholly clear what standard of review he proposes, but it appears as if he wants a retention of the status quo (p 326).

Question 29

King’s view:

Answer 29

• p 327: ‘the doctrine of proportionality ought not to be adopted as a general standard of review in administrative law…In this respect, my position is close to that of Professor Michael Taggart… However, my view is distinct from his in that …I believe that there is room for a larger role for proportionality in public law than Taggart appears to have countenanced. I argue that a common law standard of proportionality should be used, in a modified form, for cases that (1) involve fundamental interests (such as those protected in international human rights, refugee and humanitarian law) or (2) challenge a pattern of administrative conduct that has been recognised by courts as creating a conspicuous administrative unfairness [e.g. legitimate expectations]
• p 360: ‘I also think that courts should remain open to the recognition of new categories of special interests, under either branch’.
• Outside this it appears that he’s happy with variable Wednesbury or even with a shift to Lord Cooke-style reasonableness instead, and he doesn’t advocate a return to pure, original, monolithic Wednesbury.

Question 30

Alternative solution: neither bifurcation nor proportionality review alone

Answer 30

• The choice is not only between bifurcation and a complete replacement of Wednesbury with proportionality
• Actually both can be accommodated across substantive review and relatively few changes are necessary to effect this
• The principal necessary change is just the greater articulation and understanding of the forms of review that already take place.

Supported by Lord Mance in Kennedy v Information Commissioner, Lord Neuberger and Lord Clarke agreeing):

There seems no reason why such factors should not be relevant in juridical review even outside the scope of Convention and EU law. Whatever the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context.

Question 31

1. Bifurcation is neither necessary nor desirable (nor, maybe, even possible)

Answer 31

NB among the views outlined above there is no consensus as to where to draw the bifurcation line.
Can we even draw a rights v wrongs line? NB EU Charter of Fundamental Rights Art 41, the right to good administration.


Question 32

2. Proportionality does more than Wednesbury

Answer 32

See, e.g. Lords Ackner and Lowry in Brind, above
See also P Sales, ‘Rationality, Proportionality and the development of the law’ (2013) LQR 223; J Goodwin, ‘The last defence of Wednesbury’ (2012) Public Law 445;
Lord Steyn in Daly, above, King, above at 337 and 339, Hickman, ‘Problems for Proportionality’, above at 315 and Taggart, above.

Answers:

• Just because all domestic experience with proportionality is with more intensive review does not mean that all proportionality is intensive (the cows argument, above). See two spectra above.
• They need not even be understood as such by lower courts if given a sufficiently clear judgment to follow (pace King).
• The courts are not doing anything illegitimate in proportionality that they don’t do anyway under reasonableness, see Craig ‘The Nature of Reasonableness Review’ (2013) Current Legal Problems, now supported by the SC in Kennedy at [54].

Question 33

2. Proportionality does more than Wednesbury

On suitability

Answer 33

In fact common law seems to take a more stringent approach than proportionality.
R (Wandsworth LBC ) v Schools Adjudicator [2003] EWHC 2969 (Admin). Struck down because remedy chosen ‘not rationally capable of correcting the unfairness’. NB the impact of the remedy was found to be ‘highly speculative’, and not capable of making ‘any meaningful contribution’. This is not ‘not nothing’.
1. R (Law Society) v Legal Services Commission [2010] EWHC Admin 2550 – system of dual panel accreditation struck down on the basis that it could not rationally achieve the aim for which it was designed, even though, again, it had ‘not nothing’ to do with that aim. Also relevant that the rule did more harm than good (clearly contrasts with Quila, see Baroness Hale)

Intensity of review and the first axis of variability, definition of the test:
Bank Mellat and Quila: did the means have ‘not nothing’ to do with the end? (least intrusive)
Wandsworth: is there a ‘meaningful’ or ‘more than speculative’ overlap? (more intrusive)
Law Society: did the rule do more harm than good? (clearly contrasts with Quila, see Baroness Hale)

common law review actually more intensive than proportionality review, contra Sales et al, above.

What matters is not the designation as common law or proportionality, but the manner in which these choices are made, and the factors relevant to degree of deference.

Question 34

2. Proportionality does more than Wednesbury

On necessity

Answer 34

Subject matter of review
Lord Sumption in Bank Mellat, Lord Clyde in de Freitas, Lord Steyn in Daly and Dyson LJ in Samaroo: whether the means used to impair the right or freedom are no more than is necessary to accomplish the objective. Whether the means employed are ‘the least intrusive that can be devised in order to achieve the aim’.
But Maurice Kay LJ in Clays Lane Housing: Lord Steyn in Daly said ‘necessary’ rather than ‘strictly’ or ‘absolutely’ necessary because otherwise a measure would have to prevail just because it was the least restrictive, even if it was also ‘fraught with adverse consequences’.
Instead Hickman proposes a focus on ‘relative proportionality’ approach

Intensity of review
E.g. Hickman himself looks for significant imbalance.
Sinclair Collis: EU version of the test asks whether the measure was ‘manifestly inappropriate’. Government measure did not infringe proportionality ‘simply because… the Government reasonably took the view that the alternative would significantly fall short of the measure in terms of achieving the aim sought to be achieved’
Bank Mellat: rationality and proportionality used interchangeably.

Thus:
Necessity under common law review
Intensity of review
Penalty cases: Hook and Dad v General Dental Council: ‘the consequences were so far out of keeping with what was needed that it could reasonably be said that the penalty was wrong and unjustified’.
Outside penalty cases: R v London (North) Industrial Tribunal, ex p Associated Newspapers Ltd [1998] ICR 1212: restricted reporting order should have been limited to those directly involved in the sexual misconduct allegations and should not have extended to the London Borough chief executive for failing to investigate the claims.

Conclusion:

Intensity of review and the first axis of variability, calibration of the scales: 
 vital and should be articulated clearly as in Sinclair Collis.

Neither the common law nor the proportionality context seems to exhibit particularly intensive review. ‘Manifest inappropriateness’ is akin to ‘jumps off the page’ (King) Wednesbury review.

Question 35

2. Proportionality does more than Wednesbury

On fair balance

Answer 35

Fair Balance and the two key issues of subject matter and intensity of review

1. Subject matter of review: scales again

2. Intensity of review and the first axis of variability, calibration of the test:
Articulation greater in AXA and Ponting but it’s the particular factors in favour of or against deference which ultimately decides the calibration point. (Ponting’s ‘manifest prejudice’ and ‘reasonable needs’ seems more intense than the question whether the notices were ‘grossly oppressive’ in O’Kane , irrational or unreasonable in Pegasus and ITF or ‘manifestly without reasonable justification’ in AXA’)

Conclusion:
⎝ What matters in all cases is not whether the issue is one of proportionality or common law review, but rather the subject matter of the cases. Merging Wednesbury and proportionality might therefore help, and is probably inevitable, see Kennedy and Lord Carnwath, but two matters would still require separate consideration:

Question 36

3. Merging proportionality and Wednesbury review would endanger or illegitimately extend human rights review

Answer 36

. Hickman’s argument that this would ‘flatten’ HRs review, ‘Problems for Proportoinality’.
but the argument here is that there is nothing to keep separately proportionality and Wednesbury outside the HRA. Nothing here has suggested that the HRA is not distinct, it is.

In keeping with the argument that it is the subject matter and context which make the difference, not the label, there are 3 distinct features of HR review as compared to common law review (NB given comments of Lord Mance in Pham at [96] it is probably the presence of HRs generally, rather than specifically the HRA which makes the difference):

1. A more intense form of proportionality would automatically be involved in HR cases.
2. In HR cases the court begins with the substance of the decision and the question whether the right balance has been struck. This is not, as in the common law, a last resort. Contrast Miss Behavin and Begum with Bibi.
3. In HR cases the government has the burden of proving that the rights-breaching decision was justified.

Question 37

4. Proportionality does less than Wednesbury review

Answer 37

See also Hickman’s and Taggart’s arguments that in a non-rights context the ‘rights motor’ is missing, see also Lord Kerr and Baroness Hale in Keyu.
Arguably the real point is not that the presence or absence of rights makes a difference, but that suitability, necessity and fair balance are not exhaustive of the issues raised in rationality review. See Daly’s ‘indicia of unreasonableness’ (P Daly, ‘Wednesbury’s Reason and Structure’ (2011) Public Law 238. E.g.:
- ‘Arbitrary and capricious underinclusiveness’.
- Zenner v Prince Edward Island College of Optometrists [1997] 1 SCR 793
- Browne v Parole Board [2018] EWCA Civ 2024 (noted Knight (2019) 78 CLJ 5) per Coulson LJ, giving the judgment of the court:
[41] ‘The [proportionality] questions are concerned with a decision: they are a way of testing whether the end justifies the means. They are not applicable to one particular part of the evidence relied on in reaching that decision [a risk assessment]. An assessment of high risk of causing serious harm cannot be necessary to accomplish an aim, or strike a fair balance. Moreover, such an assessment is in many ways a prediction of the future. In my view it is impossible to direct these broad proportionality questions to a multi-factorial and predictive assessment of risk of the kind routinely undertaken by the Parole Board.’

Question 38

Williams’ conclusion on P and W

Answer 38

• No problem with merging proportionality and Wednesbury. Would not involve much change from present, where common law rationality review includes questions of necessity, suitability and fair balance.
• what matters is not categorical distinctions between proportionality and Wednesbury, but the recognition that in all instances it is necessary to specify the content of substantive review separately from the intensity of review, and to deal in an articulate manner with the four axes of variability and the factors influencing the level of intensity in a particular case. See Lord Carnwath (2014) 44 Hong Kong Law Journal (available via Westlaw International, not ordinary westlaw, in the international journals section, search for ‘Carnwath’):
  o So, it seems, almost 30 years afterCCSU, proportionality has crept into the English common law by the back door, not by the explicit addition of a fourth ground to Lord Diplock’s trilogy, as he anticipated, but by the transmutation of the Lord Greene’s strict reasonableness test intosomething which I suspect neither he nor Lord Diplock would have recognised, a flexible but structured test which is much better adapted to the task of effective and practical judicial supervision of executive action.
• However, we cannot reduce the whole of the substance of substantive review to the questions of suitability, necessity and fair balance.
• Thus while proportionality is more flexible in terms of intensity of review than Wednesbury (see spectra above), it is less flexible in terms of subject matter, being confined to these issues, see, e.g. Zenner, Browne.
• This doesn’t matter as long as we do one of two things, preferably both:
  o If we move such issues to illegality review instead, e.g. relevant considerations, then we must take a flexible approach to the intensity of review there too.
  o We should also accept that the subject matter of substantive review cannot be exhaustively defined and thus will not all fit into suitability, necessity and fair balance. We should thus be prepared to keep recognising new forms of subject matter.
• Thus bifurcation between Wednesbury and proportionality is not necessary, desirable or even possible, but Wednesbury cannot be completely subsumed within proportionality either. It will continue to exist on two fronts:
  o As shorthand for the lowest intensity ‘jumps off the page’ setting of review
  o And because common law rationality review covers more subject matter than the three parts of the proportionality inquiry (Zenner, Browne).

Question 39

Wednesbury’s reason and structure” [2011] Public Law 238, Daly

Answer 39

that much of the criticism of Wednesbury is misplaced. He argues that behind the obscurity of many judgments that invoke unreasonableness, it is possible to find a more structured approach. In particular, Daly argues that courts do—or should—intervene on the Wednesbury ground when one of several indicia of unreasonableness can be identified and the decision-maker is unable to justify the presence of the relevant indicium to the required standard of justification

Question 40

Jowell and Lester practical criticisms of W

Answer 40

¬ Jowell and Lester argue that in reality, the courts are willing to impugn decisions that are far from absurd and are indeed rational. The Wednesbury test of unreasonableness or irrationality is not an accurate description of all judicial practice.
¬ R v Hillingdon LBC, ex p Royco Homes (1974): Planning conditions (which were onerous) were struck down as unreasonable even though they were not irrational: it was perfectly rational (albeit harsh) to shift the burden of housing the less well-off to developers. This decision was made even despite the wide statutory discretion.
¬ Lord Cooke, Daly (2001): Wednesbury is a retrogressive decision as it suggests that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. It is unacceptable because the depth of judicial review and deference vary with the subject matter; a rule with such generality and strictness is unsatisfactory.

Question 41

Sir John Laws, “Wednesbury”, in Forsyth and Hare (eds), The Golden Metwand and the Crooked Cord (Oxford 1998), at pp. 186-187:

Answer 41

But in fact the courts, while broadly adhering to the monolithic language ofWednesbury, have to a considerable extent in recent years adopted variable standards of review

Question 42

Proportionality more structured and transparent than Wednesbury review

Answer 42

which risks creating the impression of judicial decision-making by intuition since such a conclusion may be unaccompanied by any structured explanation of the judicial reasoning that preceded it (in part attributable to the circularity of the test).

Craig (in Ellis, The Principle of Proportionality in the Laws of Europe (Oxford 1999) at 99: “Proportionality provides a more structured analysis of the kind which is often lacking under the Wednesbury formula… [its] more structured analysis has a beneficial effect in that it requires the administration to justify its policy choice more specifically than under the traditional Wednesbury approach. The structure provided by the proportionality inquiry is also beneficial in relation to the courts themselves. It requires that the courts, when striking down a decision, do so on grounds which are more readily identifiable and ascertainable than is often the case under the Wednesbury test.

Arguably, is W’s discretion potentially a good thing? And conversely, would P’s structure hamstring it? E.g we see already that some cases like Browne that P does not apply to all cases!

Question 43

Daly’s [2011] PL 238 response to Jowell v Lester that W is tautologist and unstructured

Answer 43

argues that this criticism of Wednesbury as ambiguous, obscure and concealing the courts’ real reasons for striking down the decision is misplaced. It is possible to find a more structured approach. The courts intervene on the Wednesbury ground when one of several indicia or markers of unreasonableness can be identified and the decision-maker is unable to justify the presence of the relevant indicium to the required standard of justification.

Two examples exemplify this point:

(1) R (Rotherham MBC) v Secretary of State for Business, Innovation and Skills (2015)
At 26, Lord Sumption observed that the principle that “comparable situations are not to be treated differently or different situations comparably without objective justification” is “fundamental to any rational system of law” and “part of English public law”. Viewed thus, the issue for the Court was whether the differential treatment in question had been adequately justified.

(1) Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69
Facts: Ministers had declined to establish a public inquiry into the killing in 1948 by British troops of 23 unarmed citizens in the Federation of Malaya (now Malaysia), in which the UK was then the colonial power.
Verdict: Lady Hale, dissenting, considered the background factors, advantages and disadvantages of establishing a public inquiry. She considered that a reasonable decision-maker would have to take all these factors into account. She concluded, at 312, that the relevant Ministers had failed to “take into account all the possible purposes and benefits of such an inquiry and reached a decision which was not one which a reasonable authority could reach”.

Commentary: Lady Hale breathes structure into Wednesbury unreasonableness, giving a list of considerations against which to review the justifiability of an administrative decision

Note: This analysis (of competing advantages and disadvantages) is notably similar to that of proportionality, but the language of proportionality was never used. Nevertheless, this shows that reasonableness is not just a vehicle for free-wheeling judicial discretion.

Lord Neuberger: Refused to abolish the Wednesbury test altogether, as it would have potentially far-reaching and profound consequences (constitutionally and beyond), meaning that a nine-Justice panel would be required.

Lord Kerr: There is doubt over whether irrationality and proportionality are bluntly opposed to each other and mutually exclusive, and over whether intensity of review operates on a sliding scale, dependent on the nature of the decision under challenge.

Consequently, the debate about a ‘choice’ between proportionality and rationality is no longer relevant.

Question 44

Response: even if structure and transparency are desirable, is the proportionality standard really that much more structured? Elliott: sure, we have quite a clear elucidation of the test by Lord Sumption in Bank Mellat (No. 2), but for years before that the courts bore different conceptions of the test.

Answer 44

Privy Council in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80: the test of proportionality omitted any reference to the need for “fair balance… between the right of the individual and the interests of the community”.

The requirement of a balance between the right of the individual and the community interests was not cemented until Huang v Secretary of State for the Home Department [2007] UKHL 11

Moreover, the doctrine of deference, which influences the application of proportionality review, makes the test not a rigid approach but a spectrum of possibilities.

Question 45

Elliott summary of W and P

Answer 45

the point is that the differences are less stark than they seem. Whether that is an argument for or against jettisoning Wednesbury reasonableness for proportionality is a matter of perspective. On the one hand, if they are the same, substituting the former for the latter would simplify the law without losing much value. On the other hand, if the latter is not as structured as we thought, it might be good to have two, rather than one, weapons in the arsenal for courts to have more options to resort to depending on the facts.

Question 46

Argument that W is too deferential, especially in cases involving human rights

Answer 46

¬ Compare Smith [1996] QB 517
Commentary: court was ultimately only prepared to make a “secondary judgment” as to the reasonableness of the Minister’s view that there was a sufficient public interest justification for the curtailment of the right

¬ With Smith v UK
Commentary: court exercised a primary, compared to a secondary, judgment. It had to decide for itself whether the various elements of the proportionality test are satisfied, rather than asking whether someone else could reasonably have come to the view that they were.

Verdict: at 90, the ECtHR held that interferences with the applicants’ right to respect for private life were “especially grave”, not least because of the “exceptionally intrusive character” of the investigations to which they had been subject and the “profound effect [of the dismissals] on their careers and prospects”, and that “particularly serious reasons by way of justification” were therefore required.

The ECtHR largely rejected the UK government’s argument that the presence of gay or lesbian members of the armed forces would have a destabilizing effect that would impair operational effectiveness. At 95, the court rejects the report submitted by the Homosexuality Policy Assessment Team, because “it was completed by Ministry of Defence civil servants and service personnel” and “only a very small proportion of the armed forces’ personnel participated in the assessment. Moreover, many of the methods of assessment…were not anonymous. It appears that many of the questions in the attitude survey suggested answers in support of the policy”.

Furthermore, at 96, the court noted that the risk of operational effectiveness identified in the HPAT report was based “solely upon the negative attitudes of heterosexual personnel towards those of homosexual orientation”. This meant, in effect, that the government was arguing that gay and lesbian personnel would have destabilised the armed forces because of entrenched homophobia. The court did not consider this argument about operational effectiveness substantiated, at 99. Moreover, it did not consider an outright ban to be the necessary way of addressing such problems even if they existed, at 102.

Question 47

Three qualifications to this disparity in intensity of W

Answer 47

firstly, where deference is demanded, proportionality has much less of a bite; secondly, before the HRA, courts had sometimes applied a sub-Wednesbury unreasonableness standard. See Lady Hale’s judgement in Keyu (above). Thirdly, the level at which Wednesbury unreasonableness is pitched – in terms of the quality of the justification it demands – is informed by the context.
¬ R (Bradley) v Secretary of State for Work and Pensions (2007) at 72: It was held that a Minister had to have ‘cogent reasons’ for rejecting findings contained in a report of the Parliamentary Ombudsman; this required something more than conventional reasonableness. It was not enough that the Minister had reached his own view on rational grounds, because the relationship between public bodies and the Ombudsman did not accommodate ready dismissal by the former of the latter’s findings.
¬ R (Evans) v Information Commissioner [2015] UKSC 21: Lord Mance held that particularly searching scrutiny was called for when examining the reasonableness of the use by the executive of a statutory power to override a decision of the Upper Tribunal. At 130, he considered that if a Minister were to seek to exercise the override power because he disagreed with a finding of fact or law made by the Tribunal, this would require “the clearest possible justification” – a hurdle so high it would rarely be cleared.

Question 48

Comparison with Wednesbury – Miscellaneous

Answer 48

Burden of proof shifts during the application of proportionality test to decision-maker – he or she must prove that the decision was proportionate

Question 49

Lower intensity proportionality R (Lord Carlile) v Secretary of State for the Home Department (2015)

Answer 49

Facts: An Iranian dissident wanted to enter the UK to speak to Parliament, but the Home Secretary blocked her entry on national security grounds. Judicial review was sought on the basis that this infringed her freedom of speech under the ECHR.

• Verdict: Unsuccessful. In a democracy, the person charged with making decisions of this kind should be politically responsible for the consequences of the decisions. This was a decision that affected foreign relations, bringing it within the constitutional competence of the Minister, calling for judicial deference.

• Note: Another factor guiding the decision was the complexity of the issue: the chain of consequences that would unfold if the UK allowed the dissident to speak to MPs requires a complex evaluation that did not have a necessarily right answer.
o Lord Sumption: Although the traditional notions of the constitutional distribution of powers have been modified by the HRA, it did not abrogate the constitutional distribution of powers between the organs of the state. There are still areas which require a qualified respect for the constitutional functions of democratically accountable decision-makers.
o Lady Hale: Democratic considerations should be taken into account. When making value judgments on the balance between individual rights and the common good, the government is accountable to Parliament in a way which the judiciary is not.
o Cf Lord Kerr: While deference should be accorded to the Home Secretary’s views as to the extent of any possible damage done to the UK’s relations with Iran, it should not be accorded to the views as to the importance of the freedom of speech in this case, given that the HRA requires and empowers the court to exercise primary judgment. If there has been an interference with ECHR rights, the courts are charged with the duty of going beyond the proffered reasons when examining the lawfulness of the decision.

Question 50

Higher-intensity proportionality A v Secretary of State for the Home Department [2005] 2 AC 68

Answer 50

Facts: Claimants were detained in Belmarsh Prison under the Anti-terrorism, Crime and Security Act 2001, which permitted the indefinite detention of foreign terror suspects who could not be deported (for fear of breaching their rights under Article 3 of the European Convention on Human Rights). Mindful that this was almost certainly incompatible with Article 5 of the Convention (which protects against deprivations of liberty), the government decided to derogate from Article 5 and, accordingly, made a designated derogation order, under secondary legislation, disabling the courts from making a declaration of incompatibility in respect of the 2001 Act. Article 15 of the Convention makes derogations possible where there is a “war or other public emergency threatening the life of the nation” and the derogation is “strictly required by the exigencies of the situation”.
• Verdict:
o (i) The response necessary to protect national security was a matter of political judgment for the executive and Parliament (Lord Bingham at [29])
o (ii) However, where Convention rights were in issue national courts were required to afford them effective protection by adopting an intensive review of whether such a right had been impugned, and the courts were not precluded by any doctrine of deference from examining the proportionality of a measure taken to restrict such a right; that the right to personal liberty was among the most fundamental rights protected and the restrictions imposed by section 23 of the 2001 Act called for close scrutiny; that since section 23 applied to non-nationals suspected of international terrorism but not to United Kingdom nationals who were considered to present qualitatively the same threat, since it permitted non-national suspects to leave the United Kingdom, since it did not address the threat from United Kingdom nationals, and since it was capable of applying to individuals who did not pose that threat, it did not rationally address the threat to security, was a disproportionate response, and was not strictly required by the exigencies of the situation within the meaning of article 15 (see especially Lady Hale at [231])

Question 51

In an influential essay, Jowell set out two general reasons for deference,

Answer 51

which he termed “constitutional competence” and “institutional competence”. “Of Vires and Vacuums: the Constitutional Context of Judicial Review” [1999] PL 448, at p. 451.

Daly notes that constitutional and institutional competence are intertwined.

Question 52

Reasons for deference elucidated in Rotherham MBC

Answer 52

• Rotherham MBC) v Secretary of State for Business, Innovation and Skills (2015)
o Facts: The UK government allocated EU funds to different parts of the country, but judicial review was sought on the basis that the basis upon which such allocations were made failed to treat like regions alike and unlike regions differently.
o Verdict: Unsuccessful. There were both institutional and democratic grounds for deference.
♣ Lord Sumption, at 22: there was no right answer, and “the Secretary of State was required to make a complex evaluation of a wide range of overlapping criteria, all of which involved difficult and sometimes technical judgments about matters of social and economic policy.
♣ At 23: judicial deference was appropriate on democratic grounds too, given that the decision was a “particularly delicate” one involving “the distribution of finite resources” between UK’s nation and regions. This involved “arbitrating between different public interests affecting different part of our community” and was “an exercise in which the legitimacy of the decision-making process depends to a high degree on the fact that ministers are answerable politically to Parliament”.
♣ At 64, Lord Neuberger however notes that: “the fact that the legislature assigns such a decision to the executive does not alter the fact that it is the executive’s decision and not that of the legislature. In any event, the legislature will obviously have intended the rule of law to apply, so that such a decision, as with any executive decision, must be susceptible to judicial oversight”.
Allan: Any doctrine of deference is ‘non-justiciability dressed in pastel colours’, involving an abdication of judicial responsibility for the protection of rights. The judges’ reliance on the supposedly superior qualifications of the decision-maker effectively divests the court of its role as an independent scrutineer. An experienced and well-qualified public official, or Parliament, can always make an error of judgment regarding the balance of private rights and public interest. Deference deflects attention from the legislative or administrative act; evaluating the merits of the actor is ill-suited to the identification of error. Instead, the courts should focus solely on the intrinsic quality of the reasons in support of the view.
• Young: This view presupposes that the questions which arise for judicial decision have correct answers, which is highly doubtful. Most cases involve a value judgment as to whether the ‘loss’ of human rights on the claimant’s part is justified by the ‘gain’ in the public interest. In relation to such matters, courts should, on democratic grounds, attach a degree of weight to the views of a democratically accountable decision-maker in recognition of its democratic credentials.
• Further, we defer also because of the decision-making process (democratic election, collection of data, etc). The decision is more acceptable also because of the process (but the process itself can be a reason provided).
• Lord Sumption, Lord Carlile: The courts are also often confronted with issues involving the making of predictions) as to the consequences of the administrative decision (tying in with polycentricity. If the decision-maker has access to special expertise in the evaluation of risk, it would be odd if the court did not recognise that and attach appropriate weight to its view.
Allan also argues that (external) factors such as institutional or constitutional competence are relevant only insofar as they generate convincing arguments; the focus is ultimately still on the quality of the argument in and of itself, including the reasons and evidence provided. However, opponents argue that external factors may, in appropriate circumstances, carry independent weight. For example, Kavanagh argues that judges have two roles: to carry out substantive evaluation of the legal issues and their merits, in turn upholding rights, scrutinising Parliament and the executive for compliance with these rights, and to consider questions of relative institutional competence, expertise and legitimacy vis-à-vis the elected branches of government- this is a mix of constitutional and pragmatic concerns.
• Allan does not oppose the attribution of weight to the decision-maker’s expertise, but he opposes attempts to create a free-standing doctrine or set of rules on deference.

Question 53

There are two main forms of deference.

(i) “Spatial deference”

Answer 53

Deference is granted in absolute terms. There are certain areas of decision-making – defined by reference to the subject-matter of the decision – within which courts would necessarily defer to the decision-maker’s view (for e.g., national security matters).
Some judicial support can be found in
• Lord Hope in R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326 at 380: “an area of [administrative] judgment within which the judiciary will defer, on democratic grounds, to the considered opinion” of an elected decision-maker.
• Laws LJ in International Transport Goth GmbH v Secretary of State for the Home Department [2000] EWCA Civ 158 at [77]: “the extent of any deference…depends in part on the nature and quality of the measure in question: more concretely, whether its content falls within the special responsibility of the executive…or the special responsibility of the judiciary. A paradigm of the executive’s special responsibility is the security of the State’s borders. A paradigm of the judiciary’s special responsibility is the doing of criminal justice.”
However, it has also received criticism
• Hunt criticises the doctrine for being predicated on the assumption that cases can be neatly classified into categories according to the subject-matter. In reality, cases can, and frequently do, arise which concerns areas which would both attract little to no judicial scrutiny but call for greater substantive review (eg. Cases which implicate both national security and human rights). He calls for the need for due deference (ie. epistemic deference, considered below).
• Further, this would amount to carving out categories of cases which are completely immune to judicial scrutiny, which threatens the rule of law (principle of legality).
o This aligns with the larger movement in administrative law away from non-justiciability (eg. GCHQ and prerogative powers; non-jurisdictional errors of law); it does not make sense to have this in the human rights context.
Case law also clearly shows that English courts are not wedded to such an approach (eg. Belmarsh: Even though the government sought to justify secondary legislation using national security considerations, it was struck down on human rights grounds).
However, spatial or doctrinal deference can be granted in non-absolute terms. A decision-maker can be given an area of autonomy, subject to compliance with the dictates of reasonableness and proportionality. Space is given to a decision-maker but the courts still patrol the boundaries and may intervene when a decision-maker breaches the conditions on which its autonomy was granted. Even proportionality involves spatial deference, which operates to give a decision-maker more space within which to make its judgments.

Question 54

(i) Epistemic deference

Answer 54

Deference operates on a more granular level by requiring the court to determine the proper intensity of review at each stage of the proportionality inquiry, ascribing such weight or respect to the decision-maker’s views as is appropriate in the light of that reflection. 
According to this view, the principal sites of deference are stages (iv) and (v) of the proportionality test – whether it was necessary for the individual interest to be restricted to the extent that it was restricted and if it was proportionate to the gains in community interests. 
This type of deference is “epistemic”: there are reasons to believe that the executive or legislature might be better-placed to determine the definition and application of the ECHR right. 
Judicial support for this is found in
•	Huang v Secretary of State for the Home Department (2007) 2 AC 167
o	Facts: H was refused indefinite leave to remain in the UK, and sought judicial review, arguing that the decision breached the right to respect for private and family life under Art 8, ECHR. 
o	Verdict (Lord Bingham, sole judgment): Successful. When examining whether the interference with the right could be justified by reference to a legitimate public interest, the courts have to weigh up the competing considerations on each side and accord appropriate weight to the judgment of the decision-maker, which has responsibility for the subject matter and access to special sources of knowledge and advice.
♣	At [16]: “The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.”
Lord Bingham in Huang criticises the use of the word “deference”, like Lord Sumption in R(Carlile) v Secretary of State for the Home Department (2014), criticising it for its “overtones of cringing abstention in the fact of superior status”. However, in substance, this is epistemic deference.

Question 55

Particular deference may be due if an expert decision-maker has particularly carefully addressed itself to relevant issues.

Answer 55

• R (Begum) v Governors of Denbigh High School (2007)
o Facts: B argued that a school’s uniform policy, which prohibited the wearing of the jilbab, was inconsistent with her right to freedom of religion under Art 9, ECHR.
o Verdict: Unsuccessful. The governors of the school had particularly carefully addressed the relevant issues by taking immense pains to devise a policy which respected Muslim beliefs in an inclusive and unthreatening way. Further, just because the decision-maker had not addressed the various stages of the proportionality analysis in the way that a court would, this does not mean that the decision would be struck down (Lord Bingham: The CA had elevated form over substance).

Question 56

Expertise cannot generate deference if the relevant expertise has not been used by the decision-maker

Answer 56

• R (Mott) v Environment Agency [2018] UKSC 10
o Facts: The claimant was the joint leasehold owner of a right to fish for salmon at Lydney in the estuary of the River Severn. Under his licence the claimant was able to catch about 600 salmon per year until the defendant Environment Agency, pursuant to paragraph 14A of Schedule 2 to the Salmon and Freshwater Fisheries Act 19751 , as inserted, imposed conditions reducing the permissible catch to 30 in 2012, 23 in 2013 and 24 in 2014. The decisions to impose the conditions, based in the main on a report in 2012 from a university science department, was to protect the salmon fisheries in the River Wye, a Special Area of Conservation under Council Directive 92/43/EEC , the defendant having assessed that the salmon caught in the Severn estuary fisheries included salmon which originated in the River Wye, that they would otherwise have spawned there and that the Wye fishery risked not achieving its spawning targets.
o Principle and verdict, [36]-[37]: “It was enough that it “eliminated at least 95% of the benefit of the right”, thus making it “closer to deprivation than mere control”. This was clearly relevant to the “fair balance”. Yet the Agency had given no consideration to the particular impact on his livelihood. The impact was exacerbated because the method chosen meant that by far the greatest impact fell on him, as compared to others whose use may have been only for leisure purposes…Furthermore, where (unlike this case) the authorities have given proper consideration to the issues of fair balance, the courts should give weight to their assessment… I would dismiss the appeal.”

Question 57

3 possible directions recent case law has suggested:

(i) Proportionality has taken root in domestic law and can therefore be applied to purely ‘domestic’ cases

Answer 57

Note: this line of thinking is a categorical approach. It retains different spheres of operation for the reasonableness and proportionality tests. Different approaches to substantive review will be taken in different categories of cases.
¬ Kennedy v Charity Commission
Lord Mance at 51: “The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle. The nature of judicial review in every case depends upon the context”.
¬ Pham v Secretary of State for the Home Department
Lord Mance at 98: “Removal of British citizenship under the power provided by section 40(2) of the British Nationality Act 1981 is, on any view, a radical step, particularly if the person affected has little real attachment to the country of any other nationality that he possesses and is unlikely to be able to return there. A correspondingly strict standard of judicial review must apply to any exercise of the power contained in section 40(2), and the tool of proportionality is one which would, in my view…, be both available and valuable for the purposes of such a review”.
Lord Reed at 119: “where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality.”
Lord Reed at 120: “Given the fundamental importance of citizenship, it may be arguable that the power to deprive a British citizen of that status should be interpreted as being subject to an implied requirement that its exercise should be justified as being necessary to achieve the legitimate aim pursued. Such an argument has no however been advanced at the hearing of this appeal, and it would be inappropriate to express any view on it”.
¬ Keyu v Secretary of State for Foreign and Commonwealth Affairs
¬ Youssef v Secretary of State for Foreign and Commonwealth Affairs
Proportionality should be a general head of judicial review.
¬ Craig [2010] NZ L Rev 265 at 266
However, some criticisms of proportionality. If we subscribed to an ultra vires theory of judicial review, proportionality would overreach the proper limits of judicial review
¬ Sales (2013) 129 LQR 223, at 229
Judicial review takes place by reference to statutes construed in accordance with a set of presumptions articulated by the judges (modified ultra vires theory). If judicial review was permitted on the ground of proportionality except to the extent that Parliament has clearly manifested a contrary intention, this would involve a fundamental redistribution of judicial and administrative power. Parliament has promulgated legislation on the footing that it is the Wednesbury reasonableness/irrationality standard which applies; the courts cannot change this.
Note: Whether this argument is convincing is essentially a facet of the question whether the ultra vires theory of judicial review is convincing, given that this goes back to the fundamental issue of whether judicial review is based predominantly on statute or the common law.
The structure of proportionality is another key advantage. Under proportionality, the agency has to clearly explain why it felt the challenged action really was necessary, suitable and proportionate, and the courts have to explain their reasoning in a similar fashion.
¬ Craig (2010) NZ L Rev 265 at 272
But is the structure of the proportionality test too rigid?
¬ Hickman (2010) NZ L Rev 303 at 321:
The structure of the proportionality test is actually its downfall (structures become shackles!). The essence of the proportionality methodology is that it assesses the relationship between means and ends, but this rigid approach cannot be used in all situations
For e.g., A decision to close a waste disposal facility, challenged by a local resident who is concerned but not directly affected by the decision; absent a LE, the decision would not impact on the claimant’s rights or interests in any real or substantial sense. Further, the impact of the decision is multifaceted and it is very difficult to ascertain if the impact was the least injurious means of achieving the objective
¬ Stewart J in R (Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills (2014) EWHC 232 (Admin) at 69
Proportionality is useful only where “there is a specific legal standard and a decision by a public body which derogates from that standard. The court then has to address the question as to whether there is a legally justifiable basis for so derogating.
¬ Lord Kerr in Keyu v Secretary of State for Foreign and Commonwealth Affairs at 281:
“In the first instance there is no legislative objective and no interference with a fundamental right; secondly, it is difficult to see how the “least intrusive means” dimension could be worked into a proportionality exercise where the decision did not involve interfering with a right”
Thus, Lord Kerr envisaged “a more loosely structured proportionality challenge where a fundamental right is not involved. As Lord Mance said in Kennedy, this involves a testing of the decision in terms of its ‘suitability of appropriateness, necessity and the balance or imbalance of benefits and disadvantages’”.

Question 58

(ii) The distinction between proportionality and Wednesbury unreasonableness, including their respective areas of application, are becoming increasingly porous. In does not matter what label we use, so long as we apply a standard of review which is appropriate in the relevant context

Answer 58

Note: this line of thinking envisages less of a bright-line distinction between two spheres, and more of a shading of lower intensity reasonableness into higher intensity proportionality review.
¬ Kennedy v Charity Commission
Lord Mance at 54: “both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of scrutiny and the weight to be given to any primary decision maker’s view depending on the context.
¬ Pham v Secretary of State for the Home Department
Lord Sumption at 105: “although English law has not adopted the principle of proportionality generally, it has for many years stumbled towards a concept which is in significant respects similar” by “expanding the scope of rationality review so as to incorporate at common law significant elements of the principle of proportionality”. This has enabled courts “even in the context of rights arising wholly from domestic law…to differentiate between rights of greater or lesser importance and interference with them of greater or lesser degree”.
¬ Keyu v Secretary of State for Foreign and Commonwealth Affairs
Lord Kerr at 271: differences between proportionality and Wednesbury unreasonableness “have been overestimated in the past…the very notion that one must choose between proportionality and irrationality may be misplaced”.
It is arguable that administrative law as a whole is becoming more rights-oriented; while conceding that proportionality is not malleable enough to occupy the territory that once belonged to reasonableness, the territory itself is increasingly dominated by the notion of rights
¬ Poole (2009) CLJ 142 at 142
Elliott disagrees (TB). HRA has resulted in judicial review on rights grounds to a greater extent + the development of “common law constitutional rights” means that administrative action is challengeable, to a greater extent than before. On rights grounds. However, many administrative law cases still have nothing to do with rights. That’s why in non-HRA cases standing is generous – judicial review claims can be brought by those who are not themselves affected by the decision in question.
Taggart (2008) NZ L Rev 423 agrees. At 477, he argues that “in the absence of ‘rights’ there is no compelling normative justification for more searching scrutiny or intensive review than provided by the usual grounds of review and traditional (Wednesbury) unreasonableness as residual ‘safety net’…without the anchor of ‘rights’ as a starting point the proportionality methodology loses many of its touted advantages as a transparent and visible tool for ensuring reasonable or proportionate decision-making. It has a ‘determinate-looking’ structure without the reality of determinacy.”
“it seems to me at this stage of development of our administrative law that to draw a line on the rainbow – even a categorical one- is more likely to encourage lawyers, judges, and jurists to think carefully about where the case actually should be situated and why. On the ‘public wrongs’ part of the rainbow, the old dichotomies still seem to me to respect the institutional, functional, and pragmatic limitations on judicial review in a small, modern, welfarist state with a mixed economy. What this will mean in practice is that the push-and-pull of proportionality and deference on the ‘rights’ part of the rainbow will not occur in quite the same way in the ‘public wrongs’ part because there the architecture of judicial review for unreasonableness has deference built into it”.

Question 59

(iii) An extension of the second contextual approach: the contextual impulses that animate the second mode of analysis can and should be accommodated by an explicit switch to utilizing proportionality review across the board.

Answer 59

¬ Keyu v Secretary of State for Foreign and Commonwealth Affairs
Lord Kerr at 282 could “envisage a more loosely structured proportionality challenge where a fundamental right is not involved”
He emphasized at 272 that constitutional objections to proportionality are inaccurate because it does not require the court to substitute its opinion for that of the decision-maker, or “demand that the decision-maker bring the reviewer to the point of conviction that theirs was the right decision in any absolute sense” (but cf. Belfast City Council v Miss Behavin (2007) UKHL 19 at 37, where this was contradicted)
¬ Kennedy v Charity Commission
Lord Mance at 54: “the advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing 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 judicial review even outside the scope of Convention and EU law. whatever the context, the court deploying them must be aware that they overlap potentially and that the intensity with which they are applied is heavily dependent on the context”
Lord Mance continued to note that intense scrutiny, outside the context of fundamental rights, is not a necessary accompaniment to proportionality. For e.g., in R v Secretary of State for Health (1999) 3 CMLR 123 at 47, Lord Bingham explained that “proportionality review may itself be limited in context to examining whether the exercise of a power involved some manifest error or a clear excess of the bounds of discretion”.
¬ Pham v Secretary of State for the Home Department
Lord Mance, at 96, endorsed the view that the intensity of proportionality review is not a fixed necessary consequence of the structure, but a variable consequence of the degree of judicial restraint that is practised when engaging in such review.
Adopting proportionality as a general head of review (Craig (2010) NZ L Rev 265 at 266) does not necessitate undue control by the courts. Proportionality as a general head of judicial review can have variable application depending on the circumstances. The variation pertains not only between rights and non-rights cases, but also within the former category as not all rights are of equal importance.
¬ Craig, UK, EU and Global Administrative Law: Foundations and Challenges (Cambridge 2015) at 259
Elliott (TB): does this remove the bite of proportionality? Maybe this is all just semantics. But the less clear we are about what proportionality does, the more chameleonic it becomes, making more feasible the sort of judicial free-wheeling commentators had criticized Wednesbury unreasonableness for.

Question 60

Other approaches suggested by commentators:

(i) Try to find more structure in unreasonableness review

Answer 60

Daly: The proportionality and Wednesbury tests should be retained and kept distinct, though there should be more structure in the unreasonableness review (refer to the arguments about the various indicia).
• Once the presence of indicia or an indicium of unreasonableness is established, an explanation must be sought as to why the decision should not be deemed to be unreasonable- two possible ways of doing this is via cogent reasoning (logical coherence) and sufficient evidence.
• Unreasonableness does have an internal logic and structure; it is not necessarily the case that Wednesbury needs to be jettisoned in favour of the more “structured” and “reasoned” proportionality standard.
• Unreasonableness incorporates a number of substantive principles that are drawn not only from case law but from a deeper “normative well”- the judges seem to draw on a range of constitutional values (rule of law, considerations of good administration). Concomitantly, unreasonableness is not static; the set of indicia of unreasonableness is not closed, and by unpacking and analysing these indicia, we get a better understanding of the landscape of English administrative law.
• Further, a culture of justification is in fact hard-wired into unreasonableness. After establishing the indicia of unreasonableness, the courts will require the indicia to be justified by the decision-maker.
• A focus on the burden of justification permits variable standards of review to be coherently developed, given that the burden can be reduced or increased depending on the intensity of review.
o However, the indicia of unreasonableness are separate from the factors that determine the appropriate standard of review. Eg. Although the complex nature of the decision and the decision-maker’s expertise may be relevant in determining the appropriate standard of review, they do not touch on the unreasonableness of the decision per se (eg. Violate legitimate expectation).

Question 61

Other approaches suggested by commentators:

(ii) Return to strict bifurcation

Answer 61

Lord Reed, Pham: While both tests remain in the common law, proportionality will be appropriate only when individual rights and interests are at stake.
• This is a categorical approach: different approaches to substantive review will be taken in different categories of case.
Taggart: In the absence of rights there is no compelling normative justification for more intensive review than provided by Wednesbury reasonableness. Without the anchor of rights as a starting point, the proportionality methodology fails to cohere with reality (in that particular case). Instead, there should be a ‘rainbow of review’, within which the proportionality test applies in cases concerning rights, while in other cases (‘public wrongs’), the reasonableness doctrine remains operative.

Question 62

Other approaches suggested by commentators:

(iii) Calibration of review

Answer 62

Elliot: Proposes a ‘twin-track’ approach to deference, which recognises that deference might involve retention of different standards of review.
1. Intrinsic deference: What standard of justification should be required?
2. Adjudicative deference: To what extent should the court defer to – ascribe weight to – the decision-maker’s view in determining whether the operative burden of justification has been discharged?
This approach is predicated on the notion of justification- the set of criteria by reference to which governmental action must be justified has become richer. To withstand judicial scrutiny, it must also conform, for example to the demands of the legitimate expectation principle. Using this approach, the court first asks about the relevant benchmark or standard that should be used in a given case (eg. In Coughlan, the operative benchmark was the substantive legitimate expectation generated by the promise). Following which, the court then determines whether – and if so, to what extent – a decision is ‘suspect’ and how, in light of that, the extent of the justificatory burden should be determined. Once the extent of the justificatory burden has been determined, the court must decide whether it has been discharged, and this should be driven principally by considerations relating to the normative significance of the value that is placed at risk by the impugned decision.
• In other words, we should focus on calibrating substantive review by reference to the normative, institutional and constitutional calibrations that ought properly to shape it.
• Intrinsic deference is the level of review that is normatively warranted, while adjudicative deference is its pragmatic counter-part- it provides the level of review that can appropriately be supplied given the particularities of the individual case.
• This approach allows us to contextualise the diversity evident within the contemporary substantive review landscape. The crude distinction between reasonableness and proportionality merely clothes a deeper level of complexity evidenced by significant differences within these broad categories (‘Super’ and ‘sub’ Wednesbury, different ways of understanding proportionality, eg. ‘fair balance’ or adopting the least restrictive way of achieving a legitimate objective). These ostensibly structural differences between various formulations of the reasonableness and proportionality tests reflect profound differences pertaining to the nature and scale of the operative burden of justification, thus this approach is conceptually clearer and more accurate.
• This approach is calibrated in a finer-grained way than the notion of bifurcation permits, and one in which doctrine plays a function that is subsidiary to and reflective of deeper considerations – normative, institutional, constitutional – that are necessarily in play when courts engage in substantive review.
The courts in some instances seem to endorse such an approach- a merger of Wednesbury reasonableness and proportionality, where a calibration is required.
• Kennedy: The common law no longer insists on the uniform application of the rigid test of irrationality. The nature of judicial review depends on the context.
• It was also noted by Lord Mance in Kennedy that review using both reasonableness and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context. Whether review is described in terms of ‘reasonableness’ or ‘proportionality’ is less important than tailoring the nature and intensity of review to the requirements of context.
o This point – that the courts are able to differentiate between rights of greater or less importance and adjust the extent of intervention accordingly – is noted by Lord Sumption in Pham.
o This is part of the larger movement towards integrating proportionality-like review with the common law (Pham, Kennedy, Osborn).