Grounds for Review: Proportionality Flashcards
Describe Irrationality or Wednesbury Unreasonableness as grounds for review
When a decision is “so unreasonable that no reasonable authority could ever have come to it.”
per Lord Diplock
What makes irrationality a substantive ground of review?
The court is concerned with not just legality or procedural propriety but the merits of the decision itself
What is the light touch review?
This is the reaction for most claims of irrationality, supervisory jurisdiction
What is anxious scrutiny?
The reaction of courts if the claim of irrationality is paired with an allegation that a serious human rights violation could result from the decision
Desrcibe the decision in R v Ministry of Defence, ex parte Smith 1996
A decision not to allow homosexuals to serve in the armed forces was not found irrational. When the test of proportionality was applied by the European Court of Human Rights, however, (Smith and Grady v The United Kingdom) it was found that there had been a breach of the applicants’ rights under Article 8 ECHR that protects the right to privacy.
What was the effect or the Human Rights Act on Judicial Review?
The HRA 1998 codified the ECHR into domestic law, petitioners need not go to European Courts for challenges of human rights
as seen in the Smith Cases
What is proportionality?
Proportionality includes a 3 stage test:
First, whether the measure is suitable for achieving the desired objective.
Second, whether the measure was necessary to achieve the desired objective.
Thirdly, whether the measure nonetheless imposed an undue burden on the individual
What is the status of proportionality pre Human Rights Act?
Lord Diplock in the GCHQ Case: “possible adoption in the future of the principle of proportionality.”
What is the status of proportionality post Human Rights Act ?
Proportionality has not been adopted as a stand-alone ground of review at the common law. Yet
Proportionality is a well-established feature of the Strasbourg Court
Sections 2, 3, 4 and 6 Human Rights Act 1998
What are the differences between irrationality and proportionality according to Lord Steyn in Daly.
Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach.
- the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.
- the proportionality test may go further than the traditional grounds of review
