Grounds/Proportionality

Question 1

When is proportionality used?

Answer 1

if the decision is unlawful but the purpose has a legitimate aim.

Question 2

what is the four staged test

Answer 2

1) is there a legitimate aim?
2) is the policy/measure necessary to achieve the purpose/aim? (rational connection) (suitability test)
3) is it an appropriate measure/policy? (least restrictive measure) (necessity test)
4) How severe is the restriction/burden on the individual compare to the significance of achieving the purpose/aim? (disproportionate/balancing test)

Question 3

How was the four staged test developed through cases

Answer 3

Lord Steyn initially created it on R(on the application of Daly) v Secretary of state for home department
Then
Was developed by Lord Sumption in Bank Mellat Case, in this case the interruption of bank dealings was not proportionate.

Question 4

Factors the courts have taken into account

Answer 4

Nature of the convention right
courts expertise on the matter
degree to which social, political and economic factors need to be taken into account
the particular importance of the right claimed
democratic status of the original decision maker

Question 5

Case eg… (Begum)

Answer 5

R (on the application of Begum) v Denbigh High School Governors - Student claimed her uniform policy interfered with her right to express her religion, it was held that if the schools policy did infringe the claimants human rights then the interference was proportionate

Question 6

Penalty case

Answer 6

R v Barnsley MBC ex parte Hook

Lord Denning quashed the decision because the penalty was excessive and proportionate to the offence.

Question 7

when do we use proportionality in English law

Answer 7

• Rights cases
• EU law
• Penalty cases