Proportionality

Question 1

Step 1

Answer 1

1. Has a protected interest been compromised by the decision?

Question 2

Step 2

Answer 2

2. Was the interest compromised in the pursuit of a legitimate aim?

Question 3

Step 3

Answer 3

3. Was it necessary to compromise the protected interest in order to achieve the legitimate aim?

Question 4

Step 4

Answer 4

4. Is there an adequate relationship of proportionality between the damage to the protected interest and the positive consequences flowing from the achievement of the legitimate aim?

Question 5

Smith and Grady (step 3)

Answer 5

It is only possible to show it was necessary if the aim could not be realized by less drastic means inflicting less damage on the protected right.

Question 6

Nadarajah

Answer 6

Laws LJ noted that the test for legitimate expectations approximated the proportionality test, implying it might apply outside HR cases

Question 7

Farrakhan

Answer 7

Deference is appropriate in relation to steps 3 and 4 where the decision-maker has superior relative institutional competence, more so if the statute indicated Parliament intended to confer a wide margin of discretion on the DM.

Question 8

Would you say that judicial application of the proportionality test is compatible with democracy?

Answer 8

Lord Ackner worried that the proprortionality test would inevitably result in courts considering the merits of the case and erode the boundary between appeal and review.

BUT - When the court quashes a disproportionate decision it does not prescribe another option, but leaves it to administrative discretion to choose a more proportionate course of action and is thus different from appeal.

Question 9

British Civilian Internees (2 quotes)

Answer 9

The proportionality test has NOT replaced the standard test of reasonableness which is still to be applied where the JR claim raises no human rights or EU law issues

“[The CoA] has difficulty seeing what justification there is for retaining the Wednesbury test, but it is not for this court to perform its burial rites”.

Question 10

Daly, Lord Steyn (2 differences proportionality and reasonableness)

Answer 10

Proportionality differs from Wednesbury in that it may require the reviewing court to assess the balance which the DM has struck, rather than whether it is within the range of reasonable Ds.

It may go further than traditional review in requiring attention to be directed at the relative weight accorded to interests and considerations.