Proportionality

Question 1

GCHQ 1985

Answer 1

Lord Diplock put a question mark over proportionality.

Question 2

ex P Daly [2001]

Answer 2

3 step proportionality test developed. Prison cell searched, officers read private letters from lawyers. Could have been restrained instead and achieved same aim.
Also article 8 guarantees respect for ones correspondence, human rights issue.
Lord Steyn developed proportionality test:
1) Legislative objective important enough to justify limiting a fundamental right.
2) Measures rationally connected to it?
3) Means used no more than necessary?
- Expresses difference between proportionality and irrationality. Proportionality should be applied in human rights cases, not irrationality.
Lord Steyn acknowledged that the irrationality test is difficult to satisfy, so proportionality allows cases to be examined in further detail.

Question 3

Pham v Secretary of State for the Home Department [2015]

Answer 3

Issue- whether minister could exercise discretion to deprive P of British citizenship, P, who was born in Vietnam, argued this would leave him stateless.
- Examined differences between irrationality and proportionality.
- Attempted to use article 6 but court rejected this.
Sliding scale of proportionality.
Lord Sumpton: Lord Diplock said proportionality (GCHQ) could be adopted as a general ground of review.

Question 4

Bank Mellat v HM Treasury (No.2) [2013]

Answer 4

4th step added to the proportionality test. Is there the right balance between the rights of the individual and the interests of the community? ECHR.
Bank Mellat suspected by UK Government of funding Iranian nuclear programme and its operations were therefore suspended in the UK.

Question 5

Ex p Smith [1996]

Answer 5

Argument of the counsel-
“decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker”
Quoted in Pham v Secretary of State for the Home Department [2015]. This is a proportionality test- shows how it links to irrationality.