Unreasonableness and Proportionality Flashcards
What is red in Judicial Review Traffic Lights?
Primary function of administrative law: to control abuses and excesses of state power;
Administrative law as and as the righting of administrative wrongs by the courts.
What is amber in Judicial Review Traffic Lights?
Administrative law should encompass both the ‘fire-fighting’ and ‘fire-watching’ functions and find solutions outside as well as inside courts;
The courts’ role, through judicial review, is not only to right wrongs but to maintain high standards of public administration and good practice.
What is green in Judicial Review Traffic Lights?
The role of administrative law is not to act as a brake on the interventionist state but to enable and facilitate legitimate government action towards the public interest;
Administrative law as a mechanism and good practice template, administered by public bodies and checked through political processes.
What case developed the initial test for unreasonableness? What was the initial test? What traffic light colour was this?
- Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)
- “It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere… but to prove a case of that kind would require something overwhelming”
- Green
What case modified the Wednesbury test? Explain.
GCHQ (1985) - “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”. “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”.
What is required to be taken into account now when using the Wednesbury unreasonable test? Explain using case law
Context - Kennedy v Charity Commissioner (2014): ‘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.’
- The closer a decision gets to looking like a parliamentary decision, the less likely the courts are to intervene - Nottinghamshire County Council v SoS for the Environment (1986)
- There is a more intrusive approach for human rights – sometimes called suprawednesbury - R v Ministry of Defence, ex p Smith (1996).
What two cases began to consider if the Wednesbury test is a good idea? Has this been resolved?
Ex p ITF (1999) and Daly (2001)
Lord Cooke: “the day will come when it will be more widely recognised that … Wednesbury… was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation.”
No - this is still being discussed today
What did Lord Diplock in GCHQ (1985) say about proportionality?
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]”.
What case lay out proportionality in the UK? Explain.
Bank Mellat v Her Majesty’s Treasury (No 2) (2013).
Four issues for consideration under proportionality review:
1. Whether the objective is sufficiently important to justify limiting a fundamental right
2. Whether the 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)
What are five differences between Wednesbury and Proportionality?
- A difference between proportionality and wednesbury is the intensity of review. Wednesbury accepts the argument easily, whereas proportionality questions the decisions and reason.
- Proportionality can cause problems because public bodies were given the power not the court.
- Proportionality is more structured, it provides a criteria.
- Proportionality is wider whereas Wednesbury is narrower.
- Wednesbury test changes depending on context, whereas the proportionality test stays the same
What did Lord Mance say about proportionality in Pham v Secretary of State for the Home Department (2015)?
‘In short, proportionality is—as Professor Dr Lübbe-Wolff (former judge of the Bundesverfassungsgericht which originated the term’s modern use) put it in The Principle of Proportionality in the Case Law of the German Federal Constitutional Court (2014) 34 HRLJ 12 , 16–17—“a tool directing attention to different aspects of what is implied in any rational assessment of the reasonableness of a restriction”, “just a rationalising heuristic tool”. She went on, at p 16: “Whether it is also used as a tool tointensifyjudicial control of state acts is not determined by the structure of the test but by the degree of judicial restraint practised in applying it.” Whether under EU, Convention or common law, context will determine the appropriate intensity of review’
What two problems do both Wednesbury and proportionality have?
The balance between not going far enough and going too far; and the balance of the role of ministers and the role of judiciary.
What case mentioned the degree of defence? Explain. Why is it not simply called the margin of appreciation?
Bank Mellat v HM Treasury (No 2) (2013) - similar to the margin of appreciation. ‘An assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon. The principle does not however entitle the courts simply to substitute their own assessment for that of the decision-maker. As I have noted, the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs. Those are not however the only relevant factors. One important factor in relation to the Convention is that the Strasbourg court recognises that it may be less well placed than a national court to decide whether an appropriate balance has been struck in the particular national context. For that reason, in the Convention case law the principle of proportionality is indissolublylinked to the concept of the margin of appreciation. That concept does not apply in the same way at the national level, where the degree of restraint practiced by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend on the context, and will in part reflect national traditions and institutional culture. For these reasons, the approach adopted to proportionality at the national level cannot simply mirror that of the Strasbourg court.’
In what five types of cases do the courts use proportionality?
- EU Law
- Human Rights cases
- Statutory requirement
- Substantive legitimate expectation cases
- Penalty cases
Using a range of case law, talk about whether there is a general proportionality test.
- R v Secretary of State for Home Department ex p Brind (1991) - ‘Unless and until Parliament incorporates the Convention into domestic law… there appears to me to be at present no basis upon which the proportionality doctrine applied by the European Court can be followed by the courts of this country’
- R (Alconbury) v SoS for the Environment, Transport and the Regions - “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”
- R (Association of British Civilian Internees) v Defence Minister (2003) - “it seems to us that the case for [recognising proportionality] is indeed a strong one [citing Lord Slynn]. The criteria of proportionality are more precise and sophisticated…It is true that sometimes proportionality may require the reviewing court to assess for itself the balance that has been struck by the decision-maker and that may produce a different result from one that would be arrived at on an application of the Wednesbury test. But the strictness of the Wednesbury test has been relaxed in recent years even in areas which have nothing to do with fundamental rights… The Wednesbury test is moving closer to proportionality and in some cases it is not possible to see any daylight between the two tests… Although we did not hear argument on the point, we have difficulty in seeing what justification there now is for retaining the Wednesbury test.”
Kennedy v Charity Commission (2014) - ‘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.’ - Keyu v SoS for Foreign and Commonwealth Affairs (2015): ‘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….
The move from rationality to proportionality, as urged by the appellants, would appear to have potentially profound and far reaching consequences’ ‘As Lord Neuberger PSC has said, it is possibly a matter of some constitutional importance, although it is perhaps not as great as many commentators believe…It should also be understood that the difference between a rationality challenge and one based on proportionality is not, at least at a hypothetical level, as stark as it is sometimes portrayed.’
Therefore this is a split in the Supreme Court over proportionality generally. Parliament will not decide which test to use because it is an element of common law and therefore for the courts to decide.
