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Proportionality: A Panacea, or Something to Fear?

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About The Author

Keir Baker (Former Editor in Chief)

Keir is a Trainee Solicitor currently in the fourth and final seat of his training contract at a major US law firm. He is a law graduate from Selwyn College, University of Cambridge. Outside the law, Keir is an accomplished goalkeeper in both football and hockey, as well as a keen actor and pianist. He is a long-suffering supporter of Middlesbrough FC.

The sublimity of administration consists in knowing the proper degree of power that should be exerted on different occasions.

Charles de Montesquieu

When scrutinising decisions made by public authorities on administrative matters, a judicially reviewing court will seldom examine the merits; public authorities are typically deemed to possess the relative institutional competence that allows them to make more informed decisions. Furthermore, public authorities are accountable to both Parliament and the electorate, meaning that, from a democratic perspective, it is more appropriate for them to make decisions on administrative matters than unelected judges. Focus instead is placed upon whether the procedure that led to the decision was fair, accounted for all salient and relevant matters and was taken by a decision-maker who had the jurisdiction and the objectivity to make it.

Occasionally however, the courts will examine the actual decision reached via a process known as substantive review. Traditionally, this involved examining the decision by reference to a yardstick of unreasonableness. However, recent developments that stem from the influence of the European Convention of Human Rights – via the introduction of the Human Rights Act 1998 – have led to a new method of substantive review called proportionality seeming to hold the potential to break into unreasonableness’ hegemony and become a stand-alone ground of review in domestic law.

Currently, there exists what Taggart describes as a ‘bifurcated view’ of administrative law: a line is drawn between human rights cases in which proportionality is used, and other cases in which unreasonableness remains operable. But this division is increasingly under strain as various Supreme Court justices in recent cases have suggested that proportionality could, and should, develop and expand the sector it has carved out from unreasonableness’s historical dominance. Comments from Lord Mance in Kennedy v The Charity Commission [2014] and Lords Carnwath and Sumption in Pham v Secretary of State for the Home Department [2015] have blurred the line between the two doctrines.

Thus, in light of Lord Carnwath’s call for a comprehensive review of the situation in Youssef v Secretary of State for Foreign and Commonwealth Affairs [2016], this article will examine the extent to proportionality has undermined this bifurcated approach and take a minority view: it will be argued that the increasing role of proportionality in English administrative law is something that must be resisted.

The Orthodoxy – Wednesbury Unreasonableness

In Associated Provincial Picture Houses v Wednesbury Corporation (1943), Lord Greene M.R articulated the test of unreasonableness: a decision by a public authority will be quashed on substantive grounds when it represents a ‘conclusion so unreasonable that no reasonable authority could ever have come to it.’

Widespread criticism of the test from academics and the judiciary alike has left Wednesbury – in the words of Wade and Forsyth’s oft-quoted textbook – in ‘terminal decline.’ It is often observed that the test is circular (a decision is held unreasonable when sensible individuals would consider it unreasonable) and offers no clear guidance as to the extent of the “margin of discretion” the courts allow a public authority. In R (Association of British Civilian Internees (Far East Region)) v Secretary of State for Defence [2003], Dyson LJ described how he had ‘difficulty in seeing what justification there now is for retaining Wednesbury’ while in R v Secretary of State for the Home Department, ex parte Daly [2001], Lord Cooke condemned Wednesbury as:

an unfortunately retrogressive decision… 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. The depth of judicial review and the deference due to administrative discretion vary with the subject matter (but) the law can never be satisfied… merely by a finding that the decision under review is not capricious or absurd.

The New Kid on the Block – Proportionality

Proportionality originates from the European Court of Human Rights and the European Court of Justice. It aims to ensure public authorities maintain a sense of proportion between their objective and any individual right that may be impinged thereby. It facilitates a more structured inquiry than Wednesbury: in Daly [2001], the House of Lords outlined the leading formulation which holds that the reviewing court must ask itself whether:

  • The public authority’s objective is sufficiently important to justify limiting a fundamental right?
  • The measures designed to meet the public authority’s objective are rationally connected to it?
  • The extent to which those measures impair the right or freedom are no more than is necessary to accomplish the objective?

It was accepted in R v Chief Constable of Sussex, Ex Parte International Trader’s Ferry Ltd [1998] that proportionality must be applied in all cases with a European dimension to ensure English law accorded with the jurisprudence of the European courts. As the House of Lords noted in Huang v Secretary of State for the Home Department [2007], a reviewing court’s judgement in these cases must always involve the striking of a fair balance between the rights of the individual and the interests of the community. This is a balancing act inherent in the whole of the ECHR, for the severity and consequences of any interference into the rights it protects demands careful assessment.

But in other cases – where the rights involved are not so fundamental – English judges have been largely content to prevent proportionality intruding on Wednesbury’s monopoly reinforcing Taggart’s claim of a ‘bifurcated’ view of substantive review in English law.

The Recent Situation – Who Says What?

However, recent Supreme Court decision – such as Kennedy [2014], Keyu v Secretary of State for Foreign Affairs and Commonwealth Affairs [2015], Pham [2015] and Youssef [2016] – all go some way to reinforce Sedley LJ’s suggestion in R (Quila) v Secretary of State for the Home Department [2010] that proportionality may now have ‘a life of its own in public law’ and the potential to ‘subsume’ Wednesbury. There is indeed scope to argue that there is little basis to prevent proportionality from applying outside this context.

As Lord Mance observed in Kennedy [2014], the introduction of proportionality would facilitate the addition of ‘elements of structure’ into the judicial review process through its direction of ‘attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages’.

Meanwhile in Pham [2015], Lord Reed argued that ‘where Parliament authorises significant interferences with important legal rights, the courts may interpret the legislation as requiring that any such interference should be no greater than is… necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality.’ In the same case, Lord Sumption endorsed a contextualist approach, whereby a sliding scale would be applied by the court, ‘in which the cogency of the justification required for interfering with a right will be proportionate to its perceived importance and the extent of the interference’. Based on the tenor of these judgments, Elliott has noted that Pham [2015] ‘arguably represents a landmark in the emergence of proportionality as a common-law head of review’.

Most recently in Youssef [2016], Lord Carnwath articulated his desire for ‘an authoritative review in [the Supreme Court] of the judicial and academic learning on the issue… (that will) aim for rather more structured guidance for the lower courts.’

The Recent Situation – The Problems

Proportionality – Far from a Panacea

All this recent case law adds weight to the argument that proportionality should be given a larger role in English administrative law. Yet this should be resisted: modern courts are too ready to use proportionality as a panacea in difficult cases for which – in reality – it is wholly inappropriate.

Firstly, proportionality – heralded as being ideal to help deal with fundamental common law rights – struggles to tackle issues of moral correctness and rightness. As Tsakyrakis notes, proportionality not only tends to avoid moral questions but when it does rarely engage them, it gets them wrong: it is indiscriminate as to the interests which it balances against the right. This inability to appreciate the nuances – such as that some justifications are not just less weighty than the right with which they conflict, but are in fact incompatible therewith – of the nature of basic and fundamental rights exemplifies how it is wholly inappropriate to be applied in non-European cases. In Hatton v UK [2003] for example, a case where the applicants argued their Article 8 rights where being violated because increased noise levels from night flights at Heathrow airport deprived them of sleep, the use of the proportionality test meant the court overlooked difficult questions that the case raised: such as whether there is an actual right to sleep and whether it takes precedence over public interest.

There is also a central flaw at the core of the proportionality test: the balancing stage. Balancing can only function where two things can be compared or measured against each other; but many constitutional issues are simply not commensurable. In Huang [2007] for instance, Endicott notes that the court sought to weigh up the immeasurable (the gravity of the impact of deportation on a family) against the unspecified (the public interest and legitimate state purpose of immigration control). Furthermore, balancing is largely impressionistic and unprincipled, relying on judicial instinct rather than any sound legal doctrine. Indeed, Wednesbury operates as an important safeguard against judicial overreach which could be removed by proportionality; it would thus become necessary to rely upon judicial wisdom both in terms of deciding when recourse to proportionality is in the first place warranted and, when it is, to what extent its intrusiveness should be moderated. The test is thus overly infused with judicial discretion and value judgments, all the while undermining the focus on legality; a recipe that, as Forsyth has observed in relation to the remedies of judicial review, could lead to administrative chaos.

Wednesbury Unreasonableness – Still Surviving

Furthermore, all the recent case law also overlooks that Wednesbury can still meet the demands of contemporary judicial review cases. For example, reasonableness is more nuanced than often classically defined, and this closes the gap between it and proportionality.  While often criticised as being overly-rigid in its intensity of review, Wednesbury over the years has nonetheless been varied. Indeed, Laws LJ, writing extra-judicially, noted that the courts, while broadly adhering to the monolithic language of Wednesbury, adopted variable standards of review to suit the subject matter of the case before them. For example, a standard of review often termed ‘super-Wednesbury’  has been developed, whereby the courts have only exhibited a willingness to intervene on substantive grounds only if the decision in question crosses an especially high threshold – in R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1985], the House of Lords rejected any opportunity to review a decision on substantive grounds after the public authority’s conclusion had been endorsed by a resolution in the House of Commons.

Wednesbury unreasonableness’s flexibility has been applied in corollary too: in R v Ministry of Defence, ex parte Smith [1995], Lord Bingham MR adopted a standard of review described as ‘sub-Wednesbury’, whereby a court will be more willing to intervene and evaluate the reasonableness of the decision more rigorously. As he explained, this brand of Wednesbury meant that the more substantial the interference with (a) right, the more the court will require by way of justification before it is satisfied that the decision is reasonable.’

Alongside this, there also seems to be an over-exaggeration of the benefits offered by proportionality – many commentators have overlooked that while there have indeed been judicial calls for Wednesbury’s time in the sun to be ended, there has also been judicial recognition that the results reached by both tests will be largely indistinct. Lord Mance in Kennedy [2014] conceded that both tests ultimately ‘involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context,’ whilst Lord Carnwath observed in Youssef [2016] that in many cases – particularly those involving issues like national security – it is highly unlikely that different results will arise.

More prominently, in Keyu [2015] – a case where (in the words of Lord Neuberger) the appellants argued that the time had come ‘to reconsider the basis on which the courts review decisions… and in particular that the traditional Wednesbury rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality’ – both Lady Hale and Lord Kerr cautioned against trying to identify a dichotomy where one does not in fact exist. As Lord Kerr pointed out, ‘the very notion that one must choose between proportionality and irrationality may be misplaced’.

Wednesbury too promotes legal clarity and transparency – concepts considered valuable elements of the rule of law in Lumba (WL) v Secretary of State for the Home Department [2011]. A general use of proportionality would obliterate the current simple test to determine exactly when Wednesbury would be applied: whether European law is involved. Wednesbury offer practical advantages too, maintaining the burden of proof on the claimant and alleviating the time-consuming requirement for decision-makers to have to justify their actions in every case of judicial review.

Conclusion

The general trend evident in recent decisions is that proportionality may come to replace Wednesbury unreasonableness as the primary ground of substantive review in English administrative law. However, it has been here argued that the bifurcation of substantive judicial review should be maintained, for it represents a canny recognition of the advantages it brings in terms of analytical, conceptual and practical clarity.  Not only does the proportionality test have fundamental flaws, to argue for its uniform application and its replacement of Wednesbury overlooks the latter’s capacity to be a nuanced ground of review, taking into consideration and effectively examining issues which proportionality – for all its structure and intensity – cannot hope to recreate.

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Tagged: Administrative Law, Judicial Review

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