Public Law: Proportionality

Traditionally, administrative action in the UK has been subject to three grounds of review. Lord Diplock, in the GCHQ case, reiterated these and labelled them ‘procedural impropriety’, ‘illegality’ and ‘irrationality’. The test to establish whether a decision was irrational had been subject to a particularly large amount of litigation and, consequently, debate. Proportionality, a doctrine applied as a ground of review across continental Europe, necessarily grants judiciaries’ wider powers to consider the merits of a decision.

The decision made must be proved to have been necessary to meet a legitimate aim, and the most reasonable way of doing so. Consequently it is a far more stringent test for irrationality than Wednesbury. Since the UK joined the European Union in 1973, judges have been required to apply the proportionality test in cases with a European dimension and increasing pressure has been placed upon the judiciary to incorporate the test into domestic administrative law. The modern procedural definition of the proportionality test is relatively clear. Tom Hickman, identified the most common formulation as a three-part procedure.

The reviewing court must consider: Whether the measure was suitable to achieve the desired objective, it is necessary for achieving the desired objective. Whether, even so, the measure imposed excessive burdens on the individual it affected. In the UK, the doctrine has often been defined in contrast to the recognized ‘irrationality’ principle and the test coined in Wednesbury. Lord Steyn argued that although ‘there is an overlap’ between irrationality and proportionality and ‘most cases would be decided in the same way’, the ‘intensity of review’ is ‘greater’.

Since the courts first began applying the doctrine academic and judicial suggestions that proportionality should be in some way incorporated into domestic UK law have been regular. Moreover, pressure for reform has increased since the assent of the HRA (1998), which has required use of the doctrine in cases that involve the breach of ECHR rights. The most common suggestion, and the subject of this study, has been to establish proportionality as a separate full ground of judicial review. There are a number of clear advantages to the proposal.

Firstly, it has been suggested that it would be preferable for the same test to be used to deal with claims arising under EU Law, the Human Rights Act and all other domestic challenges. Due to the wide scope of the Human Rights Act, it is currently common for two such claims to be present in an application for judicial review, and not uncommon for all three to be relevant. It is further suggested that necessitating a judgment of which test should be applied across different aspects of a single case is an unnecessary and undesirable complication.

Furthermore, the test can, it is argued, be applied with varying degrees of intensity to accommodate the different types of decision subject to judicial review. Different weight can be prescribed to different reasons and factors, allowing the doctrine to be far more flexible than the Wednesbury test. It has been widely counter-argued that it can be dangerous and inappropriate to transplant administrative concepts from other jurisdictions, as Sir Otto Kahn-Freund noted in the 1973 Chorley Lecture.

While proportionality fits easily within the constitutional nature of many continental European states, application in England could result in unclear lines of authority, and the regrettable situation of courts overruling the decisions of bodies who derive power from democratically elected institutions. Allowing the courts to empower themselves to overrule decisions on their merits and substitute their own preferences would lead to judicial assumption of quasi-executive power. The growing debate has led several judges to consider incorporating proportionality by common law as a new ground of review or modification of the Wednesbury test.

In his judgment in the GCHQ case, after outlining the three traditional grounds of review, Lord Diplock suggested that ‘development’ may ‘add further grounds’ He ‘had in mind particularly the principle of proportionality’. In spite of Lord Diplock’s carefully worded prediction, the English judiciary maintained a sceptical stance on the incorporation of the doctrine. The HoLs’ opportunity to incorporate or prevent the influence of proportionality occurred with R. v Secretary of State for the Home Department ex parte Brind in 1991 still the leading case on proportionality in domestic law.

The Home Secretary had issued directives under the Broadcasting Act (1981) requiring the BBC to refrain from broadcasting interviews with people who represented terrorist organizations. The prescription was limited to direct statements from individuals, and its implication led to farcical dubbing of IRA members’ voices on the news. The applicants sought to challenge the decision on several grounds. One of them was that the directives were a disproportionate response to the government’s legitimate objective.

Following Brind, there have been several cases where the courts have explicitly refused to consider proportionality as a criteria for review, instead applying the Wednesbury test strictly. In the International Stock Exchange case, Popplewell J stated that ‘proportionality is not a free standing principle in domestic law’ and it ‘would not be proper’ to apply it. A severe reluctance to move beyond the strict provisions of Wednesbury can also be seen in the more recently in the ABICIFER. HRA triggered a revival of the debate about incorporating proportionality, leading more judges to argue for full domestic use of the doctrine.

The Act stipulates that English courts must uphold the provisions of the European Convention on Human Rights. Many of the articles contain the stipulation that any breach of convention rights must be ‘necessary in a democratic society’. Across continental Europe this construction has been, almost certainly intentionally, interpreted by national courts to require them to apply the proportionality test. In Daly, Lord Steyn and Lord Bingham acknowledged that the construction of the Act required the proportionality test to be applied, and confirmed that there was therefore a separate ground of review for Human Rights Act and EU related decisions.

They did not, however, condone the application of proportionality to all domestic irrationality review. Lord Cooke, went further, suggesting that the Wednesbury test was ‘unfortunately regressive’ and any decision should be ‘within the scope of judicial intervention on its merits’. Allowing judges to consider cases on their merits seems materially close to the proportionality doctrine, and certainly dismisses the objections of the House of Lords in Brind. In the same year Lord Slynn appeared to share this view in R v. Secretary of State for the Environment ex parte Alcon bury.

He confidently asserted that ‘the time has come’ to recognize proportionality as a full ‘part of English administrative law, not only when judges are dealing with Community Acts’. In his view, ‘trying to keep the Wednesbury principle and proportionality in separate compartments’ is ‘unnecessary and confusing’. Lord Slynn’s judgment suggested a full application of the proportionality test for irrationality, with the exception of matters of ‘policy’, which would fall under Wednesbury. This guideline is unhelpful it is unclear which executive decisions would not result from a matter of policy.

Executive decisions are, by definition, policy. Therefore, in the light of Daly and Alconbury the current position of proportionality in domestic common law is confused. There have been statements of intention but not a full judicial ruling. The exact nature of the proportionality test that should be applied to EU and HRA cases is also subject to confusion. In 2005, R v Governors of Denbigh High School ex parte Begum found the CoA faced with a challenge to a decision by a school to ban the wearing of a form of Islamic dress known as the hijab.

The court differentiated between ‘substantive’ proportionality and ‘procedural’ proportionality in its ruling. The school passed the substantive proportionality test – whether the means to achieve a legitimate end were legitimate and fair – but failed the newly conceived procedural proportionality test. The CoA held that in banning the Hijab the governors had not gone through the decision making process in a judicial fashion, considering the student’s convention rights to freedom of religion and any alternatives.

The failure of the order to remove the Hijab was not because the measure was substantively disproportionate, but because the procedure was not correctly considered. The court specifically acknowledged that the uniform policy could be reconciled with Article 9 of the Human Rights Act. The approach of Denbigh was followed by a differently constituted CoA in Belfast City Council v Miss Behavin Ltd, where the Council’s decision not to allow a sex ship in an area was overturned because it was not structured in a way that considered Article 10 rights.

The academic press heavily criticized the creation of this new category of procedural proportionality. Tom Poole made the case that it was totally impracticable to expect all decision makers in public authorities to adopt a judicial approach. It was further asserted that if the proportionality test was be procedural in nature, it was inappropriate for it to be applied across domestic law as a new ground of review. In reaction to these objections, the House of Lords overruled both cases unanimously in 2007.

Without any express approval, proportionality seems to be entering judicial review on a case by case basis. Jowell and Lester have identified several cases where the courts have incorporated elements of proportionality into decision-making. Firstly, in Hall v Shoreham UDC, the court explicitly labeled the council’s policy as irrational because there were ‘better’ ways for to achieve its policies. Later, in his judgment on R v Barnsley Metropolitan Borough Council ex parte Hook, when considering the punishment of a street seller who had urinated in public, Lord Denning MR wrote that ‘In this case…

I should have thought the right thing would have been to take him before the magistrates under the bye laws, when some small fine should have been inflicted. It is quite wrong that the Barnsley Council should inflict upon him the grave penalty of depriving him of his livelihood’. Denning here clearly applies the proportionality test without acknowledging so. More recently Laws LJ has attempted to use two judgments to establish proportionality as a natural element of review.

In R v Secretary of State for the Home Department ex parte Nadarajah, Laws ruled that a public body could resile from a legitimate expectation only where it had a duty to do so, or if it was a proportionate response with regard to a legitimate aim in the public interest. Following that decision, Laws was more explicit in R v Secretary of State for the Home Department ex parte Walker, when he deemed Wednesbury unreasonableness an ‘old fashioned legal construct’, arguing that, with the Human Rights Act, the courts were increasingly accustomed to the application of proportionality, and were often doing so in domestic law anyway.

It seems that, given most judicial review cases require a consideration of proportionality. More recently, in the ABCIFER case, Dyson LJ held that proportionality was only applicable to EU/HRA cases. It was, in his opinion, ‘not for Court to perform burial rites to Wednesbury test’. He did, nonetheless, state that he saw little point in retaining Wednesbury. If, as perhaps is likely, the Supreme Court continue to feel it is constitutionally incorrect for them to grant themselves more power, the reform would have to be by statute.

This, it seems, in the new era of weak, divided, coalition government, is an unlikely prospect. The government would be understandably reluctant to propose legislation that would allow the courts to challenge their decisions with increased scrutiny and hence abrogate power. In fact, the coalition government’s actions may well have the effect in the future of reducing the influence of the proportionality doctrine. David Cameron has repeatedly asserted that it is the government’s intention to introduce a new UK Bill of Rights.

In the 2010 Conservative Party manifesto, it was pledged that a Conservative government would ‘protect our freedoms’ by replacing ‘the Human Rights Act with a UK Bill of Rights’. If the UK does withdraw from the ECHR and adopt its own Bill of Rights, it is unclear what tests would be required for the judicial review of decisions. It may well be that this policy initiates a step back from the possible incorporation of the proportionality doctrine as expressed by Lord Woolf.