{"id":1860,"date":"2021-07-01T08:37:27","date_gmt":"2021-07-01T08:37:27","guid":{"rendered":"http:\/\/blogs.kcl.ac.uk\/kslr\/?p=1860"},"modified":"2022-06-07T17:25:49","modified_gmt":"2022-06-07T17:25:49","slug":"1860","status":"publish","type":"post","link":"https:\/\/blogs.kcl.ac.uk\/kslr\/2021\/07\/01\/1860\/","title":{"rendered":"Proportionality vs Rationality Review: A False Dichotomy?"},"content":{"rendered":"

Rachelle Lam[1]<\/a><\/strong><\/p>\n

 <\/p>\n

Introduction<\/u><\/strong><\/p>\n

In English Administrative Law, much ink has been spilt over the relative intensities of review of a proportionality standard, as opposed to a test of unreasonableness, and whether the former should replace the latter as a general head of substantive judicial review. This article argues that such an assumption is premised upon an inaccurate portrayal of the relationship between the two tests, and proposes an alternative theoretical framework where the focus shifts away from formalist doctrinal veneers to the subject matter and context of each case.<\/p>\n

The\u00a0Wednesbury<\/em>\u00a0standard of review involves posing the question of whether the administrative act is \u201cso unreasonable that no reasonable authority would ever have come to it\u201d.[2]<\/a>\u00a0In contrast, the test of proportionality involves four distinct stages: (i) whether the objective of the measure is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to that objective; (iii) whether a less intrusive measure could have been used; and (iv) whether a fair balance has been struck between the rights of the individual and the interests of the community.<\/em>[3]<\/a><\/p>\n

 <\/p>\n

A more \u201cstringent\u201d form of review<\/u><\/strong><\/p>\n

On its face, proportionality appears to offer more structure than the\u00a0Wednesbury<\/em>\u00a0test. This is because proportionality requires the judge to examine the normative content of the private rights being vindicated, and the justification for the relative weight accorded to competing public interests.[4]<\/a>\u00a0This has the potential to significantly attenuate the administrator\u2019s capacity to make policy choices by circumscribing the range of substantive options available to the decision-maker.<\/p>\n

In contrast, the\u00a0Wednesbury<\/em>\u00a0test involves posing a relatively undemanding question on the decision-maker. In instances which concern the formulation and implementation of national political and economic policy, the courts will show considerable deference to the judgment of elected ministers and recognise that there is room for more than one view.[5]<\/a>\u00a0As a result,\u00a0Wednesbury<\/em>\u00a0review can often be vague and tautologous, as it fails to expose the structure and underlying values of the judicial reasoning process which necessarily precedes a finding of unreasonableness.<\/p>\n

The disparity in the proportionality and\u00a0Wednesbury<\/em>\u00a0processes is illustrated by the decision in\u00a0Regina v. Ministry of Defence, ex parte Smith,<\/em>[6]<\/a>\u00a0and subsequently,\u00a0Smith and Grady v. United Kingdom<\/em>.[7]<\/a>\u00a0The applicants were discharged from their service in the armed forces on account of their homosexuality. The domestic court applied the\u00a0Wednesbury<\/em>\u00a0test: the existence of an apparent justification for the qualification on the applicants\u2019 right to respect for private life,[8]<\/a>\u00a0namely that of ensuring discipline, morale and unit cohesiveness in the army,[9]<\/a>\u00a0was within the range of responses open to a reasonable decision-maker, and hence, in the court\u2019s view, established the legality of the government\u2019s policy.\u00a0[10]<\/a>\u00a0In contrast, the European Court of Human Rights, in applying the proportionality test, questioned whether the UK government\u2019s policy was \u201cnecessary in a democratic society\u201d, and concluded that although it may answer a pressing social need, the magnitude of the reservation placed upon human rights was disproportionate.[11]<\/a><\/p>\n

 <\/p>\n

The chameleonic nature of the two tests<\/u><\/strong><\/p>\n

The Wednesbury and proportionality tests are not monolithic,[12]<\/a>\u00a0and both operate as sliding scales of review.[13]<\/a>\u00a0Indeed,\u00a0Wednesbury<\/em>\u00a0unreasonableness may even prove to be a more \u201cstringent\u201d standard of review than proportionality. In\u00a0Keyu v. Secretary of State for Foreign and Commonwealth Affairs<\/em>,[14]<\/a>\u00a0Lady Hale articulated the respective competing interests that should have been taken into account by a reasonable decision-maker, and held that, in the calculus of pros and cons, the decision-maker had failed to ascribe sufficient weight to the individual\u2019s rights.[15]<\/a><\/p>\n

In contrast, where proportionality is coupled with a significant degree of judicial deference, there is little analytical weighing of interests, such that the test being applied in effect amounts to a test based on arbitrariness of conduct.[16]<\/a>\u00a0Furthermore, what proportionality requires can be malleable. For example, the term \u201cfair balance\u201d can sometimes be taken to be a criterion of its own, whilst at other times it is treated as being synonymous to proportionality as a whole. Understood thus, the two tests are not necessarily as distinct as their paradigm characterizations may imply.<\/p>\n

 <\/p>\n

Proportionality as a \u201cgeneral principle\u201d?<\/u><\/strong><\/p>\n


\n<\/u><\/strong>The wisdom in preserving\u00a0Wednesbury<\/em>\u00a0reasonableness in English administrative law has been questioned both judicially and academically. Dyson LJ professed that he had \u201cdifficulty in seeing what justification there now is for retaining the\u00a0Wednesbury<\/em>\u00a0test\u201d.\u00a0[17]<\/a><\/sup>\u00a0It is argued that although the time has not come for\u00a0Wednesbury<\/em>\u00a0to be expunged yet, the courts should throw off the rigid constitutional division between proportionality and\u00a0Wednesbury<\/em>, and adopt a third route distinct from both bifurcation and consolidation.<\/p>\n

There are strong grounds for supporting the endorsement of proportionality as a general principle. A key attractiveness of proportionality is in its requirement of a reasoned explanation from the decision maker. Once a claimant has established that there has been an interference in his right, it is for the court to weigh up competing considerations and articulate why it came to its conclusion. For example,\u00a0Miller (No. 2)<\/em>[18]<\/a>\u00a0appeared to employ proportionality review in scrutinizing the exercise of prerogative powers:[19]<\/a>\u00a0although the court was satisfied by the government\u2019s pursuit of the objective of ushering in a new legislative agenda,[20]<\/a>\u00a0it held that the Prime Minister failed to discharge the burden[21]<\/a>\u00a0of showing that the prorogation was necessary, due to a failure to consider the alternative of a Parliamentary recess,[22]<\/a>\u00a0and a fair balance was not struck due to its unjustified length.[23]<\/a>\u00a0It is argued (and elaborated below) that an explicit switch to utilising proportionality review across the board should be accompanied \u00a0by variable application, which would involve adjusting the intensity of proportionality according to the context and the doctrine of deference.<\/p>\n

An objection to the adoption of proportionality as a general principle is that proportionality would have to mean different things in different contexts. If review is variable according to the normative weight to be attached to the relevant interest, proportionality review could simply amount to identifying whether there has been a \u201cmanifest error\u201d,[24]<\/a>\u00a0and will no longer exhibit the intensity of review nor the structure which defines it. This argument against adopting proportionality as a general head of review suggests that the wholesale elimination of\u00a0Wednesbury<\/em>\u00a0is altogether unsatisfactory.<\/p>\n

On the other hand, those who advocate for the retention of separate heads of review argue that the proportionality methodology is only useful where there is a yardstick to which a public body\u2019s actions can be compared with. Without the \u201canchor\u201d of rights, proportionality will become an indeterminate standard which conceals unconstrained judicial discretion when controlling exercises of administrative discretion.[25]<\/a>\u00a0Taggart has proposed a \u201crainbow of review\u201d: proportionality should replace\u00a0Wednesbury<\/em>\u00a0where human and other \u201cfundamental\u201d rights are directly engaged, and in cases involving \u201cpublic wrongs\u201d\u00a0Wednesbury<\/em>\u00a0unreasonableness should be applied.[26]<\/a><\/p>\n

However, this doctrinally-bifurcated vision of substantial judicial review is flawed, because a clean division between \u201crights\u201d and \u201cpublic wrongs\u201d is impossible. It is rarely the case that only one of the two is categorically engaged, as the range of circumstances in which the proportionality doctrine applies is broader than has generally been acknowledged. For example, in\u00a0Secretary of State for the Home Department v. Pham<\/em>,[27]<\/a>\u00a0the court held that a requirement to act proportionately was normatively warranted when a statutory power threatened a sufficiently important interest (British citizenship). While the ground for complaint may appear to be one of maladministration, an applicant is motivated to litigate precisely because the decision impinges upon an underlying right or interest of fundamental importance.[28]<\/a>\u00a0Other well-established substantive principles of good administration, such as consistency of treatment, non-retrospectivity and access to court, are just as capable of buttressing the proportionality methodology as are fundamental rights.<\/p>\n

 <\/p>\n

The Future<\/u><\/strong><\/p>\n

Ultimately, to debate whether proportionality should replace\u00a0Wednesbury<\/em>\u00a0is to begin from a false proposition, as this postulates a bright-line distinction between the two principles which does not, in reality, exist. The two principles need not inevitably be conceptualised as competing forms of review which must be chosen between.<\/p>\n

A new framework for substantive judicial review is proposed as follows: firstly, the applicant must identify a \u201cbadge of unreasonableness\u201d which identifies a flaw in the decision-maker\u2019s decision and is capable of justifying judicial intervention.[29]<\/a>\u00a0Then, the court should decide how heavy a burden of justification should be placed on the administrative body. Judicial deference and the rigour and scope of review should be flexibly modulated by reference to normative, institutional and constitutional considerations,[30]<\/a>\u00a0such as the inherent significance of the right being vindicated, the character of the policy, and the expertise of the decision-maker. Finally, the court should examine whether that burden has been discharged;[31]<\/a>\u00a0in other words, whether the explanation provided by the decision-maker is justified.<\/p>\n

This approach has three key advantages. Firstly, it simplifies English law. Rather than leaving the vindication of individual interests to hang upon arbitrary classifications, the framework provides analytical clarity and transparency. Secondly, it acknowledges the fact that courts are not necessarily well placed to assess policy decisions. The flexible and context-sensitive process means that the court will be better able to accord due respect to the institutional competence of decision-makers when need be. Thirdly, the framework promotes more effective judicial supervision of administrative decisions, facilitating legitimate government action whilst upholding the rule of law. It exemplifies constitutional collaboration and counter-balancing at its best.<\/p>\n

 <\/p>\n

 <\/p>\n

[1]<\/a>\u00a0Rachelle Lam is an LLM Candidate at University of Cambridge, having recently completed her undergraduate studies in Law with First Class Honours, also at Cambridge. Her areas of interest include Administrative Law, Company Law, and International Commercial Arbitration.<\/p>\n

[2]<\/a>\u00a0Associated Provincial Picture Houses Ltd v Wednesbury Corporation<\/em>\u00a0[1948] 1 KB 223 (CA), 234 (Lord Greene MR). Lord Diplock\u2019s formulation of the principle was that a decision may be irrational, and hence unlawful, if it \u2018is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it\u2019:\u00a0Council of Civil Service Unions v Minister for the Civil Service<\/em>\u00a0[1985] AC 374 (HL), 410.<\/p>\n

[3]<\/a>\u00a0Bank Mellat v Her Majesty\u2019s Treasury<\/em>\u00a0[2013] UKSC 38 [20] (Lord Sumption).<\/p>\n

[4]<\/a>\u00a0R (on the application of Daly) v Secretary of State for the Home Department<\/em>\u00a0[2001] 2 AC 532 (HL) [27], [30] (Lord Steyn).<\/p>\n

[5]<\/a>\u00a0R<\/em>\u00a0v London Borough of Hammersmith and Fulham and Others, ex p Burkett and Another<\/em>\u00a0[1991] 1 AC 521 (HL), 597 (Lord Bridge); see also: Jeffrey Jowell, Anthony Lester QC, \u2018Beyond\u00a0Wednesbury:\u00a0\u00a0<\/em>Substantive Principles of Administrative Law\u2019 [1987] PL 368.<\/p>\n

[6]<\/a>\u00a0[1996] QB 51.<\/p>\n

[7]<\/a>\u00a0(1999) 29 EHRR 493.<\/p>\n

[8]<\/a>\u00a0Article 8 of the European Convention on Human Rights.<\/p>\n

[9]<\/a>\u00a0Smith<\/em>\u00a0(n 6) 529E-H (Brown LJ).<\/p>\n

[10]<\/a>\u00a0Smith<\/em>\u00a0(n 6) 558A-C (Lord Bingham MR).<\/p>\n

[11]<\/a>\u00a0For instance, a code of conduct governing relationships between military personnel (regardless of their sexual orientation) would have been sufficient to secure the government\u2019s objective; see also: Mark Elliott, \u2018The Human Rights Act 1998 and the Standard of Substantive Review\u2019 [2001] 60 CLJ 301.<\/p>\n

[12]<\/sup><\/a>\u00a0Gr\u00e1inne de B\u00farca, \u2018The principle of proportionality and its application in EC Law\u2019 (1993) 13 Yearbook of European Law 105.<\/p>\n

[13]<\/sup><\/a>\u00a0Sir John Laws, \u2018The Limitations of Human Rights\u2019 [1998] PL 254, 259-260.<\/p>\n

[14]<\/sup><\/a>\u00a0[2015] UKSC 69.<\/p>\n

[15]<\/sup><\/a>\u00a0Ibid [309]-[312].<\/p>\n

[16]<\/sup><\/a>\u00a0Takis Tridimas, \u2018Proportionality in European Community Law: Searching for the Appropriate Standard of Scrutiny\u2019 in Evelyn Ellis (ed.),\u00a0The Principle of Proportionality in the Laws of Europe<\/em>\u00a0(Oxford 1999), 70-72.<\/p>\n

[17]<\/a>\u00a0R (British Civilian Internees (Far East Region)) v Secretary of State for Defence<\/em>\u00a0[2003] EWCA Civ 473 [34].<\/p>\n

[18]<\/a>\u00a0R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland\u00a0<\/em>UKSC 41.<\/p>\n

[19]<\/a>\u00a0Ibid [56], [59] (Lord Reed).<\/p>\n

[20]<\/a>\u00a0Ibid [17], [51].<\/p>\n

[21]<\/a>\u00a0Ibid [51].<\/p>\n

[22]<\/a>\u00a0Ibid [60].<\/p>\n

[23]<\/a>\u00a0Ibid [60]-[61].<\/p>\n

[24]<\/a>\u00a0R<\/em>\u00a0v Secretary of State for Health\u00a0<\/em>e<\/em>x p<\/em>arte<\/em>\u00a0Eastside Cheese Co<\/em>\u00a0[1999] 3 CMLR 123 [47] (Lord Bingham).<\/p>\n

[25]<\/a>\u00a0Michael Taggart, \u2018Proportionality, Deference,\u00a0Wednesbury<\/em>\u2019 [2008] NZ L Rev 423.<\/p>\n

[26]<\/a>\u00a0It is also worth noting that similarly distinct modes of review manage to co-exist in US public law, embraces both \u201crational basis\u201d and strict scrutiny\u201d review: Ian Loveland, \u2018A Fundamental Right to be Gay under the Fourteenth Amendment?\u2019 [1996] PL 601.<\/p>\n

[27]<\/a>\u00a0[2015] UKSC 19.<\/p>\n

[28]<\/a>\u00a0Murray Hunt, \u2018Against Bifurcation\u2019 in David Dyzenhaus, Murray Hunt and Grant Huscroft (eds),\u00a0A Simple Common Lawyer: Essays in Honour of Michael Taggart<\/em>\u00a0(Oxford 2009).<\/p>\n

[29]<\/a>\u00a0See:\u00a0Delios v Canada (Attorney General)\u00a0<\/em>2015 FCA 117 [27]; Paul Daly, \u2018Substantive Review in the Common Law World:\u00a0AAA v Minister for Justice<\/em>\u00a0[2017] IESC 80 in Comparative Perspective\u2019 [2019] 1 ISCR 105.<\/p>\n

[30]<\/a>\u00a0Mark Elliott, \u2018Proportionality and Deference: The Importance of a Structured Approach\u2019 in Christopher Forsyth, Mark Elliott, Swati Jhaveri, Michael Ramsden and Anne Scully Hill (eds),\u00a0Effective Judicial Review: A Cornerstone of Good Governance\u00a0<\/em>(Oxford 2010).<\/p>\n

[31]<\/a>\u00a0Rebecca Williams, \u2018Structuring Substantive Review\u2019 [2017] PL 99.<\/p>\n","protected":false},"excerpt":{"rendered":"

Rachelle Lam[1]   Introduction In English Administrative Law, much ink has been spilt over the relative intensities of review of a proportionality standard, as opposed to a test of unreasonableness, and whether the former should replace the latter as a general head of substantive judicial review. This article argues that such an assumption is premised… More Proportionality vs Rationality Review: A False Dichotomy?<\/span><\/a><\/p>\n","protected":false},"author":873,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[164],"tags":[],"class_list":["post-1860","post","type-post","status-publish","format-standard","hentry","category-forum-articles"],"_links":{"self":[{"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/posts\/1860","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/users\/873"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/comments?post=1860"}],"version-history":[{"count":5,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/posts\/1860\/revisions"}],"predecessor-version":[{"id":1984,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/posts\/1860\/revisions\/1984"}],"wp:attachment":[{"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/media?parent=1860"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/categories?post=1860"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.kcl.ac.uk\/kslr\/wp-json\/wp\/v2\/tags?post=1860"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}