Proportionality

“…An appropriate balance must be maintained between the adverse effects which an administrative
authority’s decision may have on the rights, liberties and/or interests of the person concerned and
the purpose which the authority is seeking to pursue…” (The Committee of Ministers of the Council
of Europe in 1980)

Proportionality is one of the most important grounds for judicial review. It has been a ground for
many years and has evolved from the concept of unreasonableness. The concept of proportionality
has been developed more as a general principle of law by the judges over the years. This doctrine of
proportionality is well established and is a broad concept in the European Administrative Law.

In Europe, the adoption of a proportionality test for the validity of administrative action first
emerged in Germany in the 1870s.Proportionality emerged in French Law in the 1970s. It was
welcomed first by Guy Braibant who was a French academic and a member of the “Council of State”
which is France’s highest court for matters of administrative law.

In the UK, it must be fair to say that the decision of the European Court of Human Rights in Lustig-
Prean softened up the English courts for proportionality. The courts appeared to be ready for it,
however, even earlier. Some of the remarks in the Court of Appeal in Smith/Lustig-Prean, and even
more clearly, in the Divisional Court in the case, are clear pointers in that direction.

According to Craig and De Burca, different linguistic formulations of proportionality are listed in the
following test:
1. Whether in the applicable circumstances the disputed measure is the least restrictive.
2. Whether there is correspondence between the importance attached to a particular aim and
the means adopted to achieve it and whether such means are necessary for its achievement.
3. Whether in impugned act is suitable and necessary for the achievement of its objective and
whether it imposes an excessive burden on the individual.
4. Whether there is any balance between the cost and benefits of the measure under
challenge.

EC Law and Proportionality

When considering the origins of the concept of proportionality its roots are enshrined in Europe and
regarded as a community law principle, originally deriving from German Law, where it underpins
certain provisions of the German Constitution. The origin of the principle can be traced back to the
19th century Prussia. In terms of this, a public authority may not impose obligations on a citizen
except when strictly necessary in the name of public interest in order to attain a purpose of the
measure sought. As a basic principle of EC Law, proportionality is often used as a synonym for
unreasonableness.

In European Union law there are generally acknowledged to be four stages to a proportionality test,
namely,
 there must be a legitimate aim for a measure
 the measure must be suitable to achieve the aim (potentially with a requirement of evidence
to show it will have that effect)
 the measure must be necessary to achieve the aim, that there cannot be any less onerous
way of doing it
 the measure must be reasonable, considering the competing interests of different groups at
hand
It is, however, often seen that the third and fourth criterion are often merged into one by
the European Court of Justice, depending on the margin of discretion that the Court sees as being
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afforded to the member state. Examples are found in R (Seymour-Smith) v Secretary of State for
Employment, where the ECJ points out that a member state has some discretion in the policies it
pursues, surrounding unfair dismissal, in reducing unemployment. Further examples of the
proportionality test are seen in Mangold v Helm and Kücükdeveci v Swedex GmbH & Co KG.

ECHR and proportionality

It is important that in Strasbourg the European Convention jurisprudence is a slightly different
formulation of the Proportionality test inherent in the convention if a search for a fair balance
between the demands of the general interest of the community and the requirements of the
protection of the individual fundamental rights. The committee of ministers of the council of Europe
in 1980 described the applicable Principles in relation to proportionality in the following manner;
“an appropriate balance must be maintained between the adverse effects which administrative
authority’s decision may have on the rights, liberties and/or interests of the person concerned and
the purpose which the authority is seeking to pursue”

The Present Context

In modern days, authorities both statutory and governmental, enjoy a wide range of discretionary
powers. This power is however, fettered by restraints. It should be exercised in the public interest
and for the public good. The wide range of authorities and officers conferred with discretion adds to
the intensity of the problem in as much as quite frequently discretionary powers are wrongly
exercised or otherwise abused. In early times, the courts have been overseeing the exercise of
discretionary powers by way of judicial review. New developments in administration made the
Courts adopt new techniques to discipline the exercise of administrative discretion but the judiciary
was very cautious in exercising its power of judicial review.

“Traditionally in England, courts have exercised self-restraint in reviewing the substantive content of
the decisions rendered by an administrative body”. In common law the judiciary does not interfere in
administrative actions, making the courts a secondary reviewer of the action. This is a result of the
relation between the Parliament and the Constitution. One branch cannot transgress into the
functions of the other, giving importance to the supremacy and independence of each branch. But
recently with the introduction of human rights and the inclusion of fundamental rights in some
constitutions, this view has changed. It is now based on sound human rights and constitutional
principles. The administration has been misusing its powers and using arbitrary means to remain in
the dominant state, being a dominant violator of fundamental rights. The courts have evolved to
review such arbitrary administrative actions.

In the test of proportionality the “courts will quash exercise of discretionary powers in which there is
no reasonable relation between the objective which is sought to be achieved and the means used to
that end, or where punishments imposed by administrative bodies or inferior courts are wholly out
of proportion to the relevant misconduct”. So the courts will quash the administrative action, which
arbitrarily discriminates. The implication of the principle of proportionality is that the court will
weigh for itself the advantages and disadvantages of an administrative action and such an action will
be upheld as valid if, and only if the balance is advantageous. If this action is disproportionate to the
mischief then it will be quashed.

Evolution of the principle of proportionality from Wednesbury unreasonableness.

The concepts of proportionality and unreasonableness are fused together providing an adequate
rubric for the judicial review of irrationality in administrative law. The principle of proportionality can
be treated as an aspect resulting out of Wednesbury unreasonableness. This is to say that the
Wednesbury test was developed to review an action which is highly arbitrary and discriminatory.
The judiciary seemed reluctant to enter into the administrative arena and review its actions. Later in

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the course of time the test of Proportionality came up to review an action, which is not
proportionate to the desired goal to be achieved by that action. So this would mean that the
administrative action to be arbitrary would have to be Wednesbury unreasonable first, to be
disproportionate. Accordingly these two tests complement each other and in order to effectively
scrutinize administrative action to achieve justice, equality and fairness.

Wednesbury principle in other words irrationality is a tool for challenging administrative action. The
way in which such challenge is made is relevant; and in this respect, the Wednesbury principle is
understood with respect to grounds of judicial review of administrative action. In relation to this, the
ultra vires principle already exists. The ultra vires doctrine refers to an action, which is in excess of
the powers of decision-making bodies, and the reasoning of implications of this principle is
important insofar as they uphold the sovereignty of Parliament, and the rule of law.

The case of Associated Picture Houses Ltd. v Wednesbury Corp. is the source of this famous concept
of Wednesbury Test. The Court of Appeal held that it could not intervene to overturn the decision of
the defendant corporation simply because the court disagreed with it. To have the right to
intervene, the court would have to come to a conclusion that:
1. The corporation, in making that decision, took into account factors that ought not to have been
taken into account, or
2. The corporation failed to take into account factors that ought to have been taken into account,
or
3. The decision was so unreasonable that no reasonable authority would ever consider imposing it.

The court held that the condition did not fall into any of these categories. Therefore, the claim failed
and the decision of the Wednesbury Corporation was upheld. The test laid down in this case, in all
three limbs, is known as the “Wednesbury test”. The term “Wednesbury unreasonableness” is used
to describe the third limb, of being so unreasonable that no reasonable authority could have decided
that way.

These principles of Wednesbury unreasonableness underwent major modification through the

course of decision in England. A classic example would be the decision of Lord Diplock in the GCHQ
case. The grounds for judicial review were widened introducing ‘illegality’, ‘irrationality’, and
‘procedural impropriety’ for subjecting administrative action to judicial review. He also mentioned
that by further development on a case to case basis, in due course, there may be other grounds for
challenge. He particularly emphasized the principles of proportionality. Thus, in a way, Lord Diplock
replaced the language of ‘reasonableness’ with that of ‘rationality’ when he said: “By ‘irrationality’ I
mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’…It applies to a
decision which is so outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be decided could have arrived at it…."He
particularly emphasized the principles of proportionality. The principle of proportionality envisages
that a public authority ought to maintain a sense of proportion between his particular goals and the
means he employees to achieve those goals, so that his action impinges on the individual rights to
the minimum extent to preserve public interest.

Thus implying that administrative action ought to bear a reasonable relationship to the general
purpose for which the power has been conferred. The principle of proportionality therefore implies
that the Court has to necessarily go into the pros and cons of any administrative action called into
question. Unless the impugned administrative action is advantageous and in public interest such an
action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to
examine whether the power conferred is exercised in proportion to the purpose for which it has
been conferred. Thus, any administrative authority while exercising a discretionary power will have

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to necessarily establish that its decision is balanced and in proportion to the object of the power
conferred. This is so as administrative decisions can often have profound implications on the day-to-
day lives of our citizens, their rights, liberties, and legitimate pursuits.

In the course of his judgment in Keyu v Secretary of State for Foreign and Commonwealth Affairs
[2015] the claimants’ challenge by way of judicial review, as a matter of the Secretaries of State’s
discretion, not to order an inquiry under the 2005 Act, failed. The normal principle was that an
executive decision could only be overruled by the court if it had been made in excess of jurisdiction
or effected for an improper purpose, or was irrational in the sense discussed in Associated Provincial
Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. The argument on Wednesbury grounds
failed, substantially on the basis of the analysis adopted by the Court of Appeal. The Secretaries of
State had considered the request for an inquiry seriously and rejected it for defensible reasons
which cumulatively rendered it impossible to characterise the decision as irrational. There was no
suggestion that it was tainted in any other way and, accordingly, applying classic judicial review
principles, it could not be impugned.

The claimants argued that the traditional rationality basis for challenging executive decisions should
be replaced in domestic judicial review cases by a more structured and principled challenge based
on proportionality, applying the four-stage test identified by Lord Sumption and Lord Reed JJSC
in Bank Mellat v HM Treasury (No 2) [2014] AC 700, paras 20, 74. Lord Neuberger said however, it
would not be appropriate for a five-judge panel either to accept or reject that argument. It had
potentially profound constitutional implications and was very wide in applicable scope. The court
would become involved in considering the merits of the decision at issue and, although it would not
replace the relevant member of the executive as the primary decision-maker, it would be required to
assess the balance that decision-maker had struck between the competing interests. It might be that
domestic law was already moving away to some extent from an irrationality test in some cases, and
that the court’s approach might depend on the nature of the issue. In the present case the
Secretaries of States’ decisions had been neither irrational nor disproportionate.

Similar consideration can be seen in the comments of Lord Carnwath in Youssef v Secretary of State
for Foreign and Commonwealth Affairs [2016] Who stated “In Keyu v Secretary of State for Foreign
and Commonwealth Affairs (2015) this court had occasion to consider arguments, in the light of
Kennedy and Pham, that this court should authorise a general move from the traditional judicial
review tests to one of proportionality. Lord Neuberger (with the agreement of Lord Hughes) thought
that the implications could be wide-ranging and ‘profound in constitutional terms’, and for that
reason would require consideration by an enlarged court. Such a review might aim for rather more
structured guidance for the lower courts than such imprecise concepts as ‘anxious scrutiny’ and
‘sliding scales’. In R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016]
which concerned the legality of the appellant’s inclusion in the United Nations Security Council’s list
of persons associated with terrorist organisations. One of the grounds for appeal in Youssef was the
standard of review. Lord Carnwath JSC considered proportionality and expressed the hope that an
opportunity might arise in which a ‘comprehensive review of the tests to be applied to
administrative decisions generally’ could be undertaken by the Supreme Court. Referring to Lord
Reed’s dicta in Pham (below), Lord Carnwath reiterated his support for a more flexible approach
where individual rights were at issue but also made the point that in many cases, ‘perhaps most’,
applying a proportionality test would not lead to a different result from the traditional grounds for
judicial review – especially where national security was involved (because national security is an area
where the courts are particularly slow to interfere in executive decisions).

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The Test
The tests are applied, only one of which involves proportionality as such. The three parts to the test
are:
1. The measure proposed must be suitable for the purpose;
2. The measure must be necessary;
3. The measure must not be disproportionate.

The test adopted by Lord Diplock also underwent criticism and it was said in another decision as
“conduct which no sensible authority acting within due appreciation of its responsibilities would have
decided to adopt" and these unexaggerated criteria give the administrator ample and rightful rein,
consistently with the constitutional separation of powers.

Situations in which review based on proportionality can arise

In terms of European Community jurisprudence, judicial review based on proportionality could arise
in the following situations:
1. Where an individual seeks to make out that his/her rights have been excessively circumscribed
by administrative action.
2. Where a penalty imposed by a decision maker or administrative agency is impugned on a footing
that it is excessive.
3. Where policy choices made by decision makers or administrative agencies are challenged on the
basis that they are disproportionate due to the reason that there is for instance a lack of
congruence between cost and benefit.

The suggestion that the principle might be adopted in English law goes back to 1985 when Lord
Diplock raised the possibility directly in Council of Civil Service Unions v Minister for the Civil
Service. That started a debate. The debate was fuelled by the appreciation that proportionality was
accepted in Community Law. Although European human rights law, where it was found, was only
binding in the UK on review in the ECtHR, that was still a significant matter. Moreover, it was
recognized that the principle would become even more compelling when the ECHR came to bind
English courts.

The principle of proportionality now sits alongside unreasonableness in its appreciation in England (R
(Daly) v Home Secretary). Its use is generally confined, however, to human rights or similar issues.
Lord Hope has explained the principle in a way, which accords very much with the German
formulation, namely justification, fairness and proportionality. A measure claimed to erode human
rights must satisfy all three. As Lord Steyn said in Daly, it is unlikely that the result will now be
different in English law whether the principle applied be proportionality or some other ground of
review such as reasonableness.

Comparison between Irrationality and proportionality as grounds of review

Much has been said about the relative positions of reasonableness and proportionality as grounds of
judicial review. They have been said to overlap. Although it’s a more complicated test,
proportionality may be more lenient test in operation. For example, although the decision in
Smith/Lustig-Prean was held not to be unreasonable, it was held to be disproportionate. However,
there isn’t any comparative analysis of the content of the two principles other than recognition that
the proportionality necessarily operates in a narrower context because a proposed measure must be
assessed against a need.

Reasonableness covers a wider field than proportionality. A measure might be proportionate, but its
adoption unreasonableness, because, for example, of a lack of consultation. It is not clear that the
tests will yield the same result. They are quite different tests. One is the test of rationality; the other
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is a relationship test. One is an overall and general test; the other is a precise test applied negatively
to a previously identified relationship. In the most instances a disproportionate solution will almost
always be unreasonable; but the reverse is not necessarily true. As mentioned in McKinnon v
Secretary, Department of Treasury, following the High Court in George v Rockett reasonableness,
for a decision, requires “the existence of facts which were sufficient to include the state of mind in a
reasonable person”. Proportionality requires a judgment of the relationship between an end,
amounting to a need, and a means to satisfy the end. This explains the three stage tests. The
judgment is whether the means is proportionate to the need whether the end justifies the means.

There seem to be nothing inherently different in the two tests which means that one might be more
liberal as an administrative law test than the other. If there is a qualitative difference it seems to me
that it must be in the way the tests are enunciated. A test of simple reasonableness might be no less
liberal than a test of proportionality. However, a test of reasonableness, which is not made out if it
satisfies a simple balance, but is required to be a decision which no rational person could ever arrive
at, seems to be a less liberal test than on requiring a simple finding that the subject matter of the
decision is disproportionate to the need. Accordingly, it could be said that the test of proportionality
also contains some greater level of subjectiveness. Reasonableness does require some benchmarks
even if the selection of the benchmarks is itself very subjective. It has been said a number of times
that proportionality clearly requires a benchmark although what the benchmark is has not been
authoritatively specified. The strict test of reasonableness still applies then in the UK.

Proportionality and English Common Law

In Council of Civil Service Union v Minister of Civil Service, Lord Diplock express the view that it was
possible that proportionality may in the near future be accepted as an independent ground for
judicial review. Referring to illegality, irrationality and procedural impropriety as the existing heads
of judicial review; Lord Diplock ventured the opinion that it was possible for the further ground to be
added on a case-by-case basis. He said “I have in mind particularly the possible adoption in the
future of the principle of proportionality which is recognized in the administrative law of several
fellow members of EEC”.

In R v Secretary of State for the Home Department ex parte Brind, Some members of the House of
Lords, most notably Lord Ackner and Lowry were unequivocally of the view that proportionality was
not a principle of English Common Law. On the other hand Lord Templeman was of the view that the
interference with the freedom of expression must be necessary and proportionate to the damage
which the restriction was designed to prevent. Lord Bridge in his judgment did not exclude the
possible development of this ground of review in the future. Lord Roskill was of the view that the
doctrine of proportionality should be developed in line with the common law on a case by case
basis. However, his Lordship was of the view that the instant case was not an appropriate one to
take the 1st step.

The crucial issue is whether the concept of proportionality has acceptance and validity in English
Public Law. This in R v Barnsley MBC ex parte Hook the Court of Appeal held that the revocation of a
license of a market trader because of the fact that he had urinated in the street after the market and
all toilets were closed was a penalty that was out of proportion to the offence. In ex parte Hook Lord
Denning MR advocated proportionality as a principle of English Law and as a hallmark of good
administration. Jowell and Lester argue that the concept of proportionality has implicit recognition
in English Common Law.

After the enactment of the HRA 1998 English courts have been readily willing to recognize
proportionality as a principle for judicial review. In R v Secretary of State for Home Department ex
parte Daly (2001), Lord Cook of Thorndon prophesied that the day will come when it will be more
widely recognized that the Wednesbury case was an unfortunately retro revulsive decision in English
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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. (i.e.: Wednesbury was unfortunately a retrogressive decision in English Administrative
Law since it suggests that only extreme degrees of unreasonableness can be within the scope of
judicial interference)

In R (Pro Life Alliance) v BBC, the House of Lords appears to have granted the Wednesbury principle
as reprieved. However, in A v Secretary of State for Home Department, Lord Bingham appears to
have accepted Daly as representing good law. Nevertheless these seem to be unnecessary and
unwarranted confusion caused regarding the appropriate circumstances under which Wednesbury
unreasonableness and proportionality can be engaged as grounds for judicial review in England.

In R (Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the
Regions, the House of Lords heard an appeal engaging a right to a fair hearing. The issue involved
consideration of whether the Secretary of State’s power to call in applications for planning
permission and receive appeals against refusal if permission was incompatible with the right to a fair
hearing by an independent and impartial tribunal. Lord Slyn acknowledging that the case involves a
claim under the HRA 1998 and that the proper standards of review was based on proportionality. He
stated that even without reference to the 1998 Act, the time has come to recognize proportionality
as a part of English Administrative Law. Lord Slyn expressed the view that trying to keep the
Wednesbury principle and proportionality in separate compartments seems to be unnecessary and
confusing.

Lord Hoffman was of the view that there was no conflict between human rights and democratic
principle. Respect for human rights demand that certain human rights that were irreducibly basic
could not be triumphed by the will of the majority even where there are public interest
considerations applicable.

In R v Secretary of State for Home Department ex parte Daly, the House of Lords was required to
review the legality if a new policy for searching cells introduced by Secretary of State by virtue of
which prison officers were empowered to examine a prisoner’s legal correspondence in the absence
of the prisoners’ common law right to confidentiality in legal correspondence and respect for
correspondence under ECHR. The House of Lords ruled that routinely excluding the prisoners when
privileged legal correspondence held by them in their cells was examined was unlawful. However,
such a policy would have been justified in specific instances where a prisoner attempted to obstruct
a search or where his previous conduct indicated that he was likely to do so.

However, in the case of ex-parte Daly, it is the speech of Lord Cooke of Thorndon that has attracted
much attention to the principle of judicial review as enunciated in the Wednesbury Case.

“[32]…. And I think that the day will come when it will be more widely recognized that the
Wednesbury case was an unfortunately retrogressive decision in English administrative law, in so far
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. It
may well be, however, that the law can never be satisfied in any administrative field merely by a
finding that the decision under review is not capricious or absurd."

This widely cited quote has generated much debate and anxiety over the applicability and future of
the Wednesbury Principle. Some commentators feel that in the light of the above statement in the
Daly Case, the administrative power of discretion that has remained protected from judicial review
unless challenged on the grounds of absurdity, irrationality or perversity was now open to the test of
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proportionality as enunciated by Prof. Jeffrey Jowell in his article titled “Beyond the Rule of Law:
Towards Constitutional Judicial Review".

Professor Jowell describes the proportionality test to involve a ‘sophisticated four stage process’
posing the following questions:-
(1) Did the action pursue a legitimate aim?
(2) Were the means employed suitable to achieve that aim?
(3) Could the aim have been achieved by a less restrictive alternative?
(4) Is the derogation justified overall in the interests of a democratic society?

According to Professor Jowell, such a four-fold test can ensure that a prima facie violation of a
fundamental democratic right is not lightly sanctioned while providing for a heightened scrutiny of a
decision called into question.

According to De Smith, Woolf and Jowell on Judicial Review of Administrative Action, there are three
principal formulations by which proportionality is tested.

The principle of proportionality evaluates two aspects of a decision:

(1) Whether the relative merits of differing objectives or interests were appropriately weighed or
"fairly balanced"?
(2) Whether the measure in question was in the circumstances excessively restrictive or inflicted an
unnecessary burden on affected persons?

In Pro Life Alliance Case, Lord Walker seems to suggest that there is still scope for the Wednesbury
principle when human rights are not engaged and laments about its replacement.

In A v Home Secretary, the appellants who were foreign nationals who had not been subject to any
criminal charge challenged the lawfulness of their detention on the basis that it was incompatible
with the obligation imposed by the ECHR. Lord Bingham commented on the inadequacies of the
traditional Wednesbury test. He said that the Daly case recognized that courts must themselves
form a judgment whether a convention right had been breached and that the intensity of review
somewhat greater under the proportionality approach.

More recently in Huang v Secretary of State for Home Department, Lord Bingham referred to the
test formulated in De Frietas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and
Housing, where the PC defined the questions generally to be asked deciding whether a measure is
proportionate. It says whether,
1. A legislative objective is sufficiently important to justify limiting a fundamental right.
2. The measures designed to make the legislative objective are rationally connected to it.
3. The means used to impair the right to freedom are no more that is necessary to accomplish
the object.

Lord Bingham suggested however that this formulation must be wide so as to reflect the test
formulated in R (Razgai) v Secretary of State for Home Department, where it was the judgment on
proportionality must always involve striking a fair balance between the rights of individual and the
interest of the community which is inherent in the whole of the convention. The severity and
consequences of the interference will call for careful assessment at this stage.

Conclusion
Proportionality as a ground for judicial review of administrative action is not fully acknowledged in
the administrative framework of the UK. When comparing irrationality, it provides a safety valve
permitting truly irrational decisions to be set aside, but it’s not replaced and proportionality on the

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other hand can be an element of such a claim, but it will not lead to a decision being set aside unless
it is both disproportionate, in particular, and extremely unreasonable in general. The gap in law in
this area, between the UK and Europe is bound to remain and even even widen as the more liberal
test of general disproportionality erodes the stricter aspects of reasonableness in the UK to the point
at which the test of reasonableness may reach the state, if it has not already reached it, that the test
is one of simple unreasonableness.

Substantive review has always been considered anathema in judicial review proceedings. In Chief
Constable of North Wales Police v. Evans, Lord Denning, M.R. stated: “I go further. Not only must he
be given a fair hearing, but the decision itself must be fair and reasonable.”

On appeal Lord Chancellor and Lord Bingham lost no opportunity to rebuke such a proposition on
the ground that it went against the well-established principles of judicial review viz., that judicial
review is not concerned with the decision but with the decision-making process.

“The proportionality test in UK Administrative Law”; is it a new ground of review or a fading

exception?
Traditionally, administrative action in the UK has been subject to three grounds of review. Lord
Diplock, in the GCHQ case, reiterated these and labeled 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. The house of Lords in Associated
Provincial Picture Houses v Wednesbury Corporation laid down a definitive answer to the debate in
1947. Lord Greene MR ruled that the exercise of executive discretion could be invalidated if the
decision was ‘so unreasonable that no reasonable body could reach it’. This rule was designed to
make it unusual for decisions to be successfully challenged on this ground, and hence set a very high
standard for invalidation. It was not generally considered to be within the courts’ constitutional role
to criticize executive decisions on their merits – they were only to intervene in the most inequitable
of situations.

Proportionality, a doctrine applied as a ground of review across continental Europe, necessarily

grants judiciaries’ wider powers to consider the merits of a decision. Broadly, it necessitates an
assessment of the balance between interests and objectives. The decisions 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. This study will assess the origins of the
doctrine’s increased influence, the present state of the law, and the likelihood that it will be
incorporated as a distinct ground of review in the future.

The modern procedural definition of the proportionality test is relatively clear. Tom Hickman, while
acknowledging various different models, identified the most common formulation as a procedure.
The reviewing court must consider:
1. Whether the measure was suitable to achieve the desired objective.
2. Whether the measure was necessary for achieving the desired objective.
3. Whether, even so, the measure impost excessive burdens on the individual it affected.

The third element is often termed proportionality stricta sensa and is the provision that requires
balancing of interests. In the UK, the doctrine has often been defined in contrast to the recognized
‘irrationality’ principal 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’.
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The doctrine of proportionality in its present form is of European origin. A product of interpretation
of platonic and cicerian theory, the concept was first applied in Prussia in the late 18 th Century as the
law was codified on Rechtsstaat (‘constitutional state’) lines, and refined by the German courts in
the 19th Century. The principal took further hold in continental Europe after the Second World War,
when proportionality became embedded in the new German constitution. It was then taken up by
the European Court of the Human Rights upon its founding in 1959, and later by the fledgling
European Community as a conceptual ‘meta principal of judicial governance’.

In practice, the test was firmly established within the central tenets of Community Law by the
European Court of Justice over the next twenty years. Proportionality was first confirmed as a
distinct ground of challenge to member stated actions in Re: Watson and Belmann, an attempt by
the Belgian government to use Treaty Article 48 (3) to deport workers who were citizens of other
countries if they failed to register their presence with the police. The BCJ carefully applied the
tripartite test, ruling that the government’s aim of accounting for workers was legitimate and their
requirement to force registration was a lawful method to this end. However, the punishment was
considered to be overly severe and invalidated. A fine was suggested as a ‘more proportionate’
deterrent.

The doctrine was extended a year later to cover review of the Council’s actions. Beta-Muhle Joseph
Bergmann KG v.Grows Farm Grubtt (1977)- popularly known as ‘skimmed milk powder case’ –
concerned a regulation passed by council for the purpose of reducing the vast over-supply of
skimmed milk powder. The regulation attempted to solve the problem by forcing farmers to use
skimmed milk powder for animal feed instead of cheaper soya milk powder. The ECJ ruled that,
although the Council had the powers necessary to issue such a directive, and that solving the
oversupply was a legitimate aim, the measures prescribed were overly burdensome on farmers, and
hence disproportionate to the problem.

After the UK’s belated entry into the European Community in 1973, whenever the UK courts have
addressed the legality of government action within an area of community competence, it has been
necessary to recognize proportionality as a distinct and substantive ground of review. 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 market since the assent of the Human Rights Act (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 number of clear advantages to the proposal. Firstly, t 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 Right Act, it is currently
common for two such claims to be present in an application of 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.

Conversely, 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. He argued that ‘the line which separates the use of the comparative method
in lawmaking from its misuse is very fine’. Concepts should be viewed only in context of the full
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theoretical constitutional framework. While proportionality fits easily with in 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 preference would lead to judicial assumption of quasi- executive power. This, it is argued,
would be constitutionally inappropriate.

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 aforementioned judgment
in the GCHQ case, after outlining the three traditional grounds of review, Lord Diplock suggested
that ‘development’ may ‘add further grounds’ He ‘has in mind particularly the principle of
proportionally’. Diplock’s obiter ensured that the issue would have to be considered by the House of
Lords at the next opportunity. In spite of Lord Diplock’s carefully worded prediction, the English
judiciary maintained a sceptical stance on the incorporation of the doctrine. In 1987, Millett J (as he
then was) described the principles as a ‘novel and dangerours’ in Allied Dunbar Ltd v
Frank Weisenger and suggested incorporation as a new head of review through common law would
be a constitutional error.

The house of Lords’ opportunity in incorporate or prevent the influence of proportionality occurred
with R v Secretary of State for the Home Department ex parte Brind in 1991. Brind is still the
leading case on proportionality in domestic law. The home Secretary has issued directives under the
Broadcasting Act (1981) requiring the BBC to refrain from broadcasting interviews with the 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 government’s legitimate objective.

The members of the judicial committee of the House of Lords all rejected the proportionality
argument. They also rejected the incorporation of the doctrine as a head of review, although,
crucially, they did not exclude the possibility that it would be part of domestic law in future. Lord
Roskill stated that it was ‘not a case in which the first step can be taken’ and that, at any rate, in his
view, proportionality would force the court ‘into substituting its own judgment of what was needed
to achieve a particular objective for the judgment of the Secretary of State upon whom that duty has
been laid by parliament’. Roskill therefore saw the use of proportionality as necessitating an
unlawful imposition into executive power. Judicial review would become an appeal against a
decision rather than an assessment of that decision’s legality and legitimacy. This had never been
the objective of review and it was beyond the courts authority to grant such an extended power.
Lord Lowry concurred with Lord Roskill, stating that ‘there can be very little room for judges to
operate the proportionality doctrine in the forbidden appellate jurisdiction’. He felt that courts were
‘not well equipped by training or experience’ to balance factors in an administrative decision, and
that introducing proportionality would increase the number of applicants for the review, with a
consequential increase in costs and court time. Neither Lord Lowry nor Lord Roskill excluded the
possibility that further reform could occur in time, however. Lord Ackner took a different
view, arguing that an intensification of Wednesbury by proportionality would mean that ‘an
inquiry into, and a decision upon, the merits cannot be avoided’. He concluded that ‘there appears
to be no basis upon which the proportionality doctrine can be followed by the courts of this
country’.

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
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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 striot provisions of Wednesbury can also be seen in the 1997 decision in
Hargreaves. More recently in the ABCIFER case Dyson LJ followed Brind in the court of Appeal and
reiterated that proportionality was strictly only applicable to cause with an EU dimension or subject
to the Human Rights Act.

It had been the passing of the Human Rights Act in 1998 that 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, without objecting to Lord Bingham or Lord Steyn’s judgments, 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 Enviroment ex parte Alconbury. 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 Wednesbury principles
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 is 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
court of Appeal faced with a challenge to a decision by a school to ban the wearing of a form of
Islamic dress known as the jilbab. The court differentiated between ‘substantive’ proportionality and
‘procedural’ proportionality in its ruling. The school passed the subjective proportionality test-
whether the means to achieve a legitimate end were legitimate and fair-but failed the newly
conceived procedural proportionality test. The Court of Appeal held that in banning the jilbab the
governors had not gone through the decision making process in a judicial fashion, considering the
students convention rights to freedom of religion and any alternatives. The failure of the order to
remove the jilbab 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 court of Appeal 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
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that if the proportionality test was to be procedural in nature, it was inappropriate for it to be
applied across domestic law as a new ground review.

Partially in reaction to these objections, the House of Lords overruled both cases unanimously in
2007. Lord Bingham declared that the court of appeal misunderstood the scope of the
proportionality principle. He emphasized that, in any UK application of the doctrine “what matters is
the practical outcome, not the quality of the decision making process’. Lord Bingham, while not
ruling out a full domestic application, considered it imperative that the nature of the proportionality
doctrine was limited in scope, and certainly not extended to procedure. Now that this definitional
problem has been resolved, the path once again seems clearer for potential incorporation of a
clearly defined and practiced doctrine into our domestic law.

Despite the firm ruling in Brind that the Wednesbury test still applies with strict force to domestic
irrationality decisions and Daly’s ratio that proportionality is reserved for EU and HRA cases, the
courts have, in reality, implicitly moved towards the doctrine. The strictness of Lord Greene’s
Wednesbury test has been eroded and executive action is being routinely overturned based on the
merits of cases, especially when decisions are in defiance or moral standards. Moreover, both before
and since Brind, several decisions have included reasoning that seems to be analogous to the
proportionality doctrine. The present status of the law, therefore, is complex and confused.

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 to achieve its policies. Later in his
judgement 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 the case…I
should have though 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 judgements 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 public body could
resile from legitimate expectation only where it had duty to do so, or if it was a proportionate
response with regard to a legitimate aim in public interest. Following that decision, laws was more
explicit in R v Secretary of Sate 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 that most judicial review cases require a
consideration of proportionality at any rate as appended Human Rights Act claims are so common,
and that much judicial opinion seems to have turned against Wednesbury, we may well see further
attempts to incorporate the doctrine into domestic law in the near future.

However for the moment, the Supreme Court justices seem to feel constrained by the constitutional
arguments outlined above. In 2007, the House of the Lords ruled the Somerville Scottish Ministers
(2008) that proportionality was not a standalone ground of review in Scottish cases that did not
involve the branch ECHR rights. Although the ruling was in reference to a Scottish case, Lord Hope
and Lord Rodgers’ decision evidences continued skepticism about judicial incorporation of the
doctrine. 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 continues to feel it is constitutionally incorrect for them to grant themselves more

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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’. According to Lord Wolf, writing extra-
judicially, the proposed Bill of Rights would necessitate withdrawal from the ECHR. The debate on
the Bill of Rights would present a ‘stark choice’, according to Wolf. 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 policy initiates a step back from the possible incorporation of
the proportionality.

In conclusion, UK courts have been applying the proportionality doctrine since 1975 in EU cases, and
from that date suggestions have been made that the test is deserving of a place in UK administrative
law is a full head of review. Lord Dipshit, in GCHQ, influentially endorsed reform, considering it both
constitutionally possible and probable. The considerable ensuing constitutional debate perhaps
clouded the doctrine’s gradually increasing influence in domestic decision making, with Lord
Denning MR’s decision in Hook, among others, evidencing judicial propensity to reason in a fashion
analogous to proportionality. The current leading House of Lords case, Brind (1991), emphatically
rejected the doctrine’s incorporation, despite conceding that future reform may occur. The judiciary
generally followed Brind although cases such as Nadarajah show the continued ‘ripple effect’ of
proportionality-style reasoning. The most significant addition to the debate in recent years was the
passing of Human Rights Act and the following ruling in Daly result that the proportionality test was
to be all used in all cases with a Human Rights element. As a result, from 1998, judges were obliged
to apply the doctrine effectively in very many review cases. This intensified debate that the law had
naturally moved on, and that the Wednesbury test was no longer fit for purpose, with Laws LJ,
Dyson LJ, Lord Cooke, Lord Slynn and Lord Steyn separately declaring that they felt like reform was
needed from the House of Lords/Supreme Court or Parliament. However given the House of Lords’
reluctance to arrogate itself increased power, it would be surprising if a landmark ruling from a
Supreme Court occurs in the near future. In the likely absence of any statutory reform it seems that
proportionality may continue its slow increase in tacit influence on judicial decision making without
clear official direction. However, should the Conservatives’ 2010 manifesto policy of introducing and
UK Bill of Rights be implemented, this trend could be subject to a radical reversal.

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