‘That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of "proportionality" which is recognised in the administrative law of several [EU states]’. [1]
Pre-HRA:
Courts generally prevented judicial review claims under proportionality prior to the Human Rights Act.
In ex parte Brind, as part of the Thatcher government response to preventing terrorist groups in Northern Ireland, directives were issues by Home Secretary to limit broadcasting permissions of individuals associated with anti-terror legislation organisations. A claim is brought stating that this impeded freedom of speech and was disproportionate. The House of Lords rejects proportionality.
Donaldson LJ: ‘It must never be forgotten that [judicial review] is a supervisory and not an appellate jurisdiction. … Acceptance of ‘proportionality’ as a separate ground for seeking judicial review … could easily and speedily lead to courts forgetting the supervisory nature of their jurisdiction and substituting their view of what was appropriate for that of the authority whose duty it was to reach that decision.’
In Sunday Trading Case, proportionality was applied as to EC / EU law.
Hoffmann J: ‘so far from being justiciable as to be bizarre’
In ex parte Smith, S was banned from serving in the armed forces for being homosexual. S sought judicial review over this decision. He lost domestically, so appealed to the ECtHR.
Bingham MR: ‘Only if it were plain beyond sensible argument that no conceivable damage could be done to the armed services as a fighting unit would it be appropriate for this court now to remove the issue entirely from the hands of the military and the government’.
In Smith and Grady (ex parte Smith at ECtHR), the case was won. The ECtHR were highly critical of high threshold applied from Wednesbury.
‘The threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the Court’s analysis of complaints under the European Convention on Human Rights’.
Principle of Proportionality:
Proportionality is about maintaining the balance between any adverse effects which decisions may have on rights and the purposes pursued by those decisions. A decision may be unlawful because it was disproportionate.
EG: ECHR Art 10
The right to freedom of expression is subject to formalities, conditions, restrictions or penalties.
Balancing act between public safety and individual freedom.
Elements:
The ECtHR have developed elements that make up proportionality. This has since been adopted in domestic courts.
Legitimate Aim:
Whether the decision (legislation) pursues an objective of sufficient importance to justify limiting a fundamental right.
Rational Connection:
The rationale behind the legitimate aim.
In the Belmarsh Case, a framework was implemented to deal with suspected foreign terrorists who could not be deported after 9/11. They could be held, without charge or trial, for an indefinite period of time.
The House of Lords states that there is no rational connection between the ends (prevention of terrorism) and the means (indefinite detention).
Minimal Impairment:
The action must go no further than necessary to accomplish the legitimate aim.
Balancing:
Whether decision balances public interest with the rights of the individual(s).
In Hirst v UK, H was prevented from voting by statute as a prisoner. Case failed in UK courts, so H appealed to the ECtHR.
The ECtHR held that a blanket ban on prisoner voting was a disproportionate interference with electoral rights. Interestingly, the ruling did not decide that all prisoners should have the right, but that a blanket ban cannot be imposed.
Adoption into English Law:
Post-Daly, courts have adopted the doctrine of proportionality as the test for rights cases in English law in accordance with EU & human rights law.
In Daly, it was questioned whether cell searches contravened a prisoner’s right to private, confidential correspondence with their solicitor.
The House of Lords held that the infringement was disproportionate because it was greater than shown to be justified. The House of Lords note the ‘overlap’ between Wednesbury and proportionality and that the case would be decided the same either way. P’s case accepted.
In Begum, B is a student in a school. B attends school in a full religious covering and is ultimately excluded for refusing to abide by the school’s uniform policy.
The House of Lords stated that even if there was an interference with ECHR Art 9(1), this would have been justified under ECHR Art 9(2). B loses.
Hoffmann LJ: ‘Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows. The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law’
In Miss Behavin’, MB owned a sex shop in Belfast and intended on opening another. Belfast CC denied the request to open a new shop. A claim was brought under ECHR Art 10 (Right to Expression). The House of Lords held that it was not disproportionate.
Hoffmann LJ: ‘A construction of the Human Rights Act which requires ordinary citizens in local government to produce such formulaic incantations would make it ridiculous. Either the refusal infringed the respondent’s Convention rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the decision lawful. If it did not, it would not matter if the councillors had never heard of article 10 or the First Protocol’ A decision maker does not have to make a judicial-style decision considering human rights and weighing them against other rights and interests.
Hale LJ: ‘the views of the local authority are bound to carry less weight where the local authority has made no attempt to address that question. Had the Belfast City Council expressly set itself the task of balancing the rights of individuals to sell and buy pornographic literature and images against the interests of the wider community, a court would find it hard to upset the balance which the local authority had struck’. A decision maker should at least attempt to balance rights of individuals with interest of the wider community.
Proportionality and Reasonableness:
Proportionality and reasonableness seem to overlap. Questions are raised as to whether proportionality should simply take over from reasonableness. This issue is still not fully resolved by the senior courts.
‘I think that the day will come when it will be more widely recognised that [Wednesbury] was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision with the legitimate scope of judicial validation’. [2] Courts must use substantive review to challenge rights issues.
In Kennedy, K made a freedom of information request, which was refused by CC.
Mance LJ at [54]: ‘both reasonableness review and proportionality 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. The advantage of the terminology of proportionality is that it introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages.’
Mance LJ: ‘There seems no reason why such factors should not be relevant in judicial review even outside the scope of Convention and EU law.’ Potentially suggesting proportionality should be the test that is applied to all substantive review.
In Pham, P was a suspected terrorist. P was deprived of British citizenship by the Home Secretary, making him stateless. This would have massive implications for P.
Mance JSC at [98]: ‘A correspondingly strict standard of judicial review must apply to any exercise of the power [here] and the tool of proportionality is one which would be both available and valuable for the purposes of such a review. If and so far as a withdrawal of nationality by the United Kingdom would at the same time mean loss of European citizenship, that is an additional detriment which a United Kingdom court could also take into account, when considering whether the withdrawal was under United Kingdom law proportionate. It is therefore improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or whether it was also required to be conducted by reference to a principle of proportionality derived from Union law’.
Sumption JSC at [105]: ‘although English law has not adopted the principle of proportionality generally, it has for many years stumbled towards a concept which is in significant respects similar, and over the last three decades has been influenced by European jurisprudence even in areas of law lying beyond the domains of EU and international human rights law. Starting with the decision of the House of Lords in Bugdaycay it has recognised the need, even in the context of rights arising wholly from domestic law, to differentiate between rights of greater or lesser importance and interference with them of greater or lesser degree. This is essentially the same problem as the one to which proportionality analysis is directed. The solution adopted, albeit sometimes without acknowledgment, was to expand the scope of rationality review so as to incorporate at common law significant elements of the principle of proportionality’
Reed JSC: ‘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 objectively established to be necessary to achieve the legitimate aim of the interference: in substance, a requirement of proportionality’
Carnwath JSC, Mance JSC and Sumption JSC indicated approval for P Craig’s conclusion: ‘Both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decisions maker’s view depending on the context’
Key Differences:
Proportionality assesses the balance the decision maker has struck, not merely whether they have made an irrational or unreasonable decision.
Proportionality requires relative weight to be examined.
Proportionality works better for rights due to heightened scrutiny.
Resources:
References:
[1] Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 (‘GCHQ’) (Lord Diplock) [2] R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26 (Cooke LJ)
Cases Mentioned:
R v Secretary of State for the Home Department, ex parte Brind [1991] UKHL 4
Stoke-on-Trent City Council v B&Q plc [1991] Ch 48 (‘Sunday Trading’)
R v Ministry of Defence, ex p Smith (1996) QB 51
Smith and Grady v United Kingdom (1999) 29 EHRR 498
A v Secretary of State for the Home Department [2004] UKHL 56 (‘Belmarsh’)
Hirst v United Kingdom (No.2) (2006) 42 EHRR 41
R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26
R (on the application of Begum) v Denbigh High School [2006] UKHL 15
Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19
Kennedy v Charity Commission [2014] UKSC 20
Pham v Secretary of State for the Home Department [2015] UKSC 19
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