Public Law and Judicial Review

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Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in UK cases where issues of European Community law and ECHR is involved, it seems logical that the treatment becomes the standard of substantive review in all cases.

A significant criticism of the Wednesbury criteria is that they do not allow for the effect on the life of the individual involved to be judged. Just because a judgement is not so unreasonable as to be incomprehensible does not mean that it is not disproportionately devastating for the affected individual – for example, when resources are scarce, it may not be irrational for a local authority to discharge their statutory duties under the 1996 Housing Act by offering housing in an area where it is cheap, but the effects on the lives of e.g. a person who has become homeless who is only offered accommodation a long way from good employment prospects, may be enormous. In such cases, the proportionality test would reveal that a general policy intended to conserve resources would in fact cause the individuals affected to consume more resources.

The state and thus administrative decisions enter into so many areas of the lives of individuals that the idea of bifurcation – using proportionality where “fundamental rights” are concerned and the Wednesbury test in all others – is disingenuous at best. In areas such as asylum support or housing, it is immensely complex to distinguish the point at which mere “interests” end and “fundamental rights” begin. It is both simpler and more logical to assume the same standard for all issues of judicial review.

It is also notable that the Wednesbury test is, by its very nature, a less transparent methodology than proportionality – there are a number of significant cases, such as Wheeler v Leicester City Council, where decisions have been overturned on grounds of irrationality without substantive reasons being given as to why “no...
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