The proportionality test in UK Administrative Law
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. A definitive answer to the debate was laid down in 1947 by the House of Lords in Associated Provincial Picture Houses v Wednesbury Coroporation. 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 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. 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 three-part 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 imposed 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’ 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’.
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 18th Century as the law was codified on Rechtsstaat (‘constitutional state’) lines, and refined by the German courts in the 19th Century. The principle 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 Human Rights upon its founding in 1959, and later by the fledgling European Community as a conceptual ‘meta principle 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 states’ actions in Re: Watson and Belmann, an attempt by the Belgian government to use Treaty Article 48 (3) to deport workers who were citizens...
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