Essay on the concept of proportionality in the arena of judicial review
This assignment will consider the concept of proportionality in the arena of judicial review. It will consider whether or not proportionality will require the reviewing court to assess the balance which the decision maker has struck, not merely whether it was within a range of rational or reasonable decisions. It will be concluded that proportionality will necessary require the court to assess the balance which the decision maker has struck, although it will be argued that this concept has not necessarily been grasped or indeed applied by the English Judiciary.
It is useful firstly to assess the application of proportionality within European law in order to provide some general definition and demonstrate the way in which the European Courts interpret the principle. As pointed out by Loveland “There is no entirely straightforward way to define the principle”. An indication of its scope can be obtained from consideration of the cases in which it has been applied by the ECJ. A clear demonstration of its application can be found in Bela-Muhle Josef Bergmann KG v Grows-Farm GmbH & Co KG. This case concerned a regulation passed by the Council for the purpose of reducing the vast over-supply of skimmed milk powder in the Community. The regulation attempted to compel farmers to use animal feed derived from skimmed milk powder rather than Soya. Soya-based feeds were however only 1/3 of the price of the milk products. The legality of the regulation was successfully challenged, on the basis that that it imposed far too onerous a burden on farmers, and was thus a disproportionate measure.
The principle is as readily application to the actions of member states as to Community institutions. Re Watson and Belmann concerned an attempt by the Belgian Government to establish that Treaty Article 48(3) entitled it to deport workers from other member states if they had failed to comply with administrative requirements to register their presence with the local police. The ECJ accepted that member states had a legitimate interest in keeping accurate records of non-national workers. It also accepted that a registration requirement was a lawful means to pursue this end, and that imposing punishments on workers who failed to register was an appropriate way to enforce this requirement. However it also concluded that deportation was too serious a punishment to apply to a worker who failed to register. A fine would be the proportionate response in the circumstances.
As Steiner notes in reviewing this strand of the EC’s case law, “proportionately puts the burden on an administrative authority to justify its actions and requires some considerations of alternatives. In this respect, it is a more rigorous test than one based on reasonableness. ” In other words, the test requires that the court look more closely at the political merits of a decision than it does under the irrationality doctrine.
In general terms, the proportionality test asks; firstly whether the government body is acting in pursuit of a legitimate objective; if so, it asks secondly whether attaining that objective necessarily demands that the body interfere with a presumptively lawful entitlement possessed by an individual or company; if so, it asks thirdly if the government body had chosen the means to its legitimate end which interferes as little as possible with the presumptive entitlements .
Next discussion must be applied to the UK Courts interpretation and application of the principle. It is in conducting the proportionality inquiry UK courts have somewhat detracted from the clear change that S6 (1) appeared to bring about. Some early judgements seemed on intent on watering down s6 (1) into merely a modified Wednesbury test, so that that the court would merely review the minister’s own decision as to whether infringement of a Convention right was justifiable, interfering only if he had struck down a manifestly unfair balance between the primary right and the competing social interest. The courts in such case emphasised that the Human Rights Act did not mean that they now stood in the minister’s shoes deciding for themselves whether the actions taken breached the Convention. Laws LJ spoke of a “principled distance” between the court’s review and the minister’s original decision. Standing in the minister’s shoes seemed, however to be precisely what s6(1) , in making the matter one of law, required of the courts and it was not long before the House of Lords reminded the lower courts of this. Lord Bingham clearly stated that “domestic courts must themselves form a judgement whether a Convention right has been breached” while Lord Steyn stressed that under the Convention proportionality test, the courts were required to assess the balance struck by the decision – maker between the primary right and the competing interests, looking at the previously forbidden territory of the weight assigned by the decision-maker to the various factors of balance. The case of Daly therefore seems to have scotched any attempt to equate the protection given under the ECHR with the heightened Wednesbury test that was used in Smith. Although the decision in Samaroo placed emphasis on assessing whether the decision maker had struck a “fair balance” between the right and societal interests was an attempt to shift the balance back in this direction .
The courts objection to assessing the balance which the decision-maker has struck objectives were forcefully stated by several members of the House of Lords in Brind, in which the plaintiff invoked proportionality as a second ground of challenge to the Home Secretary’s action. For the majority of the Court, this was not an issue that ought even to have been raised. Lord Roskill – having referred to Lord Diplock’s suggestion in GCHQ that proportionality might some day emerge as a ground of review – continued:
“I am clearly of the view that the present is not a case in which the first step can be taken for the reason that to apply that principle in the present case would be for the court to substitute its own judgement of what was needed to achieve a particular objective for the judgement of the Secretary of State upon whom the duty has been laid by Parliament ”
For the same reason, Lord Ackner concluded that: “there appears to me to be at present no basis upon which the proportionality doctrine… can be followed by the courts of this country .” Lord Lowry was equally forceful: “There can be very little room for judges to operation an independent judicial review proportionality doctrine in the space which is left between the conventional judicial review doctrine and the admittedly forbidden appellate approach .”
Although it can be demonstrated that in application of the irrationality doctrine the court have often, albeit inadvertently, applied the doctrine of proportionality, and in such a way that they have assessed the balance which the decision maker has struck. For example in Hall v Shoreham UDC the court explicitly labelled the council’s policy as irrational because there were “better” ways for the council to achieve its policies. Jowell and Lester’s influential analysis of the proportionality issue also suggests that Lord Roskill’s judgement in Wheeler is another example of this phenomenon. Jowell and Lester identify cases in which the courts seem quite openly to have advocated use of the proportionality test. The most regularly cited example of this point is the Case of R v Barnsley Metropolitan Borough Council, ex parte Hook. Hook was a stall-holder in Barnsley market, whose licence was terminated by the council after he became involved in an abusive altercation with two council street cleaners who had admonished him for urinating in the street. In attempting to sanction Mr Hook for his behaviour, the council were presumably pursuing a legitimate end, whether it be safeguarding it employees from threatening or abusive behaviour or encouraging stallholders to respect rudimentary standards of hygiene. Lord Denning nonetheless intimated that the sanction was excessive.
Such an assessment required the Courts to assess the balance which the decision maker has struck. It is therefore concluded that the Courts, will in order to apply the proportionality test, review the balance the decision maker has struck, although it is concluded that the UK courts are reluctant to add this to grounds for judicial review.
Bibliography
Cases
- Associated Provincial Picture Houses Ltd. V. Wednesbury Corporation [1948] 1 K.B. 223
- Bela-Muhle Josef Bergmann KG v Grows-Farm GmbH & Co KG
- Hall & Co Ltd v Shoreham By Sea UDC [1964] 1 WLR 240
R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 3 ALL ER 452 - R v Daly v SSHD [2001] 2 WLR 1622 (HL)
- R v Ministry of Defence ex p Smith [1996] 1 All ER 257
- R v SS for the Home Department ex p Samaroo [2001] EWCA 1139
- R v Secretary of State Environment ex p Nottinghamshire CC [1986] AC
240 - R v Secretary of State Home Department ex p Handscomb (1988) 86 Cr.
Appeal Reports 59 - Re Watson and Belmann Case 118 /75 [1976] ECR 1185, ECJ
Journal Articles
- Elliott M, (2001)” The Human Rights Act 1998 and the standard of substantive review¨ 60(2) CLJ p. 301
- Leigh J, (2002) “Taking Rights Proportionally: Judicial Review & the Human Rights Act and Strasbourg” PL 265
Books
- Fenwick H & Phillipson G, (2003) “Text Cases and Materials on Public Law”, Cavendish Publishing
- Jowell J and Oliver D (eds) (1988) “New Directions in Judicial Review”, London Sweet and Maxwell
- Loveland I, (2003) “Constitutional Law, Administrative Law and Human Rights: A Critical Approach”, Third Edition, London: Lexis Nexis Butterworths
- Steiner J, (1992) “EC Law”, Third Edition London: Blackstone
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