Proportionality as a Ground of Judicial Review

Watch
imonlysleeping
Badges: 0
Rep:
?
#1
Report Thread starter 9 years ago
#1
If the Supreme Court was to adopt proportionality as a standalone ground for judicial review, do you think that it would replace irrationality in its entirety?

If it does not, how would you distinguish between situations in which proportionality is the appropriate standard of review and others where Wednesbury unreasonableness is?
0
reply
TheProviso
Badges: 0
Rep:
?
#2
Report 9 years ago
#2
Surely you distinguish between the two based on the fact that proportionality testing is the test for Human Rights and EU law applications, and wednesbury testing is for applications based on the common law. Wednesbury testing has a lesser degree of scrutiny of public bodies but this is justified because it is entirely judge made and judges are not elected, whereas the human rights act reflects parliament's considered will regarding human rights and it is therefore right to measure public bodies actions more rigorously against the convention rights parliament has specifically laid down. The counter-point to this is that following ex parte bugdaycay and Nottingham Council v Secretary of State for the Environment, wednesbury testing is highly contextualised and in some respects, such as where lives are at stake and 'anxious scrutiny' is applied, is almost indistinguishable from proportionality testing - a point the House of Lords acknowledged in R v Birmingham Council.

Irrationality was one of the three grounds for judicial review Lord Diplock identified in CCSU v Minister for Civil Service. Wednesbury unreasonableness is part of the head of irrationality. It is merely a test for determining whether a decision is irrational. Something will be irrational if it is so unreasonable that no reasonable body could ever have come to it. This is a very high test, but as I said ex parte bugdaycay illustrates that it is flexible depending on the context.If a decision involved lives at stake anxious scrutiny will be applied to whether a decision was 'so unreasonable' - which effectively means the court will be less likely to defer to the public authority's judgement. Where something is a highly political decision, as in Nottingham Council v Secretary of State the court will basically only conclude that something is 'so unreasonable' if bad faith is involved, such as corruption. This can be interpreted as saying the irrationality head doesn't actually apply to decisions which are overtly political, such as deciding on budgets, and that only the illegality head will actually be applied.
Proportionality testing, outlined in De Freitas v minister for agriculture and fisheries is, like wednesbury testing, a way of deciding if something is irrational and it only applies, as i have said, to applications which say a public body's decision was irrational having regard to the Human Rights Act or EU law.

So, if the Supreme Court were to adopt proportionality testing across the board, including for applications which say something is irrational having regard to common law values, then that wouldn't replace 'irrationality' because proportionality testing is just a way of deciding if something is irrational.
0
reply
imonlysleeping
Badges: 0
Rep:
?
#3
Report Thread starter 9 years ago
#3
Apologies, the first question is supposed to be whether it would replace Wednesbury in its entirety. I understand when each is currently used but what I really want to know is whether proportionality could be adopted alongside unreasonableness (in terms of common law, opposed to the current situation in the context of human rights)? And if so, where would the line be drawn?
0
reply
t.oliver
Badges: 0
Rep:
?
#4
Report 3 years ago
#4
(Original post by imonlysleeping)
If the Supreme Court was to adopt proportionality as a standalone ground for judicial review, do you think that it would replace irrationality in its entirety?

If it does not, how would you distinguish between situations in which proportionality is the appropriate standard of review and others where Wednesbury unreasonableness is?
Having regard to the recent obiter dicta in the case of Daly, it seems that the law is currently progressing towards adopting proportionality as a standalone ground in its entirety. Although previous cases, such as ex parte Brind, established that proportionality has no place in domestic law, with the development of the different intensities of review available to the courts at their discretion, the gap between irrationality and proportionality seems to be shrinking. It was proposed that there are cases of 'anxious scrutiny', usually of which directly impact upon civil liberties, which the courts are more willing to examine. Within this category are cases involving immigration and asylum - of which take up a very large proportion of cases submitted for judicial review. Thus, a large amount of cases of judicial review are scrutinized under the intensity of 'anxious scrutiny', inevitably progressing closer to the EU concept of proportionality.

Dyson LJ had previously stated that the courts had "difficulty in seeing what justification there now is for retaining the Wednesbury test" - however, he went on to say that it was not the Court of Appeal's place to perform it's burial. The fact that the case for the wednesbury unreasonableness has progressively been criticized by academics and influential judges, such as Dyson LJ, suggests that it is gradually diminishing in its entirety.

As of current, there is some unwillingness by courts to completely disregard the concept of wednesbury unreasonableness. However, I do believe that eventually it will be disregarded in place for a principle very similar to that of proportionality. With Brexit looming, I find it difficult to suggest that the UK will take on the exact concept, but perhaps we will see the demise of irrationality in replace of something more comprehensible in the next few decades.
0
reply
X

Quick Reply

Attached files
Write a reply...
Reply
new posts
Back
to top
Latest
My Feed

See more of what you like on
The Student Room

You can personalise what you see on TSR. Tell us a little about yourself to get started.

Personalise

Which of these would you use to help with making uni decisions?

Webinars (66)
12.24%
Virtual campus tours/open days (131)
24.3%
Live streaming events (47)
8.72%
Online AMAs/guest lectures (52)
9.65%
A uni comparison tool (124)
23.01%
An in-person event when available (119)
22.08%

Watched Threads

View All