The adoption of a proportionality test for the validity of administrative action first emerged in Germany in the 's. The German word is Verhaltnismassigkeit which literally means relativity. Three tests are applied, only one of which involves proportionality as such. The three tests are:. Proportionality emerged in French Law in the 's.
The principle was applied by the Conseil d'Etat in to strike down the conversion of a road to a pedestrian precinct. The principle is now well entrenched in French law where it is associated with a concept of gross error in fact finding and is often explained by reference to a balance or balance sheet le bilan.
It must be fair to say that the decision of the European Court of Human Rights in Lustig-Prean softened up the English courts for proportionality. The courts appeared to be ready for it, however, even earlier. That started the debate. The debate was fuelled by the appreciation that proportionality was accepted in Community law. Although European human rights law, where it was found, was only binding in the United Kingdom on review in the European Court of Human Rights, that was still a significant matter.
Moreover, it was recognised that the principle would become even more compelling when the European Convention on Human Rights came to bind English courts. The principle of proportionality now sits alongside unreasonableness in its application in England R Daly v Home Secretary Its use is generally confined, however, to human rights or similar issues. Lord Hope has explained the principle in a way which accords very much with the German formulation, namely justification, fairness and proportionality.
A measure claimed to erode human rights must satisfy all three. Proportionality has been recognised as such in Australia. The High Court has used it to determine the validity of subordinate legislation South Australia v Tanner Sir Anthony Mason 41 and the late Brad Selway 42 show no enthusiasm for any separate doctrine. In a way the question is still open in Australia. However, I think that a number of factors point against the likelihood of its adoption as a separate ground. First, it seems to be associated with a broadening of the grounds of review which is an approach that has not been adopted in Australia.
Secondly, its adoption in the United Kingdom is closely associated with its geographical and judicial proximity at least on questions of human rights with Europe. Thirdly, Australia has a sophisticated system of merits review of administrative decisions which has been in place for more than 20 years and the need to expand judicial review is not a present concern.
What is merits review? The conventional answer is that it is review which is wider than correcting legal error. It extends to a reconsideration of discretionary matters - of the merits of the original decision.
The process is often described by saying that the Tribunal must reach "the correct or preferable" decision. The first component is that the reviewing tribunal considers the merits of the issue; but the second component is that it substitutes its decision for the decision under review.
Merits review and judicial review can undoubtedly overlap but the power of courts to substitute a decision is much more limited than is the power of merits review tribunals. This point was brought home to me at a meeting of an international association of administrative courts and tribunals in Madrid a few years ago. I was explaining the Australian system and suggesting that it was unique.
I referred to reconsideration of the merits of decisions. My audience was unimpressed. Then I referred to the substitution of our decision for the decision under review. That made them sit up. The essence of merits review is the power to substitute a decision. This is so both as a matter of substance and as a matter of form. It is so, as a matter of substance, because substitution implies the power to address all issues and leaves the reviewing tribunal, as the ultimate decision-maker, in no way bound by what has gone before.
It is so, as a matter of form, because that is what s 43 of the Administrative Appeals Tribunal Act says. Section 43, which has been adopted for state administrative review tribunals, says nothing about discretion or merits.
It simply empowers the Tribunal to set aside the decision under review and substitute its own decision. That is the sole source of power to consider the merits. Section 16 of the Administrative Decisions Judicial Review Act Cth , by contrast, does not permit any remaking of the decision under consideration. Very few administrative law systems permit substitution and never by a body with general jurisdiction, apart from Australia.
Specialised tribunals in common law countries such as the United Kingdom, Canada and New Zealand do have the power, but the jurisdiction is necessarily confined.
It has even been suggested that Wednesbury should remain the test for cases that require greater judicial deference, while proportionality should be the standard used in cases where a more exacting review is required. Movement along the first spectrum denotes an increase in the intensity with which the Wednesbury unreasonableness test is applied as the context changes.
On one end of this spectrum, for cases presumably involving matters with which the courts have historically not intervened, an extremely strict version of the test may be suitable. On the other end of this spectrum, when important human rights may be involved, the courts have applied what may be called the sub-Wednesbury approach. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.
According to Taggart, the point at which the sub-Wednesbury test ends is the point at which proportionality review must begin, and from here on the proportionality review gets increasingly intrusive as the context changes towards more fundamental and absolute rights.
According to him, even the most lenient application of the Wednesbury test will prove to be more deferential than even the strictest application of proportionality. It is argued below that this is not the case. Even if proportionality test, prima facie , provides for greater scrutiny, this can be cut back depending on the context. In this manner, proportionality can be an appropriate test even for cases that require a great degree of judicial deference to the decision- maker.
It will be argued below that when the nature of the proportionality inquiry is analysed, its versatility and suitability become evident. In particular, it will be shown that the variable intensity review under proportionality test can be just as sensitive to deference as Wednesbury.
When the content of the proportionality test, as outlined in De Freitas above, is analysed, it becomes evident that the test calls for a calculus to be made. The court must attach some weight to the legislative aim which has given rise to the administrative action being challenged on one hand and the right being infringed upon on the other.
Then it must ascertain whether the action that has led to the infringement of the right is rationally connected to the aim set out, and lastly it must determine whether there was another possible way in which the same aim may have been achieved which was less intrusive.
At the heart of the inquiry is balancing exercise between the rights of the individual and the rights of the community. The clarity of the framework provided by proportionality is seen as a great strength of the test. Brind , to argue that the proportionality inquiry distorts the distinction between appeal and review. By doing so, the judge is evaluating the merits of the decision, thereby acting as a primary decision-maker analogous to a judge sitting in appeal, as opposed to adopting the more deferential stance of a secondary decision-maker sitting in review.
Their Lordships argue that such a position undermines the democratic legitimacy by giving an unelected judiciary too much control over democratically accountable bodies. The above-mentioned argument is mistaken when it assumes that by attaching weight to each side, the judge is simply substituting his own judgment.
In fact, the doctrine of deference plays as much a part in the proportionality test as it does in Wednesbury. To elaborate this point further, it may be useful to divide deference into institutional and constitutional deference. Institutional deference relates to the relative expertise of the court and the primary decision- maker over the subject matter of the decision.
Since courts lack the specialised knowledge often possessed by primary decision-makers, they defer to the opinion of the decision-maker regarding crucial questions such as the likely success of a policy or its cost effectiveness. Such deference will play a part in determining the weight attached to the administrative aim being pursued.
For instance, if the primary decision-maker feels that an increase in the number of school hours will lead to an overall increase in the level of education, the court is unlikely to replace this view with its own view on the merits and demerits of over-schooling.
On a second level, constitutional deference relates to the constitutional role assigned to each body, and will determine the strictness with which the court will assess the overall balance of the scale. Where the subject matter of a decision is detached from the constitutional responsibility of the judiciary, the court may be expected to condone it even if it does not correspond to its own balancing exercise. A second refutation to the above argument can be made by relying upon the Wednesbury unreasonableness test itself.
Recent dicta of the United Kingdom Supreme Court in Kennedy v Charities Commission has confirmed that the Wednesbury test also involves consideration of weight and balance. The Supreme Court clarified that considerations of weight and balance depend upon the context of the case, which ultimately determines the intensity of review. When the proportionality test is conceived of as a function of the competing consideration plus deference, it becomes clear that the intensity of review varies depending upon the level of deference.
Hence, the test and the level of scrutiny depends upon context. Furthermore, particular examples of the proportionality test being applied in a deferential standard are not hard to find. Proportionality test provides a more structured and transparent method through which reasonableness of administrative actions may be challenged. While it brings forward the competing considerations in a given case in a clearer manner, this does not make it an inherently more intrusive test than the present Wednesbury unreasonableness test.
It can be seen from the above discussion that even the Wednesbury test ultimately scrutinises the cost benefit analysis that led to a decision, but does so in an opaque and circular manner, such as by terming an unreasonable decision as one which no reasonable decision-maker would make.
Proportionality test provides a clear analytical framework to guide the inquiry. The reasons given by the Secretaries of State focussed on what might now be learned of contemporary relevance, either to the organisation and training of the army or to promoting race relations, from conducting an inquiry. They did not seriously consider the most cost-effective form which such an inquiry might take. But is this irrationality, in the sense of Wednesbury type 2, or a failure to take into account relevant considerations, in the sense of Wednesbury type 1?
Typically, partisans in the substantive review debate advocate either that proportionality should sweep the board e. Perhaps surprisingly, the end result might be a merger of Wednesbury type 2 and proportionality. 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 or benefits and disadvantages.
This was taken further in Pham v. Home Secretary [] 1 WLR At para. Lord Sumption, with whom three other judges agreed, was more expansive. See also Harlow and Rawlings, Law and Administration , 3 rd ed. Cambridge University Press, Cambridge, , at p. Here, for instance, the citizenship decision would be reviewed on domestic judicial review grounds, but if it had an EU law aspect would fall to be considered in accordance with the EU principle of proportionality.
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