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The Non-Identical Twins in UK Public Law: Reasonableness and Proportionality

Published online by Cambridge University Press:  09 February 2017

Yossi Nehushtan
Yossi Nehushtan*
Affiliation:
PhD, Senior Lecturer, Keele University, School of Law.
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Abstract

Ever since the Wednesbury decision in 1947 (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) courts and public law scholars in the United Kingdom (UK) have been struggling to comprehend the meaning of ‘reasonableness’ and its relation to ‘proportionality’. The main purpose of this article is to promote conceptual clarity in UK public law by describing the nature of reasonableness and proportionality as grounds of judicial review and by highlighting the overlooked similarities and differences between them.

The main arguments of this article are that: (i) reasonableness is, in essence, an exercise in balancing and weighing; (ii) proportionality adds very little to the existing grounds of judicial review in UK public law; (iii) this addition is not necessarily focused on the administrative weighing and balancing process; and (iv) since proportionality adds very little to the existing grounds of judicial review, there is no conceptual or normative reason to prevent having proportionality as a general ground of judicial review in UK public law.

Keywords

reasonablenessproportionalityjudicial reviewpublic law
Type
Articles
Information
Israel Law Review , Volume 50 , Issue 1 , March 2017 , pp. 69 - 86
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2017 

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References

1 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Court of Appeal).

2 ibid 233–34.

3 ibid 234.

4 Craig, Paul, Administrative Law (7th edn, Sweet & Maxwell 2012) 647 Google Scholar.

5 Craig, Paul, ‘The Nature of Reasonableness Review’ (2013) 66 Current Legal Problems 131 Google Scholar, 162; R v Secretary of State for the Home Department, ex p Daly [2001] 2 AC 532, 549.

6 Braganza v BP Shipping Ltd and Another [2015] UKSC 17, para 24.

7 Craig, Paul, ‘Proportionality, Rationality and Review’ [2010] New Zealand Law Review 265 Google Scholar, 284–85.

8 Wednesbury (n 1) 230.

9 Craig (n 5) 142–48.

10 Wednesbury (n 1) 233–34.

11 For a more detailed description of the nature of reasonableness as a balancing test see Yossi Nehushtan, ‘The Unreasonable Perception of Reasonableness and Rationality in UK Public Law’ (2017) 37 Legal Studies (forthcoming) from which most of the arguments on pages 2–5 of this article are taken. See also Craig (n 5).

12 Pham v Secretary of State for the Home Department [2015] UKSC 19, para 114 (Lord Reed).

13 For a recent and helpful description of reasonableness in UK public law, which refers to only a few cases in which reasonableness was explicitly understood as a balancing test, see Jowell, Jeffrey, ‘Proportionality and Unreasonableness: Neither Merger nor Takeover’ in Wilberg, Hanna & Elliott, Mark (eds), The Scope and Intensity of Substantive Judicial Review: Traversing Taggart's Rainbow (Hart 2015) 41 Google Scholar, 52–53.

14 For this argument see also Daly, Paul, ‘Wednesbury's Reason and Structure’ [2011] Public Law 238 Google Scholar, 240.

15 Craig (n 5) 136.

16 For reasonableness as a balancing test in Israeli public law see Barak, Aharon, ‘A Judge on Judging: The Role of a Supreme Court in a Democracy’ (2002) 116 Harvard Law Review 19 Google Scholar, 93–97; Cohn, Margit, ‘Pure or Mixed? The Evolution of Three Grounds of Judicial Review of the Administration in British and Israeli Administrative Law’ (2011) 6 Journal of Comparative Law 86 Google Scholar, 103. For Canadian public law see Dunsmuir v New Brunswick 2008 SCC 9, [2008] 1 SCR 190, para 47; Knight, CJS, ‘Reasonableness Transformed (in Canada)’ (2008) 13 Judicial Review 214 Google Scholar; Lewans, Matthew, ‘Deference and Reasonableness since Dunsmuir ’ (2012) 38 Queen's Law Journal 59 Google Scholar; Mark Walters, ‘Respecting Deference as Respect: Rights, Reasonableness and Proportionality in Canadian Administrative Law’ in Wilberg and Elliot (n 13) 395.

17 Boughey, Janina, ‘Administrative Law: The Next Frontier for Comparative Law’ (2013) 62 International & Comparative Law Quarterly 55 Google Scholar, 56.

18 Justice Aharon Barak, former President of the Israeli Supreme Court, wrote that ‘from my judicial experience, I have learned that “balancing” and “weighing”, though neither essential nor universally applicable, are very important tools in fulfilling the judicial role’ (Barak (n 16) 93) and ‘the concept of “balance” reflects the recognition that fundamental principles have “weight” and that it is possible to classify them according to their relative social importance. The act of “weighing” is merely a normative act designed to give the principles their proper place in the law’ (ibid 94).

19 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 411 (GCHQ case). Although writing here about a particular subset of administrative decisions – i.e. decisions taken under prerogative powers and likely to engage issues of high policy – it seems that Lord Diplock was making a general argument about whether balancing is within the judicial remit rather than a specific argument about whether balancing in respect of certain types of decision is within that remit. For subscribing to Lord Diplock's reasoning see R v Secretary of State for the Home Department, ex p Daly [2001] 2 AC 532, 547; Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780; Goodwin, James, ‘The Last Defence of Wednesbury’ [2012] Public Law 445 Google Scholar, 451–55; SirSales, Philip, ‘Rationality, Proportionality and the Development of the Law’ (2013) 129 Law Quarterly Review 223 Google Scholar.

20 For more details see the sources below (n 22). This reluctance is part of a broader approach of judicial deference that is often applied by UK courts in reviewing the legality of administrative acts and decisions. For an in-depth analysis of the doctrine of deference in UK public law see Daly, Paul, A Theory of Deference in Administrative Law: Bias, Application and Scope (Cambridge University Press 2012)Google Scholar.

21 For offering a different classification which focuses on the importance of either rights or interests see Mark Elliott, ‘From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification’ in Wilberg and Elliot (n 13) 61.

22 For the arguments in favour of having proportionality as a general ground of review see Craig (n 7); Hunt, Murray, ‘Against Bifurcation’ in Dyzenhaus, David, Hunt, Murray and Huscroft, Grant (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart 2009) 99 Google Scholar. For the argument against see Taggart, Michael, ‘Reinventing Administrative Law’ in Bamforth, Nicholas and Leyland, Peter (eds), Public Law in a Multi-Layered Constitution (Hart 2003) 311 Google Scholar; Taggart, Michael, ‘Proportionality, Deference, Wednesbury’ [2008] New Zealand Law Review 423 Google Scholar; Hickman, Tom, Public Law after the Human Rights Act (Hart 2010) 257 Google Scholar; Hickman, Tom, ‘Problems for Proportionality’ [2010] New Zealand Law Review 303 Google Scholar; King, Jeff, ‘Proportionality: A Halfway House’ [2010] New Zealand Law Review 327 Google Scholar; Knight, Dean, ‘Mapping the Rainbow of Judicial Review: Recognizing Variable Intensity’ [2010] New Zealand Law Review 393 Google Scholar; Sir Philip Sales (n 19).

Here I wish to ignore general arguments about the shortcomings of balancing tests as such: see, for example, Endicott, Timothy, ‘Proportionality and Incommensurability’ in Huscroft, Grant, Miller, Bradley and Webber, Gregoire (eds), Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press 2014) 311 Google Scholar.

23 This four-stage test was adopted and applied in Bank Mellat v HM Treasury [2011] EWCA Civ 1; [2011] 2 All ER 802, paras 68–76 (Lord Reed). For recent, excellent and in-depth discussion of proportionality in public law see Barak, Aharon, Proportionality: Constitutional Rights and their Limitations (Cambridge University Press 2012)Google Scholar; Cohen-Eliya, Moshe and Porat, Ido, Proportionality and Constitutional Culture (Cambridge University Press 2013)Google Scholar; Huscroft, Miller and Webber (n 22).

24 See, eg, R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386; Bromley London Borough Council v Greater London Council [1983] 1 AC 768.

25 Jowell (n 13) 51–52; see also R v Parliamentary Commissioner for Administration, ex p Balchin (No 1) [1997] COD 146 (QB), para 27; R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, para 65.

26 See text to n 4.

27 Craig (n 4) 643; Le Sueur, Andrew, ‘The Rise and Ruin of Unreasonableness?’ (2005) 10 Judicial Review 32 Google Scholar, 39–40.

28 For a description of this view see Elliott, Mark, ‘The Human Rights Act 1998 and the Standard of Substantive Review’ (2001) 60 Cambridge Law Journal 301 CrossRefGoogle Scholar, 312.

29 ibid 313.

30 ibid.

31 Elliott (n 21) 73; also ‘asking whether a decision is reasonable is less demanding than asking whether it is proportionate’ (ibid 80).

32 R v Ministry of Defence, ex p Smith [1996] 1 All ER 257.

33 ECtHR, Smith and Grady v United Kingdom, App nos 33985/96 and 33986/96, 27 September 1999, paras 97, 110–11.

34 Smith (n 32) 262, quoting Lord Bridge from R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, 778–79.

35 For a similar argument see also Allan, TRS, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 Cambridge Law Journal 671 Google Scholar.

36 Smith and Grady (n 33) para 132.

37 ibid para 138.

38 For a recent affirmation of this point see Pham (n 12) paras 60 (Lord Carnwarth), 94 (Lord Mance), 109 (Lord Reed). This point was agreed by all seven judges who decided this case.

39 ibid para 60 (Lord Carnwarth), quoting from Craig (n 5).

40 ibid para 116 (Lord Reed); see also para 103 (Lord Sumption): ‘this assumes that the principle of proportionality as it applies in EU law is liable to produce a different result in a case like this by comparison with ordinary principles of English public law. I question whether this is necessarily correct’.

41 For the argument that proportionality can and should replace reasonableness see Craig (n 4) 669. For the argument that proportionality should be added to the reasonableness test see Jeffrey Jowell and Anthony Lester, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] Public Law 368; Jowell (n 13). Resolving this dispute is not necessary for the purposes of this article.

42 Pham (n 12) para 115 (Lord Reed).

43 ibid para 60 (Lord Carnwarth).

44 ibid paras 60, 94, 109.

45 For a principled judicial reluctance to decide whether the means that were applied were the least restrictive possible see R (on the application of Lumsdon and Others) v Legal Services Board [2014] EWCA Civ 1276, para 102: ‘we accept the submission … that the decision-maker's view of whether some less intrusive option would be appropriate as an alternative is likewise not a question on which the court should substitute its own view, unless the decision-maker's judgment about the relative advantages and disadvantages is manifestly wrong’. The Supreme Court rightly replied by stating that ‘a test of whether the decision-maker's judgment was “manifestly wrong” has no place in the present context. A decision of the present kind is disproportionate if a less restrictive measure could have been adopted, provided that it would have attained the objective pursued’: R (on the application of Lumsdon and Others) v Legal Services Board [2015] UKSC 41, para 103 (see also para 108).

46 For refuting the argument that proportionality cannot (rather than should not) be applied to cases concerning rights, see Craig (n 7) 296–300.

47 For a relatively early judicial discussion of this option see the GCHQ case (n 19) 410 (Lord Diplock).

48 Elliott (n 21) 75.

49 Pham (n 12) para 95 (Lord Mance); Kennedy v Charity Commission [2014] UKSC 20, [2014] 2 WLR 808, para 54.

50 Chan, Cora, ‘Proportionality and Invariable Baseline Intensity of Review’ (2013) 33 Legal Studies 1 Google Scholar.