Irrationality and proportionality: Council of Civil Service Unions

V Minister for the Civil Service (1985)In Lord Diplock was confined to
three grounds of judicial review namely illegality, irrationality and
procedural impropriety,but his Lordship did not rule out the possibility
of other grounds in particular, the doctrine of
proportionality.Proportionality as a ground of judicial review considers
the aim of decision-maker and whether the means to achieve that
objective are proportionate. The more traditional ground of judicial
review is irrationality. A decision of a tribunal or other body exercising a
statutory discretion will be quashed for 'irrationality', or as is often said,
for 'Wednesbury unreasonableness': Associated Provincial Picture
Houses Ltd v WednesburyCorpn .It is well established as a distinct
ground of review that a decision which is so perverse that no reasonable
body, properly directing itself as to the law to be applied, could have
reached such a decision, will be quashed. Ordinarily the circumstances
in which the courts will intervene to quash decisions on this ground are
very limited. The courts will not quash a decision merely because they
disagree with it or consider that it was founded on a grave error of
judgment, or because the material upon which the decision-maker could
have formed the view he did was limited.
The doctrine of proportionality should not however be confused with
that of irrationality .This is neatly illustrated in the Expate Smith
litigation. In R v Ministry of DefenceExparte smith (1996) the Ministry
of Defense’s policy against inclusion of homo sexual men and women in
armed forces were questioned. The CA stated that policy was not
irrational because parliament supported the policy. On petition to the
ECHR in Smith and gradly v UK the claimants success fully contended
that the MOD policy Violated Art 8 ( Right to private life ).The ECHR
held that the blanket policy which required automatic discharge on basis
of sexual orientation Could not be justified as it was a disproportionate
interference with their right of private life. The test of proportionality
has a controversial element in that it requires court to assess the quality
of the decision made and to determine if the appropriate balance
between means and objective has been achieved.
The doctrine of proportionality has its roots in the jurisprudence of USA,
Canada and Countries of continental Europe originally domestic courts
were conservative in recognizing proportionality as a separate ground of
judicial review but since the incorporation of Human Rights Act 1998
doctrine of proportionality mores towards a centrestage.Even before
incorporation of ECHR into domestic law doctrine of Proportionality
was referred to English case. For example in R v BarnsleyMetropoliton
Borough Council ex parte Hook Court of Appeal presided over by Lord
Denning MR held that punishment imposed on a market trader(loss of
licence )was altogether excessive and out of proportion. The HL
However originally showed no appetite for involving the doctrine of
Proportionality as a ground of judicial review .In R v Secretary of state
for the Home Development,Ex Parte BrindLords Ackner and Roskill
were adverse to introduction of proportionality as a ground of judicial
review in exparteBrind especially noting the political character of the
doctrine. Nevertheless as a result of Human Rights Act the principle of
Proportionality is now part of judicial review
Doctrine of Proportionality is sometimes replacing the doctrine of
irrationality in recent time. The emergence of the doctrine can be
attributed to Human Rights ACT 1998.The HRA 1998 partially
incorporated rights contained in ECHR into domestic law. According to
S.2 of the Act domestic court must follow the legal reasoning adopted in
Strasborough which includes the principle of Proportionality. In R v
Secretary of State for Home Dept ex parte Daly [2001] Lord Steyn
stated that-
 a) Doctrine of Proportionality requires reviewing court to assess the
balance which the Decision maker has struck not merely whether it
is a rational or reasonable discussion.
b) Doctrine of Proportionality may go further than the traditional
grounds of judicial review as it addresses the quality of decision
made. Academicians find this ensure standards of legal fair and
reasonable administration based on practical morality(Jeffrey
Jowell QC)
The issue of proportionality is much stricter than irrationality, whereas
irrationality requires to answer the question whether a reasonable body
would have devised the policy, proportionality requires us to assess
whether the decision or policy was in proportion (i.e. it was a balanced
one which was a proportionate method of achieving a lawful
objective).The doctrine of proportionality increases the review powers of
Courts. So in A and other v Secretary of state for Home Department
[2004] the HL held that detention of foreign national suspected of
terrorism under S.23 of anti-terrorism crime and security was a
disproportionate response to threat of terrorism. The traditional
Wednessbury approach is no longer appropriate to form a judgment
whether a convention right is breached.The difference in approach
between the traditional ground of judicial review and proportionality
may sometimes give rise to different results. But equally Lord Steyn
stressed that the arrival of doctrine of proportionality did not involve a
shift to a merit review. Even in case involving of review will depend on
subject matter because in law context is everything.
It remains to be seen how for courts are allowed to question decisions of
government and parliament based on proportionality.Doctrine of
proportionality raises concerns about whether it is us proper for courts to
interfere with decisions of government or parliament. Proportionality has
not yet been adopted as a free-standing standard of review and,
therefore, irrationality remains the standard in public law claims that do
not raise EU or human rights issues. In R (Countryside Alliance and
others) v Attorney General & Another [2007] (the hunting-ban case),
the House of Lords afforded a wide "margin of discretionary judgment"
to the legislature in this matter of social policy and found that any
interference with the claimants' proprietary rights under Article 1 of the
first Protocol to the ECHR was justifiable. In Youssef v Secretary of
State for Foreign and Commonwealth Affairs [2016] the appellant
argued that given the grave consequences of being placed on UN list the
Wednesbury standard of review was insufficient. But Lord Carnwath
delivering the only judgment, noted that application of a proportionality
test is unlikely to lead to a different result from irrationality especially
where national security matters were at risk. In such cases a large margin
of discretion would be accorded to the decision maker. Therefore a
thorough review of the position of proportionality in judicial review is
suggested not only to clarify the standard of review to be conducted by
the courts but also to clarify the boundaries between irrationality and
proportionality.