Preliminary draft – please do not cite without author’s permission
Structuring Substantive Review
Rebecca Williams1
The question whether Wednesbury should be ‘buried’2 and replaced with the proportionality
doctrine has received such a great deal of attention over recent years.3 There are various reasons
why this has happened. One familiar reason is that of course substantive review is thought to be
unusual since it attacks neither the formal process used to make the decision (procedural
impropriety), nor more generally the process of making the decision (illegality), but rather the actual
substantive decision reached at the end of the process. In this sense, then, all forms of substantive
review are ‘merits review’,4 and thus particular care must be taken in order to preserve the
appeal/review distinction in this context. It is vital, therefore, that the method for undertaking
substantive review is the best that can be achieved. But a second reason for the existence of a
debate is that in the academic discussion, Wednesbury and proportionality are often presented as
mutually exclusive alternatives, such that we have to choose between ‘bifurcation’ or the
replacement of Wednesbury with proportionality.
The argument here, however, will be that when properly analysed there is relatively little to choose
between the two approaches. Whether one calls it proportionality reasoning or not, within existing
common law rationality review the courts already undertake precisely the same kind of reasoning as
they do under proportionality review, such that there is a large degree of overlap between the two
1
Fellow and Tutor in Law, Pembroke College, Oxford and Faculty of Law, University of Oxford. I am grateful to
Aileen Kavanagh for her comments. Any remaining errors are, of course, mine alone.
2
See Dyson LJ in R (Association of British Civilian Internees (Far East Region) v Secretary of State for Defence
[2003] EWCA Civ 473 at [35].
3
See, for example, A Lester and J Jowell, “Beyond Wednesbury: Substantive Principles of Administrative Law”
[1987] Public Law 368; J Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65 Cambridge Law
Journal 174; M Taggart, ‘Proportionality, Deference, Wednesbury’ [2008] New Zealand Law Review 423; P
Craig, ‘Proportionality, rationality and review’ [2010] New Zealand Law Review 265 and ‘The Nature of
Rationality Review’, forthcoming, Current Legal Problems ; T Hickman, ‘The Substance and Structure of
Proportionality’ (2008) Public Law 694; ‘Problems for Proportionality’ [2010] New Zealand Law Review 303
and Public Law After the Human Rights Act (Hart, Oxford, 2010) especially ch 9; King, ‘Proportionality: a
halfway house’ [2010] New Zealand Law Review 327; J Goodwin, ‘The last defence of Wednesbury’ (2012)
Public Law 445 and P Daly, ‘Wednesbury’s reason and structure’ (2011) Public Law 238; M Elliott,
‘Proportionality and deference: the importance of a structured approach’ in F Forsyth (eds) Effective Judicial
Review: A Cornerstone of Good Governance (Oxford, Oxford University Press 2010) Ch 16.
4
In the sense that they entail a review of the merits of the substantive decision. See Daly, ibid at 258 and
Hickman, ‘The Substance and Structure of Proportionality’, ibid at 696. See also P Craig, Administrative Law
(7th ed, London, Sweet and Maxwell, 2012) at 21-002. This does not of course mean that the court becomes
the primary decisLion maker rather than a secondary reviewer of the decision.
Preliminary draft – please do not cite without author’s permission
approaches. There certainly are different kinds of substantive review, but these differences derive
directly from the subject matter of the cases, rather than from any distinction between
proportionality and rationality review. By focusing principally on the Wednesbury v proportionality
issues the debate has thus, to some extent, become diverted from its main objectives. Both those
who advocate proportionality and those who advocate bifurcation are concerned to enhance the
clarity and predictability of review, while also maintaining the vital appeal/review distinction. But in
fact neither proportionality as it currently operates, nor Wednesbury, currently delivers these
desired benefits across the area of substantive review. It would be preferable, therefore, to move
away from focusing on issues of classification, or the territorial reach of the different approaches,
and to focus instead on the two key issues at the heart of all forms of judicial review, in this sphere
and in many cases outside it,5 namely what in substance is alleged to have gone wrong with the
decision, and how intensively that issue is to be reviewed, in order to understand better what the
courts currently do and how that might be improved.
Wednesbury and Proportionality: what is the difference?
In subject-matter terms, there is an obvious contrast between Wednesbury and proportionality, in
that the former is couched simply in the language of (un)reasonableness, while proportionality
contains various more specific questions6 about suitability,7 necessity8 and proportionality stricto
sensu.9 However, as will be discussed in further detail below, this also means that the subject-matter
of rationality review under Wednesbury extends to issues which would not be covered by
proportionality’s more specific questions.
5
Including many of those traditionally thought of as forms of ‘illegality’ review, see, e.g. R Williams, ‘When is
an Error Not an Error? Jurisdictional Review of Error of Fact and Law’ (2007) Public Law 793. However, these
issues are beyond the scope of the current argument.
6
Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 38 and [2013] UKSC 39, [2013] 3
WLR 179 at [20].
7
Whether or not the means chosen are rationally connected to the end which the decision-maker seeks to
achieve. For further detail of the structure of the proportionality test, see further below, and in particular on
the varying versions of it, see Elliott, above n 3. See also Rivers, above n 3 at 176-8.
8
Whether there was any method of achieving the same aim which would have had a less restrictive impact on
the right or interest in question (sometimes known as the ‘no less restrictive means’ question). This question is
part of the inquiry into whether a sledgehammer has been used to crack a nut. See further Elliott, ibid and
Rivers, ibid, and Hickman, ‘The Substance and Structure of Proportionality’, above n 3.
9
Was the measure genuinely disproportionate in the sense that the gains sought to be achieved were
outweighed by the impact on the claimant’s interest? Again, see Elliott, ibid, and Rivers, ibid. It should be
noted that this has not always been regarded as being part of the proportionality inquiry, see De Freitas v
Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, although see also
Hickman, ‘The Substance and Structure of Proportionality’, above n 3 at 713 and R (Quila) v Secretary of State
for the Home Department [2011] UKSC 45, [2012] AC 621 per Lord Wilson at [45].
Preliminary draft – please do not cite without author’s permission
The ‘standard’ of review, on the other hand, is discussed in many different terms.10 More
specifically, there are four different techniques which can be used to enable the courts to become
less, or indeed more, interventionist. First, Elliott helpfully identifies a distinction between (1) the
level of the test set by the court and (2) the deference to the decision-maker’s view of the matters to
be weighed in the balance. Thus if one imagines an old-fashioned set of scales with two pans,
Elliott’s first form of deference relates to the calibration or sensitivity of the scales; are they
chemist’s scales which will tip with the slightest imbalance, or scales for heavier objects which will
only tip when there is a substantial imbalance? His second form of deference determines who will
decide what weight is ascribed to the matters placed into each pan; the decision-maker or the
court.11 Third, there may also be a variation in the degree of scrutiny given by the courts to the
factual evidence in different cases.12 Although the second and third forms of variability may be
difficult to separate in practice, they are conceptually distinct, in the sense that it ought to be
possible for a court to examine carefully the evidence in favour of a particular decision, but still to
allocate responsibility to the decision-maker for the use made of that evidence in weighting the
different factors to be taken into account. In addition to these justifiable and articulable forms of
deference there is a fourth, less satisfactory way in which the courts may choose a more or less
interventionist approach. As will be discussed in more detail below,13 in many cases the answer
given to the question depends on the terms in which it is put, and defining the question in one way
rather than another can give more or less leeway to the decision-maker.
The definitions of Wednesbury and proportionality only deal explicitly with Elliott’s first, calibration
form of deference.14 Wednesbury , taken literally and monolithically, 15 claims only to permit
intervention where no reasonable decision-maker could have come to the same decision,16 (in other
10
Including ‘intensity’ and ‘threshold’ (which stand in inverse proportion to each other); the concepts of
‘super’ and ‘sub’ Wednesbury, the question of intensity of looking (e.g. ‘hard look’) and of course the concept
of ‘deference’, which are all of varying levels of usefulness (see further D Knight, ‘Mapping the Rainbow of
Review: Recognising Variable Intensity’, (2010) New Zealand Law Review 393 especially at 400..
11
Elliott, above n 3 at 269.
12
See Craig, above n 4 at 21-024.
13
Text to ns.
14
The other forms of deference will be dealt with in more detail below.
15
The expression is that of John Laws, writing in Forsyth and Hare (eds) The Golden Metwand and the Crooked
Cord (Oxford, Oxford University press, 1998) at 186-7. It is well known that the distinction is between the use
of Wednesbury only in cases where the decision taken was literally so unreasonable that no reasonable
decision-maker could have arrived at it, and the contemporary use of Wednesbury as a variable standard,
meaning that it is no longer a high, fixed (or monolithic) standard, on which see further Nottinghamshire
County Council v Secretary of State for the Environment [1986] AC 240 for an example of an extremely strict
application of Wednesbury, as contrasted with the comments made by Sir Thomas Bingham in R v Ministry of
Defence, ex p Smith [1996] QB 517 at 556.
16
See also Lord Diplock’s famous restatement of the principle in Council of Civil Service Unions v Minister for
the Civil Service (GCHQ) [1985] AC 374 at 410: ‘by ‘irrationality’ I mean what can now be succinctly referred to
Preliminary draft – please do not cite without author’s permission
words, where even a very heavy set of scales would tip against the decision maker) although of
course Wednesbury has subsequently been applied with varying intensity or flexibility.17
Proportionality, on the other hand, has no inherent calibration point.18 It can thus be used more
intensively than even the most ‘intense’ setting of Wednesbury,19 (towards chemists’ scales) but
conversely it can also be applied at the much less intense standard of traditional Wednesbury.20
Since the national courts of England and Wales have tended only to meet proportionality in its more
intensive forms21 it is only logical that a view should develop that proportionality must inherently
take this more sensitive form.22 Nonetheless, other, less intense forms of proportionality do exist.23
as ‘Wednesbury unreasonableness’… It applies to a decision which is so outrageous in its defiance of logic or
accepted moral standards that no sensible person who had applied his mind to the question to be decided
could have arrived at it.’ In other words, the scales are heavy and will only tip with manifest imbalance.
17
Alongside suggestions that the term should be ‘reasonableness’ rather than ‘unreasonableness’See further
above, ns 15 and Lord Cooke in R v Secretary of State for the Home Department, ex p Daly [2001] 2 AC 532 at
[32]: “the day will come when it will be more widely recognised that … Wednesbury… was an unfortunately
retrogressive decision in English administrative law, insofar as it suggested that there are degrees of
unreasonableness and that only a very extreme degree can bring an administrative decision within the
legitimate scope of judicial invalidation.”. In other words, more than one calibration setting is used within
Wednesbury.
18
See Rivers, above n 3 at 203 and McCombe J in R (on the application of British American Tobacco UK Ltd) v
Secretary of State for the Home Department [2004] EWHC 2493 (Admin) at [26]-[37], especially [37], accepting
that proportionality may have variable intensity. However, it does apply at a particular level in ECHR and thus
cases, which Hickman describes as a ‘correctness’ standard, Public Law after the Human Rights Act, above n 3
at 112.
19
As is required in the context of the ECHR, hence Wednesbury being inadequate in this context, see further
Smith and Grady v UK (1999) 29 EHRR 493 and R (Daly) v Secretary of State for the Home Department (2001) 2
AC 532 at [27], especially Lord Bingham at [23].
20
Thus the famous example from the EU context is Case 331/88 Fedesa [1990] ECI I-4023 in which at paras
[14]-[16] the ECJ held that it would only find an infringement of the principle of proportionality if the measure
was manifestly inappropriate given the objective pursued; a clear example of the suitability question being
asked at the standard of monolithic Wednesbury. There is no reason why a court should not also enquire only
about manifest lack of necessity or manifest disproportionality stricto sensu. Elliott argues that not only can
the test be varied in this way, but in addition the court can also give more or less deference to the weight
attributed by the initial decision-maker to the various factors in the balance (Elliott, above n 3 at 269).
However, while analytically this may be correct it may be doubted whether in practice the two can really be
kept apart.
21
Above n 19 and in the EU context when member state courts are assessing the validity of derogations from
the principle of free movement, see further Craig and de Búrca, EU Law Text, Cases and Materials (5th ed,
2011, Oxford, Oxford University Press) at 532, discussing the relationship of this more intense form of
proportionality with less intense forms applied to Union action. More intense meaning, of course, greater
sensitivity of the scales.
22
Contrast, for example, the views on proportionality of Lord Slynn (who also sat as AG Slynn and Judge Slynn
of the ECJ and therefore saw proportionality review conducted with a range of different standards) as
expressed in R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23
and R v Chief Constable of Sussex ex p international Trader’s Ferry Ltd [1999] 2 AC 418 at 439 with those of
Lord Hoffmann in E Ellis ed The Principle of Proportionality in the Laws of Europe (Oxford, Hart Publishing,
1999) at 107.
23
And as Craig points out, those who advocate the use of proportionality across the board do so on the basis
that ‘varying intensity of review’ is ‘integral to the enterprise’. Craig, ‘Proportionality, rationality and review’
above n 3 at 280. In other words, even under proportionality the scales need not always be so sensitive,
Preliminary draft – please do not cite without author’s permission
Finally it should be noted that this section is entitled ‘Wednesbury and proportionality: what is the
difference?’, not ‘review under the common law and under the Human Rights Act 1998 (HRA): what
is the difference?’ That latter issue will be discussed below.
Wednesbury and proportionality: the subject matter and intensity of review
Proportionality can involve an examination of various issues, but Lord Sumption in Bank Mellat
identified four in particular;24 whether the legislative objective is sufficiently important to justify
limiting a fundamental right, whether it is rationally connected to it (suitability) 25 whether they are
no more than is necessary to accomplish it (necessity) 26 and whether they strike a fair balance
between the rights of the individual and the interests of the community (proportionality stricto
sensu, or the ‘fair balance’ test). 27 To these is sometimes added, at the beginning of the inquiry, the
question whether the measure has a legitimate aim in the first place. The first and last of these can
be dealt with relatively straightforwardly.
Does the measure have a legitimate aim?
This first question is not actually concerned with proportionality or indeed rationality at all.28 Rather
it is a precursor to substantive review, since courts are entitled to ask whether a measure pursues a
proper or improper purpose.29 Of course, the intensity of court intervention may vary across
different contexts,30 but given the obviously policy-based nature of this inquiry, even in the human
rights context the courts might be expected to be relatively slow to intervene.
Is the legislative objective sufficiently important to justify limiting a fundamental
right?
Similarly, where a fundamental right is at stake there is no sense in asking whether an acceptable
balance has been struck if in fact no such balance could be struck, so this question also precedes the
24
Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 38 and [2013] UKSC 39, [2013] 3
WLR 179 at [20]. For further detail of the structure of the proportionality test, and in particular the varying
versions of it, see Elliott, above n 3. See also Rivers, above n 3 at 176-8, Quila, above n 9 and T Hickman,
‘Proportionality: Comparative Law Lessons’ [2007] JR 31, examining the Canadian and Israeli tests.
25
Above n 7.
26
Above n 8.
27
Above n 9.
28
And indeed was not listed by Lord Sumption in his outline of the proportionality test in Bank Mellat, above n
6 at [20].
29
See, e.g. Padfield v Minister of Agriculture [1968] AC 997 or Wheeler v Leicester CC [1985] AC 1054. See also
Craig, Administrative Law, above n 4 at 21-015. And indeed there is little or no case law on this question in the
context of proportionality under the HRA.
30
Both within the improper purposes investigation, see M Elliott (ed) Beatson, Matthews and Elliott’s
Administrative Law (4th ed, Oxford, Oxford University Press, 2011) at 8.2.3-4, and between the common law
and the HRA.
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full proportionality inquiry. Nevertheless, it is again unlikely that a court would reject any form of
balance between the aim and the rights or interests affected,31 and conceptually the question in any
event is really just a more extreme version of the final, ‘fair balance’ or ‘proportionality stricto sensu’
branch of the inquiry and thus what is said below is applicable here too.
This brings us to the substantive core of the proportionality inquiry; necessity, suitability and fair or
proportionate balance, and the relationship of those issues with rationality review.
Suitability
Suitability is in some ways the odd one out, since although it is often referred to as part of the
proportionality inquiry, in fact it is not about balancing at all, but rather about whether the means
used are rationally connected with the ends that the decision-maker claims it is seeking to achieve.
Proportionality Review
In the context of proportionality it is now extremely difficult to make out a successful claim on the
basis of unsuitability. This was not always the case. A v Home Secretary32 concerned the
government’s Human Rights Act 1998 (Designated Derogation) Order 2001, which provided for the
indefinite detention without trial of foreign terrorist suspects who could not be deported because of
fears for their safety, or other practical reasons. The order did not apply to UK nationals who
presented qualitatively the same threat as those detained; it permitted the detention of terrorist
suspects not related to the public emergency, and non-nationals could avoid detention by leaving
the UK, even if they would continue to pose a threat elsewhere. As will be discussed further below,
the case was principally decided on the issue of necessity,33 but the question of rational connection
was also raised by counsel for the appellants and Lord Bingham34 held that the proportionality
challenge was sound for all the reasons given by the appellants,35 which of course included their
argument about rational connection.36
31
And again, there is little or no case law on the issue.
A v Secretary of State for the Home Department [2005] 2 AC 68.
33
See further below, n 101 and surrounding text
34
With whom Lords Nicholls, Hope, Scott, Rodger, Carswell and Baroness Hale agreed.
35
A, Lord Bingham, above n 32 at [43] that the appellants’ proportionality challenge was sound ‘for all the
reasons they gave, which of course included ‘step 4’ of their argument about rational connection. He also
noted in his conclusion that the choice of an immigration measure to address a security problem had the
inevitable result of failing adequately to address that problem (by allowing UK nationals to remain at large and
by allowing those detained to leave the country). Similarly at [133] Lord Hope agreed with counsel for the
appellants that the 2001 Act was not rationally connected to the legislative objective because of is underinclusive nature. Lords Nicholls, Hope, Scott, Rodger, Carswell and Baroness Hale agreed with Lord Bingham’s
judgment.
36
See paras [31]-[34] of his judgment where Lord Bingham specifically addressed the rational connection
argument by pointing out that the 2001 did not address the threat presented by UK nationals who were not
32
Preliminary draft – please do not cite without author’s permission
Nevertheless, in Quila37 a far more restrictive approach was taken by the Supreme Court. The Home
Secretary had amended rule 227 of the Statement of Changes in Immigration Rules (1994) (HC 395)
to provide that it would not permit leave to enter or remain in the UK as a spouse of a person
lawfully present and settled in the UK to be granted if either party to the marriage were under 21,
raising the age from its previous level of 18. The stated aim of the measure was not immigration
control, but rather the prevention of forced marriages. The claimants38 argued that this was
disproportionate because the number of forced marriages thus deterred was highly debatable and
clearly vastly exceeded by the number of unforced marriages, such as those at issue in the case,
which it obstructed until the UK party reached 21. This might have been thought to fall within the
sphere of unsuitability, and indeed Gross LJ in the Court of Appeal held that there was ‘simply no
reason capable of justifying the application’ of the rule in the present case, and that it was ‘an
unacceptable instance of the tail wagging the dog’.39 Nevertheless, the majority of the Court of
Appeal and the Supreme Court40 held, in the underwhelmed words of Sedley LJ, that the rule had
‘not nothing’ to do with preventing forced marriages,41 and thus while ‘no-one could contend that
the nexus between entry into a forced marriage and the increase in minimum ages was obvious’,42
there was evidence that some forced marriages might be deterred by the rule43 and thus the rule
was rationally connected to the stated objective. This was notwithstanding the fact that, as Baroness
Hale pointed out, if the rule was not effective at preventing a forced marriage it might in fact do
more harm than good.44 Similarly, in Bank Mellat45 (discussed in further detail below), Lord Sumption
was not prepared to hold that ‘the… direction in this case had no rational connection with the
objective of frustrating as far as possible Iran’s weapons programmes. On the footing that a
precautionary approach is justified, the elimination of any Iranian bank from the United Kingdom’s
detained, that non-nationals who had been detained could leave the UK for any other country (as indeed two
had), and that the provisions could cover those who had no link at all with Al-Qaeda. It is therefore respectfully
submitted that Lord Reed’s conclusion in Bank Mellat, above n 6 at [97] that A ‘did not decide that the
legislation lacked a rational connection to its objective because it would be only partially effective’ or ‘because
it was discriminatory’ is not only the minority judgment in the case but is also at odds with the sections of the
judgments referred to in this footnote and the one immediately above. See also Rivers, above n 3.
37
R (Quila) v Secretary of State for the Home Department [2011] UKSC 45, [2012] AC 621.
38
Both non-national spouses of UK citizens under 21.
39
[2010] EWCA Civ 1482 at [78].
40
Lord Brown dissenting.
41
Above n 39 at [28].
42
Lord Wilson JSC, above n 9 at [8].
43
Baroness Hale JSC, above n 9 at [75].
44
Since it might force wives to be sent abroad until such time as they were old enough for their non-national
husbands to join them in the UK. It should also be noted that in some instances this aspect of review might
arise in situations where further evidence could possibly have justified a challenge to the legislation on
‘improper purposes’ grounds, as detailed above.
45
Above n 6.
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financial markets may well have added something to Iran’s practical problem in financing
transactions associated with those programmes’; 46 so again, ‘not nothing’ was sufficient.
Here the scale pan metaphor is not appropriate. Instead, Quila could be illustrated by a Venn
diagram. At present, as long as there is some overlap between the sphere covered by the rule and
the sphere covered by the objective, for the purposes of the suitability inquiry47 it does not matter
that there may be large areas in each of those spheres outside the overlap. Only cases where there
is no overlap at all will fail the test. In other words, of the four forms of variability identified above,48
the test itself is set at a relatively un-intrusive level.
It is also worth noting that not only do Quila and Bank Mellat give a restrictive interpretation of
rational connection, they also limit the scope of the suitability question. For example, other forms of
unsuitability such as under-inclusiveness might in fact also be worthy of consideration.49 In A there
were of course two forms of under-inclusiveness; the non-detention of UK nationals and the fact
that even non-nationals could escape detention by leaving for another country. If the latter form of
under-inclusiveness were to arise on its own under the current law it is hard to see how the order
could be found to be disproportionate, since unlike the discrimination issue it could not easily be
regarded as demonstrating a lack of necessity of detention,50 nor a problem of ‘fair balancing’. And
indeed Quila itself contained a similar form of under-inclusiveness because, as Baroness Hale put it,
the rule at issue could have ‘no effect at all upon the forced marriages which take place within this
country or within the European Union’. It is difficult to see why such a case should not also be
caught by the suitability question,51 especially since (a) this would also enable suitability to act as a
46
Giving the leading majority judgment, above n 6 at [27].
The necessity and proportionality aspects of the inquiry will be discussed further below.
48
Above, text to ns 10-12. The four forms of variability are (1) variability in the intrusiveness of the test; (2)
variability in the weight accorded to the decision-maker’s assessment of the factors to be examined in applying
the test; (3) definition of the question and (4) degree of examination of the factual evidence.
49
See, e.g. Benner v Canada [1997] 1 SCR 358. See further T Hickman, ‘Proportionality: Comparative Law
Lessons [2007] Judicial Review 31 at [28].
50
It is just possible that it could be argued that if the detainees could safely be permitted to go abroad this
would suggest that they were not dangerous enough to necessitate detention in the first place, but first this
argument would be equally applicable to any other form of restriction, such as electronic tagging, to which
they might be subject instead, and second in any case the necessity question operates in the wrong direction;
necessity focuses on the question whether the measure did too much, whereas the problem here is the
illogicality caused by under-inclusiveness.
51
Contrast, for example, the decision of the New York State Supreme Court in New York Statewide Coalition of
Hispanic Chambers of Commerce, The American Beverage Association and others v New York City Department
of Health and Mental Hygiene, the New York City Board of Health and the Commissioner of the New York
Department of Health and Mental Hygiene Index no 653584/12 ,decision of 3/11/13. Available at
http://online.wsj.com/public/resources/documents/sodaruling0311.pdf, which concerned a state -wide ban
on selling soda in cups or containers larger than 16 fl oz. Tingling JSC granted an order permanently restraining
the respondents from enforcing the ban on various grounds including the fact that ‘the loopholes in [the] Rule
effectively defeat the stated purpose of the Rule. It is arbitrary and capricious because it applies to some but
47
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back-stop for the ‘legitimate aim’ inquiry, when the loopholes in a particular rule are so extreme,
and the connection between means and ends thus so tenuous as to suggest that the stated purpose
is not in fact the true object of the measure,52 and (b) if a rule really is not effective to achieve the
stated aim, and that aim is genuine, then by striking down the rule the court is in fact assisting,
rather than infringing the discretion of the decision-maker.
Common Law Rationality Review
As for suitability in the common law context, as Dyson LJ noted, giving the judgment of the court in
the British Civilian Internees case,53 ‘[j]ust as in satisfying the requirements of proportionality, so too
in meeting the Wednesbury test, the measures designed to further the objective must be rationally
connected to it’.54 Small wonder, then, that the court also concluded that ‘in some cases it is not
possible to see any daylight between’ the Wednesbury approach and proportionality, and that it was
‘difficult’ to see ‘what justification there now is for retaining the Wednesbury test’.55 Certainly, it is
highly unlikely that a measure found to fail the very stringent suitability requirements of
proportionality identified above would nevertheless be held to be rational under Wednesbury.
Indeed, although it is usually assumed that proportionality review is more intensive than common
law rationality review under Wednesbury, in fact on the question of rational connection the common
law has sometimes taken a more stringent approach than that of Quila and Bank Mellat. For
example, R (Wandsworth London Borough Council) v Schools Adjudicator56 concerned the question of
partial selection on the basis of academic ability by three schools in the borough of Wandsworth.
Parents of children in the area complained about this policy of partial selection on the basis that in
their view it had an adverse effect on their local school, (BTC), by creating over time a hierarchy of
not all food establishments in the City, it excludes other beverages that have significantly higher
concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the
Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule’
52
Thus, for example, in the EU, if a Member State seeks to ban the import of a particular product from another
Member State while permitting a lawful domestic trade in the same product, this is held to constitute a ‘means
of arbitrary discrimination or a disguised restriction on trade between the Member States; the loopholes in the
stated purpose are so large that the suspicion is raised that another purpose is in fact operating (see, for
example, Case 121/85 Conegate Ltd v Her Majesty’s Customs and Excise [1986] ECR 1017 and Case34/79 R v
Henn and Darby [1979] ECR 3795. Of course the presence of such discrimination would mean that the
measure would also be held to be unnecessary, and this too could perform the backstop function, but as noted
above, not all forms of under-inclusiveness do demonstrate such a lack of necessity and thus in other instances
while suitability remains limited there may be no backstop. For example, in Quila it is not impossible that the
overall ineffectiveness of the rules may have caused the Supreme Court to question whether in fact the rules
were about preventing forced marriages, or simply about reducing immigration numbers.
53
Above n 2.
54
Ibid at [40].
55
Ibid at [35].
56
[2003] EWHC 2969 (Admin), [2004] ELR 274.
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schools with BTC perceived to be at the bottom. This in turn meant that BTC was undersubscribed
and thus forced to take a higher proportion of ‘hard to teach children’ than any other school in the
borough. If the schools in the area as a whole were to be forced to recruit a more balanced intake,
the parents argued, this would result in a more balanced intake for BTC because there would be
more top ability children available to attend BTC. This would in turn improve its standards.
In response to these objections, the Schools Adjudicator found that in fact the intake of one of the
three schools, EBC, was not in fact particularly out of line with that of BTC. This meant that EBC at
least did not therefore have a significant imbalance in favour of high ability children, so that forcing
it to replace its policy of academic selection with one of fair banding ‘would not make any significant
difference’.57 Nevertheless, overall he concluded that although the three schools should be allowed
to retain partial selection by ability, the proportions of children so admitted should be reduced. This
meant in EBC’s case that there would be a reduction of selective places for 6 pupils.
Reviewing the decision, Goldring J held that once the defendant had decided that EBC’s intake was
already similar to that of BTC ‘it made it difficult rationally to justify any interference with it.’ This in
turn meant that ‘the remedy chosen was not rationally capable of correcting the unfairness. The
possible indirect addition to BTC of a few pupils as a result of changing the intake to EBC is itself
highly speculative … [and] could not make any meaningful contribution to the standards at BTC’58
(emphasis added). Thus in relation to EBC the Schools Adjudicator’s decision was flawed. This is not,
it should be noted, a conclusion that the Adjudicator’s decision would have no impact on BTC. In
other words, in the terms of the test applied in Quila and Bank Mellat, the possible indirect addition
of a few pupils to BTC certainly had ‘not nothing’ to do with raising the standards at BTC, and would
therefore have passed the suitability test as it is currently interpreted under the heading of
proportionality. Nevertheless, for Goldring J it was not sufficient to survive rationality review.
The same can be said of R (Law Society) v Legal Services Commission.59 This case dealt with the
competitive process used for public procurement of contracts to provide publicly funded family law
services in England and Wales. The overall aim of the procurement was to increase the availability of
a variety of integrated services cutting across different legal disciplines in order to respond to
families suffering ‘clusters’ of problems relating to family breakdown; issues of contact or residence,
money disputes, domestic abuse, etc. The idea was to increase the proportion of providers offering
the full range and breadth of family work; to ensure that clients would be able to reach an
57
Ibid, paras [29]-[30] and [41]-[2].
Ibid at [73].
59
[2010] EWHC Admin 2550.
58
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appropriate service either locally or through reasonable travel, and to award contracts only to
providers meeting quality thresholds to safeguard the quality of advice.60 The problem arose
because the Legal Services Commission (LSC) included in its criteria for bidding that in order to
achieve a maximum score in the bidding process, providers must be able to show that at the time of
their bids, at least one caseworker was accredited under two different panel accreditation schemes.
The system was designed to assess experience, knowledge and commitment in areas of family law to
which the LSC wished to give priority,61 but the difficulty was that the providers were not informed
of the accreditation requirements in sufficient time to acquire the accreditation before submitting
bids, and the resulting lack of accreditation frequently made the difference for providers between
obtaining a contract and not doing so.62. It was not disputed that a large number of those who failed
could have acquired accreditation if they had known sooner that it was required. The result was
that, while the LSC itself had expected ‘the great majority of existing providers to retain a
contractual right to provide family law services’ under the new procurement process, with at most a
20-30% drop in the number of providers, in fact the effect of the criterion was to reduce the number
of providers by 46%, thereby undermining the LSC’s own aim of making good services more widely
available.63 The Law Society thus challenged the process adopted by the LSC on the basis that, inter
alia, it had no rational connection to the aim which the LSC had sought to achieve.64 Beatson and
Moses LJ upheld this argument on the basis that
[t]he more existing providers able to demonstrate the excellence of their qualities, the
greater the chance that the LSC could achieve its objective. Depriving providers of the
opportunity not of claiming but achieving accreditation impedes those objectives. It is
irrational because it unfairly and arbitrarily reduces the number of those who would
otherwise have been awarded maximum points. If those who gain maximum points are, as
we are prepared to accept for the purposes of this argument, those who are best able to
provide the services needed, there is no reason to reduce their number by failing to explain
the importance of accreditation on both the specified panels, and give an opportunity for
such accreditation. Such a reduction merely diminishes the pool of those with accredited
knowledge, commitment and experience.65
The LSC thus
60
Ibid at [33] citing the consultation document of October 2008 produced by the Legal Services Commission.
Ibid at [9].
62
Ibid at [12].
63
Ibid at [4] onwards.
64
Ibid at [7].
65
Ibid at [96].
61
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Deprived itself of the opportunity to identify the best qualified firms according to external
judgment. Had it been able to do so there would have been… an opportunity to.. award far
more contracts than proved to be the case. The result was that the process adopted could
not rationally achieve the aim for which it was designed, namely the identification of those
best qualified to provide the services. The LSC diminished the pool of those who could, by
accreditation, have demonstrated their knowledge, commitment and experience. In short,
the LSC defeated its own ends.
Here again, just as in Wandsworth, although the court was considering rationality rather than
proportionality review, it nevertheless performed precisely the same kind of suitability analysis, and
indeed Beatson and Moses LJ concluded that if the issue of proportionality was ‘justiciable in public
law proceedings’ they would ‘tentatively suggest that it is inevitable that the announcement in the
consultation document of what was proposed, or the timing of the actual announcement, was
neither proportionate nor transparent’.66 Nonetheless, the intensity of the suitability test here is, if
anything, again more stringent than that applicable under proportionality according to Quila and
Bank Mellat, since again it would be hard to argue that there was ‘nothing’ to relate the requirement
of existing dual panel accreditation to the stated aim of increasing the quality of service provision,
and if there was ‘not nothing’ in the area of overlap, then it would presumably be suitable under the
Quila and Bank Mellat tests.
It is also worth noting that in terms of subject matter, while proportionality now seems to confine
the unsuitability enquiry to examining the existence of a rational connection, ‘arbitrary and
capricious’ forms of underinclusiveness67 presumably would fall within Wednesbury
unreasonableness or rationality review.68
Of course there are various other differences between the cases discussed here. Quila and Bank
Mellat are Supreme Court judgments while Wandsworth and the Law Society case are only decisions
66
Ibid at [108].
See, eg, the decision of the New York State Supreme Court in New York Statewide Coalition of Hispanic
Chambers of Commerce, The American Beverage Association and others v New York City Department of Health
and Mental Hygiene, the New York City Board of Health and the Commissioner of the New York Department of
Health and Mental Hygiene Index no 653584/12 ,decision of 3/11/13. Available at
http://online.wsj.com/public/resources/documents/sodaruling0311.pdf, which concerned a state -wide ban
on selling soda in cups or containers larger than 16 fl oz. Tingling JSC granted an order permanently restraining
the respondents from enforcing the ban on various grounds including the fact that ‘the loopholes in [the] Rule
effectively defeat the stated purpose of the Rule. It is arbitrary and capricious because it applies to some but
not all food establishments in the City, it excludes other beverages that have significantly higher
concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the
Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule’
68
The difference between the two approaches in terms of the scope of subject matter covered will be
discussed in more detail below.
67
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of the High Court; the entity under review in Quila and Bank Mellat was the government, as opposed
to the Schools Adjudicator in Wandsworth and the Legal Services Commission in the Law Society
case, and in Quila and Bank Mellat the decision was ultimately held to be disproportionate on other
grounds (as discussed below), while in Wandsworth at least, irrational unsuitability was the only
issue.69 Nonetheless, it remains the case that as far as suitability is concerned, there is no reason to
suppose that review under Wednesbury is less intrusive either in terms of the subject matter
covered, or the intensity with which that review is conducted. The discussion of the bifurcation
between proportionality and rationality is therefore clearly tangential to consideration of the two
key issues outlined above, namely what is being reviewed and how stringently that review is taking
place.
Suitability and the two key issues of subject matter and intensity of review
Once we focus on these two key issues, rather than on whether the review is done as proportionality
or as irrationality, it becomes clear that suitability review can be undertaken in various ways.
In terms of the subject matter of review, all four cases investigate whether or not there is a rational
connection between the end sought and the means adopted.
As far as the intensity of review is concerned, however, it is clear that in relation to the first axis of
variability, the definition of the test, there is a large variation which can lead to differing results.
Bank Mellat and Quila are at the least intrusive end of the spectrum, since the existence of any
overlap at all between means and ends in those cases was thought sufficient to satisfy the test,
whereas Wandsworth operates the different test of asking whether the overlap is ‘meaningful’ or
‘more than speculative’, a test which the facts of both Quila and Bank Mellat seemed likely to fail.70
The LSC case, by contrast, focused essentially on whether the rule at issue did more harm than good,
a test which would clearly have been failed by the rule at issue in Quila.71
In terms of the second axis of variability, all four cases exhibit a degree of deference towards the
initial decision-makers’ assessment of the facts. Thus even in the Law Society case the court in the
quote above was ‘prepared to accept for the purposes of the argument’ that those who had dual
panel accreditation were indeed those best able to provide the services needed; similarly, in
Wandsworth, Goldring J wholly accepted the adjudicator’s assessment of the intake of EBC and the
69
The Law Society did also allege that the LSC’s process was discriminatory and unfair, ibid at [7].
Note, for example, that in Bank Mellat the approach was described as ‘precautionary’, which is a less
perjorative and more positive form of ‘speculative’ (above n 46). In Quila the Supreme Court was persuaded
that some forced marriages might be deterred by the rule at issue, above n 43.
71
See above n 44.
70
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likely outcome of the proposed changes, and in both Bank Mellat and Quila the Supreme Court was
clearly unwilling to assess the facts for itself, rather than simply accepting the government’s
assessment of them.
As far as the third axis is concerned, however, all four cases demonstrate a fairly detailed
engagement with the evidence and arguments presented by the parties, which is perhaps inevitable
once the courts become involved in issues of this kind, whether they do so under the heading of
rationality or proportionality review. As for the fourth axis, the cases provide a good illustration of
why the courts should take a consistent approach to the manner in which the question is framed.
For example, if in Quila the court had asked, not what the effects of the rule were overall, but
whether there was a rational connection on the facts of the particular cases at issue, then of course
there was no such connection. Similarly, in the Law Society case, if the court had focused only on
the question of improving the quality of service provision, rather than looking also at whether the
services would become more widely available, then again a different conclusion could have been
reached.
Given the range of different approaches and the resulting differences in conclusion which could have
been adopted across the four cases, what is crucial is thus not whether this form of review is
described as rationality or proportionality review, but the manner in which the choices between
those different options are made. It is relatively straightforward, for example, to understand why in
Bank Mellat the Court might have wanted to take a relatively deferential approach to the test used
to assess the suitability of the policy, since the case involved the central government’s attempts to
frustrate the Iranian nuclear weapons programme, although as noted above the House of Lords in A
had apparently been prepared to take a more stringent approach even in the context of terrorism.72
Conversely, it is equally easy to see why in the Law Society case the court was prepared to take a
more stringent approach, since that case did not concern the inherent merits of the dual panel
accreditation criterion, but simply the question of whether or not the applicants had been given
enough notice that the criterion would be applied. By contrast, however, it is more difficult to see
why a particularly deferential approach was necessary in Quila, as compared with the Wandsworth
decision, other than the fact that in Quila the defendant was the Home Secretary, who might be
thought to be more democratically accountable than the Schools Adjudicator. Certainly there is no
open discussion of the question in the cases. And as noted above, it is also difficult to see why
under-inclusiveness should have been excluded from the subject matter of the suitability enquiry. It
72
Above n 35.
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is therefore these matters which need more careful articulation and analysis, rather than the
heading under which the review is performed.
Necessity
In Bank Mellat, Lord Sumption cited the necessity test as being ‘whether a less intrusive measure
could have been used’.73 It is therefore sometimes interpreted in terms of subject matter as a test of
Pareto optimality,74 or Kaldor-Hicks efficiency75 or of relative proportionality,76 each of which
requires the court to compare the norm used with potential alternatives. From this point of view the
sledgehammer/nut question goes to necessity rather than to proportionality in the ‘fair balance’
sense.
Proportionality Review
The approach taken by Lord Sumption in Bank Mellat is similar77 to that set out by Lord Clyde in de
Freitas78, applied by Lord Steyn in Daly79 and Dyson LJ in Samaroo80, asking respectively whether ‘the
means used to impair the right or freedom are no more than is necessary to accomplish the
objective’81 and whether ‘the means employed are …the least intrusive… that can be devised in
order to achieve the aim’.82 However, in Clays Lane Housing83 Maurice Kay LJ held that the fact that
in Daly Lord Steyn used the term ‘necessary’ rather than ‘strictly’ or ‘absolutely necessary’, meant
that in some circumstances ‘necessary’ could mean ‘reasonably’ necessary instead. This was
desirable because, he held,
if ‘strict necessity’ were to compel the ‘least intrusive’ alternative, decisions which were
distinctly second best or worse when tested against the performance of a regulator’s
73
Bank Mellat, above n 6 at [20].
A decision is Pareto-optimal if no other distribution could make at least one person better off in terms of
their right-enjoyment without making anyone else worse off. See Goodwin, above n 3 his fn 27, citing Robert
Alexy A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002) at 105 and 398-9 and Wade &
Forsyth, Administrative Law (10th ed, Oxford, 2009).
75
Hickman, ‘The Substance and Structure of Proportionality’, above n 3, fn 63. This approach asks whether
those who would benefit by redistribution would gain more than is lost by those who lose. If they would, then
the redistribution is efficient (since even if the winners were to compensate the losers there would still be a
surplus benefit).
76
Hickman, ‘The Substance and Structure of Proportionality’, above n 3 at 711 onwards.
77
There may appear to be a distinction between examining whether there is a ‘less’ restrictive means which
could have been used and whether or not the means used was the least restrictive, but in fact unless the
means used was the least restrictive available, it will always be possible to find a less restrictive means than
that chosen, and thus the two tests ultimately ask the same question.
78
De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (1999) 1 AC 69.
79
Above n 19..
80
Samaroo v Secretary of State for the Home Department (2001) UKHRR 1150.
81
De Freitas, above n 78 at p 80.
82
Ibid at [19]-[20].
83
R (on the application of Clays Lane Housing Cooperative Ltd) v Housing Corp [2005] 1 WLR 2229.
74
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statutory functions would become mandatory. A decision which was fraught with adverse
consequences would have to prevail because it was, perhaps quite marginally, the least
intrusive.84
As Hickman has demonstrated,85 however, these observations leave the necessity test with a
dilemma: if the court forces the decision-maker to adopt the least intrusive solution possible, this
may also be a solution which will not be as effective at achieving the decision-maker’s overall policy
aims.86 Conversely, however, if the court asks instead whether a potentially less intrusive measure
would be equally capable of achieving that specific policy objective, this will essentially make the
enquiry redundant, because the answer will of course be ‘no’.87
In other words, there is an interplay between the first and fourth of the axes of variability identified
above; the more narrowly the test of ‘necessity’ is defined, the greater the temptation for the court
to alter the terms in which the enquiry is framed. Hickman’s solution is that necessity should be
regarded as dealing with ‘relative proportionality’, directing attention to the marginal utility of the
measure taken over the alternative(s), and asking ‘whether it is fair for individuals to bear a more
significant interference with their rights where a less intrusive alternative measure could be taken,
having regard to the added costs that would be entailed in taking that alternative measure (if any).88
This means that here the scale-pan metaphor is apt again; the (policy) pros and (impact) cons of the
measure adopted are placed into one side of the scales and the (reduced impact) pros and (reduced
effectiveness) cons are placed in the other.
But what this effectively does, therefore, is to focus attention on the calibration of those scales.
Hickman himself, although he notes that reintroduction of a reasonableness test would be difficult
to reconcile with the supposed differences between reasonableness and proportionality,89 then
84
Ibid at [25]. This approach was followed in Pascoe v The First Secretary of State (Whose Functions have
Transferred to the Secretary of State for Communities and Local Government [2007] 1 WLR 885
85
Hickman, above n 4 at 702-6.
86
See also the decision of the House of Lords in Huang v Secretary of State for the Home Department [2007]
UKHL 11; [2007] 2 AC 167.
87
See, e.g. Smith v Secretary of State for Trade and Industry [2007] EWHC 1013 (Admin), in which the objective
was defined as being to ensure that the site was I the possession of the London Development Agency by midJune 2007. There was therefore no less restrictive means of achieving this objective than by evicting the
claimant Romany Gypsies and Travellers even though alternative accommodation had not yet been found for
them. See also the judgment of Lord Reed in Bank Mellat, above n 6 at [75], citing Blackmun J’s observation in
Illinois State Board of Elections v Socialist Workers Party (1979) 440 US 173 at 188-189 that ‘a judge would be
unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in
almost any situation, and thereby enable himself to strike legislation down’. Although Lord Reed gave the
dissenting judgment in Bank Mellat, the majority agreed with his assessment of proportionality given at paras
68-76 (Lord Sumption, giving the leading majority judgment, at [20].
88
Above n 85 at 712.
89
Ibid at 710.
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suggests that where there is a ‘significant imbalance between the additional impact of the chosen
measure and the saving to society in not taking the alternative, the state action can be regarded as
disproportionate.90 This in turn sounds as if it is not so very far away from the EU version of the test,
which asks courts to establish whether or not the measure was ‘manifestly inappropriate’.91 Thus,
for example, in Sinclair Collis92 Lord Neuberger held that the issue in the case came ‘down to
deciding whether the Regulations imposing a ban [on machines selling tobacco] are disproportionate
because the Secretary of State failed to consider or adopt an alternative measure, namely a
voluntary code, which would undoubtedly be substantially less onerous, but which would, to put it
at its lowest, quite conceivably be less effective in achieving the aim of the ban.’93 And in these
circumstances, he held, it ‘would be taking the law further than it has been taken by the [European]
Court of Justice if we were to hold that a Government measure infringed proportionality simply
because… the Government reasonably took the view that the alternative would significantly fall
short of the measure in terms of achieving the aim sought to be achieved.’94 It should also be noted
that although this case deals with proportionality under EU law, Lord Neuberger had begun his
analysis by pointing out that ‘there is greater overlap between European Union law and human
rights law in this field than might first appear’, and that it would be surprising if the Regulations at
issue were to violate Article 1 Protocol 1 of the ECHR without also violating article 34 TFEU.95 Laws
LJ, in contrast, dissented because in his view the question of necessity should have been answered
using a more stringent approach.96
The conclusion, then, must be that if the subject matter of the necessity issue is identified as dealing
with a balance between the relative pros and cons of two alternative measures, the first axis of
variable intensity of review, namely the test applied, becomes crucial. For this reason the open
discussion of the level of intensity of test being applied that was demonstrated in Sinclair Collis97 is
strongly to be welcomed.
It is also important to note that two factors in particular will assist the court in conducting the
necessity enquiry in certain cases. First, as Quila demonstrates, where the decision-maker has
apparently not even considered the issue, it will be less likely that the means will be found to be
90
Ibid at 712, emphasis added.
Above n 20.
92
R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] 2 WLR 304.
93
Lord Neuberger, in the majority at [251].
94
Ibid at [252], emphasis added.
95
Ibid at [192]-[3].
96
Ibid at [78]-[81].
97
The question there being the ‘margin of appreciation’ given to the Secretary of State on questions of health
in the context of measures taken to reduce tobacco consumption. Compare, for example, the approach of
Arden LJ at [131]-[8] and [180] and Lord Neuberger at [203]-[214] with that of Laws LJ at [80].
91
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necessary. Thus Lord Wilson concluded that Rule 227 at issue in that case was ‘on any view… a
sledge-hammer but [the Home Secretary] has not attempted to identify the size of the nut’.98
Second, as the decisions in Bank Mellat 99and A v Home Secretary100 demonstrate, the necessity
enquiry is very closely connected to the question of discrimination: if the decision-maker has
deemed it unnecessary to use the measure at issue in relation to a different set of comparable
entities without an objective justification for the distinction, it will be fairly straightforward to make
out a claim that the measure at issue was unnecessary.101 Such instances will obviously be less
problematic than more abstract cases such as Smith102 in which the potentially sufficient alternative
measure is posited as a hypothetical by the applicant. However, as Lord Hoffmann noted in A,
although such cases may be easier to decide, they may also lead the courts unwittingly to provide an
undesirable incentive to a decision-maker to make policies more, rather than less extensive, so that
there can be no scope for drawing such comparisons.103 It may therefore ultimately prove necessary
to deal with such measures on the basis of the fair balancing test instead.
Common Law Rationality Review
In Bank Mellat,104 which concerned a legislative form of the proportionality enquiry rather than that
at issue under the HRA,105 there were many references to the ‘overlap’ between rationality and
98
Above n 9 at [58]. Similar reasoning underlay the dissenting judgment of Laws LJ in Sinclair Collis, above n
92. This also, to some extent, adds an important dimension to the decisions in Miss Behavin’ Ltd v Belfast City
Council [2008] UKHL 19; [2007] 1 ELR 1420; R (Begum) v Denbigh High School Governors [2006] UKHL 15;
[2007] 1 AC 100, concerning the role be played by the decision maker’s own assessment of the human rights
issue.
99
Above n 6.
100
Above n 32.
101
Thus in Bank Mellat, above n 6, only the applicant bank was the subject of an order forbidding the UK
financial sector from transacting with it, despite the fact that other Iranian banks were in a similar position in
terms of their potential connection to Iran’s nuclear weapons programme, (see the judgment of Lord
Sumption at [22], with which Lords Hope, Kerr, Clarke, Carnwath and Baroness Hale agreed). In A the House of
Lords held that if imprisonment of UK nationals was unnecessary, it was hard to make the case for imprisoning
non-nationals in the same circumstances. See Lord Bingham, above n 32 at [35]; Lord Nicholls at [76] and [83],
Lord Hope at [126]-[129] and [132] , Lord Rodger at [186] and Baroness Hale at [228]-[231] and Lord Scott at
[155].
102
Above n 87.
103
A, above n 32 at [97]: ‘others of your Lordships would [allow the appeal] … on the ground that a power of
detention confined to foreigners is irrational and discriminatory. I would prefer not to express a view on this
point… I would not like to give the impression that all that was necessary was to extend the power to United
Kingdom citizens as well’.
104
Above n 6.
105
The question of proportionality was in this case raised by the parent legislation itself, since the power to
impose such restrictions was granted by s 62 of and Schedule 7 to the Counter-Terrorism Act 2008, and
paragraph 9(6) of schedule 7 provides that the requirements imposed by a direction must be proportionate
having regard to the risk to the national interests of the UK. Lord Reed in his dissenting judgment went so far
as to hold that para 9(6) was not concerned with either EU law or the convention but rather had its ‘roots in
the common law’ (at [81]), citing R v Barnsley Metropolitan Borough Council ex p Hook [1976] 1 WLR 1052, but
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proportionality, and the terms were used interchangeably.106 Indeed the proximity between
reasonableness review and ‘manifest inappropriateness’ or ‘significant imbalance’ as discussed
above, is evident. Unsurprisingly, then, several examples of common law necessity review can be
found, which fit perfectly alongside those considered above.
Dad v General Dental Council concerned a dentist whose registration in the dentists’ register had
been suspended for 12 months after he was convicted of various driving offences. He argued that he
regretted his offences and was capable of being rehabilitated and thus the decision to suspend him
should have been postponed to give him chance to prove that he had learned his lesson. The Privy
Council agreed, holding that ‘in the present case, where there is a real possibility of rehabilitation
and there are no other grounds for doubting the dentist’s fitness to practise… the consequences
were so far out of keeping with what was needed that it could reasonably be said that the penalty
was wrong and unjustified.’ Similarly, outside the context of penalty cases107 in R v London (North)
Industrial Tribunal, ex p Associated Newspapers Ltd [1998] ICR 1212 the Court held that a reporting
restriction order should go no further than what was necessary. Although the judgment as to what is
necessary was held to be something ‘at least in the first instance’ for the tribunal, with which the
court would ‘only interfere on the usual principles of judicial review’, nevertheless the court
ultimately held that the tribunal should be ‘at pains to see if it is not possible to limit the scope of
the restricted reporting order to those directly involved in the alleged incidents of sexual
misconduct’. The order should not therefore, the court concluded, have included the allegations
made against the London borough chief executive for failing to act in the light of the sexual
misconduct allegations.
As in Quila, a failure by the decision-maker even to consider alternatives will make the finding of
irrationality easier, as was demonstrated both by the Industrial Tribunal case and by R (Yumsak) v
Enfield London Borough Council.108 In this case the claimant, despite her objections to moving to
Birmingham, was given bed and breakfast accommodation there which was described in undisputed
evidence by the claimant as being in ‘an appalling state of repair’. Maurice Kay J held that he was
‘mindful that cases in which local housing authorities have been successfully challenged have been
described as ‘exceptional’ and that those who seek to challenge them have to surmount a high
hurdle.’ Nevertheless he concluded that ‘it was Wednesbury unreasonable of the London Borough of
Enfield to seek to discharge its statutory obligations by providing the claimant and her children with
Lord Sumption giving the leading majority judgment, stopped short of endorsing this (agreeing with
paragraphs [68]-[76] of Lord Reed’s judgment, but not paragraphs [79]-[82] (above n 6 at [20].
106
See, e.g. Lord Sumption, ibid at [20], Lord Dyson, ibid, at [200].
107
On which see also the famous ex p Hook, above n 105.
108
[2002] EWHC 280 (Admin).
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the accommodation’ in Birmingham, and that there was ‘no evidence that there was no suitable and
cost-effective alternative temporary accommodation in or closer to Enfield’.109
It is true, by contrast, that in R (Corner House Research) v Director of the Serious Fraud Office110 the
House of Lords held that the question was not ‘whether no alternative course was open to the
decision-maker’ but rather ‘whether, in deciding that the public interest in pursuing an important
investigation into alleged bribery was outweighed by the public interest in protecting the lives of
British citizens, the Director made a decision outside the lawful bounds of the discretion entrusted
to him by Parliament.’ But these statements in fact still fit perfectly with the analysis conducted
here. In Cornerhouse at paragraph 40 of the judgment the Court itself examined the proposed
alternatives and found them ‘untenable on the facts’. The mere existence of a proposed alternative
is not sufficient for any version of the necessity test, and thus the test is rarely or never ‘whether no
alternative course was open to the decision-maker’. There is nothing, therefore, about Cornerhouse
which is alien to or inconsistent with the necessity test. However, as discussed above, what is
therefore crucial is the calibration of the scales used to do the balancing. How readily will the court
find that the pros and cons of the proposed alternative outweigh those of the method adopted?
When the alternative presents even a slight improvement? Or only when the method used is
‘manifestly’ the wrong choice? Given that in Corner House the Court was hardly well placed as a
matter of expertise to assess the significance of the Saudi threat to withhold intelligence, nor to be
held democratically accountable for such a sensitive decision about the justice and security of the
nation, it is hardly surprising that their Lordships took a deferential approach, although the Court in
fact also suggested that it agreed with the Director’s decision.111 What is perhaps more problematic
is that this structured approach to the reasoning was not as transparent as it could have been.
‘Whether the Director made a decision outside the lawful bounds of the discretion entrusted to him
by Parliament’ is not a particularly specific or articulate test to apply. What in fact the Court was
evidently doing112 was holding that in such a case a very significant imbalance indeed would be
required before the scales would tip against the Director’s decision, and leaving to the defendants
the task of defining and weighting the considerations to be put on either side of the scales. In the
circumstances, as a result, the gains to the integrity of the criminal justice system, given the
attendant loss of Saudi intelligence cooperation, were not sufficient for the scales to tip against the
Director. But none of these issues were outlined with quite this degree of specificity, as they might
have been had the necessity test been applied directly.
109
Ibid at [32].
[2008] UKHL 60, [2009] 1 AC 756.
111
Ibid at [42].
112
Again, see paras [40]-[42].
110
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Necessity and the two key issues of subject matter and intensity of review
Here again, therefore, the conclusion must be that it is not the label of proportionality or rationality
which is important. What matters is how the subject matter of the test is defined, and how
intensively that test is then performed across the four axes of variability, and the clarity of the
courts’ discussion of these issues.
At present, however, the precise substance of the general test for necessity is not yet clear from the
existing case law.113 This in turn may mean that other cases are not analysed as clearly as they might
be. For example, in R (Baiai) v Secretary of State for the Home Department,114 another case on
immigration rules and the ability to marry, the court pointed out that the facts could not be ‘aptly
analysed in terms of striking a fair balance’.115 This was hardly surprising because the question at
issue was whether the legislative scheme prevented genuine marriages rather than just marriages of
convenience,116 in other words, whether it went further than was necessary. But the choice between
these options, and the existence of the clearly more appropriate question of necessity was evidently
not apparent to the court, which therefore struggled instead to fit the necessity question into the
test for fair balance.
As regards the intensity of review, it is vital to pay attention to the calibration of the scales used to
conduct that balancing process. It is evident that a range of options are possible here, although in
fact it is difficult to find examples of particularly intensive review in either the proportionality or
rationality contexts. Probably the most intense version of the test comes from Quila, but even here
the finding of necessity was simplified by the fact that there was simply no suggestion that any
attention had been paid at all to the question by the minister. Similarly there was no reference to
‘manifest’ necessity in Bank Mellat, but in that case there was an issue of discrimination or
differential treatment which suggested that the measure was unnecessary where it was applied.
In any case the key point is that the reason for adopting a particular calibration point must be clearly
articulated, as in fact it was in Sinclair Collis.
As far as the second axis of variability is concerned, again it is clear that the courts can take a variety
of approaches to allocating responsibility for defining and weighting the factors to be put into the
balance. In a case such as Corner House the Court is unlikely to question the decision-maker’s
assessment of the significance of the Saudi threat, or the drawbacks of any other means which might
113
Quila and Bank Mellat, as discussed above, concern the slightly different issues of complete failure to
consider necessity and comparative lack of necessity respectively.
114
[2009] 1 AC 287.
115
Ibid at [24].
116
Ibid.
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have been adopted instead.117 At the other end of the spectrum, in Dad, the Court seems largely to
assess for itself the chances of rehabilitation and the potential drawbacks of postponing the dentist’s
suspension from the register. Here again, it is important for the courts to be aware that this is a
choice, and to articulate as clearly as possible the reasons why one approach is being taken rather
than another in a particular case.
Finally, as noted above, given the detailed nature of the question it is probably inevitable that the
court will need to scrutinise the evidence closely, whether it does so as a matter of proportionality
or rationality review. The particular dangers in necessity of defining the issues in one way rather
than another, and the best means for avoiding this hazard have already been outlined.
Fair Balance
This brings us to the third, and probably most controversial of the three proportionality questions;
proportionality stricto sensu or fair balance.
Proportionality Review
Perhaps inevitably, instances of the fair balance test forming the basis for reported proportionality
decisions appear to be rarer than instances of necessity or suitability, not least because if a
sledgehammer has been used to crack a nut then, as noted above, the issue may more naturally fall
to be dealt with by the question of necessity. Nevertheless, one example is AXA General Insurance v
HM Advocate.118This case concerned legislation passed by the Scottish Parliament119 to reverse the
conclusion of case law120 that asymptomatic pleural plaques did not constitute injury capable of
giving rise to a damages claim.121 The legislation stated in ss 1 and 2 that it was to be treated as
always having had effect, and it was challenged by a group of insurers on the basis that it violated
Article 1 Protocol 1 of the ECHR and was thus outside the legislative competence of the Scottish
Parliament. Lords Reed and Hope held that the question was ‘whether the insurance industry which
the appellants represent is being called upon to bear a disproportionate and excessive burden’,122
Lord Hope concluding that they were not, first because liability would only arise when exposure to
asbestos had been caused by the employer’s negligence and second because it was in the nature of
insurance contracts that the nature, number and value of claims under them would be
117
Although, as noted above, it did to some extent consider this issue in paragraph [40], above n 112.
Axa General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46.
119
The Damages (Asbestos-related Conditions) (Scotland) Act 2009.
120
Grieves v FT Everard & Sons Ltd, Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 3, [2008] 1 AC 281.
121
The conclusion was based on the fact that while the presence of such plaques would indicate that a person
had had significant exposure to asbestos which might leave him/her at risk of mesothelioma and other
asbestos-related illness in the future, the plaques themselves did not lead to any such illness or have any other
implications for the person’s physical well-being and thus did not constitute actionable damage.
122
Above n 118, Lord Hope JSC at [36], Lord Reed JSC at [126].
118
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unpredictable. Lord Brown, however, preferred to point out that a wide margin of appreciation was
usually given to democratically elected bodies determining the public interest by reference to
political, economic and social considerations under A1P1. Given that the question to be asked was
therefore whether the legislation was ‘manifestly without reasonable justification’ rather than
whether it was justified on ‘compelling grounds of public interest’, he regarded it as proportionate
under A1P1 for this reason, rather than because insurance was an inevitably risky business.123 Lord
Reed agreed,124 similarly pointing out the variations in the intensity of proportionality review based
on the particular circumstances, including the fact that, as in the present case the issue lies within
the field of social or economic policy.125 AXA is therefore a good example of the kind of articulacy
associated with proportionality review, at least in relation to the first axis of variability. The court
outlined the subject-matter content of the ‘fair balance’ test (whether the claimants were being
called upon to bear a ‘disproportionate and excessive burden’); the context of the case and its
implications for intensity of review (the political, social and economic context suggesting that the
court should be slower to intervene) and then the precise calibration point for the scales to be used
in the case (‘manifestly without reasonable justification’ rather than ‘compelling grounds of public
interest’).
A similar approach can be seen in Arden LJ’s judgment in R (on the application of Ponting) v
Governor of Whitemoor Prison.126 This case was brought by a prisoner who, as a result of dyslexia,
needed access to a computer in order to prepare four civil actions he was bringing against different
entities. He was provided with a computer but under limited circumstances, including the fact that
he would only have access to it for limited, specified periods, and he brought an action challenging
these limitations on the basis that they violated his Art 6 rights under the ECHR. A majority of the
Court of Appeal dismissed Ponting’s appeal127 on the basis that the interference with his rights was
not disproportionate. Arden LJ (with whom in his own judgment Schiemann LJ agreed)128 held that,
unusually, the evidence was not ‘clear cut’ enough for a satisfactory application of the test of
necessity, and thus she moved instead to considering the question whether a fair balance had been
struck.129 Normally, she noted,
123
Ibid at [83].
As did Lords Mance, Kerr, Clarke and Dyson JJSC.
125
Ibid at [131], citing Lord Hope in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326 at 381.
126
[2002] EWCA Civ 224.
127
Schiemann and Arden LJJ dismissed the appeal, Clarke LJ dissented on the basis that the prison Governor
had not given enough in the way of specific reasons or explanation of why Ponting was only allowed to use the
computer at particular times.
128
In giving his own judgment at [36] Schiemann LJ agreed with Arden LJ’s decision.
129
Above n 126 at [111].
124
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in questions related to the right of access to court the court can apply a more intense level
of scrutiny because the matter falls within the field of its expertise. But this is an unusual
case because, while the case concerns the right of access of court, it is not wholly within the
court's expertise in this instance whether the right has been violated or whether any
violation is justified: expertise in running prisons is also involved.
In terms of the test then applied, however, Arden LJ referred both to whether Ponting’s access to a
computer was sufficient to meet his ‘reasonable needs’ (yes) and whether or not he would be
‘materially prejudiced’ by the limitations (no), neither of which seems particularly onerous for the
claimant to satisfy. Nevertheless, overall Arden LJ’s judgment in Ponting, like AXA, is a good
illustration of the articulacy associated with proportionality review, outlining the content of the fair
balance test (whether the burden on Ponting was too great considering the competing
considerations of prison resources and security); the considerations to be taken into account in
calibrating the scales (relative expertise in running prisons as well as relative expertise on the
question of access to a court) and then the particular calibration points for the scales (sufficient for
reasonable needs and the question of material prejudice).
Common Law Rationality Review
It is clear from cases such as R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd130
that the concept of fair balance can equally be found in common law rationality review, and in ex p
Pegasus Holdings131 Schiemann J (as he then was) went as far as to hold that
It would, perhaps, be difficult for anyone appearing for the Government to take issue on the
principle of proportionality being applied by administrative authorities, bearing in mind
Recommendation No. R(80)2 of the Committee of Ministers Concerning the Exercise of
Discretionary Powers by Administrative Authorities that was adopted by the Committee of
Ministers of the Council of Europe on 11 March 1980 and that recommends governments of
member states to be guided in their law and administrative practice by the principles
annexed to that recommendation, one of which basic principles is that an administrative
authority when exercising a discretionary power should maintain a proper balance between
any adverse effects that its decision may have on the rights, liberties or interests of persons
and the purpose that it pursues.
Nevertheless, here too, instances of fair balance forming the basis of common law rationality review
are relatively rare, again almost certainly because decisions which are inherently disproportionate
130
131
[1999] 2 AC 418.
R v Secretary of State for Transport ex p Pegasus Holdings (London) [1988] 1 WLR 990.
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may well also be unnecessary or unreasonable in another sense. One such instance, however, is the
decision in R v O’Kane and Clarke, ex p Northern Bank Ltd.132 In this case the Northern Bank Ltd
received 13 notices under s 20(3) of the Taxes Management Act 1970 from senior inspectors in
specialist offices of the Revenue requiring it to deliver or make available certain information. Each
notice related to a named person whom the Revenue believed to be or to have been a customer of
the bank. The bank had become so concerned at the frequency with which it received such notices,
their extremely wide terms, and the burden that they imposed on the bank in consequence, that it
challenged their validity. The bank argued in particular that the notices were unfair and irrational
because each notice extended to every conceivable document which the bank had in relation to the
particular taxpayer and his associates, regardless of the fact that the inspectors in fact had little or
no interest in substantial parts of the material which had to be produced by the bank in response to
each notice. Although that this might be thought in some ways to raise the issue of necessity more
obviously than that of fair balance,133 the court upheld the challenge both on the basis that s 20(3)
did not permit a notice to be given in respect of conjectural, as distinct from actual documents, and
because the notices were ‘grossly oppressive and unfair and thus ‘irrational’ within the meaning of
that term in the field of judicial review.’134 In formulating the notices ‘the inspectors concerned
appear[ed] to have had no regard to the burden thereby imposed on the recipients, or to the
proportionality of that burden and the benefit which is sought to be achieved’. Interestingly, this
conclusion again suggests that however difficult a test may be to apply when reviewing a balance
struck by the decision-maker, it becomes very much easier to apply when the decision-maker has
not considered the issue.135
Fair Balance and the two key issues of subject matter and intensity of review
Here again, then, although the instances of fair balance are rarer, and thus there is less evidence to
compare, it still appears that it is not the distinction between proportionality and common law
rationality review which affects the intensity with which that review is performed. Thus in terms of
the calibration point for the test, although the ‘reasonable needs’ and ‘manifest prejudice’ tests in
Ponting are more intense than the question whether the notices were ‘grossly oppressive’ in O’Kane,
arguably the ‘manifestly without reasonable justification’ test from AXA is not. The articulacy with
which the calibration exercise is performed is greater in both AXA and Ponting, but it appears to be
the particular factors in favour of or against deference in each of the cases which ultimately dictates
132
[1996] STC 1249.
And indeed at 1269 f-h Ferris J did examine what other possibilities might have been open to the Revenue,
although he also left open the question whether these alternatives would have been ‘practicable’.
134
Ferris J, ibid at 1269j.
135
Cf the discussion of necessity, text to n 98 above.
133
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the calibration point chosen by the courts.136 In terms of the second axis of variability, it is clear from
AXA and Ponting that where the decision-maker has attempted to assign weights to the different
factors to be considered, a fair degree of deference can be given to those weightings, albeit that less
deference is, as noted, required in a case such as O’Kane where no such attempt has been made. As
with the other proportionality issues, the degree of scrutiny given to the evidence is likely to be high
given the detailed nature of the question, and, as with the test of necessity, the process of
comparing the means and the ends means that attention must be given to the precise way in which
they are defined, since this will inevitably affect the balance that is struck.
Wednesbury and Proportionality: what matters is the structure and articulacy of
review
The conclusion must be, therefore, that as noted at the outset, the debate over the ‘bifurcation’ of
Wednesbury and proportionality is beside the point. It is clearly the subject matter of the cases
rather than whether they fall under a proportionality or common law heading which affects the
intensity of review. And regardless of one’s initial point of view in the debate, it is difficult to argue
against a desire in all cases for greater articulacy by the courts of the four axes of variability and the
factors affecting them. It does seem likely that a merging of Wednesbury and proportionality and
thus use of the same questions across the board might help in this regard, but whatever the merits
of merging or separating the two doctrines in general terms, it should be noted that there are two
matters which do require separate consideration.
Proportionality and rationality review: Two key distinctions
Review under the Human Rights Act 1998
In keeping with the conclusion that it is the subject matter of the different cases which really drives
the operation of the three proportionality tests and their equivalents in common law rationality
review, it is important to note that none of the discussion so far has been intended to suggest that
review under the Human Rights Act 1998 is the same as common law substantive review. On the
contrary, there are three differences between the two. First, even if the proportionality issues were
to be discussed openly across the board, a more intense form of proportionality would automatically
136
The political, social and economic context in which A1P1 was considered in AXA, above n 118; the relative
expertise of the court and the Prison Governor in Ponting on the questions of access to court and security in
prisons respectively, above n 126, and the fact that the Revenue had failed even to consider the
proportionality of the burden placed on the bank compared to the irrelevance of large amounts of the
information thereby produced in O’Kane, above n 132.
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be involved in HRA cases.137 Second, as noted above, the process of decision-making is of course
relevant in HRA cases; if the decision-maker has struck a balance of its own this will be examined by
the court, and conversely if the decision-maker has failed even to attempt to strike such a balance
this will increase the chances that the reviewing court will find the decision to be
disproportionate.138 Nevertheless, the courts in HRA cases begin with the substance of the decision
and the question whether the right balance has been struck, whereas in non-HRA cases substantive
review is a last resort, to be used when no other flaw can be found in the decision-making
process.139 And third, in human rights cases the government has the burden of proving in its defence
that the rights-breaching decision was justified. Whether or not proportionality and common law
rationality review were thus to merge across substantive review more generally, review under the
HRA would still remain distinct in these three ways. The distinction, however, arises directly from the
different nature of the subject matter, not from the difference between proportionality and
common law rationality review.
Proportionality does less than Wednesbury review
Objections to the merging of proportionality and common law rationality review often focus on the
potentially more intensive nature of proportionality review and the possibility that it will thus do
more than common law rationality review. On the contrary, the discussion above has attempted to
demonstrate that in fact they do generally the same things, and that the intensity of review across
the four axes of variability does and should vary with the subject matter at issue, rather than with
the heading under which that review is performed. This section, however, deals with the fact that
proportionality may in fact cover less ground than Wednesbury. Under this heading fall Hickman’s
and Taggart’s arguments that in a non-rights context the ‘rights motor’ for proportionality is missing;
137
Above ns 19. See also Craig, ‘Proportionality, Rationality and Review’, above n 3 at 291. See also 292-3 and
see Hickman, ‘The Substance and Structure of Public Law after the Human Rights Act’, above n 3 at 293,
responding to Hunt’s argument that variable intensity review is applicable even in rights cases, see further M
Hunt, ‘Against Bifurcation’ in D Dyzenhaus M Hunt and G Huscroft (eds) A Simple Common Lawyer, Essays in
Honour of Mike Taggart (Oxford, Hart, 2009) Ch. 6 at 107. For an argument that there should be a minimum
threshold of intensity for human rights cases, see C Chan, ‘Proportionality and invariable baseline intensity of
review’ (2013) 33 Legal Studies 1.
138
See above, text to ns 98 and 135.
139
Contrast, eg Miss Behavin’ Ltd v Belfast City Council [2008] UKHL 19; [2007] 1 ELR 1420; R (Begum) v
Denbigh High School Governors [2006] UKHL 15; [2007] 1 AC 100 from the HRA context with the decision on
legitimate expectations in R (Bibi) v. Newham LBC [2002] 1 WLR 237, in which the court held that rather than
opt immediately for the use of proportionality to test the substantive outcome, the decision could instead be
remitted to the original decision-maker requiring them to take the legitimate expectation into account. This
point also answers Goodwin’s concern, above n 3 at 449 that Wednesbury is a residual category to be applied
at the end of the court’s review, whereas proportionality is a methodology that the reviewing court starts
with; in HRA cases this would indeed be so, outside HRA cases substantive review, whether through
(un)reasonableness or proportionality would still be a last resort, and this difference is desirable in maintain
the distinctiveness of HRA review.
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that without any rights to anchor the analysis the multi-step proportionality test is awkward, and
that some decisions cannot be reduced to a means/ends calculation and are thus not suitable for
proportionality review.140
It has been established that the substance of the proportionality inquiry deals with three or four
specific issues; whether there is any overlap between the impact of the rule and the problem to be
addressed; whether the rule is undermined by loopholes; whether a less restrictive means could
have been used to achieve the same end, and whether, overall, the benefit derived from the rule is
simply outweighed by the cost. The problem is that many of the cases currently dealt with as cases
of irrationality or unreasonableness more generally do not fit easily into these categories.141
One example of course concerns the non-discriminatory forms of underinclusiveness, discussed
above.142 If indeed such forms of under-inclusiveness are ‘abritrary and capricious’143 this suggests
that they might well be irrational, and yet, at least at present, they would not fit into any of the
branches of the proportionality inquiry. In addition, Daly in particular has identified a series of nonexhaustive ‘indicia of unreasonableness’,144 or reasons why particular decisions have been found to
be unreasonable or irrational in the decisions of the House of Lords, Supreme Court of Canada and
US Supreme Court. Some of these fit easily into the proportionality substance as identified above.145
However, other indicia he identifies cannot so easily be accommodated within the specific
substantive issues addressed by a proportionality inquiry. In Zenner v Prince Edward Island College
of Optometrists,146 for example, the appellant was permitted by the defendant College to resume
the practice of optometry on several conditions, one of which was that he should sit an ethics exam.
The problem was that no such ethics exam was accredited or offered by the College, or prescribed in
its regulations. The decision in Zenner is certainly unreasonable, therefore, but it is difficult to see
how it could be accommodated by the substance of proportionality. The problem is not that there is
no overlap between means and ends; it may well have been that the sitting of an ethics exam would
have been of benefit to Dr Zenner and his future patients, it is simply that no such exam was
140
Hickman, ‘Problems for Proportionality’, above n 3 at 321, Taggart above n 3 at 472-6. See also Hickman,
Hickman in particular identifies four such examples (‘The Substance and Structure of Public law after the
Human Rights Act’, above n 3 at 285. However, since he gives relatively little detail of these, other examples
will be chosen here to illustrate the point.
142
Ns 50-52 and surrounding text.
143
Above n 51.
144
P Daly, ‘Wednesbury’s Reason and Structure’ (2011) Public Law 238.
145
For example, he identifies disproportionality as being the indicium of unreasonableness considered (though
ultimately rejected) in Canadian Union of Public Employees, Local 301 v Montréal (City). [1997] 1 SCR 793. It
seems very likely that this would fall into the necessity part of the proportionality inquiry as outlined above
and thus this provides further support for the view outlined here that proportionality does the same as, not
more than Wednesbury.
146
[2005] 3 SCR 645.
141
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available. Nor is the problem that the condition contained loopholes or discriminated between Dr
Zenner and other comparable groups.147 Instead the problem was that Dr Zenner could not resume
practice at all since he could not sit the exam. Had Dr Zenner been banned from resuming practice
when the sitting of an ethics exam was a less restrictive means of ensuring that there would be no
detrimental practice of optometry, then the decision could have been challenged on grounds of
necessity, but this was not what happened. Nor was the problem that the means chosen were
simply out of all proportion to the ends achieved, rather that the means chosen were impossible and
thus illogical.
Craig’s general solution to such situations is to point out that even if proportionality cannot cover
the ground, other forms of review may do so.148 If it could have been proved that the College had
known there was no ethics exam then an argument might have been made that they had used their
powers for an improper purpose; to present Dr Zenner with an impossible hurdle.149 Or, conversely,
if the College had simply failed to realise that there was no ethics exam, then this might have been a
relevant consideration that they had failed to take into account. But these changes are not without
implications. First, both conclusions require further detail to be found, whereas the result can be
held to be unreasonable for presenting the claimant with an impossible situation without
establishing whether or not the College knew that it was impossible at the time. And second, both of
these options would entail replacing the finding of irrationality in Zenner with one that might
currently be classified as illegality.150
Conclusion
Arguably, then, the best conclusion is that the content of substantive review cannot be exhaustively
defined. This further strengthens the principal argument that what is vital, across substantive
review, is not categorical distinctions between proportionality and Wednesbury, but rather the
recognition that in all instances it is necessary to specify the content of the substantive review (what
has gone wrong with the decision? Is it overinclusive? Underinclusive? Bizarre and illogical? etc)
147
To be analogous with A, above n 32, and Bank Mellat, above n 6, the College would have had to require Dr
Zenner to sit an existent ethics exam, while allowing others thought to be guilty of ethical violations to
continue practice without doing so. Had the College required Dr Zenner to sit the exam but not to pass it this
might have suggested a lack of rational connection, but what they did here was effectively the opposite;
require him to do something impossible.
148
Craig, above n 4 at 21-030.
149
Above n 29. It became apparent in the course of the proceedings that someone at the College had stated to
Dr Zenner’s first counsel that it would be “over their collective dead bodies that they would ever reinstate Dr.
Zenner”, (ibid para [8]), meaning that this conclusion is not wholly unlikely.
150
According to the classification by Lord Diplock in GCHQ, above n 16.
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separately from the intensity of review of those issues across the four identified axes of variability.151
In terms of the traditional debate, this suggests that bifurcation is neither necessary nor possible.
There is no reason why issues of necessity, suitability and fair balance should not be considered
across substantive review.152 But this does not mean that unification of proportionality with
Wednesbury should be the ultimate goal either; there are areas of subject matter which cannot be
dealt with sufficiently by the standard proportionality questions and indeed there may be scope for
further consideration of the content of those questions themselves and the clarity with which
proportionality review is conducted more generally.153 The point in all instances is that substantive
review must be undertaken in as articulate and structured a manner as possible.
151
The calibration or intensity of the particular test used; allocation of responsibility for weighting the factors
to be considered in applying the test; scrutiny of the evidence and the terms in which the test is put.
152
Subject to the variations in form and intensity of review and the distinction between HRA and non-HRA
cases discussed above.
153
It should also be noted that even within the HRA, proportionality is not the only relevant standard, see
further Hickman, Public Law after the Human Rights Act, above n 3, Ch 4, ‘Standards and Rights in Public Law’.
It is, however, the proportionality issues which are singled out for discussion here because the other standards
tend to relate to specific rights, such as the Arts 5(4) and 6(1) requirements that matters should be tried within
a reasonable time, or the requirement that A1P1 deprivation of a person’s possessions should be ‘in the public
interest’, whereas the proportionality issues could in principle be relevant across substantive review.