My essay answer to the administrative law/law and government exam question : "Critically compare the doctrines of Wednesbury unreasonableness and proportionality. Should proportionality become the test for all administrative decisions?". This essay received a first-class in the final exam.
Critically compare the doctrines of Wednesbury unreasonableness and proportionality. Should
proportionality become the test for all administrative decisions?
Judicial review has long been recognised as a central constituent of the administrative justice system.
It is necessary to protect important constitutional principles such as the rule of law, by ensuring public
bodies act within their powers, not just those prescribed by statute. In order to make an application for
judicial review, the claimant must have standing, meaning interest in the subject matter, and argue on
the basis of a recognised ground of review. At present, the common law identifies three grounds of
review: illegality; procedural impropriety, and irrationality. The irrationality ground, also known as
unreasonableness, was defined in Associated Provincial Picture Houses Ltd v Wednesbury
Corporation by Lord Greene. He acknowledged that discretion had to be exercised reasonably, and
said a decision to be unreasonable if it is so unreasonable that no reasonable authority could have
come to the same conclusion, only then can the courts interfere on this ground. In recent years,
proportionality has become increasingly prevalent within judicial review and is recognised as a basis
for application in relation to EU law and convention rights. Having been implemented in the Daly
case to protect common law rights, there is much debate as to whether proportionality should exist as
a stand alone ground of review, and furthermore, whether the doctrine of Wednesbury
unreasonableness should be replaced entirely by the proportionality test. Where Wednesbury
unreasonableness is traditionally seen as opaque and inherently deferential, proportionality is
structured and far reaching. Both grounds offer advantages over the other, however in reality, they are
not as distinct as they seem.
At first glance, proportionality and Wednesbury unreasonableness appear starkly different in their
methodological approach to judicial review. Wednesbury presents a considerably open question of
whether the decision being reviewed is one that a reasonable authority would have made in those
circumstances. In coming to a conclusion, the courts rarely state which steps they took, and without a
standard set of factors to examine it is difficult to understand how the decision was reached. The test
doesn’t identify specific substantive norms, and potentially facilitates arbitrary rulings from the court.
One of the core principles of the rule of law is predictability. It is important that individuals have
some concept of what the outcome of the judicial review will be when making an application, and
how exactly the court arrived at that outcome. In contrast, as in relation to EU law and convention
rights, the common law proportionality test comprises a set of questions, set out by Lord Sumption in
Bank Mellat v HM Treasury. In order to determine whether a decision is proportionate, the courts has
a number of considerations: whether the measure in question’s objective is sufficiently important to
justify the limitation of a fundamental right; whether the interference is rationally connected to the
objective; whether a less intrusive measure could have been used; and whether, having regard to these
matters and to the severity of consequences, a fair balance has been struck between the rights of the
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