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ter> What is Europeanisation? With regards to the principle of proportionality is this europeanization a valid idea? What is Europeanisation and what effect is it having on our British administrative system? In the last 50 years with the introduction of the European Union there has been a massive impact on both the changing of law in the UK and the way in which powers are focused. Because of the influx in European cases, the law that has followed has affected the English Administrative legal system dramatically.
A key issue that is relevant here is that British law must conform to European Union Law 1, therefore every issue that is assessed in Europe, every case or change in legislation and then maintained in law, must be taken in to consideration, and must not be overlooked by the British government. The underlining factor here is that, regardless of whether one desires such a change in law, European Union Law is affecting the power delegated to public and private bodies in the UK. More specifically with regards to administrative law it is the way in which a public and both private body can affect the citizens of our country. It is the concept of Proportionality that bleeds nicely into the europeanization of our British Administrative system. In a number of European countries there is this principle of proportionality that expresses administrative measures must not be more drastic than necessary for attaining the desired result 2.
It is through an application for judicial review that the principle of proportionality has been used in Europe. It was Lord Diploma, in the G. C. H.
Q 3 case that classified four types of reasoning why an application might come to light. We know already that three of them; Legality, procedural propriety and rationality are strong in argument. It is this forth controversial theory of proportionality that causes writers the most problems. Proportionality is by no means a novel subject and has been gradually accepted into the ranks of other European countries for some time. However philosophical one might be in explaining what exactly it is, it will always embody a basic principle of fairness. At present it is not really what proportionality does that is an issue, it is the intentions of the theory, and in attaining a fair trial it creates a balance for both parties that should in theory resolve with a fair and reasonable conclusion.
In many of the cases such as R v Intervention Board for Agricultural Produce [ 1986 ] the public body has gone beyond its delegated power and in fact used excessive power and falls into an Ultra view category. In this case the board of agriculture went beyond its powers in using an excessively severe forfeiture of a license. The doctrine of proportionality, in using too much power in attaining the desired result has been adopted by the European Court of justice in Luxembourg. This means that it will affect British law and will infiltrate into the administrative system, as it must conform to European Union Law. Because of its more frequent application in Europe it is necessary to discuss how is it being used in other member states and look further at the doctrine of proportionality in a historical context.
If we look first at Germany where it seems proportionality originated, German administrative law requires acts to be exercised with a principle known as Verhaltnismassigkeit, literally translated as relativity. Within this principle lie three interconnected conditions of which one is the proportionality that is used similarly in other European administrative systems. What the courts do is examine the injury caused to the individual rights of a citizen by an administrative action, and the gain or loss that the community suffers. The German courts do emphasise however that there has to be a clear dis proportionality between the parties. An example of a disproportionate case is where an authority could not grant a character reference for an individual wishing to apply for a job. In this case the individual had criminal proceedings that were still pending.
What the court held was that using the theory of proportionality the refusal of the reference was completely disproportionate. This was solely because the failure to produce a reference contravened with the right to apply and seek a vocation. 4 What has to be taken into to consideration here is balance and how one set of facts and circumstances outweighs another, there has to be in my opinion a straight forward correlation between the administrative action and the result, and above all it has to be reasonable. In this case not granting a reference purely because something criminal is pending is not reasonable. In cases where proportionality is used as grounds for judicial review, it must be said that the judges have a massive degree of discretion, almost to the point where the case is decided solely on the merits of each side. This perhaps could be described as one of the disadvantages of Proportionality. Looking further at European writing, it was Guy Braibant in 1974 that welcomed the theory of proportionality into French Administrative law.
He considered the principle to be something of a rule of common sense. In defining exactly what proportionality is, he could not of been closer if he tried. If we look at many of the definitions, in every case we find that it seeks to maintain some kind of balance between any adverse effects for both sides. It all seems so clearly common sensual! So why are we examining proportionality as if it is derived from Europe and not the UK? It is perhaps the highly acceptable nature of the principle in Europe that makes us susceptible in thinking that Europe has created it.
Or perhaps in the UK our justice system is that bit more aware of allowing dangerous concepts to be accepted as Rules of Law. What Braibant also said was that the concept of proportionality is applied in many cases even though it is not specifically expressed. It is something beneath the surface, that should in all respects be included in any judgement. What seems to be the key issue with proportionality is reason.
What reasons have we in taking an administrative action? If the circumstances outweigh the action then the action was quite simply non-sensual. It is not always individuals that apply for judicial...
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Research essay sample on Administrative Law Europeanisation And Proportionality
