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... review using proportionality. It is the economic and social elements of a democratic society that need to be accounted for. A French case showed that the closing of a polluting power station was balanced to the economic and social order that would follow the closure. 5 Proportionality also as a principle of law has been used to interpret areas of the European convention on Human Rights. An example, Article 10 (1) of the Convention guarantees the right to freedom and to impart information and ideas without interference by public authority. The famous case in the Sunday Times 6 showed how proportionality was used to prove the necessity of having an injunction to prevent the publication of private and confidential information.
What the Strasbourg court found in this instance, was that using the theory of proportionality, it would include balancing the need for social awareness. In particular whether this information was necessary in a democratic society to protect the authority of the judiciary. It found in fact that the publication proved not to be proportionate to the legitimate aim pursued. It was also not necessary in a democratic society for maintaining the authority of the judiciary. We can see that proportionality has been used in a European context for many years.
Originally developing in European Law it has been applied in English Law. One specific definition of proportionality given by Lord Lowry in the leading British case 7 examined the principle as one that requires a reasonable relation between a decision, its objective and the circumstances of any given case. This concise definition shows how proportionality is a theory that is ultimately intuitive to human nature. Although there has been a lot of European philosophical case law, I think we overlook the point that proportionality is used in every case where the pursuit of legitimate ends should not be oppressively excessive. I suppose what this essay question seeks to answer is when we refer to proportionality, is whether this europeanization is a good revolution? When accessing its validity, it is evident that within the member states of Europe other than the UK it is indeed a very strong principle.
I myself have encouraged the use of the principle and I am very much in favour of the principle being used in the UK, as an acceptable principle of judicial review. However before making such a quick conclusion it is necessary to discuss the recent case law in the UK, as there are many drawbacks that can be found when using proportionality. Again looking at proportionality from a general perspective, it has been found in English case law that perhaps judges are not well equipped by training or experience when dealing with a very balanced administrative case 8. One of the more interesting points that was discovered in the Brand 9 case, was that when an administrative case in so balanced and when using proportionality, there will always be something in discussion to argue about. This in turn would allow proportionality to be recognised as a theory that would enable an opportunist defendant to apply for judicial review very easily.
Consequently this would take more court time and would increase costs for litigants. After the case of Brand courts have easily declined to apply proportionality so freely. Significant 90 s case law has denied proportionality as a freestanding 10 principle in domestic law. Perhaps it is our traditional nature of law that prevents us from straying so easily into accepting theories that would transform our system into a Europeanised mess? ! In many cases such as Hargreaves 11 and Absalom, 12 the courts have been very determined to stay strictly to the Wednesbury test. Whenever this principle is mentioned it is always with the adjective of tradition.
I think what the English law Lords are trying to do is protect the law and not to accept proportionality and other whimsical principles so easily into our system like our fellow member states, within the European Union. Personally I believe English Law Lords do actually use proportionality almost to the extent that it is executed in an accidental manner. However it is important to note that they are reluctant in allowing the principle to be expressly used in a court of law. It is almost as if it can be used, but not said or be spoken of. This is shown in R v. Barnsley MBL.
exp. Hook [ 1976 ], where Lord Denning struck down a decision because he believed the revoking of a license for urinating and using foul language in a public place was disproportionate. More specifically what is happening is that our Legal professionals are reluctant when actually referring to a decision or application for judicial review under the title of proportionality. Our legal system is continuing to become more europeanized, and it is evident that because of the dominance of the European Union maybe one day our system will adopt proportionality as a recognised principle of law. However at present we are still very unsure. I think maybe it should be considered in every case, but not necessarily adopted as a compulsory principle, here compulsory being the key issue.
Indeed another core question that should be assessed is whether we should adopt proportionality as the General Criterion of Review and discard the Wednesbury principle completely? However I do not see it possible to pull away from our tradition, when we have such experienced and stubborn Law Lords who have been in the legal system for so many decades. It is matter of taste, yet we should not abstain from using proportionality as it will provide for a useful remedy in future years. Finally referring back to the E. C directly, it is well known that proportionality is one of the general principles of community law, meaning we are bound to use the principle.
However it is only necessary to use proportionality where it specifically involves a dimension of community law. Bibliography P. P. Craig Administrative Law (New Edition) Schwarze, European Administrative Law (1992) Jowell & Lester, Proportionality, Neither Novel nor Dangerous. G. Brabant, Le Principe de proportionality, Melanges Wales (1974) Wade & Forsyth, Administrative Law 10 th Edition Osbournes Concise Law Dictionary 8 th Edition New Directions in Judicial Review.
Jowell & Oliver (1988)
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Research essay sample on Administrative Law And Proportionality
