A Thought of One's Own

A more academic post than usual, I thought I'd explore my thoughts on some administrative law as a revision exercise.

Proportionality is a principle in EU and ECHR law that requires that there be a reasonable relationship between the objective which is sought to be achieved and the means used to achieve it. UK courts already use this principle when reviewing actions or legislation for ECHR or EU law compatibility but a question has arisen as to whether it is also a ground of review in domestic administrative law, or, more controversially, whether it ought to be. There are dedicated advocates on both side of the debate, with some holding that proportionality is only suitable for rights based cases, others that it could be a general head of review, and still more academics proposing a bifurcated approach using proportionality and Wednesbury unreasonableness. The back and forth between Craig, Hickman, Taggart, King etc has filled a whole special edition law journal (New Zealand Law Review, 2010) as they argue about the pros and cons of proportionality and it's proper place. The debate centres on the fact that proportionality is a more searching standard of review than Wednesbury unreasonableness, and the question of what the current situation is can hardly be separated from opinions from both judges and academics as to how it should be.

It was stated in R (Association of British Civilian Internees: Far East Region) v SSD by the Court of Appeal that they had difficulty in seeing what justification there now was for retaining the Wednesbury test, but that court was not able to abolish it. There does seem to be a fair amount of hostility towards Wednesbury around (I myself despise having to type it: you always end up with Wednesday instead). In the light of the increasing influence of comparative and international law on UK courts both in statutes such as the HRA and ECA and in judgments themselves, where judges are more inclined than before to consider international cases as 'soft law' to create a framework for their own decisions, it would seem that accepting an international test into domestic law would make sense, especially since the courts already use it in regards to EU and ECHR cases. However, some objections can be raised to doing so, and there is heated academic debate on the issue.

One objection raised to proportionality as a general ground of review is that proportionality does not translate well to non-rights based cases. Taggart argues that proportionality is useful only in certain contexts and he and Hickman argue that it would be a reversal of the current burden of proof,  thus imposing an unfair burden on administrative bodies. They argue that although Wednesbury unreasonableness is a 'safety net' test, engaged where the case is so outrageous as to not fall into other categories of review, proportionality is a starting point test to which one would automatically go. The result of this is, they would argue, that where a proportionality assessment is engaged, it is presupposed that the alleged act, rule, or decision is presumptively unfair because it infringes a right, so it must be justified by the person doing it. Contrastingly, unreasonableness review presupposes the act is lawful, putting the burden of proof on the affected party to show that it is not. If this is the case, general proportionality review is not desirable from a cost point of view, as it would encourage wasteful litigation from those trying to take advantage.

However, this view has been countered by Paul Craig, who argues that the EU has managed perfectly well with proportionality as a general head of review for forty years (Hickman rejects this argument because of the lack of precedent in UK or common law jurisdictions for using proportionality this way).

He argues that objections fail to realise that proportionality review being applicable to all administrative decisions does not mean that it would be the only head of review, and that it has better normative and practical justifications than rationality review. Furthermore, proportionality requires that the decision making body justifies its choice in response to a challenge in exactly the same way as rationality: the criteria are what differs and not the direction of the burden of proof.

Craig argues that proportionality has a threefold normative justification as a head of review. Firstly, it fits with the belief that a public body is given power for a purpose, and the court should review to ensure it keeps broadly to that purpose, ie, that administrative action requires reasoned justification. Craig further argues that there are structural benefits to proportionality because Wednesbury unreasonableness is often applied in a structurally lacking way, and that it would be more simple to have one test across the board, although critics take issue with this statement too. The point is perhaps less convincing because a pragmatic simplicity cannot form a principled basis for a legal doctrine, but it is worth keeping it in mind in terms of administrative efficiency.

The benefits of the structure of proportionality as Craig describes it may well counter suggestions that proportionality puts the burden of proof the wrong way round. Craig argues that the structural benefit is that the agency must show that the challenged action was necessary and suitable, and that it did not impose an excessive burden, whilst the court must show the opposite to quash the decision. This seems like a fair approach, and where there was no clear decision either way, as is likely to often be the case, it would be a balance of the two sides that decided the result. This balance is perhaps played down in the conception of proportionality in the British courts, as Rivers argues, whilst in Europe the balancing is the key.

Craig offers further support for proportionality as a head of review in the form of criticisms of rationality review, or Wednesbury unreasonableness. Practically, he argues, if one were to have proportionality as only a rights based inquiry, as Mike Taggart suggests, rationality review would rarely be useful in the Wednesbury form. Because of the high standard of proof, although cases of a decision that no reasonable decision maker could have made could in principle arise, in practice it would be very hard to prove such a departure from reason. Furthermore, in practice, this is not how the courts use the test: both Sedley J and the Court of Appeal have acknowledge that it suffices to show some error of reasoning that robs the decision of its logical integrity, which is not in fact the test formulated by Lord Greene.

Lord Bingham held in A v Secretary of State for the Home Department that the intensity of review is much greater under the proportionality approach. This is desirable in many ways, as it means that the court can consider alternative courses of action instead of being limited to the narrow considerations under Wednesbury, although this leads judges onto controversial ground. However, King would have it limited for that very reason, restricted to cases where there is a special reason for more intensive review, and keeping rationality review otherwise. This doesn't have the advantage of simplicity, but it does at least recognise the role proportionality can legitimately play in English administrative law.

The criticisms of the test itself in Wednesbury can be coupled with the argument that although there are normative reasons for rationality review, there are none for so strict a form of review as Wednesbury presents. Lord Cooke in Daly said as much, and suggested instead a less extreme test of whether a reasonable decision maker could have reached the decision. The need for a separation of powers and the avoidance of courts substituting judgments does not require that so narrow a category of decisions be quashed, and indeed Allan argues that there is a risk of courts showing too much deference to administrative decisions with the result that they fail to fulfil their duty in protecting administrative rights. Craig further argues that Wednesbury review can lead to the very judgment substitution it seeks to avoid because courts have enough latitude to decide whether to review on rationality or purpose and relevance that they can effectively decide what tools they will use.

Although the debate as to the theoretical desirability of proportionality as a general head rages, the courts thus far have shown little inclination to adopt it as such. The House of Lords held in Brind that they would not accept proportionality as a separate head of review in domestic law. This does not mean that there is not still some momentum for the change: both Lord Cooke and Lord Slynn in R v Chief Constable of Sussex ex parte ITF ltd and Alconbury respectively have recognised that proportionality and rationality review can in fact result in the same outcome, resulting in a question arising of whether they even need to be kept separate, and whether it makes sense to do so. Despite this, proportionality is not at present a separate head of review in English law, despite the convincing arguments that it may be a desirable move for the law to take. It is conceivable that in the years to come, if the UK continues to adopt large portions of European law, that the courts will reconsider the decision in Brind, but it seems at present that there is not a great enough momentum for such a change.

Personally, I don't feel all the fuss is justified. The Wednesbury test is messy, uncertain, and the whole thing is just a bit all over the place since all our ultra vires reasons seem to overlap: being unreasonable is also sometimes acting on irrelevant considerations and it might be completely absurd too, etc etc. Lord Greene recognised that when he 'devised' the test in Wednesbury itself. So why not sweep up a bit, get rid of the strange test we have (which isn't really 'traditional' because it's only been around since 1948) and adopt something we're already using, we already have rules for, and have a nice clear test across the board? I don't really see a problem with more searching standards: we don't control the government enough, and all the arguments for deference seem a bit, well, pointless. Democratic mandate doesn't mean you can start doing nonsensical things, and although some politicians are lawyers, they aren't all, and they probably don't have the same level of expertise as a Supreme Court judge to know what the law they're making is doing. Yes, there's going to be a line somewhere between leave the administrative body alone and interfere for the general good, but I think really we can trust judges to figure out what they're doing by and large. It's not as if Parliament can't pass legislation to reverse decisions anyway. All of this makes me a contextual institutionalist, by the way, according to King's rather long article.