Particularly for fundamental rightsArticle 6 3 of the Treaty on European Union provided: In formulating general principles, European Union judges draw on a variety of sources, including: General principles are found and applied to avoid the denial of justice, fill gaps in European Union law and to strengthen the coherence of European Union law.
Proportionality Traditionally, administrative action in the UK has been subject to three grounds of review. The test to establish whether a decision was irrational had been subject to a particularly large amount of litigation and, consequently, debate.
The decision made must be proved to have been necessary to meet a legitimate aim, and the most reasonable way of doing so. Consequently it is a far more stringent test for irrationality than Wednesbury.
Since the UK joined the European Union injudges have been required to apply the proportionality test in cases with a European dimension and increasing pressure has been placed upon the judiciary to incorporate the test into domestic administrative law.
The modern procedural definition of the proportionality test is relatively clear.
Tom Hickman, identified the most common formulation as a three-part procedure. The reviewing court must consider: Whether the measure was suitable to achieve the desired objective, it is necessary for achieving the desired objective.
Reasonableness, Proportionality and Merits Review I can see nothing inherent in the two tests which means that one might be more liberal as an administrative law test than the other. even widen as the more liberal test of general disproportionality erodes the stricter aspects of reasonableness in the United Kingdom to the point at which. The principle of proportionality ordains that administrative measures must not be drastic than is necessary for attaining the desired result. The doctrine is applied by both the ECtHR and ECJ, and so it has infiltrated UK law to a significant extent. Integration of proportionality into UK law has been furthered by ECHR and EU jurisprudence. There is, however, also no doubt that the UK had a concept akin to that of .
Whether, even so, the measure imposed excessive burdens on the individual it affected. Since the courts first began applying the doctrine academic and judicial suggestions that proportionality should be in some way incorporated into domestic UK law have been regular.
Moreover, pressure for reform has increased since the assent of the HRAwhich has required use of the doctrine in cases that involve the breach of ECHR rights.
The most common suggestion, and the subject of this study, has been to establish proportionality as a separate full ground of judicial review. There are a number of clear advantages to the proposal.
Firstly, it has been suggested that it would be preferable for the same test to be used to deal with claims arising under EU Law, the Human Rights Act and all other domestic challenges. Due to the wide scope of the Human Rights Act, it is currently common for two such claims to be present in an application for judicial review, and not uncommon for all three to be relevant.
It is further suggested that necessitating a judgment of which test should be applied across different aspects of a single case is an unnecessary and undesirable complication.
Furthermore, the test can, it is argued, be applied with varying degrees of intensity to accommodate the different types of decision subject to judicial review.
Different weight can be prescribed to different reasons and factors, allowing the doctrine to be far more flexible than the Wednesbury test. It has been widely counter-argued that it can be dangerous and inappropriate to transplant administrative concepts from other jurisdictions, as Sir Otto Kahn-Freund noted in the Chorley Lecture.
While proportionality fits easily within the constitutional nature of many continental European states, application in England could result in unclear lines of authority, and the regrettable situation of courts overruling the decisions of bodies who derive power from democratically elected institutions.
Allowing the courts to empower themselves to overrule decisions on their merits and substitute their own preferences would lead to judicial assumption of quasi-executive power.
The growing debate has led several judges to consider incorporating proportionality by common law as a new ground of review or modification of the Wednesbury test. The Home Secretary had issued directives under the Broadcasting Act requiring the BBC to refrain from broadcasting interviews with people who represented terrorist organizations.
The applicants sought to challenge the decision on several grounds. Following Brind, there have been several cases where the courts have explicitly refused to consider proportionality as a criteria for review, instead applying the Wednesbury test strictly.
HRA triggered a revival of the debate about incorporating proportionality, leading more judges to argue for full domestic use of the doctrine. Across continental Europe this construction has been, almost certainly intentionally, interpreted by national courts to require them to apply the proportionality test.
In Daly, Lord Steyn and Lord Bingham acknowledged that the construction of the Act required the proportionality test to be applied, and confirmed that there was therefore a separate ground of review for Human Rights Act and EU related decisions.
They did not, however, condone the application of proportionality to all domestic irrationality review. Allowing judges to consider cases on their merits seems materially close to the proportionality doctrine, and certainly dismisses the objections of the House of Lords in Brind.
In the same year Lord Slynn appeared to share this view in R v. Secretary of State for the Environment ex parte Alcon bury. This guideline is unhelpful it is unclear which executive decisions would not result from a matter of policy.
Executive decisions are, by definition, policy. Therefore, in the light of Daly and Alconbury the current position of proportionality in domestic common law is confused.
There have been statements of intention but not a full judicial ruling.
The exact nature of the proportionality test that should be applied to EU and HRA cases is also subject to confusion. InR v Governors of Denbigh High School ex parte Begum found the CoA faced with a challenge to a decision by a school to ban the wearing of a form of Islamic dress known as the hijab.
The school passed the substantive proportionality test — whether the means to achieve a legitimate end were legitimate and fair — but failed the newly conceived procedural proportionality test.See also Lord Reed’s doubts in Pham, at para.
, “that the Wednesbury test, even when applied with “heightened” or “anxious” scrutiny, is identical to the principle of proportionality as understood in EU law, or as it has been explained in cases decided under the Human Rights Act ”.
definitive.2 The use of proportionality review in administrative law is a topic that deserves more thorough and systematic study. 3 Further empirical work would permit, among other things, testing of the hypotheses tentatively offered here.
Integration of proportionality into UK law has been furthered by ECHR and EU jurisprudence. There is, however, also no doubt that the UK had a concept akin to that of . Reasonableness, Proportionality and Merits Review I can see nothing inherent in the two tests which means that one might be more liberal as an administrative law test than the other.
even widen as the more liberal test of general disproportionality erodes the stricter aspects of reasonableness in the United Kingdom to the point at which.
Although opinion is currently divided in the UK, the traditional test is perhaps more appropriate given the courts’ role in administrative review. Finally, introducing the proportionality test per se will not guarantee greater rights protection without a supportive legal and political culture.
The general principles of European Union law are general principles of law which are applied by the European Court of Justice and the national courts of the member states when determining the lawfulness of legislative and administrative measures that the general principle in European Union law of proportionality entails a three-part test: 1.