Tan Wen Shan

1438 Words
Should a doctrine of proportionality replace Wednesbury as a
general head of substantive review in administrative law?
It has been proposed that Wednesbury should be replaced by the doctrine
of proportionality as a general head of substantive review due to
arguments that proportionality is a stricter standard of review, per Lord
Steyn and Cooke in R (on the application of Daly) v Secretary of State for
the Home Department1. However, such a proposal has failed to take into
account the merits of the Wednesbury unreasonableness test and
demerits of the doctrine of proportionality. The proportionality test is
constitutionally sensitive as it infringes upon the separation of powers and
should not be applied in the absence of statutory footing. Moreover, this
general adoption would promote costs, ossification and abuse of the
proportionality test which the bifurcation argument avoids and promotes
legal certainty and simplicity. Finally, a blanket test of proportionality will
be ill-suited for application to all cases, which proportionalityphiles have
failed to take into account. Hence, such a proposal would be undesirable
and should not replace Wednesbury as a general head of substantive
review.
Separation of Power
The substantive review using the doctrine of proportionality undermines
the constitutional separation of powers as it examines the legality of
decisions, not their correctness. A constitutionally problematic doctrine
cannot be utilized as a general head of substantive review but should only
be used in justified cases. Judicial review must be commensurate with the
tenet of separation of powers, where the executive administers the law
and the judiciary enforces it. The courts exercise a supervisory, not an
appellate jurisdiction. Per James Goodwin2, if the sovereign Parliament
1 [2001] 2 AC 532 (HL).
2The Last Defence of Wednesbury [2012] Public Law 445-467

has given power to a primary decision-maker, the decision of which is not

subject to appeal, the court has no right to interfere with that decision,
save to ensure that it was made within the jurisdiction of the decisionmaker. Courts should examine if the primary decision-maker has
exercised powers within the legal limits and not make the judgment
themselves. The judiciary lacks the expertise to balance the competing
interests that primary decision-making entails, per R. v Cambridge DHA
Ex p. B (No.1)3 and lacks the mantle of legitimacy that democracy grants
primary decision-makers4. Moreover, administrative decision-makers are
democratically accountable and any controversial, disproportionate
decision is best left to the voters to disaffirm. Perhaps even a duly elected
member of the executive should not be entirely precluded from adopting a
disproportionate decision outside the context of human rights since the
democratic system of elections polices itself. The courts are neither
institutionally competent nor democratically legitimized to make decisions
regarding balancing of interests such as allocation of resources. Thus,
using the constitutionally problematic doctrine of proportionality test as a
general head of substantive review will impinge upon the doctrine of
separation of powers, especially so for non-human rights cases.
Absence of the warrant of a statute
The use of proportionality is limited to judicial review concerning the
infringement of the rights enshrined under Human Rights Act 1998 (HRA)
and European Communities Act 1972 (ECA) and the general replacement
of proportionality test over Wednesbury is absurd as it should only be
allowed to function with statutory footing. In R. (on the application of
Limbu) v Secretary of State for the Home Department 5, the policy
concerning entry clearance to settle in United Kingdom for ex-members of
the Brigade of Gurkhas fell outside the ambit of the HRA and the legality
3 [1995] 1 W.L.R. 898
4 R. v DPP Ex p. Kebilene [2000] 2 A.C. 326 at 381, per Lord Hope.
5 [2008] EWHC 2261 (Admin)

of the policy was reviewed through Wednesbury. In Somerville v Scottish

Ministers 6, the House of Lords expressly deferred considering the
application of proportionality outside the context of the HRA. There has
been clear judicial acceptance that proportionality can only be applied
with the warrant of a statute and general utility of proportionality was
constitutionally inappropriate. While Jowell and Lester argued that
proportionality was neither novel nor dangerous7, they failed to take into
account the dangers of allowing the courts to interfere with the substance
of official decisions with 8regard to the doctrine of separation of powers.
Hence, because the use of proportionality is constitutionally unorthodox,
the elevated requirements of its application is justified and the
substitution of the Wednesbury test should only be restricted to cases
expressly provided for by statute and not for general use.
Cost, Ossification and Abuse
The use of proportionality in all cases would lead to an increased cost,
ossification of abuse, per Jeff King9 and thus should be another deterring
factor in the general replacement of Wednesbury. The process of
proportionality review is more costly as it requires more extensive
disclosure, since underlying facts and circumstances need to be balanced.
Adminstration would be impaired as there is a lack of guidance and there
arises a resulting effect of precluding a decision-maker from making a
disproportionate decision, where fundamental rights are not engaged.
King also opines that judicial review would become a forum for wellresourced individuals to abusively hamper regulatory initiatives adverse to
their economic interests. Because of the detrimental effects alongside

6 [2007] UKHL 44
7 Jowell and Lester, Proportionality: Neither Novel Nor Dangerous in Jowell and Oliver (eds), New Directions inJudicial Review
(Stevens, London, 1988).

8
9 Proportionality: A Halfway House [2010] N.Z.L.R. 327.

proportionality testing, its limited use should only be deployed when

increased judicial intervention is justified.
Bifurcation Argument
Bifurcation is preferred to the general replacement of Wednesbury as it
promotes legal certainty and simplicity of substantive judicial review.
Bifurcation has been proposed by Mike Taggart such that proportionality
should replace variable Wednesbury unreasonableness review when HRA
and ECA related rights are engaged, but the residual cases should be
assessed by Wednesbury unreasonableness. A strict demarcation of the
review should be made under a rainbow of review where he contends
that away from the anchor of fundamental rights, the justification for
imposing proportionality falls away.10 Hickman supports such a line of
argument11, where there is a negligible authority for the use of
proportionality across the spectrum of review. He also argues about a
problem of legal certainty and transparency. The application of a
proportionality test would in itself have no prescriptive or predictive
value and lawyers and public officials do not know what intensity or
degree of scrutiny would be applied. Under the current orthodoxy, it is
simple to determine which test should be applied and the courts simply
need to look at whether the right is protected under HRA or ECA. The
general use of proportionality would obliterate such a starting point and
would leave the test to be applied by the courts with little guidance. The
bifurcation argument thus opposes the general replacement due to
problems of legal certainty and the merits of bifurcation in its simplicity.
Suitability
The methodology of proportionality is ill-suited to assess certain cases and
a blanket test would be highly unadvisable. The problem of proportionality
is that it assesses the relationship between means and ends and some
10 Taggart, Proportionality, Deference, Wednesbury [2008] N.Z.L.R. 423.
11 Hickman, Problems for Proportionality [2010] N.Z.L.R. 303.

decisions cannot be suitably analysed as some complaints are not about

the relationship between means and ends.12 An example addressed by
Craig13, about a local authority which decides to close a waste disposal
facility challenged by a local resident who is concerned but not directly
affected, cannot be sensibly tested by proportionality. In the absence of a
legitimate expectation that the facility would remain open, the decision
would not impact the claimants rights or interests but its impacts would
still be multifaceted. The courts would have difficulty assessing if the
closure is the least onerous decision to be taken since it is unclear what
the courts should identify as the impact to be minimized. Thus, there is an
element of ill-suitability of a blanket rule for proportionality to be applied
to all cases and Wednesbury unreasonableness remains a well-suited
residual category to be applied at the end of the courts review.
In conclusion, the various demerits of the proportionality test such as its
infringement of the doctrine of separation of powers, increased costs,
likelihood of abuse and ill-suitability as a blanket rule have been
highlighted. Thus, it should only be justifiably utilized with the presence of
a statutory warrant of HRA and ECA, reinforced by the bifurcation system
that promotes legal certainty and simplicity. Thus, a doctrine of
proportionality should not replace Wednesbury as a general head of
substantive review in administrative law and a bifurcated system is
proposed instead.

12 Hickman, Problems for Proportionality [2010] N.Z.L.R. 303.

13 Paul Craig Proportionality, Rationality and Review [2010] NZ L Rev 265