JR: proportionality

Proportionality:

• Balance between rights and purposes/public interest 

• Lord Diplock GCHQ: proportionality may become another ground 

Proportionality test":

• Daly

• Legislative objective important enough to justify limiting a fundamental right

• Measures designed to meet legislative objective are rationally connected to it; and

• Means to impair right/freedom no more than needed to accomplish objective 

• Do the benefits outweigh the harm to rights, balanced test

PRE HRA:

• Proportionality risks courts substituting what they see as appropriate (ex p brind)

• Smith and Grady UK: case failed in UK but when taken to ECtHR they won. ECtHR criticised UK courts for not doing enough under wednesbury. The case was under national security, suggesting its subject to proportionality 

POST HRA”

• Introduces proportionality 

• Art 10: decision must interfere with rights and justification must be provided (prescribed by law and necessary in society/necessary for national security, integrity or safety)

• Hirst v UK (No.2): Blanket ban on prisoner voting disproportionate interference with electoral right under Art 1 of Protocol 3 of the ECHR 

Daly v HS 2001:

• HS issued a requirement for prisoners to be removed from cells during searches 

• Daly applied for JR: breached common law right to confidentiality of privileged legal correspondence 

• NB: didn’t involve ECHR rights, as HRA not yet in effect at the time of this case, thus the comments on proportionality were obiter.

• Appeal allowed 

Better than wednesbury unreasonableness:

• More precise

• Intensity of review is greater 

• Anxious scrutiny test in ex parte Smith may be insufficient in protecting HR.

Limiting proportionality: 

Denbigh High School:

• C muslim and wanted to wear a jilbab

• Sent home and didn’t attend school for the rest of the year 

• Claim for JR breaching Art 9 : freedom to manifest one’s religion 

• CA: protection of public morals an insufficient argument as other schools allowed jilbabs.

• The school should’ve considered the decision’s legality and proportionality.

• BUT, criticism: Proportionality test is to be applied by those reviewing the decision, not those making the decision (in this case the school) Tom Poole

• HoL: no breach, she decided to go to a school outside of catchment and she wore a shalwar for 2 years previously

Wednesbury to proportionality?

• Judicial review involves balancing deference to decision-makers with protection of individual rights, and there is an ongoing shift from Wednesbury towards proportionality

• The distinction between Wednesbury and proportionality is increasingly blurred because both now involve contextual balancing and variable intensity of review, particularly in cases involving fundamental rights.