Lee Marsons: Common law proportionality in English law: are we there yet?
Traditional judicial review in English law distinguishes between the tests of reasonableness and proportionality for judging the lawfulness of the exercise of administrative discretion. As Lord Steyn noted at  in R (Daly) v Secretary of State for Justice (‘SSJ’)  UKHL 26, proportionality is the appropriate test when rights protected by the Human Rights Act 1998 (‘HRA’) are engaged. Outside HRA cases in common law judicial review, the classic Wednesbury  1 KB 223 reasonableness test applies.
An ‘unreasonable’ decision liable to be quashed was (in)famously defined by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service  UKHL 6 as one so outrageous in its defiance of logic or accepted moral standards that no sensible person could have reached it. By contrast, at  in Bank Mellat v HM Treasury (No 2)  UKSC 39, Lord Sumption summarised proportionality as requiring a decision to: (i) have a sufficiently important objective, (ii) be rationally connected to accomplishing that objective, (iii) have no reasonable less intrusive alternative, and (iv) strike a fair balance between individual rights and public interests.
Therein is the supposed importance of proportionality for claimants: it may offer a more rights-protective standard of review than reasonableness. The court is expressly directed to make its own evaluations on necessity, weight, and balance, rather than whether a decision is merely beyond rational justification. This was acknowledged by Lord Bingham at  in R (Begum) v Denbigh High School  UKHL 15, where he noted that proportionality requires a more intensive form of scrutiny than even the most searching reasonableness review. The superiority of proportionality is not uniformly accepted, however. As Paul Craig has discovered through an examination of the jurisprudence, reasonableness review can and does involve an appraisal of the balance decided by the administrator, including substitution of judgment on issues of weight and necessity.
Nevertheless, the direction of travel in the English jurisprudence recently, particularly in the UK Supreme Court (‘UKSC’), has undoubtedly been towards a common law doctrine of proportionality. For instance, in the context of an interference with freedom of information by a statutory body in Kennedy v Charity Commission  UKSC 20, Lord Mance concluded at  that: ‘The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle.’
In the later decision of Pham v Secretary of State for Home Department (‘SSHD’)  UKSC 19, Lord Mance was even more explicit. In the context of a decision to remove citizenship which could render the claimant stateless, his Lordship concluded at  that: ‘…the tool of proportionality…would…be both available and valuable…’ This development has continued to the present day. In R (UNISON) v Lord Chancellor  UKSC 51, handed down on 26th July 2017, the UKSC was concerned with an issue of statutory construction related to ministerial powers to set fees for access to Employment Tribunals. At , Lord Reed concluded that this approach to construction was analogous to an implied requirement of proportionality when the Minister set fees. UNISON has been celebrated as the most important case for employment lawyers in fifty years, and Professor Mark Elliott has commented that Pham is arguably a landmark decision for the emergence of common law proportionality.
The purpose of this post is to explore a key challenge to this emergence that has yet to be systematically revealed by other public lawyers; specifically, the lack of significant penetration of common law proportionality into courts below the Supreme Court. This is not intended to be an exhaustive examination of the case law, but the post will outline some notable trends in the jurisprudence that may limit the recognition of common law proportionality.
This is a valuable discussion for comparative lawyers particularly, because the application of proportionality in other common law nations has not been simple either. Similar challenges have faced the Indian courts, for instance. In the 2000 decision of Om Kumar v India (Petition 21000 of 1993), the Indian Supreme Court expressly concluded that proportionality could be invoked in challenges to administrative decisions that affect fundamental rights. Nonetheless, in an article penned twelve years later, Indian advocate, Ajoy, has noted that, ‘…even today the Indian legal system has not come to terms with the doctrine. There is hardly any case where the doctrine has been practically applied.’ In this way, the UK may have joined some of its common law cousins in being troubled by proportionality.
Lower court (non-)reaction
It would be wrong to suggest that common law proportionality has enjoyed no penetration into the lower courts. An interesting place to start is S1, T1, U1 & V1 v SSHD  EWCA Civ 560, where the Court of Appeal heard a case from individuals made stateless using the same powers applicable in Pham. Unsurprisingly given the decision in Pham, at  the court expressly stated that: ‘…common law requires the removal of British citizenship to be proportionate…’ In the event, the Minister’s decisions were upheld, but the central point is that common law proportionality was recognised and used.
The concept also enjoyed success in the High Court in Lin v Commissioner of Police of the Metropolis  EWHC 2484, which concerned a refusal by police to disclose material which could be exculpatory in a Thai murder trial. This refusal was based on a qualified exemption in data protection legislation from disclosing information regarding crime. At , Green J expressly decided that his construction of this exemption necessitated ‘…a proportionality exercise’ balancing the privacy interests of those mentioned in the material against the rights of the claimant, including his right to life (the death penalty applied) and to a fair trial. At -, Green J referred to Kennedy and Pham to reach this conclusion. Therefore, not dissimilarly to UNISON, there are cases where the scope of an ‘empowering’ provision is made subject to an implied proportionality requirement.
But, from here, the jurisprudence goes somewhat downhill. There are cases where, despite clear human rights issues, counsel does not even seek to put common law proportionality in issue. An example of this is R (Semeda) v SSHD  UKUT 658, involving a refusal of leave to remain which could make the claimant stateless. At , it is made plain that counsel pursued a Wednesbury challenge only (‘The irrationality challenge, the second ground…’). Because of this, at , McCloskey J determined the case on a reasonableness basis. No mention was made of proportionality throughout the case, either by counsel or the court, despite statelessness being involved as it was in Pham.
While the optimistic could dismiss Semeda merely as a single disappointment, far more important are the several cases where the High Court, far from accepting common law proportionality, has expressly decided that there is no such thing. In R (Browne) v Parole Board of England & Wales  EWHC 2178 related to a statutory provision on recalls to prison, HHJ McKenna decided at  that the UKSC had not reached the stage of recognising proportionality outside the HRA, including in cases involving fundamental rights. More recently, in R (Crompton) v Police & Crime Commissioner for South Yorkshire  EWHC 1349, Sharp LJ and Graham J concluded at  that proportionality had not been incorporated into administrative law outside the HRA. Most starkly, Hickinbottom J in R (Prescott) v General Council of the Bar  EWHC 1919, ruled at  that: ‘…proportionality is not a common law principle…It is a concept derived from Europe, and…comes into play only where triggered by…European law rights…’ Therefore, among the High Court bench, there are wholly contradictory views on whether common law proportionality even exists; Lin concluded that it does, and Browne, Crompton, and Prescott concluded that it does not.
Quite apart from this are cases where the court, while not expressly rejecting common law proportionality, has some timidity in recognising its existence. In R (Dennehy) v SSJ  EWHC 1219, for instance, while Singh J accepted at  that a Kennedy/Pham-style approach to common law review could produce identical outcomes to the HRA, he did not go so far as concluding that this reaches proportionality. Indeed, in his discussion of common law from -, he labels the appropriate standard as ‘irrationality’ and does not refer to  of Pham where Lord Mance stated that the tool of proportionality can be available outside the HRA. Similarly, in R (Henley-Smith) v SSJ  EWHC 1948, concerning a statutory provision on early release from prison, while Lang J expressed scepticism about fettering discretion with a common law requirement of proportionality at , she never ruled it out and at  she decided that, if it was relevant, the decision would be proportionate. Thus, alongside outright rejection from the High Court bench, sits notable timidity and reticence.
Such behaviour is also evident where the court avoids the common law proportionality issue, despite it being raised by counsel, by deciding the case on other grounds. In R (AB) v SSHD  EWHC 1490, for instance, Judge Clive Heaton QC concluded at  that whether proportionality was available did not need to be decided because the decision was unlawful on, ‘…unvarnished Wednesbury grounds’ anyway. Similarly, in R (Hurley) v Secretary of State for Work and Pensions  EWHC 3382, Collins J decided at  that the claimant did not need to argue common law proportionality because the HRA was implicated. Judicial timidity and reticence on this issue is a thread running through the jurisprudence.
Proportionality in administrative law has a patchy history in some common law nations. The doctrine has had a lukewarm response in Indian administrative law, for instance. The same is the case in English law. Celebrations lauding Kennedy and Pham as game-changers have been premature. Indeed, examining some lower court judgments, there remains express disagreement on the existence of common law proportionality, with S1 and Lin recognising its existence but Browne, Crompton, and Prescott rejecting its existence. Alongside this disagreement, some courts have been hesitant to state that common law review may reach proportionality standards (Dennehy and Henley-Smith), while others avoid the discussion altogether and rely on traditional grounds (AB and Hurley). Perhaps most worrying are cases where this discussion is not had at all because counsel does not argue for a standard beyond bare reasonableness even though more stringent review may be proper (Semeda). Consequently, the conclusion must be that the journey to common law proportionality has by no means reached its destination; judicial road-bumps have slowed the traffic.