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The European doctrine of proportionality means that, ‘an official measure must not have any greater effect on private interests than is necessary for the attainment of its objective’:Konninlijke Scholton-Honig v Hoofproduktchap voor Akkerbouwprodukten [1978] ECR 1991, 2003.

Proportionality is probably not a ground for review separate from judicial review, but when a decision is challenged by judicial review the new approach required under the HRA was described by Lord Steyn in R (Daly) v The Secretary of State for the Home Department [2001] 2 AC 532, paragraphs 25 – 28. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Minister of Defence ex parte Smith [1996] QB 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v The First County Trust Limited (No. 2) [2004] 1 AC 816, paragraph 62-67. Proportionality must be judged objectively, by the Courts: R (Williamson) v The Secretary of State for Education and Employment [2005] 2 AC 246, paragraph 51. See also the comments of Lord Bingham in the case of R(SD) v The Governors of Denbeigh High School [2007] 1 AC 100, para 30.

Exactly how the courts should approach issues of proportionality was discussed by Lord Steyn in the case of R (Daly) v SSHD [2001] 2 WLR 1622, in which he said at paragraph 27: "The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

And see also the cases of R (Samaroo) v SSHD [2001] EWCA Civ 1139; UKHRR 150 and Smith & Ors v Secretary of State for Trade and Industry [2007] EWHC 1013 (Admin).


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