ProportionalityThe 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  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  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  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)  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  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  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  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  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."
Categories: 4th Edition, Chapter 14, Updates