Proportionality

Question 1

When is proportionality review used?

Answer 1

under the HRA, not a general ground of JR
Lord Diplock in GCHQ 1985- possible adoption in the future

Question 2

Proportionality Test- 3 stages

Answer 2

Ex parte Daly- prisoner, whose letters between him and the lawyer were being read as part of the cell search

1. Was the limitation of the right, in pursuit of a legitimate aim?
2. Is the decision made rationally connected with the aim being pursued?
3. Did the decision infringe that right no more than strictly necessary?

Question 3

4th stage of the Proportionality Test

Answer 3

Bank Mellat 2013- did the decision strike a fair balance between the rights of the individual and the community?

Question 4

Let’s begin with stage 1- the pursuance of a legitimate aim- case law
it is rare for appellants to fail on this stage

Answer 4

Case law: Gilham 2019- no aim put forward at all
Steinfield and Keidan- gay marriage; court said they need time to provide an alternative to marriage- this isn’t a legitimate aim

Question 5

Now, stage 2- rational connection between decision and aim- very similar to irrationality

Answer 5

Quila 2011- court prevented issue of visas for under 21s, in relation to preventing forced marriages- court found a link, yet loose
R (T) v Secretary of State for Home Department 2014- stealing a bike at the age of 11, goes on a criminal record as a caution- court found no link between child caution and the ability to work with children as an adult

Question 6

Now, stage 3- was the right entrenched more than strictly necessary? Should the pubic body use alternatives?

Answer 6

Daly- any other methods for searching cells to prevent crime
Tigere 2015- offering student loans to those with ‘indefinite leave to remain’- the court deemed this as answerable by Parliament
R (SC) 2021- social benefits- Lord Reed- women tend do to more childcare than men, so child benefit rights are likely to be discriminatory in that sense

Question 7

Final stage- the balancing stage- Bank Mellat- can lead to very in depth assesstment

Answer 7

R (Begum) 2006- school’s uniform policy on fully covering items- jilbab- no disproportionality was found
Huang 2007- Lord Bingham- the competing considerations on each side

Question 8

Irrationality v Proportionality

Answer 8

Both grounds of review look at the substantive or merits of the decision
Should bifurcation (splitting in 2) continue- proportionality is available in HRA, irrationality at common law

Question 9

Lord Mance in Kennedy 2014

Answer 9

Proportionality is a clearer test to apply than unreasonableness/irrationality

Question 10

Pham 2015

Answer 10

Proportionality does not necessarily harm separation of powers
contrast with Daly