Proportionality Flashcards
When is proportionality review used?
under the HRA, not a general ground of JR
Lord Diplock in GCHQ 1985- possible adoption in the future
Proportionality Test- 3 stages
Ex parte Daly- prisoner, whose letters between him and the lawyer were being read as part of the cell search
- Was the limitation of the right, in pursuit of a legitimate aim?
- Is the decision made rationally connected with the aim being pursued?
- Did the decision infringe that right no more than strictly necessary?
4th stage of the Proportionality Test
Bank Mellat 2013- did the decision strike a fair balance between the rights of the individual and the community?
Let’s begin with stage 1- the pursuance of a legitimate aim- case law
it is rare for appellants to fail on this stage
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
Now, stage 2- rational connection between decision and aim- very similar to irrationality
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
Now, stage 3- was the right entrenched more than strictly necessary? Should the pubic body use alternatives?
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
Final stage- the balancing stage- Bank Mellat- can lead to very in depth assesstment
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
Irrationality v Proportionality
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
Lord Mance in Kennedy 2014
Proportionality is a clearer test to apply than unreasonableness/irrationality
Pham 2015
Proportionality does not necessarily harm separation of powers
contrast with Daly