#14840 - Legality Rationality Controls - Comparative Public Law

Proportionality & Unreasonableness

UK

Framework of UK thought

• Dichotomy in GCHQ per Diplock LJ – distinguish between illegality & irrationality controls

  • Illegality –

    • Controls over improper purposes

    • Controls for relevancy/irrelevancy

  • Irrationality – Wednesbury irrationality

• Conceptual foundations of dichotomy

  • Illegality controls –

    • Based in separation of powers – courts are demarcating boundaries of statutory powers – jurisdictional error to act for an improper purpose / having regard to irrelevant considerations etc

    • Matter of statutory interpretation

    • Court substitutes judgment as to statutory construction of provision conferring power – ie not relevant that authority makes bona fide interpretation in error

  • Irrationality control –

    • Presumes that illegality controls are not breached – public body acting within jurisdiction

    • Courts more reluctant to interfere with exercise of discretion

    • Not substitute of decision – whether so irrational that no reasonable body could have made decision

Illegality

• Illegality controls are exercise of statutory interpretation but are not free of evaluative judgment

  • Improper purpose cases often involve evaluative judgments

    • Bromley per Diplock LJ – acknowledging that purpose of statute unclear

    • Reading in principles – eg rule of law in Corner House

    • Can create contentious results

  • PC says there is inherent malleability in whether court intervenes and whether does so on illegality or irrationality grounds

    • Judges seeking more scope to intervene will go for illegality

    • Judges not minded to intervene can use deference to discretion to avoid intervention

• Approach taken often depends on level of abstraction of inquiry

  • More abstract the inquiry, more likely that public body will surmount illegality controls & case will have to be dealt with by irrationality controls

  • More specific the inquiry, more likely that the public body will fail at illegality controls

  • Eg Wednesbury example – dismissal of teacher for colour of hair

    • Abstract inquiry – Is it a relevant consideration to consider physical appearance? Probably (eg piercings/punk hair) – would have to go on to consider whether particular case is irrational

    • Specific inquiry – Is it a relevant consideration to consider a natural physical characteristic? Probably not – fails at illegality stage

  • Fairly impossible (especially in adversarial context) to mandate level of abstraction: eg Corner House (looked at illegality, largely as a result of how counsel framed question); Lord Green in Wednesbury admits that the two shade into each other

    • In practice, interesting therefore that the two are not put in the alternative

Irrationality in UK law

• Test – if public body within jurisdiction, assumption (founded in separation of powers) that Courts should not readily intervene

  • Ie that no reasonable body would ever make the decision / defiance of logic / morally outrageous

• Does separation of powers justify limited approach in GCHQ?

  • Spectrum

    • Naturally, separation of powers requires that court not substitute judgment on merits in discretionary matter

    • BUT any control necessarily involves some view of the merits

      • Judicial statements of not going into merits is a fiction – have to define scope of ‘reasonable’ decisions

  • PC thinks that there should be (and actually is) a more accessible test

    • Under Wednesbury test no administrative action would ever reach that level of absurdity – but actions do succeed so there must be a different test applied in practice

• Subtle variations to Wednesbury test

  • Fundamental rights cases: Brind (pre-HRA) – reasonableness review is variable & where decision affects fundamental rights, court will be more intrusive

  • Other methods of variation:

    • Judges pretend to apply Wednesbury to allow relief for the plaintiff, but application stretches credulity

    • Judges reformulate test slightly, with adjectives/adverbs, etc: ITF; Daly (eg decision which reasonable body should have made in all the circs)

    • “Anxious scrutiny” – requires closer scrutiny of facts by primary decision-maker and on judicial review

      • used partly in fundamental rights cases pre-HRA but also in other cases – generally asylum & immigration cases

  • PC says would be preferable to actually reform the test rather than have these “pressure valves”

    • Closer to ‘anxious scrutiny’ test

    • Lord Sumption recently made a speech against ‘anxious scrutiny’

Proportionality in UK law

• Positive law – only relevant

  • Where HRA applicable: Daly

    • See Smith v Grady (ECHR)

  • EU law – binds member States when performing EU functions

  • (Also some legitimate expectation cases)

• PC thinks should be a general head of review

EU

History & Background

• Same duality by different names: misuse of power & proportionality

  • Misuse of power –

    • In some cases, mala fide = similar to French law concept of detournement de pouvoir

    • In others, similar to improper purpose cases in UK

  • Proportionality

    • As above, presumes that ‘misuse of power’ head does not apply

    • Significantly more common than misuse of power cases, because more difficult to win on misuse of power in EU than on improper purpose in UK

Proportionality

• History – General principle of law fashioned by ECJ, gains traction in 1970s

  • Interesting as not developed in that many countries – not in France or many other civil systems

  • Very developed in German law

• Test: 3 or 4 levels

  • Legitimate purpose – was purpose pursued legitimate?

  • Necessity – was action necessary in the circumstances?

  • Suitability – was measure suitable to achieve the objective?

  • Stricto sensu proportionality – even if necessary & suitable, is burden on individual nonetheless too great/severe?

• Applied in all cases – general head of review

  • PC a big fan

  • Arguments against proportionality – that too burdensome on administration – don’t seem to have been borne out

• Intensity of review – 3 kinds of case

  • Where public body has economic/social/political discretion – Low intensity – most common – bringing claim against EU institution – must show manifest disproportionality

    • Rationale based on separation of powers, deference to exercise of discretion

    • Civil legal systems – generally judges do not defer to political arm of government – don’t frame explicitly in that way but test acknowledges the tension

    • Not easy to win, but Courts are more willing to apply than UK courts in Wednesbury cases

  • Fundamental rights cases – Courts more willing to intervene

    • Fundamental right asserted is often ‘softer’ right (eg trade, property), also often quite weak on facts, so intervention in this area is not as visible: but see eg Caddy (No 2)

Application to member State actions

• Proportionality as general principle of law applicable to member States when acting as EU agent

• Paradigm case – defence to breach of one of 4 freedoms

  • Economic freedoms (freedom of workers, goods, establishment/services & capital)

  • In each area – no discrimination based on nationality

  • But member state can defend based on public policy considerations – health, security, etc

  • Court requires that decision to exclude has to be proportionate to risk

  • Quite a searching scrutiny

• Literature queries whether ECJ applies tougher approach to member States than to its own institutions

  • When used against member States trying to raise defence to breach of freedoms, there is a prima facie breach of treaty obligation – so arguably not surprising that there is greater scrutiny

  • Deference to freedom of States to regulate different activities to different extents: Omega Air

    • Eg the fact that different States regulate gambling to different extents is not conclusive as to proportionality

France

Proportionality?

Benjamin cases — Discharge of duty to protect the public <> protection of rights

• “Maximum control” in Benjamin (1933) (mayor forbidding speech at conference – of extreme right attacking public education – said in order to maintain order – risk of violent demonstrations went further than necessary – mayor must protect public steps but should do minimum necessary, eg marshalling police to prevent violent protest – breach of right to assembly — annulled)

  • But decision was 3 years after conference had been scheduled

  • Politically unstable period with split between extreme right & left during the depression & between the wars

  • NB also could have been misuse of power — mayor was involved in political demonstrations against the conference

  • Benjamin (No 2) — sought damages based on illegality

    • At that time, required to show faute lourde — but was established — damages granted

• Proportionality? — Dieudonné (2014) (Ministry of Interior issued circular to mayors re anti-Semitic comedian — gave reasons to be employed in banning his shows — shows banned based on right to dignity — D continued to make same statements despite criminal convictions — public order requires avoiding systematic breach of the law ban is legal)

  • Previous decisions following Benjamin said that freedom of expression precluded banning the shows based on public order

  • First reference in CE to proportionality review — adequate, necessary & proportionate

• Imposes expense on administration & interferes with public policy choices as to distribution of resources

• NB Conseil Constitutionnel had adopted & applied proportionality as early as 2008

• Examples

  • Requires evaluative judgment – not simply deference

    • Benjamin (1933) (mayor forbidding holding of a conference – said in order to maintain order went further than necessary – annulled)

    • Action Francaise...