Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2010 Proportionality, Rationality and Review Paul Craig Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Common Law Commons, and the Jurisprudence Commons Recommended Citation Craig, Paul, "Proportionality, Rationality and Review" (2010). Articles by Maurer Faculty. 2455. https://www.repository.law.indiana.edu/facpub/2455 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. 265 Proportionality, Rationality and Review PAUL CRAIG* This article responds to Mike Taggart ' bifurcation thesis and his argument that proportionalityshould be reservedfor rights-based cases, with low intensity rationalityreview being usedfor other types of case. I argue to the contrary that proportionalityshould be a general principle ofjudicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review. The article begins by addressing the advantages of proportionality as a head of review. The argument then shifts to consideration of Mike Taggart ' preferredposition of proportionalityfor rights-basedcases combined with low intensity reviewfor other administrativelaw challenges. It is argued that this position does not cohere with positive law, and that it is not desirable in normative terms. The remainder of the article is premised on the assumption thatrationality is accordeda broadermeaning. I address various objections to proportionalitybecoming a general head of review, and contend that these arguments are mistaken or misplaced. I Introduction The debate concerning rationality and proportionality as tests for judicial review has taken on new vigour.' Mike Taggart has argued in favour of the retention of rationality review alongside proportionality.2 So too have Tom Hickman and Jeff King, as evidenced by their contributions to this *Professor of English Law, St John's College and the University of Oxford. I am grateful for comments from Tom Hickman, Jeff King, Philip Joseph and the anonymous reviewer. 1 Lord Woolf, Jeffrey Jowell and Andrew Le Sueur De Smith's Judicial Review (6th ed, Sweet & Maxwell, London, 2007) at [11-075]. 2 Michael Taggart "Proportionality, Deference, Wednesbury" [2008] NZ L Rev 423. 266 [2010] New Zealand Law Review volume3 and by earlier work,4 while Dean Knight has expressed scepticism about proportionality.' They have joined others such as Philip Sales' and Mark Elliott' who have advanced a similar argument, although there are differences of view among those who subscribe to this general line of thought. David Mullan argues, however, that proportionality should inform rationality review.' There are others, such as Murray Hunt and Philip Joseph, who contend that "bifurcation" should be resisted.' I fall into this camp. This article will therefore defend the view that proportionality should become a general head of judicial review. The structure of the argument is as follows. It will be argued in part II that proportionality can readily apply as a standard of review to all types of case, irrespective of whether they are con- cerned with rights or not. This will be exemplified by reference to Eropean Union (EU) law, in which proportionality has fulfilled this role for nearly forty years. There will be a brief analysis of the positive law, followed by consideration of the normative foundation for proportionality review. The focus in part III shifts to analysis of Mike Taggart's preferred position of bifurcation. His position is premised on the application of proportionality to rights-based cases, with traditional Wednesbury rationality review10 applying outside this sphere, to what he classifies as cases concerned with "public wrongs". It will be argued that this intellectual position is open to practical objection, and does not cohere with what the courts have actually been doing. It will also be contended that this view is undesirable in normative terms. The remainder of the article addresses a different version ofthe bifurcation argument. This version is based on the assumption that proportionality review should be applicable in rights-based cases, with a broader form of 3 Tom Hickman "Problems for Proportionality" [2010] NZ L Rev 303 ["Proportionality"]; Jeff King "Proportionality: A Halfway House" [2010] NZ L Rev 327. 4 Tom Hickman Public Law after the Human Rights Act (Hart, Oxford, 2010) [Public Law] chapter 9. 5 Dean Knight "Mapping the Rainbow of Review: Recognising Variable Intensity" [2010] NZ L Rev 393. 6 Philip Sales and Karen Steyn "Legitimate Expectations in English Public Law: An Analysis" [2004] PL 564 at 588-591. 7 Mark Elliott "The Human Rights Act 1998 and the Standard of Substantive Review" (2001) 60 CLJ 301. 8 David Mullan "Proportionality - A Proportionate Response to an Emerging Crisis in Canadian Judicial Review Law?" [2010] NZ L Rev 233. 9 Murray Hunt "Against Bifurcation" in David Dyzenhaus, Murray Hunt and Grant Huscroft (eds) A Simple Common Lawyer: Essays in Honour ofMichael Taggart(Hart, Oxford, 2009) 99; Philip A Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007) at [21.7.5]. 10 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [ 1948] 1 KB 223 (CA). Proportionality,Rationality and Review 267 rationality review applying outside this terrain. Advocates of this position maintain that even if rationality is accorded this broader meaning, it is nonetheless preferable to preserve bifurcation, because of what they perceive to be disadvantages attendant upon the application of proportionality in cases that are not concerned with rights. These arguments will be critically analysed in part IV of this article. II Proportionality as a General Head of Review There are varying dimensions to the debate concerning proportionality as a general head of review. It is therefore helpful to begin by recognising that proportionality can as a matter of positive law fulfil this function. This is best approached not in the abstract, but rather by consideration of a legal system such as EU law in which proportionality fulfils this role as a general head of review. There will be a brief overview of the positive law, followed by consideration of the normative foundation for proportionality operating as a general head of judicial review. A Positive law The Treaty establishing the European Community (the EC Treaty) did not contain an explicit, detailed set of principles against which to test the legality of Community or state action. It therefore largely fell to the European Court of Justice (ECJ) and the Court of First Instance (CFI) to fashion principles of administrative legality. In undertaking this task they reasoned partly from specific Treaty provisions which justified Community action only where it was "necessary" or "required" in order to reach a certain end. They also drew upon principles from national legal systems and fashioned them to suit the needs of the Community itself. The concept of proportionality was most fully developed within German law, in which it appeared initially to challenge policing measures that were excessive or unnecessary in relation to the objective being pursued. Proportionality is now established as a general principle of Community law." There was early reference to proportionality in the case law concerning 11 Grdinne de Biirca "The Principle of Proportionality and its Application in EC Law" (1993) 13 YEL 105; Aldo Sandulli "Eccesso di potere e controllo di proporzionalitA: Profili comparati" (1995) 45 Rivista Trimestrale di Diritto Pubblico 329; Nicholas Emiliou The Principle of Proportionalityin European Law: A Comparative Study (Kluwer Law International, London, 1996); George Gerapetritis The Application of Proportionalityin Administrative Law: Judicial Review in France, Greece, England 268 [2010] New Zealand Law Review the European Coal and Steel Community (ECSC).12 The principle was, however, developed more fully after the decision in InternationaleHandels- gesellschaft,13 where proportionality was used to challenge the system of deposits for import and export licences. While the action failed on the facts, the judgment nonetheless established proportionality as a ground of review. A version of the principle was also enshrined in art 5 of the EC Treaty as part of subsidiarity, and is now after ratification of the Lisbon Treaty to be found in art 5 of the Treaty on the Functioning of the European Union (TFEU). The EU courts have been primarily responsible for determining the meaning of proportionality. The proportionality inquiry requires the relevant interests to be identified, with some ascription of value to those interests, since this is a condition precedent to any balancing operation. The courts will inquire whether the measure was suitable or appropriate to achieve the desired end. They will also examine whether it was necessary to achieve that objective, or whether this could have been attained by a less onerous method. There has been some uncertainty as to whether the third element, often referred to as proportionality strictosensu, is also part of the Community