Administrative Law – Europeanisation And Proportionality Essay, Research Paper
What is ?Europeanisation?? With regards to the principle of proportionality is this europeanisation a valid idea?What is ?Europeanisation? and what effect is it having on our British administrative system? In the last 50 years with the introduction of the European Union there has been a massive impact on both the changing of law in the UK and the way in which powers are focused. Because of the influx in European cases, the law that has followed has affected the English Administrative legal system dramatically.
A key issue that is relevant here is that British law must conform to European Union Law1, therefore every issue that is assessed in Europe, every case or change in legislation and then maintained in law, must be taken in to consideration, and must not be overlooked by the British government. The underlining factor here is that, regardless of whether one desires such a change in law,European Union Law is affecting the power delegated to public and private bodies in the UK. More specifically with regards to administrative law it is the way in which a public and both private body can affect the citizens of our country.
It is the concept of ?Proportionality? that bleeds nicely into the europeanisation of our British Administrative system. In a number of European countries there is this principle of proportionality that expresses ?administrative measures must not be more drastic than necessary for attaining the desired result?2.
It is through an application for judicial review that the principle of proportionality has been used in Europe. It was Lord Diplock, in the G.C.H.Q3 case that classified four types of reasoning why an application might come to light. We know already that three of them; Legality, procedural propriety and rationality are strong in argument. It is this forth controversial theory of proportionality that causes writers the most problems.
Proportionality is by no means a novel subject and has been gradually accepted into the ranks of other European countries for some time. However philosophical one might be in explaining what exactly it is, it will always embody a basic principle of fairness. At present it is not really what proportionality does that is an issue, it is the intentions of the theory, and in attaining a fair trial it creates a balance for both parties that should in theory resolve with a fair and reasonable conclusion.
In many of the cases such as R v Intervention Board for Agricultural Produce [1986] the public body has gone beyond its delegated power and in fact used excessive power and falls into an Ultra vires category. In this case the board of agriculture went beyond its powers in using an ?excessively severe forfeiture? of a license. The doctrine of proportionality, in using ?too much power in attaining the desired result? has been adopted by the European Court of justice in Luxembourg. This means that it will affect British law and will infiltrate into the administrative system, as it must conform to European Union Law.
Because of its more frequent application in Europe it is necessary to discuss how is it being used in other member states and look further at the doctrine of proportionality in a historical context.
If we look first at Germany where it seems proportionality originated, German administrative law requires acts to be exercised with a principle known as ?Verhaltnismassigkeit?, literally translated as relativity. Within this principle lie three interconnected conditions of which one is the proportionality that is used similarly in other European administrative systems. What the courts do is examine the injury caused to the individual rights of a citizen by an administrative action, and the gain or loss that the community suffers. The German courts do emphasise however that there has to be a clear disproportionality between the parties.
An example of a disproportionate case is where an authority could not grant a character reference for an individual wishing to apply for a job. In this case the individual had criminal proceedings that were still pending. What the court held was that using the theory of proportionality the refusal of the reference was completely disproportionate. This was solely because the failure to produce a reference contravened with the right to apply and seek a vocation.4
What has to be taken into to consideration here is ?balance? and how one set of facts and circumstances outweighs another, there has to be in my opinion a straight forward correlation between the administrative action and the result, and above all it has to be reasonable. In this case not granting a reference purely because something criminal is pending is not reasonable.
In cases where proportionality is used as grounds for judicial review, it must be said that the judges have a massive degree of discretion, almost to the point where the case is decided solely on the merits of each side. This perhaps could be described as one of the disadvantages of Proportionality.
Looking further at European writing, it was Guy Braibant in 1974 that welcomed the theory of proportionality into French Administrative law. He considered the principle to be something of a ?rule of common sense.? In defining exactly what proportionality is, he could not of been closer if he tried.
If we look at many of the definitions, in every case we find that it seeks to maintain some kind of balance between any adverse effects for both sides. It all seems so clearly common sensical! So why are we examining proportionality as if it is derived from Europe and not the UK? It is perhaps the highly acceptable nature of the principle in Europe that makes us susceptible in thinking that Europe has created it. Or perhaps in the UK our justice system is that bit more aware of allowing ?dangerous? concepts to be accepted as ?Rules of Law?.
What Braibant also said was that the concept of proportionality is applied in many cases even though it is not specifically expressed. It is something ? beneath the surface?, that should in all respects be included in any judgement. What seems to be the key issue with proportionality is ?reason?. What reasons have we in taking an administrative action? If the circumstances outweigh the action then the action was quite simply non-sensical.
It is not always individuals that apply for judicial review using proportionality. It is the economic and social elements of a democratic society that need to be accounted for. A French case showed that the closing of a polluting power station was balanced to the ?economic and social order? that would follow the closure.5
Proportionality also as a ?principle of law? has been used to interpret areas of the European convention on Human Rights. An example, Article 10 (1) of the Convention guarantees the right to freedom and to impart information and ideas ?without interference by public authority.?
The famous case in the Sunday Times6 showed how proportionality was used to prove the necessity of having an injunction to prevent the publication of private and confidential information. What the Strasbourg court found in this instance, was that using the theory of proportionality, it would include balancing the need for social awareness. In particular whether this information was ?necessary in a democratic? society to protect the authority of the judiciary. It found in fact that the publication proved not to be proportionate to the legitimate aim pursued. It was also not necessary in a democratic society for maintaining the authority of the judiciary.
We can see that proportionality has been used in a European context for many years. Originally developing in European Law it has been applied in English Law. One specific definition of proportionality given by Lord Lowry in the leading British case7 examined the principle as one that requires
? a reasonable relation between a decision, its objective and the circumstances of any given case.?
This concise definition shows how proportionality is a theory that is ultimately intuitive to human nature. Although there has been a lot of European philosophical case law, I think we overlook the point that proportionality is used in every case where the pursuit of legitimate ends should not be oppressively excessive.
I suppose what this essay question seeks to answer is when we refer to proportionality, is whether this ?europeanisation? is a good revolution? When accessing its validity, it is evident that within the member states of Europe other than the UK it is indeed a very strong principle. I myself have encouraged the use of the principle and I am very much in favour of the principle being used in the UK, as an acceptable principle of judicial review.
However before making such a quick conclusion it is necessary to discuss the recent case law in the UK, as there are many drawbacks that can be found when using proportionality.
Again looking at proportionality from a general perspective, it has been found in English case law that perhaps judges are not well equipped by training or experience when dealing with a very balanced administrative case8. One of the more interesting points that was discovered in the Brind 9 case, was that when an administrative case in so balanced and when using proportionality, there will always be something in discussion to argue about. This in turn would allow ?proportionality? to be recognised as a theory that would enable an opportunist defendant to apply for judicial review very easily. Consequently this would take more court time and would increase costs for litigants.
After the case of ?Brind? courts have easily declined to apply proportionality so freely. Significant 90?s case law has denied proportionality as a ?freestanding?10 principle in domestic law. Perhaps it is our traditional nature of law that prevents us from straying so easily into accepting theories that would transform our system into a Europeanised mess?!
In many cases such as Hargreaves11 and Absalom,12 the courts have been very determined to stay strictly to the Wednesbury test. Whenever this principle is mentioned it is always with the adjective of ?tradition?. I think what the English law Lords are trying to do is protect the law and not to accept ?proportionality? and other whimsical principles so easily into our system like our fellow member states, within the European Union.
Personally I believe English Law Lords do actually use proportionality almost to the extent that it is executed in an accidental manner. However it is important to note that they are reluctant in allowing the principle to be ?expressly used? in a court of law. It is almost as if it can be used, but not said or be spoken of. This is shown in R v . Barnsley MBL. exp . Hook [1976] , where Lord Denning struck down a decision because he believed the revoking of a license for urinating and using foul language in a public place was disproportionate.
More specifically what is happening is that our Legal professionals are reluctant when actually referring to a decision or application for judicial review under the title of ?proportionality.?
Our legal system is continuing to become more europeanised, and it is evident that because of the dominance of the European Union maybe one day our system will adopt ?proportionality? as a ?recognised principle of law?. However at present we are still very unsure.
I think maybe it should be considered in every case, but not necessarily adopted as a ?compulsory? principle, here compulsory being the key issue.
Indeed another core question that should be assessed is whether we should adopt ?proportionality? as the General Criterion of Review and discard the Wednesbury principle completely?
However I do not see it possible to pull away from our tradition, when we have such experienced and stubborn Law Lords who have been in the legal system for so many decades. It is matter of taste, yet we should not abstain from using ?proportionality? as it will provide for a useful remedy in future years.
Finally referring back to the E.C directly, it is well known that ?proportionality? is one of the general principles of community law, meaning we are bound to use the principle. However it is only necessary to use proportionality where it specifically involves a dimension of community law.
BibliographyP.P.Craig Administrative Law (New Edition)
Schwarze, European Administrative Law (1992)
Jowell & Lester, ?Proportionality, Neither Novel nor Dangerous.?
G. Braibant, ? Le Principe de proportionnalite,? Melanges Walines (1974)
Wade & Forsyth, Administrative Law 10th Edition
Osbourne?s Concise Law Dictionary 8th Edition
New Directions in Judicial Review. Jowell & Oliver (1988)