Proportionality Test in Administrative Law

This assignment discusses the concept of proportionality test in administrative law, comparing it with the Wednesbury doctrine. It explores the development and evolution of the doctrine of proportionality and its application in European administrative law. The assignment also analyzes the divergence and convergence of the proportionality and Wednesbury doctrines, and their review in England, India, and Sri Lanka.

Running head: ADMINISTRATIVE LAW
ADMINISTRATIVE LAW
Name of the Student:
Name of the University:
Author Note:

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Introduction:
In the present assignment, the concept of proportionality test is being compared, weighed
and analyzed in the light of Wednesbury doctrine1. Proportionality is a very important and
significant method of judicial review. It has been a stable tool since ages and has developed and
evolved from the unreasonableness concept. The doctrine of proportionality has been generated
as a theory of law, used by the judges over years2. This doctrine is a well settled concept in the
European administrative law. In the Proportionality test, the court will nullify the exercise of
discretionary powers where there is no relation between the objective sought to get achieved and
the ways used for it, or when the punishments inflicted by the administrative organs or courts are
totally out of proportionality to the particular misconduct.
In the present days, the government and statutory authorities have a wide variety of
discretionary powers. But, these powers are subject to many conditions. They have to be
exercised for public interest and public good. But, such discretionary powers are wrongly
exercised and abused by the authorities and officers using them. Hence, new developments and
advancement of administrative law led the courts to embrace and apply new techniques and
tricks to control the arbitrary usage of administrative powers at their discretion. In common law,
the judicial system does not interfere into the administrative work. This is due to the relation
between Parliamentary and Constitution as one cannot enter into the jurisdiction of another
giving due respect and importance to the freedom of every branch. However, in recent days, with
the introduction of fundamental rights together with human rights, different view is being
observed.
1 Wang, Daniel Wei L. "From Wednesbury Unreasonableness to Accountability for Reasonableness." The
Cambridge Law Journal 76.3 (2017): 642-670.
2 Young, Katharine. "Proportionality, Reasonableness, and Economic and Social Rights." (2017).

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In this assignment, a thorough analysis of these two tests in the administrative law is
being done.
Discussion:
The theories of Proportionality and unreasonableness are amalgamated together to
provide a proper formula to the judicial review to combat administrative law’s irrationality. The
principle of Proportionality can be regarded as a result arising from Wednesbury
unreasonablenes. This test was developed to analyze any arbitrary and discriminating action,
which has been discussed in this assignment.
The rule of proportionality can be said to be a result out of Wednesbury
unreasonableness. The judicial system was found to be reluctant to enter into the administrative
law and analyze its work. Later on the proportionality test evolved to review any non
proportional action. Wednesbury principle is a tool to challenge administrative action.
Origin of Wednesbury unreasonableness:
Previously, when a body was given with certain powers which the courts used to adopt in
different attitude, since it was casual in analyzing the administrative work. Associational
Provincial Bank Houses v Wednesbury Corporation, was the popular case that referred to the
situation when the basic unreasonableness principles were confirmed and discussed. In his
judgment, Lord Greene had considered the limit of power of court to interfere in administrative
work. He further provided a test for unreasonableness, which said that whether any authority had
acted or reached any decision, in a so unreasonable way that no reasonable authority could have
ever come to it. There are innumerable cases where the concept of unreasonableness was used in

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the trial as a strong ground like the cases of Bromley LBC v GLC3, JR. Roberts v Hopwood4 and
Wheeler v Leicesteer CC5.
However, underpinning the Wednesbury principle of reasonableness has been very
difficult as it is a subjective concept since opinions can change massively on whether a decision
is reasonable or not. Another aspect discussed in the case of British Airways Board v Laker
Airways was that it could be difficult to interfere into the matter of unreasonability if such matter
is related to superior or political constitutional affairs. Moreover, the courts have applied the
opinion that the unreasonableness test does not allow suitable shield for conventional rights.
Lord Diplock analyzed the new grounds of review and decided to use the term ‘irrationality’ to
illustrate ‘Wednesbury unreasonableness’. Lord Dipock while defining irrationality as held that it
applies to the decision which is so disgraceful in applying logic or moral standards that no
sensible reasonable person who had applied his mind and thought to the issues to be decided
could have arrived at it.
Thus the orthodox Wednesbury formula resulted in the courts adopting ab standard of
objective. The standard acknowledges that two different persons may conclude two different
decisions and still not infringe their reasonable rights. However, when a fundamental right is
breached, the English Common law courts used to analyze the justification given by the decision
maker for adopting such decision. A strong and significant justification is to be given if
fundamental human rights are grossly breached.
3 Bromley LBC v GLC [1982] 1 All ER 129, HL.
4 JR. Roberts v Hopwood [1925] AC 578.
5 Wheeler v Leicesteer CC [1985] 2 All ER 1106.

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Origin of Proportionality:
The concept of proportionality is basically has its origin in Europe and is generally
regarded as the general principle of community law6. This principle is extracted from German
law, where it is referred to as the ‘Verhaltnismassigkeit’, and it comprises of certain provisions
of that country’s constitution. Proportionality is based on the principle that a public authority
must not impose any obligations on the citizens unless it is extremely needed in the public
interest. As a basis of European Community law, proportionality is often used synonymously
with reasonableness.
Divergence of the two doctrines:
It has been found significantly that the verdict given by majority of the cases does not
change on the basis of the standard of review applied and this has been followed by most of the
senior judges. There are innumerable case laws where the senior members of the judicial system
have held that majority of the cases applying principles of proportionality and Wednesbury will
not give different results. Alec Samuels, a practitioner, holds a very fair practical example to
show that the doctrines are not similar to each other. He said that proportionality had been
accepted in the English law significantly. It can be the same irrationality concept, illustrated in a
different terminology. They can be different to some extent but they overlap considerably.
However, the argument that these two doctrines are similar and inter linked is not found in the
case of Smith Grady v United Kingdom7. In this case, two applicants were dismissed from their
service in Royal Air Force on the ground that they are homosexual. The court of Appeal upheld
the dismissal considering it legal. The court in this case limited its view to Wednesbury review.
When appeal was made to the European Court of Human Rights, the decision to dismiss on the
6 HU, Haifan. "Proportionality: A General Ground of Judicial Review?." Available at SSRN 2804453 (2016).
7 Smith Grady v United Kingdom (1999) 29 EHRR 493.

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basis of homosexuality was held disproportional. This for the first time showed a gap between
these two theories where proportionality could protect the victim against an injustice which
Wednesbury failed to do. It is not possible for two similar doctrines to result into different
outcomes. Even when it is found in most of the cases, that they provide same decisions, in this
particular case, it failed to do so. Rather two completely different decisions came up using these
two theories. Hence , there lies divergence in between these two ‘similar’ doctrines.
Converging of the theories:
Wednesbury is the doctrine that is subjected to strict judicial reviewing, most notably in
the Court of Appeal judgment in R (ABCIFER) v Secretary of State for Defence8. Here Dyson
LJ held in the case that the existence of these two doctrines is unnecessary, confusing and not
needed. In this case, the court reluctantly applied the Wednesbury principle. The motion to
replace Wednesbury was mainly taken in four landmark cases. The first one was the Kennedy v
Charity Commission9. In Pham v Secretag of Statefor the Home Department 10, Lord Sumption
observed that though English law has not applied the doctrine of proportionality and he was
following the trend of taking the approach of fundamental change slowly. This idea was again
supported by the main case of Keyu and others v Secretary of State for Foreign and
Commonwealth Affairs and Another11, Lord Neuberger PSC came very close to replace
Wednesbury review with proportionality. In R (Youssef) (n 18), an Egyptian national arrived in
UK in 1994 claiming asylum. His application was rejected because of his membership of Al-
Qaeda. Mr. Youssef could not be deported because of the fear that he could be tortured causing
breach of Article 3 ECHR12. He was convicted by the Egyptian court and his assets were frozen.
8 R (ABCIFER) v Secretary of State for Defence [2003] EWCA Civ 473; [2003] QB 1397 [33].
9 Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 455.
10 Pham v Secretag of State for the Home Department [2015] UJKSC 19, [2015] 1 WLR 1591 [103 and 108].
11 Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and Another [2015] UKSC 69.
12 ECHR (n 38).

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It was observed in the case considering the gravity of the case, the court was wrong to limit its
ambit of Wednesbury unreasonableness or irrationality as the appellant was entitled to
proportionality analysis.
The court has amended the proportionality doctrine so as to bring it on the same footing
of the Wednesbury doctrine by giving more esteem to the Government in departments of national
securities and other delicate issues.
Changes in Proportionality review:
With the change in laws, society and peoples’ nature, the proportionality doctrine is also
changing. It is becoming more flexible day by day in its application. In theory, though it is found
to be very rigid in modification, in practical application, it is not so. Due to the virtue of Costa v
ENEL, European Union law has supremacy over conflicting national law, it appears that the EU
law dimension is a convenient factor to cover the real wish of the court to use proportionality13.
This is remarkable and must not be overlooked that the courts are trying to frame the facts and
issues of the case in such a way so as to expand the scope of doctrine of proportionality. It cannot
be denied that the doctrine of proportionality is approaching towards the Wednesbury principle
as their spheres of application have started to overlap one another. It cannot be possible if these
two doctrines, which are dissimilar by nature, are not heading towards one another. However it is
at the discretion of the court to choose which theory to apply.
Thus though it can be seen that the judicial system is trying to abolish the Wednesbury
principle, but in actual it is found that it cannot do so as the doctrine of proportionality has been
modified by incorporating characteristics of the Wednesbury.
13 Flaminio Costa v ENEL [1964] EUECJ C-6/64; [1964] ECR 585.

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Review for Unreasonableness and Proportionality in England, India and Sri Lanka:
The doctrines of unreasonableness and proportionality are descendants of common law
relation. Though India and Sri Lanka both have a constitutional foundation for the purpose of
judicial review, in England the process is very complex. Still both India and Sri Lanka have been
highly influenced by the English public law because of their similar history and ideological
concurrence.
In England, the Wednesbury principle has been a central point of focus of judicial review
involving irrationality for almost half a century. However, the limitations imposed by the
Wednesbury doctrine have got huge attention and criticisms. According to Wade and Forsyth,
reasonableness should incorporate mainly three standards of review; the traditional Wednesbury
test, the scrutiny test created by the domestic law in the case where fundamental right is at
danger and the proportionality test where the European Union or Human Rights are in issue. In
the light of recent English decisions it can be suggested that the proportionality review is being
widely followed and applied and it is gradually germination in the English proportionality
review.
In India, the unreasonableness (irrationality) and proportionality conditions are well
established in judicial review in India. The Indian Supreme Court has the power to invalidate any
law which is inconsistent to Article 14 of the Constitution. Article 19 that deals with protection
of freedom of speech, assembly, movement and certain allowable restrictions has also been
interpreted to apply the requirement of reasonableness and/or proportionality. In spite of the fact
that the judgment given in the Indian Courts suggests that proportionality review can only be
lawfully applied when a fundamental right is breached, the case of Union of India v

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Ganayutham14 is now regarded as the benchmark for recognizing the doctrine of proportionality
in Indian administrative law.
In Sri Lanka, the administrative action is subjected to override the judicial supervision by
the exercise of the fundamental rights jurisdiction of the Supreme Court and the prerogative writ
jurisdiction of the Court of Appeal and Provincial High Courts. The Supreme Court of Sri Lanka
in old days used to take references and ideas from the jurisprudence of Supreme Court of India
and on the basis of it gradually developed its own jurisprudence. In Sri Lanka, the Wednesbury
principle was a well established and popular basis of judicial review and it was greatly used in
the arbitrary actions in relation to claims for equality in the country. In Gooneratne v
Commissioner of Elections15, the first respondent, the Election Commissioner ordered that
Eksath Lanka Janatha Pakshaya (EJLP) must not be given recognition of the political party. The
claimant alleged that it was violation of his right to equality under article 12 of the constitution.
The Election Commissioner on the other hand tried to prove that EJLP did not satisfy the criteria
required for its recognition. Sharvananda CJ referred to the statutory provisions16 and held that
Commissioner of Elections had misdirected in law and had refused to recognize the eligibility of
EJLP. The Supreme Court decided that the Commissioner of Elections violated the fundamental
rights of the claimant infringing his right to equality.
In another case of Karunathilika v de Silva17, the matter of dispute was right to equality
under article 12 (1) of the Constituion. The issue involved here was refusal of the admission of
14 Union of India v Ganayutham AIR 1997 SC 3387.
15 Gooneratne v Commissioner of Elections [1987] 2 SriLR 165.
16 The Parliamentary Elections Act, No 1 of 1981, Section 7 (5)
17Karunathilika v de Silva [2003] 1 SriLR 35

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the child in a school in spite of fulfillment of all the criteria for admission. The Supreme Court
held that such refusal was an decision made arbitrarily which infringes his right to equality.
The Supreme Court also used the principle of proportionality in order to review the
lawfulness of governmental acts and decisions. In Abeysekera v Competent Authority18, the
Supreme Court hold that the regulations which confer arbitrary powers of censorship upon
administrative officials must be quashed when they are overboard. The cases discussed above
shows that the courts are not bound to use proportionality as review ground in Sri Lanka. With
the growth of fundamental rights jurisprudence, the courts itself conduct the proportionality
inquiry to determine whether an executive or administrative action has been arbitrary and
unreasonable. Moreover, the Appellate courts and the Provincial High Court had used the
principle of proportionality and Wednesbury unreasonableness to adjudicate acts of
administrative offices. As a result, the Wednesbury standard of review has survived its use in the
contemporary judicial review.
Conclusion:
Proportionality has formed a good ground of review for adjudicating the rationality and
legality of administrative actions firmly establishing it in the respective jurisdictions. The result
of this is that sphere in which Wednesbury unreasonableness operated as a tool of reviewing is
gradually getting eroded which implies that the Wednesbury principle cannot coexist with
proportionality. Moreover, the traditional distinction between Wednesbury reasonableness and
proportionality is becoming less prominent. Slowly these two types of review system are being
18 Abeysekera v Competent Authority [2000] 1 SriLR 314.

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fused together such that with time Wednesbury review is overshadowed by proportionality and
downgraded to being an antique of the past.

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References:
Abeysekera v Competent Authority [2000] 1 SriLR 314
Bromley LBC v GLC [1982] 1 All ER 129, HL
ECHR (n 38)
Flaminio Costa v ENEL [1964] EUECJ C-6/64; [1964] ECR 585
Gooneratne v Commissioner of Elections [1987] 2 SriLR 165
HU, Haifan. "Proportionality: A General Ground of Judicial Review?." Available at SSRN
2804453 (2016)
JR. Roberts v Hopwood [1925] AC 578
Karunathilika v de Silva [2003] 1 SriLR 35
Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 455
Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and Another [2015]
UKSC 69
Pham v Secretag of Statefor the Home Department [2015] UJKSC 19, [2015] 1 WLR 1591 [103
and 108]
R (ABCIFER) v Secretary of State for Defence [2003] EWCA Civ 473; [2003] QB 1397 [33]
Smith Grady v United Kingdom (1999) 29 EHRR 493
The Parliamentary Elections Act, No 1 of 1981, s7 (5)

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Union of India v Ganayutham AIR 1997 SC 3387
Wang, Daniel Wei L. "From Wednesbury Unreasonableness to Accountability for
Reasonableness." The Cambridge Law Journal 76.3 (2017): 642-670
Wheeler v Leicesteer CC [1985] 2 All ER 1106
Young, Katharine. "Proportionality, Reasonableness, and Economic and Social Rights." (2017)