Public Law and Judicial Review

Proportionality exists as a ground for oscilloscope aside administrative decisions in most Continental legal systems and is recognised in UK show windows where come forwards of European Community law and ECHR is involved, it seems lawful that the treatment becomes the tired of squ be review in all cases. A significant criticism of the Wednesbury criteria is that they do non allow for the effect on the life of the individual involved to be inferd.Just because a judgement is non so unreasonable as to be incomprehensible does non entertain that it is not disproportionately devastating for the affected individual for example, when resources ar scarce, it whitethorn not be irrational for a local authority to streak their statutory duties under the 1996 Housing Act by offering housing in an area where it is cheap, but the effects on the lives of e. g. a mortal who has become homeless who is only offered accommodation a long mode from good employment prospects, may be enorm ous.In such cases, the remainder hear would reveal that a general policy int expiryed to conserve resources would in f deed of conveyance cause the individuals affected to consume more resources. The state and and so administrative decisions enter into so many areas of the lives of individuals that the idea of bifurcation using proportionality where fundamental rights are concerned and the Wednesbury evidence in all others is misrepresented at best. In areas such as asylum support or housing, it is immensely complex to distinguish the point at which mere interests end and fundamental rights begin.It is both simpler and more logical to assume the same standard for all issues of juridical review. It is also notable that the Wednesbury test is, by its rattling nature, a less transparent methodology than proportionality there are a number of significant cases, such as Wheeler v Leicester City Council, where decisions have been overturned on grounds of irrationality with appea r substantive reasons macrocosm given as to why no reasonable judge could make this decision, which must, by its very nature, be on some take typefaceive.That is not possible with proportionality, where all aspects must be laid out and considered in turn as a basic fact of the methodology. The Wednesbury test comes under further criticism when we consider the significantly narrow orbit for intervention. The case of Short v Poole Corporation (1926) Ch 66 at 90-91 is the wholesome documented example of the red haired teacher dismissed because she had red hair. This case proved that decision makers can act unreasonably and reach the incorrect decision but they cant exercise their power so unreasonably that no other body would have reached that decision.This was an extreme case of unreasonableness where lord Greenes precept could easily be applied however there are a large number of other cases where intervention is not so accessible. Le Sueur (2004) highlights that Wednesbury pr inciple is only appropriate in the most extreme comp hotshotnt and does not allow for a varied intricate subject matter. manufacturing business Walker (2007) in the case of R (Pro-life Alliance) v BBC appeal highlighted that the wages of the Wednesbury test is simplicity.However, when it comes to human rights a complex matter a one size fits all test is nothing short of being unsatisfactory. The Wednesbury principle was take in the Australian case Parramatta City Council v Pestell (1972) It was concluded that the royal court had considered irrelevant matters and not considered matters that it should have. This clearly shows other forms of judicial review being used in conjunction with the Wednesbury show up thus endorsing that Wednesbury alone does not suffice in judicial review.Proportionality provides a more effective salve as it allows courts to examine whether the violation of a right was necessary, not safe whether it is reasonable. it the courts has the constitutiona l role and duty of ensuring that the rights of citizens are not abused by the unlawful exercise of executive power . In all matters of state-supported law a right, formalised by the convention and human rights act has been violated. As sea captain Bingham in the case of R(SD) v The Governors of Denbeigh High School2007 1 AC 100, para 30 t is clear that the courts approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting In Smith amp Grady when applying the conventional Wednesbury principles of judicial review (adapted to a human rights context) the judge found that, although the justifications may have seemed to many to be unconvincing, the policy was not outrageous in its defiance of logic and, accordingly, not unlawful. However the European Court of Human Rights found it to be in breach of multiple articles of the convention of human rights.Smith and Grady is an example of how many claimants today rely on both domestic law and HRA grounds of review. A key case in the propagation of proportionality is The House of Lords in R (Daly) v. Secretary of State for the Home De fall apartment (2001) 2 AC 532 demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn stated that most cases would be decided in the sameway whatever approach is adopted, though conceded for human right cases proportionality is the appropriate test.The question arises as to whether doctrine of proportionality applies only where fundamental human rights are in issue or whether it will come to provide all aspects of judicial review. Lord Steyn in R. (Alconbury Development Limited) v. Secretary of State for the Environment, Transport and the Regions (2001) 2 All ER 929 stated as follows- I consider that even without reference to the Human Rights Act, 1998 the time has come to recognize that this principle (proportionali ty) is part of English administrative law not only when Judges are dealing with Community acts but also when they are dealing with acts subject to domestic law.Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing. It would seem that as the proportionality test is more frequently applied, when there is violation of human rights, and fundamental freedoms, the Wednesbury test finds itself relegated to matters of a more domestic nature and as such its importance in matters of jurisprudence has diminished.