A Difference in Kind – Proportionality and Wednesbury

Abstract

Is there a difference between proportionality review under the Human Rights Act and Wednesbury unreasonableness review? Recent Supreme Court decisions have tended to answer this question in the negative stating that there is little difference. In particular, the relative weight given by the decision-maker to the considerations before them, and the balance struck by the decision have been said to be reviewable even under Wednesbury unreasonableness. By reviewing case-law where Wednesbury unreasonableness was applied, it is argued here that the courts did not consider the relative weight or the fair balance struck by the decision. These elements are unique to proportionality review. Proportionality review should be preferred, as a result, because it affords better protection to human rights. The concern underlying this paper is that, in the face of the possibility of a new human rights regime, insufficiently distinguishing between these standards of review will lead to an erosion of the protection afforded to human rights under proportionality.