Proportionality and Judicial Review: A UK Historical Perspective

Abstract

Academic legal study is perforce temporally grounded. We most naturally consider the here and now. We may take a fleeting backward glimpse, most commonly to confirm our desired impression of the status quo, and add substance to our prognostications, hesitant or not as they may be, about the future. Legal history is commonly left to legal historians in this age of increased specialization. Their expertise is invaluable, but the historical terrain is vast, the numbers of specialist legal historians are limited and the subject matter coverage uneven. There are perforce large gaps, as exemplified by the historical landscape of administrative law. Relatively little is known about legal development in this area, and the regulatory environment from which it grew, as attested to by the nostrum that the UK had no regime of administrative law until the mid-twentieth century, which is as erroneous as it is oft-repeated. We are of course not formally bound by anything that historical legal inquiry reveals. The academic has tools that bear analogy to the judicial. We can distinguish, praying in aid changed social circumstance, altered normative values and shifting policy preferences. Yet this academic ‘power’, like all other forms thereof, comes with responsibility. The argument must withstand scrutiny in the academic market place, and must also be grounded in some knowledge of what preceded the here and now. Insofar as this knowledge is exiguous it thereby diminishes the value of the academic judgment.This chapter is designed to cast historical light on the role played by the concept of proportionality in UK law. This very sentence may provoke skepticism, given the dominant view that it was an import from continental Europe, the integration of which into UK law has been driven by membership of the ECHR and EU. There is no doubt that the classic three or four part proportionality inquiry has continental foundations, particularly Germanic, although it is noteworthy that the German eighteenth century formulation of the principle was embryonic, with the fully-fledged test developing later. Integration of proportionality into UK law has been furthered by ECHR and EU jurisprudence. There is, however, also no doubt that the UK had a concept akin to that of proportionality, from the late sixteenth century onwards. The precise appellation varied, with terms such as proportionability, proportionable, and disproportionate found in the legislation and case law. It was not a formal three-part test of the modern kind, but the older UK concept shared a common theme with its more modern offspring, which is the proscription of excessive regulatory burdens and the need to ensure that the burden was objectively justified. The story begins with four general misconceptions about UK Administrative law, which sets the backdrop for the ensuing discussion. This is followed by four historical manifestations of proportionability. It will be seen that the concept was very commonly used as a criterion in regulatory legislation from the mid-sixteenth century onwards, with the expectation that the courts would interpret and apply it to the particular regulatory regime, which is exactly what occurred. It was also used in the absence of express statutory mention, as a principle of legal interpretation, such that the courts would interpret regulatory legislation whenever possible so as not to impose excessive burdens on individuals. Proportionability was in addition deployed as a free-standing principle of judicial review, and also on some occasions as a condition for the legality of regulatory intervention. The magic number four frames the discourse in the final section of the chapter, where the focus shifts to the normative. There is discussion of the relationship between proportionality and proportionability, followed by reflections on the connection between the judicial and legislative use of proportionability. The final parts of this section consider the relevance of this material for modern doctrine, the determination of which is predicated on understanding that proportionability was judicially applied with sensitivity to regulatory purpose and appreciation of the limits to judicial oversight of the administration.