Proportionality

• What is proportionality?

  • A balancing exercise between what is thought to be needed in the public interest and the effect of that decision on individuals
  • Courts may hold that a public body’s decision is unlawful because it is disproportionate
  • It’s usually used in reference to EU law or human rights law
  • Proportionality approaches can be found in Daly
• What is the three-part procedure for proportionality as defined by Hickman [2007]?


  • Whether the measure was suitable to achieve the desired objective
  • Whether the measure was necessary for achieving the desired objective
  • Whether, even so, the measure imposed excessive burdens on the individual it affected
• When is proportionality used in English case law?

  • Lord Diplock suggested its inclusion following the GCHQ case
  • Argued proportionality would allow for better review of discretionary powers
  • When EU law was incorporated into UK law, it became a necessity
• Proportionality and the Constitution


  • The uncodified nature of the UK constitution is incompatible with this principle
  • The UK government has shown hostility to this principle of judicial review being used outside of EU and human rights law
• What are the facts of R (Daly) v Secretary for the Home Department [2001]?


  • The Home Secretary issued a document requiring prisoners to be out of their cells during routine searches, incl. examination of legal correspondence on the suspicion that the contents are criminal
  • Daly applied for judicial review on the basis that these searches breached his common law right that the confidentiality of privileged legal correspondence
• What was the decision in R (Daly) v Secretary for the Home Department [2001]?

  • The policy infringed upon Daly's common law right
  • This decision reinforced the calls by academics and judges for the proportionality test to be extended beyond cases of qualified Convention rights and EU law.