Should Wednesbury unreasonableness be replaced with proportionality?

Should Wednesbury unreasonableness be replaced with proportionality?

Thirdly, proportionality standard might be more appropriate for the protection of human rights. It has even been suggested that Wednesbury should remain the test for cases that require greater judicial deference, while proportionality should be the standard used in cases where a more exacting review is required.

What is the difference between Wednesbury unreasonableness and proportionality?

Notwithstanding, Wednesbury review is concerned with the process of reasoning employed in adopting the particular decision in that the focal points are the reasons advanced for a decision. By contrast, proportionality, in the context of rights, is concerned with the outcome of a decision.

Is Wednesbury unreasonableness outdated?

Wednesbury unreasonableness may not yet be dead, but its continuing existence in its current incarnation, at odds with proportionality, brings very little at all to judicial review.

What is the Wednesbury principle?

A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). …

What is the difference between reasonableness and proportionality?

Reasonableness covers a wider field than proportionality. A measure might be proportionate, but its adoption unreasonable, because, for example, of a lack of consultation. (49) Proportionality requires a judgment of the relationship between an end, amounting to a need, and a means to satisfy the end.

What is the proportionality test in law?

Proportionality test is a legal method used by courts, typically constitutional courts, to decide hard cases, which are cases where two or more legitimate rights collide. In such cases a decision necessarily leads to one right prevailing at the expense of another.

What is the current test for proportionality?

In the test of Proportionality the “courts will quash exercise of discretionary powers in which there is no reasonable relation between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to …

What differences are there between irrationality and proportionality?

The chapter distinguishes between proportionality and merits review, and discusses the use of judicial deference by the courts. The irrationality test is used in non Human Rights Act judicial review cases but the courts have also used the proportionality test in cases involving common law rights.

What happened in the Wednesbury case?

It was in Wednesbury Corporation case that the Court of Appeal in England ruled that the courts could only interfere in an act of executive authority if it be shown that the authority had contravened the law and that the power of the courts to interfere in such matters is limited, except where the discretion has not …

Is proportionality the same as reasonableness?

What is super Wednesbury test?

So-called “super-Wednesbury” cases, where the standard of review is dialled down, such that judicial review is less exacting, have tended to involve democratically legitimate decision-makers and/or complex areas of regulation. Wednesbury thus varies in intensity.

Which is better the proportionality test or the Wednesbury test?

Firstly, proportionality test provides a clearer and more transparent analytical framework than the opaque and circular Wednesbury unreasonableness test. Secondly, proportionality standard is an extremely versatile test, with the ability to vary the intensity of review depending on the context.

Where did the Wednesbury unreasonableness test come from?

It begins by tracing out the origins of the prevailing Wednesbury unreasonableness test as well as the proportionality test, both in Pakistan and in common law jurisprudence generally.

How is the test of proportionality used in judicial review?

Later in the course of time the test of Proportionality came up to review an action which is not proportional to the desired goal to be achieved by that action. So this would mean that the administrative action to be arbitrary would have to be Wednesbury unreasonable first to be disproportionate.

What was the significance of the Wednesbury case?

The case was significant because domestic courts within the United Kingdom had previously found there to be no breach of the principles of legality, including Wednesbury unreasonableness. The ECtHR, applying the European proportionality test, found a breach, thus highlighting the difference between the two tests.