Dervla Simm & Telha Arshad address proportionality as a standalone ground for judicial review at common law
One of the core grounds for challenging administrative decision-making by way of judicial review is that the decision is so unreasonable as to be unlawful. However, the English common law has increasingly shown signs of moving away from the reasonableness threshold embodied in the Wednesbury test ( Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223, [1947] 2 All ER 680) in favour of a more intense and structured European-style proportionality review. The recent decision in Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] All ER (D) 266 (Mar) suggests that a common law proportionality-style assessment is now firmly on the judicial review menu, even beyond the spheres of human rights and EU law.
The story so far: proportionality & Convention rights
The principle of proportionality has been integral to the jurisprudence of the European Courts for some time. In the 1988 Danish Bottles case (Case 302/86 [1988] ECR 4607), for example,
