Why Is Proportionality Not a Standalone Ground for Judicial Review?

The principle of proportionality in judicial review serves as a tool for ensuring that decisions made by public authorities are reasonable and balanced, especially in the context of affecting individual rights and freedoms. While important, proportionality is generally not considered a standalone ground for judicial review for several reasons.

Jurisdictional Tradition
The grounds for judicial review have been traditionally categorised into specific heads such as illegality, irrationality (unreasonableness), and procedural impropriety. Proportionality, while related to these, particularly irrationality, is often seen as a component or a test within these existing grounds rather than a separate ground.

Common Law Evolution
In many common law jurisdictions, the principles governing judicial review have evolved through case law. Proportionality has been gradually integrated into the fabric of judicial review, especially in the context of human rights and European Union law influences. However, it has not always been singled out as a separate ground because the common law system tends to evolve through refinement and extension of existing principles rather than through the creation of entirely new categories.

Overlap with Reasonableness
The proportionality test often overlaps with the traditional test of reasonableness, known as Wednesbury unreasonableness in the UK legal context. Proportionality provides a more structured and detailed framework for analysis but still addresses the core concern of reasonableness (i.e. whether a decision is fair, necessary, and balanced given its context and objectives).

Contextual Application
Proportionality is particularly pertinent in contexts where individual rights and freedoms are at stake, such as in the application of human rights laws or EU law. In other areas of administrative law, traditional grounds like illegality or procedural impropriety may be more relevant and sufficient to address the issues at hand. Therefore, proportionality's relevance and utility might be context-dependent, which may explain why it has not been universally adopted as a standalone ground.

Judicial Restraint
Some legal systems emphasise the principle of judicial restraint, under which courts are cautious about overstepping their boundaries with respect to decisions made by the executive or legislative branches of government. Adopting proportionality as a standalone ground for judicial review could potentially lead to a more intensive form of judicial scrutiny, which might be seen as infringing on the prerogatives of the other branches of government.

In conclusion, while proportionality is an increasingly important principle in judicial review, especially in light of human rights considerations, its role and application are nuanced and integrated within the traditional grounds of judicial review rather than standing alone. This integration reflects the evolutionary nature of common law and the balance between judicial oversight and respect for the roles of other government branches.
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