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Is a Court's scrutiny more intense under the proportionality test than under the reasonableness/rationality test?

The difference between the proportionality and reasonableness grounds of review has been the subject of much debate. In many respects, the Court’s considerations will be very similar under either test. It will, for example, in all cases consider whether there is a rational connection between the decision and the objective sought. There are also examples of the Court considering under both tests whether the decision’s objective could have been achieved by less intrusive means.

The principal difference between the proportionality and rationality tests is that the proportionality test is more structured – the Court will always apply the four part test set out above, whereas they will have more discretion in considering whether a decision is unreasonable. However, the Supreme Court emphasised  in Pham that the fact that the proportionality test is more structured does not necessarily mean that the scrutiny will be more intense. Both the proportionality and rationality tests are applied flexibly. This means that the intensity of scrutiny and the weight to be given to the decision-maker’s view varies depending on the context and circumstances of each case. Therefore, the Court’s scrutiny will not automatically be stricter when it applies the proportionality test; the intensity of review will always depend on the context and circumstances of a case.

 

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