Sir Philip Sales has an interesting piece in the latest edition of the Law Quarterly Review. In “Rationality, Proportionality and the Development of the Law” (2013) 129 LQR 223, Sales responds to the argument—advanced perhaps most robustly by Paul Craig—that the Wednesbury doctrine of unreasonableness should be supplanted by the proportionality test. As such, Sales supports the view—articulated by the late Michael Taggart, among others—that public law should be “bifurcated”, with rationality and proportionality review co-existing.
As I read it, Sales’s defence of this position rests on two principal arguments. The first is concerned with the structure of proportionality. Here, I think, Sales is on strong ground, his point being that the proportionality test—which is obviously suited to situations in which, for instance, rights and competing public interests fall to be weighed against one another—may not be universally applicable:
The idea of proportionality involves stipulating a relationship between different elements, in some kind of structured way; but the wider the field of application of the concept of proportionality, the greater the likelihood that acceptable, recognised, common standards to provide a determinate structure of analysis will be missing. In many contexts of administrative action, it might be queried how (other than by simple assertion, rather than by demonstration as a result of determinate analysis) one can say that some administrative action which costs money is or is not proportionate to the cost (and hence proportionate to all the other competing public goods which might otherwise be pursued using the same money). To force analysis into a procrustean bed of proportionality review can leave one feeling that there is a certain arbitrariness in the weighing exercise. It is not obvious that adoption of a proportionality standard across the whole range of administrative action would make judicial reasoning more transparent, or subject it to more determinate legal constraints.
Sales’s second argument concerns constitutional legitimacy. He explicitly invokes the doctrine of ultra vires (which I have defended elsewhere), arguing that it is that doctrine which governs judicial review, albeit
by reference to statutes construed in accordance with a set of presumptions articulated by the judges—yet having a form which it may reasonably be assumed Parliament would itself recognise and accept. Statute can override common law, so it is necessary to accommodate the development of the law in relation to judicial review of the exercise of statutory powers within the meaning to be given to statutes.
Sales goes on to argue that it would be too radical a reconceptualization of Parliament’s intention to assume that it was willing (outwith the Human Rights Act) to permit judicial review on the ground of proportionality. That, he suggests, would involve a fundamental redistribution of judicial and administrative power:
[T]he meaning of a statute is given by the intention of the Parliament which enacts it. Parliament has promulgated legislation on the footing that it is the Wednesbury/rationality standard which applies. It is for the courts to interpret the statute, but that does not involve a power to change its meaning.
I recognize the force of this point, but it raises two difficulties.
First, new grounds of review emerge—and continue to emerge. (Consider, for instance, the tentative recognition in some recent cases of a doctrine of consistency.) Sales’s position risks creating a chicken-and-egg problem: are the courts to desist from developing new grounds of review because Parliament has to be taken to have consented only to extant grounds of review? And, if so, does that mean that the law of judicial review must be frozen absent legislative development?
Second, although Sales invokes the modified ultra vires doctrine (of which I am an advocate), I am not certain that his argument accurately captures the nature of the relationship between legislative intention and rule-of-law principles (of which proportionality might be considered one) envisaged by that doctrine. To suggest that a court would be changing the meaning of a statute by reading into it a requirement to act proportionately rather than a requirement to act Wednesbury reasonably merely begs the question: What was (or what are we to take to have been) Parliament’s intention in this respect? In particular, did it specifically intend—or is it to be taken to have specifically intended—that Wednesbury should be the operative constraint upon administrative discretion?
Sales appears to presuppose an affirmative answer to this question—because Parliament is to be taken to have legislated against the background of (and so to have assented to) the then-operative principles of judicial review. But the modified ultra vires doctrine is premised upon the supposition that Parliament legislates (or is to be taken to legislate) in the general expectation that the judiciary will subject the administration to rule-of-law based control. On this view, there is scope for such control to develop—and for the courts to impose upon administrative actors constraints deriving from a contemporary conception of the rule of law. Ultra vires is thus a dynamic doctrine capable of legitimizing the application by courts of a set of norms of good administration based upon an evolving conception of the rule of law.
In short, then, while I fully agree with Sales’s defence of a bifurcated public law in which Wednesbury and proportionality co-exist – and with many of the arguments he offers in service of that defence – I am not certain that the modified ultra vires doctrine necessarily requires the retention of Wednesbury outwith the HRA context.