Proportionality is one of the most important and recognised legal tests. In judicial review of legislation and fundamental rights adjudication, it acts as the main balancing device between individual fundamental rights and public interest. Though originating from continental Europe, this legal principle is now also present in the English legal system, albeit with some distinctive characteristics. Indeed, the application of proportionality may differ significantly between the English and European jurisdictions, both in substance and in scope.
Ms Advocate General Laila Medina, from the Court of Justice of the European Union (CJEU), and Mr Justice Martin Chamberlain, from the High Court of the United Kingdom, met at the Centre of European Law in King’s College London on 12 March to discuss this topic from their unique perspective. Professor Paul James Cardwell, Professor of Law and Vice Dean Education at The Dickson Poon School of Law, chaired the panel.
At first, the discussion focused on how the framework of fundamental rights protection orients judicial review. Whilst taking a comparative bird’s-eye view of the two legal systems, divergence appeared to be the clear underlying theme.
Indeed, the Common Law of the UK is subordinate to acts of Parliament; despite its ductile and continuously evolving nature, it has not absorbed proportionality in its three-pronged form that is so familiar to continental lawyers (suitability, necessity, and proportionality strictu sensu). Instead, judicial review of executive action under English Common Law is carried out on grounds of rationality. This test requires the decision maker to pay due regard to all relevant considerations, that the decision contains no logical error or critical gap, and finally that the outcome is not “so unreasonable that no reasonable authority could ever have come to it” (for a recapitulation on rationality, see KP v Foreign Secretary). If these conditions were met, a court would not substitute its judgment for that of the decision maker.
On the other side of the Channel, instead, the CJEU makes full use of proportionality and the Charter of Fundamental Rights (CFR). The outcome of judicial review strongly depends on the fundamental rights at stake, whether two such rights are in opposition to each other, or if they need to be balanced with other collective interests. Thus, in migration law, the application of the principle of mutual trust becomes incompatible with the duty to interpret and apply the secondary EU law in a manner consistent with fundamental rights, notably the absolute prohibition of torture (Aranyosi and Căldăraru). In freedom of expression cases where a journalist is involved, applying proportionality led the CJEU to rule that large damages awards in libel cases are capable of having a chilling effect on the exercise of freedom of the press (Real Madrid Club de Fútbol).
Yet, as the dialogue between the two speakers progressed, burrowing into more intricate legal niches, points of contact began to emerge. Common law is but one of the three main frameworks of fundamental rights protection in the UK. In parallel, the Human Rights Act (HRA) gives effect to the European Convention on Human Rights (ECHR) and makes proportionality the applicable standard of review to government interference with rights protected by the Convention. Finally, in an interesting legal twist, the existence of retained EU law means that the EU Charter of Fundamental Rights and the connected CJEU case law both remain applicable in post-Brexit UK — albeit only to the extent that the UK Parliament says so.
The multi-faceted nature of the UK framework also bears some resemblance to the plurality of sources which national judges in various Member States of the EU must deal with (CFR, ECHR, national constitutions, secondary EU law, national law). The speakers’ remarks seemed to reflect a common premise: both legal systems are confronted with the jigsaw puzzle of multi-level protection of fundamental rights. This apparently requires some form of alignment and cooperation to maintain internal coherence. To the extent that this alignment also covers external supranational or international sources of law, such as the ECHR, this suggests that the two systems will retain overlaps.
International sanctions, or restrictive measures, are where all the differences and similarities discussed thus far come full circle. In the field of Common Foreign and Security Policy (CFSP), the CJEU has limited jurisdiction to review the legality of the legislative framework underpinning such measures. It is restricted to a “manifest error” test, a more deferential standard which paradoxically echoes rationality. It was intriguing to see how, similarly to the UK, there are instances where political choices reflecting strong collective interests impose effective constraints on the EU system of judicial remedies.
At the same time, both jurisdictions fully embrace proportionality when reviewing individual entries in sanction lists. Once again, the discussion seemed to highlight more similarities than differences, with landmark judgments such as Bank Mellat and Shvidler in the UK closely aligned to EU and Strasbourg case law. One particular legal wrinkle of those cases proved to be most intriguing. The discussion on the dissenting opinion of Lord Leggatt in Shvidler offered a fascinating example of an alternative perspective on proportionality. Reading the principle from the standpoint of a British judge, he made a striking observation: what are the first two limbs of a proportionality test (suitability and necessity), if not a screening of rational justification? From that point of view, even the chasm between rationality in common law and proportionality in continental Europe suddenly seemed reconcilable.
Ultimately, despite unavoidable substantive and terminological differences, the discussion ended up highlighting many similarities. Proportionality in fundamental rights adjudication plays a fundamental role not only in the EU but in the UK as well. Both systems are confronted with situations where considerable weight is attached to decisions by democratically elected representatives or reflecting acts of a sovereign nature, when the nature of interests involved is politically sensitive. The emerging picture is that of two systems of courts with similar ends: navigating the difficult task of balancing individual rights and freedoms with collective interests and executive action. Even if recent turns of history may have hinted at the UK following a different course, this event suggested that there is still plenty of fertile common ground for cooperation. The judicial dialogue continues.
This event was supported by the European Union through the Jean Monnet Centre of Excellence on Next Generation EU–UK Relations. The judgments and views expressed in this article are solely those of the individual author and do not represent those of the speakers.