The Judge and the Proportionate Use of Discretion

A Comparative Administrative Law Study

Sofia Ranchordás, Boudewijn de Waard, Sofia Ranchordás, Boudewijn de Waard

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317606116
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This book examines different legal systems and analyses how the judge in each of them performs a meaningful review of the proportional use of discretionary powers by public bodies.

Although the proportionality test is not equally deep-rooted in the literature and case-law of France, Germany, the Netherlands and the United Kingdom, this principle has assumed an increasing importance partly due to the influence of the European Court of Justice and European Court of Human Rights. In the United States, different standards of judicial review are applied to review 'arbitrary and capricious' agency discretion. However, do US judges achieve a similar result to the proportionality or reasonableness test?

Drawing together a selection of key experts in the field, this book analyses the principle of proportionality in the judicial review of administrative decisions from different perspectives. The principle is first examined in the context of recent developments in the literature and case-law, including the inevitable EU influence, then light shall be shed on the meaning of this principle in the specific case-law of the European Court of Justice and European Court of Human Rights. Finally, the authors go on to explore the ways in which US judges consciously 'sanction' the 'disproportionate' and/or unreasonable' use of agency discretion. In the legal systems where the proportionality test plays a very limited role, Ranchordás and de Waard also try to clarify why this is the case and look at what alternative solutions have been found.

This book will be of great interest to scholars of public and administrative law, and EU law.

1
Proportionality crossing borders

Why it is still difficult to recognise sparrows and cannons

Sofia Ranchordás and Boudewijn de Waard

‘The just is the proportional, the unjust is what violates the proportion’ ¹

Aristotle

1.1 Introduction

In the past two decades, numerous books and articles have been written on the principle of proportionality. ² So much has been said and done about this source of fairness, justice and hope for a better defence of human rights in a democratic society, that one could easily dismiss this topic by simply claiming that there is nothing more left to say about proportionality. Proportionality, often associated with a tripartite test composed of ‘suitability’, ‘necessity’ and ‘proportionality in stricto sensu’, ³ is indeed far from being a new phenomenon in public law.

Originally born and raised in Germany (even before the country had been baptised with this name), proportionality grew up to be ‘an export hit’ ⁴ conquering most European jurisdictions and the hearts of the judges of the Court of Justice of the European Union (ECJ) and European Court of Human Rights (ECtHR). Proportionality is an old doctrine in continental legal systems, in both public and private law. It often refers to sanctions that are considered disproportionate because they impose excessive burdens on citizens or because they are not sufficiently burdensome considering the infringement under analysis. However, ‘a clear and principled approach to the principle of proportionality is yet to emerge’. ⁵ Proportionality appears to be everywhere and nowhere at the same time.

First, the principle of proportionality appears to be virtually everywhere. It is included in the recent principles of global administrative law, ⁶ a principle to assess the lawfulness of counter-measures in international law and to ‘break up escalating cycles of transnational violence’, ⁷ and, with more or less opposition, in the context of the World Trade Organization (WTO). ⁸ The principle of proportionality is also very often understood as a core principle of criminal law, imposing a correlation between the punishment and the crime. ⁹ However, some jurisdictions still seem to avoid explicit references to and the implementation of the proportionality test. ¹⁰ This is, for example, the case in the United States, where courts assess whether agencies ‘took a hard look’ ¹¹ at the available evidence. Nonetheless, recent literature has pleaded in favour of further expansion of proportionality to new jurisdictions and legal contexts as ‘a supplement constitutional insights’ as a reminder that ‘it is not enough that an act was constitutionally authorized; the act also needs balance between the aim and the harm caused. Thus, for example, an authority’s act can be disproportional if there are less harmful means to achieve the aim or if the harm the act causes exceeds the benefit it creates’. ¹²

Secondly, most western jurisdictions agree that you should not use a ‘sledgehammer to crack a nut’ or ‘shoot at sparrows with cannons’: ¹³ ‘policy solutions should be adequate for the perceived problem or risk’. ¹⁴ Proportionality seems to have spread to a number of jurisdictions and become one of the most successful legal transplants, either in virtue of a certain conceptual necessity or because the adjudication of constitutional rights involves a certain balancing of interests. ¹⁵ Another explanation could be that the ‘sense’ of proportionality is intrinsically intertwined with our sense of justice and the idea that ‘constitutional [or any other public decisions] are only correct if they correspond to the appropriate balancing of principles’. ¹⁶

The proliferation of academic publications on proportionality and the spread of proportionality in case law in western jurisdictions could be explained by a shift to ‘an age of balancing’, ¹⁷ ‘a culture of justification’ ¹⁸ and indeterminacy. ¹⁹ The proportionality test requires, in a number of cases, the balancing of public and private interests, or even that a cost-benefit analysis is performed and that the benefits of a public project (e.g., a new tunnel or highway) are weighed up against its costs (e.g., costs of the project, including the need to proceed to compulsory purchases or expropriations). From a judicial review point of view, this perception of proportionality as ‘balancing’ means that ‘the court will intervene whenever the pros and cons of a project have not yet been duly weighed against each other’. ²⁰ The shift towards proportionality has also been regarded as the support of a culture of justification and the optimistic belief in rationality and reason. This has been visible at the level of constitutional law, where proportionality seems to have conferred an administrative dimension to this field of law. ²¹

However, the critics of the principle of proportionality see this phenomenon as a road to legal indeterminacy and casuistic decision-making. Grégoire Webber remarks that the principles of proportionality and balancing ‘exacerbate rather than attenuate the weak guidance offered by bill of rights to legal subjects and officials… [denying legal rules] the possibility of… more-orless determinate test standards’. ²² While it is true that the open-endedness and vagueness of proportionality can undermine its legitimacy over time, it is important to underline that any alleged ‘legitimacy deficit may be compensated by its utility as a restraint’ on the sometimes unchecked arbitrariness of public authorities. ²³

1.2 Proportionality in administrative law

The principle of proportionality plays a vital role in the judicial review of administrative decisions in most western jurisdictions. The principle of proportionality aims to restrict the discretionary powers of public bodies, balancing the relevant interests and protecting the interested parties. ²⁴ Proportionality promises a structured reasoning for the administration of law and the fair balancing of public and private interests. In the context of administrative law, the principle of proportionality ensures that administrators show proper respect for individuals and that relationships of powers between the state and individuals are understood as clear relationships of law. ²⁵

More than a mere subsidiary review ground, the proportionality test has gained its place in the judicial review context as a central safeguard of the rule of law. Although the proportionality test is not equally deep-rooted in the literature and case law of France, Germany, the Netherlands and the United Kingdom, this principle has assumed increasing importance partly due to the influence of the European Court of Justice and European Court of Human Rights. In recent decades, the winds blowing from Strasbourg and Luxembourg have been shaping the principle of proportionality both at national and European levels. The influence of the German doctrine in the judicial reviews of administrative decisions in other jurisdictions is living proof that comparative administrative law should no longer be regarded as ‘the poor relation’ of comparative constitutional law. ²⁶ Instead, the local differences of administrative law enrich the research in this field and provide additional reasons to incentivise research in this area. ²⁷ In addition, even jurisdictions that have resisted the penetration of the proportionality test–like the US–seem to have developed their own instruments to control ‘arbitrary and capricious’ administrative action or try to ensure that agencies ‘take a hard look’ at the available evidence. ²⁸

In administrative law, proportionality has acquired a specific meaning: public authorities are expected to ‘weigh up the harm that would be caused to the public if a proposed line of action were taken, against the potential public benefit; only if the latter outweighs the former should the action be allowed to proceed’. ²⁹ There are, however, different ‘proportionalities’ or intensities: according to the ‘original’ Wednesbury, a disproportionate act ‘is only that act which is so unreasonable that no reasonable person’ could have adopted it. This highly deferential criterion of unreasonableness contrasts with the more recent intensities conferred to this test by English courts and, above all, with the proportionality test. In addition, proportionality can be symmetrical or not: ³⁰ if only excessive and over-reaching sanctions will be annulled due to the application of this test, but too lenient sanctions will not be changed, then we shall not be in the presence of symmetrical proportionality. In fact, few jurisdictions apply the principle of proportionality to sanction public authorities who have underreached (see the cases of France, and mutatis mutandis, the US in chapters 3 and 7, respectively).

1.3 Proportionality: controversies and mysteries

The historical roots and the elements that compose the proportionality test, as well as its significance and practical implementation, differ in most jurisdictions. The origin of the principle might be German, but most courts seem to have reshaped it to fit their legal cultures. ‘Proportionality’ might have successfully spread around the western world because it is a lingua franca that appeals to most lawyers, ³¹ however, not all speak this language with the same accent and intonation. Despite the abundant literature, a multitude of enigmas seems to remain unsolved when it comes to defining that common language called ‘proportionality’. In order to grasp the essence of the principle of proportionality, a number of questions regarding this princip...