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WEEK 4 ADMIN (Proportionality (Kebilene ~ Overruled a decision and…

- - - - Keyu ~ It would not be appropriate for a five-judge panel of the Supreme Court to accept or reject the claimants' argument that the traditional rationality basis for challenging executive decisions should be replaced by a more structured and principled challenge based on proportionality, which potentially has implications which are profound in constitutional terms and very wide in applicable scope, because it would involve the court considering the merits of the decision at issue, and would require courts to consider the balance which the decision-maker has struck between competing interests and the weight to be accorded to each such interest.
        
        Youssef ~ Suggests that we need a review of the tes, but that likely the test is prop in fundamental rights cases. In many cases unlikely to lead to different result.Inappropriate to intervene in UN decision making.
        
        JS ~ Unincorporated treaty is best left to the executive and government for determination, function of democratic institutions. Have to give due weight to their considerations.
  - - - SB ~ The convention is not procedural but substantive. Doesn't matter if they applied when they made decision.
        
        Huang ~ Alongside all the facts the body has to consider the jurisprudence of Strasbourg. Not perhaps just threefold.
        
        Miss Behavin' ~ It is substantive, there is no procedural element of the decision by the body.
    - - An assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon. The principle does not however entitle the courts simply to substitute their own assessment for that of the decision-maker. As I have noted, the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs.
        
        (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
        
        Lumsdon ~ Not the same as the EU application of proportionality.
- - - - ABCIFER ~ Proportionality had not replaced reasonableness in non human rights cases. It was not irrational to limit the number of beneficiaries to the scheme.
  - - - Bradley ~ Ignored report saying to right pension maladministration. Could reject such a report only if it was not irrational. It was irrational to deny that the maladministration did not occur or that it caused damage. But not to deny the recommendation.
        
        R(O) ~ Decision to refuse application for a certain school for special needs as other was said to be sufficient. The principles the council had to adhere to were not to be applied to the reviewing of decisions. It was not the only school the child could be hosed in and hence not unreasonable.