On Monday evening Arden LJ gave the UK Association for European Law’s annual address, at King’s College, London. You can read the speech in the window below.
She makes a number of interesting points about differences between the way different courts deal with proportionality – persuasively dishing the idea that it’s a simple, obvious concept. And she raises important questions about how far proportionality permits, or should permit, judicial interference in political judgments.
Especially interesting is her discussion of the Supreme Court’s 2011 judgment in R (Quila) v Home Secretary, in which the Court upheld the Court of Appeal’s decision to limit the effect of an immigration rule introduced by the Home Secretary with the aim of combatting forced marriages. Clearly she’s sympathetic to Lord Brown’s dissent in that case, and fears that the Supreme Court went too far in imposing its policy view. Her discussion of the case raises a crucial wider point, though, about the dangerous power of courts to close down social policy options before they have a chance to be proved effective. That’s precisely my concern about the European Court of Human Rights’s approach to the UK’s DNA database.
I’m not sure I agree with Arden LJ’s suggestion (though she’s coy about her own view and wants us to be the judge) that the concept of proportionality might replace the concept of unreasonableness in our domestic public law. I’ve never quite been sure why anyone thinks this would be desirable, since judges’ ideas of reasonableness are inexorably being influenced by proportionality in any case. I suspect the concept of unreasonableness may have potential depths and resources not wholly subsumed in proportionality. But hers is a useful contribution to this ongoing debate in public law.