Administrative Law - Europeanisation and Proportionality
Uploaded by lockydon on Nov 11, 2001
What is ‘Europeanisation’? With regards to the principle of proportionality is this europeanisation a valid idea?What is ‘Europeanisation’ and what effect is it having on our British administrative system? In the last 50 years with the introduction of the European Union there has been a massive impact on both the changing of law in the UK and the way in which powers are focused. Because of the influx in European cases, the law that has followed has affected the English Administrative legal system dramatically.
A key issue that is relevant here is that British law must conform to European Union Law1, therefore every issue that is assessed in Europe, every case or change in legislation and then maintained in law, must be taken in to consideration, and must not be overlooked by the British government. The underlining factor here is that, regardless of whether one desires such a change in law,European Union Law is affecting the power delegated to public and private bodies in the UK. More specifically with regards to administrative law it is the way in which a public and both private body can affect the citizens of our country.
It is the concept of ‘Proportionality’ that bleeds nicely into the europeanisation of our British Administrative system. In a number of European countries there is this principle of proportionality that expresses ‘administrative measures must not be more drastic than necessary for attaining the desired result’2.
It is through an application for judicial review that the principle of proportionality has been used in Europe. It was Lord Diplock, in the G.C.H.Q3 case that classified four types of reasoning why an application might come to light. We know already that three of them; Legality, procedural propriety and rationality are strong in argument. It is this forth controversial theory of proportionality that causes writers the most problems.
Proportionality is by no means a novel subject and has been gradually accepted into the ranks of other European countries for some time. However philosophical one might be in explaining what exactly it is, it will always embody a basic principle of fairness. At present it is not really what proportionality does that is an issue, it is the intentions of the theory, and in attaining a fair trial it creates a balance for both parties that should in theory resolve with a fair and reasonable conclusion.
In many of the cases such as R v Intervention Board for...