Proportionality Law in England and Wales

¶ … fictional case of Amit and his dream to sell pies out of a converted red London bus. There is apparently at least one other bus that operates in much the same way and it is operating without a problem. However, the same governing body that approved that bus has said no to Amit. When he tries to get a reason for the disapproval, he is not given one. He is similarly shut down when he tries to appeal the decision.

The author of this report will assess whether the relevant governing body, that being the Wivenchester District Council, is behaving as it should when it comes to the denial and the explanation thereof. There will also be a discussion of whether Amit has a viable claim when it comes to acting against the Wivenchester District Council for the way that they have handled the decision and whether they have complied with the relevant laws.

There is also question as to whether the law itself is acceptable in its form and function. The second part of this report will talk about the concept of proportionality and how/whether it is adopted as a common law ground of judicial review in both England and Wales. While the law typically works well for everyone involved, laws that are poorly written, enforced in a biased way or enforced in an uneven way can create a disservice to a lot of people. Part I -- Amit vs.

WDC As noted above, Amit has encountered a number of problems when it comes to opening his food bus. Even so, it would seem that he has a number of grounds to appeal and fight for his food bus because the manner in which the Wivenchester District Council is handling the matter up to and including no explanation for why the denial was issued, no chance for appeal and the possible conflict of interest between the chairman and one of Amit's rivals, just to name three big ones.

The first problem with the denied application that will be looked into is the fact that there is no definitive reason or explanation given for the denial (Weinstein 2015). Indeed, the Wivenchester District Council has the right to review the licensing application and deny it if the application or the person making is not up to snuff with the relevant laws and standards. However, those laws and standards should be clearly defined.

Unless the Food Act of 2001 leaves this discretion entirely up to the people on the council (unlikely), then there has to be a specific reason why Amit's application would be denied. Beyond that, Amit has every right to know why the license application was denied so that he can remediate the deficiency (or deficiencies), argue that he is not deficient if he truly believes he is not and so forth.

In short, the Wivenchester District Council has to have a reason to deny his claim and Amit has a right to know what that reason is. Making Amit appeal (even if he could) to find this out is a huge waste of time and money for the Wivenchester District Council because those reasons should be defined and explained before any appeal is even considered (Croddy, Degelman, Doggett & Hayes 1997). As already alluded to above, the fact that an appeal is rejected outright is also not acceptable.

If the Food Act of 2001 says that no appeals are allowed, that would technically suffice in many situations. However, it can absolutely be argued that an appeal process can and should be in place and it perhaps should also be argued that the party that hears the appeal of Amit should not be the Wivenchester District Council. In fact, it should be another party and for more than reason. First, asking the Wivenchester District Council to hear the same case twice is kind of pointless.

The odds that the same party would come to a different conclusion about the same matter is extremely unlikely unless Amit omitted something from his application, something was otherwise wrong with the application or something along those lines. Given the details of the story, that is probably not the problem. Indeed, the bigger problem is that Amit is being given no amount of due process to rectify what he feels to be the wrong decision.

This would hold true even if there were no perceptions about conflict of interest, which is an issue but has not been fully covered yet (Steinbrook, Kassirer & Angell 2015). Even at a high level, the fact that the chairman of the Wivenchester District Council is friendly with someone that is subject to the licensure decisions of that board is very tricky from an ethical standpoint.

At the very least, the chairperson should recuse himself or herself from any and all situations that involve that person given the connection that they clearly have outside of the professional environment of the Wivenchester District Council and the decisions that they make.

At a lower level, there is and should be a legitimate question about whether the fact that the chairperson is friendly with a rival (or even just a competitor) of Amit is grounds for that chairperson not being fit to sit for any such decision that involves Amit, the rival or anyone else in their network of friends (Calabro & Torchia 2011).

Truly, the chairperson should disassociate themselves from the rival of Amit or, at the very least, allow for an appeal to a group or person that does not involve the chairperson. Indeed, any appearance of impropriety is just as bad (if not worse) than actual impropriety itself because it tends to undermine the legitimacy (perceived or actual) of the Wivenchester District Council (Johnson 2015). With all of that being said, the questions from this assignment that are mundane to Amit shall be answered with due haste.

First, while Amit is not really able to prove that the decision made was about the connection to the rival, the lack of context with the decision that was made not to mention the scuttling of any appeal makes for very improper appearance.

For that reason alone, Amit should be able to demand a specific reason why his van was deemed "unfit" for licensure and there should be an appeal allowed for that does not involve any power from the chair that has the ostensible (or at least possible) conflict of interest (Clark 2014). For a chairperson to associate with a licensed person like that is extremely unwise on its face and that alone is going to sink the Wivenchester District Council if they try to argue against a further appeal for Amit.

Even if that apparent or possible conflict of interest was not in play, the lack of due process and explanation that Amit has been receiving needs to be explained and fleshed out. If the Wivenchester District Council is not acting in accordance and based on the requirements of the Food Act of 2001, they should be made to do so. If the law does not define or allow for such due process and specific explanations for decisions made, the law should be retooled so as to include this.

Saying "no," giving no reason and not allowing for any appeal, conflict of interest or not, is terrible governance and that law should be struck down on constitutional grounds if at all possible if the proper frameworks and so forth to require that are not firmly in place. If the law does have those frameworks and the Wivenchester District Council is not adhering to them, it would literally call of their decisions into question and the conflict of interest just makes it worse (Berggren, Bjornskov & Lipka 2015).

As for part B of the question, the refusal letter says that the Wivenchester District Council is "not satisfied that the mobile vending unit is fit for purpose." That explanation, if one could call it that, is entirely too vague. If there are elements of the Food Act of 2001 that explain why Amit's cart was not deemed fit, those statutes and provisions should be specifically cited and why Amit's van does not comply with those laws.

For example, if there were not proper sanitation stations in the van and that is required by the law, that could be pointed to. Even so, Amit asked for an explanation and was given the terse response "we cannot elaborate further." This is not acceptable for a government body to say or express. If they have a valid reason to deny the license such as too many licenses being issued, Amit's license application not being acceptable or something else along those lines, that would be fine (Bruhn 2011).

However, the Wivenchester District Council is a governmental body and they do not get the liberty to just say "no" with no explained and valid reason. Unless there is an overarching reason why transparency in their answer is not possible or practical, they have a duty to give an answer (Grimmelikhuijsen & Kasymova 2015). If there is no statute or provision in the law that requires such an explanation, it needs to be created.

The vacuum of explanation offered by the Wivenchester District Council just seals the deal when it comes to any accusations that Amit would offer when it comes to conflicts of interest, let alone shoddy governance or lack of due diligence when it comes to informing applicants for licensure why their application is being denied or delayed.

The one thing that will undermine Amit's claim is that the law says that local authorities "must be satisfied that the mobile vending unit is fit for purpose." In that regard, the Wivenchester District Council does seem to be operating within its power as defined by the law. In short, it is saying that the Wivenchester District Council has the sole (or at least the main) authority to define who is compliant and who is not.

However, the perception of impropriety/bias, the lack of an appeals process (let alone a third party one) and the lack of a proper and full explanation as to why the licensure application is being denied all need to be remedied as those should all be basic rights for people that interact with and work with government. Government has a duty to serve the public interest in a transparent way and the Wivenchester District Council is obviously not doing that (Broderick 2007).

Again, if they have a valid reason to say no to Amit, that is fine. However, they need to explain themselves and why they are behaving as they are. Shutting down any explanation or appeal of a decision that is not explained in the first place is gross negligence, incompetence and bad governance (Kelly 2008). Part II - Proportionality When it comes to the principle of proportionality and how it is applied in the United Kingdom including England and Wales, there are a lot of different directions that have been taken.

One source points to the principle of proportionality when it comes to the preservation of life. The case in question centers on the fact there were conjoined twins. The source notes that proportionality is the main underlying principle but that preservation of life is more important. Specifically, it is stated that "the preservation of life under the doctrine of necessity" is in play and that this "argues for an alternative conception of necessity based on fundamental constitutional justificatory defense" (Wicks 2003).

Wicks further argues that there is the need for the constitutional value of democracy when it comes to cases like this rather than just a simple of use of the principle of proportionality (Wicks 2003). Proportionality as a case precedent and guide has also run into problems when it comes to mandatory retirement measures. Indeed, such provisions have led to a good number of age discrimination cases in the courts around England and Wales.

While England and Wales are now subject to the wider governance of the European Union in many ways, the European Union has largely been silent on the issue. This leaves the courts of England and Wales to figure out things for themselves when it comes to such cases. Even with the challenges inherent to such cases, there is at least some chance that proportionality will remain as a guiding force when it comes to things like mandatory retirement.

Indeed, Dewhurst (2016) states that studies and articles like her treatise will "assist in reducing fragmentation and inconsistency of decision making, provide more certainty and clarity for both claimants and respondents as to the legality of such provisions and reduce the potential for the inevitable undermining of the age discrimination rules with current exist (Dewhurst 2016). One paradigm where proportionality clearly has its place would be the sentencing of criminals that are convicted. Indeed, people that commit the same crime should generally get the same amount of time.

Of course, there are details to every case and offender such as how many people were hurt, whether a weapon was involved, whether that weapon was used, the prior record (or lack thereof) of the offender and so forth. However, like situations and like offenders should generally be treated differently. In practice, this does not always happen as different judges and different courts will behave in different ways in this regard.

Despite this, there is a strong argument for proportionality because it is seen as a bad thing when one criminal gets off lightly and another gets the book thrown at them and there is no clearly reason why. Things get worse when the more harshly treated person is of a racial minority while the other is not.

Indeed, proportionality and consistency should be the natural order of things when it comes to laws as enforced and levied in England, Wales and other parts of the United Kingdom or broader world that ostensibly try to stick to such standards (Raine & Dunstan 2009) Even with the above, the clear focus of the question being answered in this section is judicial review.

The case of Amit is clearly a situation where such review would be warranted as the law and/or the council itself is clearly derelict in its duties and/or designed in a deficient manner that is allowing for some rather obvious and rampant abuse on the part of the council (O'Connor & Henze 1984). Indeed, the disparate sentencing problems with criminals and how this all compares to the concept of proportionality is mentioned and covered in many judicial review forums (Smith, 2014).

Just one example was a recent review of whether it can be allowed for or if it should be required that a Supreme Judicial Court and a trial judge should be required to agree when it comes to the sentence passed down against a specific defendant (Moulton, 2005). The work of Goodwin makes it clear that judicial review for situations like that of Amit should be a standard and a requirement. Goodwin states a specific case where something very similar happened, although it had wider implications.

The situation centered on the judicial review of a proposed housing development in Suffolk, England. The main focus of the judicial review was the environmental impact that the housing development would have. Goodwin actually makes the case that using proportionality as a legal lens to assess this case was actually the wrong way to go about things.

The appeal court went completely against the prior court and took the environmental impact reports about the housing development very seriously and agreed with the idea that the development would have wide-ranging environmental impacts (Goodwin, 2013). One source that the author found for this section that clearly dovetails with and aligns with the explanation above about how Amit is literally getting hosed in his case with the council was written quite well by Ian Turner in 2008.

As printed in the Liverpool Law Review, Turner makes it a point to focus on cases that are just like Amit's. He explains this perfectly when he says The author does so by reference either to the manner of review employed -- the use of the proportionality principle, for example -- or the context of the administrative decision under scrutiny, such as the infringement of the applicant's fundamental rights." (Turner, 2008).

That whole sentence is applicable to the plight of Amit but the last five words are the linchpin of any case that Amit would have against the council. In other words, there would seem to be a disparity between the proportion allowed for Amit's rival and for Amit personally. This disparity must be explained and it was not. Further, the disparity may stem from favoritism or other improper grounds for the decision made.

If the council cannot or will not explain why the proportionality between Amit and his rival (or anyone else) is seemingly out of phase, then the council has a rather big problem on its hands and the decision should be changed or a least subject to judicial review to ensure that Amit was not being treated differently for no good or acceptable reason (Turner 2008). Some similar work from Martinsen (2011) talks about the amount of discretion and purview that governmental bodies should have in light of the principle of proportionality.

Indeed, Martinsen says that "the principle of proportionality constitutes a powerful means for the European Court to strike the balance between supranational principles and national policy conditions and administrative discretion" (Martinsen 2011). Indeed, the council covered in the first part should indeed have at least some discretion because each case can and will be different and this should allow for some flexibility when it comes to decisions. What it does.