Procedural Proportionality: A Critical Analysis

Introduction

Procedural proportionality sits within UK human rights and public law as the requirement that the process leading to a rights‑interfering decision is fair, reasoned, and properly informed. It is distinct from the question of whether the interference itself goes too far (substantive proportionality). Here, the focus is on what the decision‑maker did before acting: how information was gathered, how affected people were heard, and whether reasons and alternatives were addressed.

In practice, a decision can pass a substantive proportionality test yet still be unlawful if the procedure was deficient. Courts use judicial review to examine whether public bodies followed fair procedures, especially where Convention rights under the Human Rights Act 1998 (HRA) are in play (e.g., Articles 8, 9, 10, 11) or where the common law duty of fairness applies. This guide sets out the key features, leading cases, and practical steps to get the process right.

What You’ll Learn

• The difference between procedural and substantive proportionality
• The core elements of a proportionate decision‑making process
• How courts assess fairness and reasons through judicial review
• Key cases including Daly, Bank Mellat, Tameside, Moseley, Osborn, and Kiarie & Byndloss
• How procedural proportionality plays out in contexts such as immigration, prisons, planning, and disciplinary decisions
• Practical steps for public bodies and advisers to design and test a compliant process

Core Concepts

Procedural vs Substantive Proportionality

• Substantive proportionality asks whether the outcome is justified: is the interference lawful, for a legitimate aim, suitable, necessary, and a fair balance? The Bank Mellat four‑stage test is often cited here.
• Procedural proportionality asks whether the process used to reach that outcome was fair: was there proper inquiry, a fair chance to be heard, quality reasons, and a genuine look at less intrusive options?

Key point: even where the objective is important and the measure broadly suitable, a blanket or inflexible policy that bypasses individual circumstances may fail for want of a fair procedure.

Tip: Separate the “can we justify the result?” question (substance) from “did we run a fair process to reach it?” question (procedure). You need both.

Elements of a Proportionate Procedure

A proportionate process is structured, fair, and transparent. Core elements include:

• Proper inquiry (Tameside duty)

  • Take reasonable steps to inform yourself of relevant facts
  • Avoid material errors of fact; correct misunderstandings promptly
  • Consider expert evidence where appropriate

• Opportunity to be heard (common law fairness; Article 6 where engaged)

  • Give timely notice of the proposed decision and the case to meet
  • Allow a realistic opportunity to make representations and submit evidence
  • Provide oral hearings where fairness requires (e.g., credibility disputes or significant liberty interests)

• Clear, intelligible reasons (Doody duty where fairness requires)

  • Explain the evidence relied on and how conflicting material was addressed
  • Show why less restrictive alternatives were rejected
  • Use plain language; avoid boilerplate that obscures true reasoning

• Individualised assessment

  • Avoid blanket rules where individual factors matter (e.g., medical needs, family life)
  • Show engagement with personal circumstances and equality impacts

• Consideration of alternatives and mitigation

  • Record assessment of less restrictive means and why they were not suitable
  • Build in review points, sunset clauses, or safeguards where risk or uncertainty is high

• Consultation (Gunning/Moseley principles)

  • Consult at a formative stage, with sufficient information on proposals and realistic alternatives
  • Allow adequate time; conscientiously consider the product of consultation

• Equality and human rights checks

  • Apply the Public Sector Equality Duty (s.149 Equality Act 2010) with real consideration, not a tick‑box
  • Identify relevant Convention rights and address proportionality explicitly

• Record‑keeping and transparency

  • Keep an auditable record of facts, options, reasons, and responses to representations
  • Where closed material processes apply, provide as much gist as fairness permits

How Courts Review Procedure

• Intensity of review

  • Human rights and serious interests attract more exacting scrutiny
  • Courts examine whether the process enabled a fair, informed, and reasoned decision

• Key judicial review questions

  • Did the authority inform itself properly (Tameside)?
  • Was a fair hearing afforded; should it have been oral (Osborn)?
  • Were adequate reasons given (Doody)?
  • Were consultation standards met (Moseley)?
  • Were alternatives and less restrictive means genuinely assessed (Bank Mellat)?

• Remedies

  • Quashing orders, mandatory orders to reconsider, declarations, and sometimes interim relief to prevent irreversible harm while fairness issues are resolved

Key Examples or Case Studies

R (Daly) v Secretary of State for the Home Department [2001] UKHL 26

• Context: Prison policy allowed officials to examine prisoners’ legal correspondence in their absence.
• Holding: The policy was unlawful; it was more intrusive than necessary and failed to respect confidential legal access.
• Application: Avoid blanket rules. Build in tailored safeguards and explain why less intrusive options are insufficient.

Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

• Context: Directions effectively excluded an Iranian bank from UK financial markets; reasons were partly closed.
• Holding: The measure was set aside; the court applied structured proportionality and stressed fair reasoning, including the need to disclose as much as possible consistent with security.
• Application: Record the four stages of proportionality and give the strongest reasons and gist you can, especially where closed material is used.

Secretary of State for Education v Tameside MBC [1977] AC 1014

• Context: The Secretary of State acted on an unfounded assumption about grammar school reorganisation.
• Holding: A decision‑maker must take reasonable steps to acquaint themselves with relevant information.
• Application: Build an evidence plan. Identify key factual uncertainties and how you will test or resolve them before deciding.

R (Moseley) v London Borough of Haringey [2014] UKSC 56

• Context: Council tax support scheme consultation.
• Holding: Fairness required consultation on options and reasons, not just the preferred proposal.
• Application: Share enough information about alternatives and constraints so consultees can give meaningful feedback.

R (Osborn) v Parole Board [2013] UKSC 61

• Context: Whether prisoners were entitled to oral hearings on release decisions.
• Holding: Fairness often requires an oral hearing when facts or credibility are in dispute, or where a hearing would help the decision.
• Application: Set criteria for when to offer oral hearings and record why a hearing is (or is not) needed in each case.

R (Kiarie) and R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42

• Context: “Deport first, appeal later” regime for foreign criminals.
• Holding: Out‑of‑country appeals often were ineffective; the regime was unlawful as applied.
• Application: Check whether affected persons can effectively challenge before removal. If not, adjust the process or defer action.

Practical Applications

For public bodies designing decisions that may interfere with rights:

• Plan the process

  • Map the legal powers and limits (including HRA compatibility and any statutory guidance)
  • Identify rights engaged and set out the proportionality issues early
  • Schedule consultation and representation windows with realistic timelines

• Gather and test evidence

  • Use a Tameside checklist: what facts do we need, what is uncertain, and how will we verify?
  • Seek expert input where it materially affects risk, safety, health, or feasibility
  • Capture equality data and assess impacts with evidence, not assumptions

• Hear from those affected

  • Provide clear notice with the material relied upon, subject to necessary redactions
  • Offer a fair route to make representations; consider oral hearings where credibility or complex facts matter
  • Make reasonable adjustments for disability and communication needs

• Consider alternatives and safeguards

  • Identify less restrictive measures and record why they were rejected
  • Use pilots, time‑limited measures, or staged implementation where appropriate
  • Build in review mechanisms, especially where evidence is developing

• Give reasons that stand up

  • Structure reasons around the key questions: facts found, options considered, impacts weighed, and why this measure is chosen
  • Explain why contrary arguments were not accepted
  • Avoid stock phrases; tailor to the case

• Document the equality and human rights analysis

  • Complete and attach the equality assessment (PSED), showing real consideration
  • Address proportionality expressly, applying the Bank Mellat steps

• Keep a clear record

  • Minutes of meetings, summaries of consultation responses, and decision logs
  • Audit trail of documents seen by the decision‑maker

For lawyers and advisers challenging decisions:

• Ask for disclosure of reasons and key material relied upon; if withheld, request a gist sufficient to respond
• Test Tameside compliance: what did they check, and what did they miss?
• Compare the reasons to the evidence; look for gaps, boilerplate, or failure to address alternatives
• Assess fairness of the hearing: notice, time, access to legal advice, oral hearing if needed
• Use pre‑action correspondence to seek procedural remedies (e.g., fresh consultation, oral hearing, reconsideration)
• Consider interim relief where removal or irreversible harm looms

Context‑specific notes:

• Immigration and asylum

  • Effective participation is central; out‑of‑country processes can be defective where evidence or credibility hinges on in‑person engagement
  • Pay attention to availability of legal aid, interpreters, and time limits

• Prisons and security

  • Confidential legal access is sensitive (Daly)
  • Segregation and restrictions often require periodic review and reasons tailored to current risk

• Planning and local government

  • Consultation must be genuine and informative (Moseley)
  • Keep a robust options appraisal and equality assessment

• Disciplinary and regulatory

  • Where reputations and livelihoods are at stake, reasons and fair hearings often carry added weight
  • Provide disclosure sufficient for a fair response; consider oral hearings for credibility issues

Summary Checklist

• Separate procedural and substantive proportionality in your analysis
• Plan a fair process: evidence, consultation, representations, and timelines
• Apply the Tameside duty: inform yourself adequately before deciding
• Offer a fair opportunity to be heard; consider whether an oral hearing is needed
• Give clear, tailored reasons that address evidence, alternatives, and impacts
• Record consideration of less restrictive measures and why they were not adopted
• Carry out and document the PSED and human rights proportionality reasoning
• Keep an auditable trail of what was considered and why
• In closed or sensitive cases, provide the fullest gist and reasons consistent with security
• Build in review points, especially where facts change or measures are intrusive

Quick Reference