What does a potentially successful “proportionality” defence look like?  To put the question slightly differently, what are the contours of proportionality in the context of mandatory possession proceedings?  This is the question largely left open by Pinnock (links to our note in a new window) but one of considerable difficulty in the interim.  In Pinnock, the Supreme Court helpfully observed that “The wide implications of this obligation will have to be worked out.  As in many situations, that is best left to the good sense and experience of judges sitting in the County Court” (at [57]).  They did set out some thoughts on the parameters of proportionality (at [61]-[64]), but left the rest of it until Salford v Mullen (hearing dates 23.11.2010 over two days – the link is to the SC sittings).  Undoubtedly, Pinnock is a watershed moment but, before judgment is given in Mullen, what are we to make of these wide implications?  How are we to know what the prospects of success of a potential proportionality defence are or may be?  The merits of proportionality are commonly said to lie with its flexibility, its variable “intensity”, depending on a variety of contextual factors, but that leaves open the question of the degree of intensity in mandatory possession claims.

I have no magic answers to these questions (my NL colleagues are much better attuned), but would suggest some bedtime reading beyond this blog, the case law on the subject, and the standard textbooks (Craig is perhaps the best on this topic but everybody has their favourite).  In particular, Tom Hickman’s Public Law after the Human Rights Act (Hart Publishing, 2010) contains a useful discussion of proportionality and the issues it raises for public law, especially in chapters 6 and 9.  Not everybody will appreciate his conversational style, which grates a little, but the depth of reading that went into this book makes it a useful read, most particularly because he interweaves some really rather difficult questions (especially about the relationship between proportionality and “full” merits review) into his discussion.  He draws on Canadian and Israeli jurisprudence on proportionality (and there may be an irony in the latter) to develop his argument.  It also has the merit of being the most up-to-date text.  It’s also a paperback but costs a whopping £42.50 – check for it in your library – but, if you have access to the journal, Public Law, at least some of his arguments are contained in his article in 2008 at pp 694-716.  An alternative, more neutral text is Aileen Kavanagh’s book, Constitutional Review under the HRA, but, in truth, I found that one less enlightening.  There is also a shorter discussion (at pp 120-6) in the third edition of the classic text by Carol Harlow and Rick Rawlings, Law and Administration, which (as always) is worth a read.

Some academic sources are cited by Lord Steyn in his classic speech in R(Daly) v SOS for the Home Department [2001] 2 AC 532 at [27] but no disrespect to those sources is meant by the comment that they are at the more descriptive end of academic writing.  Julian Rivers’ “Proportionality and Variable Intensity of Judicial Review” (2006) 65(1) Cambridge Law Journal 174-207 is rightly coming into its own now as a thoughtful discussion of the diverse ways in which proportionality and intensity has been and might be framed generally – it is well worth a read.

These aren’t the only, or perhaps even the best, additional texts, but they may be helpful to readers with those many spare moments.  Do let me know if you have others which have been useful.