A Clash of the Cultures? Approachs towards a Proportionality Principle in Canada, UK & New Zealand

Abstract

The objective in this paper is to examine the integration of proportionality in the jurisdictions of the United Kingdom, Canada and New Zealand. Since Wednesbury unreasonableness as the orthodox ground of judicial review has been largely criticised new methods of substantive review have been determined. Proportionality as one of them has a long tradition in European law and in the Law of several European’s Member States. Being initially developed in Germany over 200 years ago, it is well established and recognised. The UK as a Member State of the EU has adopted the proportionality principle under EU law pressure. This being a novelty in Common Law it had an effect on other jurisdictions just like Canada and New Zealand as well. Thus the paper determines the origin and roots of the proportionality principle and elaborates the different approaches made towards a proportionality principle in the three jurisdictions discussed.