From the Administrative Law Bar Association Annual Lecture (2014): Anxious Scrutiny.
Lord Sumption on the history of proportionality,
‘There is, however, something peculiarly English about the crab-like process by which this came about on this side of the Atlantic, which is characteristic of the way that English judge made law develops.
At stage 1 the court, presented with a new problem which it lacks the necessary tools to resolve, rejects a rational solution which stands outside its traditional concepts.
At stage 2, it stretches an existing legal concept so as to achieve substantially the same result, while denying that it is doing any such thing.
At stage 3, it throws off the mask and admits that the alien doctrine has arrived and finally calls it by its name.
In the domain of private law, collectors of the genre will remember the tortured process by which the doctrine of forum non conveniens reached us. Proposed as a rational scheme of jurisdiction by Mr Robert Goff QC in The Atlantic Star, it was initially rejected as an alien concept fit only for the Scots and Americans, then stealthily applied in practice and finally recognised in terms by Lord Goff* of Chieveley twelve years later.
[*i.e by Robert Goff wearing a different hat- editor]
[Formatted for ease of reading.]