PROPORTIONALITY

[6.12] The proportionality principle that is applied in EU law cases and in cases under the Human Rights Act 1998 is, in contrast to Wednesbury, understood to require that courts engage more immediately in �closer look’ review (the principle can also lead the courts towards review of Acts of Parliament—see [6.04]).

[6.13] The proportionality principle is, however, also applied on the understanding that, in law, �context is everything’.^[1190] For instance, its use in EU law cases can differ from that in cases involving the ECHR given the respective obligations of the State under each body of law; and the manner of its use in cases involving rights under the ECHR can, in turn, vary according to the nature of the rights involved (viz �absolute’ rights and �qualified’ rights^[1191]). The courts also accept that use of the principle should take account of the separation of powers doctrine and the corresponding fact that the courts should not usurp the function of either the legislature or executive/administrative decision-makers. The courts have on this basis emphasised that the principle does not �make judges into legislators’.^[1192] They have also stated that they must observe the deci­sion-maker’s �margin of appreciation’ in EU law cases and their �discretionary area of judgment’ in cases under the Human Rights Act 1998.^[1193]

Proportionality and the European Communities Act 1972

[6.14] The obligation to give effect to the proportionality principle in EU law cases is a corollary of the courts’ more general obligation to accord supremacy to EU law in the light of the case law of the CJEU.^[1194] Proportionality is one of a number of general principles of law that govern the actions both of the EU institutions and of the Member States when acting within areas of EU competence,^[1195] and national courts must have recourse to the principle when reviewing national legislative and administrative acts for compliance with, for example, the free movement guarantees in the TFEU^[1196] (although the principle can arise in other ways too^[1197]).

[6.15] The scope for variable application of the principle in the EU context can be seen most clearly in respect of challenges to national legislative measures, whether of the Westminster Parliament or, at the devolved level, the Northern Ireland Assembly.^[1199] For instance, where an Act interferes with EU law’s �constitutional’ rights of movement or of equal treatment under the TFEU,^[1200] a reviewing court should examine the measure closely given that the CJEU has long read the power of derogation—whether in the Treaty^[1201] or a Directive^[1202]—in narrow terms.^[1203] Although the CJEU has said that national authorities may enjoy a �margin of appreciation’ in such matters^[1204]—UK courts have sometimes also identified the imperative of self-restraint when reviewing the preferences of the legislature^[1205]—the settled nature of large areas of EU law means that national legislative interference with them is generally to be permitted in only exceptional and closely controlled circumstances. Where, on the other hand, a national measure has been enacted for the purpose of implementing a Directive it may be that the propor­tionality principle will be applied in a less exacting manner (the national measure may here take the form of an Act or subordinate legislation introduced on the basis of section 2(2) of the European Communities Act 1972^[1206]).

[6.16] Executive and administrative decision-makers too may enjoy a margin of appre­ciation, although the courts have been careful to emphasise that the margin accorded here is less than that accorded to the legislature.^[1210] The corresponding rationale rests on domestic public law orthodoxy; that is, while the legislature enjoys a potentially wide margin of appreciation given that it is elected and entrusted with a law-making role, subordinate decision-makers enjoy a lesser margin because they are typically empow­ered to take decisions only within the framework established by an Act of Parliament or the Northern Ireland Assembly. However, while this can in theory lead to a much more exacting proportionality enquiry into administrative choices, the courts have observed that there may be a need for some degree of deference where, for instance, executive or administrative decisions are taken on the basis of expert evidence,^[1211] in the face of resource considerations,^[1212] or for reasons of administrative efficiency.^[1213] Under those circumstances, the mode of review—proportionality as moderated by the margin of appreciation—may be little different to that associated with Wednesbury unreasona­bleness^[1214] (see [6.05]-[6.11]).

[6.17] One final point about the proportionality principle in the EU order concerns its centrality to the workings of other doctrines and general principles of EU law such as equality, legitimate expectation, and the precautionary principle.

19.

Proportionality and the Human Rights Act 1998

[6.18] The leading authority on the requirement that the courts give effect to the proportionality principle in cases under the Human Rights Act 1998—section 2 of which obliges the courts to �take into account’ the body of ECHR jurisprudence that includes the proportionality principle—remains R (Daly) v Secretary of State for the Home Department.^[1218] Prior to that case, it had been suggested that it was not necessary to recognise proportionality as a free-standing ground for review in Human Rights Act 1998 cases as the principle could be subsumed within the variable standard of Wednes- bury unreasonableness (on which see [6.09]-[6.11]).^[1219] However, while the House of Lords in Daly accepted that there is a significant degree of overlap between the Wednes- bury and proportionality principles, it concluded that proportionality should be recognised as distinct because it can provide for a more intensive standard of review than Wednesbury.^[1220] Lord Steyn thus noted that �proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational and reasonable decisions’; and he likewise observed that proportionality �may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations’.^[1221] His Lordship moreover added that proportionality and modified Wednesbury should not be regarded as co-equivalent because the ECtHR had previously held that modified Wednesbury was not necessarily apposite to the protec­tion of human rights.^[1222]

[6.19] Daly has had the effect of placing proportionality at the centre of cases under the Human Rights Act 1998, whether those cases are concerned with the legality of administrative decisions and acts, with the legality of subordinate legislation, or with the compatibility with the ECHR of primary and, more infrequently, subordinate leg- islation.^[1223] While this has in some instances led to closer scrutiny of decisions and other measures, the courts have emphasised that use of the principle should not be taken to herald a shift to �merits review’.^[1224] Use of the principle has therefore often been linked to a �discretionary area of judgment’ doctrine that, while not the same as the ECtHR’s �margin of appreciation’ doctrine (see [6.25]), imports some of its logic into the domestic constitutional context.^[1225]

Proportionality in the ECHR and the �Margin of Appreciation’

[6.20] The proportionality principle is central to the workings of the ECHR, where it is alluded to in the text of various Articles and where it exists as a general principle of law.^[1226] The principle seeks to ensure that any State interference with a fundamental right is no more than is necessary in all the circumstances, and it applies most obviously when qualified rights such as privacy, manifestation of religious belief, expression, asso­ciation, and property are in issue.^[1227] Here, the text of the ECHR requires that any interference with a right pursues one or more of the grounds for interference listed in the relevant Articles and that the interference is in accordance with the law and �neces­sary in a democratic society’.^[1228] However, the application of the principle is not limited to disputes concerned with the classic qualified rights and it can be of relevance in other contexts too.

[6.21] ECHR jurisprudence on the proportionality principle is, however, also linked to a â€?margin of appreciation’ doctrine.⁹⁷ This doctrine is premised on the understanding that national authorities will, â€?by reason of their direct and continuous contact with the vital forces of their countries’, sometimes be better placed than the ECtHR to determine which measures are necessary in, or suited to, the national context.⁹⁸ The doctrine is invoked most frequently where there is no uniform national approach to the issue before the ECtHR, as the ECtHR considers that its role here is not to impose a uniform standard on the Contracting Parties but rather to ensure that individual national systems do not fall beneath a minimum European standard. While the doctrine does not thereby entail that national measures should avoid scrutiny—the ECtHR has emphasised that the margin of appreciation goes â€?hand in hand’ with European supervi­sion and that the extent of that supervision will be determined by the nature of the right in issue and the corresponding nature of State measures⁹⁹—it does mean that the Strasbourg Court may exhibit a degree of restraint when it considers that there is a range of ECHR-compliant options open to the national authority. This may be so irrespective of whether the authority is legislative, executive/administrative, or judicial in form.¹⁰⁰

[6.22] In concrete terms, a national authority will most frequently be taken to have a �margin of appreciation’ where its decision or other measure has an impact on qualified

of Art 2 ECHR in domestic law—viz where a death pre-dates the coming into force of the Act on 2 Oct 2000—see Re McCaughey [2011] UKSC 20, [2012] 1 AC 725, and [1.33].

⁹⁴ Perez de Rada Cavanilles v Spain (1998) 29 EHRR 109, 120, paras 44—5. And see, eg, Re Bowden; Re JGS Services Ltd Application [2004] NIQB 32 (one-month time-limit for purposes of challenging a vesting order was compliant with Art 6 ECHR). On the elements of the Art 6 ECHR right of access to court see ch 7.

⁹⁵A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 (but see too Lord Hoffmann’s dissent at [2005] 2 AC 68, 129, para 86ff). Art 15 ECHR reads: â€?(1) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. (2) No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.’

⁹⁶Gaygusuz v Austria (1996) 23 EHRR 364; and, eg, Re Parsons’ Application [2002] NI 378 (affirmed on appeal: [2004] NI 38). Art 14 ECHR reads: â€?The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

⁹⁷ See H Yourrow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (The Hague, Kluwer, 1996).

⁹⁸ Buckley v UK (1996) 23 EHRR 101, 129, para 75.

⁹⁹ Handyside v UK (1976) 1 EHRR 737, 754.

¹⁰⁰ Handyside v UK (1976) 1 EHRR 737, 754.

rights^[1231] (see [6.20]; a margin may also be accorded where, for instance, a State enters an Article 15 ECHR derogation given its assessment that there is a �public emergency threatening the life of the nation’^[1232]). Where, in contrast, a decision or other measure impacts upon an absolute right—typically the Article 2 ECHR right to life or the Article 3 ECHR prohibition of torture or inhuman or degrading treatment—the position can become more complex.^[1233] This is because the inviolable nature of absolute rights would suggest that a State should never be taken to have discretion on the question of how to observe such rights. However, while the �no discretion’ point may be incontrovertible where a case is concerned with the State’s negative obligations (that is, its own obligation not to kill or torture), different considerations may apply in respect of its positive obligations (that is, where the State is under a duty to take steps actively to prevent one private party killing another private party, or subjecting another party to torture or inhuman or degrading treatment). Although the ECtHR adopts a strict approach to the State’s positive obligation to ensure that there are effective criminal law provisions to deter offences against the person,^[1234] it is less demanding on the question of how the State should operationalise its resources—for instance, as relate to policing—for purposes of preventing the commission of an offence. Under these circumstances, the ECtHR has emphasised that the burden on States should not be �impossible’ to discharge and that the State should instead be expected to act �reason­ably’ in the light of any threat to an individual.^[1235] The ECtHR, in this way, accepts that the State should have some discretion given �the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources’.^[1236]

The Standard of Review in Domestic Law

[6.23] The corresponding body of case law on the application of the proportionality principle under the Human Rights Act 1998 proceeds on the understanding that the principle can, potentially, require �closer look’ review in any given case (see [6.12]­[6.13]). Whether a proportionality enquiry is required will depend, in the first instance, on whether rights under the ECHR are engaged by a decision or other measure, as decisions and so on that do not engage such rights will not fall under the Human Rights Act 1998 (although there would remain the notional prospect of a modified Wednesbury review where common law rights are engaged by administrative decisions or other measures: see [6.10]). However, where a decision both engages and interferes with rights under the ECHR,^[1237] the courts will ask whether the decision complies with the propor­tionality principle (if applicable). At its most simple, the principle will, again, require a court to ask: �(i) whether the [decision’s] objective is sufficiently important to justify the limitation of a right or interest; (ii) whether [the decision] is rationally connected to the objective; (iii) whether a less intrusive [decision] could have been [taken]; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community’.^[1238] Should the decision or other measure fail to satisfy one or more of these elements,^[1239] the appropriate remedy should issue.^[1240]

[6.24] Such application of the principle has had important implications for the nature and workings of judicial review, and the courts have made clear that they should not refrain from giving effect to it.^[1241] For instance, in terms of the judicial review procedure, the �closer look’ associated with the principle has led the courts to acknowledge that aspects of the procedure may need to be modified to enable the courts properly to conduct a proportionality enquiry.^[1242] The courts have likewise held that statutory requirements that would violate the ECHR for lack of proportion if read as mandatory should instead be read, if possible, as directory;^[1243] and they have also granted remedies to individuals in a significant number of disputes. These have included cases where primary legislation governing the control of sex offenders was deemed disproportionate in its interference with Article 8 ECHR rights to private and family life;^[1244] where a scheme that regulated the duties of landlords vis-a-vis the anti-social behaviour of tenants constituted a disproportionate interference with property rights under Article 1 of Protocol 1 ECHR;^[1245] where the Northern Ireland Housing Executive had failed to take appropriate measures to evict a tenant who was intimidating other tenants contrary to Article 8 ECHR;^[1246] and where the application of prison policies was not consistent with the requirement of balance in Article 8 ECHR.^[1247] The courts have in similar vein been willing to grant a remedy—in the form of a declaration—where a dispropor­tionate interference with a right has since ceased: while such matters are academic, they may remain of public interest and deserving of a remedy.^[1248]

The �Discretionary Area of Judgment’

[6.25] The more intensive scrutiny associated with the principle has, however, been moderated by parallel use of a â€?discretionary area of judgment’ doctrine (alternatively referred to as the â€?margin of discretion’ or the â€?deference or latitude’ due to the deci­sion-maker^[1249]). This doctrine imports the logic of the separation of powers into Human Rights Act 1998 case law by emphasising that, where a decision-maker is attempting to balance an individual’s rights with the interests of wider society, the courts will â€?recognise that there [may be] an area of judgment within which the judiciary [should] defer, on democratic grounds, to the considered opinion’ of the decision-maker.^[1250] The doctrine thus pursues the constitutional imperative of judicial self-restraint and it seeks to prevent the shift to merits review that the proportionality principle was thought to have the potential to entail.^[1251] The doctrine is, moreover, â€?home-grown’ in the sense that the courts regard it as domestic in form and essentially distinct from the ECtHR’s â€?margin of appreciation’ doctrine (on which see [6.20]-[6.22]).^[1252] Although the courts at the same time accept that â€?it will be easier for such an area of judgment to be rec­ognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified’,^[1253] the corresponding body of case law on the domestic doctrine has identified a range of (sometimes conflicting) national constitutional considerations that might aid the courts when deciding whether restraint is required in any given case.^[1254] These include: whether the decision or other measure has been adopted by the legislature, a government Minister, or an unelected official (the legislature will, in general, be taken to have a larger area of discretion than a Minister, who will, in turn, have a larger area of discretion than an official);^[1255] whether the decision or other measure is one that is more suited to resolution in the political context (for instance, a matter of economic policy or a question of national security);¹²⁶ and whether the rights in question fall largely within the â€?constitutional responsibility’ of the courts (for example, the right to liberty, access to the courts, and so on).¹²⁷

[6.26] There has, inevitably, been some judicial disagreement about when it is appro­priate to invoke the discretionary area of judgment doctrine, both in terms of the type of case that it is suited to¹²⁸ and in terms of when, in proceedings, the courts should exercise restraint.¹²⁹ The doctrine has, nevertheless, become central to the wider body of case law, and the courts have drawn upon it when holding, among other things: that legislation that regulates political advertising is not incompatible with Article 10 ECHR’s guarantee of freedom of expression;¹³⁰ that aspects of planning law did not violate the Article 8 ECHR and Article 1, Protocol 1 ECHR rights of third parties;¹³¹ and that a prison policy that sought to regulate the risk of escape and which had been approved by a government minister was not contrary to Article 8 ECHR.¹³² Its logic has also been central to some cases concerned with positive obligations and absolute rights, where the courts have noted that there will often be a need to give â€?appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice’¹³³ (on the approach of the ECtHR in such cases see [6.22]).

Gallagher’s Application [2003] NIQB 26, Kerr J (Sex Offenders Act 1997, s 1, since repealed, challenged as incompatible with Art 8 ECHR: application dismissed because, at paras 20—1, �In this context it is relevant that the scheme was introduced by a democratically elected Parliament.... The task of deciding whether the measures are proportionate must be approached circumspectly, therefore, recognising that Parliament has determined what is required for the protection of the public from sex offenders’); and Re A’s Application [2001] NI 335, 342ff, Kerr J (challenge to Chief Constable’s decision not to reveal further information about the nature of a threat to the life of the applicant: application dismissed but with court stating that, as the decision under challenge had not been taken by an elected body, the degree of deference due to the decision was �commensurately less’).

¹²⁶ See R (Alconbury Limited) v Secretary of State [2001] UKHL 23, [2003] 2 AC 327; and, eg, Re Bow Street Mall’s Application [2006] NIQB 28, para 43, Girvan J.

¹²⁷ International Transport Roth GmbH v Home Secretary [2003] QB 728, 765ff, Laws LJ; and, eg, A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 (power of detention, without trial, in the Anti-terrorism, Crime and Security Act 2001 disproportionate and discriminatory contrary to Arts 5 and 14 ECHR).

¹²⁸ For a survey of some of the differing judicial opinions see Department for Social Development v MacGeagh [2005] NICA 28, [2006] NI 125, 136-8, paras 32-6, Kerr LCJ.

¹²⁹ Re Sinn Fein’s Application [2003] NIQB 27, paras 29-30, Coghlin J: â€?it seems to me that considerable caution should be observed by the court when considering the stage at which and the extent to which resort should be had to such a concept in relation to the domestic application of Convention rights. One of the reasons frequently advanced for the need to observe a significant degree of “judicial deference” is the risk that the court may be tempted to substitute its own decision for that of the democratically elected legislature. However, in my opinion, an equal if not greater risk, is that an excessive degree of deference paid simply to the identity of the decision-maker may inhibit the court in the performance of its primary function under the Human Rights Act 1998 in determining whether an act of a public authority is lawful.’

¹³⁰ R (Animal Defenders International) v Secretary of State for Culture, Media, and Sport [2008] UKHL 15, [2008] 1 AC 1312. See also Animal Defenders International v UK (2013) 57 EHRR 21.

¹³¹ Re Stewart’s Application [2003] NI 149, 159, para 26ff. See too Re UK Waste Management’s Application [2002] NI 130, 142-3.

¹³² Re McCrory’s Application [2001] NIQB 19.

¹³³ Re E (A Child) [2008] UKHL 66, [2009] 1 AC 536, 546, para 58, Lord Carswell, quoting Huang v Secretary of State for the Home Department [2011] UKHL 11, [2007] 2 AC 167, para 16, Lord Bingham (no violation of the State’s positive obligations under Art 3 ECHR in the context of the mode of policing an ongoing sectarian flashpoint near a school in North Belfast). See also, eg, Re A’s Application [2001] NI 335

The Relationship between Proportionality and Wednesbury?

[6.27] One final point of importance about the proportionality principle concerns its relationship with Wednesbury unreasonableness. Although Wednesbury has a long­standing domestic pedigree and is capable of adaptation depending on the context of a case (see [6.09]-[6.11]), it has been suggested that proportionality should be allowed to displace Wednesbury in its entirety as a ground of review in domestic law. The argument that has been made is simply that, as proportionality is now applied in prefer­ence to Wednesbury in EU law cases and in cases under the Human Rights Act 1998 (see [6.12]), it is â€?unnecessary and confusing’¹³⁴ to retain Wednesbury in non-European law cases and that proportionality should be applied there too. The comparative strengths of proportionality are, in turn, said to lie in the fact that it can offer an equally robust template for judicial self-restraint—viz through parallel use of the dis­cretionary area of judgment doctrine—and also in the fact that its analytical foundations are more structured than those of Wednesbury (through, for instance, the base require­ment that decision-makers give reasons for their choices¹³⁵). To put the point differently, it has been argued that proportionality requires a more consistent method of reasoning on the part of both decision-makers and the courts and that the wider body of domestic administrative law would benefit from its increased use.¹³⁶

[6.28] Case law in Northern Ireland has noted the debate about Wednesbury’s future, although no firm opinion has been voiced about whether the principle should be â€?con­signed to history’¹³⁷ and it has been accepted that it is for the highest court to â€?perform the burial rites’.¹³⁸ However, in the absence of the Supreme Court doing so—the Supreme Court in fact relied upon the principle in its very first ruling¹³⁹—it is clear that Wednesbury remains of relevance in cases that do not raise matters of European law¹⁴⁰ and that it may interact with other principles and doctrines in domestic administrative law (see, for instance in relation to equality, [6.51]). That said, the question whether it will continue to be of relevance is, in any event, arguably of only limited practical importance, as the High Court has noted that the judicial task in any given case is one of identifying the appropriate level of scrutiny irrespective of the principle applied.¹⁴¹ It might therefore be said that Wednesbury and proportionality will continue to co-exist as overlapping, though certainly not coterminous, standards of review.

(Art 2 challenge to Chief Constable’s decision not to reveal further information about the nature of a threat to the applicant’s life dismissed).

¹³⁴ R (Alconbury Limited) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 327, 321, para 51, Lord Slynn.

¹³⁵ See P Craig and S Schonberg, â€?Legitimate Expectations After Coughlan’ (2000) PL 684, 699.

¹³⁶ R v Secretary of State for the Home Department, ex p Daly [2001] UKHL 26, [2001] 2 AC 532, 548-9, Lord Cooke; and see the seminal academic account in J Jowell and A Lester, â€?Beyond Wednesbury: Substantive Principles of Administrative Law’ (1987) PL 368.

¹³⁷ Re McBride's Application [2002] NIQB 29, Kerr J.

¹³⁸ Re McQuillan's Application [2004] NIQB 50, para 38, Weatherup J, citing R (Association of British Civilian Internees) (Far East Region)) Foreign Secretary [2003] 3 WLR 80, 92, para 35.

¹³⁹ R (E) v JFS Governing Body [2009] UKSC 1, [2009] 1 WLR 2353 (Legal Services Commission’s refusal to fund an individual who had been successful in the Court of Appeal but who was now the respondent in an appeal to the Supreme Court was so unreasonable in the circumstances as to be unlawful).

¹⁴⁰ Re McBride's Application [2002] NIQB 64, Weatherup J.

¹⁴¹ Re McBride's Application [2002] NIQB 29, Kerr J; cited with approval in Re McBride's Application (No 2) [2003] NI 319, 345, para 52.