Doctrine of proportionality Flashcards
What is proportionality?
mechanism through which conflicts involving human rights are decided
Phases of examining infringement of rights?
- What right (if any) was infringed?
- What is the conflicting right/public interest?
- Balancing tests (reasonableness)
- Remedy (section 3/4 HRA, striking it down)
Are human rights absolute?
No
-they require proportionality as “prescribed by law”
Four requirements for proportionality in Bank Mellat v Her Majesty’s treasury (2013)
- is it objectively sufficient to justify the limitation of a fundamental right?
- is it rationally connected to the objective?
- could a less intrusive measure have been used?
- has a fair balance been struck between the rights of the individual and interests of the community?
Additional ‘zero’ requirement for proportionality
-does the measure that has been taken against the human right have a legitimate aim (public interest) in the first place?
Was there a legitimate aim in Ngole?
CA held that there was but the obligation to maintain public confidence could not extend to prohibiting any controversial statements
-there were limits to protecting this aim
Was there a rational connection in Ngole?
- unlikely that service users who came across posts would be impressed by them to the extent it would hinder the reputation of social workers
- speculative claim for rational connection
- judge held N would be seen as a representative for the profession and rational connection was established
Did the university use the least intrusive measure in Ngole?
-court of appeal held that “such a blanket ban on the freedom of expression of those who may be called ‘traditional believers’ cannot be proportionate”
Did Ngole pass the fair balance test?
No
- the more intrusive the measure of a right the more important the public interest being pursued
- held the university’s measures and their aim were not “fair enough” in comparison to the infringement of rights
