Human Rights and Proportionality Overview

Question 1

Proportionality

Answer 1

Balancing measure’s interference with fundamental rights.

• Relevant in public law when a decision affects fundamental rights.

Question 2

European Convention on Human Rights

Answer 2

*Qualified rights allow interference if justified for a legitimate aim.

• Absolute rights have no possibility of justification.

Question 3

Article 8 - Right to Respect for Private and Family Life

Answer 3

• Guarantees respect for private and family life, home, and correspondence.
• Interference allowed if necessary in a democratic society for specific reasons.

Question 4

Article 5 - Right to Liberty and Security of Person

Answer 4

Ensures liberty and security of individuals with specific exceptions.

• Conditions for lawful deprivation of liberty are prescribed by law.

Question 5

Proportionality in Judicial Review

Answer 5

• Doctrine of Proportionality
• Convention Rights and Human Rights Act
• Proportionality in Legal Review
• Common Law Application

Question 6

Doctrine of Proportionality

Answer 6

• Reviewing court assesses the balance struck by decision maker
• Proportionality test considers relative weight of interests
• Heightened scrutiny test not always suitable for human rights protection

Question 7

Proportionality in Legal Review

Answer 7

• Proportionality assesses decision maker’s balance
• Emphasizes relative weight of interests and considerations
• Intensified scrutiny compared to traditional review
• Focus on protecting human rights

Question 8

Common Law Application

Answer 8

• Level of scrutiny varies based on the issue at hand
• Intense scrutiny for fundamental rights cases
• Prisoners’ cases exemplify proportionality exercise for constitutional rights

Question 9

Convention Rights and Human Rights Act

Answer 9

• Qualified rights under Article 8 reflect proportionality review
• Justification for interference with rights must align with specific criteria
• Case law example: Huang and Kashmiri v SSHD [2007]UKHL 11

Question 10

Application of Proportionality Test

Answer 10

• Belmarsh Case
• Structured Four-Part Test
• Human Rights Judicial Reviews

Question 11

Belmarsh Case

Answer 11

Issue: Derogation Order allowing indefinite detention of suspected terrorists

• Challenged on grounds of breaching Article 5 and Article 14 rights
• Assessment of government’s justification and national emergency claims
• Comparison of Wednesbury test applicability

Question 12

Structured Four-Part Test

Answer 12

*Importance of legislative objective in limiting rights

• Rational connection of measures to the objective
• Necessity of measures in impairing rights
• Balancing societal interests with individual and group rights

Question 13

Human Rights Judicial Review

Answer 13

• Proportionality test standard for cases involving convention rights
• Criteria for legitimacy, rational connection, necessity, and balance
• Flexibility and heightened scrutiny for fundamental rights breaches

Question 15

Standing and Grounds

Answer 15

• Human claimant requirement for Convention rights breaches
• Assessment of ‘sufficient interest’ for challenging decisions
• Proportionality assessment for measures affecting rights
• High threshold for irrationality challenges

Question 16

Remedies and Procedural Points

Answer 16

Damages claim availability for Convention rights breaches

• Involvement of multiple claimants and interested parties in JRs
• Role of charities, NGOs, and public bodies in making submissions

Question 17

Grounds for Judicial Review

Answer 17

• Illegality: Acting beyond granted powers and unlawful delegation
• Wednesbury Unreasonableness: Criteria for absurdity and irrationality
• Procedural Impropriety: Breach of natural justice and legitimate expectations