Rights, Reasonableness, Proportionality Flashcards
Common Law and the ECHR
Different categories of legal protection for human rights:
- The rights contained in the European Convention on Human Rights 1950 (ECHR).
- The Convention rights that have been incorporated into domestic law by the Human Rights Act 1998 (HRA).
- The common law constitutional rights developed by the UK courts.
Kennedy v The Charity Commission [2014]
Lord Mance
‘Since the passing of the the Human Rights Act 1998, there has too often been a tendency to see the law in areas touched on by the Convention solely in terms of the Convention rights. But the Convention rights represent a threshold protection; and, especially in view of the contribution which common lawyers have made to the Convention’s inception, they may be expected, at least generally even if not always, to reflect and to find their homologue in the common law or domestic statute law. … In some areas, the common law may go further than the Convention.’
R v Secretary of State for the Home Department, ex parte Bugdaycay [1987]
- An asylum seeker sought judicial review of the Home Secretary’s decision to refuse his application. He argued that if he returned to Kenya, he would be removed to Uganda where he feared he would be killed.
- The House of Lords held that the Secretary of State had acted unlawfully.
- When a value of fundamental importance, such as the right to life, is interfered with, more will be required to justify the administrative decision.
Lord Bridge
‘[T]he court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.’
R v Secretary of State for the Home Department, ex parte Brind [1991]
- In 1988, the Home Secretary announced a ban on direct broadcasting of members of organisations in Northern Ireland, such as Sinn Fein, which were associated with terrorist groups.
- To circumvent the ban, broadcasters would use actors to dub the words of such members.
- Brind was a journalist and sought judicial review of the government’s ban.
- Brind argued that the ban was irrational and breached Article 10 ECHR (freedom of expression).
- The House of Lords rejected both arguments.
The House of Lords’ judgment
- Lord Ackner and Lord Lowry—a proportionality test would lead to merits review (or appeal), which would be a ‘wrongful usurpation of power’.
- Lord Bridge and Lord Roskill—proportionality may be the right test in the future, but this is not the case to introduce a proportionality test.
- Lord Templeman—the ban was lawful as it was not disproportionate: ‘the interference with freedom of expression is minimal and the reasons given by the Home Secretary are compelling.’
R v Secretary of State for the Home Department, ex parte Leech (No 2) [1994]
The Court of Appeal’s judgment (Steyn LJ)
- ‘It is a principle of our law that every citizen has a right of unimpeded access to a court. … Even in our unwritten constitution it must rank as a constitutional right.’
- The right to unimpeded access to a court included the right to unimpeded access to a solicitor.
- To allow the Secretary of State to interfere with fundamental rights would require express wording in the 1952 Act.
R v Secretary of State for the Home Department, ex parte Simms [2000]
Lord Hoffmann
‘Fundamental rights cannot be overridden by general or ambiguous words … In the absence of express language or necessary implication to the contrary, the courts … presume that even the most general words were intended to be subject to the basic rights of the individual.’
R (UNISON) v Lord Chancellor [2017]
- UNISON sought judicial review of employment tribunal fees, arguing that it restricts access to justice.
- The Supreme Court unanimously held that the fees were unlawful.
- The case was decided primarily on the grounds of the common law and the constitutional right of access to justice.
- The degree of intrusion in this constitutional right was greater than was justified by the legitimate objectives (i.e., transferring cost to users, incentivizing earlier settlement, disincentivizing weak or vexations claims).
R v Ministry of Defence, ex parte Smith [1996]
The MoD’s policy on homosexuals in the armed forces:
‘The Ministry of Defence’s policy is that homosexuality is incompatible with service in the Armed Forces. Service personnel who are known to be homosexual or who engage in homosexual activity are administratively discharged from the Armed Forces.’
David Pannick QC’s submission
‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.’
The Court of Appeal’s judgment
- All three judges accepted Pannick’s submission.
- But the Court held that the MoD’s decision was within the range of reasonable responses.
- The Wednesbury threshold may be lower in human rights cases, but it is still a very high threshold.
- However, did the Court of Appeal fail to apply the variable (proportionality-style) Wednesbury test, which required greater justification for the MoD’s policy to be lawful?
Smith and Grady v United Kingdom (1999)
Smith took her case to the ECtHR in Strasbourg—and won!
The judgment of the European Court of Human Rights
- There was a breach of Article 8 of the ECHR (the right to respect for private and family life).
- There was a breach of Article 13 of the ECHR (‘Everyone whose rights and freedoms set forth in this Convention are violated shall have an effective remedy before a national authority’).
- Modified Wednesbury was inadequate for the protection of rights protected by the ECHR.
The Proportionality Test
Applying the proportionality test, the courts will ask:
(i)Is the legislative objective sufficiently important to justify limiting a fundamental right?
(ii)Is the measure rationally connected to the legislative objective?
(iii)Could a less intrusive measure have been used?
(iv)Has a fair balance been struck between the rights of the individual and the interest of the community? (a.k.a. narrow proportionality or proportionality stricto sensu)
The first three parts of this test were accepted in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532; but see now Bank Mallet v Her Majesty’s Treasury (No 2) [2013] UKSC 39 [20].
Two Tests: Reasonableness and Proportionality
Cases involving Convention rights
- The court will apply the proportionality test.
- The court will substitute its judgment on proportionality, balancing the individual right and the public interest.
- The court will not merely assess the reasonableness of the public authority’s decision.
Cases not involving Convention rights
- The court will apply Wednesbury unreasonableness and the traditional (common law) grounds of review.
But is that changing? This is a developing area, with some Supreme Court Justices suggesting an expanded scope for proportionality review: see, e.g., Pham [2015] UKSC 19; Keyu v Foreign Secretary [2015] UKSC 69.
The Deference Debate
Should the court defer to the public authority’s judgment because of its expertise or political legitimacy?
Lord Bingham
‘The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed ’
Huang v Secretary of State for the Home Department [2007]
