⇒ In the last set of notes we looked at how proportionality review under the Human Rights Act might be different to the âotherâ form of substantive scrutiny we encounter in judicial review â Wednesbury unreasonableness
⇒ We identified that Wednesbury unreasonableness is a high threshold to meet, and that proportionality review may therefore be preferable because it provides for greater scrutiny by the courts
⇒ These notes define proportionality review more precisely
⇒ Remember that the âgroundsâ for such review is provided for by section 6(1) of the Human Rights Act 1998: âit is unlawful for a public authority to act in a way that is incompatible with a Convention right.â
⇒ The qualified rights (Articles 8-11 ECHR) have proportionality review âbuilt-inâ to them. In other words, these rights may lawfully be infringed upon by the State, providing the State does so proportionately.
⇒ Other rights, which are not qualified, can be derogated from (âsuspendedâ) in âtimes of war or other public emergency threatening the life of the nation.â
⇒ Note, this is not a Human Rights Act case, but forms the basis for thinking about proportionality review under the Human Rights Act
⇒ In this case, a civil servant was pursued by the State for participating in a peaceful demonstration against government corruption in Antigua. Under the Constitution, freedom of expression and assembly is guaranteed whilst permitting certain restrictions that were necessary in the public interest. A civil service code banned civil servants from engaging in any form of political controversy.
⇒ It was held that the restraint imposed on civil servants amounted to more than what was necessary to pursue the public interest, and consequently the claimantâs constitutional right has been unlawfully infringed
⇒ Endorsing dicta from other Commonwealth jurisdictions, Lord Clyde (giving the judgment of the court) defined the basis or âtestâ for proportionality review thus:
⇒ Lord Steyn endorsed the De Freitas test in this in R (Daly) v Secretary of State for the Home Department [2001] and offered further commentary on what proportionality mean:
⇒ Two claimantsâone from China, the other from Iranâsought indefinite leave to remain (in the first case) and asylum (in the second case). The Home Office rejected both applications, citing the UK Governmentâs new policy on immigration. What both cases had in common is the link each of the claimants had to the UK by virtue of close family members residing here - in Huangâs case, she was a dependant of her daughter who lived here
⇒ One case was successfully appealed to an adjudicator, but both claimants failed in their bids to gain access to the UK when an appeal was heard by the Immigration Appeal Tribunal. On appeal to the Court of Appeal, the first claimant won and the second had the case remitted to the tribunal. On appeal to the House of Lords, both claimants won to the extent that their appeal would be re-heard by the tribunal on a new basis
⇒ The legal issue for the courts was whether - and to what extent - the decision-makers were obliged to take into account the right to family life under Article 8 of the ECHR in formulating and applying immigration policy and procedures
⇒ In considering what the proper basis is for proportionality review, Lord Bingham considered the decision in de Freitas (at [19]):
⇒ The three-part de Freitas test still applies:
⇒ BUT ALSO, following Huang, there appears to be a fourth question to ask:
⇒ Thus, proportionality review has become more sophisticated in that it not only looks at the âmeans and endsâ of a legislative or other objective, but it appraises the fairness of individual and societal interests being weighed against one another
⇒ The claimant, a girl of Muslim faith, attended a school outside her catchment area. Although the school admitted mostly students of Muslim faith, it was not a faith school, admitting students of many different faiths. The school had a school uniform policy which provided for three options for girls - one of which was developed in consultation with the local Muslim community
⇒ One day, the claimant arrived at school in a âjilbab,â and was told to go home and come back in school uniform. She didnât go back to that school and spent around two years without any formal education at all. Although she later moved schools, she sought judicial review of the decision of the school not to admit her wearing the jilbab, in contravention of Article 9 ECHR on freedom of religion
⇒ The High Court rejected her claim, but she successfully appealed to the Court of Appeal. On appeal to the House of Lords, the School successfully defended their decision
⇒ In assessing whether the policy was a proportionate one in the sense that it did not disproportionality infringe upon the claimantâs right under Article 9, the court took into account:
⇒ Note, this case is also referred to in the literature as the âBelmarshâ judgment or A and Others No.1
⇒ Following the terrorist attacks on the US in September 2001, Parliament enacted the Anti-Terrorism, Crime and Security Act 2001. Section 23 provided for the executive detention of foreign suspects of terrorism with limited judicial oversight
⇒ Article 5 ECHR provides for a right to liberty save in a finite number of circumstances
⇒ The 2001 Act would require a derogation from Article 5 ECHR âin time of war or other public emergencyâ (Article 15 ECHR).
⇒ 9 foreign nationals, who had been imprisoned under these executive (not judicial) powers sought to challenge their detention in the courts
⇒ The case made it to the House of Lords, who sat as a bench of 9 Law Lords (rather than the usual 5)
⇒ The court had to decide whether there was a âwar or other public emergency threatening the life of the nationâ as required by Article 15, and if so, whether the measures adopted were âstrictly required by the exigencies of the situationâ (the proportionality requirement)
⇒ The majority decided to grant a margin of appreciation (or deference) to the Government in respect of their assessment of whether there was a war or other public emergency
⇒ However, the House of Lords undertook their proportionality review most energetically
⇒ Lord Hope: âSection 23 of the 2001 Act is not rationally connected to the legislative objective. If the threat is as potent as the Secretary of State suggests, it is absurd to confine the measures intended to deal with it so that they do not apply to British nationals, however strong the suspicion and however grave the damage it is feared they may cause. There is also the point that foreign nationals who present the same threat are permitted, if they can safely do so, to leave this country at any time. Here too there is a clear indication that the indefinite detention of those who remain here as a means of countering the same threat is disproportionateâ
⇒ The House of Lords couldn't quash the 2001 Act as Parliament is âsovereignâ
⇒ Lord Hoffman, however, took a slightly different approach:
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