ssrn-id2326987

Electronic copy available at: http://ssrn.com/abstract=2326987

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Proportionality and deference: the

Importance of a structured approach

Mark Elliott

PAPER NO. 32/2013

SEPTEMBER 2013

http://www.law.cam.ac.uk/ssrn/

Electronic copy available at: http://ssrn.com/abstract=2326987

Elliott, ‘Proportionality and deference: the importance of a structured approach’ 1

Proportionality and deference: the importance of a structured approach

Mark Elliott*

Introduction

In the closing decades of the last century, when one of the questions at the forefront of English administrative lawyers’ minds was whether proportionality should be embraced as a ground of judicial review, the two factors upon which debate principally centred were the structured nature of the test and its likely impact upon the breadth of executive discretion (and, correlatively, judicial power). Unsurprisingly, the former was generally seen as a good thing, and as welcome relief from the palm-‐tree quality of the tautologous Wednesbury doctrine.1 However, there was great concern in certain quarters about the latter, the perceived difficulty being that adopting the proportionality test would eviscerate the hallowed distinction between appeal and review, resulting in judicial usurpation of administrative functions. Against that background, the purpose of this paper is twofold. It argues that the structured nature of the proportionality test is one of its principal virtues, but that English courts have some distance to go before fully capitalising on this; and that this failure in turn is inhibiting the emergence of a coherent doctrine of judicial deference to the administrative and legislative branches which is intended to ensure that a distinction remains between the respective roles of courts and primary decision-‐makers.

The distinction between necessity and narrow proportionality

There are many formulations of the proportionality test.2 The version that is advocated in this paper, for reasons which will be defended in due course, is as follows:3

(i) Does the measure impinge upon a highly-‐regarded interest (eg a human right)?

(ii) Does the measure pursue a legitimate objective?

(iii) Is the measure capable of securing that objective?

(iv) Is the adoption of the measure necessary in order to secure that objective?

(v) Are the losses inflicted by the measure (eg in terms of the restriction of human rights) justified, or outweighed, by the gains which it purchases (eg in terms of benefits which flow from securing the legitimate objective)?

While it is now well-‐established that English courts can and do apply the proportionality test, at least in cases concerning human rights,4 the precise content of the test which

* Senior Lecturer in Law, University of Cambridge; Fellow, St Catharine’s College, Cambridge. I am indebted to Julian Rivers for his invaluable comments on earlier drafts of this paper and for discussion of the ideas upon which it is based. 1 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 2 See further Hickman, ‘Proportionality: Comparative Law Lessons’ [2007] JR 31. 3 This is similar to the version of the test preferred by Craig, Administrative Law (London 2008) at 628. 4 See R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532.


they apply is far from clear. The leading formulation, set out by the Privy Council in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing5 and adopted by the House of Lords in Daly,6 does not unambiguously incorporate stage (v) of the analysis (which will be referred to in this paper as ‘proportionality in the narrow sense’ or ‘narrow proportionality’). Whereas that stage is recognised very clearly in the Canadian jurisprudence, which requires ‘a proportionality between the effects of the measures which are responsible for limiting the … [relevant] right or freedom, and the objective [in question]’,7 and is also evident to some extent in the case law of the European Court of Justice,8 the De Freitas inquiry appears to end with stage (iv) (‘the necessity question’).9

Although some English cases have acknowledged that the proportionality test requires ‘the striking of a fair balance between the rights of the individual and the interests of the community’,10 this notion is deeply ambiguous. In some manifestations it appears to take the form of an independent requirement over and above that of necessity, thus suggesting that the English doctrine of proportionality includes a fifth stage, requiring analysis of proportionality in the narrow sense, that is clearly distinct from the question of necessity.11 However, the fair balance requirement has also been characterised as one which is synonymous with proportionality12 or which encompasses the whole of the proportionality analysis, such that the single question whether a given measure strikes a fair balance can be asked in place of the distinct questions set out above.13 Meanwhile, the European Court of Human Rights has used the term fair balance to describe a requirement which operates (in relation to certain ECHR provisions) in place of stages (iv) and (v), thus entirely fusing the necessity and narrow proportionality questions.14 Moreover, the nature of the necessity test is itself ambiguous. In some contexts, it is taken to mean that a measure may not lawfully be adopted unless it imposes upon the relevant right the minimum restrictions which are consistent with achieving the legitimate objective;15 yet in other circumstances it is characterised in less exacting 5 [1999] 1 AC 69 at 80. 6 Op cit n 4 at [27]. 7 R v Oakes [1986] 1 SCR 103 at [70]. 8 Eg Case C-‐331/88, R v Ministry of Agriculture, Fisheries and Food, ex parte Federation Europeene de la Sante Animale [1991] 1 CMLR 507 at 522-‐3, per Advocate-‐General Mischo. However, Tridimas, The General Principles of EU Law (Oxford 2006, 2nd ed) at 139, points out that in practice the ECJ does not distinguish between the necessity and narrow proportionality questions. 9 The De Freitas test does require the court to determine whether the objective is important enough to justify limiting a fundamental right, but does not explicitly require the court to decide whether the objective is sufficiently important to justify the particular limitation to which the claimant objects. This implies the sort of scrutiny involved in stage (ii) rather than that which is supplied at stage (v). 10 R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at [20]; Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167. 11 R (Baker) v First Secretary of State [2003] EWHC 2511 (Admin) at [45]; Razgar, op cit n 10 at [17]. 12 Kay v Lambeth London Borough Council [2006] UKHL 10 [2006] 2 AC 465. 13 R (Baiai and another) v Secretary of State for the Home Department (Nos 1 and 2) [2007] EWCA Civ 478 [2008] QB 143 at [37]. 14 James v UK (1986) 8 EHRR 123 at [51]. 15 A v Secretary of State for the Home Department [2004] UKHL 56 [2005] 2 AC 68 at [231]. Admittedly, this case concerned Article 15 ECHR which refers to the taking of measures which are ‘strictly required by the exigencies of the situation’—although it is clear that the ECtHR does not itself treat this requirement as equating to a test of least restrictive means: see, eg, Brannigan v United Kingdom (1994) 17 EHRR 539.


terms;16 and indeed the ECtHR’s standard formulation—that ‘the notion of necessity implies that an interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued’—suggests that the necessity question has no meaning independent of or distinct from stages (ii) and (v) of the scheme set out above.17 This lack of clarity about both the structure of the proportionality doctrine and the content of the tests of which it is comprised is problematic for several (related) reasons.

First, as noted above, one of the much-‐vaunted benefits of the proportionality test is its greater potential for analytical clarity than the Wednesbury test. That potential can be realised only if courts are clear about what elements the test comprises and about the role played by each. In this regard, distinguishing clearly between stages (iv) and (v) is essential. The fact that a right has been restricted to the minimum extent necessary to secure a particular objective does not mean that the disbenefit arising from that limitation is proportionate to—in the sense of being adequately justified by—the good that will flow from securing the relevant objective. For example, it may be impossible to realize a particular level of economic well-‐being without enacting sweeping limitations upon the right to respect for private life;18 such restrictions would therefore be necessary for the achievement of the objective in question. Yet it does not follow that the resulting loss to privacy would be proportionate (in the narrow sense) to the gain which it would purchase in terms of economic well-‐being: the gain might be thought too small to justify the loss; and even a large economic gain might be thought insufficient to justify a small privacy loss if the latter is regarded as a much more valuable interest than the former. The necessity and narrow proportionality questions thus constitute distinct criteria—and this should be reflected in the judicial reasoning process in the interests of analytical clarity and transparency.

Secondly, precisely because they are distinct criteria, the consequences of their enforcement are different. The necessity test implies that public authorities may impair highly-‐regarded interests such as human rights only insofar as that is essential to the realisation of some legitimate policy objective.19 Because necessity review is therefore concerned exclusively with the decision-‐maker’s choice of means, review at this stage will only ever directly constrain how a decision-‐maker is entitled to realise its legitimate objective, not whether it is able to do so. In contrast, if a measure is judged to be necessary but disproportionate in the narrow sense, this means that the objective in question cannot lawfully be achieved, because the least restrictive way of securing the objective constitutes an unacceptable restriction on rights judged by reference to the benefits it would secure. So, whereas the necessity test is ultimately concerned with whether a given policy objective may be pursued in a particular way, the narrow proportionality test determines whether it may, given its impact on rights, be pursued at all.20

16 R (Clays Lane Housing Co-‐Operative Ltd) v The Housing Corporation [2004] EWCA Civ 1658 [2005] 1 WLR 2229 at [ ]. 17 See, eg, Olsson v Sweden (1989) 11 EHRR 259 at [67]. 18 Article 8(2) of the European Convention on Human Rights indicates that the promotion of the economic well-‐being of the country is a legitimate objective capable of justifying restrictions of the right to respect for private life. 19 For the time being, it is assumed that the necessity test compels choice of the least restrictive means. This position is defended below. 20 Of course, a logically prior question which forms part of the proportionality test, viz whether the measure under review pursues a legitimate objective, also impacts on whether the policy may be pursued at all: rights-‐infringing measures cannot lawfully be adopted except in pursuit of


Thirdly, it follows from what has just been said that perceptions may differ as to the legitimacy of judicial enforcement of the necessity criterion on the one hand and the narrow proportionality criterion on the other. The necessity criterion regulates only means and requires the reviewing court to ask an essentially factual question: could the objective have been achieved in some other way which would have involved a more modest restriction of the right? In contrast, the narrow proportionality test may preclude the realisation of legitimate objectives and reduces to a value-‐judgment: is it worth paying a given price in order to secure a particular gain? Therefore, in terms both of issues raised (factual versus value-‐judgment) and consequences (choice of means versus outcomes) narrow proportionality review represents a bolder judicial endeavour than necessity review: it takes courts closer to the merits of decisions and has a greater impact on decision-‐makers’ discretion. Arguments about deference therefore play out differently in relation to necessity and narrow proportionality, such that a fully coherent concept of deference cannot emerge unless courts adopt a clearly structured approach to proportionality review, carefully distinguishing between the different tasks involved in assessing the necessity and narrow proportionality of impugned measures.

Deference

In order to substantiate this proposition, it is necessary to be clear about what is—and what ought to be—meant by ‘deference’. Although not everyone agrees that term is appropriate in the present context,21 it is generally used in a fairly loose way to describe a range of judicial techniques which have the effect of increasing decision-‐makers’ latitude. In contrast to the inherently deferential Wednesbury doctrine, which is phrased in such a way as to preclude judicial intervention unless the decision-‐maker has exceeded the widely-‐drawn bounds of reasonableness,22 the necessity and narrow proportionality tests are, at least prima facie, hard-‐edged. Requiring courts to ask whether a given measure is necessary and whether it imposes burdens which are disproportionate to its putative benefits implies that it is for the court to arrive at a primary judgment on these matters, rather than to form a merely secondary judgment about the reasonableness of the decision-‐maker’s view. If the court believes that less restrictive means could have been adopted, or that the burdens outweigh the benefits, then it seems that the court should strike down the impugned measure. Prima facie, such judicial methodology leaves little room for administrative or legislative discretion in situations where rights are at stake.

It was perceptions of the proportionality test such as these which, prior to the enactment of the Human Rights Act 1998, led certain English judges to view it with considerable suspicion. Lord Ackner, for instance, feared that its use would inevitably ‘involve a review of the merits of the decision’, risking ‘an abuse of power by the judiciary’.23 The doctrine of deference has been developed in order to assist courts to engage in proportionality review without threatening the collapse of the distinction between appeal and review, by creating the possibility of what Laws LJ has called ‘a principled distance between the court's adjudication … and the [decision-‐maker’s]

legitimate aims. The significance of the narrow proportionality test is that it may render unlawful the only possible way of achieving what has already been judged to be a legitimate aim. 21 See, eg, R (Prolife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185 at [75], per Lord Hoffmann. 22 Albeit that, in practice, courts may be more willing to intervene than the rubric of the test implies. 23 R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 at 758 and 763.


decision, based on his perception of the case's merits’.24 Deference therefore makes the tests which comprise the proportionality doctrine less hard-‐edged, blunting them such that the defendant’s decision may pass muster without precisely mirroring the court’s view. However, while this much is apparent from existing case law, there are three other important issues about which, it will be argued in subsequent parts of this paper, greater clarity is needed.

First, there are two ways in which deference can operate. One possibility is that the questions the court asks of the decision-‐maker are rendered less demanding. For example, at the narrow proportionality stage, the court might limit itself to ruling a measure unlawful only if the human rights loss significantly exceeds the public policy gains. Alternatively, the court might pose the questions in their most rigorous form—for example, asking (at the necessity stage) whether the measure is strictly necessary—but may make it easier for the decision-‐maker to satisfy the court that the answers are such as to render the measure lawful. This might be achieved by attaching respect to the decision-‐maker’s view—by, for example, ascribing considerable weight to its view about whether the desired objective could have been successfully achieved via other, less restrictive means.

Secondly, there two principal grounds on which deference may be exhibited. A court may defer to a decision-‐maker’s superior expertise in relation to certain matters. The most natural way for such deference to be exhibited is by the ascription of particular weight to the decision-‐maker’s view. For example, if the question for the court is whether a given measure is the least restrictive way of securing a particular policy objective, the court may not be institutionally well-‐placed to determine whether some other measure would be capable of securing that objective but in a manner less restrictive of the rights concerned. If the decision-‐maker is better placed to do so, the court may therefore attach weight to its view, making it more likely that the court will conclude that the measure adopted has been shown to be the least restrictive. In addition, a court may defer to a decision-‐maker in light of its superior democratic legitimacy. Whether such deference is appropriate is a controversial matter which is discussed below. For the time being, it is simply noted that such deference can, if desired, be achieved either by ascribing weight to the decision-‐maker’s view (eg that a particular trade-‐off between rights and public policy is appropriate) or by making the test less onerous (eg by accepting a trade-‐off between rights and public policy which the court accepts is reasonably if not strictly proportionate in the narrow sense).

Thirdly, there are two principal questions upon which deference may bite. Deference may be exhibited in relation to the necessity question: as noted in the previous paragraph, a court may, for example, ascribe particular weight to the decision-‐maker’s view that the desired objective cannot be achieved through the adoption of any other, less restrictive measures. Instead, or in addition, deference may be exhibited in relation to narrow proportionality: a court may think it appropriate to grant the decision-‐maker latitude vis-‐à-‐vis the question whether a given trade-‐off between rights and public policy is an acceptable one.

It is argued in the remainder of this paper that acknowledging the three sets of distinctions set out above is imperative if the courts are to develop a coherent doctrine of deference—and that this, in turn, requires a structured approach to the proportionality doctrine itself.

24 R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at 855, per Laws LJ.


The necessity question

The necessity question is, or at least appears to be, a question of fact: could the administrative or legislative objective in question have been secured by taking steps involving a more modest (or no) restriction upon the relevant right? Looked at in this way, it appears that the court should simply answer this question for itself: taking all the evidence into consideration, does it think that the government could have achieved its objective in a manner less restrictive of the right? However, two questions arise. Should decision-‐makers ever be allowed—in other words, granted discretion—to choose something other than the least restrictive measure? And, even if the court insists upon the least restrictive measure, should it ever extend latitude to the decision-‐maker by respecting its view about what that measure is?25 We begin by exploring the latter question on the assumption that the necessity requirement equates to one of least restrictive means; the former question is addressed in a later section.

In a typical case, the claimant argues that the government could have achieved its objective without infringing his right to the extent that it was actually infringed, because some other measure, less restrictive of the right in question, would have been an equally effective means by which the government could have secured its policy objective. In defence, the government is likely to contend that while other, less restrictive measures could have been adopted, they would not have realized its objective to the desired extent, such that nothing short of the measures actually adopted will suffice. The court, of course, has to choose between these competing interpretations of the situation, but may consider itself ill-‐equipped to do so. In order to decide whether the government’s policy was the least restrictive way of securing its objective, the court must, in logic, determine whether any other less restrictive measures would have been equally effective in achieving the objective in question. The court is therefore required to make predictions about the likely effectiveness of both the measure actually adopted and rival, less restrictive measures. Whether the court can meaningfully undertake this task will depend on the precise nature of the issue which confronts it.

For example, in the Belmarsh case,26 the House of Lords was required to determine whether a scheme involving extra-‐judicial detention of foreign nationals suspected of involvement in international terrorism was a necessary means by which to safeguard public safety in the face of the threat evidenced by the 9/11 attacks in the United States of America. Their Lordships had little difficulty in concluding that it was not. The fact that the scheme did not apply to British nationals implied that the government did not consider it necessary to detain them: as Baroness Hale put it, ‘Other ways must have been found to contain the threat which they present. And if it is not necessary to lock up the nationals it cannot be necessary to lock up the foreigners.’27 The court was able to reach this conclusion without having to attempt to make difficult predictions about whether the government’s public safety objective could have been met by adopting less draconian measures precisely because the government had—by not extending the scheme to nationals—effectively conceded the point. It was therefore possible for the court to deduce that the detention of foreign suspects was not necessary—something

25 These two questions reflect the two ways in which deference can be exhibited—viz relaxing the test (eg reasonable rather than strict necessity) and ascribing weight to the decision-‐maker’s view. 26 A v Secretary of State for the Home Department [2004] UKHL 56 [2005] 2 AC 68. 27 Ibid at [231]


which the court could do without the need for any special expertise in relation to security or other matters.28

The position would have been different if the detention regime had applied to nationals and non-‐nationals alike. It would then have been necessary to examine whether other, less restrictive measures—such as close monitoring by law enforcement agencies, electronic tagging, curfews, and prohibitions on freedom of movement and association falling short of detention—would have been sufficient to achieve the government’s objective of ‘protecting the British people against the risk of catastrophic Al-‐Qaeda terrorism’ (as the appellants in Belmarsh put it).29 Indeed, a similar question recently arose in the AP case,30 which concerned a challenge to a measure imposed under the Prevention of Terrorism Act 2005 placing substantial restrictions falling short of detention on a terrorist suspect’s freedoms of (inter alia) movement, expression and association. The view was taken—in relation to both whether it was necessary to make a control order and, if so, what restrictions it should impose—that ‘the court should accord a degree of deference to the Secretary of State, because she is better able than the court to decide what measures are necessary to protect the public from the activities of someone suspected of terrorism’.31 Although he did not spell out the reasons underpinning this conclusion, the judge was presumably of the view that the Secretary of State—and her departmental officials and advisers—were better-‐placed to make an assessment of the likely efficacy of the range of possible measures that could have been taken against the appellant, and to identify the least restrictive method by which to secure the statutory objective of ‘protecting members of the public from a risk of terrorism’.32

Expertise-‐based deference

Such deference on the grounds of the executive’s superior expertise in relation to certain matters is broadly, but not universally, recognised as legitimate.33 As Rivers points out, ‘In order to know how effective a policy might be’—and, in particular, whether the desired objective could have been achieved via a policy less restrictive of rights—‘the court is reliant on others … To the extent that there is expertise, judges are correct to rely on the executive as part of ‘‘getting it right”.’34 Viewed in this way, deference takes effect as the ascription of particular weight, or respect, to the decision-‐maker’s view. However, it is important to recognise that there are limitations upon the role which such deference can properly play. Six points should be noted in this regard.

28 Belmarsh may therefore be said to fall into the category of cases, identified by Buxton LJ in Southampton Port Health Authority v Seahawk Marine Foods Ltd [2002] EWCA Civ 54 at [34], in which ‘it will be possible for a court to reach a conclusion on an issue of proportionality on the basis of commonsense and its own understanding of the process of government and administration’. 29 Op cit n 26 at [30]. 30 Secretary of State for the Home Department v AP [2008] EWHC 2001 (Admin). This case was an appeal under s 10 of the Prevention of Terrorism Act 2005, rather than a claim for judicial review. However, it is relevant here since court are required by s 10(6) when hearing such claims to ‘apply the principles applicable on an application for judicial review’ and are specifically required by s 10(4) to consider whether the measures adopted were necessary. 31 Ibid at [66]; see also [74]. 32 Prevention of Terrorism Act 2005, s 2(1)(b). 33 Cf n 45 and text thereto. 34 Rivers, ‘Proportionality and Variable Intensity Review’ [2006] CLJ 174 at 200.


First, and perhaps most obviously, deference on expertise grounds is appropriate only where the matter in question engages issues that call for expertise—a point which is illustrated by the distinction between the Belmarsh case, in which the court was able to deduce that detention of foreign nationals was not (or at least had not been shown to be) necessary, and AP, in which the likely effect of different forms of control involved, as Rivers puts it, a ‘factual prognosis’ which the Secretary of State was better-‐situated to make.35

Secondly, deference to executive judgment is only appropriate—indeed, is only possible—if such a judgment exists in the first place. It is now clear that proportionality is concerned with the outcome of the decision-‐making process, such that a decision is not per se disproportionate simply because a decision-‐maker failed explicitly to address the various questions which comprise the proportionality test.36 However, it is equally clear that if a decision-‐maker entirely fails to address the question whether a given measure is necessary—in the sense of whether the objective in question could have been achieved by other, less restrictive means—then it is impossible for the court to defer to its view on that point, even if, had a view existed, it might been entitled to respect as an expert view.37 The reverse proposition is also true. For example, in the Denbigh High School case, which involved a challenge on freedom of religion grounds to a school’s policy of prohibiting the wearing of certain but not all forms of Muslim dress, the school had—as Lord Bingham put it—‘taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way’.38 It would therefore, he said, be ‘irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this’.39 This suggests—quite rightly—that where a decision-‐maker with relevant expertise exercises it, considerable weight should be attached to its view. However, Lord Bingham is surely wrong to imply that, in such circumstances, the court should simply acquiesce in that opinion. A more subtle view was advanced by Lord Hoffmann, who said that ‘the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law’.40

Thirdly, however, this, too, is problematic. If the necessity question involves asking whether the measure adopted—in this case, banning the wearing of certain forms of Muslim dress—is the least restrictive way of achieving the desired objective of protecting other pupils’ rights and freedoms,41 in what sense does the decision-‐maker have an ‘area of judgment’?42 Surely the question admits of only one correct answer (unless there are several ways of achieving the objective, all of which are equally, and minimally, restrictive of the right). Here we see the confusion which is introduced when courts fail to adopt a sufficiently structured approach to proportionality and deference. 35 Ibid at 199. 36 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100. 37 See, eg, Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19, [2007] 1 WLR 1420 at [37], per Baroness Hale. 38 Op cit n 36 at [34]. 39 Ibid. 40 Ibid at [68]. 41 The argument was that allowing the wearing of certain strict forms of Muslim dress would be divisive; it might, as Lord Bingham put it at [18], lead to ‘undesirable differentiation between Muslim groups according to the strictness of their views’ with adverse consequences in terms of inclusion and social cohesion. 42 This part of Lord Hoffmann’s speech is also problematic because it is not entirely clear whether he is discussing necessity, narrow proportionality or both questions.


There might be—indeed it is argued below that there is—a case for relaxing the standard of review in certain circumstances so as to recognise the superior democratic legitimacy of the decision-‐maker. But if this different form of deference is to be exhibited, it is incumbent upon the court to say so—and to make it clear, as Lord Hoffmann failed to do, that it has nothing whatever to do with the expertise, as distinct from the democratic credentials, of the decision-‐maker.

Fourthly, discussion of deference on grounds of expertise usually focuses exclusively on the relative institutional competence of the court and the decision-‐maker. It is clearly arguable that—as in the AP case,43 discussed above—courts should attach particular weight to the views of decision-‐makers who are better-‐situated to determine how a given objective can most efficiently be achieved with respect to the cost in human rights terms. However, once we recognise that the basis on which deference is exhibited in relation to the necessity question is relative expertise—rather than, say, the superior democratic credentials of the decision-‐maker—it becomes apparent that public authority defendants cannot legitimately occupy a uniquely privileged position in this regard. If another party to the proceedings has great expertise, and argues that some other, less restrictive measures would have been equally effective in terms of securing the government’s objective, it is surely incumbent upon the court to ascribe weight to that view just as it would ascribe weight to the view of an expert public authority defendant. This is true whether the non-‐defendant expert is the claimant or an intervening party—and it is important to recognise that the chances of such expert parties being before the court are greater now than ever, given the propensity of English courts to confer standing upon expert groups on public interest grounds, and to allow intervention by third parties whose expertise means that they are likely to make a useful contribution to the proceedings.44 The crucial point is that to the extent that deference in relation to the necessity question is motivated by the decision-‐maker’s superior expertise rather than by its superior democratic legitimacy, the argument is equally applicable to expert defendants and interveners.

Fifthly, this leads on to the point that not everyone agrees that deference on grounds of relative expertise is an appropriate judicial response.45 Other responses are possible, and these may well include the court taking steps to equip itself better to evaluate arguments about the likely efficacy of measures of varying levels of restrictiveness, rather than simply adopting—or at least ascribing considerable weight to—the decision-‐maker’s expert view. Such steps might, of course, include courts facilitating intervention by third parties in order to render the court better-‐informed and therefore more able to assess the parties’ arguments about rival methods of securing a given legitimate objective.

Sixthly, and finally, the scope for rigorous review of a decision-‐maker’s judgment that it is necessary to take certain rights-‐infringing steps in order to secure a particular objective is likely to depend on the terms in which the objective is cast. Where an objective is formulated in precise terms—for example, where a decision-‐maker contends that it is necessary to ban rather than merely regulate a particular annual march which in the past has ended in serious violence in order to ensure the reasonable

43 Op cit n 30. 44 See Harlow, ‘Public Law and Popular Justice’ (2002) 65 MLR 1. 45 See, eg, Allison, ‘Fuller’s Analysis of Polycentric Disputes and the Limits of Adjudication’ [1994] CLJ 367 at 382-‐3; Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law needs the concept of “Due Deference”’ in Bamforth and Leyland (eds), Public Law in a Multi-‐Layered Constitution (Oxford, Hart: 2003) at 350.


safety of the public—the possibility of rigorous review arises. The court would be entitled to ask for historical evidence tending to show the inadequacy of regulation (what measures short of prohibition have been taken in the past, and why did they fail?) and for contemporary evidence of the same (is there evidence that trouble-‐makers intend to ferment violence on such a scale this year that prohibition is the only viable option?) However, the position is likely to be different if the objective is very vague. For example, the AP case, considered above,46 concerned a power the statutorily-‐prescribed objective of whose exercise was ‘protecting members of the public from a risk of terrorism’.47 The very wide definition of terrorism48 combined with the absence of any requirement that the risk must be of a given level of seriousness means that the objective is largely open-‐ended: it will be relatively easy for the decision-‐maker to establish that more severe restrictions are necessary in the sense that they are likely to involve a small reduction in the risk posed by the individual concerned. Where the objective is presented merely in terms of reducing a risk, rather than, say, bringing about or preventing a particular state of affairs, any measure will be necessary if it goes further in reducing the risk—even if it is so draconian that it would have overshot if the objective had been stated in more precise terms.49

It is important, however, to recognise that the absence of intense review of necessity where the objective is vague does not imply deference. The court is not ascribing special weight to the decision-‐maker’s view of what needs to be done if the desired outcome is to be achieved: rather, the ease with which the necessity requirement can be satisfied in such circumstances is simply a function of the breadth of the terms in which the objective is cast. This begs the question whether decision-‐makers should be permitted to define objectives so broadly as to render the necessity stage of the proportionality test largely nugatory.50 For example, if a decision-‐maker were to adopt as its objective ‘the promotion of the public good’, this would allow it to establish the necessity of an extremely broad range of measures, thereby circumventing the necessity stage of the proportionality test. Clearly, courts should not allow decision-‐makers to conceal a real, more specific objective behind the smokescreen of a general objective designed to preclude meaningful scrutiny of a measure’s necessity. In applying the doctrine of proper purposes, courts are perfectly willing to determine whether a stated legitimate objective is the true (and dominant) one,51 and there is no reason why the same approach should not be adopted here. If, on such an analysis, the objective is genuinely very general, then although, as noted above, this will render necessity review largely meaningless, it is important to recognise that this is not determinative of the legality of the measure in question. First, the objective—however general—must be a legitimate 46 Op cit n 30. 47 Op cit n 32. 48 Terrorism Act 2000, s 1. 49 Of course, even if the measure is, on such an analysis, necessary, it does not automatically follow that it is lawful: it may well be disproportionate in the narrow sense. 50 A distinct but related question is whether the decision-‐maker should be permitted to cast its objective in a way that is determinative of the necessity question. For example, Rivers, op cit n 34 at 188, notes the possibility (with reference to the Belmarsh case, op cit n 15) of the executive adopting as its objective ‘protecting the British people from the risk of catastrophic Al-‐Qaeda terrorism by giving the Home Secretary the power to detain foreign terrorist suspects without trial’. The only way, of course, of realising such an objective is to give the Home Secretary such powers: judicial scrutiny of the necessity of such a step can play no meaningful role. The better view, it is submitted, is that courts must prevent decision-‐makers from evading review of necessity by refusing to allow objectives to be defined in terms which include the methodology by which their fulfilment is to be secured. 51 R v Governor of Brixton Prison, ex parte Soblen [1963] 2 QB 243 at 302, per Lord Denning MR.


one. And, secondly, even if a very general objective is deemed lawful and the measure necessary, the decision-‐maker will still have to satisfy the court that it is proportionate in the narrow sense: at this stage, the generality of the objective is irrelevant, since the question is simply whether the specific gains which the measure entails are sufficient to justify whatever losses (in terms of prejudice to human rights or other highly-‐regarded interests) it occasions.

Legitimacy-‐based deference

The sort of deference thus far considered is motivated by entirely practical considerations. The question for the court is whether the measure adopted by the decision-‐maker represents the least restrictive way of achieving its objective. If the court can make that assessment unaided, then it will do so; if it cannot, then it will attach weight to the decision-‐maker’s (or another party’s) opinion in the course of arriving at a view about whether the measure is necessary. It was noted above that deference can be effected either by diluting the question the court asks or by the court attaching weight to others’ views when it is trying to work out the answer to whatever the question is. It is important to note that the sort of expertise-‐based, practically-‐motivated deference considered thus far can only properly take effect in the latter way. Our analysis so far indicates no normative reason for diluting the requirement that the objective be pursued in the manner least restrictive of the right in question: the court’s relative institutional incompetence merely ordains that it may be appropriate for the court, in attempting to determine whether that requirement has been met, to ascribe weight to others’ expert views.

In contrast, deference on grounds of democratic legitimacy is underpinned by normative considerations: such deference is exhibited because the court takes the view that, in relation to certain questions, the decision-‐maker should enjoy a degree of latitude on account of its superior democratic credentials. So whereas expertise-‐based deference is a necessary evil, or is at least adopted for negative reasons based on the limitations of the court, legitimacy-‐based deference is exhibited (say its proponents) because it is normatively right that the decision-‐maker should, in certain circumstances, enjoy a degree of discretion.

Two questions arise. First, is legitimacy-‐based deference ever appropriate? And, secondly, if it is, at what stage or stages within the proportionality test does it have a role to play and by what doctrinal means should it take effect? The focus of the remainder of this paper, in line with its central objective of clarifying the doctrinal structure within which proportionality review should be undertaken and deference exhibited, is on the second of those questions—although, in the course of addressing it, the first question, which has been explored extensively elsewhere,52 must at least be sketched.

Prima facie, expertise-‐ and legitimacy-‐based deference are relevant to distinct aspects of the proportionality test. The former, as we have already seen, clearly has a role to play in relation to the necessity question. In contrast, the latter is more obviously relevant at the narrow proportionality stage. Whereas there is an objectively correct answer to the necessity question (even though it might be beyond the court’s—and perhaps anybody’s—expertise to identify it), the same is not obviously true of the question whether it is worth sacrificing a given amount of rights in order to secure a particular 52 See, inter alios, Hunt, op cit n 45; Jowell, ‘Judicial Deference: servility, civility or institutional capacity?’ [2003] PL 592.


public policy gain. This necessarily turns on the value which is ascribed to the two sets of variables which fall to be weighed against one another, and it is at least arguable that democratically-‐accountable decision-‐makers should be accorded not carte blanche but some latitude in deciding upon the relative importance of a given loss of rights and a given public policy gain.

Legitimacy-‐based deference at the necessity stage?

This analysis implies a straightforward schema as far as deference is concerned: expertise-‐based deference is relevant to the necessity question, while legitimacy-‐based deference is relevant at the narrow proportionality stage.53 However, the position is actually more complex. As Maurice Kay J pointed out in Clays Lane, if a test of strict necessity inevitably compels adoption of the least restrictive measure, this may require the taking of decisions which are ‘distinctly second best or worse’: ‘A decision which was fraught with adverse consequences would have to prevail because it was, perhaps quite marginally, the least intrusive.’54 This dictum recognises that while the least restrictive measure will be the most efficient way of trading off the right against the legitimate objective, it may represent a suboptimal solution if broader public policy considerations are taken into account. The least restrictive measure may entail negative consequences in relation to interests—financial, administrative, environmental, and so on—which do not constitute legitimate objectives capable of forming the primary justification for limitation of the right, but which are nevertheless important. Should the decision-‐maker be allowed to trade the right off against not just the legitimate objective but against these wider considerations too by, for instance, preferring a marginally more restrictive measure which avoids inflicting the serious damage to broader interests that the least restrictive measure would have caused?

The courts’ answer to this question is in the affirmative, but the doctrinal means by which decision-‐makers are allowed to behave in this way are far from clear. A common judicial technique in such circumstances is dilution of the necessity requirement by requiring the decision-‐maker to demonstrate that its chosen measure is reasonably, rather than strictly, necessary, the thinking (apparently) being that legitimacy-‐based deference is appropriate because the decision-‐maker ought to have some latitude to decide how to balance the right against a broader range of conflicting policy considerations. For example, in Handyside v UK, the ECtHR stated (with reference to Article 10(2) ECHR) that the word ‘necessary’ was ‘not synonymous with 'indispensable’, albeit that it could not be stretched so far as to mean merely ‘reasonable’ or ‘desirable’.55 The concept of reasonable, as distinct from strict, necessity appears to be helpful, in that it makes it possible for non-‐minimally but not unreasonably restrictive measures to be chosen so as to facilitate triangulation of the right, the legitimate objective and wider public policy considerations.

However, further reflection indicates that the notion of reasonable necessity is problematic. Although it is used to facilitate deference, the concept actually serves to obscure the subject-‐matter and nature of such deference. As argued above, necessity is about the efficiency of means: is this measure the most efficient way, with respect to human rights, of realising the decision-‐maker’s objective? It follows, as we have seen, that deference in relation to the necessity question is exhibited (to the extent that any deference is appropriate) on grounds of relative expertise. Yet the agenda behind 53 Cf Rivers, op cit n 34. 54 Op cit n 16 at [25]. 55 (1979-‐80) 1 EHRR 737 at [48].


substituting a requirement of strict necessity with one of reasonable necessity is to free the decision-‐maker to trade the right off against other objectives, allowing it, for example, to adopt means which are more restrictive of the right than are necessary for the achievement of the primary legitimate objective so as to enable the pursuit of wider public policy aim which adoption of the least restrictive means may unduly prejudice. This is ultimately about giving the decision-‐maker latitude not over the means by which it achieves its objective, but over the objectives which it is allowed to pursue in the first place. The difficulty is that the necessity question is not designed to assess the legitimacy of objectives—it is intended to assess the efficiency of means. To adopt a criterion of reasonable necessity is therefore to conflate the concept of necessity with the logically prior question whether the factors the decision-‐maker seeks to trade off against the right carry sufficient legitimacy as to be capable, in principle, of justifying restriction of the right, and the logically subsequent question whether those factors are actually capable, within the factual matrix of the case, of justifying the specific infringement. This blurring of the boundaries between the different stages of the test is antithetical to the structured approach to proportionality advocated in this paper; it seeks to inject deference into the review process by conferring latitude on the decision-‐maker, but does so in a way that lacks both doctrinal coherence and analytical transparency; and it confuses the kind of deference (on expertise-‐based grounds) which is relevant to the necessity inquiry with the kind of deference (on democratic legitimacy grounds) which is relevant to the choice of objectives which the decision-‐maker wishes to pursue. This demonstrates the symbiotic nature of the relationship between the structure of the proportionality test and the doctrine of deference: a coherent version of the latter is impossible if the former is not taken seriously.56

It follows that if a decision-‐maker wishes to attempt to justify a measure which is not the least restrictive on the ground that it represents a better trade-‐off between the right and broad public policy considerations, its argument must be scrutinised at the three relevant stages of the proportionality analysis.

First, although, by definition, wider policy considerations (eg saving money) are not primary legitimate objectives (eg promoting public safety) capable, in and of themselves, of justifying restriction of rights, it is clear that there must be some scrutiny of the legitimacy of such considerations. Such scrutiny can most naturally be undertaken alongside scrutiny of the legitimacy of the decision-‐maker’s primary objective.57 Whether or not the court regards a secondary set of policy considerations as legitimate will turn upon the sort of analysis which courts deploy in order to determine whether the decision-‐maker is taking into account relevant (and disregarding irrelevant) considerations. In this way, the court recognises that, on democratic legitimacy grounds, it is right that the decision-‐maker has a degree of latitude over which objectives it pursues, albeit that such latitude is bounded by the terms of the enabling legislation and is not therefore unlimited.

56 Similar difficulties are evident in the case law of the ECtHR. Eg in Brannigan v United Kingdom (1994) 17 EHRR 539 at 590, Judge Martens, in his concurring opinion, suggested that the requirement in Article 15 ECHR that the measure must be ‘strictly required by the exigencies of the situation’calls for a closer scrutiny than the words “necessary in a democratic society” which appear in the second paragraphs of Articles 8–11’. This statement is based on the assumption that there are degrees of necessity. For the reasons advanced above, it is submitted that this notion is misconceived, and reflects the ECtHR’s general failure (see n 17 above and text thereto) to distinguish adequately between the different stages of the proportionality test. 57 Ie stage (ii) within the scheme set out above at p 1.


Secondly, at the necessity stage,58 the court will have to ask whether the decision-‐maker’s chosen measure is the most efficient way of achieving its primary legitimate objective while also realising any secondary aims that withstood scrutiny at the prior legitimacy stage of the analysis. Since the necessity analysis is concerned solely with the efficiency of means, there is no role for deference on anything except expertise grounds; and, for reasons advanced above, the question must be whether the measures are strictly necessary, not reasonably necessary. Importantly, however, if wider considerations are allowed to form part of the objective against which the necessity of the measure fall to be tested, it may survive scrutiny at the necessity stage even if it would have failed to do so had the objective been cast more restrictively.

Thirdly, an obvious objection to the foregoing is that it significantly enhances decision-‐makers’ capacity to override human rights by allowing legitimate objectives to be supplemented by wider policy concerns, thereby subjugating rights to considerations of expediency to an unacceptable degree. However, even if the court concludes that taking certain wider policy interests into account is legitimate and that the decision-‐maker’s chosen measure is the most efficient way of realising the primary objective while pursuing those wider interests (notwithstanding that it restricts the right more than would be necessary if the primary objective alone was to be pursued), this merely establishes the potential lawfulness of the measure. Whether or not it is actually lawful will depend on the court’s decision at the final, narrow proportionality stage of the analysis.59 Here, the court must examine the loss to human rights and the gains which flow from achieving the legitimate objective and any other legitimate policy aims. In doing so, the court will obviously have to take account of the relative weight which each of these considerations should carry—and the distinction between primary legitimate objectives and wider policy considerations is very likely to be reflected in the ascription of far greater weight to the former than to the latter. It follows that while, for example, financial considerations might be judged to be relevant matters which the decision-‐maker can legitimately take into account, relatively little weight might be attached to them at the balancing stage. So while substantial financial savings may justify a very slightly more restrictive measure, a significantly more restrictive measure is unlikely to be justified by financial savings.

In conclusion on this point, it is submitted that courts are right to recognise that there may be circumstances in which the decision-‐maker should have some latitude to trade qualified rights off against wider policy concerns (not just primary legitimate objectives). However, for the reasons advanced above, it is only possible to develop a coherent doctrinal structure within which courts may test the legality of such decisions if proper reliance is placed on each of the relevant parts of the proportionality test, rather than relying on the notion of deference in order to transform the necessity question into one which is ultimately meaningless.

Legitimacy-‐based deference at the narrow proportionality stage

Finally, it is necessary to address the question of the role of legitimacy-‐based deference at the narrow proportionality stage of the court’s inquiry. Whether such deference is ever appropriate has been discussed at length elsewhere;60 the focus here is on more technical questions relating to the stage at and the way in which such deference might take effect. 58 Ie stage (iv). 59 Ie stage (v). 60 Op cit n 52.


At the beginning of this paper, it was suggested that the proportionality test can best be thought of in terms of five questions. The first, third and fourth questions—which respectively ask whether the measure infringes a highly-‐regarded interest, is capable of securing a given objective and is necessary—are questions of fact. We have seen that deference in relation to factual questions—most pertinently the necessity question—may be appropriate on grounds of expertise. This is motivated by purely practical concerns. There is no normative reason why the court should not, when equipped to do so, decide for itself whether the decision-‐maker’s preferred measure is the least restrictive; deference to others’ views is only exhibited on this point where the court is unable, because of its lack of expertise, to reach a judgment unaided.

In contrast, the other two questions—whether the measure pursues a legitimate aim and strikes an acceptable balance between human rights and competing public policy interests—call for value-‐judgments. Whereas, for instance, whether the decision-‐maker’s chosen measure is (in human rights terms) the most efficient way of realising its aim is a factual question with a right answer, there is no objectively correct answer to the question whether the gains that result from securing that aim are sufficient to justify the corresponding human rights loss. The latter question is normative, not factual, in nature, and one’s answer to it will necessarily depend upon a whole series of underlying assumptions about the relative importance of the right and of competing public policy interests. The question arises whether the court’s view of such matters should necessarily prevail, or whether some form of legitimacy-‐based deference—recognising that other constitutional branches’ views may be deserving of respect in light, for example, of their democratic credentials—might be appropriate.

Some commentators have argued that, in the UK, the enactment of the Human Rights Act 1998 means that no such deference should be exhibited. Jowell has contended that reviewing courts should not ‘prefer the authority of Parliament or other bodies on the ground alone that they represent the popular will, or are directly or indirectly accountable to the electorate’,61 while Lord Bingham, pointing out that the Act ‘gives the courts a very specific, wholly democratic, mandate’ to review on proportionality grounds, was at least sceptical about the appropriateness of legitimacy-‐based deference.62 However, many cases do reveal evidence of judges’ willingness to defer on such grounds.63 Such deference, it is submitted, is, in certain circumstances, entirely appropriate. Reasonable minds will differ as to what represents an acceptable trade-‐off between individual rights and wider public policy interests, and there is no a priori reason why judges should always have the final word. However, the proper role of deference in relation to the narrow proportionality analysis can only be understood by reference to the specific and distinct tasks which courts must perform in that sphere.

The first matter that must be confronted is the impact of the measure: what is the scale of the human rights loss which it entails? And what is the scale of the public policy gain resulting from the measure? These are questions of fact, and it therefore follows that expertise-‐based deference may be relevant here: the court may need to rely on others’ 61 Op cit n 52 at 597. 62 Op cit n 15 at [42]. 63 See, eg, R (Prolife Alliance) v British Broadcasting Corporation [2003] UKHL 23; [2004] 1 AC 185 at [76]; R (Farrakhan) v Secretary of State for the Home Department [2002] EWCA Civ 606; [2002] QB 1391 at [74]; R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15 [2008] 2 WLR 781 at [33]; Secretary of State for the Home Department v Rehman [2001] UKHL 47 [2003] 1 AC 153 at [62]; R (Alconbury Ltd) v Secretary of State for the Environment [2001] UKHL 23 [2003] 2 AC 295 at [60], [159]; Kay v Lambeth LBC [2006] UKHL 10 [2006] 2 AC 465 at [53].


expertise in order to arrive at a view as to what the impact of the measure will be. The scale of such deference will depend upon the extent to which the court, relative to the decision-‐maker or other parties, is under institutional inhibitions which affect its capacity to determine the measure’s impacts on individual rights and public interests.

Secondly, value must be ascribed to the gains and losses. Working out that the measure produces particular public policy gains on the one hand and human rights losses on the other is one thing; but if a decision is to be made about whether the former outweigh the latter, some sort of value must be ascribed to them first, in order that they may be compared. Thirdly, a decision must be taken about whether the gains outweigh the losses. This is, prima facie, a simple matter which turns on whether the value assigned to the gains at the previous stage of the analysis is greater than that assigned to the losses. However, the relationship between the second and third stages requires further consideration. The schema suggested above implies that it is, in effect, possible at the second stage to assign specific (eg numerical) values to the gains and the losses within a single scale, so that the third stage reduces to asking which value is the greater. However, it is obvious that assigning value to the gains and losses is a far from straightforward matter. The two sets of factors in play—human rights on the one hand, the public interest on the other—are not readily commensurable.64 Rendering them commensurable in order that they may be compared at the third stage of the narrow proportionality analysis necessarily entails a value-‐judgment: it requires a view to be taken about the relative importance of the right (or, more specifically, about the importance of the particular exercise65 of the right in question) and the public interest which its limitation secures. There are two (alternative) ways in which legitimacy-‐based deference might blunt judicial review in this regard.

On the one hand, the court may insist on deciding the respective values to be ascribed to the human rights loss and the public policy gain, but may then avoid full substitution of judgment where appropriate by applying a more relaxed standard of review: rather than insisting that the measure must not inflict losses which are greater than the gains it purchases, the court may require only that the losses do not exceed the gains to an unacceptable degree—‘reasonable proportionality’ rather than ‘strict proportionality’. The bounds of acceptability would reflect the court’s view of the appropriate extent of the discretion which the decision-‐maker should enjoy in the circumstances.

On the other hand, the court may concede latitude to the decision-‐maker in relation to the ascription of value to the gain and loss. This would not (in contrast to expertise-‐based deference) amount to the court attaching weight to the decision-‐maker’s view in the course of coming to its own view about the matter at hand; since the whole point of legitimacy-‐based deference is that the court accepts that its view should not necessarily prevail, the process is better conceptualised in terms of the court permitting the decision-‐maker to ascribe any value to the gains and losses within a judicially-‐controlled range. This reflects the fact that whereas expertise-‐based deference is about the court relying on others’ views in order that it may arrive at the right answer, legitimacy-‐based deference is about carving out a sphere of administrative or legislative discretion because there is no right answer (or at least no demonstrably right answer).

Although it perhaps makes little practical difference, it is submitted that the latter approach is, for the following reason, to be preferred. There is per se no normative reason why courts should allow decisions to stand which inflict human rights losses that

64 Cf Rivers, op cit n 34. 65 See the example given below at text to n 68.


are not outweighed by public policy gains. In truth, the argument against judicial enforcement of a strict rule prohibiting measures where the losses outweigh the gains is based on the fact that reasonable minds might differ about the value that should be ascribed to those gains and losses. Arguments based on democratic legitimacy and separation of powers theory may make it appropriate in some circumstances to permit the decision-‐maker’s value-‐judgments to stand even if they are not the same as the ones the court would have formed had it been charged with making the decision. Recognising that it is on the ascription of value to human rights losses and public policy gains that legitimacy-‐based deference bites is therefore helpful because it pinpoints not just the precise issue upon which decision-‐makers are allowed a degree of latitude but also the underlying rationale.

This is not, however, to suggest that review on narrow proportionality grounds should be uniformly deferential. The court must decide upon how much latitude the decision-‐maker should enjoy reference to factors which are specific to the case. Most obviously, if concerns pertaining to democratic legitimacy form the rationale for attaching respect to certain decision-‐makers’ views about the relative importance of rights and public interests, greater respect will be due to the views of decision-‐makers with particularly strong democratic credentials. This is why, for instance, courts are often willing to accord a degree of deference to judgments made by Parliament (when determining the compatibility of primary legislation with Convention rights)66 and by other decision-‐makers, such as local authorities and government ministers, who are clearly democratically accountable for their actions.67

The fact remains, however, that the decision-‐maker’s discretion is bounded by whatever parameters the court judges to be appropriate. It is well-‐recognised that certain rights carry greater weight than others. Indeed, one mode of exercise of a given right may be regarded as much more important than another mode of exercise of the same right. For example, it is widely acknowledged that the communication of political opinions constitutes a particularly valuable exercise of the right of freedom expression,68 whereas the dissemination of some other sorts of information, such as pornography, may be regarded as a less valuable exercise of the right.69 While a decision-‐maker with sufficient democratic credentials might be recognised by a reviewing court as enjoying a degree of latitude in relation to the precise value to be ascribed to each of those exercises of the right, it is no part of the present argument that decision-‐makers should enjoy so much latitude as to be free to treat the two forms of free speech as equivalent, thereby undermining freedom of political speech by rendering its limitation much more easily justifiable. By the same token, the present argument should not be taken to imply that decision-‐makers enjoy sufficient discretion as to treat public interest arguments based on administrative convenience or financial considerations as having the same value—and so the same justificatory capacity—as the public interest in national security or the prevention of crime. The discretion enjoyed by decision-‐makers vis-‐à-‐vis the ascription of value to human rights on the one hand and public policy interests on the other is a

66 See, eg, R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15 [2008] 2 WLR 781 at [33]. 67 See, eg, Farrakhan, op cit n 63 at [74]. 68 See, eg, Castells v Spain (1992) 14 EHRR 445 at [42]; Prolife Alliance, op cit n 21 at [37] (CA), per Laws LJ at [97] (HL), per Lord Scott (dissenting). 69 See, eg, Miss Behavin’, op cit n 37 at [38], per Baroness Hale.


legal construct, and it is therefore for the court to decide on the degree of latitude which the decision-‐maker may properly enjoy in any given case.70

Conclusions

The views advanced in this paper may be overly technical for some tastes. Yet it is only by recourse to the inherently, but too frequently overlooked,71 structured nature of the proportionality test that a coherent jurisprudence of substantive review and deference can be developed. This follows because, in truth, the proportionality doctrine is a portmanteau term which is used as convenient shorthand for a series of very different forms of judicial scrutiny of legislative and administrative action. It involves courts in the making of factual assessments about what the decision-‐maker is genuinely trying to do and whether it is trying to do it in the most efficient way; yet other aspects of the doctrine require courts to engage with and carry out oversight of difficult value-‐judgments about whether particular objectives are legitimate and, if so, whether on the facts they carry sufficient weight to justify a given limitation upon a human right or some other highly-‐regarded interest. Any view of proportionality which overlooks the radically different types of judicial endeavour which collectively comprise this form of review is doomed to failure—at least if success is defined in terms of the emergence of a transparent jurisprudence which lays bare the courts’ reasoning, provides reliable guidance to individuals and public authorities about the legitimate extent of governmental power, and furnishes a basis upon which to build a coherent doctrine of deference.

Indeed, the bifurcated nature of the proportionality doctrine—in the sense that it is concerned both with judicial scrutiny of factual issues and value-‐judgments—implies that to speak of a single doctrine of deference is meaningless and ultimately unhelpful.72 As we have seen, in relation to factual questions, such as whether a given measure is the least restrictive way of securing the legitimate objective, there is no normative reason for the court to concede discretion to the decision-‐maker; the purpose of deference in these circumstances is therefore not to open up such discretion, but simply to reflect (where appropriate) the superior expertise of the decision-‐maker. This is an entirely different endeavour, in terms of both execution and rationale, from deference in relation to value-‐judgments such as whether the means justify the end. Here, the raison d’être of deference is to afford latitude to the decision-‐maker so as to confer upon it a measure of freedom to choose the trade-‐off between rights and policy objectives which it regards as most desirable, there being no single correct such trade-‐off. These distinct senses of deference mirror the distinct judicial tasks of which the proportionality doctrine is comprised—and it follows that a coherent jurisprudence in this sphere is possible only if the courts adopt a suitably structured approach to both the proportionality test and the notions of deference which inform is application.

70 This reflects the view expressed by Lord Hoffmann in Prolife Alliance, op cit n 63 at [76]. Although his Lordship indicated his dislike of the word ‘deference’ in this context because of its ‘overtones of servility’ (ibid at [75]), his essential point was that it is for the court to decide, according to the circumstances, how wide or narrow the decision-‐maker’s discretion should be. He indicated, for instance, that discretion should be broader in relation to decisions about policy matters and resource-‐allocation. 71 At least by English courts. 72 Cf Rivers, op cit n 34 at 177, on the distinction between ‘deference’ and ‘restraint’.

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