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However, in some cases the courts will show deference to the decision-maker and offer a wide margin of discretion to government and Parliament, either because the decision-maker has an area of expertise or because the issue is policy-based and sensitive.

CASE EXAMPLER (Countryside Alliance) v Attorney General [2007] UKHL 52In this case the Hunting Act 2004, which made the hunting of live animals unlawful, was challenged as contrary to the hunters and landowners Convention rights. Dismissing the claims, the House of Lords held that the courts should show deference to Parliament with respect to its reasons to ban fox-hunting because the matter had been subject to great parliamentary and public debate. It would thus be inappropriate for the claims to succeed legally when they had lost the moral and political arguments in Parliament. A subsequent application to the European Court of Human Rights was dismissed on similar grounds (Countryside Alliance v United Kingdom (2010) 50 EHRR SE6).

See also, R (British American Tobacco and others) v Secretary of State for Health [2004] EWHC 2493 (Admin), where the High Court upheld the proportionality of regulations banning the advertising of tobacco products and their compatibility with the applicants right to commercial speech; there were areas in which the courts had to be particularly wary of imposing its own value judgments upon a legislative scheme.

More recently, in R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961, the Court of Appeal refused to declare the blanket ban on assisted suicide as a disproportionate interference with private and family life, or to create a defence of necessity to a charge of murder or assisting suicide: such a step must be taken by Parliament and not the courts.

CASE EXAMPLER v Secretary of State for the Home Department, ex parte Farrakhan [2002] EWCA Civ 606The Home Secretary had excluded F from entering the country because the claimants presence would not be conducive to the public good and that he was likely to threaten public order and commit offences of racial hatred. The Court of Appeal held that the Secretary of State had struck a proportionate balance between the legitimate aim of the prevention of disorder and freedom of expression. The fact that the decision was personal to the Secretary, who was far better placed to reach an informed decision than the court, and that the Secretary was democratically accountable for his decision, made it appropriate to give him a particularly wide margin of discretion.

ACTIVITYSelf-test questions1. Why was the Human Rights Act 1998 passed?2. What were the defi ciencies of the traditional method of protecting human rights in the

UK and how does the Act address those issues?3. What is the importance of s 2 of the Human Rights Act 1998?4. What is the doctrine of proportionality and how important is it to the resolution of

human rights disputes?5. Do you think the decision in A and others v Secretary of State (2004) (above) displayed

too much judicial power?