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CASE EXAMPLER (A and others) v Lord Saville of Newdigate and Another [2001] EWCA Civ 408The chairman of the Bloody Sunday inquiry had refused requests from a number of soldiers to give their evidence at a venue other than Londonderry, believing that this would increase public confi dence in the inquiry and concluding that there was no real and immediate risk to the soldiers lives.

Held the decision-maker had to consider whether interference with fundamental human rights was a serious or real possibility and it was for him to fi nd compelling justifi cation for any interference. The tribunal should have asked whether it had exposed any of the soldiers to the real possibility of a risk to life. In this case the tribunal had used public confi dence as the determinative factor, and accordingly its decision was wrong.

See also A and others v Secretary of State for the Home Department [2004] UKHL 56. In that case the House of Lords had to decide whether the detention of foreign nationals suspected of terrorism under s 21 of the Anti-Terrorism, Crime and Security Act 2001 was a disproportionate response to the threat of terrorism and strictly required by the exigencies of the situation so as to allow the governments derogation under Art 15 of the Convention.

The House of Lords held that while any decision of a representative democratic body commanded respect, the degree of respect would be conditioned by the nature of the decision made. The traditional Wednesbury approach was no longer appropriate and the domestic courts themselves had to form a judgment whether a Convention right was breached. Even in terrorist situations the Convention organs were not willing to relax their supervisory role. Given the importance of Art 5, judicial control of the executives interference with individual liberty was essential; although the judiciary must keep to their proper limits, the courts possessed an express role under the Act to interpret legislation compatibly with Convention rights. On the facts, the House of Lords held that the detention provisions contravened Arts 5 and 14 of the Convention (see section 17.11.1). This decision was upheld by the European Court of Human Rights in A v United Kingdom (2009) 49 EHRR 29.

The doctrine of proportionality increases the review powers of the courts (see Huang v Secretary of State for the Home Department [2007] UKHL 1) and raises concerns about whether it is proper for the courts to interfere with the decisions of government, or Parliament. In response the courts often show deference towards the executive and, in particular, to Parliament and in Edore v Secretary of State for the Home Department [2003] EWCA Civ 716, the Court of Appeal held that given the margin of discretion available to decision-makers, there was often room for two possible proportionate outcomes in a particular situation. Within that margin, a decision-maker may, in some circumstances, fairly reach one of two opposite conclusions. However, both decisions would strike a fair balance between the competing claims and be proportionate.

The domestic courts will declare measures as disproportionate if it is arbitrary and infl exible. Thus, in R (T) v Chief Constable of Greater Manchester [2013] EWCA Civ 25 it was held that statutory provisions were incompatible with Art 8 ECHR because they imposed a blanket statutory scheme requiring disclosure of cautions held on the police national computer. Such a regime was disproportionate and went beyond the legitimate aims of protecting employers and vulnerable individuals. It could not be justifi ed on the basis that it created a bright line rule which had the advantage of simplicity and ease of administration.