Proportionality And Deference

Front 1

What is the idea of proportionality and deference, and when does it come into play?

Back 1

-Once a claimant has identified a public authority to assert their convention rights against, the court must then determine whether or not the public authority has breached he convention rights in question.

Front 2

What was stated by Lord Hoffmann in Belfast City Council v Miss Behavin' Ltd?

Back 2

'either he decision ha infringed the applicant's rights or it has not.'

-No amount of good faith or intention on the part of the public authority to respect the convention will affect its liability.

Front 3

What is the test for determining whether a convention right has been breached?

Back 3

proportionality

Front 4

What is the 3-limbed test for establishing proportionality?

Back 4

1)Is the objective in question sufficiently important to justify limiting a fundamental right?
2) Are the measures designed to meet the objective rationally connected to it.
3)Are the means used no more than is necessary to accomplish the objective?

Front 5

Which case set out the test for proportionality, and which case was it applied in?

Back 5

1) De Freitas

2) R (Daly) v Sec of State for Home Dept.

Front 6

Does the margin of appreciation have application in domestic law?

Back 6

No

Front 7

What was stated in ex p Kebilene?

Back 7

In some circumstances it will be appropriate for the courts to recognise that there is an area of judgement within which the judiciary will defer, on democratic grounds, tot he considered opinion of [the democratic body or person] whose act or decision is said to be incompatible with the convention.

Front 8

What types of decisions are likely to attract low-intensity review (more deference by the court to the public authority)?

Back 8

Those concerning:
-resource allocation (e.g. policing decisions)
-National security
-Decisions requiring specialist expertise
-on the spot decisions (e.g. police officers in public order situations)

Front 9

In what case did Laws LJ set out the 4 principles of judicial deference?

Back 9

International Transport v Secretary of State for Home Dept.

Front 10

What is the first principle?

Back 10

-Greater deference is to be paid to an Act of Parliament than to a decision of the executive or subordinate measure.

Front 11

What is the second principle?

Back 11

-There is more scope for deference "where the convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified."

Front 12

What is the third principle?

Back 12

-Greater deference will be given to the democratic powers where the subject matter is peculiarly within their constitutional responsibility, and less where it lies more particularly with the constitutional responsibility of the court.

Front 13

What is the fourth principle?

Back 13

-Greater or lesser deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts.

Front 14

What is the significance of the Pro-life alliance case?

Back 14

-The BBC refused to transmit Pro-life's party election broadcast, as they considered that it contravened the statutory prohibition against programmes which offend against 'good taste and decency'

-The court of appeal allowed pro-life's claim that this breached their article 10 rights of freedom of expression.

-The BBC appealed to the House of Lords.

Front 15

What did the HL rule on the Pro-life case?

Back 15

-Parliament had decided that the taste and decency standards should apply to party election broadcasts.

-It was primarily for the BBC, as the expert body, to determine when those standards would be breached by a particular broadcast (affording a lot of deference to the BBC)

-The courts should defer to the judgement of the expert body, unless obviously wrong.

Therefore, the HL held that the BBC had not breached Pro-life's article 10 rights, as they were not acting disproportionately.
-A lot of deference was afforded to the public body.

Front 16

What did the HL conclude in A and others v Secretary of State for the Home Dept?

Back 16

The house refused to defer to the view of the government on the necessity for the 2001 act.

-They stated that 'whether there was a public emergency threatening the life of the nation was something which was primarily for the government to decide, subject to a fairly restrained view by the courts- on the basis of the government's expertise in assessing intelligence and levels of threat.
HOWEVER, the proportionality of the measures required to combat the threat was a matter for the courts.

OPPOSITE TO PRO-LIFE JUDGEMENT.

Front 17

What is Trevor Allan's view on the doctrine of judicial deference?

Back 17

- The doctrine of deference is a 'pernicious' doctrine, which 'permits the abdication of judicial responsibility in reliance on the good faith or good sense or special expertise of public officials, whose judgements may well be wrong.'

-It gives rise to 'an abandonment of judicial impartiality between citizen and state.'

-The doctrine of deference repudiates the rule of law and the court's duty to uphold it.

NOT A FAN OF DEFERENCE TO PUBLIC AUTHORITIES.

Front 18

What is Aileen Kavanagh's view on judicial deference?

Back 18

"Sometimes, judges should recognise that they are not well-suited or well-placed to pass judgment on, or oppose, decisions of the elected branches of government."

-Judicial deference is partial rather than absolute.

-The courts retain their duty to scrutinise executive and legislative decisions, but in carrying out this roe, they may be required to give some weight to the primary decision put forward by the elected branches."

-The question of deference must be judged on a case-by-case basis, taking into account all the contextual factors relevant to the enquiry.

THERE IS A DOCTRINE OF JUDICIAL DEFERENCE.

Front 19

Which section of the HRA sets out the procedure for bringing a claim against a public authority?

Back 19

Section 7

Front 20

What is the time limit for bringing a claim?

Back 20

1 year from the date the act complained of took place- longer time limit than Strasbourg.

Front 21

What are the 2 ways in which convention rights can be used?

Back 21

1) As a 'sword' by mounting an action against a public authority.

2) As a 'shield'- using convention rights as a defence to an action brought by he public authority.

Front 22

What are the restrictions on whether a claimant has standing?

Back 22

They must qualify as a 'victim' under section 7(3)
-Stricter requirements than judicial review- they must be 'personally and directly affected.'

Front 23

Under which section are damages provided for?

Back 23

Section 8 HRA.

Front 24

What damages are usually awarded for public authorities' breach of convention rights?

Back 24

-Generally speaking, the courts have a broad discretion under section 8(1) to award damages and other remedies as they consider 'just and appropriate.'
However, under section 8(3), they can only award damages if 'necessary' to afford just satisfaction- more specific remedies are preferred such as injunctions or declarations.

Front 25

What is displayed in the case of Greenfield v Home Office?

Back 25

-Damages under section 8 HRA are governed by the principles applied by the European Court under Art 41 ECHR.

-In this case, a mere declaration that the secretary of state as in breach of article 6, would be enough to afford the appellant just satisfaction.

-The purpose of incorporating the convention into domestic law though the 1998 act was not to give victims better remedies, but to give them the same remedies without the delay and expense of resorting to Strasbourg.