460 T H E H U M A N R I G H T S A C T 1 9 9 8 (2002) 35 EHRR 1 in preference to the decision of the House of Lords in R (Pretty) v DPP [2002] 1 AC 800 with respect to whether Art 8 was engaged in decisions on the termination of life. Further in AF v Secretary of State for the Home Department [2009] UKHL 28 the House of Lords chose to follow the decision of the European Court in A v United Kingdom (2009) 49 EHRR 29 rather than its own judgment in MB v Secretary of State for the Home Department [2007] UKHL 46 with respect to the use of closed evidence in control order proceedings. See also Re P and others [2008] UKHL 38, where the House of Lords held that where the European Court has not laid down a definitive interpretation of the legal position the domestic courts were not bound to follow those decisions – the rights in the Human Rights Act were domestic and not international human rights and the domestic courts could give their own interpretation to them and to apply the division between the decision-making powers of the courts and Parliament in a way which appeared appropriate for the UK. 17.5 The doctrine of proportionality Section 2 allows the courts to employ the doctrine of proportionality , which had be en rejected by the domestic courts before the Act ( R v Home Secretary, ex parte Brind [1991] 1 AC 696). Interference with a Convention right, such as freedom of expression, must correspond to a pressing social need and be proportionate to the aim that the restriction was seeking to achieve. The effect of the doctrine on the court’s review powers, and the distinction between proportionality and the traditional Wednesbury unreasonableness principles, were explained by Lord Steyn in R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26: JUDGMENT ‘There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where Convention rights were at stake. Most cases would be decided in the same way whichever approach were adopted. But the intensity of review is somewhat greater under the proportionality approach . . . First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly . . . it may require attention to be directed to the relevant weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, ex parte Smith [1996] 1 All ER 257 is not necessarily appropriate to the protection of human rights . . . The intensity of the review . . . is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.’ After the Human Rights Act 1998 the courts do not have to show that the decision affecting the enjoyment of a Convention right was outrageous or irrational, but can conduct a balancing exercise to see whether the interference was necessary and proportionate. This new power has been used in a number of high- profile cases.
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Transcript
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460
THE
HU
MA
N R
IGH
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1998
(2002) 35 EHRR 1 in preference to the decision of the House of Lords in R (Pretty) v DPP [2002] 1 AC 800 with respect to whether Art 8 was engaged in decisions on the termination of life. Further in AF v Secretary of State for the Home Department [2009] UKHL 28 the House of Lords chose to follow the decision of the European Court in A v United Kingdom (2009) 49 EHRR 29 rather than its own judgment in MB v Secretary of State for the Home Department [2007] UKHL 46 with respect to the use of closed evidence in control order proceedings.
See also Re P and others [2008] UKHL 38, where the House of Lords held that where the European Court has not laid down a defi nitive interpretation of the legal position the domestic courts were not bound to follow those decisions the rights in the Human Rights Act were domestic and not international human rights and the domestic courts could give their own interpretation to them and to apply the division between the decision-making powers of the courts and Parliament in a way which appeared appropriate for the UK.
17.5 The doctrine of proportionalitySection 2 allows the courts to employ the doctrine of proportionality, which had been rejected by the domestic courts before the Act (R v Home Secretary, ex parte Brind [1991] 1 AC 696). Interference with a Convention right, such as freedom of expression, must correspond to a pressing social need and be proportionate to the aim that the restriction was seeking to achieve.
The effect of the doctrine on the courts review powers, and the distinction between proportionality and the traditional Wednesbury unreasonableness principles, were explained by Lord Steyn in R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26:
JUDGMENTThere is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where Convention rights were at stake. Most cases would be decided in the same way whichever approach were adopted. But the intensity of review is somewhat greater under the proportionality approach . . . First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly . . . it may require attention to be directed to the relevant weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, ex parte Smith [1996] 1 All ER 257 is not necessarily appropriate to the protection of human rights . . . The intensity of the review . . . is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
After the Human Rights Act 1998 the courts do not have to show that the decision affecting the enjoyment of a Convention right was outrageous or irrational, but can conduct a balancing exercise to see whether the interference was necessary and proportionate. This new power has been used in a number of high-profi le cases.
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