Proportionality and Deference under the UK Human Rights Act An Institutionally Sensitive Approach

The courts use the proportionality test to assess the Convention-compatibility of the full range of government action, from administrative decisions to primary legislation. In applying the test, the courts are often conscious of the need to pay some deference to the expertise and competence of other branches of government. This rigorous analysis of the relationship between proportionality and deference under the Human Rights Act sets out a model of proportionality, drawn from existing case law, which integrates deference within the multi-stage proportionality test. The model is 'institutionally sensitive' and can be applied to proportionality-based judicial review of all forms of government activity. The model is shown in operation in three fields that span the full range of government activity: immigration (administrative action), criminal justice (legislation) and housing (multi-level decisions).

1. Proportionality, deference and institutional sensitivity; 2. An integrated account of proportionality and deference; 3. An institutionally sensitive approach; 4. Proportionality and deference in judicial review of administrative action: immigration; 5. Proportionality and deference in judicial review of legislation: criminal justice; 6. Proportionality and deference in judicial review of multi-level decisions: housing; 7. Conclusion.

Alan D. P. Brady is an Adjunct Lecturer in Law at Trinity College Dublin and a practising barrister. He currently lectures judicial review and human rights on the Trinity College LLM programme. During his doctoral studies at the London School of Economics he was an LSE Fellow. His research is in the fields of public law, human rights and criminal law.