PAPER NO.

32/2013
SEPTEMBER 2013

Proportionality and deference: the

Importance of a structured approach
Mark Elliott

Further information about the University of Cambridge Faculty of Law Legal Studies
Research Paper Series can be found at http://www.law.cam.ac.uk/ssrn/

Electronic copy available at: http://ssrn.com/abstract=2326987

Proportionality and deference: the

importance of a structured approach
Mark Elliott*

Introduction
In the closing decades of the last century, when one of the questions at the forefront of
English administrative lawyers minds was whether proportionality should be embraced
as a ground of judicial review, the two factors upon which debate principally centred
were the structured nature of the test and its likely impact upon the breadth of executive
discretion (and, correlatively, judicial power). Unsurprisingly, the former was generally
seen as a good thing, and as welcome relief from the palm-tree quality of the tautologous
Wednesbury doctrine.1 However, there was great concern in certain quarters about the
latter, the perceived difficulty being that adopting the proportionality test would
eviscerate the hallowed distinction between appeal and review, resulting in judicial
usurpation of administrative functions. Against that background, the purpose of this
paper is twofold. It argues that the structured nature of the proportionality test is one of
its principal virtues, but that English courts have some distance to go before fully
capitalising on this; and that this failure in turn is inhibiting the emergence of a coherent
doctrine of judicial deference to the administrative and legislative branches which is
intended to ensure that a distinction remains between the respective roles of courts and
primary decision-makers.

The distinction between necessity and narrow proportionality

There are many formulations of the proportionality test.2 The version that is advocated
in this paper, for reasons which will be defended in due course, is as follows:3
(i)

Does the measure impinge upon a highly-regarded interest (eg a human right)?

(ii)

Does the measure pursue a legitimate objective?

(iii)

Is the measure capable of securing that objective?

(iv)

Is the adoption of the measure necessary in order to secure that objective?

(v)

Are the losses inflicted by the measure (eg in terms of the restriction of human
rights) justified, or outweighed, by the gains which it purchases (eg in terms of
benefits which flow from securing the legitimate objective)?

While it is now well-established that English courts can and do apply the proportionality
test, at least in cases concerning human rights,4 the precise content of the test which

* Senior Lecturer in Law, University of Cambridge; Fellow, St Catharines College, Cambridge. I am

indebted to Julian Rivers for his invaluable comments on earlier drafts of this paper and for
discussion of the ideas upon which it is based.
1 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
2 See further Hickman, Proportionality: Comparative Law Lessons [2007] JR 31.
3 This is similar to the version of the test preferred by Craig, Administrative Law (London 2008)
at 628.
4 See R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532.

Elliott, Proportionality and deference: the importance of a structured approach

Electronic copy available at: http://ssrn.com/abstract=2326987

they apply is far from clear. The leading formulation, set out by the Privy Council in De
Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing5
and adopted by the House of Lords in Daly,6 does not unambiguously incorporate stage
(v) of the analysis (which will be referred to in this paper as proportionality in the
narrow sense or narrow proportionality). Whereas that stage is recognised very
clearly in the Canadian jurisprudence, which requires a proportionality between the
effects of the measures which are responsible for limiting the [relevant] right or
freedom, and the objective [in question],7 and is also evident to some extent in the case
law of the European Court of Justice,8 the De Freitas inquiry appears to end with stage
(iv) (the necessity question).9
Although some English cases have acknowledged that the proportionality test requires
the striking of a fair balance between the rights of the individual and the interests of the
community,10 this notion is deeply ambiguous. In some manifestations it appears to
take the form of an independent requirement over and above that of necessity, thus
suggesting that the English doctrine of proportionality includes a fifth stage, requiring
analysis of proportionality in the narrow sense, that is clearly distinct from the question
of necessity.11 However, the fair balance requirement has also been characterised as one
which is synonymous with proportionality12 or which encompasses the whole of the
proportionality analysis, such that the single question whether a given measure strikes a
fair balance can be asked in place of the distinct questions set out above.13 Meanwhile,
the European Court of Human Rights has used the term fair balance to describe a
requirement which operates (in relation to certain ECHR provisions) in place of stages
(iv) and (v), thus entirely fusing the necessity and narrow proportionality questions.14
Moreover, the nature of the necessity test is itself ambiguous. In some contexts, it is
taken to mean that a measure may not lawfully be adopted unless it imposes upon the
relevant right the minimum restrictions which are consistent with achieving the
legitimate objective;15 yet in other circumstances it is characterised in less exacting

5 [1999] 1 AC 69 at 80.
6 Op cit n 4 at [27].
7 R v Oakes [1986] 1 SCR 103 at [70].
8 Eg Case C-331/88, R v Ministry of Agriculture, Fisheries and Food, ex parte Federation Europeene

de la Sante Animale [1991] 1 CMLR 507 at 522-3, per Advocate-General Mischo. However,
Tridimas, The General Principles of EU Law (Oxford 2006, 2nd ed) at 139, points out that in
practice the ECJ does not distinguish between the necessity and narrow proportionality
questions.
9 The De Freitas test does require the court to determine whether the objective is important
enough to justify limiting a fundamental right, but does not explicitly require the court to decide
whether the objective is sufficiently important to justify the particular limitation to which the
claimant objects. This implies the sort of scrutiny involved in stage (ii) rather than that which is
supplied at stage (v).
10 R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at
[20]; Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167.
11 R (Baker) v First Secretary of State [2003] EWHC 2511 (Admin) at [45]; Razgar, op cit n 10 at
[17].
12 Kay v Lambeth London Borough Council [2006] UKHL 10 [2006] 2 AC 465.
13 R (Baiai and another) v Secretary of State for the Home Department (Nos 1 and 2) [2007] EWCA
Civ 478 [2008] QB 143 at [37].
14 James v UK (1986) 8 EHRR 123 at [51].
15 A v Secretary of State for the Home Department [2004] UKHL 56 [2005] 2 AC 68 at [231].
Admittedly, this case concerned Article 15 ECHR which refers to the taking of measures which
are strictly required by the exigencies of the situationalthough it is clear that the ECtHR does
not itself treat this requirement as equating to a test of least restrictive means: see, eg, Brannigan
v United Kingdom (1994) 17 EHRR 539.

Elliott, Proportionality and deference: the importance of a structured approach

terms;16 and indeed the ECtHRs standard formulationthat the notion of necessity
implies that an interference corresponds to a pressing social need and, in particular, that
it is proportionate to the legitimate aim pursuedsuggests that the necessity question
has no meaning independent of or distinct from stages (ii) and (v) of the scheme set out
above.17 This lack of clarity about both the structure of the proportionality doctrine and
the content of the tests of which it is comprised is problematic for several (related)
reasons.
First, as noted above, one of the much-vaunted benefits of the proportionality test is its
greater potential for analytical clarity than the Wednesbury test. That potential can be
realised only if courts are clear about what elements the test comprises and about the
role played by each. In this regard, distinguishing clearly between stages (iv) and (v) is
essential. The fact that a right has been restricted to the minimum extent necessary to
secure a particular objective does not mean that the disbenefit arising from that
limitation is proportionate toin the sense of being adequately justified bythe good
that will flow from securing the relevant objective. For example, it may be impossible to
realize a particular level of economic well-being without enacting sweeping limitations
upon the right to respect for private life;18 such restrictions would therefore be
necessary for the achievement of the objective in question. Yet it does not follow that the
resulting loss to privacy would be proportionate (in the narrow sense) to the gain which
it would purchase in terms of economic well-being: the gain might be thought too small
to justify the loss; and even a large economic gain might be thought insufficient to justify
a small privacy loss if the latter is regarded as a much more valuable interest than the
former. The necessity and narrow proportionality questions thus constitute distinct
criteriaand this should be reflected in the judicial reasoning process in the interests of
analytical clarity and transparency.
Secondly, precisely because they are distinct criteria, the consequences of their
enforcement are different. The necessity test implies that public authorities may impair
highly-regarded interests such as human rights only insofar as that is essential to the
realisation of some legitimate policy objective.19 Because necessity review is therefore
concerned exclusively with the decision-makers choice of means, review at this stage
will only ever directly constrain how a decision-maker is entitled to realise its legitimate
objective, not whether it is able to do so. In contrast, if a measure is judged to be
necessary but disproportionate in the narrow sense, this means that the objective in
question cannot lawfully be achieved, because the least restrictive way of securing the
objective constitutes an unacceptable restriction on rights judged by reference to the
benefits it would secure. So, whereas the necessity test is ultimately concerned with
whether a given policy objective may be pursued in a particular way, the narrow
proportionality test determines whether it may, given its impact on rights, be pursued at
all.20

16 R (Clays Lane Housing Co-Operative Ltd) v The Housing Corporation [2004] EWCA Civ 1658

[2005] 1 WLR 2229 at [ ].

17 See, eg, Olsson v Sweden (1989) 11 EHRR 259 at [67].
18 Article 8(2) of the European Convention on Human Rights indicates that the promotion of the
economic well-being of the country is a legitimate objective capable of justifying restrictions of
the right to respect for private life.
19 For the time being, it is assumed that the necessity test compels choice of the least restrictive
means. This position is defended below.
20 Of course, a logically prior question which forms part of the proportionality test, viz whether
the measure under review pursues a legitimate objective, also impacts on whether the policy
may be pursued at all: rights-infringing measures cannot lawfully be adopted except in pursuit of

Elliott, Proportionality and deference: the importance of a structured approach

Thirdly, it follows from what has just been said that perceptions may differ as to the
legitimacy of judicial enforcement of the necessity criterion on the one hand and the
narrow proportionality criterion on the other. The necessity criterion regulates only
means and requires the reviewing court to ask an essentially factual question: could the
objective have been achieved in some other way which would have involved a more
modest restriction of the right? In contrast, the narrow proportionality test may
preclude the realisation of legitimate objectives and reduces to a value-judgment: is it
worth paying a given price in order to secure a particular gain? Therefore, in terms both
of issues raised (factual versus value-judgment) and consequences (choice of means
versus outcomes) narrow proportionality review represents a bolder judicial endeavour
than necessity review: it takes courts closer to the merits of decisions and has a greater
impact on decision-makers discretion. Arguments about deference therefore play out
differently in relation to necessity and narrow proportionality, such that a fully coherent
concept of deference cannot emerge unless courts adopt a clearly structured approach
to proportionality review, carefully distinguishing between the different tasks involved
in assessing the necessity and narrow proportionality of impugned measures.

Deference
In order to substantiate this proposition, it is necessary to be clear about what isand
what ought to bemeant by deference. Although not everyone agrees that term is
appropriate in the present context,21 it is generally used in a fairly loose way to describe
a range of judicial techniques which have the effect of increasing decision-makers
latitude. In contrast to the inherently deferential Wednesbury doctrine, which is phrased
in such a way as to preclude judicial intervention unless the decision-maker has
exceeded the widely-drawn bounds of reasonableness,22 the necessity and narrow
proportionality tests are, at least prima facie, hard-edged. Requiring courts to ask
whether a given measure is necessary and whether it imposes burdens which are
disproportionate to its putative benefits implies that it is for the court to arrive at a
primary judgment on these matters, rather than to form a merely secondary judgment
about the reasonableness of the decision-makers view. If the court believes that less
restrictive means could have been adopted, or that the burdens outweigh the benefits,
then it seems that the court should strike down the impugned measure. Prima facie,
such judicial methodology leaves little room for administrative or legislative discretion
in situations where rights are at stake.
It was perceptions of the proportionality test such as these which, prior to the
enactment of the Human Rights Act 1998, led certain English judges to view it with
considerable suspicion. Lord Ackner, for instance, feared that its use would inevitably
involve a review of the merits of the decision, risking an abuse of power by the
judiciary.23 The doctrine of deference has been developed in order to assist courts to
engage in proportionality review without threatening the collapse of the distinction
between appeal and review, by creating the possibility of what Laws LJ has called a
principled distance between the court's adjudication and the [decision-makers]

legitimate aims. The significance of the narrow proportionality test is that it may render unlawful
the only possible way of achieving what has already been judged to be a legitimate aim.
21 See, eg, R (Prolife Alliance) v British Broadcasting Corporation [2003] UKHL 23 [2004] 1 AC 185
at [75], per Lord Hoffmann.
22 Albeit that, in practice, courts may be more willing to intervene than the rubric of the test
implies.
23 R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 at 758 and 763.

Elliott, Proportionality and deference: the importance of a structured approach

decision, based on his perception of the case's merits.24 Deference therefore makes the
tests which comprise the proportionality doctrine less hard-edged, blunting them such
that the defendants decision may pass muster without precisely mirroring the courts
view. However, while this much is apparent from existing case law, there are three other
important issues about which, it will be argued in subsequent parts of this paper,
greater clarity is needed.
First, there are two ways in which deference can operate. One possibility is that the
questions the court asks of the decision-maker are rendered less demanding. For
example, at the narrow proportionality stage, the court might limit itself to ruling a
measure unlawful only if the human rights loss significantly exceeds the public policy
gains. Alternatively, the court might pose the questions in their most rigorous formfor
example, asking (at the necessity stage) whether the measure is strictly necessarybut
may make it easier for the decision-maker to satisfy the court that the answers are such
as to render the measure lawful. This might be achieved by attaching respect to the
decision-makers viewby, for example, ascribing considerable weight to its view about
whether the desired objective could have been successfully achieved via other, less
restrictive means.
Secondly, there two principal grounds on which deference may be exhibited. A court may
defer to a decision-makers superior expertise in relation to certain matters. The most
natural way for such deference to be exhibited is by the ascription of particular weight
to the decision-makers view. For example, if the question for the court is whether a
given measure is the least restrictive way of securing a particular policy objective, the
court may not be institutionally well-placed to determine whether some other measure
would be capable of securing that objective but in a manner less restrictive of the rights
concerned. If the decision-maker is better placed to do so, the court may therefore
attach weight to its view, making it more likely that the court will conclude that the
measure adopted has been shown to be the least restrictive. In addition, a court may
defer to a decision-maker in light of its superior democratic legitimacy. Whether such
deference is appropriate is a controversial matter which is discussed below. For the
time being, it is simply noted that such deference can, if desired, be achieved either by
ascribing weight to the decision-makers view (eg that a particular trade-off between
rights and public policy is appropriate) or by making the test less onerous (eg by
accepting a trade-off between rights and public policy which the court accepts is
reasonably if not strictly proportionate in the narrow sense).
Thirdly, there are two principal questions upon which deference may bite. Deference may
be exhibited in relation to the necessity question: as noted in the previous paragraph, a
court may, for example, ascribe particular weight to the decision-makers view that the
desired objective cannot be achieved through the adoption of any other, less restrictive
measures. Instead, or in addition, deference may be exhibited in relation to narrow
proportionality: a court may think it appropriate to grant the decision-maker latitude
vis--vis the question whether a given trade-off between rights and public policy is an
acceptable one.
It is argued in the remainder of this paper that acknowledging the three sets of
distinctions set out above is imperative if the courts are to develop a coherent doctrine
of deferenceand that this, in turn, requires a structured approach to the
proportionality doctrine itself.

24 R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at 855, per Laws

LJ.

Elliott, Proportionality and deference: the importance of a structured approach

The necessity question

The necessity question is, or at least appears to be, a question of fact: could the
administrative or legislative objective in question have been secured by taking steps
involving a more modest (or no) restriction upon the relevant right? Looked at in this
way, it appears that the court should simply answer this question for itself: taking all the
evidence into consideration, does it think that the government could have achieved its
objective in a manner less restrictive of the right? However, two questions arise. Should
decision-makers ever be allowedin other words, granted discretionto choose
something other than the least restrictive measure? And, even if the court insists upon
the least restrictive measure, should it ever extend latitude to the decision-maker by
respecting its view about what that measure is?25 We begin by exploring the latter
question on the assumption that the necessity requirement equates to one of least
restrictive means; the former question is addressed in a later section.
In a typical case, the claimant argues that the government could have achieved its
objective without infringing his right to the extent that it was actually infringed, because
some other measure, less restrictive of the right in question, would have been an equally
effective means by which the government could have secured its policy objective. In
defence, the government is likely to contend that while other, less restrictive measures
could have been adopted, they would not have realized its objective to the desired
extent, such that nothing short of the measures actually adopted will suffice. The court,
of course, has to choose between these competing interpretations of the situation, but
may consider itself ill-equipped to do so. In order to decide whether the governments
policy was the least restrictive way of securing its objective, the court must, in logic,
determine whether any other less restrictive measures would have been equally
effective in achieving the objective in question. The court is therefore required to make
predictions about the likely effectiveness of both the measure actually adopted and rival,
less restrictive measures. Whether the court can meaningfully undertake this task will
depend on the precise nature of the issue which confronts it.
For example, in the Belmarsh case,26 the House of Lords was required to determine
whether a scheme involving extra-judicial detention of foreign nationals suspected of
involvement in international terrorism was a necessary means by which to safeguard
public safety in the face of the threat evidenced by the 9/11 attacks in the United States
of America. Their Lordships had little difficulty in concluding that it was not. The fact
that the scheme did not apply to British nationals implied that the government did not
consider it necessary to detain them: as Baroness Hale put it, Other ways must have
been found to contain the threat which they present. And if it is not necessary to lock up
the nationals it cannot be necessary to lock up the foreigners.27 The court was able to
reach this conclusion without having to attempt to make difficult predictions about
whether the governments public safety objective could have been met by adopting less
draconian measures precisely because the government hadby not extending the
scheme to nationalseffectively conceded the point. It was therefore possible for the
court to deduce that the detention of foreign suspects was not necessarysomething

25 These two questions reflect the two ways in which deference can be exhibitedviz relaxing

the test (eg reasonable rather than strict necessity) and ascribing weight to the decision-makers
view.
26 A v Secretary of State for the Home Department [2004] UKHL 56 [2005] 2 AC 68.
27 Ibid at [231]

Elliott, Proportionality and deference: the importance of a structured approach

which the court could do without the need for any special expertise in relation to
security or other matters.28
The position would have been different if the detention regime had applied to nationals
and non-nationals alike. It would then have been necessary to examine whether other,
less restrictive measuressuch as close monitoring by law enforcement agencies,
electronic tagging, curfews, and prohibitions on freedom of movement and association
falling short of detentionwould have been sufficient to achieve the governments
objective of protecting the British people against the risk of catastrophic Al-Qaeda
terrorism (as the appellants in Belmarsh put it).29 Indeed, a similar question recently
arose in the AP case,30 which concerned a challenge to a measure imposed under the
Prevention of Terrorism Act 2005 placing substantial restrictions falling short of
detention on a terrorist suspects freedoms of (inter alia) movement, expression and
association. The view was takenin relation to both whether it was necessary to make
a control order and, if so, what restrictions it should imposethat the court should
accord a degree of deference to the Secretary of State, because she is better able than the
court to decide what measures are necessary to protect the public from the activities of
someone suspected of terrorism.31 Although he did not spell out the reasons
underpinning this conclusion, the judge was presumably of the view that the Secretary
of Stateand her departmental officials and adviserswere better-placed to make an
assessment of the likely efficacy of the range of possible measures that could have been
taken against the appellant, and to identify the least restrictive method by which to
secure the statutory objective of protecting members of the public from a risk of
terrorism.32

Expertise-based deference
Such deference on the grounds of the executives superior expertise in relation to
certain matters is broadly, but not universally, recognised as legitimate.33 As Rivers
points out, In order to know how effective a policy might beand, in particular,
whether the desired objective could have been achieved via a policy less restrictive of
rightsthe court is reliant on others To the extent that there is expertise, judges are
correct to rely on the executive as part of getting it right.34 Viewed in this way,
deference takes effect as the ascription of particular weight, or respect, to the decision-
makers view. However, it is important to recognise that there are limitations upon the
role which such deference can properly play. Six points should be noted in this regard.

28 Belmarsh may therefore be said to fall into the category of cases, identified by Buxton LJ in

Southampton Port Health Authority v Seahawk Marine Foods Ltd [2002] EWCA Civ 54 at [34], in
which it will be possible for a court to reach a conclusion on an issue of proportionality on the
basis of commonsense and its own understanding of the process of government and
administration.
29 Op cit n 26 at [30].
30 Secretary of State for the Home Department v AP [2008] EWHC 2001 (Admin). This case was an
appeal under s 10 of the Prevention of Terrorism Act 2005, rather than a claim for judicial
review. However, it is relevant here since court are required by s 10(6) when hearing such claims
to apply the principles applicable on an application for judicial review and are specifically
required by s 10(4) to consider whether the measures adopted were necessary.
31 Ibid at [66]; see also [74].
32 Prevention of Terrorism Act 2005, s 2(1)(b).
33 Cf n 45 and text thereto.
34 Rivers, Proportionality and Variable Intensity Review [2006] CLJ 174 at 200.

Elliott, Proportionality and deference: the importance of a structured approach

First, and perhaps most obviously, deference on expertise grounds is appropriate only
where the matter in question engages issues that call for expertisea point which is
illustrated by the distinction between the Belmarsh case, in which the court was able to
deduce that detention of foreign nationals was not (or at least had not been shown to
be) necessary, and AP, in which the likely effect of different forms of control involved, as
Rivers puts it, a factual prognosis which the Secretary of State was better-situated to
make.35
Secondly, deference to executive judgment is only appropriateindeed, is only
possibleif such a judgment exists in the first place. It is now clear that proportionality is
concerned with the outcome of the decision-making process, such that a decision is not
per se disproportionate simply because a decision-maker failed explicitly to address the
various questions which comprise the proportionality test.36 However, it is equally clear
that if a decision-maker entirely fails to address the question whether a given measure
is necessaryin the sense of whether the objective in question could have been
achieved by other, less restrictive meansthen it is impossible for the court to defer to
its view on that point, even if, had a view existed, it might been entitled to respect as an
expert view.37 The reverse proposition is also true. For example, in the Denbigh High
School case, which involved a challenge on freedom of religion grounds to a schools
policy of prohibiting the wearing of certain but not all forms of Muslim dress, the school
hadas Lord Bingham put ittaken immense pains to devise a uniform policy which
respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive
way.38 It would therefore, he said, be irresponsible of any court, lacking the experience,
background and detailed knowledge of the head teacher, staff and governors, to
overrule their judgment on a matter as sensitive as this.39 This suggestsquite
rightlythat where a decision-maker with relevant expertise exercises it, considerable
weight should be attached to its view. However, Lord Bingham is surely wrong to imply
that, in such circumstances, the court should simply acquiesce in that opinion. A more
subtle view was advanced by Lord Hoffmann, who said that the way in which the school
approached the problem may help to persuade a judge that its answer fell within the
area of judgment accorded to it by the law.40
Thirdly, however, this, too, is problematic. If the necessity question involves asking
whether the measure adoptedin this case, banning the wearing of certain forms of
Muslim dressis the least restrictive way of achieving the desired objective of
protecting other pupils rights and freedoms,41 in what sense does the decision-maker
have an area of judgment?42 Surely the question admits of only one correct answer
(unless there are several ways of achieving the objective, all of which are equally, and
minimally, restrictive of the right). Here we see the confusion which is introduced when
courts fail to adopt a sufficiently structured approach to proportionality and deference.

35 Ibid at 199.
36 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100.
37 See, eg, Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19, [2007] 1 WLR 1420 at [37], per

Baroness Hale.
38 Op cit n 36 at [34].
39 Ibid.
40 Ibid at [68].
41 The argument was that allowing the wearing of certain strict forms of Muslim dress would be
divisive; it might, as Lord Bingham put it at [18], lead to undesirable differentiation between
Muslim groups according to the strictness of their views with adverse consequences in terms of
inclusion and social cohesion.
42 This part of Lord Hoffmanns speech is also problematic because it is not entirely clear whether
he is discussing necessity, narrow proportionality or both questions.

Elliott, Proportionality and deference: the importance of a structured approach

There might beindeed it is argued below that there isa case for relaxing the
standard of review in certain circumstances so as to recognise the superior democratic
legitimacy of the decision-maker. But if this different form of deference is to be
exhibited, it is incumbent upon the court to say soand to make it clear, as Lord
Hoffmann failed to do, that it has nothing whatever to do with the expertise, as distinct
from the democratic credentials, of the decision-maker.
Fourthly, discussion of deference on grounds of expertise usually focuses exclusively on
the relative institutional competence of the court and the decision-maker. It is clearly
arguable thatas in the AP case,43 discussed abovecourts should attach particular
weight to the views of decision-makers who are better-situated to determine how a
given objective can most efficiently be achieved with respect to the cost in human rights
terms. However, once we recognise that the basis on which deference is exhibited in
relation to the necessity question is relative expertiserather than, say, the superior
democratic credentials of the decision-makerit becomes apparent that public
authority defendants cannot legitimately occupy a uniquely privileged position in this
regard. If another party to the proceedings has great expertise, and argues that some
other, less restrictive measures would have been equally effective in terms of securing
the governments objective, it is surely incumbent upon the court to ascribe weight to
that view just as it would ascribe weight to the view of an expert public authority
defendant. This is true whether the non-defendant expert is the claimant or an
intervening partyand it is important to recognise that the chances of such expert
parties being before the court are greater now than ever, given the propensity of English
courts to confer standing upon expert groups on public interest grounds, and to allow
intervention by third parties whose expertise means that they are likely to make a
useful contribution to the proceedings.44 The crucial point is that to the extent that
deference in relation to the necessity question is motivated by the decision-makers
superior expertise rather than by its superior democratic legitimacy, the argument is
equally applicable to expert defendants and interveners.
Fifthly, this leads on to the point that not everyone agrees that deference on grounds of
relative expertise is an appropriate judicial response.45 Other responses are possible, and
these may well include the court taking steps to equip itself better to evaluate
arguments about the likely efficacy of measures of varying levels of restrictiveness,
rather than simply adoptingor at least ascribing considerable weight tothe
decision-makers expert view. Such steps might, of course, include courts facilitating
intervention by third parties in order to render the court better-informed and therefore
more able to assess the parties arguments about rival methods of securing a given
legitimate objective.
Sixthly, and finally, the scope for rigorous review of a decision-makers judgment that it
is necessary to take certain rights-infringing steps in order to secure a particular
objective is likely to depend on the terms in which the objective is cast. Where an
objective is formulated in precise termsfor example, where a decision-maker
contends that it is necessary to ban rather than merely regulate a particular annual
march which in the past has ended in serious violence in order to ensure the reasonable

43 Op cit n 30.
44 See Harlow, Public Law and Popular Justice (2002) 65 MLR 1.
45 See, eg, Allison, Fullers Analysis of Polycentric Disputes and the Limits of Adjudication [1994]

CLJ 367 at 382-3; Hunt, Sovereigntys Blight: Why Contemporary Public Law needs the concept
of Due Deference in Bamforth and Leyland (eds), Public Law in a Multi-Layered Constitution
(Oxford, Hart: 2003) at 350.

Elliott, Proportionality and deference: the importance of a structured approach

safety of the publicthe possibility of rigorous review arises. The court would be
entitled to ask for historical evidence tending to show the inadequacy of regulation
(what measures short of prohibition have been taken in the past, and why did they fail?)
and for contemporary evidence of the same (is there evidence that trouble-makers
intend to ferment violence on such a scale this year that prohibition is the only viable
option?) However, the position is likely to be different if the objective is very vague. For
example, the AP case, considered above,46 concerned a power the statutorily-prescribed
objective of whose exercise was protecting members of the public from a risk of
terrorism.47 The very wide definition of terrorism48 combined with the absence of any
requirement that the risk must be of a given level of seriousness means that the
objective is largely open-ended: it will be relatively easy for the decision-maker to
establish that more severe restrictions are necessary in the sense that they are likely to
involve a small reduction in the risk posed by the individual concerned. Where the
objective is presented merely in terms of reducing a risk, rather than, say, bringing
about or preventing a particular state of affairs, any measure will be necessary if it goes
further in reducing the riskeven if it is so draconian that it would have overshot if the
objective had been stated in more precise terms.49
It is important, however, to recognise that the absence of intense review of necessity
where the objective is vague does not imply deference. The court is not ascribing special
weight to the decision-makers view of what needs to be done if the desired outcome is
to be achieved: rather, the ease with which the necessity requirement can be satisfied in
such circumstances is simply a function of the breadth of the terms in which the
objective is cast. This begs the question whether decision-makers should be permitted
to define objectives so broadly as to render the necessity stage of the proportionality
test largely nugatory.50 For example, if a decision-maker were to adopt as its objective
the promotion of the public good, this would allow it to establish the necessity of an
extremely broad range of measures, thereby circumventing the necessity stage of the
proportionality test. Clearly, courts should not allow decision-makers to conceal a real,
more specific objective behind the smokescreen of a general objective designed to
preclude meaningful scrutiny of a measures necessity. In applying the doctrine of
proper purposes, courts are perfectly willing to determine whether a stated legitimate
objective is the true (and dominant) one,51 and there is no reason why the same
approach should not be adopted here. If, on such an analysis, the objective is genuinely
very general, then although, as noted above, this will render necessity review largely
meaningless, it is important to recognise that this is not determinative of the legality of
the measure in question. First, the objectivehowever generalmust be a legitimate

46 Op cit n 30.
47 Op cit n 32.

48 Terrorism Act 2000, s 1.

49 Of course, even if the measure is, on such an analysis, necessary, it does not automatically

follow that it is lawful: it may well be disproportionate in the narrow sense.

50 A distinct but related question is whether the decision-maker should be permitted to cast its
objective in a way that is determinative of the necessity question. For example, Rivers, op cit n 34
at 188, notes the possibility (with reference to the Belmarsh case, op cit n 15) of the executive
adopting as its objective protecting the British people from the risk of catastrophic Al-Qaeda
terrorism by giving the Home Secretary the power to detain foreign terrorist suspects without
trial. The only way, of course, of realising such an objective is to give the Home Secretary such
powers: judicial scrutiny of the necessity of such a step can play no meaningful role. The better
view, it is submitted, is that courts must prevent decision-makers from evading review of
necessity by refusing to allow objectives to be defined in terms which include the methodology
by which their fulfilment is to be secured.
51 R v Governor of Brixton Prison, ex parte Soblen [1963] 2 QB 243 at 302, per Lord Denning MR.

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one. And, secondly, even if a very general objective is deemed lawful and the measure
necessary, the decision-maker will still have to satisfy the court that it is proportionate
in the narrow sense: at this stage, the generality of the objective is irrelevant, since the
question is simply whether the specific gains which the measure entails are sufficient to
justify whatever losses (in terms of prejudice to human rights or other highly-regarded
interests) it occasions.

Legitimacy-based deference
The sort of deference thus far considered is motivated by entirely practical
considerations. The question for the court is whether the measure adopted by the
decision-maker represents the least restrictive way of achieving its objective. If the
court can make that assessment unaided, then it will do so; if it cannot, then it will attach
weight to the decision-makers (or another partys) opinion in the course of arriving at a
view about whether the measure is necessary. It was noted above that deference can be
effected either by diluting the question the court asks or by the court attaching weight to
others views when it is trying to work out the answer to whatever the question is. It is
important to note that the sort of expertise-based, practically-motivated deference
considered thus far can only properly take effect in the latter way. Our analysis so far
indicates no normative reason for diluting the requirement that the objective be
pursued in the manner least restrictive of the right in question: the courts relative
institutional incompetence merely ordains that it may be appropriate for the court, in
attempting to determine whether that requirement has been met, to ascribe weight to
others expert views.
In contrast, deference on grounds of democratic legitimacy is underpinned by normative
considerations: such deference is exhibited because the court takes the view that, in
relation to certain questions, the decision-maker should enjoy a degree of latitude on
account of its superior democratic credentials. So whereas expertise-based deference is
a necessary evil, or is at least adopted for negative reasons based on the limitations of
the court, legitimacy-based deference is exhibited (say its proponents) because it is
normatively right that the decision-maker should, in certain circumstances, enjoy a
degree of discretion.
Two questions arise. First, is legitimacy-based deference ever appropriate? And,
secondly, if it is, at what stage or stages within the proportionality test does it have a
role to play and by what doctrinal means should it take effect? The focus of the
remainder of this paper, in line with its central objective of clarifying the doctrinal
structure within which proportionality review should be undertaken and deference
exhibited, is on the second of those questionsalthough, in the course of addressing it,
the first question, which has been explored extensively elsewhere,52 must at least be
sketched.
Prima facie, expertise- and legitimacy-based deference are relevant to distinct aspects of
the proportionality test. The former, as we have already seen, clearly has a role to play
in relation to the necessity question. In contrast, the latter is more obviously relevant at
the narrow proportionality stage. Whereas there is an objectively correct answer to the
necessity question (even though it might be beyond the courtsand perhaps
anybodysexpertise to identify it), the same is not obviously true of the question
whether it is worth sacrificing a given amount of rights in order to secure a particular

52 See, inter alios, Hunt, op cit n 45; Jowell, Judicial Deference: servility, civility or institutional

capacity? [2003] PL 592.

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public policy gain. This necessarily turns on the value which is ascribed to the two sets
of variables which fall to be weighed against one another, and it is at least arguable that
democratically-accountable decision-makers should be accorded not carte blanche but
some latitude in deciding upon the relative importance of a given loss of rights and a
given public policy gain.

Legitimacy-based deference at the necessity stage?

This analysis implies a straightforward schema as far as deference is concerned:
expertise-based deference is relevant to the necessity question, while legitimacy-based
deference is relevant at the narrow proportionality stage.53 However, the position is
actually more complex. As Maurice Kay J pointed out in Clays Lane, if a test of strict
necessity inevitably compels adoption of the least restrictive measure, this may require
the taking of decisions which are distinctly second best or worse: A decision which was
fraught with adverse consequences would have to prevail because it was, perhaps quite
marginally, the least intrusive.54 This dictum recognises that while the least restrictive
measure will be the most efficient way of trading off the right against the legitimate
objective, it may represent a suboptimal solution if broader public policy considerations
are taken into account. The least restrictive measure may entail negative consequences
in relation to interestsfinancial, administrative, environmental, and so onwhich do
not constitute legitimate objectives capable of forming the primary justification for
limitation of the right, but which are nevertheless important. Should the decision-maker
be allowed to trade the right off against not just the legitimate objective but against
these wider considerations too by, for instance, preferring a marginally more restrictive
measure which avoids inflicting the serious damage to broader interests that the least
restrictive measure would have caused?
The courts answer to this question is in the affirmative, but the doctrinal means by
which decision-makers are allowed to behave in this way are far from clear. A common
judicial technique in such circumstances is dilution of the necessity requirement by
requiring the decision-maker to demonstrate that its chosen measure is reasonably,
rather than strictly, necessary, the thinking (apparently) being that legitimacy-based
deference is appropriate because the decision-maker ought to have some latitude to
decide how to balance the right against a broader range of conflicting policy
considerations. For example, in Handyside v UK, the ECtHR stated (with reference to
Article 10(2) ECHR) that the word necessary was not synonymous with
'indispensable, albeit that it could not be stretched so far as to mean merely
reasonable or desirable.55 The concept of reasonable, as distinct from strict, necessity
appears to be helpful, in that it makes it possible for non-minimally but not
unreasonably restrictive measures to be chosen so as to facilitate triangulation of the
right, the legitimate objective and wider public policy considerations.
However, further reflection indicates that the notion of reasonable necessity is
problematic. Although it is used to facilitate deference, the concept actually serves to
obscure the subject-matter and nature of such deference. As argued above, necessity is
about the efficiency of means: is this measure the most efficient way, with respect to
human rights, of realising the decision-makers objective? It follows, as we have seen,
that deference in relation to the necessity question is exhibited (to the extent that any
deference is appropriate) on grounds of relative expertise. Yet the agenda behind

53 Cf Rivers, op cit n 34.
54 Op cit n 16 at [25].
55 (1979-80) 1 EHRR 737 at [48].

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substituting a requirement of strict necessity with one of reasonable necessity is to free

the decision-maker to trade the right off against other objectives, allowing it, for
example, to adopt means which are more restrictive of the right than are necessary for
the achievement of the primary legitimate objective so as to enable the pursuit of wider
public policy aim which adoption of the least restrictive means may unduly prejudice.
This is ultimately about giving the decision-maker latitude not over the means by which
it achieves its objective, but over the objectives which it is allowed to pursue in the first
place. The difficulty is that the necessity question is not designed to assess the
legitimacy of objectivesit is intended to assess the efficiency of means. To adopt a
criterion of reasonable necessity is therefore to conflate the concept of necessity with
the logically prior question whether the factors the decision-maker seeks to trade off
against the right carry sufficient legitimacy as to be capable, in principle, of justifying
restriction of the right, and the logically subsequent question whether those factors are
actually capable, within the factual matrix of the case, of justifying the specific
infringement. This blurring of the boundaries between the different stages of the test is
antithetical to the structured approach to proportionality advocated in this paper; it
seeks to inject deference into the review process by conferring latitude on the decision-
maker, but does so in a way that lacks both doctrinal coherence and analytical
transparency; and it confuses the kind of deference (on expertise-based grounds) which
is relevant to the necessity inquiry with the kind of deference (on democratic legitimacy
grounds) which is relevant to the choice of objectives which the decision-maker wishes
to pursue. This demonstrates the symbiotic nature of the relationship between the
structure of the proportionality test and the doctrine of deference: a coherent version of
the latter is impossible if the former is not taken seriously.56
It follows that if a decision-maker wishes to attempt to justify a measure which is not
the least restrictive on the ground that it represents a better trade-off between the right
and broad public policy considerations, its argument must be scrutinised at the three
relevant stages of the proportionality analysis.
First, although, by definition, wider policy considerations (eg saving money) are not
primary legitimate objectives (eg promoting public safety) capable, in and of
themselves, of justifying restriction of rights, it is clear that there must be some scrutiny
of the legitimacy of such considerations. Such scrutiny can most naturally be undertaken
alongside scrutiny of the legitimacy of the decision-makers primary objective.57
Whether or not the court regards a secondary set of policy considerations as legitimate
will turn upon the sort of analysis which courts deploy in order to determine whether
the decision-maker is taking into account relevant (and disregarding irrelevant)
considerations. In this way, the court recognises that, on democratic legitimacy grounds,
it is right that the decision-maker has a degree of latitude over which objectives it
pursues, albeit that such latitude is bounded by the terms of the enabling legislation and
is not therefore unlimited.

56 Similar difficulties are evident in the case law of the ECtHR. Eg in Brannigan v United Kingdom

(1994) 17 EHRR 539 at 590, Judge Martens, in his concurring opinion, suggested that the
requirement in Article 15 ECHR that the measure must be strictly required by the exigencies of
the situationcalls for a closer scrutiny than the words necessary in a democratic society which
appear in the second paragraphs of Articles 811. This statement is based on the assumption
that there are degrees of necessity. For the reasons advanced above, it is submitted that this
notion is misconceived, and reflects the ECtHRs general failure (see n 17 above and text thereto)
to distinguish adequately between the different stages of the proportionality test.
57 Ie stage (ii) within the scheme set out above at p 1.

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13

Secondly, at the necessity stage,58 the court will have to ask whether the decision-
makers chosen measure is the most efficient way of achieving its primary legitimate
objective while also realising any secondary aims that withstood scrutiny at the prior
legitimacy stage of the analysis. Since the necessity analysis is concerned solely with the
efficiency of means, there is no role for deference on anything except expertise grounds;
and, for reasons advanced above, the question must be whether the measures are
strictly necessary, not reasonably necessary. Importantly, however, if wider
considerations are allowed to form part of the objective against which the necessity of
the measure fall to be tested, it may survive scrutiny at the necessity stage even if it
would have failed to do so had the objective been cast more restrictively.
Thirdly, an obvious objection to the foregoing is that it significantly enhances decision-
makers capacity to override human rights by allowing legitimate objectives to be
supplemented by wider policy concerns, thereby subjugating rights to considerations of
expediency to an unacceptable degree. However, even if the court concludes that taking
certain wider policy interests into account is legitimate and that the decision-makers
chosen measure is the most efficient way of realising the primary objective while
pursuing those wider interests (notwithstanding that it restricts the right more than
would be necessary if the primary objective alone was to be pursued), this merely
establishes the potential lawfulness of the measure. Whether or not it is actually lawful
will depend on the courts decision at the final, narrow proportionality stage of the
analysis.59 Here, the court must examine the loss to human rights and the gains which
flow from achieving the legitimate objective and any other legitimate policy aims. In
doing so, the court will obviously have to take account of the relative weight which each
of these considerations should carryand the distinction between primary legitimate
objectives and wider policy considerations is very likely to be reflected in the ascription
of far greater weight to the former than to the latter. It follows that while, for example,
financial considerations might be judged to be relevant matters which the decision-
maker can legitimately take into account, relatively little weight might be attached to
them at the balancing stage. So while substantial financial savings may justify a very
slightly more restrictive measure, a significantly more restrictive measure is unlikely to
be justified by financial savings.
In conclusion on this point, it is submitted that courts are right to recognise that there
may be circumstances in which the decision-maker should have some latitude to trade
qualified rights off against wider policy concerns (not just primary legitimate
objectives). However, for the reasons advanced above, it is only possible to develop a
coherent doctrinal structure within which courts may test the legality of such decisions
if proper reliance is placed on each of the relevant parts of the proportionality test,
rather than relying on the notion of deference in order to transform the necessity
question into one which is ultimately meaningless.

Legitimacy-based deference at the narrow proportionality stage

Finally, it is necessary to address the question of the role of legitimacy-based deference
at the narrow proportionality stage of the courts inquiry. Whether such deference is
ever appropriate has been discussed at length elsewhere;60 the focus here is on more
technical questions relating to the stage at and the way in which such deference might
take effect.

58 Ie stage (iv).
59 Ie stage (v).
60 Op cit n 52.

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At the beginning of this paper, it was suggested that the proportionality test can best be
thought of in terms of five questions. The first, third and fourth questionswhich
respectively ask whether the measure infringes a highly-regarded interest, is capable of
securing a given objective and is necessaryare questions of fact. We have seen that
deference in relation to factual questionsmost pertinently the necessity question
may be appropriate on grounds of expertise. This is motivated by purely practical
concerns. There is no normative reason why the court should not, when equipped to do
so, decide for itself whether the decision-makers preferred measure is the least
restrictive; deference to others views is only exhibited on this point where the court is
unable, because of its lack of expertise, to reach a judgment unaided.
In contrast, the other two questionswhether the measure pursues a legitimate aim
and strikes an acceptable balance between human rights and competing public policy
interestscall for value-judgments. Whereas, for instance, whether the decision-makers
chosen measure is (in human rights terms) the most efficient way of realising its aim is a
factual question with a right answer, there is no objectively correct answer to the
question whether the gains that result from securing that aim are sufficient to justify the
corresponding human rights loss. The latter question is normative, not factual, in nature,
and ones answer to it will necessarily depend upon a whole series of underlying
assumptions about the relative importance of the right and of competing public policy
interests. The question arises whether the courts view of such matters should
necessarily prevail, or whether some form of legitimacy-based deferencerecognising
that other constitutional branches views may be deserving of respect in light, for
example, of their democratic credentialsmight be appropriate.
Some commentators have argued that, in the UK, the enactment of the Human Rights Act
1998 means that no such deference should be exhibited. Jowell has contended that
reviewing courts should not prefer the authority of Parliament or other bodies on the
ground alone that they represent the popular will, or are directly or indirectly
accountable to the electorate,61 while Lord Bingham, pointing out that the Act gives the
courts a very specific, wholly democratic, mandate to review on proportionality
grounds, was at least sceptical about the appropriateness of legitimacy-based
deference.62 However, many cases do reveal evidence of judges willingness to defer on
such grounds.63 Such deference, it is submitted, is, in certain circumstances, entirely
appropriate. Reasonable minds will differ as to what represents an acceptable trade-off
between individual rights and wider public policy interests, and there is no a priori
reason why judges should always have the final word. However, the proper role of
deference in relation to the narrow proportionality analysis can only be understood by
reference to the specific and distinct tasks which courts must perform in that sphere.
The first matter that must be confronted is the impact of the measure: what is the scale
of the human rights loss which it entails? And what is the scale of the public policy gain
resulting from the measure? These are questions of fact, and it therefore follows that
expertise-based deference may be relevant here: the court may need to rely on others

61 Op cit n 52 at 597.
62 Op cit n 15 at [42].

63 See, eg, R (Prolife Alliance) v British Broadcasting Corporation [2003] UKHL 23; [2004] 1 AC

185 at [76]; R (Farrakhan) v Secretary of State for the Home Department [2002] EWCA Civ 606;
[2002] QB 1391 at [74]; R (Animal Defenders International) v Secretary of State for Culture, Media
and Sport [2008] UKHL 15 [2008] 2 WLR 781 at [33]; Secretary of State for the Home Department
v Rehman [2001] UKHL 47 [2003] 1 AC 153 at [62]; R (Alconbury Ltd) v Secretary of State for the
Environment [2001] UKHL 23 [2003] 2 AC 295 at [60], [159]; Kay v Lambeth LBC [2006] UKHL 10
[2006] 2 AC 465 at [53].

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15

expertise in order to arrive at a view as to what the impact of the measure will be. The
scale of such deference will depend upon the extent to which the court, relative to the
decision-maker or other parties, is under institutional inhibitions which affect its
capacity to determine the measures impacts on individual rights and public interests.
Secondly, value must be ascribed to the gains and losses. Working out that the measure
produces particular public policy gains on the one hand and human rights losses on the
other is one thing; but if a decision is to be made about whether the former outweigh the
latter, some sort of value must be ascribed to them first, in order that they may be
compared. Thirdly, a decision must be taken about whether the gains outweigh the losses.
This is, prima facie, a simple matter which turns on whether the value assigned to the
gains at the previous stage of the analysis is greater than that assigned to the losses.
However, the relationship between the second and third stages requires further
consideration. The schema suggested above implies that it is, in effect, possible at the
second stage to assign specific (eg numerical) values to the gains and the losses within a
single scale, so that the third stage reduces to asking which value is the greater.
However, it is obvious that assigning value to the gains and losses is a far from
straightforward matter. The two sets of factors in playhuman rights on the one hand,
the public interest on the otherare not readily commensurable.64 Rendering them
commensurable in order that they may be compared at the third stage of the narrow
proportionality analysis necessarily entails a value-judgment: it requires a view to be
taken about the relative importance of the right (or, more specifically, about the
importance of the particular exercise65 of the right in question) and the public interest
which its limitation secures. There are two (alternative) ways in which legitimacy-based
deference might blunt judicial review in this regard.
On the one hand, the court may insist on deciding the respective values to be ascribed to
the human rights loss and the public policy gain, but may then avoid full substitution of
judgment where appropriate by applying a more relaxed standard of review: rather
than insisting that the measure must not inflict losses which are greater than the gains it
purchases, the court may require only that the losses do not exceed the gains to an
unacceptable degreereasonable proportionality rather than strict proportionality.
The bounds of acceptability would reflect the courts view of the appropriate extent of
the discretion which the decision-maker should enjoy in the circumstances.
On the other hand, the court may concede latitude to the decision-maker in relation to
the ascription of value to the gain and loss. This would not (in contrast to expertise-
based deference) amount to the court attaching weight to the decision-makers view in
the course of coming to its own view about the matter at hand; since the whole point of
legitimacy-based deference is that the court accepts that its view should not necessarily
prevail, the process is better conceptualised in terms of the court permitting the
decision-maker to ascribe any value to the gains and losses within a judicially-controlled
range. This reflects the fact that whereas expertise-based deference is about the court
relying on others views in order that it may arrive at the right answer, legitimacy-based
deference is about carving out a sphere of administrative or legislative discretion
because there is no right answer (or at least no demonstrably right answer).
Although it perhaps makes little practical difference, it is submitted that the latter
approach is, for the following reason, to be preferred. There is per se no normative
reason why courts should allow decisions to stand which inflict human rights losses that

64 Cf Rivers, op cit n 34.
65 See the example given below at text to n 68.

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are not outweighed by public policy gains. In truth, the argument against judicial
enforcement of a strict rule prohibiting measures where the losses outweigh the gains is
based on the fact that reasonable minds might differ about the value that should be
ascribed to those gains and losses. Arguments based on democratic legitimacy and
separation of powers theory may make it appropriate in some circumstances to permit
the decision-makers value-judgments to stand even if they are not the same as the ones
the court would have formed had it been charged with making the decision. Recognising
that it is on the ascription of value to human rights losses and public policy gains that
legitimacy-based deference bites is therefore helpful because it pinpoints not just the
precise issue upon which decision-makers are allowed a degree of latitude but also the
underlying rationale.
This is not, however, to suggest that review on narrow proportionality grounds should
be uniformly deferential. The court must decide upon how much latitude the decision-
maker should enjoy reference to factors which are specific to the case. Most obviously, if
concerns pertaining to democratic legitimacy form the rationale for attaching respect to
certain decision-makers views about the relative importance of rights and public
interests, greater respect will be due to the views of decision-makers with particularly
strong democratic credentials. This is why, for instance, courts are often willing to
accord a degree of deference to judgments made by Parliament (when determining the
compatibility of primary legislation with Convention rights)66 and by other decision-
makers, such as local authorities and government ministers, who are clearly
democratically accountable for their actions.67
The fact remains, however, that the decision-makers discretion is bounded by whatever
parameters the court judges to be appropriate. It is well-recognised that certain rights
carry greater weight than others. Indeed, one mode of exercise of a given right may be
regarded as much more important than another mode of exercise of the same right. For
example, it is widely acknowledged that the communication of political opinions
constitutes a particularly valuable exercise of the right of freedom expression,68 whereas
the dissemination of some other sorts of information, such as pornography, may be
regarded as a less valuable exercise of the right.69 While a decision-maker with sufficient
democratic credentials might be recognised by a reviewing court as enjoying a degree of
latitude in relation to the precise value to be ascribed to each of those exercises of the
right, it is no part of the present argument that decision-makers should enjoy so much
latitude as to be free to treat the two forms of free speech as equivalent, thereby
undermining freedom of political speech by rendering its limitation much more easily
justifiable. By the same token, the present argument should not be taken to imply that
decision-makers enjoy sufficient discretion as to treat public interest arguments based
on administrative convenience or financial considerations as having the same value
and so the same justificatory capacityas the public interest in national security or the
prevention of crime. The discretion enjoyed by decision-makers vis--vis the ascription
of value to human rights on the one hand and public policy interests on the other is a

66 See, eg, R (Animal Defenders International) v Secretary of State for Culture, Media and Sport

[2008] UKHL 15 [2008] 2 WLR 781 at [33].

67 See, eg, Farrakhan, op cit n 63 at [74].
68 See, eg, Castells v Spain (1992) 14 EHRR 445 at [42]; Prolife Alliance, op cit n 21 at [37] (CA),
per Laws LJ at [97] (HL), per Lord Scott (dissenting).
69 See, eg, Miss Behavin, op cit n 37 at [38], per Baroness Hale.

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17

legal construct, and it is therefore for the court to decide on the degree of latitude which
the decision-maker may properly enjoy in any given case.70

Conclusions
The views advanced in this paper may be overly technical for some tastes. Yet it is only
by recourse to the inherently, but too frequently overlooked,71 structured nature of the
proportionality test that a coherent jurisprudence of substantive review and deference
can be developed. This follows because, in truth, the proportionality doctrine is a
portmanteau term which is used as convenient shorthand for a series of very different
forms of judicial scrutiny of legislative and administrative action. It involves courts in
the making of factual assessments about what the decision-maker is genuinely trying to
do and whether it is trying to do it in the most efficient way; yet other aspects of the
doctrine require courts to engage with and carry out oversight of difficult value-
judgments about whether particular objectives are legitimate and, if so, whether on the
facts they carry sufficient weight to justify a given limitation upon a human right or
some other highly-regarded interest. Any view of proportionality which overlooks the
radically different types of judicial endeavour which collectively comprise this form of
review is doomed to failureat least if success is defined in terms of the emergence of a
transparent jurisprudence which lays bare the courts reasoning, provides reliable
guidance to individuals and public authorities about the legitimate extent of
governmental power, and furnishes a basis upon which to build a coherent doctrine of
deference.
Indeed, the bifurcated nature of the proportionality doctrinein the sense that it is
concerned both with judicial scrutiny of factual issues and value-judgmentsimplies
that to speak of a single doctrine of deference is meaningless and ultimately unhelpful.72
As we have seen, in relation to factual questions, such as whether a given measure is the
least restrictive way of securing the legitimate objective, there is no normative reason
for the court to concede discretion to the decision-maker; the purpose of deference in
these circumstances is therefore not to open up such discretion, but simply to reflect
(where appropriate) the superior expertise of the decision-maker. This is an entirely
different endeavour, in terms of both execution and rationale, from deference in relation
to value-judgments such as whether the means justify the end. Here, the raison dtre of
deference is to afford latitude to the decision-maker so as to confer upon it a measure of
freedom to choose the trade-off between rights and policy objectives which it regards as
most desirable, there being no single correct such trade-off. These distinct senses of
deference mirror the distinct judicial tasks of which the proportionality doctrine is
comprisedand it follows that a coherent jurisprudence in this sphere is possible only
if the courts adopt a suitably structured approach to both the proportionality test and
the notions of deference which inform is application.


70 This reflects the view expressed by Lord Hoffmann in Prolife Alliance, op cit n 63 at [76].

Although his Lordship indicated his dislike of the word deference in this context because of its
overtones of servility (ibid at [75]), his essential point was that it is for the court to decide,
according to the circumstances, how wide or narrow the decision-makers discretion should be.
He indicated, for instance, that discretion should be broader in relation to decisions about policy
matters and resource-allocation.
71 At least by English courts.
72 Cf Rivers, op cit n 34 at 177, on the distinction between deference and restraint.

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