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grounds of judicial review- irrationality and proportionality
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Lecture 19- Grounds of Judicial Review- Irrationality and proportionalityIrrationality
in this session
- a quick reminder about convention rights
- explain what is meant by ‘proportionality’
- outline some cases that have dealt with this ground of review
Proportionality and qualified rights
article 10 (freedom of expression)
(1) includes ‘freedom to hold opinions and to receive and impact information and ideas without
interference from public authorities
(2) the right can be limited if restrictions and prescribed by law, and necessary to achieve a
specified purpose
specified purpose for admissible limitations are;
- protection of national security, territorial integrity or public safety
- prevention of crime or public disorder
- protection of health and morals
- protection or reputation or rights of others
- prevention of disclosure of confidential information
- protection of judicial independence
proportionality and convention rights
qualified rights
- limitations on the right must be
1. prescribed by law
2. necessary
3. for a specified purpose
ECtHR approach to proportionality
Brind v UK [18714/91]
- restriction was prescribed by law (s29(3) broadcasting act 1981)
- prevention of terrorism is a specified purpose in article 10(2)
- ‘necessary’- was the restriction proportionate (the minimum interference required to
achieve the aim)
proportionality
in this session
- consider application of proportionality in the UK
- outline some key points about remedies
Human rights act 1998 (in force in 2000)
R v secretary of state for the home department ex p Daly [2001] UKHL 26
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