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grounds of judicial review- irrationality and proportionality

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  • September 19, 2023
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  • 2022/2023
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Lecture 19- Grounds of Judicial Review- Irrationality and proportionality
Irrationality

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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