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Winner of the SLS Annual Conference Best Paper Prize 2012

Proportionality and invariable baseline intensity of review

Published online by Cambridge University Press:  02 January 2018

Cora Chan
Cora Chan*
Affiliation:
University of Hong Kong
*
Cora Chan, LLB (Hong Kong), BCL (Oxon), Assistant Professor, Faculty of Law, University of Hong Kong. Email: corachan@hku.hk
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Abstract

One of the most contested issues in UK public law is how to calibrate the appropriate intensity of proportionality review in human rights adjudication. Here, the challenge lies in formulating a theory of intensity of review that can both comply with the constitutional framework introduced by the Human Rights Act 1998 (‘HRA’) and accommodate courts' varying levels of competence in different areas of litigation. This paper attempts to sketch such a theory in two steps. First, it argues that to fulfil the constitutional expectations brought about by the HRA, a minimum rigour of proportionality review should be observed. This baseline consists of requiring the government to demonstrate to the courts by means of cogent and sufficient evidence that a rights-limiting measure satisfies the distinct stages of the proportionality test. Secondly, this paper highlights the ways in which compliance with this baseline can nonetheless accommodate the courts' varying levels of competence in different adjudicative contexts. In particular, courts can vary the intensity of review once the baseline level of review is reached and adjust the nature of the evidence required from the government.

Type
Research Article
Information
Legal Studies , Volume 33 , Issue 1 , March 2013 , pp. 1 - 21
Copyright
Copyright © Society of Legal Scholars 2013

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Footnotes

The wording of the title is adapted from the title of Julian Rivers' influential article, ‘Proportionality and variable intensity of review’ in (2006) 65 CLJ 174.

**

I would like to thank Julian Rivers, David Feldman, Lusina Ho, Tony Carty, Peter Chau, Mingchiu Li, Ernest Lim, Eileen Lou, Javier Oliva, Scott Veitch, Po Jen Yap, the editors of Legal Studies and participants at the Society of Legal Scholars Conference held at University of Bristol in September 2012.

References

1. Below nn 2 and 7; Craig, P Administrative Law (London: Sweet & Maxwell, 6th edn, 2010) pp 635–636 Google Scholar; Elliott, M ‘The Human Rights Act 1998 and the standard of substantive review’ (2001) 60 CLJ 301, at 313–315CrossRefGoogle Scholar; Elliott, M ‘The Hra 1998 and the standard of substantive review’ [2002] 7 JR 97, at 99Google Scholar; Taggart, M ‘Proportionality, deference, Wednesbury ’ (2008)NZLR 423, 465Google Scholar; Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840 (‘Mahmood’), at [19]; Farrakhan v Secretary of State for the Home Department [2002] EWCA Civ 606 (‘Farrakhan’), at [64].

2. Eg Hunt, M‘Sovereignty's blight: why public law needs “due deference” ’ in Bamforth, N and Leyland, P (eds)Public Law in a Multi-Layered Constitution (Oxford: Hart, 2003) p 337 Google Scholar; and Jowell, J‘Judicial deference and human rights: a question of competence’ in Craig, P and Rawlings, R (eds)Law and Administration in Europe: Essays in Honour of Carol Harlow (Oxford: Oxford University Press, 2003) p 67.Google Scholar The distinction between substantive and formal theories of proportionality was drawn in Rivers, J ‘Proportionality and variable intensity of review’ (2006) 65 CLJ 174 at 177CrossRefGoogle Scholar; Alexy, R A Theory of Constitutional Rights (tr J Rivers) (Oxford: Oxford University Press, 2002) pp 414–425.Google Scholar For other theories of deference, see Kavanagh, A Constitutional Review under the UK Human Rights Act (Cambridge: Cambridge University Press, 2009)Google Scholar (‘Constitutional Review’) part II; Kavanagh, A ‘Defending deference in public law and constitutional theory’ (2010) 126 LQR 222 Google Scholar; Young, Al ‘In defence of due deference’ (2009) 72(4)MLR 554 CrossRefGoogle Scholar; Edwards, Ra ‘Judicial deference under the Human Rights Act’ (2002) 65(6)MLR 859 CrossRefGoogle Scholar. The leading dissent to the search for a theory of deference is Allan Trs : see his ‘Human rights and judicial review: a critique of “due deference”  ’ (2006) 65 CLJ 671; and ‘Judicial deference and judicial review: legal doctrine and legal theory ’ (2011) 127 LQR 96.

3. Poole, T The reformation of English administrative law’ (2009) 68 CLJ 142, at 147.CrossRefGoogle Scholar

4. Eg S and KF v Secretary of State for Justice [2012] EWHC 1810 (Admin) (‘S and KF’) at [44]–[48]; Aguilar Quila v Secretary of State for Home Department ; Bibi v Same [2011] UKSC 45 (‘Quila’), at [91], per Lord Brown (dissenting judge); British Telecommunications Plc v Secretary of State for Business, Innovation and Skills [2011] EWHC 1021 (Admin) (‘British Telecommunications’), at [234]; Sheffield City Council v Personal Representatives of June Wall [2010] EWCA Civ 922, at [33]; Sinclair Collis Limited v Secretary of State for Health [2010] EWHC 3112 (‘Sinclair’), at [94]–[96]; Global Knafaim Leasing Ltd v Civil Aviation Authority [2010] EWHC 1348 (Admin) (‘Global Knafaim’), at [65]; Srm Global Master Fund Lp [2009] EWCA Civ 788, at [75]; Federation of Tour Operators v HM Treasury [2008] EWCA Civ 752, at [21]; Cadogan v Pitts [2008] UKHL 71, at [48]; Trailer & Marina (Leven) Ltd v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 153 (‘Trailer & Marina’) pp 847–848; Ford v Press Complaints Commission [2001] EWHC Admin 683, at [28].

5. Eg Ghai v Newcastle City Council [2010] EWCA Civ 59 (‘Ghai’), at [121]–[123]; Animal Defenders International v Secretary of State for Culture, Media and Sport [2008] UKHL 15 (‘Animal Defenders International’), at [31]–[37]; R (Gillan) v Metropolitan Police Commissioner [2006] 2 AC 307 (‘Gillan’), esp at [62]–[65]; International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728 (‘Roth’), at [75]–[87], per Laws LJ (dissenting judge); Wilson v Secretary of State for Trade and Industry [2003] UKHL 40 (‘Wilson’), at [70]–[78]; Farrakhan, at [71]–[79].

6. See eg section 4 below, evaluating the theories of Rivers and Kavanagh.

7. Elliott, M ‘Scrutiny of executive decisions under the Human Rights Act 1998: exactly how “anxious”?’ [2001] 6 JR 166, paras 13–15Google Scholar; Elliott, , above 3,JR at 99Google Scholar; CLJ at 311; Clayton, R ‘Proportionality and the Hra 1998: implications for substantive review’ [2002] 7 JR 124, para 44Google Scholar; Phillipson, G ‘Deference, discretion and democracy in the Human Rights Act Era’ (2007) 60 CLP 40, at 76Google Scholar; Feldman, D‘Proportionality and the Human Rights Act 1998’ in Ellis, E (ed)The Principle of Proportionality in the Laws of Europe (Oxford: Hart, 1999) pp 122–124 Google Scholar; Fordham, M and Mare, T de la‘Identifying the principles of proportionality’ in Jowell, J and Cooper, J (eds)Understanding Human Rights Principles (Oxford: Hart, 2002) p 60.Google Scholar

8. For example, in the EU, where proportionality is an independent head of review, it may justifiably be argued that proportionality review can range from ‘not manifestly disproportionate’ (eg where the Common Agricultural Policy is concerned) to strict necessity (eg where fundamental freedoms are restricted). Ellis, ibid.

9. Cf Rivers, above 4, at 205.

10. Whether domestic courts should incorporate the margin of appreciation when defining the scope of a right is more controversial, but is not relevant for present purposes. See Marper v Chief Constable of South Yorkshire [2004] UKHL 39, at [27].

11. Judicial attitudes are more diverse. Contrast, eg, ProLife Alliance v British Broadcasting Corporation [2002] 2 All ER 756, at [33]–[34] with Ullah v Special Adjudicator [2004] UKHL 26, at [20], Ambrose v Harris [2011] UKSC 43 and S and KF, at [50]–[71]. Cf. Fenwick, H and Phillipson, G Media Freedom under the Human Rights Act (Oxford: Oxford University Press, 2006) pp 105–106, 144–153Google Scholar; Phillipson, G and Fenwick, H ‘Public protest, the Human Rights Act and judicial responses to political expression’ (2000)PL 627, at 641–645Google Scholar; Feldman, above 9, pp 120–125; Fordham and de la Mare, above 9, p 82; Leigh, I ‘Taking rights proportionately: judicial review, the Human Rights Act and Strasbourg’ [2002]PL 265, at 272–277Google Scholar; Sir Laws, John ‘The limitations of human rights’ (1998)PL 254, at 258Google Scholar; Masterman, R ‘Section 2(1) of the Human Rights Act 1998: binding domestic courts to Strasbourg?’ (2004)PL 725 Google Scholar; Masterman, R‘Aspiration or foundation? The status of the Strasbourg jurisprudence and the “Convention rights” in domestic law’ in Fenwick, H, Phillipson, G and Masterman, R (eds)Judicial Reasoning under the UK Human Rights Act (Cambridge: Cambridge University Press, 2007) p 57 CrossRefGoogle Scholar; Hunt, M, Singh, R and Demetriou, M ‘Is there a role for the “margin of appreciation” in national law after the Human Rights Act?’ (1999) 1 EHRLR 15 Google Scholar.

12. See commentaries ibid.

13. Ibid.

14. This paper will only sketch the basic structure of such a theory. Ideally, the theory should incorporate the central ideas of the Convention and principles specific to each right as well. Cf Masterman, R ‘Taking the Strasbourg jurisprudence into account: developing a “municipal law of human rights” under the Human Rights Act’ (2005)ICLQ 907 CrossRefGoogle Scholar; Fenwick and Phillipson, above 13, p 146. The need for a domestic theory of proportionality will be more compelling if plans to widen the margin of appreciation in Strasbourg are implemented: eg Brighton Declaration, High Level Conference on the European Court of Human Rights. My arguments will not be affected by attempts to introduce a UK Bill of Rights, unless the bill significantly reduces domestic courts' powers, which is unlikely.

15. For example, to test whether a right has been interfered with.

16. It is sometimes unclear in which sense the term is being used. Eg Kavanagh Constitutional Review, 204, 259. I thank Julian Rivers for stressing the importance of highlighting the distinction between the two usages of the term.

17. Below 22. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

18. Elliott proposes that courts can exhibit deference in two ways: (1) phrasing the proportionality questions in a less demanding way, or (2) making it easier for the government to satisfy the court that the questions have been answered satisfactorily. In my view, (a) corresponds to (1), whereas (c) and (d) correspond to (2). El liott, M‘Proportionality and deference: the importance of a structured approach’ in Forsyth, C et al (eds)Effective Judicial Review: A Cornerstone of Good Governance (Oxford: Oxford University Press, 2010) p 269.Google Scholar.

19. Eg R v Secretary of State for the Home Department Ex p. Brind [1991] 1 AC 696; R v Secretary of State for the Home Department Ex p. Leech [1994] QB 198.

20. R v Secretary of State for the Home Department Ex p. Daly [2001] 2 AC 532 (‘Daly’), per Lord Steyn, at [27]–[28]. This was handed down after the ECtHR's judgment of Smith and Grady v UK (1999) 29 EHRR 493, which confirmed that traditional standards of review are insufficient for protecting Convention rights.

21. Eg Huang v Secretary of State for the Home Department [2007] UKHL 11 (‘Huang’), at [19]; recent application in Regina (F (A Child)) v Secretary of State for the Home Department [2011] 1 AC 331, at [17].

22. Eg Begum v Denbigh High School Governors [2006] UKHL 15 (‘Begum’), p 116 ; Farrakhan, at [65]; Huang, at [13]; ProLife Alliance v British Broadcasting Corporation [2004] 1AC 185 (‘ProLife’), at [133]; Sinclair, at [68]; R v Shayler [2003] 1 AC 247 (‘Shayler’), at [33]–[79]; Ponting v Governor of Whitemoor Prison [2002] EWCA Civ 224, at [64]–[71], [108]–[109]; Samaroo v Secretary of State for the Home Secretary [2001] EWCA Civ 1139 (‘Samaroo’), at [15]–[17]; Roth at [51]–[52], [181], [193].

23. Eg Naik v Secretary of State for the Home Department [2011] EWCA Civ 1546 (‘Naik’), at [88]; Ahmed v Her Majesty's Treasury [2010] 2 AC 534, at 591–593; Begum ; Mahmood, at [16]–[19], [39]; A v Secretary of State for the Home Department [2005] 2 A.C.AC 68 (‘Belmarsh’), at [44]; ProLife, at [12]; R v Secretary of State for the Home Department ex p. Turgut [2001] 1 All ER 719, at 729; South Bucks District Council v Porter [2003] 3 All ER 1 (‘Porter’), at [58].

24. Below nn 25 and 26; Taggart, above 3, at 477–478; Clayton, above 9, para 44.

25. Craig, above 3, pp 628–629.

26. Emphasis added. Elliott, above 3, JR at 99; CLJ at 311, 336.

27. Recently confirmed in Quila, at [44]; AB (Jamaica) v Secretary of State for Home Department [2008] 1 WLR 1893, at [7]. See also Taggart, above 3, at 439; Fordham and de la Mare, above 9, pp 27, 88.

28. Allan, above 4, CLJ at 694; Edwards, above 4, at 866; Kavanagh, above 4, Constitutional Review, p 242 ; Hunt, above 4, p 340 . See also Dyzenhaus, D ‘Law as justification: Etienne Mureinik's conception of legal culture’ (1998) 14 SA J Hum Rts 11 Google Scholar; HC debs, 21 October 1998, vol 317, col 1357; O' Cinneide, C,Human Rights and the UK Constitution (London: The British Academy, 2012) pp 16, 24.Google Scholar.

29. Eg Roth, at [27]; Naik, at [46]–[48], [64]; Belmarsh, at [42]–[44]; Steyn, Lord, ‘Deference: a tangled story’ [2005]PL 346 Google Scholar; Jowell, above 4.

30. The Lord Chancellor explained that the bill was designed to give courts ‘as much space as possible to protect human rights’: HL Debs, 3 November 1997, vol 582, col 1227.

31. Jowell, above 4, p 70 ; Hickman, T Public Law after the Human Rights Act (Oxford: Hart, 2011) p 23.Google Scholar.

32. Feldman, above 9, pp 122–124.

33. Craig, above 3, p 629. See also Jowell, above 4, p 79.

34. Barak, A Proportionality: Constitutional Rights and their Limitations (Cambridge: Cambridge University Press, 2012) pp 443–446.CrossRefGoogle Scholar.

35. For accounts of why courts are suited to guarding rights, see eg Raz, J ‘Disagreement in Politics’ (1998) 43 Am J Juris 25 CrossRefGoogle Scholar; Feldman, D ‘Human Rights, terrorism and risk: the roles of politicians and judges’ [2006]PL 364 Google Scholar. Cf Waldron, J Law and Disagreement (Oxford: Clarendon Press, 1999).CrossRefGoogle Scholar.

36. This position is supported by some commentators. See eg Fordham and de laMare, above 9. Hickman cautions that if we do not give structure and content to proportionality, then the expectations of proportionality being ‘intrusive, precise and sophisticated’ would be defied. Hickman, T ‘The substance and structure of proportionality’ [2008]PL 694, at 716.Google Scholar.

37. Cf Allan, 's criticism of ‘due deference’, above 4,CLJ 672.Google Scholar

38. A recent example is S and KF.

39. Wilson per Lord Hobhouse; Shayler, at [80]–[85], [99]–[118], arguably skipped the third and fourth stages; Samaroo, at [19]–[20], skipped the third stage; Farrakhan skipped all stages; Marper v Chief Constable of South Yorkshire [2003] 1 All ER 148 at [42], assumed the answer to the third stage.

40. A v Secretary of State for the Home Department [2002] HRLR 45 (SIAC), p 1290; ProLife; Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19, at [16], per Lord Hoffmann; Wilson per Lord Hobhouse; Global Knafaim.

41. See above 6.

42. Mahmood, at [37]; Samaroo, at [30]–[33]; Ismet Ala, at [41]–[44].

43. Trailer & Marina, at 847; Wilson per Lord Nicholls; Sinclair, at [77]–[82], [94]–[96]; S and KF, at [47].

44. See criticisms in eg Leigh I ‘ The standard of judicial review after the Human Rights Act ’ in Fenwick et al, above n 13, p 199 ; Fenwick and Phillipson, 13, p 102.

45. ProLife, at [8], [16], [51], [58], [73], [77].

46. Rivers, above 4, at 206.

47. Cf Elliott, above 20, p 283.

48. Cf the distinction between standard of legality and standard of review drawn in Hickman, above 33, p 99.

49. Eg Daly; Huang.

50. Also, such dilution conflates the question of means with that of ends and is inimical to structured review: Elliott, above 20, pp 270–280.

51. Rivers, above 4, at 198.

52. Kavanagh, Young, Hunt, above 4.

53. Kavanagh, above 4, Constitutional Review, p 240.

54. Although Steyn Lord ended his judgment in Daly with the remark that the intensity of review would depend on the subject matter in hand even in cases involving rights (at [28]), still it is clear from his tone that any variation in the intensity of review should take place within the rigorous and structured framework of review envisaged in the earlier parts of his judgment. See also cases in above nn 22 and 23.

55. See eg Steyn, Lord ‘2000–2005: Laying the foundations of human rights law in the United Kingdom’ (2005)EHRLR 349, 352Google Scholar; Brown v Stott [2003] 1 AC 681, at 703D; Roth, at [71]; Anufrijeva v Secretary of State for the Home Department [2004] 1 AC 604, at [27].

56. See eg Hunt, M Using Human Rights Law in English Courts (Oxford: Hart, 1997) p 184 Google Scholar. Courts have sometimes applied the strict necessity formula to scrutinise interferences with Art 1 of Protocol 1, see eg the judgments of the High Court and Court of Appeal in Roth.

57. Greer, S ‘Constitutionalizing adjudication under the European Convention on Human Rights’ (2003) 23 OJLS 405, at 428.CrossRefGoogle Scholar

58. For a detailed exposition of what ‘cogent and sufficient reasons’ require, see Daly, P ‘ Wednesbury's reason and structure’ [2011]PL 237, at 251–253.Google Scholar

59. Kavanagh, above 4, LQR, at 230; Perry, S ‘Second-order reasons, uncertainty and legal theory’ (1988–1989) 62 S Cal L Rev 913 Google Scholar; Raz, J Practical Reasons and Norms (London: Hutchison, 1975) ch 1.Google Scholar.

60. Chan C ‘Deference, expertise and information-gathering powers’ LS (article first published online: 25 October 2012; DOI: 10.1111/j.1748-121X.2012.00259.x).

61. As opposed to exclusionary reasons. Kavanagh, above 4, LQR, at 223, 233; Young, above 4, at 555; Hunt, above 4; Perry, above 61, at 932; cf Raz, J The Morality of Freedom (Oxford: Clarendon Press, 1988) ch 3CrossRefGoogle Scholar; Soper, P The Ethics of Deference (Cambridge: Cambridge University Press, 2002) pp 38–47 CrossRefGoogle Scholar; Dyzenhaus, D‘The politics of deference: judicial review and democracy’ in Taggart, M (ed)The Province of Administrative Law (Oxford: Hart, 1997) p 286.Google Scholar.

62. Perry, above 61, at 932; Kavanagh, above 4, LQR, at 233; Chan, above n 60, section 1.

63. Examples of the government being able to persuade the court using only first-order reasons include: Re E (a child) [2008] UKHL 66; Surayanda v the Welsh Ministers [2007] EWCA Civ 893, esp at [51]–[81], [112].

64. Eg in Farrakhan and Gillan.

65. Eg in Belmarsh, on whether there was an emergency threatening the life of the nation.

66. On how courts can probe such evidence, see eg Chan, above 62, sections 3–4; Poole, T ‘Courts and conditions of uncertainty in “times of crisis”’ (2008)PL 234.Google Scholar

67. An example of the government arguably being able to do so is Countryside Alliance v Attorney General [2008] AC 719 (‘Countryside Alliance’).

68. Craig, above 3, p 643; Feldman, above 37, at 382; Tomkins, A ‘National security and the role of the court: a changed landscape?’ (2010) 126 LQR 543, at 566Google Scholar; Edwards, above 4, at 880; Clayton, above 9, paras 33–35.

69. Eg Mahmood, at [39]–[40]; Samaroo, at [30]–[32].

70. Eg Ghaidan, at [19].

71. Eg Naik, at [48].

72. Eg Wilson per Lord Nicholls; Ghai, esp at [121]–[123]; Aguilar Quila v Secretary of State for Home Department [2009] EWHC 3189 (Admin); British Telecommunications, esp at [203]–[234].

73. Eg Farrakhan, at [78]; Gillan, at [62]–[64]; Animal Defenders International, at [33]; Belmarsh (on whether there was an emergency threatening the life of the nation); ProLife, at [74]–[81]; Baiai v Secretary of State for the Home Department [2006] 4 All ER 555, at [50]–[51] (cf the CA's correct approach in the same case: [2007] 3 WLR 573); Trailer & Marina, at 846–848, 858; Ghai, at [121]–[123]; Ford, at [25]–[35].

74. The two forms of deference are not distinct: (ii) implies (i). Courts deferring through (i) often also rely on (ii) to find in favour of the government.

75. Quila (High Court), above 74.

76. CA's judgment: [2011] Fam Law 232, at [52]–[62]; Supreme Court's judgment: above 6, at [49]–[58], [74]–[76].

77. At [78].

78. At [62]–[64].

79. Belmarsh, at [26], [29], [94], [116], [154], [166], [226]

80. Animal Defenders International, at [33].

81. Chan, above 62, section 3; Allan, above 4, CLJ; McBride J ‘ Proportionality and the European Convention on Human Rights ’ in Ellis, above 9, p 29; Kokott, J The Burden of Proof in Comparative and International Human Rights Law (The Hague: Kluwer Law International, 1998) p 42 Google Scholar; Kazazi, M Burden of Proof and Related Issues (The Hague: Kluwer Law International, 1996) p 371.Google Scholar.

82. Rivers, above 4, at 203; Rivers, J‘Constitutional rights and statutory limits’ in Klatt, M (ed)Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford: Oxford University Press, 2012) p 253.Google Scholar.

83. Kavanagh, above 4, LQR, at 226; Constitutional Review, pp 175, 182, 219; Kavanagh A ‘ Constitutionalism, counterterrorism, and the courts: changes in the British constitutional landscape ’ (2011) I-Con 172, at 175–176.

84. Kavanagh, above 4, LQR, at 233–235; Constitutional Review, pp 214–218. King, J made a similar point in ‘Institutional approaches to judicial restraint’ (2008) 28(3)OJLS 409 at 411–414, 425–426.CrossRefGoogle Scholar

85. Rehman v Secretary of State for Home Department [2003] 1 AC 153, at [22], [48], [56]; Quila, at [44]; A v Secretary of State for the Home Department (No 2) [2005] 1 WLR 414, at [33]–[34], [368]–[370]. Scholars have rarely applied the concept of standard of proof in their analysis of the HRA. An exception is Greer, below 96.

86. In B v S [2006] 1 WLR 810, the CA applied a standard between the civil and criminal standards to assess whether certain treatment was a medical necessity so as not to constitute inhuman or degrading treatment. Recently, in Mustafa Moussaoui v Secretary of State for the Home Department [2012] EWHC 126 (Admin); BA v Secretary of State for the Home Department [2011] EWHC 2748 (Admin); Hassan Abdi v Secretary of State for the Home Department [2008] EWHC 3166 (Admin), the courts applied the civil standard to decide whether the claimants would have been detained in any event, irrespective of the unlawful policy.

87. R v Oakes [1986] 1 SCR 103, at [71].

88. Santosky v Kramer 102 S Ct 1388 (1982); Addington v Texas 441 US 418 (1979); cited in CMA McCauliff ‘ Burdens of proof: degrees of belief, quanta of evidence, or constitutional guarantees? ’ (1982) 35 Vand L Rev 1293.

89. Samaroo, at [39]; Naik, at [48].

90. Belmarsh, at [43]; Secretary of State for the Home Secretary v JJ [2006] EWHC 1623 (Admin), at [79].

91. F v G [2012] ICR 246, at [48]; S v The Secretary of State for the Home Department [2007] EWHC 1654 (Admin), at [44]; Secretary of State for the Home Department v AF [2007] EWHC 651 (Admin), at [65].

92. Redmayne, M ‘Standards of proof in civil litigation’ (1999) 62 MLR 167, at 169CrossRefGoogle Scholar; Kokott, above 83, pp 25–27; McCauliff, above 90, pp 1319–1322.

93. Speiser v Randall 357 US 513 (1958), at 525–526.

94. Greer, S ‘“Balancing” and the European Court of Human Rights: a contribution to the Habermas–Alexy debate’ (2004)CLJ 412, at 430–434.CrossRefGoogle Scholar

95. Belmarsh, above 81.

96. In contending that courts should defer unless they are ‘sure’ of a substantial rights violation, and whenever they are in doubt, Kavanagh effectively endorses deference when the cases for and against proportionality are balanced. King made a similar point; above 86.

97. The oft-cited judicial statement of ‘the more important the right, the greater the justification required’ can be interpreted as referring to the substantive theory of proportionality or an institutional theory about how rigorously to apply this standard.

98. Rivers, above 4, at 195–196.

99. Ibid, at 205.

100. Ibid, at 203–206.

101. Emphasis added. Rivers, J‘Proportionality and discretion in international and European law’ in Tsagourias, N Transnational Constitutionalism (Cambridge: Cambridge University Press, 2010) p 121.Google Scholar.

102. My arguments are formulated based on Redmayne's criticisms of the prior probability approach to accounting for an intermediate standard of proof. Above 94, at 184–186.

103. Arguably, Rivers alluded to this alternative reasoning. See Rivers, above 4, 205–206: ‘ where the stakes are high one wants to be sure that the public authority really has directed its attention to the proper object of inquiry in a reliable way ’.

104. The need for courts to accommodate the government's superior competence in adjudicating particular issues is the main concern fuelling the construction of theories of due deference. See eg Young, Kavanagh, Hunt, above 4; King, above 86.

105. For examples, see above 65.

106. For examples, see above 66.

107. On how courts can perform this exercise, see above 68.

108. The courts in Quila (CA), Porter and Belmarsh (on the issue of whether the measure was proportionate) properly insisted on reasoned justification and ultimately refused to give weight to the government's claims of expertise.

109. Cf Hunt, above 4, p 354.

110. Arguably, the House of Lords in Countryside Alliance (at [36]–[52]) properly scrutinised the government's second-order claim of democratic legitimacy before giving it due weight.

111. Eg above 4, Kavanagh LQR, at 233–235; Young, at 566, 570, 573; King, above 86, at 438–439.

112. Hunt, above 4.

113. Young, above 4.

114. Kavanagh and King, above 86. See Chan, above 62, section 3(c).

115. Allan, above 4, LQR, at 100–101, 109; CLJ, at 688.Google Scholar

116. Ibid,CLJ, at 692–693.Google Scholar

117. Ibid, at 676.

118. Ibid, at 694.

119. Above 4; Jowell, J ‘Judicial deference: servility, civility or institutional capacity?’ [2003]PL 592.Google Scholar

120. Chan, above 62.

121. Hickman, above 38, at 716.