Margin of Appreciation in UK Law
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R (RJM) v Secretary of State for Work and Pensions
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Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable.
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R v DPP ex parte Kebeline
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The doctrine of the "margin of appreciation" is a familiar part of the jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court: Buckley v. United Kingdom (1996) 23 E.H.R.R. 101, 129, paras. 74-75.
But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.
In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.
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Bank Mellat v HM Treasury (No 2)
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The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
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Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Counsel General for Wales
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However, domestic courts cannot act as primary decision makers, and principles of institutional competence and respect indicate that they must attach appropriate weight to informed legislative choices at each stage in the Convention analysis: see AXA, para 131, per Lord Reed, R (Huitson) v Revenue and Customs Comrs [2011] EWCA Civ 893, [2012] QB 489, at para 85.
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Re G (Adoption: Unmarried couple); Re P and Others (adoption: unmarried couple)
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In such a case, it for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch.
- The Immigration (European Economic Area) Regulations 2016
- Companies Act 1967
- Insurance Companies Act 1981
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The Criminal Procedure Rules 2010
... ... composing the court or the clerk of the court and signed in the margin by the person proposed as surety, the governor or keeper shall take the ... where that person (i) is under 14 or (ii) has an insufficient appreciation of the solemnity of the occasion and of the particular responsibility to ... ...
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Positive subsidiarity and its implications for the margin of appreciation doctrine
The article presents an argument in favour of a richer theory of subsidiarity in the European Court of Human Rights context. In particular, the proposal is to include what is called a ‘positive’ di...
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The Inflation of the Margin of Appreciation by the European Court of Human Rights
The doctrine of the margin of appreciation, despite being repeatedly used by the European Court of Human Rights, is still to some extent mysterious. Given the doctrine's ambiguity, this article fir...
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The Margin of Appreciation Doctrine in the Jurisprudence of Article 8 of the European Convention on Human Rights
The margin of appreciation is a measure of discretion allowed to the Member States in the manner that they implement the standards of the European Convention on Human Rights, taking into account th...
- The Right to Protest, the Human Rights Act and the Margin of Appreciation
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Decision Makers Have Significant Discretion In Climate Change Issues
... ... should be afforded a wide margin of appreciation ... Courts should be wary of reaching 'hard-edged' ... ...
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Police Investigations A Human Right
... ... There is a wider margin of appreciation at the bottom than the top; however, violent crime such as ... ...
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Aircraft Noise and Human Rights
... ... involved a balancing of interests in which the UK Government had a margin of appreciation. However, in the field of environmental protection, mere ... ...
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Competition Appeal Tribunal Criticises Parts Of The Competition Commission's Report On The UK Groceries Market
... ... the wide margin of appreciation available to the CC, the CAT's ... judgment is more likely ... ...