The Presumption of Proportionality

AuthorJulian Rivers
Publication Date01 May 2014
DOIhttp://doi.org/10.1111/1468-2230.12072
The Presumption of Proportionality
Julian Rivers*
This article challenges the assumption that the burden of demonstrating that a limitation of a
fundamental right is proportionate rests on the public authority seeking to justify the limitation.
After considering the operation of burdens and presumptions in European human rights case-law
it notes the difficulties British domestic courts have had in rigorously applying proportionality
tests. It suggests that the concerns which lead judges to weaken the requirement of proportionality
would be better met by recognising that certain circumstances give rise to a presumption of
proportionality, where the burden of demonstrating disproportionality rests on the right-holder.
Five categories of case in which this applies are proposed, and one which has recently been
judicially accepted is rejected. Clarifying the types of case in which a presumption of propor-
tionality applies is a preferable strategy to blurring the standards of justification to be met by those
seeking to limit the enjoyment of rights.1
INTRODUCTION
In spite of continuing concerns about its value,2the doctrine of proportionality
lies at the heart of what is becoming the ‘received approach’ to rights adjudica-
tion across the globe.3Abstract rights vary in their intrinsic importance, and
limitations of those rights can be more or less serious. The doctrine of propor-
tionality provides an argumentative structure for considering whether limitations
of rights are legally justified by reference to the strength of competing individual
and collective interests. The evolving specification of fundamental rights which
*Professor of Jurisprudence, University of Bristol Law School.
1 This article started life as a brief reply to a paper delivered by Cora Chan at the 2012 SLS
Conference. That paper subsequently appeared as C. Chan, ‘Proportionality and invariable baseline
intensity of review’ (2013) 33 Legal Studies 1. I am grateful to Cora Chan, to my colleagues Patrick
Capps, Steven Greer, Tony Prosser and Akis Psygkas, and to two anonymous reviewers for the
Modern Law Review for their comments on earlier drafts of this much fuller version. Cora Chan’s
rejoinder will be available in a forthcoming issue of Judicial Review.
2 See, for example, the debate in the International Journal of Constitutional Law: S. Tsakyrakis,
‘Proportionality: an assault on human rights?’ (2009) 7 IJCL 468 and (2010) 8 IJCL 307, which
provoked defences by M. Khosla, ‘Proportionality: An assault on human rights?: A reply’ (2010) 8
IJCL 298, K. Möller, ‘Proportionality: challenging the critics’ (2012) 10 IJCL 709; and M. Klatt and
M. Meister, ‘Proportionality – a benefit to human rights? Remarks on the I·CON controversy’
(2012) IJCL 687.
3 The literature is rapidly becoming substantial. Major English-language works now include R.
Alexy, A Theory of Constitutional Rights (Oxford: OUP, 2002); D. Beatty, The Ultimate Rule of Law
(Oxford: OUP, 2004); G. Webber, The Negotiable Constitution (Cambridge: CUP, 2009); A. Barak,
Proportionality: Constitutional Rights and their Limitations (Cambridge: CUP, 2012); A. D. P. Brady,
Proportionality and Deference under the UK Human Rights Act: An Institutionally Sensitive Approach
(Cambridge: CUP, 2012); M. Klatt and M. Meister, The Constitutional Structure of Proportionality
(Oxford: OUP, 2012); M. Cohen-Eliya and I. Porat, Proportionality and Constitutional Culture
(Cambridge: CUP, 2013). A. Stone Sweet and J. Mathews, ‘Proportionality Balancing and Global
Constitutionalism’ (2008–9) 47 Columbia Journal of Transnational Law 72 is a valuable overview of
the spread of proportionality reasoning across the world.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(3) MLR 409–433
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
results from repeated applications of proportionality analysis over time is a joint
enterprise involving all public authorities: legislative, executive and judicial.
Courts have a distinctive institutional role as guardians of rights; but this does not
detract from the primary responsibility of legislatures to craft laws which are
compatible with rights, or the secondary responsibility of executive bodies to
implement those laws in accordance with the constitutional scheme of values.
The auxiliary role of courts means that proportionality itself can be tested for
more or less intensively.4It is important to distinguish this narrow sense of
variable intensity from the broader sense in which proportionality itself is a more
intense standard of review than, say, Wednesbury unreasonableness.5
There are several different doctrines and considerations which affect the
intensity with which a court can review for proportionality. For example, courts
can set the bar for the quality of empirical data underlying a particular policy
decision higher or lower, or they can require a decision to be taken at a certain
level within the constitutional structure of authority. Some instances of rights-
limiting executive action may require not merely parliamentary authorisation,
but authorisation in a rule of sufficient clarity and predictability.6The judicial
protection of abstract constitutional or human rights is thus characterised by two
types of flexibility: (1) substantive flexibility – rights may be balanced against
other competing interests, and (2) institutional flexibility – judicial review of
whether rights and interests have been correctly balanced by a primary decision-
taker can be conducted more or less rigorously. This flexibility poses a serious
risk for the proper protection of rights.
In a recent paper, Cora Chan seeks to set a boundary to institutional flexibility
by arguing for the existence of an invariable baseline of review.7She argues that
some writing on proportionality has erred in allowing to the judiciary too much
flexibility to escape their constitutional duty as guardians of rights. More impor-
tantly, several British cases also betray the fact that the courts are not doing their
constitutional duty to the full and proper extent. In her view, sound constitu-
tional doctrine should recognise that there are limits to flexibility. There is an
invariable baseline of review captured in the following phrase: whenever rights
are limited, courts must be satisfied on the balance of probabilities by sufficient
and cogent reasons provided by government that each stage of the proportion-
ality analysis is satisfied. Beyond that baseline, there is still scope for varying the
intensity of review.
At the centre of Chan’s paper is thus a view on the incidence of the burden
of proof in proportionality analysis. Quite simply, the burden rests on the public
authority. The problem of the burden of proof in proportionality analysis has so
far received little sustained analysis, but Chan’s suggestion is in line with a
number of comments, both judicial and academic. It is in accordance with
4 J. Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65 Cambridge Law Journal 174.
5Associated Provincial Picture Houses Ltd vWednesbury Corp [1948] 1 KB 223 is the locus classicus of
substantive review in English administrative law.
6AvHM Treasury [2010] UKSC 5, [2010] 2 AC 534; J. Rivers, ‘Constitutional Rights and Statutory
Limitations’ in M. Klatt (ed), Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford:
OUP, 2012).
7 See n 1 above.
The Presumption of Proportionality
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
410 (2014) 77(3) MLR 409–433

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