The Presumption of Proportionality
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
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.
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(3) MLR 409–433
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