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Proportionality and Deference under the UK Human Rights Act

Proportionality and Deference under the UK Human Rights Act An Institutionally Sensitive Approach

Name: Proportionality and Deference under the UK Human Rights Act
Brand: Cambridge University Press
SKU: 9781107013001
Price: 1261.00 HKD
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Author: Dr Alan D. P. Brady
ISBN: 9781107013001

By Dr Alan D. P. Brady

Cambridge University Press May 2012

Specifications

ISBN-13: 9781107013001
Publisher: Cambridge University Press
Publication: May 2012
Format: Hardback , 310 pages
Jurisdiction: U.K. ? Countri(es) for reference only

Details

The courts use the proportionality test to assess the Convention-compatibility of the full range of government action, from administrative decisions to primary legislation. In applying the test, the courts are often conscious of the need to pay some deference to the expertise and competence of other branches of government. This rigorous analysis of the relationship between proportionality and deference under the Human Rights Act sets out a model of proportionality, drawn from existing case law, which integrates deference within the multi-stage proportionality test. The model is 'institutionally sensitive' and can be applied to proportionality-based judicial review of all forms of government activity. The model is shown in operation in three fields that span the full range of government activity: immigration (administrative action), criminal justice (legislation) and housing (multi-level decisions).

• Examines the relationship between proportionality and deference, thereby providing judges, practitioners and researchers with a fresh understanding of these key concepts

• Covers judicial review of both legislation and administrative action and will thus appeal to both administrative and constitutional lawyers

• Applies the theoretical model to existing case law in immigration, criminal justice and housing, thereby giving the theoretical approach practical bite

Acknowledgements	xi
Table of cases	xiii
Table of statutes	xvii
1 Proportionality, Deference and Institutional Sensitivity	1
1.1 Rights-based judicial review	3
1.2 Proportionality – A judicial tool for navigating rights	5
1.2.1 Proportionality as an independent standard	8
1.2.2 Proportionality as a secondary question	11
1.2.3 A process-based approach	13
1.3 Proportionality-based judicial review of the different forms of government action	14
1.4 The problem of uncertainty and the need for deference	18
1.4.1 Epistemic uncertainty	20
1.4.2 Early spatial approaches	22
1.5 Accounting for deference	23
1.5.1 Due deference	24
1.5.2 Non-doctrinalists	26
1.6 Integrating deference within proportionality	30
1.7 A framework for separation-of-powers arguments	34
1.8 Building an institutionally sensitive approach	36
2 An Integrated Account of Proportionality and Deference	39
2.1 The inputs of proportionality	40
2.1.1 Human rights norms	42
2.1.2 Public interest norms	43
2.1.3 Derivative norms	49
2.2 The four stages of the proportionality test	50
2.3 The process of proportionality	53
2.3.1 Rational connection	54
2.3.2 Minimal impairment	55
2.3.3 Overall balancing	56
2.3.4 A flexible process that produces human rights rules	59
2.4 Integrating three categories of deference	62
2.4.1 Structural deference	63
2.4.2 Uncertainty and deference	67
2.4.3 Empirical deference	68
2.4.4 Normative deference	71
2.4.5 The level of deference	73
2.5 Conclusion	74
3 An Institutionally Sensitive Approach	76
3.1 Forms of government activity	79
3.2 Institutional factors that affect proportionality and deference	85
3.2.1 Choice of objectives	85
3.2.2 Range of options	90
3.2.3 Scope of the decision: individual vs. general	94
3.3 Multi-level decision-making	97
3.4 Institutional sensitivity and the reasons for deference	104
3.4.1 Democratic legitimacy	107
3.4.2 Institutional competence	113
3.4.3 Sections 3 and 4 of the HRA and Parliament	117
3.5 Conclusion	120
4 Proportionality and Deference in Judicial Review of Administrative Decisions: Immigration	123
4.1 Inputs of the proportionality test	126
4.1.1 Human rights principles	127
4.1.2 Public interest principles	134
4.1.3 Rational connection	141
4.2 Minimal impairment	142
4.3 Overall balancing	148
4.3.1 Overall balancing and empirical deference	151
4.3.2 Overall balancing and normative deference	156
4.3.3 Overall balancing and delay	161
4.4 Conclusion	164
5 Proportionality and Deference in Judicial Review of Legislation: Criminal Justice	166
5.1 Inputs of the proportionality test	168
5.1.1 Human rights principles	169
5.1.2 Public interest principles	176
5.1.3 Rational connection	181
5.2 Minimal impairment	182
5.2.1 Minimal impairment and structural deference	185
5.2.2 Minimal impairment and empirical deference	191
5.2.3 Minimal impairment and section 4 of the HRA	196
5.3 Overall balancing	198
5.3.1 Overall balancing, empirical deference and the general scope of rules	202
5.3.2 Overall balancing and normative deference	203
5.4 The reasons for deference	204
5.5 Conclusion	208
6 Proportionality and Deference in Judicial Review of Multi-Level Decisions: Housing	210
6.1 Inputs of the proportionality test	211
6.1.1 Human rights principles	211
6.1.2 Public interest principles	215
6.2 Minimal impairment and overall balancing at individual levels of government	220
6.3 Minimal impairment and overall balancing in multi-level cases	231
6.4 Conclusion	252
7 Conclusion	254
7.1 Five categorisations	255
7.2 An institutionally sensitive approach	257
7.3 Institutional sensitivity and the HRA case law	261
7.3.1 Administrative decision-making cases	261
7.3.2 Rule-making cases	262
7.3.3 Multi-level decision cases	262
7.4 Benefits of the institutionally sensitive approach	263
7.5 Conclusion	265
Bibliography	267
Index	283

About the Author

Dr Alan D. P. Brady
Trinity College, Dublin

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