Proportionality and Invariable Baseline Intensity of Review

(2013) 33(1) Legal Studies 1

26 Pages Posted: 25 Nov 2012 Last revised: 9 Dec 2013

See all articles by Cora Chan

Cora Chan

The University of Hong Kong - Faculty of Law

Date Written: November 25, 2012

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 article 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 article 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.

Keywords: proportionality, intensity of review, judicial deference, Human Rights Act 1998

Suggested Citation

Chan, Cora, Proportionality and Invariable Baseline Intensity of Review (November 25, 2012). (2013) 33(1) Legal Studies 1 . Available at SSRN: https://ssrn.com/abstract=2180463

Cora Chan (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://hub.hku.hk/rp/rp01296

Register to save articles to
your library

Register

Paper statistics

Downloads
384
rank
74,524
Abstract Views
1,320
PlumX Metrics