The Burden of Proof Under the Human Rights Act

[2014] Judicial Review 46

8 Pages Posted: 12 Feb 2014 Last revised: 1 Sep 2014

See all articles by Cora Chan

Cora Chan

The University of Hong Kong - Faculty of Law

Date Written: December 5, 2013


In the era of the Human Rights Act 1998, courts are expected to check that a prima facie limitation of qualified rights passes the four-stage proportionality test, i.e. it is 1. in pursuit of a legitimate aim, 2. rationally connected to the aim, 3. no more than necessary for achieving the aim, and 4. overall balanced. The adoption of proportionality as a standard of review has led to concerns that courts, in applying this inherently intrusive standard, would interfere with questions that they lack the expertise or legitimacy to decide, or otherwise inappropriately intrude into the state’s policy-making spheres. To allay these concerns, courts have relaxed their intensity of review in various ways, including bypassing certain stages of the proportionality test or merging all stages of the enquiry into a general question of whether the measure is reasonable or permissible.

I have elsewhere argued that such dilution of the standard of review in human rights cases is not justified. This paper focuses on evaluating one particular way in which courts have relaxed their intensity of review, namely, shifting the burden of proof. The HRA itself does not stipulate where the burden of proof lies. The orthodox position is that the litigant bears the burden to show a prima facie limitation of right, but once he can do so, the onus falls on the public authority to demonstrate that the limitation passes the four-stage proportionality test. In practice, however, courts have sometimes required the litigant to demonstrate disproportionality of the rights limitation. There is some support of this shift in onus in academia. For example, in a recent paper, Julian Rivers explains the practical difficulties faced by the state in establishing that a measure passes the final two stages of the proportionality analysis, and proposes that in some contexts, once the public authority can demonstrate a legitimate aim and rationality, the burden should shift to the litigant to establish that the measure is more than necessary or overall imbalanced.

This article seeks to defend the position that the state should always bear the burden of proving that a prima facie limitation of right passes all stages of the proportionality enquiry. Although this position is widely assumed, there has been little discussion of the rationale underlying it. This article will expound such rationale and argue that the practical concerns driving the transferral of a persuasive burden can be accommodated by placing an evidential burden on the litigant.

Keywords: Human Rights Act 1998, burden of proof, proportionality, judicial deference, judicial restraint, separation of powers

Suggested Citation

Chan, Cora, The Burden of Proof Under the Human Rights Act (December 5, 2013). [2014] Judicial Review 46 . Available at SSRN:

Cora Chan (Contact Author)

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

Pokfulam Road
Hong Kong, Hong Kong


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