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A structural, institutionally sensitive model of proportionality and deference under the Human Rights Act 1998

Brady, Alan David Patrick (2009) A structural, institutionally sensitive model of proportionality and deference under the Human Rights Act 1998. PhD thesis, The London School of Economics and Political Science (LSE).

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Abstract

Proportionality is used by the UK Courts when reviewing the Convention-compatibility of the activities of the other branches of government. There are two related problems with the current analysis of proportionality. First, there has been a heavy emphasis on the division of constitutional space between the judiciary and the other branches of government. This focus on spatial conceptions of institutional responsibility has distracted attention from the structure of the relationship between proportionality and deference. The second problem is that there has been insufficient attention paid to the manner in which the test is affected by the distinctions between the different governmental institutions which can be judicially reviewed under the HRA. The individual stages of proportionality are based on certain premises about the institution being reviewed. This needs to be explicit if a sophisticated understanding of proportionality is to be developed. I plan to overcome these two problems by setting out a structural, institutionally sensitive model of proportionality and deference. The model is structural in that it takes account of the operation of deference within the process of proportionality. The model is institutionally sensitive in that it takes account of the differences between the institutions which the courts can review under the HRA. The model is based on the work of Alexy, but adapted for the UK context and developed to make it institutionally sensitive. I trace the operation of this structural model through three institution-specific case studies in order to establish its relevance in the UK. The case studies concern administrative decision-making in immigration cases, rule-making in criminal justice cases and judgments concerning both administrative decisions and legislation in housing cases. This diverse range of subject matter provides the basis for proving the applicability of the structural, institutionally sensitive model, which overcomes the two related problems with the existing analysis.

Item Type: Thesis (PhD)
Additional Information: © 2009 Alan David Patrick Brady
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > Law
Supervisor: Gearty, Connor and Melissaris, Emmanuel
URI: http://etheses.lse.ac.uk/id/eprint/255

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