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