LL.B (Hons), Dunelm; LL.M (Hons), Lond.
PhD Candidate, the Dickson Poon School of Law, King’s College London
Under our humble repertoire at King’s College London we boast the high profile UK Association of European Law (UKAEL). This year we were honoured to have Rt. Hon Lady Justice Arden join us on Monday, November 12 to speak about a highly relevant and wide-reaching European topic: proportionality. As one of the most controversial and powerful principles covering all aspects of EU law, Lady Arden described it as ‘impeccable and irresistible’. She would focus on three areas in which proportionality played the most interesting roles. These are its role in the European Court of Human Rights (ECtHR), its role in Court of Justice of the European Union (CJEU) and its role in the domestic courts of the UK. Cases cited provided plentiful food for thought as it has come to light that the EU is being moulded more and more differently by the coming into force of the Lisbon Treaty in 2009.
Before beginning, it was pertinent to define proportionality. Those familiar with the principle can understand how difficult this could be, hence the use of ‘badges’ of proportionality rather than concrete statements of its definition. It would turn to be uncovered what these ‘badges’ are in the three differing areas, how they are applied and how they should be interpreted.
Proportionality derives from 19th century administrative law in Prussia, mainly from the notion of necessity. It was adopted by many, having realised its potential to be a simple yet complex and flexible principle. Lady Arden stated that it was relevant and useful because it could test constitutionality of interference with human rights. Proportionality then branched out to become understood in terms of suitability alongside necessity and with considerations of striking a fair balance also in play. These understandings of proportionality are still used today.
European Court of Human Rights
Proportionality in the ECtHR in Strasbourg is evident because of the emphasis in the case law on striking a fair balance. This is even evident in the qualified limbs of certain of the Convention Articles, namely Article 8 on the right to private and family life, which Lady Arden quoted the second indent of:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”[i]
It appeared the drafters of the Convention also envisaged a flexible out from the (at times) very strict rules laid out under the Convention. Indeed, it is well known that even the rights under the Convention are tenuous, as not all harmoniously interpret the way rights should be protected. Therefore, qualified rights such as Article 8 ECHR allow for the interests of individuals (protected in the first branch of the Articles themselves) to be balanced against the collective interests of others.
The case study chosen by Lady Arden is one of the seminal cases on blasphemy: Otto Preminger v. Austria[ii] concerning the ban on a religiously offensive film by the Austrian government. The interests in question were freedom of expression under Article 10 ECHR and freedom of religion in Article 9 ECHR. Though decided in a fairly neutral manner by reference to proportionality (leaving it up to the national court), Lady Arden’s analysis centred around dissents of the minority (those opposed to the decision of the majority). The majority of judges agreed that the ban could stand without actually being against religious debate under Article 9 ECHR. The minority disagreed with Austria prosecuting the film-makers but did note that a ban should only be proportionate if there were serious and violent attacks on religious groups. This fine distinction proves a very important one in the fair balance to be struck between freedom of expression and freedom of religion as to their proportionate intensity. The minority agreed that less restrictive measures as an alternative to a complete ban should be possible if engaging in a qualitative assessment of each right to whatever facts at hand.
In Lady Arden’s opinion, there are two steps to take in circumstances of a clash of rights. First, a qualitative assessment of the rights must be carried out and following this, an examination of how to reconcile the rights. It is not theoretical, but practical. They should apply specific facts of the case. In Axel Springer[iii] there is some guidance as to how to distribute certain rights, which Lady Arden suggested was of use. However, as ever, there is no agreement of a solution to such a sensitive problem.
Court of Justice of the European Union (CJEU)
The relationship of the Court of Justice with proportionality defined in ECHR terms is such that it was borrowed as a legitimate way to depart from Fundamental Rights or more significantly, the EU Internal Market’s fundamental freedoms. The Luxembourg court defines proportionality slightly differently, with its ‘badges’ as suitability, necessity and the least restrictive means. However, proportionality in the EU has been criticised by Lady Arden as lacking a maximum level of intensity. Indeed, the threshold for its applicability has often been that there must be a ‘manifest’ breach and she believes this is not appropriate to achieve certain aims.
The rationale behind this reasoning has been suggested as due to the judicial restraint that Luxembourg has to exercise in relation to its supranational nature as an EU institution in relation to the various national courts. There is a tendency for the CJEU to defer to the national court’s assessment of proportionate measures, such as in Omega[iv] where the German assessment of an affront to human dignity was held to be acceptable because it was felt Germans knew what was best for their citizens. Indeed, this is logical but again fails to fulfil the notion that proportionality should strive to be flexible and wide-reaching in order to protect vulnerable citizens.
Lady Arden describes proportionality in the CJEU as having many points along a spectrum. There is often a higher intensity of review in MS courts compared to the EU institutions. Additionally, there is confusion as to necessity and suitability being interchangeably used in the EU. Factors also vary greatly, such as in scientific evidential cases where the precautionary principle allows potential risk reducing measures to be proportionate. Yet again her discussion on the point summates in a lack of clear answer to addressing faults.
In the British court system, the varied influences of the definition of proportionality have created a multilevel manifestation of judging. Three recent cases cited were as follows.
In F (A Child)[v] there was a question reviewing sex offenders’ requirements for notification (to the police as to almost every move of their private lives) as being against Article 8 ECHR. Proportionality was the main driving factor in this, and the UK Supreme Court held that the legitimate aim behind such a measure was in accord with the precautionary principle for the risk of the threat that sex offenders posed. They thus rejected it appealing to the right to private life, fairly strongly asserting the definition of proportionality in the eyes of the British courts.
In Aguilar Quila,[vi] a proposal was put forward to raise the legal age of marriage in order to obtain a spouse’s visa to 21. The policy behind this was to deter forced marriages, with compassionate discretionary exceptions. It was highly controversial as one argument strongly against it was that it significantly hampered the right to unforced marriages, and under this notion the Supreme Court rejected it as a proportionate measures in regards to the four ‘badges’ of proportionality. The dissent from Lord Brown was, however, that the Supreme Court did not have perfect material to fully consider proportionality having ignored the Secretary of State’s opinion.
Finally, in the Court of Appeal judgment in Sinclair Collis[vii] on a tobacco vending machine ban and an interference with the freedom to free movement of goods, the outright ban was found proportionate in order to reduce smoking. Lady Arden, who was involved in the case, argued that ‘manifestly inappropriate’ was the level to consider the ban against because it involved EU law. Indeed, this would be a consistent interpretation with EU law, but interestingly does fully exemplify the multilevel nature of proportionality especially where sources are so varied.
Law and Politics
What Lady Arden meant to clarify was that it appeared that proportionality brings judges closer to the fine line between law and politics. This is especially so in Britain, as the her three case studies demonstrated the divergent approaches to the seemingly simply principle of proportionality. The courts must be mindful of the interaction between themselves and the decision makers, as there are often value judgments to be made. It would appear from the disparate interpretations of proportionality at the UK level that this has placed the common law at a disadvantage in relation to the separation of powers of the judiciary and the executive. It also suffers from evidential issues. Ultimately, it comes down to the question – who knew one word could cause so much controversy? This controversy will last for many years to come.
[i] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art 8(2)
[ii] Otto-Preminger v. Austria (1995) 19 EHRR 34
[iii] Axel Springer v. Germany (2012) 55 EHRR 6
[iv] Case C-36/02 Omega  ECR I-9609
[v] R. (on the application of F) v Secretary of State for Justice  UKSC 17
[vi] Aguilar Quila v Secretary of State for the Home Department  UKSC 45
[vii] Sinclair Collis Ltd v Secretary of State for Health  3 C.M.L.R. 37