Proportionality and the Margin of Appreciation

Tsakyrakis: ‘proportionality has been elevated, implicitly, to a basic constitutional principle’.

‘What’ is being weighed:

Arguably, the mere notion of balancing rights appears objectionable.

Due to their status as ‘rights’, as important and universal, they should not be weighed against anything else.
Why do we accept infringements of rights, where we are unlikely to with contracts?
- Rights are so broad and undefined; it would be impossible to protect them all absolutely.
- Contracts are specific, pre-balanced manifestations of the underlying rights. Gives the right a specific, contextual form.
  - Thus, they deserve greater protection, as they have already made compromises.

However, this presumes a clear distinction between individual freedoms (‘rights') on one hand, and collective goals (‘policy’) on the other.

Rivers points out that such a clear distinction is not possible
- Principles: inevitably entail collective goals, so such rights are conflicting with each other.
- Rights: these are defined by policy, with Articles 8, 9, 10 and 11 entailing limitations clauses on when ‘necessary in a democratic society’.
It is this artificial to suggest that there are rights on one hand and policies on the other; no such distinction can be non-arbitrarily made.

‘Rights inflation’:

Since there is no clear line between the two concepts, it seems inevitable that relevant considerations are left out, or irrelevant considerations excluded. Rights inflation is the ‘phenomenon that increasingly relatively trivial interests are protected as rights’.

Due to the difficulty in non-arbitrarily distinguishing, proportionality is often accused of including (as rights) interest that should not be included.
- This is seen in a pair of Endicott’s pathologies – ‘over-extending proportionality reasoning, to ‘balance’ things that should not be balanced’.
  - Also seen in the case law, with judgments giving consideration to apparently trivial interests: McCann v United Kingdom and Hatton v United Kingdom.

However, if the concept of ‘relevant’ and ‘irrelevant’/’necessary’ and ‘unnecessary’ interests is embraced, a threshold is needed.

This threshold his contingent on the idea that rights have special normative force and this, therefore, distinguished them from mere interests.
- However, proportionality clearly does not incorporate this idea – it treats rights and policies as on an equal footing.
- Even if this were not the case, the lack of distinction between rights and policies, as explained above, would prevent any clear distinction.
- Moller: ‘if rights do not hold special normative force, then any attempt to limits their scope would be arbitrary; thus, coherence requires that rights inflation be embraced’.

Moller: ‘proportionality is not only compatible with rights inflation, but that it necessitates it’.

If rights are identified, in line with Moller, as autonomy interests, then ‘rights’ are whatever it is that allows us to live out lives in accordance with out own wishes.
- This, as held in the German court, could be a right to feed the birds. Or, it could even be the right to murder.
- Not about objective value of an activity, but whether the activity is valuable from the perspective of the agent.
- This might be detached from a traditional definition of ‘rights’, but the word is only a label, and should not be polluted with pre-conceived ideas.
  - However, should not be morally outraged, the courts are not going to uphold a right to murder – these interests/rights are very easily (or, in the case of murder, necessarily) outweighed in the proportionality balancing process.
  - Can actually be seen to give a fuller and richer balancing as all the considerations of situation are available, rather than those that are arbitrarily left out.
- Must also distinguish between a definite right, which grouns a duty of non=interference on the side of the state; a prima facie right, which grounds a duty on the state to take the respective autonomy interest adequately into account.
  - However, Rivers argues that, even in the case of absolute rights, proportionality is relevant – the ambit of these rights is just incredibly small.

Webber has been particularly critical in stating that Moller’s approach ‘reduces rights to defeasible interests’.

He argues that the use of the word ‘right’ is inappropriate in the context Moller uses it.
Instead, he deploys a concept of rights attached to justice.
- By saying that ‘everyone has the right to…’, the objective element of collective rights is placed into the subjective notion of rights – a person cannot affirm a right before having considered the rights and freedoms of others.
  - This is because rights are relational.
- Thus, on this view, Moller is terming a right before it is created – as before it has been weighed.
  - On this basis, rights acts as ‘conclusions about, and not as potential explanations of, the justifiability of certain actions.’
  - To term rights in this way ‘is to give up on the notion that one bears a special responsibility when maing claims of right’.
  - ‘There seems to be no reason to award the label ‘right’ when another English word would seem more suitable: interest’.
- Does not, in principle, object to the balancing, just its position and status as a right.
  - ‘Process of rational decision-making is a process of practical reasoning that requires one to situate the would-be right-holder in a community of other actual and potential right-holders.’
  - First stage of proportionality should be a claim to a right – the second stage should be about whether this claim has been defeated.
However, the argument appears to be one of semantics, rather than any genuine challenge to the argument – it does not ‘reduce’ any particular right, only the aggregate conception of ‘rights’, since it is expanded.
- Also, dependent merely on definition, not on the concept.
- Moller responds by saying that simple re-phrasing can solve these issues – rather than ‘a right to freedom of expression’, can have a ‘right to have one’s autonomy interest in freedom of expression adequately taken into account’.
The criticisms seem to be deducible from a sensitivity to the use of the word ‘rights’ and thus contention as to how it is deployed.

How the factors are weighed:

Traditionally has four stages:

Legitimacy in relation to the purpose pursued;
Rationality in terms of the connection between the purpose of the measure and the interests/rights interfered with;
Necessity as to whether another measure could be used to achieve the purpose;
Balancing, whether the means are proportionate to the end.

(i) identifies the conflict, (ii) determines the extent to which there is a genuine conflict between the two, in the sense that one can only be realised at the cost of the other, (iii) requires that the conflict be resolved in a way that is as respectful of the right as possible, (iv) balances (ii) and (iii).

However, many of the stages cross over an overlap, meaning that they ‘crumble… into an unstructured, opaque choice’.

For example, if a decision is necessary, it is almost always rational.
(iii) and (iv) can only really be kept separate if a particulary technical version of the test is adopted.
- Beit Sourik Village Council v Israel (Israeli court), passed necessity, but failed balancing - ‘We cannot – as those who are not experts in military affairs, determine whether military considerations justify laying down the separation fence… or whether there is no need for the separation fence to include it’.
Hatton v United Kingdom is a cleat example of a two-stage test

Thus, it can be considered that there are actually only two stages:

Whether the right has been interfered with,
Whether that interference is justified.

The ‘justification’ of an interference with the rights is the traditional conception of proportionality.

Rivers: proportionality provides a ‘clear distinction… between the substantive question of when a limitation of rights is justified and the formal question of the responsibility of the court in ensuring that this is the case’.
- Otherwise, conflating the two factors may not allow a comprehensive analysis of the relevant facts.
- Similarly, starting with the right, and a lack of interference as ‘default’, puts emphasis on the importance and can, arguably, provide greater protection.
  - Also, important to remember that the ‘core’ of the right cannot be infringed.

However, the entire legitimacy of the balancing process can be brought into question.

Even with all the relevant facts, there is no equation of quantitative, objective measure as to how they should be balanced.
- Quila v Secretary of State for the Home Department: ‘the sophistication of the empirical social sciences has not yet reached the point at which we could expect an accurate and verifiable answers.
In particularly, the strength of Loucaides’ dissenting opinion in Osman v United Kingdom (2000) illustrates the potentially subjective nature of proportionality – the same factors were taken into account, leading to a different result

Incommensurability:

Endicott challenges proportionality by saying that ‘the proportionality doctrine requires the judges to reconcile the incommensurable’.

There is no unified, shared scale on which the competing interests can be measured, allowing a verifiable balance.
- He uses the example of deportation cases – how can a value possibly be put on the loss of a family?
- Similarly, if a test was to be carried out on the ‘best sportsman in the world’, a unified scale...

#13584 - Proportionality And The Margin Of Appreciation - European Human Rights Law

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