#13582 - Proportionality And The Margin Of Appreciation Quick - European Human Rights Law

Proportionality and the Margin of Appreciation

1. What is being weighed

Proportionality is generally categorised as a balance between individual freedoms (‘rights’) and collective goals (‘policy’) on the other.

• However, River points out that a clear distinction is not possible - principles are made up of the individual goals to which they are contrasted; rights are defined by policy, with Articles 8, 9, 10 and 11 entailing limitation clauses when ‘necessary in a democratic society’.

  • As such, the distinction is artificial.

Since there is no clear line, it seems inevitable that relevant considerations are left absent, or irrelevant considerations excluded.

• Rights inflation is the ‘phenomenon that increasingly relatively trivial interests are protected as rights’, with Endicott noting the possibility of proportionality ‘overextending’.

  • For example, in Hatton, the court derived the right not to be ‘directly and serious affected by noise and other pollution’ from Article 8, which Letsas subsequently dubbed the ‘right to sleep well’.

• Yet, this distinction between relevant/irrelevant considerations depends on the ability to distinguish and therefore on the notion that rights have ‘special normative force’.

  • However, proportionality treats rights and policies on an equal footing; even if not the case, we have seen they cannot necessarily been distinguished.

• Moller: ‘if rights do not hold special normative force, then any attempt to limit their scope would be arbitrary; thus, coherence requires that rights inflation be embraced.’

  • Nothing wrong with including an array of considerations – they can be dealt with in how they are balanced. But, by distinguishing, being included tends to give interests some (false) normative force.

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

• If rights are identified, in line with Moller, as autonomy interests, then ‘rights’ are whatever it is that allows us to live our lives in accordance with our own wishes.

  • This may even be a right to murder – not problematic, since jut outweighed in the balancing process.

• Webber is particularly critical of this approach, arguing that Moller ‘reduces rights to defeasible interests’.

  • He takes an objective notion being placed into the substantive conception of ‘rights’, meaning Moller is terming interests rights before they have qualified.

• He does not, in principle, object to the balancing and seems to just carry it out at a different stage, making it largely semantic.

  • Moller does not ‘reduce’ any particular rights, only the aggregate conception of ‘rights’.

2. How the factors are being weighed

Arguably, the mere notion of balancing rights is objectionable, but rights inevitably conflict and balancing is inherent to the Convention.

Proportionality traditionally has four stages: (i) legitimacy, (ii) rationality (iii) necessity (iv) balancing.

However, Endicott notes that it usually crumbles into:

1. Whether the right has been interfered with;

2. Whether that interference is justified.

However, Endicott notes the incommensurability problem – ‘the proportionality doctrine requires the judge to reconcile the incommensurable.’

• The entire possibility of balancing in this context can be challenged, since ‘the sophistication of the empirical social sciences has not yet reached the point at which we would expect an accurate and verifiable assessment’ (Quila).

• However, even as individuals we undergo this type of exercise all the time and ‘we need to remind ourselves that courts often have to pull off such impossible feats.’

  • Legal systems are based on it – no quantitative length of time in prison can ‘balance’ out the crime committed’, but we must make a decision.

Is this because rights (and therefore the necessary test) are fundamentally different to other legal principles, or because they’re merely at different stages of development?

• Development:

  • Tsakyrakis suggested that the US’ more formal approach (with tiered scrutiny) might be preferred, giving more structure and a clear methodology.

    • However, Yowell notes this as ‘formal overlay’ – the balancing merely occurs in discussion of which tier, relocating (rather than reducing) the same exercise.

• Fundamentally different.

  • Rights are incredibly broad and yet to be balanced, compared to a contract, which is a pre-balanced compromise, deserving more direct protection.

  • Since it is a mere balancing test, anyone can carry it out and the courts might not therefore necessarily be the best forum.

  • Tsakyrakis criticises this lack of structure, claiming that ‘it pretends to be objective, neutral, and totally extraneous to any moral reasoning’, which risk neglecting the ‘complexity of moral reasoning’ – these can be considered criticisms based on a standard of other legal principles.

    • Proportionality should not pretend to be what it is not and accepted as a fundamentally difference test to other legal methodologies.

3. Who is doing the weighing

What role the margin of appreciation plays, particularly in relation to the nature of the proportionality analysis, depends on what it means to apply the doctrine. Consider when applied:

• Lack of consensus.

  • Applied in Lautsi – a lack of consensus seen as justification for greater deference.

  • However, the basis of this is rather questionable in that it leads the court to follow, rather than set, standards for human rights protection.

  • Further, the concept is too malleable and has no particular methodology (Jones). In particular, the difference between static and dynamic consensus.

    • In X v Austria, adopted a consensus approach merely based on those that had considered and reached a decision on the proposed measure.

  • Further, counter-majoritarian issues based on human rights being defined by a majority-based approach.

    • Arguably the nature of the relationship with a supra-national court, but given tangible impact in rights.

• National parliaments are ‘better placed’ to consider such issues.

  • Noted in Handyside that, in principle, national parliaments are better positioned and can more legitimately make decisions.

  • Reflected in threshold needed to overturn a measure. Smith and Grady v UK: ‘only when the measure is patently disproportionate.’

Depending on these factors, the test which the court applied in terms of proportionality can be drastically different.

• Compare the measure needing to be ‘absolutely certain’ that the measure was necessary (Sunday Times) and ‘not unreasonable’ to consider the measure necessary (Otto Preminger).

• This is good, in principle, but must be done in a principled manner to guarantee a certain aggregate level of protection – should not apply margin of appreciation, and then declare a light analysis is necessary.

Most of the above criticisms are based on a ‘non-justiciability’ approach, which Letsas describes as a ‘no-go’ zone, placing...