Practical or conceptual problems?

The previous section argued that human rights adjudication did not match the criteria advocated by the culture of justification. There are two possible reasons for this mismatch.

1. Transcription errors?

The culture of justification advocates principles of human rights adjudication based upon a test of proportionality and a principle of deference as respect, where courts give weight to the decisions of public authorities when determining whether their actions are in accordance with human rights. However, it was argued above that def­erence as respect was in danger of collapsing into deference as submission and that it was difficult to determine whether courts were giving weight to decisions of public authorities, or modifying the stringency with which the test of proportionality was applied, with the accompanying danger that the courts may apply a test other than that of proportionality.

First, although the culture of justification refers to proportionality, there is a range of different legal tests that can be used as a means of applying a test of proportionality. The most frequently applied test in English law is the three-fold test adopted in de Freitas v Permanent Secretary of the Ministry of Agriculture and Others that examines:

(i) Importance—whether the aim of the measure restricting a human right is sufficiently important to merit the restriction of a human right.

(ii) Rational connection—whether there is a rational connection between the measure in question and the sufficiently important aim.

(iii) Necessity/proportionality—whether the means used to impair the right or freedom are ‘no more than is necessary to accomplish the objective.'^[581] This test, in turn, is interpreted by Paul Craig as a three-fold test of necessity, suitability, and proportionality stricto sensuX The first stage of de Freitas appears to have been separated from the rest of the test, it often being dictated by Convention rights—eg. particularly arts 8-11, the ‘non-absolute’ rights which can be restricted only to achieve the legitimate aims set out in those articles. The third stage of de Freitas is expanded, with necessity and proportionality being seen as two separate elements, proportionality going beyond necessity.

Lord Bingham in Huang recognised a deficiency in this three-fold test of proportionality: that it failed to draw sufficient attention to the need to balance the interest of society with those of individuals and groups.^{[582] [583] In Quila and Bibi Lord Wilson interpreted Lord Bingham as establishing the following four point test for proportionality:}

(i) ‘is the legislative objective sufficiently important to justify limiting a fun­damental right?’

(ii) ‘are the measures that have been designed to meet it rationally connected to it?’

(iii)‘are they no more than are necessary to accomplish it?’

(iv) ‘do they strike a fair balance between the rights of the individual and the interests of the community?’^[584]

However, this formulation of the legal test seems almost to beg further questions as opposed to supplying further answers.

Problems arise because it is difficult to transform an application of proportionality into a precisely worded legal test. What is meant by a proportionate response may well depend upon the circumstances and the context in which the test is applied.

Similar transcription errors occur when assessing how to modify the stringency with which proportionality is to be applied, or to give weight to the assessments of public authorities. It is hard to see how the stringency with which proportionality is to be applied can be modified other than through the wording of the test. To return to the classic example of using a sledgehammer to crack a nut, a more stringent application of the proportionality test would not only require that sledgehammers were not used to crack nuts, but in addition would insist that walnut crackers were not used to crack hazelnuts. A less stringent application of the proportionality test may merely require that steamrollers were not used to crack nuts. To modify strin­gency in this way looks like a modification of the test of proportionality to a test of reasonableness. In a similar manner, it could be interpreted as an application of a necessity test that does not move on to assess proportionality stricto sensu.

Similar difficulties occur when we try and determine how to ‘give weight' to the assessments of public authorities. Proportionality is seen in terms of ‘weighing up' the rights of the individual with the interests of society. If we use the analogy of a set of weighing scales, the court places the reasons for restricting the right in one set of pans and the reasons for protecting the right in the other.

2. A matter of degree?

In addition to transcription errors, other problems arise as both the test of propor­tionality and that of deference are matters of degree. Hunt argues that deference applies in a variable manner. This distinguishes deference from justiciability— where issues are removed from scrutiny by the court as beyond their jurisdiction, often on a blanket basis. Deference differs in two respects: it does not remove areas from the jurisdiction of the court and it applies on a variable basis, depending on a range of factors. The precise context and issue before the court is examined to determine the appropriate degree of scrutiny over the decisions of public authorities by the courts.

As discussed above, deference as respect may appear to collapse into deference as submission given that greater and lesser amounts of respect are to be paid to public authorities. This can also be explained by the recognition that deference is a matter of degree. Regardless of whether deference modifies stringency, or affects the weight to be given to the reasoning of public authorities, stringency is modified to a greater or lesser degree and greater or smaller weight is given. In these circumstances, it may be hard to delineate between giving a large amount of weight and merely accept­ing the decisions of the public authority, or between applying proportionality less stringently and merely accepting the solution of the public authority as satisfying the test of proportionality. In a similar manner, as the wording of the test of pro­portionality can be modified, so it can be hard to delineate between applying a test of proportionality less stringently and applying a test other than proportionality. A requirement that a restriction ‘strike a fair balance' between the rights of individuals and the interest of the community may be little different from requiring public authorities to be reasonable when weighing up these competing interests.

The difficulty of dealing with matters of degree may also explain potential con­fusion between the necessity and proportionality components of the four stage proportionality test post Huang. In Quila and Bibi, Lord Wilson distinguished between the necessity and the proportionality component of the test: the former concerned an assessment of whether the measures in question would have an effect on reducing forced marriages,^[588] and the latter an assessment of whether the measure had a detrimental impact on unforced marriages.^[589] However, it is hard to know which evidence is relied upon by Lord Wilson to explain the lack of necessity and which is used to determine the lack of a fair balance between the two interests. The two seem to merge into one another as he assesses the evidence provided by different interest groups to the Home Secretary in order to assess whether there was enough evidence to conclude that the restriction on the right to marry was proportionate. In a similar manner, Lady Hale delineates between questions apper­taining to the impact of the policy on unforced marriages,^[590] whether the policy really does help those in forced marriages,⁶³ and whether the policy does more harm than good.⁶⁴ Again, however, when assessing the evidence, the same evidence appears to provide support for finding a lack of necessity and a finding that the balance was disproportionate. If the two are matters of degree, this may explain why the same evidence is used for both aspects of the test and why it can be difficult to clearly delineate between the two stages of the test.

3. Conceptual issues

It may be that difficulties apparent in human rights adjudication are merely caused by these practical issues. As such, it is arguable that there is a tension between normative and non-normative theories of accountability. The culture of justifica­tion advocates principles of proportionality and deference in order to enhance accountability. However, due to issues arising when transcribing these theoretical ideals into practical legal tests, and due to problems arising from both proportion­ality and deference being understood as a matter of degree, it may well be that accountability is not enhanced. The lack of clarity may make it difficult to hold public authorities to account for their actions. In addition, public authorities may find it hard to ensure that their actions comply with human rights standards. The varying standards of proportionality and deference may provide public authori­ties with an incentive to focus on legal arguments that apply a weaker standard of review to their actions as opposed to arguments that explain how their actions are not contrary to human rights. However, this section will argue that there is a deeper conceptual issue that arises from an analysis of criticisms of proportionality and deference. The most challenging criticisms of these principles stems from aca­demics who adopt alternative theories of human rights adjudication, particularly concerning whether the judiciary is the primary or the secondary decision-maker of human rights issues. This question is not fully answered by advocates of the theory of the culture of justification. This not only calls into question the validity of this theory of human rights adjudication, but also questions normative theories of adjudication. Can a decision of a public authority be justified merely because it is held to account for its actions, or does the justification depend upon the principles applied by the body holding the public authority to account? In other words, can ‘accountability’ be an end in itself, or is it merely a means through which to ensure other ends are achieved?

The strongest academic criticism of the principle of deference is found in the work of Trevor Allan. It was argued above that the difference between deference as respect and deference as submission is a matter of degree and, therefore, this may explain the danger of applications of deference as respect sliding into applications of deference as submission. Allan takes this argument further, arguing that deference as respect inevitably collapses into deference as submission.^[591] Any exercise of deference, even deference as respect, involves the courts reneging on their constitutional duty. He also argues that any application of deference amounts to double counting. The role of the court is to define human rights and to correct decisions of public authorities that fail to comply with human rights as defined by the courts. Any relevant ‘margin of appreciation’ to be granted to public authorities depends upon the definition of the right in question and will be accorded when properly defining the right. To then defer to public authorities after defining the right amounts to double counting. The same criteria used to define the right are then used again to defer to the public authority.^[592]

Allan’s criticism is based upon his understanding of the court as the primary decision-maker for human rights issues. If Allan were analysing the facts in Sinclair Collis, for example, he would argue that there is no need for the court to ‘defer’ because the right to the free movement of goods would recognize the need to accommodate a range of possible proportionate restrictions when applied to issues of public health and public policy, recognizing that the right could be restricted to a greater extent in the face of public health issues. To defer further would be to accord too much deference to the executive; effectively deferring twice over as the court would have already taken factors influencing deference into account when determining the content of the right to the free movement of goods. Deference does not give rise to double counting, nor does deference as respect collapse into deference as submission, if we regard the courts as the secondary decision-maker. The job of the court is not to define human rights. Rather, it is to set the boundaries of lawful restrictions that can be placed by public authorities on human rights. When ascertaining these boundaries, the courts first define rights broadly, using proportionality and deference to determine the range of lawful decisions that can be taken by public authorities. In Sinclair Collis, the courts would first recognize that the restriction on tobacco vending machines would restrict the free move­ment of goods, when broadly defined. In order to analyse whether this restriction is justified, the court will apply proportionality, using deference to determine the stringency with which proportionality is analysed. There is no double counting because the role of the court is different and, in turn, the precision with which the right is first defined is different.^[593]

An understanding of the different roles of the judiciary, as either a primary or a secondary decision-maker, may also explain distinctions between conceptions of pro­portionality and the relationship between proportionality and deference. Julian Rivers distinguishes two conceptions of proportionality—optimizing and state-limiting. Optimising conceptions of proportionality are more relevant to theories of human rights adjudication that regard the court as the primary decision-maker. Here, proportionality is used as a means of defining a human right. State-limiting conceptions of proportionality are more relevant to theories of human rights adjudi­cation that regard the court as the secondary decision-maker. Here, proportionality is used to define the limits of legitimate actions of public authorities when restricting a human right.^[594] Deference appears inappropriate when courts are regarded as primary decision-makers. However, this does not mean that courts do not defer. Courts can grant a margin of appreciation to public authorities when defining human rights. Such a test regards the principle of proportionality as a means of determining the defi­nition of a Convention right. When adopting a theory that focuses on the role of the court as a secondary decision-maker, then deference can apply in this model without contradiction of the constitutional role of the court.

Problems arise as the culture of justification could be interpreted in a manner com­patible both with the ideology of the judiciary as the primary and as the secondary decision-maker in human rights decisions. When the judiciary acts as the primary decision-maker, it may appear as if the role of the judiciary is more compatible with the ideology of a culture of neutrality. The judiciary holds governmental institutions to account by defining rights according to liberal principles and ensuring that public bodies comply with these rights. However, it may be compatible with a culture of justification if courts define rights in such a manner as to include a broad discre­tionary area of judgement, essentially deferring to public authorities, but through modifying an optimizing conception of proportionality and applying a weaker standard of accountability. The culture of justification may also be exemplified in a system where the courts act as secondary decision-makers. Here, the judiciary is not applying a culture of neutrality as it acts to check the actions of public authorities. Its check also ensures that the judiciary is not merely upholding a culture of reflection. However, applying a test of state-limiting proportionality and using deference to modify the stringency with which proportionality is applied causes difficulties for the culture of justification. The test of proportionality may be transformed into a weaker test of reasonableness and the multiplicity of factors determining the degree of deference may provide an incentive for both the judici­ary and public authorities to focus on deference as opposed to human rights. To resolve these problems, the theory of accountability required by the culture of justification needs to be bolstered by an account of whether the judiciary should be the primary or secondary decision-maker.

Another way of resolving these difficulties would be to require the culture of justification to include a theory of the nature of human rights. A theory of human rights that regards rights as being clearly delineated is more suited to an optimizing conception of proportionality, where the judiciary plays the primary role in deter­mining human rights issues. A theory of human rights that regards rights as essentially contestable, capable of more definite definitions only in specific situations where there is a need to determine how far a right can be restricted by another right or interest, is more suited to a state-limiting conception of proportionality where the judiciary is recognized as a secondary decision-maker. These difficulties hint at a deeper problem with normative theories of accountability that view accountability as an end as opposed to a means to an end. To equate a decision or action of a public authority as normatively justifiable merely because a public authority can be held to account for its actions provides only a weak justification, especially when notions of accountability are fluid and can be applied to a greater or lesser degree.^[595]

E.