The Presumption of Proportionality

Research output: Contribution to journalArticle (Academic Journal)peer-review

17 Citations (Scopus)

Abstract

This article challenges the assumption that the burden of demonstrating that a limitation of a fundamental right is proportionate rests on the public authority seeking to justify the limitation. After considering the operation of burdens and presumptions in European human rights case‐law it notes the difficulties British domestic courts have had in rigorously applying proportionality tests. It suggests that the concerns which lead judges to weaken the requirement of proportionality would be better met by recognising that certain circumstances give rise to a presumption of proportionality, where the burden of demonstrating disproportionality rests on the right‐holder. Five categories of case in which this applies are proposed, and one which has recently been judicially accepted is rejected. Clarifying the types of case in which a presumption of proportionality applies is a preferable strategy to blurring the standards of justification to be met by those seeking to limit the enjoyment of rights.1
Original languageEnglish
Pages (from-to)409-433
Number of pages25
JournalModern Law Review
Volume77
Issue number3
DOIs
Publication statusPublished - 1 May 2014

Fingerprint Dive into the research topics of 'The Presumption of Proportionality'. Together they form a unique fingerprint.

Cite this