‘The rise of the judicial use of proportionality has given too much power to judges’. Discuss with reference to relevant cases.


  • Where people argue that the proportionality test hands too much power to the judiciary in relation to government policies, rather, it hands a schematic tool to the judiciary to ensure that law remains democratic in the broader meaning of the term.
  • How the proportionality test is applied has been significantly nuanced and developed according to context.

Comments

Post a Comment

Popular posts from this blog

3. ‘The defence of ‘Honest Opinion’ under s.3 of The Defamation Act 2013 is not robust enough to protect free speech and rights under Article 10 of the European Convention on Human Rights.’ Discuss.

Introduction: There is a narrow line between freedom of expression and the right of one’s reputation. To make this line more clear, the Defamation Act 2013 was created. One of the defences was one of ‘Honest Opinion’ which provided that a statement of opinion, based on facts, was one that could be held by an honest person. The connection to the European Convention of Human Rights (ECHR) was that Article 10 provides the right to freedom of expression and information, and the UK courts were then given the task of finding the balance between the two in relation to defamation cases. Although the Defamation Act 2013 has been found to encourage freedom of expression, it does not protect free speech and rights to the same extent that the ECHR does. P1: The aim of the Defamation Act is to provide better protection for free speech. The main legal case that underlies the honest opinion defence in this Act was Joseph v Spiller [2010]. The defendants, a management agency, had publis...
Read more

Summarise and discuss Lord Bingham’s eight ‘sub-rules’ of the Rule of Law.

Lord Bingham based his view about the rule of law on three key assumptions: Everyone should be equally bound by and entitled to the benefit of the law. Laws must be publicly and prospectively published. Laws should be publicly administered in the courts. The law must be accessible, intelligible, clear and predictable. Bingham’s rule of law suggests that it cannot exist without democracy. The rule of law is a kind of implicit contract between the state and the individual.
Read more

R. (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, (2002)

Facts: The first claimant was a British national who had been captured by the United States forces in Afghanistan and detained in Guantanamo Bay as an 'enemy combatant' He was deprived of access to court proceedings and legal advice, and applied for judicial review in the UK seeking to compel the Secretary of State for Foreign and Commonwealth Affairs either to intervene with the US government or alternatively to explain the omission to do so Issue: Whether the court had jurisdiction to review the decision by the Secretary of State not to intervene Whether the UK government had any duty to protect the claimant as one of its citizens Held: The Court could review the decisions on grounds of rationality and legitimate expectation The Court held that there was no legal duty on the state to protect its citizens in such circumstances
Read more