[2025] EWHC 2751 (Admin)

The third of the Bank Mellat tests requires the court to assess whether less intrusive measures could have been used without unacceptably compromising the achievement of the objectives of the legislation. In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32; [2023] AC 505 the Supreme Court held that even in relation to the particularly sensitive context of restrictions on political speech under Art.10 of the ECHR, the central question is not whether less restrictive measures could have been adopted, or whether the state can prove that its legitimate aim would not be achieved without its selected measure; rather it is whether in adopting its measure and striking the balance it did, the legislature acted within the margin of appreciation allowed to it [35(6)].

Similarly in James the ECtHR held at [51]:

“The availability of alternative solutions does not in itself render the leasehold reform legislation unjustified; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, having regard to the need to strike a 'fair balance'. Provided the legislature remained within these bounds, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in another way.”

In AXA at [130] Lord Reed applied that passage to an A1P1 challenge to a statutory scheme whereby insurers became liable to indemnify claims concerning asbestos-related diseases. He said that although the legislature could have opted to use public funds to provide such compensation, that did not render the decision to impose the burden on insurers disproportionate.