[2025] EWHC 2751 (Admin)

Fecha: 24-Oct-2025

Proportionality in domestic law – general principles

Proportionality in domestic law – general principles

128.

A1P1 is a qualified, not an absolute right. The tests to be applied under our domestic law were identified by Lord Reed in Bank Mellat v HM Treasury (No.2) [2013] UKSC 39; [2014] AC 700 at [74]:

“(1)
whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
(2)
whether the measure is rationally connected to the objective,
(3)
whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
(4)
whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”

Further on in [74] he said:

“In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”

Lord Sumption pointed out that in practice the four tests inevitably overlap because the same facts are likely to be relevant to more than one of them [20].

129.

At [70] of Bank Mellat (No. 2) Lord Reed pointed out that the ECtHR’s approach to the striking of the fair balance between the general interest of the community and the protection of an individual’s fundamental rights has been described differently in different contexts. In A1P1 cases the court often asks whether the individual is being asked to bear an “individual and excessive burden”, referring to James at [50]. The intensity of review varies considerably according to the right in issue and the context in which it arises.

130.

Although the concept of a margin of appreciation is specific to the ECtHR as an international court reviewing the decision-making of national institutions, domestic courts have applied an analogous approach. The margin appropriate for a given set of circumstances is taken into account when applying the four Bank Mellat tests (Adriatic Land 5 Limited v Long Leaseholders at Hippersley Point [2025] EWCA Civ 856 at [104]-[114]). One reason for this is the need for domestic courts to respect the separation of powers between the judiciary and the elected branches of government. “They therefore have to accord appropriate respect to the choices made in the field of social and economic policy by the Government and Parliament …” (Lord Reed PSC in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223 at [143]-[144]) (a Supreme Court decision concerned with an ECHR challenge to the “two child” limit on child tax credit).

131.

The “ordinary approach” to proportionality gives appropriate weight to the judgment of the primary decision-maker. That weight will normally be substantial in fields such as economic and social policy, national security, penal policy and matters raising sensitive moral or ethical issues. This will involve giving “the same margin as the ‘manifestly without reasonable foundation’ formulation in circumstances where a particularly wide margin is appropriate”. “The courts should generally be very slow to intervene in areas of social and economic policy such as housing and social security” (SC at [159]-[161]).

132.

In SC Lord Reed considered the materials which may be used when considering whether primary legislation is compatible with the ECHR, having regard to Article 9 of the Bill of Rights 1688 ([163] et seq). Parliamentary privilege is also based on the separation of powers between the courts and Parliament, requiring each to abstain from interference with “the functions” of the other and “to treat each other’s proceedings and decisions with respect”. It is no part of the function of the courts to supervise the internal procedures of Parliament [165].

133.

We would re-emphasise the importance of Article 9 and the principle of the separation of powers. Until the Speaker helpfully intervened in this case, parties were using materials in ways which did not respect Parliamentary privilege. Since then, with one exception relating to the attempt by the Portal Trust to rely upon a passage from Parliamentary debates on the Leasehold Reform (Ground Rent) Act 2022, those issues have essentially been resolved.

134.

In Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30; [2025] 3 WLR 346 the Supreme Court largely reaffirmed a number of key principles:

(1)

The question whether legislation is incompatible with a Convention right is a question of substance for the court itself to decide. The court’s function is not merely a secondary reviewing role. It is not the conventional public law one of reviewing the process by which a public authority reached its decision and considering whether it acted irrationally or committed some other public law error. The court’s task is to assess proportionality for itself [120];

(2)

At [121] Lord Sales and Lady Rose stated:

“However, in a challenge based on Convention rights under the HRA to action by a public authority, it is not accurate to say that the court becomes the primary decision-maker in the full sense of that term: see R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 (“Daly”), paras 26-28; Huang, para.13 (“although the Convention calls for a more exacting standard of review, it remains the case that the judge is not the primary decision-maker”); Bank Mellat, para.21 (Lord Sumption) and paras 70-71 (Lord Reed: “[t]he intensity of review varies considerably according to the right in issue and the context in which the question arises”); R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60;[2015] AC 945 (“Lord Carlile”), paras 20, 22, 31 and 34 (Lord Sumption: “no review, however intense, can entitle the court to substitute its own decision for that of the constitutional decision-maker”; “a court of review does not usurp the function of the decision-maker, even when Convention rights are engaged”). The court’s role is to assess the lawfulness of the authority’s action against the substantive legal criteria which are inherent in the Convention rights, including the criterion of proportionality. The public authority decides on the action it will take, and hence is the primary decision-maker; but the court makes its own assessment whether such action is proportionate, and hence lawful, or not.”

(3)

At [122] they stated:

“… the question whether a measure is proportionate or not involves a more searching investigation than application of the rationality test. Thus, in relation to the test of proportionality stricto sensu, even if the relevant decision-maker has had regard to all relevant factors and has reached a decision which cannot be said to be irrational, it remains open to the court to conclude that the measure in question fails to strike a fair balance and is disproportionate.”

(4)

Accordingly at [123]:

“… in the context of the proportionality assessment to be carried out by the court, there is room for appropriate respect and weight to be given to the views of the executive or the legislature as to how the balance between the interests of the individual and of the general community should be struck, depending on the nature of those respective interests.”

and at [124]:

“… the context relevant to determining the measure of respect to the balance of rights and interests struck by a public authority will include the importance of the right, the degree of interference and the extent to which the courts are more or less well placed to adjudicate, on grounds of relative institutional expertise and democratic accountability”

(5)

The appropriate margin of appreciation applies to all four of the Bank Mellat tests [130];

(6)

The legislative judgment on which a provision was based was necessarily something fixed in the past. But even so, a genuine up-to-date account of the public interest in favour of such a provision by relevant public authorities with superior democratic and institutional expertise would carry weight in the court’s assessment of the proportionality of the measure. Such an account might constitute reasons why the Government considered the law satisfactory and defensible, so that in their judgment it was not necessary to seek amendment of it. Although it would not carry the force of a positive democratic judgment by Parliament itself when enacting primary legislation, it would still be a judgment of persons who are accountable to the legislature and to the public for promoting the public interest. The proportionality of a measure, including legislation is to be assessed by reference to the circumstances prevailing when the issue of its compatibility with Convention rights has to be decided rather than when it was promulgated [135] and [140]. For this reason, we do not accept the claimants’ submission that these principles on the use of post-legislative justification are only relevant to secondary and not primary legislation, but our conclusions on proportionality do not depend on such justification.