Proportionality and Deference under the UK Human Rights Act : an Institutionally Sensitive Approach.

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Cover; PROPORTIONALITY AND DEFERENCE UNDER THE UK HUMAN RIGHTS ACT; Title; Copyright; Dedication; CONTENTS; ACKNOWLEDGEMENTS; TABLE OF CASES; TABLE OF STATUTES; 1 Proportionality, deference and institutional sensitivity; 1.1 Rights-based judicial review; 1.2 Proportionality -- A judicial tool for navigating rights; 1.2.1 Proportionality as an independent standard; 1.2.2 Proportionality as a secondary question; 1.2.3 A process-based approach; 1.3 Proportionality-based judicial review of the different forms of government action; 1.4 The problem of uncertainty and the need for deference.

1.4.1 Epistemic uncertainty1.4.2 Early spatial approaches; 1.5 Accounting for deference; 1.5.1 Due deference; 1.5.2 Non-doctrinalists; 1.6 Integrating deference within proportionality; 1.7 A framework for separation-of-powers arguments; 1.8 Building an institutionally sensitive approach; 2 An integrated account of proportionality and deference; 2.1 The inputs of proportionality; 2.1.1 Human rights norms; 2.1.2 Public interest norms; 2.1.3 Derivative norms; 2.2 The four stages of the proportionality test; 2.3 The process of proportionality; 2.3.1 Rational connection; 2.3.2 Minimal impairment.

2.3.3 Overall balancing2.3.4 A flexible process that produces human rights rules; 2.4 Integrating three categories of deference; 2.4.1 Structural deference; 2.4.2 Uncertainty and deference; 2.4.3 Empirical deference; 2.4.4 Normative deference; 2.4.5 The level of deference; 2.5 Conclusion; 3 An institutionally sensitive approach; 3.1 Forms of government activity; 3.2 Institutional factors that affect proportionality and deference; 3.2.1 Choice of objectives; 3.2.2 Range of options; 3.2.3 Scope of the decision: individual vs. general; 3.3 Multi-level decision-making.

3.4 Institutional sensitivity and the reasons for deference3.4.1 Democratic legitimacy; 3.4.2 Institutional competence; 3.4.3 Sections 3 and 4 of the HRA and Parliament; 3.5 Conclusion; 4 Proportionality and deference in judicial review of administrative decisions: immigration; 4.1 Inputs of the proportionality test; 4.1.1 Human rights principles; Prevention of permanent separation of family members; Best interests of children; Prevention of temporary separation of family members; No principle of a choice of place of residence; Making relationships beyond the family.

The protection of mental healthFreedom of expression; 4.1.2 Public interest principles; Control of immigration; The prevention of queue-jumping; Prevention of crime -- deportation of convicted offenders; Prevention of disorder; National Security; Public interest in allowing a person to remain in the UK; 4.1.3 Rational connection; 4.2 Minimal impairment; 4.3 Overall balancing; 4.3.1 Overall balancing and empirical deference; 4.3.2 Overall balancing and normative deference; 4.3.3 Overall balancing and delay; 4.4 Conclusion.

5 Proportionality and deference in judicial review of legislation: criminal justice.

A rigorous analysis of the relationship between proportionality and deference under the Human Rights Act.

Includes bibliographical references and index.

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