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The courts role is to assess for itself the proportionality of the

decision-makers decisionThe court will not require the


decision-maker to put itself through the hoops of a complex
series of questions. (Lord Mance, Belfast City Council v Miss
Behavin Limited (2007)).
Introduction
Courts have adopted the proportionality test in deciding whether
public authorities have acted unlawfully in relation to a Convention right
under Article 6 of the European Convention on Human Rights (ECHR). A
question arises as to whether public authorities must themselves carry out
a proportionality inquiry when making decisions which have implications
for rights. Two House of Lords decisions, Denbigh and Miss Behavin, seem
to have concluded the matter in holding that it is for the courts to decide
whether the decision is proportionate; the quality of the decision-making
process by the public authority in question appears to be largely
irrelevant.
Numerous criticisms have been levelled at these decisions as they
are seen as being solely outcome-based, instead of utilising a processbased review approach as a means of controlling public law decisionmakers. This essay argues that the courts approach to determining the
proportionality of the decision-makers decision is not solely outcomebased; certain dicta from Denbigh and Miss Behavin, read alone, would
indeed give rise to such an illusion. However, as contended by Kavanagh,
the courts have in fact only rejected a particular procedural approach.
Second, it is argued that the current approach adopted by the courts is
appropriate.
Courts current approach is not solely outcome-based
Critics, such as Mead, have argued that Denbigh and Miss Behavin
show that the courts are only focused on outcomes and neglect to review
the process by which the decision-makers come to a decision. Indeed, as
acknowledged by Kavanagh, if defective decision-making processes have
no bearing in the judicial assessment of proportionality, this would be
problematic for three main reasons. First, public authorities will have the
opportunity to advance ex post facto justifications for its decision, which
are difficult for claimants to predict. Second, claimants can only challenge
administrative decisions for breach of human rights on substantive
grounds alone; a problem arises as judges have a tendency to be more
deferential where issues of substance are involved. Third, it might appear
as if there is a judicial monopoly on the assessment of proportionality,
and only courts will need to reason in a rights-conscious manner.
However, it is submitted that the courts are not only fixated on
outcomes. The process by which decisions come to be made by decisionmakers is also a material consideration by the courts as to whether the

decision is proportionate or not. The two cases that have received the
most criticism in this regard will be examined below.

(1) Denbigh
In Denbigh, a Muslim school girl claimed that her schools uniform
policy, which prohibited her from wearing the jilbab, violated her right to
maniest her religion under Article 9 of the ECHR. The school, however,
allowed the wearing of an alternative kind of clothing for those who
subscribe to the Muslim faith, i.e. the shalwar kameeze.
At the Court of Appeal, it was held unanimously that the schools
uniform policy was in breach of Article 9 of the ECHR. The reason given for
this was that the school had failed to consider that the claimants right to
religion might be violated by virtue of the policy. In particular, Brooke LJ
advocated the six-stage approach as the correct reasoning process the
school should have undertaken in formulating the uniform policy.
The House of Lords overturned the decision mainly because the crux of
the issue, as Lord Bingham put it, is not whether a challenged decision is
the product of a defective decision-making process, but whether the
applicants Convention rights had actually been violated. Critics have
taken this to mean that the process by which the decision-maker arrived
at the decision is immaterial. This view is untenable on a closer analysis of
what has been said in the decisions.
Indeed, Lord Bingham went on to say that if a public authority
appeared to have conscientiously paid attention to all human rights
considerations, no doubt a challengers task will be the harder. Lord
Hoffmann echoed similar views. Thus, in assessing proportionality, the
quality of the decision-making process is certainly a factor considered by
the court, in deciding whether the decision was in fact proportionate.
Although the mere fact that the decision-maker had considered the impact
of its decisions on human rights does not necessarily mean that the
decision cannot be challenged as being disproportionate, it is clear that
this had a role to play in the courts proportionality analysis.
(2) Miss Behavin
In Miss Behavin, the claimant alleged that the Belfast City Council had
violated its right to freedom of expression under Article 10 of the ECHR,
because it had been refused a licence to open a sex shop in a certain
area.
The Northern Ireland Court of Appeal held that the Belfast City Council
had breached Article 10 of the ECHR, as it had failed to consider whether

the claimants rights under the ECHR might be violated. The House of
Lords overturned the decision, holding that the crux of the matter was
simply whether the decision had, in fact, infringed the claimants
Convention rights. If it did, then no display of human rights learning by the
Belfast City Council would have rendered the decision lawful.
Read on its own, it might appear as if the court had adopted a sole
outcome-based approach. However, it is important to note that the court
emphasised that whether the decision-making body had considered their
decision would violate human rights provisions was a relevant factor.
Courts current approach is appropriate
The courts current approach is to consider whether the decision in
question is actually proportionate or not. Although by no means
conclusive, whether the decision-maker has taken into consideration the
impact of its decision on human rights is a factor that plays a role in the
courts proportionality analysis. Under the present approach, the court
does not demand the decision-maker to jump through the hoops of a
complex series of questions. It is submitted that this approach is
appropriate for the following reasons.
First, the formalistic approach advocated by the lower courts in
Denbigh and Miss Behavin is impractical. For example, Brooke LJs sixstage test is too prescriptive; thus, even if the decision-maker has
carefully considered the Convention rights involved, it might still fall foul
of Brooke LJs specific requirements. In addition, it is also too legalistic,
and makes it difficult to apply for policy-makers.
Second, requiring decision-makers, such as head teachers or
governors, to use a legal approach towards policy-making is unreasonable.
These people are not expected to possess the legal knowledge required to
make a determination as to whether Convention rights have been
violated. It is therefore unreasonable to impose such a burden on them.
Mead argues that exempting public authorities from taking into
consideration the impact of their decisions on Convention rights has in
fact effected a shift towards court-based enforcement and judicial
protection, away from protection by those best placed to do so, i.e. bodies
on whom discretionary policy-making powers are conferred. However, this
contention ignores the reality of the situation that those who have the
power to make such decisions are not the best equipped in evaluating
whether their decisions are proportionate or not, and ultimately, it is the
courts constitutional role to safeguard the rights of the people.
Third, the claim that the decisions display a judicially exclusive
approach on questions of proportionality is unsound. Although it is true
that courts have the final judgment as to whether a decision is
proportionate or not, they do take into account whether the decisionmaker in question has conducted a balancing exercise. While the decision-

makers do not have to adhere to a formalistic approach, the fact that


courts make the final judgment on proportionality does not preclude the
decision-makers from conducting an inquiry of their own. Thus, the claim
that a juricentric approach has been adopted in relation to the HRA is
unsound.
Fourth, the claim advocated by Mead that these House of Lords
decisions have effectively removed any incentive for decision-makers to
reach a decision that is sensitive to Convention rights cannot be
sustained. While it is clear that the fact the decision-makers have
considered the impact of their decisions on Convention rights is
inconclusive, it is not true that the decision-makers therefore have no
incentive to make their decisions with regard to their impact on
Convention rights. As discussed above, it is abundantly clear that if the
decision-maker in question has conducted a balancing exercise of its own,
the courts would take this into consideration and be slow to find that the
decision in question is disproportionate. The decision-makers are therefore
more likely to conduct a balancing exercise of their own in relation to
Convention rights because this renders their decisions less likely to
impugned due to disproportionality.
Conclusion
This essay has argued that although dicta from Denbigh and Miss
Behavin seem to suggest that the courts are only focused on the outcome
of a decision instead of the process by which it is made, this is far from
the truth. The courts have in fact only rejected a particular procedural
approach, i.e. the requirement for decision-makers to put itself through
the hoops of a complex series of questions. The current approach is
appropriate and should not be misread and interpreted as not taking into
account the process by which the decisions are made at all.