Chapter 6 Guidance on answering the exam questions

1. How does ‘proportionality’ affect the way Convention rights and freedoms are applied?

• In this answer you need to show that you understand the concept of “proportionality” and how it applies particularly to those rights whose application requires some “balancing” of individual and social interests. You should also consider how the test may be applied somewhat differently in the context of domestic law.
• Give some general definition of proportionality (the idea of fair balance).
• Consider how it operates in the context of the ECHR and the ECtHR. Firstly, by identify legal context (e.g. the qualified rights that involve a balancing of interests) – though you should make the point that the doctrine applies to all rights (seeking a fair balance pervades the Convention). Secondly, by giving examples of the legal issues that proportionality gives rise to (e.g. where some interference is based on a blanket ban, one which allows for no exceptions the ECtHR may find this is disproportionate).
• It is important to note, in the context of proportionality, the doctrine of “margin of appreciation” which deals with the circumstances in which the ECtHR will accepts the views and policies of the state on issues such as the need for an interference.
• You should continue by discussing the application of proportionality in the context of domestic law and the HRA. Bank Mellat v The Treasury (2) is probably the leading case and it is worthwhile considering it. Note the four-stage test and note, in particular how this is a more structured approach to adjudication than the ECtHR finds necessary.
• In conclusion you might consider areas of difficulty such as, first, the extent to which the availability of a less intrusive way of achieving the social purpose (item 3 in the Bank Mellat list) is an effective test and, secondly, whether the overall “fair balance” is appropriate as part of the proportionality test or whether the proportionality test without overall fair balance should be applied and then, if the interference is proportionate, this indicates that a fair balance has been achieved.

2. Able, taking part in a demonstration, has been arrested and detained by the police under a general power to ‘take necessary steps to prevent breaches of the peace’. She was released without charge but her personal details and the fact of her arrest are held on a police data base. The authority for the police to store and use this data (e.g. in the investigation of later crimes) is contained in an unpublished memorandum from the Home Secretary to the various forces which says that they can store the data and that they should take whatever measures they think appropriate to keep it safe.

Able has approached your law firm arguing that his rights under the Convention have been breached. You are required to produce a briefing paper on the single issue of whether, in Convention terms, the Police have acted lawfully.

• This question is primarily focused on the particular meaning and significance of “law” and “legality”.
• Note that Able has been released without charge; you are expressly not required to discuss the grounds of her original arrest.
• Begin your briefing paper by introducing the concept of law and exemplify the way it pervades the Convention. This applies in particular to the “qualified rights” which specifically require interferences to be properly lawful; but it applies to all the Articles.
• Note next that the storage and organisation (e.g. on a data base) is likely to involve an interference with Article 8 (give authority such as Marper v UK) for this.
• Given this, the issue is whether or not the interference is justified under the terms of Article 8(2). You might briefly introduce the ideas of legitimate purpose and “necessary in a democratic society” but, remember, the focus is on whether the interference is “in accordance with law” and the meaning of “law” under the Convention.
• First, note that any interference must be lawful in terms of the domestic law of the country as administered by the national courts. There is a question whether a memorandum counts as law. The ECtHR has taken a wide view of “law” and it is possible that, in the legal context, the courts of the UK would accept the memorandum as a legally binding document (or at least one the authorities should follow unless there is clear reason to the contrary).
• Secondly, however, the national law must be consistent with the “autonomous” Convention concept of law (you could discuss the idea of “autonomous” concepts).
• Following a case such as Sunday Times v UK this means, first, that the law (in this case the Memorandum, must be accessible. Since it is unpublished it is likely to fail this test – thus making the interference unlawful.
• Secondly, the law (in this case the Memorandum) must be “foreseeable” – sufficiently clear in the context to enable the claimant to understand at least in general terms, how the law may be applied to him or her. Again, in the context of data retention and privacy, the general permission given in the Memorandum is likely to fail this test.
• Thirdly, the law must be non-arbitrary. In the context of data retention (as in Marper) this puts the judicial focus on the adequacy of safeguards. Again, the indication is that the Memorandum contains little by way of safeguards. Note that making safeguards relevant to the issue of the legality of the interference rather than its proportionality has the effect of increasing independent judicial supervision; proportionality would enable states to assert a wider margin of appreciation on the issue.
• In conclusion, you are likely to conclude that the retention of Able’s data breaches her Article 8 rights and that the government needs to develop a legal regime which is available for scrutiny and which contains adequate safeguards.