Proportionality in English Administrative Law: Resistance and Strategy in Relational Dynamics

2021 ◽  
Vol 14 (1) ◽  
pp. 65-93
Author(s):  
Sophie Boyron ◽  
Yseult Marique
Keyword(s):  
Human Rights ◽  
Administrative Law ◽  
Contextual Analysis ◽  
European Convention ◽  
European Law ◽  
Relational Dynamics ◽  
Judicial Control ◽  
Administrative Action ◽  
The World ◽  
Proportionality Test

Proportionality is at the centre of heated debates in English administrative law. It has been adopted for matters pertaining to European law and the European Convention on Human Rights, but its use in other areas parts of English administrative law is highly contentious. While some arguments in favour or against applying proportionality in England are similar to those exchanged in relation to other legal systems (such as tensions between increased objectivity in judicial control over administrative action vs. the desirability of more limited control), other arguments are more specific to English administrative law. To understand the challenges encountered by proportionality in English administrative law, this paper adopts a contextual analysis, putting the emphasis on the relational dynamics framing the interactions between the main actors involved in the proportionality test. Paradoxically, this perspective rehabilitates the analysis of the legal techniques behind transplants such as proportionality: indeed, transplants are vehicles for legal changes in ways that go beyond the circulation of ideas across the world. Instead of being merely superficial and rhetorical, transplants engage deeply with the whole gamut of institutions and actors in a legal system, calling on them to rearticulate their implied and explicit relationships.

The Common Core of European Administrative Laws and the Pan-European General Principles of Good Administration

2021 ◽  
pp. 21-34
Author(s):  
Ulrich Stelkens
Keyword(s):  
Human Rights ◽  
Public Administration ◽  
Common Core ◽  
Methodological Approach ◽  
Administrative Law ◽  
European Convention ◽  
Council Of Europe ◽  
Institute Of Public Administration ◽  
German Research ◽  
The Common

This chapter examines a research project carried out at the German Research Institute of Public Administration and the German University of Administrative Sciences Speyer. This 'Speyer project' studies the development, content, and effectiveness of the written and unwritten standards of good administration drawn up within the framework of the Council of Europe (CoE), i.e. on the basis of its Statute (SCoE) and the European Convention on Human Rights (ECHR), which is a sort of 'second pillar' of the CoE. These CoE standards are called 'pan-European principles of good administration'. This 'Speyer project' can be understood as a counterpart to the project carried out by Giacinto della Cananea and Mauro Bussani on the Common Core of European Administrative Law (CoCEAL) as it has a similar objective: to ascertain whether, despite many differences between European systems of administrative law, there are some connecting elements, or a 'common core', and, if so, whether such 'connecting elements' can be formulated in legal terms rather than as generic idealities. However, the methodological approach of the 'Speyer project' clearly differs from the 'factual approach' adopted in CoCEAL.

The Impact of the Pan-European General Principles of Good Administration on Swiss Law

2020 ◽  
pp. 353-374
Author(s):  
Nadja Braun Binder ◽  
Ardita Driza Maurer
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Council Of Europe ◽  
European Court ◽  
Swiss Law ◽  
Written Law ◽  
The Impact

This chapter is dedicated to exploring the impact on Swiss administrative law of the pan-European general principles of good administration developed within the framework of the Council of Europe (CoE). The chapter claims that the standards stemming from the European Convention on Human Rights and the case law of the European Court of Human Rights have been adopted in an exemplary way by Swiss authorities. The influence was especially strong in the 1980s and 1990s. The same cannot be said regarding other documents of the CoE, whose impact remains disparate because many aspects of the pan-European general principles of good administration were already part of the national written law. The chapter concludes that despite the exemplary integration of CoE instruments heated debates on the content of these instruments are not excluded from Switzerland.

Fundamental notions

2020 ◽  
pp. 26-53
Author(s):  
Raphaël Gellert
Keyword(s):  
Risk Management ◽  
Human Rights ◽  
Data Protection ◽  
European Convention ◽  
Comprehensive Overview ◽  
Iso Standards ◽  
Depth Analysis ◽  
Proportionality Test ◽  
Proportionality Principle

The goal of this chapter is twofold. First, it provides a comprehensive overview of two key notions: risk and regulation. In the case of risk this includes the following. An explanation of risk and risk management, including an appraisal and description of the technical notion of risk as it appears in ISO Standards. It also provides for a discussion of some of the key methods for assessing and managing risks, including some of the main drawbacks and criticisms that have been raised against the use of risk management. In the case of regulation, it includes a more in-depth analysis of the notion, and of its constitutive elements; a discussion on the conflation between law and regulation; and a discussion on what exactly the object of regulation is. These discussions of key caveats pertaining to these two notions serve as the backbone of many of the analyses carried out in later chapters (e.g. understanding data protection in the light of the constitutive elements of regulation, discussing various methods for data protection risk management, etc). Second, beyond these caveats, this chapter also shows and contrasts how both risk and regulation can be analysed as a matter of two balancing exercises with associated safeguards, and hence, as variations around the proportionality principle. A grid at the end of the chapter summarises this, with reference to the European Convention on Human Rights proportionality test.

11. Giving Reasons for Decisions

2016 ◽  
Author(s):  
Mark Elliott ◽  
Jason Varuhas
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Procedural Fairness ◽  
Administrative Law ◽  
European Convention ◽  
Freedom Of Information ◽  
Freedom Of Information Act ◽  
Reasons For Decisions

This chapter examines the content and scope of the duty to give reasons, suggesting that giving reasons for decisions should be treated as a central facet of procedural fairness in administrative law. It first differentiates the duty to give reasons from the duty to give notice, the possibility of inferring unreasonableness from an absence of reasons, the proportionality doctrine, and the duty of candour. It then considers why reasons are required and goes on to discuss the duty to give reasons at common law. It also describes statutory duties and other duties to give reasons, paying attention to the provisions of the Freedom of Information Act 2000 and Article 6 of the European Convention on Human Rights. Finally, it analyzes the question of whether a duty to give reasons has been discharged, and provides an overview of the remedial consequences of a breach of the duty to give reasons.

3. Human rights law

2021 ◽  
pp. 77-122
Author(s):  
Timothy Endicott
Keyword(s):  
Human Rights ◽  
Administrative Law ◽  
European Convention ◽  
Human Rights Law ◽  
International Court ◽  
Human Rights Act ◽  
Human Rights Act 1998

The European Convention on Human Rights not only guaranteed certain rights, but also created an international Court. The Human Rights Act gives English judges dramatic but limited techniques for vindicating the Convention rights. This chapter explains what the judges in Strasbourg and in England have done with the techniques for control of administration that result from the Convention and the Human Rights Act. The chapter addresses the content and the structure of the Convention rights, the ways in which those rights are protected in English administrative law, particularly through the Human Rights Act 1998, and the tests of proportionality required by the Convention.

Online Resources Chapter D: Industrial Action and Statutory Immunities

2020 ◽  
pp. 846-846
Author(s):  
David Cabrelli
Keyword(s):  
Human Rights ◽  
Trade Union ◽  
European Convention ◽  
Online Resources ◽  
European Law ◽  
Trade Disputes ◽  
Industrial Action ◽  
The Law ◽  
The Uk

This chapter examines the law of trade disputes and industrial action in the UK, i.e. the law which regulates action taken by members of a trade union which imposes restrictions upon employers when collective relations between the employer and the workforce have broken down. The position is analysed in the context of the legality of industrial action in European law and under the European Convention on Human Rights....

7. Europe

2017 ◽  
Author(s):  
Rhona K. M. Smith
Keyword(s):  
European Union ◽  
Human Rights ◽  
European Convention ◽  
The European Union ◽  
Council Of Europe ◽  
Regional Organizations ◽  
The World ◽  
Relevant Work

This chapter examines the regional organizations with jurisdiction over human rights in Europe, focusing on the Council of Europe, and describes relevant work of the European Union and the Organization for Security and Cooperation in Europe. It highlights the success of the Council of Europe in developing a system which ensures the protection of basic human rights through a judicial mechanism, and concludes that the European Convention on Human Rights has matured into the most sophisticated and effective human rights treaty in the world.

3. Human rights law

2018 ◽  
Author(s):  
Timothy Endicott
Keyword(s):  
Human Rights ◽  
Administrative Law ◽  
European Convention ◽  
Human Rights Law ◽  
International Court ◽  
Human Rights Act ◽  
Human Rights Act 1998

The European Convention on Human Rights not only guaranteed certain rights, but also created an international Court. The Human Rights Act gives English judges dramatic but limited techniques for vindicating the Convention rights. This chapter explains what the judges in Strasbourg and in England have done with the techniques for control of administration that result from the Convention and the Human Rights Act. The chapter addresses the content and the structure of the Convention rights, the ways in which those rights are protected in English administrative law, particularly through the Human Rights Act 1998, and the tests of proportionality required by the Convention.

scholarly journals Necessary Intrusion or Criminalising the Innocent? An Exploration of Modern Criminal Vetting

2012 ◽  
Vol 76 (2) ◽  
pp. 140-163 ◽  
Author(s):  
Chris Baldwin
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Soft Materials ◽  
European Convention ◽  
Judicial Interpretation ◽  
West Midlands ◽  
Subsequent Application ◽  
Legislative Framework ◽  
Home Department ◽  
Proportionality Test

This article considers the processes of criminal vetting and outlines the legislative framework allowing such disclosures and subsequent judicial interpretation of that framework. The focus is on disclosure of non-conviction (so-called ‘soft’) materials on ‘enhanced’ certificates and subsequent challenges to those disclosures at judicial review. Key cases are analysed, including R (on the application of X) v Chief Constable of West Midlands Police (2004) and R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent) (2009). The proportionality test in R (L) is noted and its subsequent application in the recent decisions of R (on the application of C) v Chief Constable of Greater Manchester; Secretary of State for the Home Department (2011) and R (on the application of B) v Chief Constable of Derbyshire Constabulary (2011) is scrutinised. The article also highlights interference in Article 8 of the European Convention on Human Rights (right to privacy) and questions whether interference can be justified, and whether the present judicial focus on right of representations in such cases is misplaced.

Notstandskontrolle

2019 ◽  
Author(s):  
Felix Weber
Keyword(s):  
Human Rights ◽  
Case Law ◽  
The State ◽  
European Convention ◽  
Level System ◽  
State Of Emergency ◽  
Sovereign State ◽  
Judicial Control ◽  
States Of Emergency ◽  
Multi Level

Between 2015 and 2017, France, Turkey and Ukraine, as member states of the European Convention on Human Rights, declared a state of emergency according to Art. 15 ECHR. The events associated with the suspension of Convention rights show the current significance of the legal standardisation of political and social states of emergency. In the end it is all about the question of who ultimately controls the state of emergency: the sovereign state, the state community with a supranational judicial control, or both in terms of a horizontal overlapping of powers in the European multi-level system? Art. 15 ECHR still leaves unanswered questions to which the Strasbourg organs have responded over the years with a differentiated jurisprudence and with the granting of a certain margin of discretion. The book deals with these issues in the light of ECtHR case law and case studies on France, Turkey and Ukraine.

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