The Case for Replicable Structured Full Proportionality Analysis in all Cases Concerning Fundamental Rights

Ramshaw, Adam (2019) The Case for Replicable Structured Full Proportionality Analysis in all Cases Concerning Fundamental Rights. Legal Studies, 39 (1). pp. 120-142. ISSN 0261-3875

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Abstract

Proportionality has been testing the judiciary for decades. However, a single replicable model of proportionality has not been consistently applied by the courts. This article explores the differential application of proportionality in English law. It is argued that these differential approaches create doctrinal confusion and give rise to numerous shortcomings. These shortcomings include 1) the a priori weighting of fundamental rights, 2) undue deference to State institutions and 3) variable judicial scrutiny dependent upon the source of the rights in question. It will be argued here that the courts ought to adopt a common standard of proportionality review in all proceedings concerning fundamental rights. The viability of this approach will then be tested against existing case law.

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