The Presumption of Proportionality

Bibliographic Data

ID9196138
AuthorsJulian Rivers (University of Bristol, corresponding author)
Year2014
Volume77
Issue3
Pages409-433
Publication date2014-05-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueModern Law Review (JOURNAL)
Journal identifiersISSN: 0026-7961 • E-ISSN: 1468-2230
PublisherWiley (PUBLISHER • GB)
DOI10.1111/1468-2230.12072
OpenAlexW2112459090
LanguageEN
Citations received5
References cited20

This article challenges the assumption that the burden of demonstrating that a limitation of a fundamental right is proportionate rests on the public authority seeking to justify the limitation. After considering the operation of burdens and presumptions in European human rights case‐law it notes the difficulties British domestic courts have had in rigorously applying proportionality tests. It suggests that the concerns which lead judges to weaken the requirement of proportionality would be better met by recognising that certain circumstances give rise to a presumption of proportionality, where the burden of demonstrating disproportionality rests on the right‐holder. Five categories of case in which this applies are proposed, and one which has recently been judicially accepted is rejected. Clarifying the types of case in which a presumption of proportionality applies is a preferable strategy to blurring the standards of justification to be met by those seeking to limit the enjoyment of rights. 1

Burden of proof · Economics · Human rights · Law and economics · Political science · Presumption · Presumption of innocence · Proportionality (law) · European and International Law Studies · Judicial and Constitutional Studies · Law · Ombudsman and Human Rights

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