Defending Due Deference: Probing Procedural Propriety in Proportionality*

Two problems plague the proportionality test under the Human Rights Act 1998. The first is the tension between substantive and process review. Another is potential judicial fallibility. This article aims to pull these seemingly unrelated issues together to provide the court with some useful guidance on calibrating a suitable intensity of review in the application of proportionality test and interpretation of the Human Rights Act. When the court is uncertain about the cogency of the substance of the case, judges are required to examine the second-order reasoning to determine the level of deference, if any, to be accorded to the government. The author argues that adoption of a thorough and conscientious legislative or policy-making procedure can increase the democratic and institutional legitimacy of the parliament or administration under the second order reasoning. In this premise, the author proposes a comprehensive process-oriented review whereby procedural evidence leading up to the consultation documents, select committee reports and Hansard should be admissible to prove the propriety of the decision-making process. The higher quality the procedure is, the more persuasive the second-order reasoning is. Courts should thus ascribe more weight to these types of evidence to strengthen the substantive merits of the case in applying the proportionality review under the Human Rights Act.