Who decides how to balance individual rights with the public interest?

This question has consistently proven to be one of the most important and difficult in respect of the “public interest”, as it concerns the relationship between the different branches of the State (the legislative, executive, and judicial powers). In broad terms, it is to be expected that the courts will be active in determining whether the correct balance has been struck, as courts are the guardians of rights and the scope for protecting rights often ends in the courtroom. That said, the question for the courts will sometimes be whether the democratically elected Westminster Parliament has struck the appropriate balance or, alternatively, whether a Minister who is accountable to Parliament has made a justified and balanced choice. In the event that the courts look too closely at how the balance has been struck, they may be perceived to be usurping the role of the other branches of the State and, in doing, to be acting improperly.

There are two key points to be noted about case law that has addressed this question within the framework of the Human Rights Act 1998. The first is that the courts have often emphasised that will be appropriate for them to exercise restraint when choices have been made in the “public interest”. The point had been made even before the Human Rights Act 1998 came into force in October 2000, and it accepts that other decision-makers – whether legislative, executive, or administrative – will sometimes have a better appreciation of what the public interest requires in a particular circumstance. While this does not mean that the courts will abdicate their role in checking that measures comport with the legality and proportionality principles, it does mean that they will observe what is sometimes called the “discretionary area of judgment” of the decision-maker. The UK courts can in this way avoid allegations of undue interventionism, an approach that corresponds with the European Court of Human Rights use of the “margin of appreciation” doctrine. For an example of the discretionary area of judgment being observed see R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15  (legislation that imposed limits on political broadcasting justified)

The second point is that, in assessing whether to exercise restraint, the courts will always have close regard for the context to a dispute about “public interest”. This is an out-working of the idiom that “in law, context is everything” and it means that the courts will enquire into the nature of the right that is affected by a public interest choice and into the nature of the decision-maker whose choice is under challenge. Hence, where an impugned choice is contained in an Act of the Westminster Parliament or that of one of the devolved legislatures, it might be expected that the courts will be more inclined to exercise restraint in the face of the measures of a democratically elected body. However, where the choice is that of an administrative decision-maker or, say, a Chief Constable of a police service, it might be expected that the courts would scrutinise more closely any choice as there is less scope to offend core democratic principles. More difficult is the type of decision that may be taken between these two positions, for instance by a government Minister: does the fact that the Minister is elected and answerable to either the Westminster Parliament or one of the devolved legislatures mean that restraint should follow automatically? (For discussion of the relevant principles see International Transport Roth GmbH v Home Secretary [2002] EWCA Civ 158.   

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