PSED/ECHR Articles 6 & 14

February 21st, 2020

In R (Leighton) v Lord Chancellor (2020) EWHC 336 (Admin), Cavanagh J considered allegations including breaches of the PSED under Section 149 of the Equality Act 2020 and of Article 6 of the ECHR or Article 14 of the ECHR in conjunction with Article 6.

With respect to Article 6, Cavanagh J referred to the Supreme Court decision in Coventry v Lawrence (2015) 1 WLR 3845 (“Lawrence”), on proportionality, and, at paragraph 121 said that the “key guidance” that can be derived from Lawrence is as follows:-

“(1) The question whether the means is proportionate is to be decided by the court. In the domestic court, in contrast to the Strasbourg court, there is no margin of appreciation;

(2) However, the principle of proportionality does not entitle the courts simply to substitute their own assessment for that of the decision maker. The extent to which the domestic court will respect the judgment of the primary decision maker will depend on the context;

(3) It is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter;

(4) The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more. Something may be proportionate even if it is not fair for everyone. Put bluntly (and to use words that do not appear in Lawrence) there is no requirement, in order for something to be proportionate, that everything is for the best in the best of all possible worlds;

(5) The court, while being vigilant to protect fundamental rights, must give considerable weight to informed legislative choices, at least where state authorities are seeking to reconcile the competing interests of different groups of society. This observation has particular resonance in the present case, as the issue is how to reconcile the competing interests of claimants and defendants;

(6) Where the balancing of costs in litigation is concerned, Parliament and the relevant rule-makers of the CPR were (following consultation) in the best position to determine how to effect the reforms and how to strike the appropriate balance between the different types of litigant;

(7) A legislative or regulatory scheme may in some circumstances be compatible with the Convention even it operates harshly in individual cases; and

(8) There is no perfect solution to the problem of how best to enhance access to justice following the withdrawal of legal aid for most civil cases. Indeed, it is impossible to come up with a solution which would meet with universal approval.”

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