The Concept of Proportionality in Public Law

Proportionality is a German, and thus continental European, concept in public law that is applied by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The principle specifies that measures adopted by executive authorities should not exceed the limits of what is appropriate and necessary in order to achieve legitimate objectives in the interest of the public. Using a functional comparative approach, this book evaluates the extent to which proportionality has been integrated into the English and Hong Kong judicial systems by comparing case law in these courts with that of the CJEU and the ECtHR. The text also reviews the development of proportionality and presents a topical understanding of why its adoption and application have encountered difficulties, particularly regarding socio-economic rights, in some jurisdictions, such as the United Kingdom and Hong Kong. Written by a scholar with experience from both within the Hong Kong judicial system and from international research, this book is the first all-encompassing reference for legal practitioners worldwide.

Introduction

1 From a ‘Culture of Authorisation’ to a ‘Culture of Justification’

2 Proportionality and Margin of Appreciation

3 Wednesbury Unreasonableness vs Proportionality: A Common Law Debate

4 Civil and Political Rights vs Socio-Economic Rights: An Outdated Bifurcation

5 Application of Proportionality in the European Union

6 Application of Proportionality in the European Convention on Human Rights

7 Integration of Proportionality in Britain

8 Integration of Proportionality in Hong Kong

Conclusion