Introduction
The case of Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 presents a significant legal determination regarding the application of the Human Rights Act 1998 (HRA) and the concept of proportionality in judicial review. The core concept revolves around whether a public authority, in this instance Belfast City Council (BCC), must demonstrate that it has undertaken a proportionality inquiry when making a decision that may impact an individual's convention rights. Proportionality is a key principle in human rights law, requiring a balance between the aims of a measure and its impact on individual rights. The technical principle here, is that human rights are not just procedural but substantive, such that whether a public body went through the process of checking proportionality is not the main point; the main point is whether the measure is actually disproportionate, thus is an actual breach of human rights. This case clarifies that a decision’s legality is determined by its substantive compliance with Convention rights rather than the procedural steps taken by the decision-maker. The key requirement is that the outcome must be proportionate to the aim pursued, regardless of whether the decision-making process explicitly evaluated proportionality.
Freedom of Expression and the Regulation of Sex Shops
In the Miss Behavin’ case, BCC refused to grant licenses for sex shops in its jurisdiction. This decision was challenged by Miss Behavin’ Ltd (MB) on the ground that it contravened Article 10 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of expression. The initial argument from MB was that by not granting licenses, their right to freedom of expression was infringed, which is protected under Article 10 of the ECHR. The Northern Ireland Court of Appeal initially ruled that BCC had failed to adequately consider MB’s Article 10 right and whether interference with that right was justified. The Court of Appeal held that BCC had failed to undertake the correct legal process and consider the proportionality of their actions and that there had been an infringement of MB’s Article 10 rights. This procedural approach to proportionality was what the House of Lords ultimately rejected. The ruling emphasizes that the focus is on the substantive breach of convention rights rather than the process of the decision making authority. This highlights a key distinction: a procedural approach focuses on whether the correct process was followed, while a substantive approach focuses on the end result.
The House of Lords Ruling on Proportionality
The House of Lords, the highest court in the UK at the time, overturned the decision of the Northern Ireland Court of Appeal. Lord Hoffmann, in his leading judgment, emphasized that the core question is whether a decision infringes an applicant’s Convention rights. He stated that if a decision infringes an individual's rights, no amount of “human rights learning” or procedural correctness by the decision-maker would make the decision lawful. Conversely, if the decision does not violate rights, then the decision is lawful, even if the decision maker was completely unaware of the Human Rights Act, or made no considerations for it. Lord Hoffmann reasoned that a decision maker does not have to show that it carried out a proportionality inquiry itself to prove that its measures were proportionate under the HRA. This position was further substantiated in R (SB) v Governors of Denbigh High School [2006] UKHL 15. This demonstrates that the focus is on the substance of the decision rather than whether the correct decision-making process was followed, this is the key principle and is often repeated in case law. Lord Hoffmann observed that some rights, such as those under Article 6 of the ECHR (right to a fair trial), may have procedural content. However, even in such cases, the ultimate question is whether there has been an actual violation of Convention rights, not whether the decision-maker properly considered the question of potential violation.
Margin of Discretion and the Nature of the Right
The House of Lords judgment took into account that the specific right under consideration, the right to vend pornography, was not considered a particularly important manifestation of freedom of expression. The House held that if there was an infringement of Article 10, it was at a “low level”. This allowed a wider margin of discretion to local authorities when regulating sex shops, as this was seen as a social matter. A margin of discretion refers to the degree of latitude a public authority is allowed in making decisions, this can vary depending on the nature and importance of the right in question. The decision recognizes that different types of expression may receive different levels of protection. Where a specific action falls under a less important convention right, public bodies have a greater scope to restrict that right without constituting a breach of the Human Rights Act. The courts are far less likely to consider that there was a breach where such a right has been infringed, thus they must give more weight to the public authority’s opinion.
Substantive vs. Procedural Approach
The Miss Behavin’ case clarifies that proportionality under the ECHR and the HRA is a substantive and not a procedural principle. This means that the court is concerned with the actual impact of a decision on an individual’s rights, rather than with whether the decision-making process included an assessment of proportionality. The ruling emphasizes that an individual’s Convention rights should not be violated and the public authority’s decision should be proportionate. The courts must look at whether there has been a breach, rather than the decision-making authority’s procedure. This shift from a procedural approach to a substantive approach highlights the importance of the outcome in human rights law. The court is therefore required to objectively assess whether the measure strikes a fair balance between the rights of the individual and the public interest, regardless of how the decision was made.
Commentary and Implications
Although all members of the House of Lords agreed that Convention rights do not entail a procedural obligation on public authorities to consider the proportionality of their actions, several judges noted that if a public authority did consider proportionality, the court would give weight to the authority’s conclusion and would be less likely to rule against it. This highlights that while the focus of proportionality is substantive, considering proportionality does not cause any harm, and public authorities may wish to continue their considerations. In this case, a mix of the low importance of vending pornography as an expression and the considerable margin of discretion afforded to local authorities, led the House of Lords to conclude that Article 10 was not breached. This decision has implications for all cases under the HRA. It confirms that the assessment of human rights claims must be substantive, focusing on whether a rights breach has actually occurred, rather than focusing on the decision making process.
Conclusion
Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 significantly clarifies the application of the Human Rights Act 1998 and the principle of proportionality within the context of judicial review. The House of Lords established that the key legal point is whether a decision infringes an individual's Convention rights, rather than whether the public authority demonstrated a formal consideration of proportionality. The case confirms that the focus of proportionality assessment is on the substantive impact of a decision on human rights, not on the procedural steps taken by the decision-maker. This principle, also seen in R (SB) v Governors of Denbigh High School [2006] UKHL 15, establishes a consistent application of a substantive rather than a procedural approach to proportionality. The interplay between the freedom of expression under Article 10 and the margin of discretion allowed to local authorities in regulating social matters further highlights the complexity of balancing public interests with individual rights. The Miss Behavin’ judgment emphasizes that the judiciary's role in ensuring compliance with human rights involves an analysis of the actual effects of a decision and not merely a review of the decision-making process. This case is thus a testament to the primacy of substantive human rights assessment in UK law and acts as an important point of reference when considering Article 10 and the limitations upon it.
