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Proportionality in Public Policy:
Towards a Better Balance between Interests and Rights in Decision-Making

Final Report Summary - PIPP (Proportionality in Public Policy: Towards a Better Balance between Interests and Rights in Decision-Making)

Proportionality is a prominent doctrine in global constitutional law and a defining element in the protection of human rights; yet significant questions remain unresolved regarding the doctrine's actual contribution to the protection of human rights, and little is known about the extent and quality of its integration into the practice of actors throughout the policy field.
The "Proportionality in Public Policy" research project focused on enriching the understanding of how various actors apply the principle of proportionality practice, and on creating a foundation for its better integration into the policy making process, thus boosting the systemic respect for human rights. This project took a novel, multidisciplinary approach to the study of balancing between rights and competing interests, informed by public policy and behavioural psychology. It utilized a variety of empirical methodologies.
One aspect of the project focused on the judicial application of proportionality, and included a comparative, empirical analysis of the practice of proportionality by six apex courts around the world. Combining qualitative analysis of the decisions with quantitative findings based on a common coding scheme, a detailed portrayal of the judicial practice was created, uncovering previously unrecognized characteristics of proportionality that deviate from theoretical portrayals. Based on this analysis, we recommend the adoption of what we term an integrative approach to proportionality analysis, which fully exploits the doctrine's analytical potential while providing better guidance to policy-makers.
A second aspect of the project focused on the integration of proportionality analysis into the policy-making process. Beginning with a theoretical juxtaposition of proportionality analysis as applied by judges ex post and policy analysis applied by decision makers ex ante, we suggest a model for optimizing the integration of proportionality into the policy process that takes into consideration the unique characteristics of the policy process. We also suggest ways in which judicial review can be altered to incentivize policy makers’ consideration of proportionality. In addition, several detailed case studies were undertaken, tracking legislative processes with severe ramifications for rights in several jurisdictions. By mapping the actors and locating procedures through which considerations of rights are integrated into the policy process, we characterized factors facilitating as well as obstructing meaningful engagement with rights in the process.
A third aspect of the project utilized an experimental methodology and applied behavioural approaches to judgement and decision making to the study of balancing rights and public interests. This experimental exploration demonstrated the effects of several cognitive biases on application of proportionality by both experts and lay people, alongside possibilities for their mitigation.
A central finding of the project is that while conceptually the proportionality doctrine is a structured, multi-stage analysis including several subtests, in practice it is often narrowed down into strictly a balancing test. All three aspects of the research lead to our conclusion regarding the importance of enhancing the subtests of proportionality other than balancing. We demonstrate some of the often unrealized potential of the other subtests – including the worthy purpose test, the suitability test, and the less-restrictive means test – to better guide policy makers on how to consider rights in the policy process and ultimately provide rights with better protection.
Overall, the project generated a new, empirically grounded understanding of the application of proportionality in practice by different types of actors in various contexts. By better identifying the strengths and limitations of the proportionality principle, we made empirically grounded recommendations for its better integration in policy making. The research conducted through the project also establishes a rich and valuable foundation for future research focusing on the integration of rights and proportionality in the policy field.