The role of emotions in proportionality analysis in British human rights cases

Following decisions of the UK Supreme Court in 2014/15, proportionality has become the central test of whether a state interference with a human right is lawful. Among other things, the test requires a court to be satisfied that there is a fair balance between individual rights and state objectives. Naturally, the question of what is a 'fair' balance can be highly subjective and contentious. The purpose of this proposal is to assess the role that emotions play in the judicial evaluation of this question. This focus situates the proposal within the socio-legal scholarship on judicial behaviour and in the emerging theme of law and emotions.

The issue of judicial emotions and proportionality has not previously been addressed by academics. Indeed, while previous scholars have expressly recognised the emotional nature of human rights, they have failed to consider whether a practical assessment of proportionality by judges similarly reflects, or is based on, the emotive character of the issues. As such, a potentially critical feature of proportionality, the now dominant doctrine in human rights analysis, is absent from academic understanding.

The project will centre on an evaluation of ten Supreme Court judgments involving issues of proportionality in human rights cases. The judgments will be analysed in light of appraisal theory, a linguistic model concerned with the expression of stance and attitude in language. The aim will be to assess the extent to which these judgments are influenced by emotions, eg anger at the claimant's treatment, empathy towards the claimant, or fear of terrorism, to name a few.

Informing the linguistic analysis will be a consideration of theories on the psychology of emotions. Particular reliance will be placed on the culture theory of emotions and emotional intelligence theory, which focus on the role of culture, including professional culture, in constructing emotional experience and expression. Together, these theories raise the prospect that, because judges operate within a professional and legal culture expecting dispassion and impartiality from them, they develop contextually unique means of managing, using, and expressing emotions in a way deemed proper for that culture.

For this reason, judicial engagement with emotions during judgments is likely to be via implicit or subtle formulations, rather than via express language ('I empathise with the claimant; thus, the appeal succeeds'). This knowledge will provide focus to the linguistic analysis, as it suggests that a concentration on subtle indicators of stance is more likely to be relevant than express formulations.

The findings of this proposal have the capacity to inform and illuminate a contemporary public debate that has (in)famously emerged since November 2016. In its judgment in R (Miller) v Secretary of State for Exiting the European Union, the High Court determined that the Prime Minister had no power to initiate withdrawal from the European Union without express authority from legislation. This judgment has led to senior politicians openly questioning the ability of the senior judiciary to be impartial on politically contentious matters.

Human rights also fall into that politically contentious category. Through evaluation of the extent of emotional attachment in human rights cases, this proposal has the potential to shed light on this current debate on the capacity of the senior judiciary to be impartial in a contentious context. In this way, the proposal will provide an insight into the role of the judge in modern British human rights adjudication: as a neutral arbiter of the balance between rights and state interests, or something more nuanced, complex, and human.