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When will a decision constitute significant interference with a person's important or fundamental right?

As is noted above, it appears likely that a decision may be challenged on proportionality grounds if it constitutes a significant interference with an important or fundamental right. The Court have not defined an ‘important’ right. In the Pham case, it was considered that a decision to withdraw a suspected terrorist’s British nationality interfered with a sufficiently important right to allow the Supreme Court to consider the decision’s proportionality.

Gage v Scottish Ministers [2015] CSOH 174 was one of the first cases to consider proportionality post-Pham. In this case, a decision to detain a prisoner in a prison where he was subjected to second-hand smoke was considered not to interfere with a sufficiently important right so as to enable the decision to be challenged on proportionality grounds. As a result, the challenge was considered under reasonableness/rationality grounds instead.

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