For a restriction of a Convention right to be justified, it is not enough for it to have a sound legal basis and to pursue a legitimate aim. Restrictions of derogable Convention rights also must be shown to be ’necessary in a democratic society’ or ’proportionate’. Over time the Court itself has also defined a variety of specific tests and formulas to give shape to the tests of necessity and proportionality, which are all addressed in this chapter. The general test of necessity is explored first, paying special attention to the related pressing social need test, the ’relevant and sufficient’test and the least intrusive means test. Furthermore, the chapter discusses the fair balance test (a variant of proportionality in the strict sence) and some related tests, such as the individual and excessive burden test and core rights review. Attention is also paid to the related question of whether balancing should always be conducted on an individual and concrete basis on the national level, or whether blanket rules may sometimes suffice. Lastly, it is explored how procedural review can complement the Court’s substantive reasonableness review of restrictions.

Chapter 13 summarizes important findings and offer two recommendations to the Court with regard to how Article 13 could be developed: (1) The Court should engage in more and stricter procedural review by controlling and setting out requirements with regard to how domestic remedial authorities must consider whether the Convention has been violated. To this end, the Court should make more use of Article 13. The counterpart of the increased procedural review should be less substantive review. (2) The Court should engage in more principled and abstract reasoning concerning Article 13, in particular the required form of redress. More principled and abstract reasoning stands in contrast to concreteness. It provides guidance, but allows for flexible implementation in different domestic legal systems.

A third set of approaches to deference disclose a concurrent view of authority. In the modes of ‘restraint’, ‘reference’, and ‘respect’, authority provides non-exclusionary second-order reasons for action. Second-order reasons for recognising domestic decision-making authority are treated akin to a request, rather than an order. Second-order reasons for reaching a particular decision are balanced alongside first-order reasons, rather than displacing them. Adopting this view of authority, the adjudicator is able to assert its own decision-making authority, whilst also acknowledging the decision making authority of other actors. This Chapter examines three modes of deference that reflect this understanding of the interface between domestic and international decision-making authority: the modes of deference as restraint, deference as reference, and deference as respect. Each of these approaches to deference differs from those considered in Chapters 5 and 6, because in each the adjudicator engages (even if only in a limited way) with the available first-order reasons for decision despite having recognised second-order reasons to defer to a domestic actor’s decision-making authority.