ment should justify its actions by establishing that any restriction is necessary in a democratic society. “Necessary” does not mean indispensable, but neither does it mean “reasonable” or “desirable.”159 What it implies is a pressing social need for the restriction on the right, and that pressing social need must accord with the requirements of a democratic society. The hallmarks of such a society are tolerance, pluralism and broad-mindedness. Of particular relevance to counter-terrorism, although individual interests must on occasion be subordinated to those of the perceived majority, democracy does not simply mean that the views of the majority must always prevail. A balance must be achieved that ensures the fair and proper treatment of minorities and avoids any abuse by those in a dominant position. Is it proportionate? The principle of proportionality is not mentioned in the text of human rights treaties but it is a major theme in the application of human rights. Proportionality requires that there is a reasonable relationship between the means employed and the aims to be achieved. It would not be acceptable, for example, for a restriction on a right to destroy the essence of the right in question. Ultimately, disputes over proportionality may require a court to determine whether a measure aimed at promoting a legitimate public policy is either: • unacceptably broad in its application; or • has imposed an excessive or unreasonable burden on certain individuals.160 Factors to consider when assessing whether an action is disproportionate are: • • • • • have relevant and sufficient reasons been advanced in support of it? was a less restrictive measure possible? has there been some measure of procedural fairness in the decision-making process? do safeguards against abuse exist? does the restriction in question destroy the “very essence” of the right in question? A decision made taking into account proportionality principles should: • impair as little as possible the right in question; • be carefully designed to meet the objectives in question;161 • not be arbitrary, unfair or based on irrational considerations. 159 ECtHR, Handyside v. UK, Application no. 5493/72, 7 December 1976, para. 48. The concept is reiterated, amongst other judgments, in ECtHR, The Sunday Times v. UK, Application no. 6538/74, 26 April 1979, para. 59. 160 “States Parties must refrain from violation of the rights recognized by the Covenant, and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right”, op. cit., note 127, HRC, General Comment No. 31, para. 6. 161 Although in relation to some interferences with human rights, a certain degree of latitude will be given to the state party. For example in the Hatton case, the European Court found no violation of human rights in relation to the right to respect for privacy and home life in the context of aircraft noise and night flights. The Court accepted the economic imperative of such activity and therefore acknowledged that the interferences fell within the state’s margin of appreciation, see ECtHR, Hatton and Others v. UK, Application no. 36022/97, 8 July 2003, paras. 116-130. 70 Countering Terrorism, Protecting Human Rights