22
JAMES AND OTHERS v. THE UNITED KINGDOM JUGDMENT
the aim sought to be realised (see, amongst others, and mutatis mutandis,
the above-mentioned Ashingdane judgment, Series A no. 93, pp. 24-25,
para. 57). This latter requirement was expressed in other terms in the
Sporrong and Lönnroth judgment by the notion of the "fair balance" that
must be struck between the demands of the general interest of the
community and the requirements of the protection of the individual’s
fundamental rights (Series A no. 52, p. 26, para. 69). The requisite balance
will not be found if the person concerned has had to bear "an individual and
excessive burden" (ibid., p. 28, para. 73). Although the Court was speaking
in that judgment in the context of the general rule of peaceful enjoyment of
property enunciated in the first sentence of the first paragraph, it pointed out
that "the search for this balance is ... reflected in the structure of Article 1
(P1-1)" as a whole (ibid., p. 26, para. 69).
It was the applicants’ contention that the leasehold reform legislation
does not satisfy these conditions. In their submission, even assuming there
to be a social injustice, the means chosen to cure it were so inappropriate or
disproportionate as to take the legislature’s decision outside the margin of
appreciation.
The Court considers that a measure must be both appropriate for
achieving its aim and not disproportionate thereto. Whether this was so on
the facts will be examined below when dealing with the applicants’ various
arguments.
(i) The principle of enfranchisement
51. According to the applicants, the security of tenure that tenants
already had under the law in force (see paragraphs 11 in fine and 16 above)
provided an adequate response and the draconian nature of the means
devised to give effect to the alleged moral entitlement, namely deprivation
of property, went too far. This was said to be confirmed by the absence of
any true equivalent to the 1967 Act in the municipal legislation of the other
Contracting States and, indeed, generally in democratic societies. It is, so
the applicants argued, only if there was no other less drastic remedy for the
perceived injustice that the extreme remedy of expropriation could satisfy
the requirements of Article 1 (P1-1).
This amounts to reading a test of strict necessity into the Article, an
interpretation which the Court does not find warranted. The availability of
alternative solutions does not in itself render the leasehold reform legislation
unjustified; it constitutes one factor, along with others, relevant for
determining whether the means chosen could be regarded as reasonable and
suited to achieving the legitimate aim being pursued, having regard to the
need to strike a "fair balance". Provided the legislature remained within
these bounds, it is not for the Court to say whether the legislation
represented the best solution for dealing with the problem or whether the
legislative discretion should have been exercised in another way (see,