Strasbourg Case Law and Its Recognition of National Parliamentary Processes when Addressing Human Rights Issues
By Matthew Saul, Postdoctoral Fellow, MultiRights/PluriCourts
This blog post is a slightly polished version of the presentation I gave last week at a seminar on: The Rule of Law, The European Court of Human Rights and the UK: A New Court for a New Era? The seminar was jointly convened in London by the Bingham Centre for the Rule of Law and the University of Leicester Law School. The first part of the event addressed how the Court has evolved in recent years, in terms of the approach it adopts to resolving certain cases on their substantive merits. The second part looked more specifically at the reform process initiated at Interlaken and Brighton. The seminar also included an important speech from Rt Hon Dominic Grieve QC MP on the importance of UK membership of the Council of Europe.
In this presentation, I will address how the European Court of Human Rights (ECtHR) has used the margin of appreciation to give recognition to the nature of parliamentary process in its judgments.
I will start with a bit of background. I will then consider some common features of the relevant case law. In particular, I will address the variation in the degree to which the Court, when explaining the margin of appreciation, is explicit about placing weight on the quality of the parliamentary process. I will conclude with some brief remarks linking my findings to the more general themes of our seminar today.
A key part of the context for my presentation is Judge Spano’s argument that the Court is now in a process of ‘reformulating the substantive and procedural criteria that regulate the appropriate level of deference to be afforded to Member States so as to implement a more robust and coherent concept of subsidiarity in conformity with Brighton and Protocol 15’.
Judge Spano’s argument is based on a selection of cases in which the level of deference to the State Party has been controlled, in part, through attention to the quality of the underlying decision making process – be it judicial, executive, or parliamentary in nature.
The argument of Judge Spano is in line with reasons that help to explain the attention to subsidiarity and the margin of appreciation at Brighton and in Protocol 15. Especially the encouragement for the Court to be more persuasive in its explanations for the level of deference it shows States Parties.
It is, though, not an approach that has met with agreement amongst all the judges, especially not in relation to national parliaments. Dissenting judges have raised challenges of authority - what gives the court a basis to examine the quality of the parliamentary process? There are also problems of expertise: how should the judges know what sort of parliamentary process to value?
The disagreement amongst judges is one reason not to expect a review of case law to reveal a consistent body of practice.
3. The Case Law
To develop a clearer understanding of the Court’s practice in this area on parliaments, I sourced relevant case law through, in particular, following the trail of the cases cited in Animal Defenders International v UK (one of the key cases cited by Judge Spano).
In total, I examined around 25 cases stretching back to 2005.
Provisions in the relevant case law include Articles 8, 9, 10 and 11 of the Convention and Articles 1 and 3 of Protocol No 1.
The case law has certain common features: it is concerned with general measures (meaning a measure the impact of which is not tailored to the facts of a particular case) that operate as limitations on rights.
The specific subject matter of the cases has been diverse, but at a more general level has been identified (by Janneke Gerards in a forthcoming book chapter) as ‘mainly applied in two types of sensitive cases, that is, cases relating to complex choices in socio-economic policy fields, and [moral] dilemma-cases’.
The list includes cases in which the margin has been widened, and cases in which the margin has been narrowed due to attention to the domestic process.
One especially interesting feature of the case law is the variation in the degree to which the Court, when explaining the margin of appreciation, is explicit about placing weight on the quality of the parliamentary process.
I will set out the three main approaches that my research has uncovered.
A. Clear Connection
In this category, Animal Defenders International v UK is a stand out case. In this case, the Grand Chamber found that the prohibition on political advertising on television and on radio by the 2003 Communications Act—under which the applicant, a social advocacy group for the protection of animals, had been prevented from broadcasting a television advertisement— did not amount to a disproportionate interference with the applicant’s right to freedom of expression.
To reach its verdict in this case, the Court referenced some of the case law addressed below to argue that a particular approach for assessment of limitation of rights of general measures should be applied when certain conditions were fulfilled. This included that, rather than having an emphasis on the necessity of the measure in terms of whether the aim could have been achieved in a less restrictive manner (as the applicant had argued for), the emphasis in its assessment should be primarily on assessment of the ‘legislative choices underlying [the measure]’.
The Court immediately followed this statement by noting that ‘[t]he quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation’.
With this statement, the Court provided one of the clearest statements to date on the link between parliamentary process and the breadth of the margin of appreciation. Hirst v UK (No 2) and a line of subsequent case law concerned with electoral rights also come within this category.
In some cases concerned with electoral rights, the attention to process has led to negative inferences for the margin, as in Anchugov and Gladkov v Russia, in others it has resulted in positive inferences, as in Sukhovetskyy v Ukraine.
B. Implicit Connection
In another set of cases, the Court is not explicit on the connection between the margin and parliamentary process, but it is possible to construe a connection through reading parts of the reasoning together.
There are degrees of clarity in this category. Some cases leave little room for doubt (eg., Evans v UK). In others, there is a need for a closer reading.
A prominent example of this latter sort of approach is S.A.S. v France (concerning the French ban on the use of clothing designed to conceal one’s face in public places in the light of Articles 8 and 9). In this Grand Chamber case, when explaining the general elements of the margin of appreciation doctrine that are relevant for the case, the Court specifies ‘democratic legitimation’, ‘better placed than an international court to evaluate local needs and conditions’ and that ‘[i]n matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight’ (para. 129). Subsequently, amidst its assessment of the facts of the case, the Court specifies that ‘[i]n such circumstances the Court has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question’ (para. 154). There is no direct mention, in either of these key paragraphs on the margin of appreciation, of the nature of the underlying parliamentary process, nor is it possible to find any other direct praise for the parliamentary process.
Nonetheless, it is open to be inferred that the Court’s awareness of the nature of the parliamentary process (evidenced through repeated reference to aspects throughout the judgment) operated as a relevant factor in the determination of the margin. This is based on reading the two noted paragraphs in combination; with the Court’s judgment that there had been a ‘democratic process’ further substantiated with the details on the process that are set out in the preliminary section of the case.
C. Possible Connection
A third set of cases is more ambiguous as to whether or not attention to parliamentary process has counted for the margin of appreciation. These are cases where an aspect of the parliamentary process has been criticized or praised, but the reasons for seeing it as connected to the margin are reduced in comparison to the examples cited above.
A particularly interesting example in this respect is Lindheim v Norway (an Article 1 Protocol No 1 case concerned with legislative changes in the law on ground lease agreements so as to preserve the existing conditions for the lessee at the point of extension).
In this case, the applicant argued that the margin should be reduced on the basis that ‘Parliament had not analysed and carefully weighed the competing interests or assessed the proportionality of blanket rules. Nor had Parliament assessed Section 33 in the light of the European Convention’. In contrast, the Government argued that the process undergirding the legislation required deference on the ground that it was an ‘example of democratic deliberation wholly in line with the ideal of an effective political democracy’.
The Court limited its direct comment on the quality of the process to noting that it had no evidence that a ‘specific assessment was made of whether the amendment to Section 33 regulating the extension of the type of ground lease contracts at issue in the applicants’ case achieved a “fair balance” between the interests of the lessors, on the one hand, and those of the lessees, on the other hand’.
This comment might still be treated as evidence that quality of the parliamentary process informed the determination of the margin. But there are considerations that direct against this view in this instance. These include the general lack of direct attention to the nature of the margin of appreciation (relying on a quote from Hutten-Czapska v Poland); that the relevant critique was situated in a list of considerations that pertain to the Court’s substantive assessment; and that comment was not passed on the quality of the parliamentary process as a whole (in spite of reference being made to different aspects throughout the judgment). These considerations suggest that this example is better seen as an example of process featuring more clearly as an element in the substantive assessment than in the structural determination of the margin of appreciation.
If we require an explicit connection between the margin of appreciation and the quality of parliamentary process in the judgment, the number of cases falling within what I refer to as the deeper subsidiarity category is rather limited. But once we are open to the inference of a connection, we see that the amount of cases is far greater.
I think, given the potential for disagreement amongst the judges, it is probably this low level approach to recognition of parliamentary process that will continue. This is supported by the differences in the level of agreement amongst the Court in the key explicit connection cases: Animal Defenders v UK (decided nine to eight) and Hirst v UK (No 2) (decided 12 to five); in contrast to the implicit connection cases: S.A.S. v France (decided 15 to two) and Maurice v France (unanimous).
The low level approach is also seen in some of the most recent cases that have recognized aspects of parliamentary process. Consider, the Grand Chamber judgments of Parrillo v Italy (27 August 2015) (although see my comment here), and the Case of Lambert and Others v France (25th June 2015).
Still, even with this low level approach, I think it is reasonable to talk about deeper subsidiarity in relation to domestic parliaments. The Court is not limited to assuming that domestic parliaments are operating at optimal levels when it comes to considerations of democracy and expertise informing their decision making. The Court is also willing to check the way in which the parliament has performed its role in the creation of legislation.
This development may be seen as an attempt to give more meaning to the logic of subsidiarity as a rebuttable presumption in favour of the local over the higher level. But it is also possible to argue that there is a connection with the reform debate that has surrounded the operation of the Court in recent years.
This presentation draws on parts of an article that I published in the Human Rights Law Review at the back end of last year.