Courts should take note of Strasboug’s doctrine of deference
6 July 2012
R(on the application of S and KF) v Secretary of State for Justice  EWHC 1810 (Admin)- read judgment
This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.
Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.
Two prisoners sought to challenge by way of judicial review part of the prison rules which allowed the prison governors to make certain deductions from their earnings to pay into a victims’ support fund. They invoked the right to peaceful enjoyment of possessions under Article 1 Protocol 1 and in the case of KF, a female prisoner, the right to enjoy Convention rights without discrimination; Article 14 was said to be engaged because the levy had a disproportionate effect on women’s ability to earn an income. It was also argued that the rules violate Article 7 because they have the effect of imposing a heavier penalty than the one applicable at the time the criminal offence was committed.
The Prisoners Earnings Act 1996 Act applies to prisoners doing work they are not required to do in accordance with the prison rules and for which they earn an enhanced rate of pay. Implementing the Act was part of the Government’s drive to make prisoners pay their debt to society and to victims of crime in particular. Deductions or levies are taken or imposed, after tax, National Insurance and other court-ordered payments, from earnings over £20 per week, subject to a 40% maximum rate. These deductions or levies are then provided to Victim Support. Because the Act stipulates that governors may impose a levy it is open to governors to decide not to do so in a particular case. Guidance is given in the Prison Rules for the exercise of that discretion, for example where the imposition of a levy would lead to the prisoner or their family suffering severe financial hardship, or where their travel costs to work are substantial in proportion to their earnings.
Because there is a discretion, not an obligation, to impose this levy, any prison governor deciding whether to exercise that discretion or not in the case of a prisoner is obliged, as a public authority (section 6(1) of the HRA), to act in a way that is compatible with the prisoner’s Convention rights under that Act. Accordingly, if following the guidance in the prison rules would involve the prison governor in a violation of the prisoner’s rights under A1P1 or Article 14, the governor would have to disregard the guidance.
The claimants submitted that the effect of the guidance and the rules was to create very tight limitations on governors’ discretion to relieve prisoners from having deductions made from their enhanced earnings. They contended that the deduction out of prisoners’ earnings, subject only to allowing relief in exceptional cases, and the payment to victim support (rather than, say, to support the prisoners’ own families) involved breaches of their Convention rights.
The challenge was dismissed on all grounds. In Sales J ‘s view, the deductions proposed to be made from prisoners’ enhanced earnings were closely analogous to a tax to be levied on them, hypothecated to the purposes of victim support. They reflect social and economic judgments made by Parliament and the Secretary of State as to whether and what reparation payments should be made by prisoners, and as such, there was a wide margin of appreciation which the Strasbourg Court applies in such cases under A1P1. That court will only find that the state has acted in violation of A1P1 if it proceeded on the basis of a judgment in relation to action taken to promote a legitimate public interest which was “manifestly without reasonable foundation”: James v United Kingdom (1986) 8 EHRR 123.
In this case, in light of the wide margin of appreciation which is applicable, the judge considered that there was “a reasonable relationship of proportionality between the means employed and the aim sought to be realised and that a fair balance is struck between the general interests of the community and the requirements of the protection of the individual prisoners’ fundamental rights”. Working outside prison is an entirely voluntary matter for a prisoner, so it is their choice whether, knowing of the deductions regime, they will wish to continue to do so.
The judge rejected the claimant’s submission that the court was not entitled in these domestic proceedings to take the benefit of the margin of appreciation which would be afforded by the ECtHR to the United Kingdom as an ECHR Contracting State in proceedings in Strasbourg. It is not so easy to separate out the content of the rights from the application of the margin of appreciation; for example the margin of appreciation may be central to determination whether a state owes a positive obligation under Article 8(1) – see Evans v United Kingdom (2008) 46 EHRR 36, para.  – or whether it has infringed the right to a fair trial under Article 6(1) – see Ashingdane v United Kingdom (1985) 7 EHRR 528, para. ).
Convention rights are so defined in the Human Rights Act that the Act effectively incorporates the concept of the margin of appreciation. Particularly so, when those rights fall to be applied under section 3(1) of the HRA in interpreting legislation and under section 6(1) of the HRA when determining the lawfulness of actions by public authorities.
In my view, this indicates that the domestic courts are required to interpret the Convention rights by applying the same margin of appreciation when assessing the lawfulness of conduct of public authorities under section 6(1) as the ECtHR would apply when assessing the lawfulness of conduct of the national authorities from the perspective of an international court.
Sales J was fortified in this view by Section 2 of the HRA which provides that any domestic court determining a question which has arisen in connection with a Convention right must take into account any judgment of the European Court of Human Rights. Since the concept of the margin of appreciation is so deeply embedded in the case law of the ECtHR, Parliament must have thus indicated that “an equivalent to the margin of appreciation should be applied by the domestic courts”
In the domestic cases, the equivalent principle is often described as a discretionary area of judgment, following the terminology employed by Lord Hope of Craighead in R v Director of Public Prosecutions, ex p. Kebilene  2 AC 326 at 381; and see AXA General Insurance Ltd at  (Lord Hope DPSC) and  (Lord Reed JSC).
As far as case law is concerned, the clear statement in para 48 of Pinnock regarding municipal courts’ obligation to follow clear and consistent case law of the ECtHR was intended by the Supreme Court to operate as guidance for itself and the lower courts to follow the ECtHR’s judgments, including where they apply a margin of appreciation. Parliament could not have intended that the domestic courts should be authorised to produce idiosyncratic interpretations of the “Convention rights” in the HRA so as to find an incompatibility between the ordinary meaning of legislative provisions and those rights in cases where the Strasbourg Court would have found no incompatibility. As Laws LJ said in SRM Global Fund LLP v Commissioners of HM Treasury  EWCA 788, the rationale of the margin of appreciation is an international version of our local doctrine of “the margin of discretion”, or “deference”, which our courts will pay to the judgment of public decision-makers in matters of discretion or policy.
This “margin of discretion” is given on democratic grounds; it respects the elected arms of government. But this is also an element, and an important one, in the margin of appreciation. (Laws LJ, SRM Global, para 59)
For these reasons, Sales J was of the view that the court hearing this judicial review should apply the same margin of appreciation in favour of the Secretary of State (and in favour of prison governors who follow the guidance given by the Secretary of State) when assessing the lawfulness of the Prison Service Instructions as the ECtHR would apply if assessing their lawfulness in proceedings in Strasbourg.
there is nothing irrational in what the Secretary of State has done or in what he proposes prison governors should do; and there are no special circumstances whatever which would justify the Court stepping in to substitute its judgment for that of the Secretary of State 
The argument based on the prohibition of retrospective penalties under Article 7 was also rejected. There was no “requisite connection’ between the offence committed by a prisoner and the application of the deductions regime in relation to enhanced earnings; nor does the deductions regime have elements which indicate that it is punitive, in its object or effect, in relation to the offence committed by the prisoner.
The challenge with regard to discrimination between male and female prisoners also failed. The judge found, “as a matter of practical reality and justice,” that female prisoners are not in a significantly different position from male prisoners for the purposes of assessment under Article 14 in light of the objective of the deductions scheme. Applying the wide margin of appreciation which is appropriate in relation to the female prisoner’s complaint under Article 14, the unified deductions rules applicable to male and female prisoners were objectively justified`;
The proportionality of the deductions rules (or, putting it another way, the absence of any improper or excessive disproportionate effect upon female prisoners) is underwritten by the width of the margin of appreciation to be applied in assessing their compatibility with Article 14 
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