Who’s afraid of Protocol 15? Not the Joint Committee on Human Rights – Alice Donald

4 December 2014 by Guest Contributor

The parliamentary Joint Committee on Human Rights this week published a report of its inquiry into whether the UK should ratify Protocol 15 of the European Convention on Human Rights. As the report states, Protocol 15 is the culmination of the UK Government’s contribution to the process of reform of the European Court of Human Rights, which was the UK’s top priority during its Chairmanship of the inter-governmental arm of the Council of Europe, the Committee of Ministers, in the first half of 2012.

The JCHR identifies as the most significant aspect of Protocol 15 the addition to the Preamble of the Convention of an express reference to the principle of ‘subsidiarity’ and the doctrine of ‘the margin of appreciation’. The Committee welcomes this amendment and recommends that the UK should ratify the Protocol – but only after it has been debated in both Houses as a means of raising members’ awareness of its significance.

This post focuses on the implications of Protocol 15 for the UK’s increasingly turbulent relationship with the Convention system, and for the wider debate about the purported ‘democratic deficit’ created by supranational judicial supervision of domestic democratically-accountable authority.

Risky reforms?

It should be noted in passing, however, that Protocol 15 introduces other procedural reforms which have been highly contentious because they might hinder access to the Court by marginalised or impoverished would-be applicants who need it most. The reforms reduce the time limit for applications to the Court from six months to four months after the final domestic decision in a case; and tighten the admissibility criteria to make it easier for the Court to reject relatively trivial applications.

The JCHR shares the serious concern expressed by NGOs about the effect of these reforms, especially on applicants who face unusual obstacles in applying to the Court, such as migrants, victims of trafficking, children and prisoners. Nevertheless, the Committee does not consider the concerns to be a bar to ratification, on the proviso that the Court applies the new criteria flexibly so as to prevent injustice in individual cases.

The JCHR notes that proposals for tighter admissibility criteria emanated from the Court itself, as a means of reducing its then crippling (although now rapidly reducing) backlog. This reminder of the pressures on the Court brings us back to the aspect of Protocol 15 to which the JCHR devotes most of its attention – the insertion into the Preamble to the ECHR of references to the principle of subsidiarity and the doctrine of the margin of appreciation.

Brighton – rocky

This reform has aroused considerable suspicion among NGOs and commentators as to the motives of the governments that called for it in the Brighton Declaration of April 2012 (para 12 b). To understand this disquiet, it is necessary to recall the inflamed political atmosphere which surrounded the Court at the time of the Brighton conference (see here, here and here) and has scarcely abated since.

David Cameron had already made it clear in a speech in Strasbourg in January 2012 that the UK sought to ‘re-balance’ states’ relationship with the Court, to prevent it from becoming, as he put it, a ‘small claims court’ dogged by ‘controversial rulings’ which were having a ‘corrosive effect’ on popular support for human rights. Then came the leaked UK proposals in the run up to the Brighton conference which would, among other things, have reduced the time limit for applications to the Strasbourg Court to as little as two months after a final domestic decision (para 23 a) and barred the Court from accepting applications except where the national court had made an obvious error (para 23 c i). These proposals were deplored by NGOs and did not survive the pre-Brighton political negotiations.

The UK did, however, succeed in its proposal for express reference to subsidiarity and the margin of appreciation to be inserted into the Convention, albeit into its Preamble, rather than the substantive body of the ECHR (a secondary point, since the preamble to a treaty is in an integral part of the treaty itself and thus relevant to its interpretation).

Why, then, does the JCHR consider this particular reform to be of great – and positive – significance?

A new era?

As the Committee recalls, the principle of subsidiarity and the doctrine of the margin of appreciation are well-established principles of interpretation in the case law of the

Court. The JCHR is at pains to dispel common misunderstandings about what these principles mean. They are not, it emphasises, a basis either for asserting the primacy of national law over Convention law, or for demarcating national spheres of exclusive competence, free from Strasbourg’s supervision.

Rather, subsidiarity is the principle that the national authorities (governments, parliaments and courts) have the primary responsibility for securing for everyone within their jurisdiction the Convention rights and freedoms, and for providing an effective remedy when those rights are violated.

The margin of appreciation is the doctrine, underpinned by the principle of subsidiarity, according to which States enjoy a degree of latitude in deciding from a range of possible ways of giving effect to the Convention rights and freedoms, subject to the ultimate supervisory jurisdiction of the Strasbourg Court.

The European Court (see para 4) was initially sceptical about the need for reform and sought to amend the wording of Protocol 15 to ensure that it referred unambiguously to the principle of subsidiarity and the doctrine of the margin of appreciation ‘as developed in the Court’s case law’. This did not happen. However, the Court – and the JCHR – are reassured by the Explanatory Report to the Protocol which states (para 7) that Protocol 15,

is intended to enhance the transparency and accessibility of these characteristics of the Convention system and to be consistent with the doctrine of the margin of appreciation as developed by the Court in its case law.

Having laid this concern to rest, the JCHR welcomes Protocol 15 as signifying (see para 3.17 of the report) no less than

a new era in the life of the Convention, an age of subsidiarity, in which the emphasis is on States’ primary responsibility to secure the rights and freedoms set out in the Convention.

Opportunities and obligations

What might this new era look like? The JCHR ventures that Protocol 15 creates both opportunities and obligations both for national actors and for the Court itself.

National actors – governments, parliaments and courts – can be left in no doubt that Protocol 15 does not provide an excuse for them to flex their muscles and assert their superiority over the Court. Properly understood, the revised Preamble gives no succour to calls for a ‘democratic override’ of Strasbourg rulings to which a majority in the UK or any other parliament is opposed (as recommended, for example, by some members of the Commission on a Bill of Rights).

Instead, the Protocol places a greater onus on governments to conduct detailed assessments of, and justify the reasoning behind, the Convention-compatibility of their laws and policies – and on parliaments to subject executive action or inaction to conscientious and well-informed scrutiny and debate. As I have recently argued at the Council of Europe (here and here), too few parliaments in Council of Europe states are presently equipped to conduct such rigorous human rights oversight – the JCHR being one of a number of striking exceptions.

The principles to be enshrined in the Preamble via Protocol 15 provide every incentive for national authorities to strengthen their systems of human rights protection. As the Court’s President Dean Spielmann notes (p. 12), the margin of appreciation is ‘neither a gift nor a concession’ to states, but an incentive to earn the deference of the Court. States may do so by demonstrating to the Court that national laws or policies are the product of deliberation that conducts the requisite review against Convention standards, balances competing rights, and scrutinises the proportionality of interferences with human rights, where necessary weighing individual interests against those of the community (except in the case of absolute rights such as the prohibition of torture and slavery).

The JCHR is alive to this possibility of earning deference from the Strasbourg judges. The Committee argues, for instance, that it should incentivise ministers to continue to improve the quality of the human rights memoranda that accompany Bills laid before parliament, and create more opportunities for informed parliamentary consideration and debate of Convention-compatibility issues.

The age of subsidiarity

The JCHR gives equal focus to the implications of Protocol 15 for the Court. The Committee urges the Court (para 3.19) to accelerate and make more transparent the recent trend in its case law to pay respectful attention to detailed and reasoned assessment by national authorities of the Convention-compatibility of laws and policies.

This trend is exemplified in several recent cases against the UK. Statutes prohibiting paid political advertising, restricting the right of British citizens resident overseas to vote in parliamentary elections, and prohibiting secondary strike action have all been upheld by the Strasbourg Court, in part because of the detailed and conscientious examination by Parliament of their compatibility with Convention standards and the Court’s case law. Conversely, the absence of parliamentary deliberation contributed to the finding that the indiscriminate ban on convicted prisoners voting violated the Convention.

The Icelandic judge in the European Court, Robert Spano, has recently ventured into the debate about this ‘democracy-enhancing’ approach to the margin of appreciation. Hailing the ‘age of subsidiarity’, he argues (p. 12) that the Court’s examination of the quality of decision-making, both at the legislative stage and before the courts, ‘is crucial and may ultimately be decisive in borderline cases’.

The Court does not have a settled position on the weight to be attached to either the presence or absence of democratic engagement on Convention issues, as is clear from the lack of unanimity on several of the judgments cited above (notably, the 9-8 split in the Grand Chamber judgment on the prohibition of paid political advertising).

Nor is the Court’s developing approach to deference a risk-free enterprise; consider, for example, the challenge involved in conducting consistent and thorough analysis of the quality of democratic deliberation in any or all of 47 different member states. Equally, the Court must be alive to the risk that executives or parliaments may orchestrate proceedings to create the appearance of democratic deliberation in an attempt to ‘earn’ deference which is not, in fact, warranted.

Vigilance

These pragmatic considerations should guide the Court’s developing approach to deference but do not outweigh the larger goal identified by the JCHR of incentivising democratic dialogue.

Despite the JCHR’s enthusiasm, the practical import of Protocol 15 within this process is yet to be determined. It will not come into force until it has been ratified by all 47 states (to date, ten have done so). This could take several years. The President of the Court has played down its importance, describing it (p. 6) as ‘no far-reaching measure of reform, but rather a modest package’.

Supporters of the Court will be vigilant about the way in which politicians invoke the margin of appreciation in respect either of individual cases or the UK’s relationship with the Convention system as a whole – and rightly so given the politicised, parochial and frequently ill-informed nature of political debate about the Court. In this febrile political climate, the JCHR’s thoughtful and forward-looking report brings welcome clarity to discussion about the long-term future of the Court and its relationship with democratic institutions at the national level.

Dr Alice Donald is a Senior Lecturer in the Department of Law and Politics at Middlesex University.

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