Strasbourg in the Age of Subsidiarity: Enough Reform to Accommodate Conservative Concerns? Brian Chang

21 September 2015 by Guest Contributor

On 7^th September 2015, Judge Robert Spano (of the European Court of Human Rights) spoke at a high-level international conference on “The Role of Parliaments in the Realisation and Protection of the Rule of Law and Human Rights”, organised by Murray Hunt, Legal Adviser to Parliament’s Joint Committee on Human Rights. This was his second public intervention in the United Kingdom since his seminal speech on “Universality or Diversity of Human Rights: Strasbourg in the Age of Subsidiarity” delivered at Oxford in 2014, the first having been covered by UK Human Rights Blog here, and built upon his earlier speeches by elaborating on four post-Brighton Declaration cases in which the Grand Chamber of the European Court of Human Rights (the European Court) applied the principle of subsidiarity to find no violation of human rights, considering that the cases fell within the national margin of appreciation, after having examined evidence demonstrating that the national Parliaments had considered the human rights issues. Taken collectively, the four cases demonstrate that Strasbourg is well and truly in the age of subsidiarity, deferring to the decisions of national Parliaments, provided those Parliaments had considered the human rights implications of legislation. Whether this will satisfy Conservative Party concerns that membership of the European Convention on Human Rights is incompatible with the doctrine of Parliamentary sovereignty will be explored at the end of this post.

The Speech

Judge Spano started by acknowledging the necessity of democratic engagement with human rights issues at the domestic level. He quoted Article 1 of the European Convention on Human Rights (the European Convention), which states that the Signatory States to the European Convention, of which the UK is one, shall secure to everyone within their jurisdiction the rights set out in the European Convention. While the protection of human rights has traditionally been seen to be a legal issue that is the remit of the lawyers and the courts, a view especially prevalent in the USA, many contemporary human rights issues in European societies, such as same-sex marriages, same-sex unions, and abortion, are being debated in Parliaments, and not simply left to the courts, international and national, to resolve. He then acknowledged that human rights are multifaceted and multidimensional, drawing a distinction between what we consider to be absolute human rights such as the prohibition of torture, which Parliaments may never abrogate, and human rights that allow for restrictions in the interest of public policy considerations. It was with regards to this latter set of rights that he stated the necessity of democratic engagement with the scope and content of the rights.

Judge Spano then elaborated on the recently refined principle of subsidiarity under the European Convention. This principle stresses that the international court is a subsidiary mechanism to domestic authorities, including parliament, the executive and the judiciary, who have the primary obligation under Article 1 to secure human rights. The international court only comes into play when domestic protection is ineffective, and plays a supervisory role in that case. When dealing with policy issues, it is becoming increasing important and recognised at the international level that effective parliamentary engagement in the “pre-interference assessment” of human rights, that is, the assessment by the legislator of the possible human rights implication of draft legislation, is fundamental.

Judge Spano used four recent cases decided by the European Court to illustrate how parliamentary engagement was very important or even crucial to the outcome of those cases.

In Animal Defenders International v United Kingdom (a Grand Chamber decision, delivered in 2013) it was clear that the way the UK Parliament had extensively discussed the human rights implications of legislation banning political advertising had a heavy impact on the decision by the European Court to find no violation of Article 10 (the right to freedom of expression). See the UKHRB post on this decision.

In SAS v France (another Grand Chamber judgement, delivered in 2014), the case regarding the absolute ban in France on women wearing the burqa and nijab in public, the European Court found no violation of Articles 8 and 9 (the rights to respect for private life and to manifest their religious beliefs) because the French Parliament had considered the human rights implications extensively when dealing with the issue.

In Lambert v France (a Grand Chamber judgement, delivered in June 2015), relating to a person who was in a persistent vegetative state, over whom there was a clash by family members over whether he should be allowed to die, the European Court looked at how the French Parliament (and courts) had dealt with the issue and whether it was cognisant of the underlying values and interests, before coming to the decision that the case fell within the national margin of appreciation accorded to France.

In the most recent case, Parrillo v Italy (a Grand Chamber judgement, delivered in August 2015), concerning Italian legislation imposing an absolute ban on donating women’s embryos to scientific research, the European Court looked extensively at the legislation-drafting stage in the Italian Parliament, before coming to the conclusion that there was no violation of Article 8 (right to privacy and family life) as the case fell within the national margin of appreciation accorded to Italy. UKHRB has blogged on this case too.

Nevertheless, Judge Spano stressed that these cases demonstrate that, while it is not a sufficient condition for finding no violation of a human right, it is definitely a necessary condition for Parliaments to debate the human rights considerations so as to give their decisions the necessary legitimacy in order for international courts to grant deference or a large margin of appreciation to these decisions.

Referring to the judgement of the European Court in SAS v France, Judge Spano distilled three elements which he believe need to be considered for in any elaboration or guiding principles for legislators considering human rights issues.

Firstly, the democracy element – a human rights culture needs to be created within Parliament, so that it becomes almost natural for parliamentarians to consider human rights issues. Human rights issues must not be seen as a fringe issue, to be taken into account if other essential interests align, but should be considered foremost by Parliaments.

Secondly, the element of domestic knowledge and expertise – it is incumbent on national governments taken before the European Court to demonstrate that if they believe that solutions at the national level are warranted because of special domestic circumstances, they need to demonstrate this at the outset so that domestic knowledge and expertise may be brought into the legislative exercise.

Thirdly, the policy element – it is important that the different policy issues and proposals must be debated. Here Judge Spano referred to the element of the proportionality test concerning the “least restrictive measure” that is possible to attain the legitimate aim that is pursued. From the perspective of the international human rights judge, different legislative or policy proposals must be placed on the table and discussed, in order for a parliamentary decision to be granted deference.

In the discussion that followed, two clarifications were sought. The first concerned the extent to which Parliaments should be seen to be an authoritative interpreter of human rights obligations. Murray Hunt responded by emphasising that all the institutions of the state, including the courts and Parliaments, shared the responsibility to protect human rights, and that Parliament’s role was not meant to be an alternative to that of the courts. He also explained that the concept of margin of appreciation, the principle of subsidiarity and due deference doctrines had been developed to present an alternative to the debate over who has the power to make authoritative interpretations.

The next clarification concerned the extent to which Parliaments had to consider less restrictive measures and policy alternatives in order to ensure that the European Court would defer to their decisions: was evidence that Parliament had considered or discussed different measures sufficient (i.e. would the European court take a procedural review approach), or would the European Court go further to consider whether a legislative measure was rational or irrational, and substitute its view for that of Parliament where it believed Parliament’s decision to be irrational (a substantive review approach)? Judge Spano answered this by stating that a historical review of the European Court’s case law provided examples of both procedural and substantive reviews of the decisions of Parliaments. However, in the four “post-Brighton cases” that he had mentioned earlier, the European Court had primarily taken a procedural review approach, asking whether Parliament has considered the human rights issues, rather than how it considered these issues. As such, the European Court did not in substance reexamine the reasonable choices made by the legislator. This demonstrates what Judge Spano has called a “qualitative, democracy-enhancing approach”, empowering Parliaments to discuss the human rights issues in order to get deference from the European Court.

As readers no doubt will be aware, Protocol 15, negotiated by the British Government during the Brighton Convention in 2012, will enable the European Court to embed these understandings of the concepts of “subsidiarity” and “margin of appreciation”, advanced by Judges Spano and Dean Spielmann (President of the European Court), within the European Convention system.

Comment 

Will this be enough to satisfy Conservative Party concerns that the European Court is infringing the doctrine of Parliamentary sovereignty? In a recent International Bar Association Human Rights Institute debate with the Labour Party MP Sir Keir Starmer QC KCB, Martin Howe QC, one of the Commissioners on the Coalition Government’s Bill of Rights Commission, and adviser on the October 2014 Conservative Party proposals, argued that the Court’s decision in Animal Defenders International v United Kingdom (1) was decided on the narrowest of margins; and (2) had a clear political motivation, namely to repair Britain’s relationship with the European Court. Mr Howe gave a strong impression that he personally would not be satisfied with anything short of British withdrawal from the European Convention (though the Conservative Party proposals had called for reforms to make the judgements of the European Court advisory rather than binding, a proposal that would be clearly unacceptable to the other Member States of the Council of Europe).

With the greatest of respect to Mr Howe, (1) that nine judges of the European Court ruled in favour of the United Kingdom to find no violation of Article 10 in Animal Defenders International v United Kingdom was surprising itself, given that this effectively reversed the direction of travel of the European Court’s own jurisdiction (see the cases of VgT v Switzerland and TV Vest AS and Rogaland Pensjonistparti v. Norway); and (2) as explained above, the European Court is not merely trying to accommodate Conservative concerns, but to foster democratic engagement with human rights at the domestic level across the Council of Europe, and to defer to the decisions of national Parliaments and courts where they have considered the human rights implications, in the “post-Brighton Declaration” age of subsidiarity. The four recent cases of the European Court highlighted by Judge Spano, three of which occur in countries where the legitimacy of the court to overrule Parliamentary decisions is widely accepted, demonstrate how Strasbourg has reformed to accommodate concerns about its democratic legitimacy. Whether this will be enough to satisfy the Conservative Government, only time will tell.

Brian Chang is Research Assistant on the Parliaments, the Rule of Law and Human Rights Project at the University of Oxford. He is grateful to Judge Robert Spano for giving permission to republish his remarks. Any mistakes remain the author’s own.