On the occasion of the publication of the book Parliaments and the European Court of Human Rights by Professors Alice Donald and Philip Leach, Judge Robert Spano of the European Court of Human Rights comments on the general themes presented in the book and its contribution to the ongoing debate on the European Convention on Human Rights and the Principle of Subsidiarity.
A culture of human rights in national parliaments
The effective implementation of human rights requires a culture of human rights at all levels of government as well as in society in general. Therefore, it is a possibly transformative development in European human rights law that the role of national parliaments in the realisation of human rights protection within the Convention system has increasingly become a focus-point in recent years, both at the level of policy within the Council of Europe, but as well, and importantly, at the level of adjudication of actual human rights cases in the Strasbourg Court.
This new book provides an excellent overview of this important development, by highlighting the arguments in favour of a more parliamentary-focussed human rights jurisprudence, while at the same time identifying the potential risks to be addressed in future cases.
As a serving judge of the Strasbourg Court, I would like to make a couple of remarks on the core of the normative argument in this regard, as developed by the authors, on the relationship between human rights, democratic governance and legitimate authority.
The first is a doctrinal point, while the second is more practical.
The principle of constitutional democracy infused into the fabric of the Convention
My first point is that it is important to appreciate that the European Court of Human Rights, interpreting the Convention, has several underlying doctrinal strands or principles permeating its jurisprudence. One is the principle of the rule of law, another is the theory of constitutional democracy as the preferred political system for regulating human affairs in a way which is conducive to the effective realisation of individual human rights. In other words, majority rule decision-making based on a legislative structure of elected representation, a system founded on the principle of political equality, is infused, so to speak, into the fabric of the Convention. It is therefore no coincidence that the Convention requires that where member States restrict Convention rights that allow for limitations, this must be shown to be necessary in a democratic society.
In this sense, the Convention directly calls for a system of shared responsibilities and defined roles between the primary system of protection, the member States themselves, and the international system of adjudication at Strasbourg which is subsidiary to primary protection, a safety valve. It is at the outset for the member State to decide whether a limitation of a Convention right is necessary in a democratic society and, and this is important, not just in any democratic society, but the society of the member State in question.
When democratic societies confront difficult issues of economic and social policy and public order, where tensions often arise between individual rights and the public interest, clear-cut answers are seldom forthcoming. Human rights protections and restrictions at national level thus implicate a mix of legal, moral and political elements that must be balanced into a coherent whole. Inevitably, then, questions of institutional legitimacy in the decision-making process arise. It is therefore axiomatic that since the Convention explicitly and implicitly recognises democracy as the preferred political system of decision-making, the case-law of the Strasbourg Court should highlight the crucial importance of the effective and human rights-orientated role of national parliaments in defining the domestic scale of human rights protections. This is the doctrinal basis for the recent developments in the case-law of the Court, identified by Professors Donald and Leach, referring to the scope, form and quality of legislative deliberations in the assessment of whether it has been demonstrated by the respondent government that a limitation of a Convention right was, indeed, necessary in a democratic society.
The European Court of Human Rights and constitutional theories of judicial deference
My second point relates to the practical difficulties and challenges of this parliamentary and subsidiarity based approach of the Court. It is still early days in the jurisprudential life of this development although it is, as such and at its core, not a novel phenomenon in the history of the Court’s case-law. In their book, Professors Donald and Leach correctly identify certain risks that the Court must be alive to when applying this approach, also referring to views elaborated by other academic commentators as well as by judges of the Court in separate opinions.
I think it is useful in this regard to recall that like other international courts, the Strasbourg Court is heavily influenced by the common doctrinal threads to be found in the constitutional traditions of the member States. For example, although the margin of appreciation is usually considered to be a functional methodology of deference applicable to the relationship between the domestic and international jurisdictions it is, at its core, a hybrid or variation of classical institutional norms of constitutional deference afforded by national courts towards other branches of government, in particular the legislature. There is no principled reason to exclude the possibility that in the future the Strasbourg Court will better educate itself on the ways in which domestic supreme courts and constitutional courts exercise their review powers when asked to examine the way in which national parliaments have assessed the human rights implications of their enactments. However, it is certainly right, as elaborated by Professors Donald and Leach, that deepening its framework beyond what is already in place will run the risk of the Strasbourg Court assuming a primary rather than a secondary role in the determination of what parliamentary processes should look like. Therefore, the Court must tread very carefully in this area and be wary of making grand pronouncements. On this point, the views and arguments presented by Professors Donald and Leach in their book are particularly insightful.
Subsidiarity and domestic empowerment to strengthen human rights protections
Let me conclude with the following remark: it is imperative to appreciate that the Court’s recent willingness to develop a more robust and parliamentary-oriented conception of subsidiarity is not to be understood as an attempt by the Court to limit its review powers or grant member States free reign within the Convention system. As an international court, the European Court of Human Rights must from time to time reformulate some of its methodological tools so as to facilitate the enforcement of the vision of the Convention at the domestic level. At the end of the day, the strengthening of the concept of subsidiarity is an act of domestic empowerment; if managed correctly, it should create incentives for member States to do a better job of fulfilling their mandate under Article 1 of the Convention – that of securing to everyone within their jurisdiction their human rights and freedoms.
Judge Robert Spano is a serving judge at the European Court of Human Rights.