affiliated to the International Association of Constitutional Law
This piece asks whether, in the light of UK proposals for the reform of the ECtHR, and in the wake of the outcry in the UK over the Qatada decision (Othman v UK), the Court is taking an approach that looks like one of appeasement of certain signatory states. Two very recent decisions will be looked at which, it will be argued, contain appeasement elements. Each can be compared with a previous counter-part decision against the same member state which adopts a more activist approach; and each is not immediately obviously reconciliable with the previous decision. Is the Court revisiting the ‘true’ scope of the ECHR in a more deferential spirit?
British proposals for reform of the Strasbourg Court
This is not the place to discuss the proposals for reform of the ECtHR in detail and most readers will be aware of their general drift in any event. The idea of ‘greater subsidiarity’ has been raised at various levels, and accorded various meanings in advance of the imminent High Level Conference at Brighton on the future of the Court. The reform process began in 2010 with the Interlaken and Izmir declarations. Members of the Bill of Rights Commission, which has a second brief regarding its advisory role on reform of the Strasbourg court, linked to British chairmanship of the Council of Europe, take the view that both declarations reflect a desire for greater subsidiarity. Anthony Speaight, Commission member, has indicated that it will look into the question of creating an enhanced margin of appreciation, allowing for greater subsidiarity, on the basis that that would be in accordance with the Interlaken and Izmir Declarations since “one finds in each of them a statement of wish and aspiration for greater subsidiarity”. When the Commission provided its interim advice to Ministers on Strasbourg reform in 2011, it accompanied it by a letter which raised the perception of some, either expressed to the Commission or of some Commission members, that the Court is at times “too interventionist in matters that are more appropriate for national legislatures or courts to decide”. Areas that the Commission has stated it is inquiring into are those of including a democratic override in the ECHR along the lines of s33 of the Canadian Charter and that of introducing ‘subsidiarity reviews’ by analogy with the EU treaty, on the basis of according a power to the Committee of Ministers to resolve that a judgment should not be enforced if it infringed the principle of subsidiarity. The Commission Chair said in the letter that that “would arguably reflect the Izmir Declaration”.
The government’s plans for reform of the Strasbourg Court have been extensively trailed in the run up to the Brighton Conference in April 2012. It was stated in 2011 (according to Parliamentary written answers and statements, 18th March 2011) that the government would use the Chairmanship to press for placing the primary responsibility for protecting the ECHR rights on states, rather than the Court. Intervening in Scoppola v Italy No. 3, Grieve made a further statement indicative of this plan for reform of the Court. He said that a number of states have restrictions or complete prohibitions on prisoners voting, and “this is, and should be, a political question – by which I mean a question for democratically elected representatives to resolve, against the background of [their state’s] circumstances and political culture”. He considered that acknowledging the doctrine of the margin of appreciation in that way would result in the EtCHR intervening only when “the decision of the national authorities is manifestly without reasonable foundation”.
David Cameron’s speech to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the 2012 Qatada case (above), as illustrating the need for reform, he said “we have gone through all reasonable national processes…including painstaking international agreements about how they should be treated …and scrutiny by our own courts…and yet we are still unable to deport [or detain] them”. The members of the assembly voted unanimously to agree that the court should be “subsidiary” to national authorities – governments, courts and parliaments – in guaranteeing human rights. Clearly, the effect of that decision will depend on the precise reforms agreed upon at Brighton. A draft declaration for that conference was ‘leaked’ on 23 Feb 2012, and published in various forums. It focuses on the grave problem of the back-log of cases facing the Court and makes proposals intended to create greater acceptance of the ECHR at national level, to allow the Court to focus on the more significant claims, and to avoid it being faced by persistent claims that should be dealt with at national level. But among laudable proposals for dealing with the back-log, it includes the following – at para 19(a): “The conference therefore welcomes the development of the Court within its case-law of principles such as subsidiarity and the margin of appreciation doctrine…and encourages the Court to give great prominence to these principles in its judgements; (b) Concludes that the transparency and accessibility of the principles of the margin of appreciation and subsidiarity should be enhanced by their express inclusion in the Convention, and invites the Committee of Ministers to adopt the necessary amending instrument within one year”. Para 23(b) on options for amending the admissibility criteria proposes that an application should be declared inadmissible if it is the same in substance as a matter that has already been determined by the national courts unless the Court considers that the national court “clearly erred in its application or interpretation of the Convention rights or the application clearly raises a serious question concerning the application and interpretation of the Convention”.
Austin v UK and Von Hannover v Germany (No 2)
It is in this context that the cases of Austin v UK and Von Hannover (No 2) are considered, in order to argue that certain of the proposals currently being put forward are echoed in dominant themes within the judgments.
The decision in the House of Lords in Austin v The Commissioner of the Police of the Metropolis, finding that ‘kettling’ peaceful protesters and bystanders for 7 hours did not create a deprivation of liberty, has been heavily criticised; it was expected that the ECtHR would take a different stance. In the House of Lords, the key question was whether such entrapment of persons via ‘kettling’ amounted to a deprivation of liberty under Article 5(1). Lord Hope considered that in making a determination as to the ambit of Article 5(1), the purpose of the interference with liberty could be viewed as relevant; if so, he found that it must be to enable a balance to be struck between what the restriction sought to achieve and the interests of the individual (at para. 27). Having found that purpose was relevant to the ambit given to Article 5(1), Lord Hope found that the purpose must take account of the rights of the individual as well as the interests of the community, and therefore any steps taken must be resorted to in good faith, and must be proportionate to the situation which made the measures necessary. If these requirements were met, however, he concluded that it would be proper to find that measures of crowd control that are undertaken in the interests of the community will not infringe the Article 5 rights of individual members of the crowd whose freedom of movement is restricted by them if the measures are proportionate to the aim pursued (at para. 34).
When this decision was challenged at Strasbourg (Austin v UK (2012)), the Grand Chamber took a stance towards the deprivation of liberty question which was very similar to that taken by the House of Lords, finding: “the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good….The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as “deprivations of liberty” within the meaning of Article 5(1)” (at para. 59).
Applying these findings, and affirming that “subsidiarity is at the very basis of the Convention, stemming as it does from a joint reading of Articles 1 and 19” (at para. 61), the Court went on to find that in accordance with the Engel (Engel v Netherlands (1976)) criteria (for determining when a deprivation of liberty occurs), the coercive nature of the containment within the cordon, its duration, and its effect on the applicants, in terms of physical discomfort and inability to leave Oxford Circus, pointed towards a deprivation of liberty. However, the Court found that, relying on the context of imposition of the ‘kettle’, the purpose of its imposition must be taken into account – to “isolate and contain a large crowd, in volatile and dangerous conditions”. The Court found no reason to depart from the findings of fact of the first instance judge as to the dangerousness of the situation. Although the Court did not refer expressly to proportionality, it clearly adverted to that concept in finding that the measure taken appeared to be the “least intrusive and most effective means to be applied” (at para. 66). On that basis no deprivation of liberty was found, meaning that it was not necessary to consider the exceptions to Article 5. Thus, in essentials, the Grand Chamber’s judgment did not differ from that of the House of Lords.
A strong joint dissenting opinion trenchantly criticised the findings of the majority on the basis that its position could be interpreted as “implying that if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable…”. It was found to be objectionable since if in the public order context liberty-depriving measures were deemed to lie outside Article 5 if claimed to be necessary for any legitimate/public-interest purpose, “States would be able to “circumvent the guarantees laid down in Article 5 and detain people for a whole range of reasons going beyond the provisions of Article 5(1) (a) to (f), as long as they could show that the measure was necessary”. They pointed out that in A and Others v the United Kingdom (2009), the Court refused to accept the Government’s argument that Article 5(1) allows a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat, finding: “If detention does not fit within the confines of the paragraphs [Art 5(1) (a)-(f)] as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee” (at para. 171).
The decision in Austin can indeed be critiqued, as in the joint dissenting opinion, on the basis that it in effect creates a new, very broad, exception to Article 5, while purporting to avoid doing so by relating the public interest argument to the issue of ambit. Given that the Court relied on “context” to determine the application of Article 5, and given the need to interpret the ECHR as a whole, the fact that the protesters were seeking to exercise Art 10 and 11 rights, could have been viewed as creating differentiation between the crowd control situations mentioned by the court and the context of protest: the Grand Chamber considered the public order context but not – as a determining factor – the public protest one. A new amendment to Article 5 may be needed to clarify this position, but in the meantime the creation in effect of an exception to Article 5 on broad public interest grounds, represents a worrying trend.
The Grand Chamber reiterated, on the basis of a principle of subsidiarity, that it should only interfere in a domestic decision as to facts on very cogent grounds. But it is suggested that impliedly it went further: it applied the principle of subsidiarity not to the findings of fact only, but to the interpretation of Art 5(1). The House of Lords had found that public interest considerations were relevant to ambit, subject to a test of proportionality. The Grand Chamber, as the joint dissenting opinion pointed out, accepted that analysis in effect – though without overtly referring to proportionality – despite the fact that it ran counter to the findings in A v UK on the interpretation of Art 5(1). The result was consistent with the proposition that the Grand Chamber came very close to accepting that it would require very compelling reasons to depart from the decision of a superior national court that had applied the Convention, taking a particular view of its interpretation, to a set of facts – even where that court could not point to ECHR jurisprudence bearing closely on the matter before it. That stance would be in accordance with both para 19(b) and 23(b) of the leaked Brighton declaration. Obviously 23(b) refers to admissibility, not substance, but para 23(b) in effect demands subsidiarity not merely in relation to fact-finding, but also in relation to interpretation of the Convention.
There is a wider message to be drawn from this narrow approach to the right to liberty which, it is argued, was lost in the pursuit of subsidiarity. In an age of Anti-Social Behaviour Orders, Serious Crime Prevention Orders, and of a range of state powers that interfere with liberty in the contexts of both counterterrorism and public protest, the question whether a “deprivation of liberty” refers to literal physical restraint as in prison, or to something much more amorphous, is of especial importance, and resonates far beyond the public protest context. The varied ways of interfering with liberty now available to the state, render the traditional idea of focusing on physical restraint outdated (this point is touched on in H Fenwick and G Phillipson McGill Law Journal 56(4): 864-918 at 889-890). Had the police arrested the 4 applicants in Austin and detained them for 7 hours, rather than kettling them, there would have been no question as to whether Article 5 applied – the only issue would have been as to the applicability of the exception under Art 5(1)(c). Thus the Court has impliedly accepted that if a non-paradigm case of interference with liberty arises, but there appears to be a pressing need to employ the measure in question on public interest grounds, the “deprivation of liberty” concept should receive a narrow interpretation, placing the measure outside it, even if the Engels criteria appear to apply.
If Austin v UK appeared to rely on an enhanced principle of subsidiarity, Von Hannover v. Germany (no. 2) (2012), also in the Grand Chamber relied, it appeared, on an enhanced application of the margin of appreciation principle (arguably reflecting para 19(a) of the draft Brighton declaration), this time in the context of a clash between protection for private life and for freedom of expression. Relying on the Court’s 2004 Von Hannover judgment, in the first applicant’s case, the applicants had subsequently brought several sets of proceedings in the civil courts in Germany seeking an injunction against any further publication of photos that had appeared in German magazines. They did not obtain relief, however, in relation to an article, partly about the Prince’s illness, accompanying photos of the applicants’ skiing holiday, nor in relation to the photos themselves.
The Grand Chamber noted that after the 2004 Von Hannover decision, the German courts had altered their approach and had sought to balance Articles 10 and 8 against each other in accordance with the Strasbourg stance. The Court accepted that the photos and article fell within the concept of private life under Article 8(1). Thus Articles 8 and 10 had to be balanced against each other. However, the Court found that where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (relying on MGN Limited v. the United Kingdom, no. 39401/04, at  and ). Although the photos were of the applicants on a skiing holiday, the national courts found that they could be linked to and supportive of the article, which did concern a matter of public interest – the Prince’s illness. The Grand Chamber accepted this finding, even though the pictures made little or no contribution to the matter of the illness.
This decision re-confirmed that Articles 8 and 10 are of equal value. But, under the margin of appreciation doctrine, it made it clear that the Court will require “strong reasons” to substitute its view for that of the domestic courts where a balancing exercise between Article 10 and 8 has been undertaken at the domestic level. The Court appears to be contemplating an expanded version of that doctrine, one under which the role of its own assessment of the extent to which paparazzi photos are deemed of value in Article 10 terms is marginalised. The acceptance that the photos in question added something to the article was clearly open to question. The photos were of the same nature as those at stake in the 2004 Von Hannover case which were found to contribute virtually nothing to any significant debate as to public affairs.
The danger may arise that a balancing exercise between Arts 8 and 10 may be apparently carried out domestically, but in a tokenistic manner, allowing flimsy public interest arguments to prevail. In other words, the arguments may be rehearsed by courts without any real attempt to probe the values at stake on either side. The argument accepted by the Court in Axel Springer v. Germany (2012) that since the actor applicant had been arrested and had also played a police officer, the public’s interest in knowing of his arrest was increased, could be applied in broad brush manner domestically, as could the argument that his expectation that his private life would be protected had been reduced since he had placed details of his private life in the public domain.
The suggestion of this piece is that the cases considered may be indicative of a very recent reversal of certain trends in the reasoning of the Court, and may be intended to deflect the criticism that the Court has been too interventionist. The Court in highlighting the role of the margin of appreciation and the principle of subsidiarity in these cases may be seeking to demonstrate that it is receptive to ‘reform’, and softening towards it, rather than being coerced into it. Under the banners of “margin of appreciation” and “subsidiarity” – without creating clear differentiation between those terms – both cases rely on deferring to the nationally created balance between public interest and individual liberty on the one hand, and between two competing rights on the other. The current debate on reform of the Convention system must consider how far pursuit of enhanced subsidiarity can and should represent a welcome attempt to constitutionalise the Convention more fully at national level without relinquishing its role as a means of delivering individual justice, with consequent changes at that level. That debate might also usefully consider the reality behind the desire for reform of senior Conservatives. How far does that desire relate to seeking to create greater respect for the Convention across all member states at national constitutional level, and greater convergence in terms of respecting Convention standards, to reduce the pressure on the Court? In reality, is the key concern to return autonomy in human rights matters to the Westminster Parliament by reducing the likelihood of Strasbourg intervention?
Helen Fenwick is Professor of Law at The University of Durham.
 Eg the new stop and search power not dependent on reasonable suspicion under Part 4 clause 61 of the Protection of Freedoms Bill 2011 (currently the Terrorism Act 2000 (Remedial) Order 2011 introduced, on an interim basis, replacement counter-terrorism stop and search powers, exercisable without reasonable suspicion), and powers under TPIMs, replacing control orders.