Jeff King: Deference, Dialogue and Animal Defenders International

jeff2In Animal Defenders International, the European Court of Human Rights upheld the British ban on political advertising in the broadcast media (s.321 Communications Act 2003), consistently with the judgments of the UK House of Lords and High Court, but in an apparent departure from its previous caselaw in the VgT (Verein gegen Tierfabrik v. Switzerland, no. 24699/94 ECHR 2001‑VI) case.  The key issue in the case was whether a blanket ban (or ‘general measure’) was a proportionate restriction of the freedom of expression, or whether some class of exception (a ‘case-by-case’ approach) for groups such as the NGO in this case ought to be recognized. I am in complete agreement with Jacob Rowbottom’s view on the correctness of the Court’s judgment and the desirability of a general ban.  In brief, the problem with making case-by-case or category-based exceptions for advocacy groups is that there is a risk of profusion of ‘non-profit’ groups that are in fact created and backed by well-monied interests, the unveiling of which becomes an impossible regulatory task in the shadow of constant litigation.  The focus of the present comment is on three further matters raised by the case that are of importance for British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.

Many academics have stepped into what is often called ‘the deference-debate.’ [*] One group, in which we find Murray Hunt, Aileen Kavanagh, Alison Young, myself, and I think to a more subtle extent Alan Brady, believe that there is a role for both the practice of judicial restraint, and also for a specific doctrine of judicial restraint, though none of us is generally skeptical of the judicial protection of human rights. On the other hand, we find Trevor Allan arguing a cogent case that a doctrine (e.g. a set of overtly recognized principles) of judicial restraint would be pernicious, that it will lead to excessive deference, and that any proper role for judicial restraint is already comprehended within the legal standards themselves – in legal concepts such as proportionality, Wednesbury reasonableness, fairness and so on.  For the unanimous judgment of the House of Lords in Huang v SSHD [2007] UKHL 11, Lord Bingham made the following finding, after summarizing a range of immigration-specific factors for consideration:

 The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.

 Who needs a doctrine, in other words? This largely agrees with the views of both Trevor Allan and Tom Hickman.  The problem though is that this view depends entirely on the judge having Lord Bingham’s intuitions about ‘appropriate weight,’ which are not as widely shared as we all would wish.  In Animal Defenders International, the Court split 9/8 and Rowbottom, the country’s leading legal expert on the matter, was himself convinced that Strasbourg would decide against the ban. The safe bet was on losing.

The substance of the majority’s decision gave enormous weight to the comprehensive examination of the issue within the legislative process (and in court thereafter):

 114. […] The Government, through the DCMS [the Department], played an important part in that debate explaining frequently and in detail their reasons for retaining the prohibition and for considering it to be proportionate and going so far as to disclose their legal advice on the subject (paragraphs 50-53 above). The 2003 Act containing the prohibition was then enacted with cross-party support and without any dissenting vote. The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.

115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.

The Court here effectively endorses a notion of judicial restraint in deference to the substance and process by which the decisions were undertaken in this situation.  The very issue of the viability of an exception as an alternative to a blanket ban had been batted back and forth by several bodies during the legislative process (and insufficiently so by the Strasbourg court in previous cases, as the UK argued in this case). The majority judgment showed respect for that process and awareness of their own limitations in second-guessing it in a complex context, when the stakes are high.  (The concurring judgment of Sir Nicholas Bratza was even better on this and other points, but I pass over it here for a variety of reasons).

By contrast, the two dissenting judgments had no time for this.  The first group of dissenters quote the notorious court-sceptic JAG Griffith as authority for the implied point that the British courts defer too much to Parliament (Joint Dissenting Opinion of Judges Ziemele et.al., para.2), and then chastise the majority in the following terms:

“Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT, a judgment which inspired a number of member States to repeal their general ban -a change that was effected without major difficulties.”

 Both parts of this quote are misguided in my view. Dismissing the outcome because such a process can yield wrong results (obvious) is to miss the point that this process, on this issue, did deserve considerable weight for a range of substantive reasons. They include the fact that the interlocutors in that process had special knowledge of British politics, commercial media, and consumer habits, and studied the phenomenon at great length and in good faith. The second part of this quote states a claim that could be a highly material point – surely if the revoked ban had not led to problems elsewhere, then that supports the view that the blanket ban isn’t necessary.  But how do they know whether the ban has not in fact been pernicious there?  No evidence is given on this point, and we cannot assume no news is good news when we haven’t looked.  We do know that the impact of the Citizens United v Federal Communications Commission 558 U.S. 310 case in America, which struck down a not entirely dissimilar ban on ‘electioneering communications’ funded by corporations, has been terrible.   One study determined that the case accounted for 78% of campaign spending in the 2012 Presidential election.  (For a more nuanced view of its impact, see here).

The other dissenting judgment, of Justices Tulkens, joined by Judges Spielmann and Laffranque, at least addressed this issue:

 “17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant.”

In this hubristic gesture, Judge Tulkens sweeps aside the virtually unanimous domestic agreement that it is both relevant and indeed persuasive.  What is brushed aside in the dissenting judgments more broadly include the views of the Neill Committee on Standards on Public Life, which visited several countries and reported at length to Parliament; the Joint Committee on Human Rights; the Independent Television Commission; the Joint Committee on the Draft Communications Bill; the Electoral Commission; and the unanimous opinion of the UK Parliament.  These bodies not only know local dynamics, but had greater subject-matter expertise and took more time for consideration. To offer only one illustration, the Neill Committee Report was 262 pages, and the Committee undertook visits to five countries, considered over 400 written submissions, and spent seventeen days taking evidence from 120 individual experts representing 75 organisations in public hearings held around Britain.  It also commissioned two relevant research studies, one of them analyzing freedom of expression jurisprudence.

I will not delve into the UK literature on judicial restraint here to show how the various factors adduced in that literature would counsel the right outcome here.  In brief, the relative expertise was greatly skewed towards the British institutions, both political and judicial; the exact human rights issue was the subject of protracted debate and litigation; the claimant group was not clearly politically marginalized or vulnerable to begin with (a point which is anyway not decisive here); and the cost of getting the issue wrong could be immense and irreversible (hence an impediment to much needed flexibility).  The principles of restraint and deference alluded to by the authors above all draw attention to these items and above all warn judges to resist the temptation to think that once human rights are in play, the judge decides in splendid isolation from policy or considerations of competence.   To those who think this is all obvious, the near miss in Animal Defenders International reminds us that it isn’t.

Having explored this much, I can deal briefly with my second and third points. The second concerns the value of parliamentary consideration of human rights issues.   I am presently engaged in research that examines parliamentary responses to section 4 declarations of incompatibility, and am struck by the incredible professionalism and rigour that is often (not always) found in this process. The JCHR in particular draws the direct attention of both houses to significant human rights implications of bills. It does so on the basis of advice from its legal advisor (presently Mr. Murray Hunt) and always in due consideration of the domestic and international law, as well as considerations of policy. It considers evidence submitted by a variety of NGOs and engages in extended correspondence with the Government on particular bills.  It is the interaction between this Committee, Government and Parliament, where the normative guidance set out in the jurisprudence of the courts unites with the participatory advantages and working flexibility of the legislative process. It may look revolutionary in the human rights context, but it is in fact a workaday illustration of a more widely acknowledged truth –  that pre-legislative scrutiny, as well as legislative scrutiny, is extremely valuable for helping to identify key issues before views ossify and legislative change becomes impeded by inertia and competition.  It can also potentially play a constructive role in litigation afterwards, either helping or harming a legal challenge to the Convention-compatibility of legislation (pace Article 9 of the Bill of Rights 1689 – on which see further the AHRC Report by Hunt, Hooper and Yowell, Parliament and Human Rights, pp.49-50).

The last point is that this case does represent precisely the merits of UK judges scrutinizing the state’s arguments in UK courts, in Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. The Strasbourg Court not only essentially adopted the reasoning of the UK courts, but in doing so it explicitly rowed back from its own jurisprudence (i.e. the VgT case). This is an entirely appropriate form of institutional dialogue, and shows maturity of judgment, the flip side of the much-maligned UK courts’ own willingness to apply rules laid down in Strasbourg.  The upshot of this is plain: a British Bill of Rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue, and made the wrong outcome in Animal Defenders International more likely.

Jeff King is Senior Lecturer in Law at The  Faculty of Laws, UCL.

Suggested citation:  J. King, ‘Deference, Dialogue and Animal Defenders International’ U.K. Const. L. Blog (25th April 2013) (available at http://ukconstitutionallaw.org).


[*] Some important works in this vein include M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs a Concept of Due Deference’ in Bamforth and Leyland, Public Law in a Multi-Layered Constitution (Hart 2003); A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222 (see also her book Constitutional   Review under the UK Human Rights Act (CUP 2009) Part II; A. Young, ‘In Defence of Due Deference’ (2009) 72 The Modern Law Review 554; J. King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies 409, and Judging Social Rights (CUP 2012) Part II (elaborating four principles of restraint).  For the earliest statement of the best critique, see TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 The Cambridge Law Journal 671, a position refined and enhanced in Professor Allan’s more recent (and forthcoming) work.  See also the nuanced position of Dr. Tom Hickman, Public Law after the Human Rights Act (Hart  2010) (accepting and outlining a role for ‘weight’ and guiding principles, but rejecting the idea of a doctrine).  Alan Brady’s Proportionality and Deference under the UK Human Rights Act (CUP 2012) integrates deference into the proportionality analysis in a manner that I believe has more in common with the doctrinalists than with Allan’s approach. Leadings treatise writers such as Paul Craig, Timothy Endicott and Jeffrey Jowell all recognize the role for judicial restraint but have largely steered clear of the question of whether any doctrine is necessary.

7 Comments

Filed under Human rights, UK Parliament

7 responses to “Jeff King: Deference, Dialogue and Animal Defenders International

  1. Gav

    Worth noting that the UK parliament’s scrutiny of bills to see whether they are “Convention-compliant” – through the careful work of the Joint Committee on Human Rights – has been cited as a model of good practice for the other 46 Council of Europe member states to follow (in a number of reports by the CoE’s parliamentary body PACE). Amidst all the frothing and harrumphing about a UK withdrawal from the Convention, this polite pat on the back for British rigour in dealing with its Convention obligations has gone largely unnoticed…

  2. Animal Defenders International v United Kingdom is another deeply disappointing judgement, in a long-line of troubling judgments by the European Court of Human Rights (see also Otto-Preminger Institute v Austria, Wingrove v United Kingdom, Muller v Switzerland), on Article 10 ECHR. In the starkest contrast to the approach of the United States Supreme Court (under the First Amendment), in Citizens United v Federal Election Commission, Strasbourg gave a “clean bill of health”, to Section 321 of the Communications Act 2003, an extremely wide and harshly paternalistic provision that disables individuals/organisations/corporations from expressing views on innumerable issues of fundamental importance, via the most popular media. Irrespective of the problem of judicial consistency (consider VgT v Switzerland (No 1) and TV Vest v Norway), the Grand Chamber has once more cited with the State, in dealing a powerful blow to the right to freedom of expression. In reliance on broad and unconvincing arguments about “pluralism” and “equality”, the Court, a supposed champion and guardian of human rights for 47 Contracting States, thought it is an appropriate policy for the State to neuter free expression, in furtherance of the “greater good”, by withdrawing all political speech expressed in a commercial platform, to protect against “the evil” of big money flooding the airways. Just as the benign dictator or King can tell his subjects how to live their lives, so can, according to the ECtHR, the State, in a democratic society, impose a blanket ban on an essential right to protect the “sheep” from the “wolves”. Above all, it is a great shame, that the UK, the modern philosophical birthplace of some of the greatest exponents of freedom of speech against weak-willed political thought and the tyranny of the majority (most notably JS Mill, in his masterpiece, On Liberty), has massacred one of the most important rights in a liberal democracy. For shame…

    • Jeff King

      I am very glad indeed that there was the ‘starkest contrast’ between Citizens United and this case in Strasbourg – albeit I wish it were starker. I doubt Mill would have thought spending money on politics was protected speech (he was a utilitarian and would have seen instantly that it destroys the proper marketplace of ideas, the good he wished to see served). ADI wasn’t about spending, of course, but it is another example of the possibility of distortion that impedes the free flow of information that Mill thought grounded the freedom of expression.

      • Parliament’s actions may have been motivated by a noble objective, but this does not detract from the fact that Section 321 of the Communications Act 2003 is a harshly paternalistic, even obnoxious provision, unworthy of a modern liberal democracy. No concrete evidence is offered that without a blanket ban, ordinary people will become alienated from the political process, and their ‘equal’ participation in the democratic process would be distorted. Fear of the wealthy ‘fat cats’ and ‘evil corporations’ should not entitle the State to deny certain fundamental spheres of freedom, because others may not possess equal or compatible faculties. Furthermore, this assumes that the wealthy are a monolith – that they all speak with one voice on all matters (a matter, which is greatly doubtful). Plus, it is odd to think that the fewer (or in this case, none) political advertisements there are, the greater the amount of political participation will be. In this case, ADI wanted to express a legitimate point about animal rights, but its right to express a point of view, was annihilated and “swallowed up” by a legal policy that removes all speech via the mode of advertising. To paraphrase from Justice Kennedy in Citizens United, if free expression means anything, then surely it prohibits the State from fining or jailing people, for simply engaging in political speech.

        In relation to Mill, it is doubtful that he would have supported such a draconian policy, where the State assumes, with great hubris, the role of deciding which speech is ‘good’ and which is ‘bad’ (in the absence of any direct interference or harm). If political advertising is directly harmful in some sense, then we can deal with it through libel laws and other regulations.

        Ultimately, we are now in a position in the UK, where people can be bombarded on the television with alcohol and online gambling advertisements, but an honest political view (take the case of ADI) cannot be legally aired. I find that utterly deplorable.

      • Two additional points:

        [1] Even if the ‘protection of effective pluralism’ argument is accepted (although it sounds nebulous and unsubstantiated), it is difficult to accept that the need to restrict political advertising should extend to an absolute ban on any ‘social advocacy advertising’, as s321(2) does.

        [2] In relation to the extensive Parliamentary work undertaken before s321(2) was enacted, and the fact that there were no dissenting votes when the law was being voted in, it is hard to see why this should play such a significant role in letting the UK “off the hook”.The only relevant question, surely, is the impact of the legislation, which should be decisive. No amount of deliberation on a subject can detract from the pure question of whether this provision amounts to a disproportionate interference with Article 10 ECHR.

  3. Peggy Ducoulombier

    What I find particularly troubling with ADI is not so much the result -there are many good reasons to support such a ban although from a personal point of view, I find it too wide – as the reasoning of the court, which tries to maintain the appareance of consistency with its previous case-law at all costs. For instance, § 109 is particularly shocking and the court errs on the verge of dishonnesty when it states that the method to be applied in ADI to general measures is inspired by the methods used in VgT, Tv Vest and Murphy, stressing that Murphy was applied in Tv Vest. This is not correct. Tv Vest applied VgT, only relying on Murphy to accept to take into consideration the medium used. Murphy proceeded to an abstract analysis similar to that of ADI but connecting it to the sensitivity of religious advertisement, sensitivity which is not at play with political expression. This was another reason why VgT was applied in Tv Vest rather than Murphy.
    The court should have clearly overruled VgT rather than altering further the proportionality test in respect of legislative measures.

  4. Pingback: Cour européenne des droits de l’homme : Bilan d’étape d’un perpétuel chantier institutionnel | La Revue des Droits de l’Homme

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