Tag Archives: Brighton Declaration

Helen Fenwick: Prisoners’ Voting Rights, Subsidiarity, and Protocols 15 and 16: Re-creating Dialogue With the Strasbourg Court?

helen1This blog does not intend to rehearse the merits of the prisoners’ voting rights saga. In principle it is hard to muster reasons providing a basis for banning prisoners from voting: other rights related to the democratic process, such as association and free expression, may necessarily be somewhat circumscribed by the fact of imprisonment (although probably less so in the internet age than previously), but that is not the case in relation to voting, and so the near-absolute ban, based as it is on the idea of ‘civic death’, has little to commend it. However, the merits of the case have been put forcefully by other writers (such as Colin Murray), by Liberty and by the Prison Reform Trust. The purpose of this blog is to note that while this issue has assumed ‘totemic importance’ in relation to national sovereignty (as the Justice Secretary Chris Grayling put it) it would be utterly misjudged to allow it to derail the whole ECHR project as far as a range of states are concerned (see eg Dominic Grieve on this point: Col 511-512). However, such derailment may be precisely what a range of actors may be hoping for, regardless of their views on the disenfranchisement of prisoners, while others may consider that diminution of the influence of the ECHR in some other states is a price Parliamentarians and some voters would be willing to pay to prevent Strasbourg’s interference in democratic determinations as to the democratic process in Britain. Contrary to those views, this blog will argue that the prisoners’ voting rights saga graphically illustrates the need for sensitive and subtle use of the concept of subsidiarity and reliance on a dialogic approach, in an increasingly nationalistic Europe. I argue that there are two ways forward which could put an end to this saga without creating an appearance of outright defiance of the ECHR, and that dialogue and subsidiarity might still have a part to play in so doing.

Subsidiarity and dialogue

The notion that Strasbourg should pay greater attention to the concept of subsidiarity and should promote dialogue with national authorities, especially the higher national courts, has recently gained greater currency. As I have noted elsewhere on this blog, a number of aspects of the Izmir, Interlaken and Brighton declarations (see here) were aimed at creating greater subsidiarity within the judicial process. At the same time, a number of judges have expressed their preference for viewing the interaction between Strasbourg and the UK courts as a dialogue within which both parties seek to find an acceptable balance between the rights of the applicants and countervailing considerations (for example, Lord Neuberger, Baroness Hale, and Sir Nicholas Bratza).

The Interlaken Declaration stated: ‘The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to … take fully into account its subsidiary role in the interpretation and application of the Convention…[and] invites the Court to… avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case law according to which it is not a fourth instance court’ (Point 9). The Brighton declaration emphasised subsidiarity and use of dialogue: ‘The Conference therefore: a) welcomes the development by the Court in its case law of principles such as subsidiarity and the margin of appreciation, and encourages the Court to give great prominence to and apply consistently these principles in its judgments; (b) Concludes that, for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the preamble to the Convention’ (Point 12), as has now occurred in Protocol 15. The declaration further ‘welcomes and encourages dialogue, particularly dialogues between the Court and the highest courts of the States Parties’ (Point 12(c)). Subsidiarity is linked to a dialogic approach in the sense that if the Strasbourg Court perceives itself as providing a level of protection of rights that is subsidiary to that provided domestically, then it needs to pay close attention to national views as to the form of protection that the right should receive nationally and to their context, especially where such views demonstrably take account of key Convention principles at stake in the particular instance, in particular that of proportionality.

In developing some ideas on this subject, I am taking the prisoners’ voting rights saga as a currently highly significant example, to ask whether it represents a failure of the dialogic approach, and whether a similar stand-off might be avoided in future if both dialogue and subsidiarity receive greater emphasis at Strasbourg and domestically. Such emphasis might have been anticipated in this context, given the exceptionally qualified nature of Protocol 1 Article 3, the broad exceptions to the right accepted by the Strasbourg Court, its relativistic approach to it, as discussed below, and the lack of consensus on this matter in the various member states. I intend to consider whether the formal mechanisms introduced in June 2013 under new Protocols 15 and 16 ECHR will play much role in enhancing subsidiarity or dialogic opportunities, or whether informal mechanisms already under development are more significant, although there may be no necessary opposition between the two: formal and informal mechanisms may inter-react. By ‘informal mechanisms’ is merely meant mechanisms that may exist under the banner of the tags of ‘margin of appreciation’ or ‘the concept of subsidiarity’ but which need further delineation and  definition, relying on the Strasbourg jurisprudence.

Further, if the Court adheres to the concept of subsidiarity which is also intended to be linked to a dialogic approach, then might it be said that the decision triggering the prisoners’ saga, Hirst, could have been better explained, and thereby failed to adhere fully to the principles embedded in the concepts of subsidiarity and of dialogue?  Might it also be argued, bearing such concepts in mind, that in the light of the findings in Scoppola as to limitations on enfranchisement of prisoners deemed compatible with Protocol 1 Article 3, that there is room for an eventual very restrained response to Hirst at Westminster (possibly more restrained than that under the second option under the current draft Bill on prisoners’ voting) which the Strasbourg Court might well find persuasive even if it represented minimal adherence to the principle laid down in Scoppola. 

Emphasis on subsidiarity and on dialogic changes under new Protocols 15 and 16 ECHR

Protocol 15 provides: ‘Article 1 At the end of the preamble to the Convention, a new recital shall be added, which shall read as follows: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”.’

Protocol 16 makes provision for advisory opinions, to be sought from the Grand Chamber which will be non-binding on the state, and which must be sought in the context of a case before a domestic court or tribunal (to adhere to the in abstracto prohibition). The state in question must designate the court/tribunal able to seek such opinions (Article 10). Presumably in the UK it would be the Supreme Court. A question might arise as to the judicial response to such opinions; obviously they would be technically non-binding (s2(1)(a) HRA),  but the Supreme Court might view itself as being in a fairly difficult position if it decided to disregard such an opinion, in finding against the applicant in a Convention case. Would the Strasbourg Court then view the Supreme Court as having refused to listen to it, meaning that as the dialogue had broken down, the Court would be less likely to be influenced by the Supreme Court decision than if no advisory opinion had been sought?  If so, reluctance to seek advisory opinions might emerge, meaning that Protocol 16 could in fact encourage anti-dialogic tendencies in the UK. That issue could be of relevance in this current saga in future if the Supreme Court eventually had to adjudicate on claims from prisoners excluded from any new redrawn legislative scheme determining which categories of prisoners could vote.

Enhancing subsidiarity and dialogue?  

O’Meara in this blog argued recently that these changes under the two new Protocols will enhance dialogue. I suggest that their effects should not be over-stated, and that it is more important to examine the factors that may impel the Court to listen to the domestic authorities. What are they?  Below, examples are drawn from the prisoners’ voting rights saga where possible on the basis that some opportunities for dialogue arose, but dialogue was not established.

Democratic legitimacy given to ECHR balancing mechanisms

In Hirst v UK (No 2) the key problem, the Grand Chamber considered, was that Parliament in passing the Representation of the People Act 2000 had given no appearance – it found – of listening to Strasbourg:

“78. The breadth of the margin of appreciation has been emphasised by the Government who argued that, where the legislature and domestic courts have considered the matter and there is no clear consensus among Contracting States, it must be within the range of possible approaches to remove the right to vote from any person whose conduct was so serious as to merit imprisonment.

79. As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote.”

As the dissenting judges in Hirst pointed out, there is a contradiction between the Court’s consistent case-law to the effect that Article 3 of Protocol No. 1 leaves a wide margin of appreciation to the Contracting States in determining their electoral system, and its categorical finding that a general restriction on voting for persons serving a prison sentence “must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be” (para 82).  The dissenting judges noted that in Py v France (cited in Hirst at [46]) the Court stated:

 “Contracting States have a wide margin of appreciation, given that their legislation on elections varies from place to place and from time to time. The rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each State. The number of situations provided for in the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. However, none of these criteria should in principle be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another”.

The dissenting judges in Hirst argued that the Grand Chamber was adopting an “evolutive” or “dynamic” interpretation of Protocol 1 para 3. If so, they found that according to its own case law it should have founded itself on “a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved” (see Hirst, Joint Dissenting Opinion of Judges Wildhaber etc para 6). Such a consensus was hard to discern (Hirst para 33).

The Grand Chamber did not fully explain why the UK’s scheme was deemed to fall so clearly outside the state’s margin of appreciation. Was it found so to fall due to the apparent failure of Westminster to engage sufficiently with Protocol 1 para 3 during Parliamentary debate, or on the basis that no possible Parliamentary articulation of the reasons for coming to the determination that was reached could have been viewed as satisfying the provision? If so, the lack of such articulation would be irrelevant, but the Court could have given greater consideration to the ways in which the UK could have met its obligations in relation to the demands of proportionality under para 3.

Judicial pronouncements in senior domestic courts

In Hirst v UK the Grand Chamber said: “It is also evident from the judgment of the Divisional Court that the nature of the restrictions, if any, to be imposed on the right of a convicted prisoner to vote was generally seen as a matter for Parliament and not for the national courts. The court did not, therefore, undertake any assessment of the proportionality of the measure itself” (para 80).

In other words, no domestic court pronouncement on the issue of proportionality was available, to guide the Strasbourg Court. In other contexts, a number of examples can be found in which, where such guidance was available, and where the consideration of the right in question was fully embedded in the judgment, the Court allowed itself to be guided towards a position in harmony with that taken by the national Court, even where that meant departing from its own previous judgment.

For example, in Von Hannover No 2 the Court did not depart from the decision of the German Federal Constitutional Court  in finding that a photograph non-consensually taken, and making no contribution in itself to a matter of public interest, had not created a breach of Art 8 due to its publication, a finding of doubtful compliance with its findings on the same point in Von Hannover no 1. In A v UK the Court was clearly influenced as to the width of the margin of appreciation to be conceded to the UK by the findings of the House of Lords in A and others as to the proportionality aspect of Article 15. In Austin v UK, as I have pointed out elsewhere, the Court in effect followed the House of Lords’ decision in respect of balancing societal concerns against liberty under Article 5, disregarding its own findings on a similar point in A v UK.  In Al-Khawaja, as others have pointed out (for example Baroness Hale), the Grand Chamber was guided by the Supreme Court in Horncastle in reaching the decision on the scope of Article 6, which was contrary to its decision in the Chamber on the issue.

Failure of dialogue and the future of the Strasbourg Court?

Obviously dialogue is not dependent purely on the proper operation of the margin of appreciation doctrine as an aspect of subsidiarity. But operating that doctrine properly provides more space for dialogue. By ‘properly’ is meant – consistently, as the Interlaken declaration pointed out, and on the basis of clearly enunciated principles. Such principles include acceptance that if, under the Strasbourg jurisprudence, a state has an exceptionally wide margin of appreciation on a particular matter, it should not be found to have over-stepped that margin unless the European consensus on the issue has changed (for example, as occurred in Goodwin).

It is fairly obvious that the voting rights’ saga does represent a failure of dialogue. It may be said that the Court in Scoppola did try to effect some form of compromise between the UK position and the one it had taken in Hirst. However, that process cannot be viewed as dialogic since the two positions are fundamentally incompatible – there cannot be a dialogue that merely destroys the basic principle underlying voting rights, adopted by the Court. Two bodies at loggerheads cannot engage in dialogue. That failure can be broken down into a number of stages. First the Westminster Parliament, in passing the Representation of the People Act 2000, did not debate the question of balancing prisoners’ voting rights against countervailing considerations in a way that – in the Court’s later view – comported with the provisions of Protocol 1 para 3, even though the Act was accompanied by a statement of compatibility under s19 HRA. Had Parliament started from the standpoint that there is a human rights-based case for prisoners to vote, but that exceptions had to be made, and had given consideration to express adherence to the principle of proportionality in the legislation, it is still unlikely that Hirst would have gone the other way in terms of outcome since the Court would still have found that Parliament had made too little effort to give legal effect to the principle it had discussed. Given the outcome in the 2000 Act, it would have been impossible for the Westminster Parliament to demonstrate to the Court’s satisfaction that acceptance of the principles underlying Protocol 1 para 3 was genuinely embedded in the Parliamentary process, and so the choice made by the UK would still have fallen outside its margin of appreciation. However, the Court could have ‘listened’ to Westminster in the sense that its judgment might have created more leeway for the UK in terms of future options to make change more palatable to the British public – as it in effect then did in Scoppola. Second, as discussed, the Court did not facilitate future dialogue between itself and Westminster in Hirst in the sense of failing to discuss ways in which Parliament could maintain its substantive restrictions on prisoners’ voting rights while putting in place a procedure able to give sufficient legal recognition to those rights (as Italy was later found to have succeeded in doing).

Could Parliament and the Strasbourg Court now extract themselves from this stand-off by a more subtle and sophisticated operation of the ECHR mechanisms of dialogue and subsidiarity that are to hand? Two ways forward are apparent. If in debating the draft Voting Eligibility (Prisoners) Bill  Parliament speaks in the language of para 3 – in other words, acknowledges that prisoners have a right to participate in the free expression of the opinion of the people in the choice of the legislature which may be furthered by allowing some prisoners to vote, but could also be furthered in other ways (eg contacting MPs, writing to newspapers), it could then consider which exceptions to that principle should be maintained in order to further the aims the government has stated that the current prohibition is pursuing. If Parliament was prepared to vote for the second option under the draft Bill that would create an enlargement of the category of convicted prisoners who can vote that would arguably comport with the key finding from Scoppola since the restriction would not be general, automatic and indiscriminate (as recently reiterated in Soyler v Turkey and Gladkov v Russia).

Such a restriction could be viewed as falling within the UK’s margin of appreciation as delineated in Hirst, and as emphasised due to the change to the preamble effected by Protocol 15. It would arguably not be arbitrary – not for the reasons given by Lord Sumption in the recent Supreme Court decision in Chester that a prisoner might equally miss a spell of fine weather by being in prison (para 115), but because if the restriction can be viewed as rationally connected to the aims in question, then its impact on a particular prisoner who happens to miss a general election due to his/her release one day after it has occurred, is an inevitable result of operating any restriction (including those compatible with Protocol 1 para 3), and is also a result of not instituting a more far-reaching ban, affecting the prisoner after release. A prisoner under the Italian legislation upheld in Scoppola could be disenfranchised for life if serving more than 5 years; a prisoner serving 3 years could be banned for 5 years. (There are also US precedents for barring prisoners from voting after release – for example, Kentucky and Virginia). A wider range of prisoners would be disenfranchised than in Italy but that was not the key issue in Scoppola. That option would effect a fairly minor change, bearing in mind that some convicted prisoners can vote at present. It would obviously avoid the taking of the step whereby Parliament had deliberately voted to disregard a judgment of the Strasbourg Court, which would be unprecedented in the member states. That result would however be unpalatable to many, including the majority of the British public. (A recent Yougov poll indicated that the public generally do not accept that prisoners should vote). So the question, obviously, is whether Parliament would accept it.

Secondly, if the current draft Bill was modified, and the Parliamentary vote eventually takes place in, say, 2016, a modified version of the second option under the current Bill might gain public and Parliamentary acceptance – in a less forensic atmosphere. Would voters in the UK accept a new system whereby there was a much clearer link between seriousness of offence and disenfranchisement, so that certain prisoners serving longer sentences were disenfranchised even after release, while those serving very short sentences were not disenfranchised at all? For example, prisoner enfranchisement could apply to those serving any sentence of up to six months and could be dependent on the circumstances of the offence in question. Obviously that would mean that judicial consideration of enfranchisement would occur at the point of sentencing in relation to offenders in that category, meaning that the UK had in that respect exceeded the minimum demands of Scoppola (para 99). The key point for Strasbourg is obviously that there must be a real engagement of the state’s infrastructure with this issue (not necessarily at the judicial level), even if substantively there was little widening of prisoner enfranchisement as a result. Balanced discussion of the matter in the media, taking account of the value to society of rehabilitating persons in the latter group, would aid in public education on this matter and promote a more nuanced public response, but large sections of the media appear to view the whipping up of public hatred of the Strasbourg Court, using this issue as the focal point, as of greater concern.

At the present time, Parliament has been presented with an option in the draft Bill – maintaining the current prohibition – that is incompatible with the Convention as interpreted by the Court. Whatever Parliament eventually does, the fact that the government has brought the incompatible option forward at all is telling. At the same time Strasbourg has reactivated 2,281 prisoners’ voting rights cases against the UK awaiting judgment (see Firth and 2,353 others v UK in March 2013). The compensation they could be awarded (although clearly it would vary from individual to individual) is rising steadily since post-Hirst a number of them have already missed a number of elections and they could miss the 2015 General Election. It might appear that both sides are placing pressure on each other to back down, in a reversal of a dialogic stance, although there is almost certainly no apparent route by which the Court could do so. There is no political process at the international level which could be utilised. If Parliament eventually takes the ‘incompatible’ option, but there is a full debate as to the basis for the degree of disenfranchisement, taking full account of Hirst and Scoppola, it is conceivable, in accordance with the notion of enhanced subsidiarity which appeared to underlie the Brighton declaration, that the Court might in future view that option as in fact compatible with para 3. Conceivable but highly improbable. From an anti-European standpoint that would obviously be a welcome result.

Conclusions

The conclusion of this piece is that the mechanisms for dialogue and subsidiarity are already present – the UK and the Court need to learn to operate them more effectively and sensitively – although that may be too late in relation to prisoners’ voting rights. Protocol 15 does not add much, it is suggested, to that process in formal terms, but may aid in impelling the Court to take a more cautious or nuanced approach to issues of this nature (taking a Scoppola-type of stance rather than a Hirst one), and to paying greater attention to consistency in its operation of the margin of appreciation doctrine. Parliament might more readily recognise that the UK’s margin of appreciation might be more fully triggered in respect of a particular decision only if a full balancing analysis has occurred in the Parliamentary process. Protocol 16 might be of value in allowing the Court to talk to the Supreme Court at an earlier stage in potential conflicts. It is also arguable, albeit controversially, that Protocol 16 should have made provision for advisory opinions to be sought by national legislatures (and should therefore have made an exception to the in abstracto principle). Clearly, this message is unlikely to gain much purchase amid the current anti-ECHR rhetoric of a number of senior Conservatives; the project of manipulating popular perceptions of the ECHR is unlikely to be furthered by avoiding stand-offs with Strasbourg. But there are a number of possible outcomes of the 2015 general election within which such rhetoric would be politically difficult, meaning that putting more effort into fostering a dialogic approach could be valuable.

Helen Fenwick is Professor of Law at the University of Durham.

Suggested citation: H. Fenwick, ‘Prisoners’ Voting Rights, Subsidiarity, and Protocols 15 and 16: Re-creating Dialogue With the Strasbourg Court?’   UK Const. L. Blog (26th November 2013) (available at http://ukconstitutionallaw.org)

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Noreen O’Meara: Reforming the European Court of Human Rights through Dialogue? Progress on Protocols 15 and 16 ECHR

noreenMuch progress has been made following the agreement of the Brighton Declaration on reforms to the working practices of the European Court of Human Rights (ECtHR).  The Brighton Ministerial Conference in April 2012 prompted renewed reflections on the role and legitimacy of the ECtHR itself.  In the UK, the timing of the Conference coincided with highly politicised debate over Strasbourg’s prisoner-voting case law and the sanctity of subsidiarity; debate which tended to overshadow practical concerns about the ECtHR’s capacity to exercise its constitutional and adjudicatory functions.  One year on, this post provides an update on progress made pursuant to the Brighton Declaration with a particular focus on proposals to extend the Court’s advisory jurisdiction under draft Protocol 16 ECHR.

Protocol 15 ECHR: Practical Solutions?

While the docket of the ECtHR has begun to fall over the past year (having peaked at approximately 159,000 pending cases in early 2012), there is no shortage of applications.  Strategies have been adopted in recent years to alleviate the Court’s caseload under Protocol 14 ECHR and via changes to the Court’s working methods.  The increased use of the single-judge procedure, for example, and the increased competences provided to three-judge committees are changes which seek to impact on the volume of manifestly inadmissible or repetitive cases.  The corollary increase in power accorded to the Court’s Registry (which plays a vital but powerful role in filtering out apparently unmeritorious cases en masse) merits further scrutiny.  The significant delays involved in introducing reforms (Protocol 14 ECHR remained open for signature for six years before its entry into force in June 2010) are partly to blame for the slow progress in this area.  It will take more time for these changes to radically impact on the Court’s caseload, which remains unsustainable.

Many of the practical changes suggested in the Brighton Declaration were relatively unambitious.  Protocol 15 ECHR, adopted by the Committee of Ministers of the Council of Europe on 16 May 2013, comprises a collection of reforms deriving from the Brighton negotiations.  The most eye-catching of these is the reduction of the time-limit to apply to the ECtHR under Article 35(1) ECHR from six months to four.  This move was supported by the Court in its Preliminary Opinion pre-Brighton, which indicated that the Court was open to a significant reduction to the time-limit.  Protocol 15 ECHR also provides for references to subsidiarity and margin of appreciation to be added to the preamble to the Convention.  The new recital reads: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’.  As noted above, debate on the principle of subsidiarity and the doctrine of the margin of appreciation was a feature in the lead-up to the Brighton Conference.  While the addition of a new recital clearly stems from the agreement at Brighton, and will provide a further point of reference for the Court, it is (in my view) hardly likely to make a meaningful substantive impact on the Court’s adjudication, in practice.

Other procedural aspects covered by Protocol 15 ECHR include an adjustment to the ‘significant disadvantage’ criterion, which was a key concern for NGOs at the Brighton Conference.  The Protocol rectifies an apparent anomaly introduced by Protocol 14 ECHR by deleting the words ‘and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’ from Article 35(3)(b) ECHR.  This adjustment will widen the Court’s scope to reject applications.  Furthermore, parties will no longer be able to object to the relinquishment of jurisdiction over a case from the Chamber to the Grand Chamber under Article 30 ECHR.  This innovation is welcome as a streamlining measure – indeed, para 25(d) of the Brighton Declaration encouraged States Parties to refrain from raising objections to the relinquishment of jurisdiction pending the adoption of Protocol 15 ECHR.  Finally, in a measure which may enhance the perceived independence of judges and reduce turnover of the Court’s membership, the Protocol scraps the current compulsory retirement age (70) and introduces a requirement that candidates for judicial office must less than 65 years of age when their nominations are received by the Parliamentary Assembly.  This reform will only apply to elections taking place after the entry into force of Protocol 15 ECHR.  As ECtHR judges are elected to serve a nine-year term, this measure effectively raises the maximum retirement age to 74.  Food for thought for any states reviewing rules on retirement ages for national judges…

Draft Optional Protocol 16 ECHR: Extending the Court’s Advisory Jurisdiction

The proposal to extend the ECtHR’s limited advisory jurisdiction powers to enable highest national courts to seek advisory opinions is in the process of being agreed via Draft Protocol 16 ECHR.  Whilst this initiative was tabled at the Brighton Conference, it had been mooted and discussed in Council of Europe (CoE) circles with increasing frequency since the Wise Persons’ report in 2006.  Indeed, the roots of this initiative can be traced back decades to the adoption of Protocol 2 ECHR.  This proposal gained sufficient support to be included in the Brighton Declaration and has progressed through the drafting stages.  The resulting draft optional Protocol is currently being considered by the Committee of Ministers, which will take account of the ECtHR’s Opinion on Draft Protocol 16 (adopted by the plenary court on 6 May 2013), and the Parliamentary Assembly’s Opinion (anticipated at the end of June 2013 – draft version adopted on 27 May 2013) when deciding whether to adopt the draft Protocol.

Characterized as ‘the protocol of dialogue’ by Judge Spielmann, Draft Protocol 16 ECHR permits ‘highest national courts and tribunals’ to request non-binding advisory opinions on ‘questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto’ (Article 1(1)).  Such questions should arise in concrete cases, avoiding abstract review (Article 1(2)) – the Court’s latest Opinion emphasising the absence of any role for the ECtHR in reviewing facts or adjudicating on national proceedings (at para 8).  Highest national courts and tribunals competent to request advisory opinions should be nominated by Contracting Parties, with the surprisingly flexible gloss that such nominations may be changed ‘at any later date’ (Article 10).  The admissibility of requests and delivery of opinions would be a task undertaken exclusively by the Grand Chamber of the Court: admissibility handled by a 5-judge panel, the delivery of opinions by the Grand Chamber itself (Article 2(1)-(2)).  After disagreement on the question of whether reasons for declining to deliver advisory opinions (evident in the Court’s Reflection Paper (para 21) and on the part of the drafting group), the Protocol provides that decisions declining requests for advisory opinions should be motivated with reasons (Article 2(1)).  It would have been odd for a Protocol aimed at enhancing dialogue between courts not to require the ECtHR to provide specific reasons to requesting courts.  The Court’s Opinion (at para 9) suggests that it has now been persuaded by the benefits of this approach, in the interests of promoting ‘constructive dialogue’ (echoing Lord Neuberger’s phrase in Pinnock).  Such reasons will, the Court observes ‘normally not be extensive’.

Assuming that this proposal will be adopted (a politically unsafe assumption, but for the purposes of this post a convenient one) its impact and reach will be limited by its adoption via an Optional Protocol.  Draft Protocol 16 ECHR will enter into force after ratification by 10 Contracting Parties (Article 8(1)).  The Court has consistently supported the optional nature of the proposed procedure.  Without a potentially long wait for ratifications by states supporting this initiative, this may offer scope for interesting early opinions on aspects of the Convention and its Protocols which are of greater (substantive) interest than opinions deliverable under the current restrictive regime (Article 47 ECHR).  The early opinions sought by highest national courts pursuant to the Court’s expanded jurisdiction could prove to be a good indicator of what national courts perceive as being particularly problematic issues.  The submission of questions relating to jurisdictional issues, apparent inconsistencies in Strasbourg jurisprudence, or alleged restrictive approaches to the margin of appreciation doctrine could (hypothetically) emerge as questions which are the subject of advisory opinions, as well as more obvious questions relating to the compatibility of national law with the Convention.  Early experiences with this procedure could inspire or dissuade further Contracting Parties in ratifying the Protocol, and impact on nominated courts’ preparedness to engage with it.

There is much to be said for designing a system which actively reinforces dialogue between the ECtHR and highest national courts, facilitating sound interpretation and application of Convention rights at national level.  However, aspirations for this procedure as a ‘platform for dialogue’ which will additionally impact on the Court’s voluminous docket seem utopian.  A reduction in the Court’s docket of pending contentious cases will not materialise in the long-term unless serious consideration is given to the Grand Chamber’s capacity to handle this procedure.  There is an obvious risk that it could generate more litigation without achieving the desired knock-on effects of reducing contentious cases.  Moreover, the scope for overlap between the Court’s advisory jurisdiction and its contentious case law is real (were the delivery of an opinion to trigger, rather than prevent, applications).  Though the Court ‘endeavours to speak with one voice’ when delivering an advisory opinion (ECtHR Opinion, para 11), the scope for the delivery of separate opinions provided by Article 4(2) could contribute to uncertainty and lead to further applications. The need for expeditious delivery of advisory opinions, as accepted by the ECtHR in its Opinion (para 13), whilst at the same time avoiding delays to pending contentious cases could be a big ask. The Grand Chamber rarely delivers more than two-dozen cases per year: the last thing it needs is more.

Though the Court’s attitude towards extending advisory jurisdiction appeared somewhat muted in its Preliminary Opinion, the latest Opinion fully subscribes to the Protocol’s aims.  Political support for this kind of reform has been patchy over the years; CoE reports and proceedings have variously recorded states’ support and opposition for this proposal.  It remains to be seen whether the Committee of Ministers approves Draft Protocol 16 by consensus, or whether a more complex vote is needed.  If Protocol 16 ECHR is approved, the UK, in its traditional schizophrenic approach to this issue – supportive of reform, but sceptical of actually being involved – is not expected to be at the front of the queue to ratify.  The UK Supreme Court may be shielded from engaging with this procedure for some time yet.

A year ago I viewed the Brighton Declaration with a mix of relief and concern.  The final Declaration succeeded at neutralising the more political features of earlier draft versions, but it did so without proposing radical, efficient measures to speed up the delivery of justice.  The fundamental appeal of an initiative such as the extension of advisory jurisdiction under Protocol 16 ECHR will prove hollow if it fails to meet its objectives: promoting dialogue on one hand, whilst over-burdening the Grand Chamber and potentially lengthening the adjudicatory time for other contentious cases.  For as long as the ECHR system views the right of individual petition as something too precious to erode – balancing constitutionalist and adjudicatory roles as if on a tightrope – it seems idealistic reforms will continue to influence the kind of Court it strives to be.

[Extended analysis of draft Protocol 16 ECHR is provided in K. Dzehtsiarou and N. O’Meara ‘Advisory Jurisdiction and the European Court of Human Rights: A Magic Bullet for Dialogue and Docket-Control?’ Legal Studies (forthcoming, 2014).]

Noreen O’Meara is a Lecturer in Law at the University of Surrey

Suggested citation: N. O’Meara, ‘Reforming the European Court of Human Rights through Dialogue?  Progress on Protocols 15 and 16 ECHR’  UK Const. L. Blog (31st May 2013) (available at http://ukconstitutionallaw.org).

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Colm O’Cinneide: Prisoners Votes (Again) and the ‘Constitutional Illegitimacy’ of the ECHR

The relationship between the UK and the European Court of Human Rights is once again in the news. On the 22th May last, the Grand Chamber of the Strasbourg Court delivered its judgment in Scoppola v. Italy (No. 3), Application No. 126/05. This decision marks a potentially decisive moment in the long-running saga of prisoner voting rights. In essence, the Grand Chamber reaffirmed its ruling in Hirst v UK (No. 2) that a blanket and indiscriminate prohibition on prisoners voting was not in conformity with Article 3 of the First Protocol (the right to free elections). However, it also recognised that states enjoyed a wide margin of discretion when it came to regulating the circumstances in which prisoners should be entitled to vote. In particular, ‘Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied’, as long as they refrain from imposing ‘any general, automatic and indiscriminate restriction’ (see para. 102 of the judgment).

In other words, the Hirst decision has been upheld, but the UK has been given room to manoeuvre in how it responds to this requirement. However, the UK government must bring forward legislative proposals to amend the existing blanket ban within six months. If it does not, then in accordance with the Court’s ’pilot’ judgment in Greens and M.T. v UK, the 2500 pending cases before the Court on this issue will be ‘unfrozen’, which in turn may expose the UK to multiple claims for damages.

The judgment in Scoppola has been excellently analysed in depth by a number of commentators: see in particular Adam Wagner’s posting on the UK Human Rights Law blog, Carl Gardner’s analysis at Head of Legal and Marko Milanovic’s comment on the judgment on the EJIL: Talk blog. As Joshua Rozenberg has argued, the Court has effectively extended an olive branch to the UK government, which it might be wise to accept. However, the judgment has also attracted the usual media outrage, as examined by ObiterJ on Law and Lawyers, with the Daily Mail describing the decision as representing ’Contempt for Democracy’. The Prime Minister has stated at Question Time in the House of Commons that the will of Parliament should prevail over the views of the Strasbourg Court on this issue (H. C. Debs. 23 May 2012, col. 1127), while Jack Straw and David Davis have in a letter to the Daily Telegraph called on Parliament to defy Strasbourg.

It appears therefore as if no easy resolution to the stand-off on prisoner voting rights between the Court and the UK is yet in sight. It has been just over one month since the Brighton Declaration, where as Mark Elliott has discussed on this blog the UK joined the other state parties to the ECHR in affirming the crucial role played by the Strasbourg Court in protecting human rights and rule of law across Europe and committed itself to respecting judgments of the Court. (See in particular paragraph 3 of the Declaration, which states in unambiguous language that [w]here the Court finds a violation, the State Parties must abide by the final judgment of the Court’.) The UK government thus appears to have got itself into a tangled mess. Its words and deeds in respect of the ECHR appear to be getting dangerously out of synch. Even if legislation amending the blanket ban on prisoner voting is laid before Parliament within the six month time-limit imposed by the Court, the Prime Minister’s comments will certainly have fortified parliamentary opposition to making any concessions on this issue. As things stand, the UK is still locked on a collision course with Strasbourg, unless a dramatic political change of direction takes place.

Much of the hostility directed towards the Strasbourg Court is based on a visceral distaste of giving prisoners voting rights. Famously, even contemplating this idea appears to make the Prime Minister nauseous. Given the quasi-sacred status accorded to the idea of universal franchise within the UK constitutional order (the doctrine of parliamentary sovereignty is now justified on the basis that the House of Commons is elected by popular vote), it is perhaps odd that Strasbourg’s mild request for amendment of the blanket disenfranchisement imposed on prisoners has attracted such a backlash. However, the rights and wrongs of this issue have been discussed before on this blog by Jeff King.

What has not been discussed in detail here or elsewhere is the argument made by Jack Straw MP, David Davis MP, Michael Pinto-Duschinsky, Dominic Raab MP and others that the Strasbourg Court is acting in a constitutionally illegitimate manner in insisting on a repeal of the blanket ban on prisoners voting, and that it would be a violation of democratic principles for the UK to defer to the decision of an unelected international court on such a manner. This argument drives much of the opposition to the Court’s rulings in this context. It also explains why David Davis and Jack Straw in their above-mentioned letter to the Telegraph have described these judgments as infringing ‘our constitutional rights’. It even underscores the call by Pinto-Duschinsky, Raab and others for the UK to consider withdrawing from the jurisdiction of the Court and/or from the Convention, which they argue would be a necessary and justified step if the Court fails to mend its ways and exercise greater self-restraint.

This argument that it is ‘constitutionally illegitimate’ for Strasbourg to rule against the UK on the blanket ban on prisoners voting is based on two distinct but inter-related elements. First of all, it assumes that the European Court of Human Rights has gone beyond the legitimate scope of its authority by treating the Convention as a ‘living instrument’ and adopting a teleological interpretative approach to its provisions. In its eyes of its critics, the original drafters of the Convention never intended it to be read in this way: as a result, the Court is abusing its authority when in a decision such as Hirst it interprets the right to free elections in Article 3 of the First Protocol as extending to cover the right to vote. Secondly, the assumption is also made that it is contrary for democratic principles for the UK to bind itself to follow the determinations of an unelected body such as the Strasbourg Court. However, both these assumptions are open to challenge.

To begin with, the argument that the Court is going beyond its mandate is open to question. As Danny Nicol has argued, the travaux préparatoires of the ECHR make it clear that there was no consensus among the original negotiators that it should be read in a narrow and minimalist manner (‘Original Intent and the European Convention on Human Rights’ (2005) Public Law 152-17). Furthermore, international treaty instruments such as the Convention are usually expected to be interpreted in a purposive manner, not by reference to the original intent of their drafters. In their letter to the Telegraph, Davis and Straw state that the job of the Court ‘is to apply the principles of the Convention as originally intended by those who signed it – nothing more, nothing less’, and go on to say that the Vienna Convention on the Law of Treaties requires that ‘international treaties must be interpreted as their drafters intended’. However, this appears to be a straightforwardly incorrect interpretation of international law. The provisions of the Vienna Convention are notoriously vague: however, Articles 31 and 32 make it clear that courts should focus on the ‘object and purpose’ of treaties, and that the intention of the drafters can only ever be taken into account in a ‘supplementary’ manner. The ‘living instrument’ approach adopted by Strasbourg is very similar to that adopted by other human rights bodies, as well as by constitutional and supreme courts in Europe and across the Commonwealth. Of course, views will differ on whether the Court got it wrong when it decided Hirst, Greens and Scoppola. However, it is by no means obvious that its overall interpretative approach is ‘illegitimate’.

Secondly, the argument that it is undemocratic for the UK to defer to decisions of the Strasbourg Court can also be challenged. The UK consented to the jurisdiction of the Court and voluntarily undertook to abide by its decisions. This would appear to be completely compatible in principle with the principle of democratic self-governance and national sovereignty: as Jeremy Waldron has commented, ‘[p]art of the point of being a sovereign is that you take on obligations’. Furthermore, as previously noted, Parliament is under no constitutional obligation to give effect to a Strasbourg judgment: it can choose to disregard any judgment of the Court, or even to withdraw from the Convention, at any time. If it does so, the UK may experience strong diplomatic pressure to change its mind from other states. Its international credibility may also be fatally undermined by a refusal to respect a judgment of the Court, as this would call into question its commitment to the principles of human rights and rule of law which it consistently demands that other states respect. However, Parliament, not Strasbourg, retains the final say.

This means that the current relationship between the UK and the Strasbourg Court would seem to be entirely compatible with democratic principles. The fact that the UK faces considerable pressure to comply with Hirst, Greens and Scoppola does not mean that the Court’s role under the Convention is illegitimate or anti-democratic: it simply reflects the fact that the expectation that Parliament should respect international law, human rights and the rule of law may at times require it to exercise its powers differently from how it would if left to its own devices. If anything, the Strasbourg Court could be seen as playing a positive role in enhancing British democracy: as Richard Bellamy (no lover of judicial supremacy) has argued, it helps to protect the rights of those who do not enjoy effective access to Parliament and the political process. It also helps to link democracy in the UK to democratic progress elsewhere, and makes possible a convergence of standards which elevates rights protection, democracy and the rule of law across the Council of Europe zone as a whole.

None of these objections constitute a full and complete answer to the Court’s critics. Neither do they establish a complete case as to why Parliament should defer to the Court’s views on prisoner voting. Opinions will inevitably differ as to when Strasbourg has crossed the line between law and politics, or when it has made a questionable decision. However, the claim that the Court’s position on prisoner voting rights is ‘constitutionally illegitimate’ seems to be seriously open to debate.

Colm O’Cinneide is a Reader in Law at University College London.  

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Filed under Human rights, Judiciary, UK Parliament

Mark Elliott: The Brighton Declaration: where now for the Human Rights Act and the Bill of Rights debate?

The Brighton Declaration, which emerged from last week’s High Level Conference on the Future of the European Court of Human Rights, has already attracted a substantial amount of comment—including by Noreen O’Meara on this Blog and Ed Bates on the UK Human Rights Blog. In this post, I revisit some of the arguments I made earlier this year, in the light of a draft of the Declaration that was leaked in February, concerning the possible implications of the Brighton process for the effectiveness of the Human Rights Act 1998 (HRA) and the debate about a UK bill of rights. In this piece, I argue that the final version of the Brighton Declaration—viewed from the perspective of the UK’s domestic human rights regime—is less drastic. I go on to suggest that the Brighton process has therefore failed to carve out any significant latitude that might have been exploited by those proponents of a UK bill of rights whose agenda essentially reduces to the weakening of judicial protection of human rights.

The February draft

In my post on the February draft of the Brighton Declaration, I suggested that the relative potency of the HRA is attributable to two key considerations. First, while the Act leaves the legal doctrine of parliamentary sovereignty undisturbed, the Act reduces Parliament’s political capacity to exploit that doctrine by legislating in breach of fundamental rights; this the Act achieves by enabling courts publicly to condemn ECHR-inconsistent legislation via the issue of a declaration of incompatibility. Second, the HRA permits international law to disrupt the national legal and political processes by ascribing a notably high profile at the domestic level to the UK’s obligations under the European Convention on Human Rights (ECHR).

The February draft of the Declaration would, if implemented, have substantially weakened the HRA system. By diminishing (in ways outlined below) the role of the European Court of Human Rights (ECtHR) as the ultimate judicial authority capable of policing compliance with the ECHR, the Convention would have become a less concrete legal constraint upon the UK. This, in turn, would have undermined the legal weight of domestic courts’ judgments under the HRA, because it would have been open to the government—to a far greater extent than before—to argue that such judgments might not reflect the Strasbourg Court’s view, safe in the knowledge that the Court, had the February draft been adopted, would have been less likely to have an opportunity to render a decisive judgment on the relevant matter.

What, then, of the final version of the Brighton Declaration? Is the scenario sketched above—a dystopian one for the human rights enthusiast; quite the reverse for the sceptic—likely to eventuate? The answer to that question is “no”, because the final version of the Declaration differs significantly from the February draft in three presently-relevant respects.

“Deference” at the Strasbourg level: subsidiarity and the margin of appreciation

First, the February draft set great store by the notion of subsidiarity and the doctrine of margin of appreciation. The same is true of the final version of the Declaration: but the emphasis is rather different. In the latter version, subsidiarity remains a “fundamental principle”, and reasons of “transparency and accessibility” are still said to call for explicit reference to it—but in the Preamble to the Convention as opposed to the Convention itself. An instrument to amend the Preamble, such that it refers explicitly to subsidiarity—and to the margin of appreciation—is thus to be adopted by the end of 2013. However, the February draft’s characterization of the margin of appreciation as “considerable” is nowhere to be found in the final version of the Declaration. And whereas the February draft said that the Strasbourg Court’s role was to “ensure that [national authorities’ decisions] are within the margin of appreciation”, the final Draft holds that the Court’s task is to determine whether such decisions “are compatible with the Convention, having due regard to the State’s margin of appreciation”. This implies a more marginal, albeit not unimportant, role for the margin of appreciation doctrine: in the final Draft, it is a factor to which the Court ought to have regard when deciding whether a breach of the Convention has occurred, rather than (as in the February draft) the key factor which frames the question (“Has the margin been exceeded?”) lying at the core of the Court’s adjudicative function.

These aspects of the February and final versions of the Declaration, like the differences between them, are relatively subtle—but they are certainly indicative of the State parties’ consensus view of the nature of the ECHR regime and of the Strasbourg Court’s place within it. Understood thus, the final Declaration postulates a more significant and central role for the Court than the February draft, and signals that the desire of the UK (and, no doubt, certain other States) to substantially limit the role of the ECtHR has ultimately yielded little. Of course, that conclusion can only be provisional, in that the wording of the revised Premable—and so the nature of the newly explicit textual references to subsidiarity and the margin of appreciation—remain to be seen. It is highly unlikely, however, that the revised Preamble will invest those notions with content that breathes new life into the more radical approach envisaged in the February draft. The upshot, then, is that in cases that reach the Court, its approach is unlikely to be significantly different as a result of the Declaration and the revised Preamble.

A caveat should, however, be entered. While the Brighton process may, viewed from a particular perspective, have “failed”, some aspects of the vision revealed in the February draft could conceivably be realized in other ways. Indeed, it is possible that the mere floating of the more far-reaching ideas contained in the February draft (and associated posturing) may have been influential—for example, by inviting what Helen Fenwick has called an “appeasement approach” on the part of the ECtHR. So, while the final text of the Brighton Declaration does not clip Strasbourg’s wings in the rather direct and unsubtle ways envisaged in the February draft, the possibility cannot be discounted of the (voluntary) adoption by the ECtHR of a more limited—more “deferential”, in domestic parlance—approach. The Declaration necessarily now forms part of the backdrop against which the Court will seek to understand the proper extent of its role, as in due course will the explicit references to subsidiarity and margin of appreciation that are to feature in the revised Preamble. The latter doctrine is traditionally understood as a function of Strasbourg’s political and cultural dislocation from individual States parties—and thus as recognition on its part of the limits of its institutional competence. In contrast, while the notion of subsidiarity remains ill-defined in this context, it arguably reflects something of the concerns which, at the domestic level, coalesce around the notion of the judicature’s limited constitutional competence. In other words, “subsidiarity” may very well not be a synonym for “margin of appreciation”, and its express inclusion in the Preamble will, at the least, invite fresh reflection upon the proper extent of the Court’s role.

Pending the text of the revised Preamble—and its absorption into the Court’s jurisprudence—further speculation is unwarranted. It suffices to say that while the final version of the Declaration places rather less weight on subsidiarity and margin of appreciation than the February draft, it nevertheless accords them a newly formal prominence. But even if, in the future, greater “deference” is exhibited by Strasbourg, important questions remain about the nature of such deference: in particular, does it invite the ascription of weight, or respect, to the views of domestic courts or to those of national political institutions? If the former, then this might do little to appease State governments troubled by what they perceive to be excessively interventionist domestic courts—and little to diminish the existing capacity of sufficiently interventionist UK courts to uphold fundamental rights in the face of more sceptical political branches.

Advisory jurisdiction: legal and political constitutionalism

Second, the February draft sought to change the means by which some cases reach the Court in the first place, by providing for “advisory opinions” on “point[s] of interpretation”. As I argued in my previous post, this approach, if implemented, could have blunted the ECHR as a legal constraint (at least in relation to States that accepted the envisaged optional protocol). This was so because, according to the February text, when a non-binding advisory opinion had been rendered, the right of individual petition would ordinarily have been displaced, meaning that the Strasbourg Court would effectively be denied the opportunity to render a judgment that would be legally binding under Article 46. But here, too, the final version of the Declaration adopts a more subtle approach. In particular, there is no reference to the notion contained in the February draft that the application by a national court of an advisory opinion should normally preclude the subsequent exercise by the person concerned of the right of individual petition (and hence the prospect of a binding judgment adverse to the State party concerned). Granted, the final Declaration does not rule out this possibility—but the removal from the text of any explicit reference to it, coupled with the characterization of the right of individual petition as the “cornerstone” of the Convention regime, suggests that there is no consensus in favour of limiting that right in the way proposed by the February text.

So even if the envisaged draft optional protocol on advisory opinions—which the Declaration invites the Committee of Ministers to produce by the end of 2013—were adopted, this would not in itself erode the Court’s capacity to render non-advisory judgments that would be binding upon States in the normal way. Viewed from the perspective of the UK’s HRA system, this means (inter alia) that the possibility (which the February draft would have opened up) no longer arises of the UK government disputing a domestic declaration of incompatibility on the ground that Strasbourg might not actually have found national law incompatible with the Convention had the matter reached it other than under the advisory route: use of the advisory route will not now close off the possibility of individual petition.  This, in turn, preserves the capacity of the ECtHR to inject legal force into a national human rights regime that remains ultimately wedded—in the sense that it acknowledges the authority of the UK Parliament to transgress Convention norms as a matter of strict domestic law—to the tradition of political constitutionalism.

Admissibility: the relationship between domestic courts and Strasbourg

Third, the February text proposed that Article 35 be amended “to make clear that” an application is inadmissible “if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention”, unless the national court has “seriously erred” or the case raises a “serious question” concerning the interpretation or application of the Convention rights.

The relevant part of the final version of the Declaration differs in three key respects. First, no amendment to Article 35 is contemplated; rather, the Court is “encourage[d] to have regard to the need to take a strict and consistent approach” in this sphere, “clarifying its case law … as necessary”. Second, the final version affirms that an application should be regarded as manifestly ill-founded to the extent that it raises a complaint that has been “duly considered” by a national court “applying” the Convention in the light of “well-established” ECtHR case law—a formulation that draws the category of prima facie inadmissible applications more narrowly than the February text. Third, there is no reference to national courts having “seriously erred” as a trigger for treating as admissible an application relating to a matter already considered at the domestic level.

While the latter feature of the final Declaration appears to make it more restrictive than the February draft (in that a potential trigger is omitted), the broader message is clearly that consideration of a matter at the national level will less readily exempt it from consideration in Strasbourg. Against that background, a “serious error” trigger would be as unnecessary as it would be misleading—the point being that the final version of the Declaration rightly envisages a role for the ECtHR which transcends putting right domestic courts that have “seriously erred” in their application of the Convention.

The Human Rights Act

All of this suggests that the Brighton Declaration’s implication for the UK’s domestic human rights regime are decidedly modest. Nothing in the final version of the Declaration—in contrast to the February draft—significantly diminishes the effectiveness of the HRA as a real constraint upon not only administrative and other legislative bodies but the UK Parliament itself. Ostensible fidelity to the orthodoxy of parliamentary sovereignty notwithstanding, the HRA domesticates the Convention norms that bind the UK under international law in a manner that renders largely theoretical the possibility of lawfully transgressing them as a matter of domestic law. As noted at the outset of this post—and in more detail in my previous post on this topic—the HRA achieves this by puncturing both the dualist distinction between domestic and international law and the Diceyan division between legal and political modes of constitutionalism.

But as a model that is necessarily grafted onto the ECHR, the HRA’s success is ultimately contingent upon the nature of the Convention scheme to which it gives effect at the national level. The February draft of the Brighton Declaration would have altered that scheme significantly: by diminishing the role of the Strasbourg Court, it would have reduced the juridical bite of what appears at first glance (given the absence of any strike-down power) to be an ultimately supine domestic human rights system. Such a characterization of the UK system is, of course, wide of the mark. But that is, in large part, precisely because behind a British judicature lacking constitutional authority to invalidate rights-incompatible legislation stands an international tribunal willing and able to render judgments that are binding upon the UK as a matter of international law. And, importantly, such judgments are likely anticipated by national judicial decisions under the HRA that Parliament is free to ignore only when the matter is viewed through the parochial lens of purely domestic legal theory. By avoiding the substantial curbs upon the ECtHR’s role contemplated by the February draft, the final version of the Brighton Declaration thus preserves the essential characteristics of the Convention regime that underpin the HRA’s potency.

The bill of rights debate

Finally, what of the debate concerning a UK bill of rights? In a post on this Blog published in 2011, I observed that the terms of reference of the Commission on a UK Bill of Rights reveal a curious paradox. Much of the political rhetoric preceding the establishment of the Commission anticipated that a Bill of Rights would enable, or require, British courts to strike a different balance between individual rights and conflicting public interests—perhaps in order to head-off further bouts of Prime Ministerial nausea such as that which was induced by the prospect of permitting some prisoners to vote. Yet, thanks no doubt to the constraints of coalition, the Commission is in fact required to “investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties”.

An obvious tension arises between, on the one hand, a Bill of  Rights Commission committed through its terms of reference to an ECHR-plus (or at least not an ECHR-minus) model and, on the other hand, politicians’ promises that a UK bill of rights would “mak[e] sure decisions are made in this Parliament rather than in the courts”. One way of resolving that tension, of course, would be to adjust the obligations deriving from the ECHR in the first place, so as to render it (from a pejorative perspective) less of a straightjacket. Brighton was the government’s attempt to do precisely that: not by explicitly amending the provisions defining the Convention rights, but by loosening Strasbourg’s grip on policing their interpretation and application. Doing so, it was presumably anticipated, would in turn have rendered domestic courts’ human rights judgments more contestable, as it would follow with less certainty than at present that Strasbourg would concretely endorse them—whether because the case would never reach the ECtHR (owing to narrower admissibility criteria), or because it would render only a non-binding advisory opinion, or because a generous margin of appreciation (or doctrine of subsidiary) would cause it to stay its hand. However, for the reasons set out above, these objectives are not actually realized by the Brighton Declaration.

The result is that the Brighton process has not created the sort of latitude that might have been exploited by those in favour of a bill of rights that takes a looser form than the HRA: it does not offer an escape route from the constraints which derive from the realpolitik of coalition and the Bill of Rights Commission’s resulting terms of reference. Political rhetoric that (perhaps paradoxically) postulates a bill of rights as a vehicle for creeping dejuridification and the elevation of the interests of the “law-abiding majority” is therefore—at least for the time being—as empty as it is misleading.

Mark Elliott is a Senior Lecturer in Law at the University of Cambridge.

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Filed under Constitutional reform, England, Human rights

Noreen O’Meara: Brighton rocked! Next steps for reforming the European Court of Human Rights

A blaze of controversy erupted over the disputed timing of Abu Qatada’s referral request to the Grand Chamber of the European Court of Human Rights this week.  Whilst raising a juicy legal question for proceduralists (examined incisively here and here) the inevitable media hysteria coincided with efforts to reform aspects of the Strasbourg court and the publication of fresh research on the UK-ECHR relationship.  The contrast of the media frenzy with the relatively low-key (by international standards) Council of Europe Ministerial Conference in Brighton was stark.  However, the resulting Brighton Declaration, formally agreed on 20 April 2012, may inject some measured logic into an often misinformed debate on the role and working practices of the European Court of Human Rights.

Lively legal debate was generated in the lead-up to the Brighton Conference despite limited leaked information on the successive draft Declarations.  NGOs shared a broad platform issuing two Joint Statements against more extreme proposals apparently seeking to curb access to the court.  Prior to the Conference, evidence from the Court itself seemed to share this cautious approach; its openness to considering (previously mooted) initiatives, such as extending advisory jurisdiction, tempered by calls not to rush any reforms—to allow more time for recent measures introduced via Protocol 14 to the Convention to embed in the Strasbourg system, and to assess their mid/long-term impact on the Court’s docket.  While Brighton represents the latest in a series of efforts to reform the Court—most recently in snowier/sunnier climes (Interlaken (2010) and Izmir (2011))—the UK government’s motivations for reform during its current chairmanship of the Council of Europe were expressed in terms which promised something altogether more radical.

On any reading of the final text, it is clear that the reforms in the Declaration have been substantially toned down (see initial overviews from Joshua Rozenberg and Antoine Buyse).  While the Brighton Declaration may have made just enough changes to allow the UK to claim some kind of political success, the reality is that the changes are—for the moment— marginal.  Will the Declaration deliver anything meaningful in tackling the Court’s voluminous caseload?  There is far more in the Declaration than a short piece can handle.  The impact (if any…) of adding references to subsidiarity and margin of appreciation to the Convention’s preamble will be ripe for discussion on the blogs and in the courtroom.  The comments below focus on select procedural issues.

Time-limit to apply to the ECtHR

The Conference agreed that the time-limit to apply to the Strasbourg court under Article 35(1) ECHR should be reduced by one-third, from six months to four.  On paper, this was the most likely of the tabled reforms to be agreed.  The proposal to reduce the time-limit in the original draft Declaration was lifted directly from the Court’s Preliminary Opinion, which had suggested a reduction to two/three/four months.  It will relieve many that the Conference chose to minimise the extent of the reduction.  However, critics of any change to Article 35(1) ECHR may argue that reducing the time-limit could lead to a greater number of knee-jerk applications, more poorly drafted/advised applications, or applications made without legal advice.  This change may well risk prejudicing applicants with genuine claims from mounting well-reasoned applications.  These risks may be real (and merit research) but unless a spike in applications or tangible evidence of such increased prejudice to applicants becomes apparent, it will be difficult to measure any impact of a reduced time-limit to apply.

Admissibility

Reformed admissibility criteria proposed in an early draft were a key concern to both the Court and NGOs.  The Brighton Declaration preserves the essential criteria, with the most criticised docket-control element dropped.  The proposal that applications should be rendered inadmissible unless a national court “erred” in interpreting Convention rights (para 23c of the earliest public Draft) has been abandoned.  The Declaration’s affirmation in para 15d that the Court should adopt “a strict and consistent approach” in rendering applications inadmissible under Article 35(3)(a) ECHR (inter alia) unless a “serious question concerning the interpretation or application of the Convention” is raised marks nothing new.  The track changes on a subsequent pre-Brighton Draft suggest this point particularly exercised the drafters, but the end result seems to be nothing more than a gloss on the existing admissibility criteria, and one which will not trouble the Court—which rightly remains firmly in control.  However, an amendment to Article 35(3)(b) ECHR (removing the words “and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal”) was agreed by the Conference.  This would rectify what some regard as an anomaly with the “significant disadvantage” test introduced by Protocol 14 ECHR.

Some parts of the Brighton Declaration provide the kind of praise for the Court which has been in scant supply recently.  The Strasbourg court’s “extraordinary contribution” to the protection of human rights in Europe (para 2) is noted, with the impact of admissibility measures taken in the context of Protocol 14 is described as “encouraging” (para 6), the Declaration noting “with appreciation” the Court’s objective to dispose of the clearly inadmissible applications pending before it by 2015 (para 20b).  This recalls the Court’s observations in its Preliminary Opinion and emphasised by President Bratza in evidence to the Joint Committee of Human Rights that a range of measures taken by the Court have already begun to alleviate its backlog, and that further measures should help accelerate this process in the near future (for example, greater use of the “significant disadvantage” criterion, greater scope for the use of single judges).

The irony of multiple references to greater transparency and clearer communication of court procedures, admissibility criteria and time-limits may not be lost on Home Office lawyers awaiting the ECtHR’s decision on Abu Qatada’s referral request.  In calling for “stricter application” of the time limit in Article 35(1) ECHR and reiterating “the importance of the Court applying fully, consistently and foreseeably all the admissibility criteria including the rules governing the scope of its jurisdiction”, para 15b of the Brighton Declaration alludes to the fractious debate on subsidiarity behind the drafting process.  Yet in welcoming “the increased provision by the Court of information to applicants on its procedures and particularly on admissibility criteria” (para 15e) the Declaration identifies a significant issue.  The Court must ensure that its procedural rules and criteria are clearly drafted and publicized; the Declaration’s bid to reduce the time-limit for admissibility makes this all the more important.  In the slightly different Abu Qatada context of referral to the Grand Chamber, lawyers, academics and commentators have been split on the deadline issue.  There is no need for this level of confusion.

Advisory jurisdiction

One of the most interesting (if very loosely drafted) proposals survived the original draft and may yet introduce a new dynamic in relations between national courts and the ECtHR.  The possibility of extending the ECtHR’s rarely invoked advisory jurisdiction to enable highest national courts to seek ‘advisory opinions’ from the Court (in a manner somewhat similar to the preliminary reference mechanism in the EU legal context) managed to elicit fairly broad support.  Though this proposal is not new, it does appear to have gained momentum in the recent negotiations.

As framed in the original draft Declaration, the UK spin on the advisory opinion proposals seemed closely aligned to its approach to subsidiarity which underscored the negotiations (the proposed non-binding character of advisory opinions, and their proposed effect of preventing further recourse to the ECtHR in the same proceedings are clues in para 19d of the original Draft).  Before the Brighton Conference, the ECtHR duly published a reflection paper on the possibility of extending advisory jurisdiction.  Its paper sees the potential value of an advisory opinion mechanism in deepening the dialogue (curiously dubbed “institutionalised dialogue”, para 4) between national courts and the Strasbourg court.  Use of the word “institutionalised” perhaps implying that such dialogue may influence relations on a wider level than simply between courts.  Unsurprisingly, the UK-led view that use of the mechanism should prevent exercise of the right to individual petition in the same proceedings was lanced (para 24, reflection paper).  Although the Brighton Declaration is now silent on this particular point, it is surely unthinkable that an advisory opinion mechanism will be introduced on a basis which restricts the right to individual petition.

The Court effectively agreed to make the advisory opinion mechanism as optional as possible (introduction via an Optional Protocol to the Convention; restricted to highest national courts; limited rights of intervention for third parties) and saw the possible long-term impact which an advisory opinion mechanism may have on the Court’s docket.  However, there are clearly differences of opinion as to its merits both among High Contracting Parties to the Convention and at the level of the Court (the reflection paper notes differing views on whether such opinions should be binding, para 24).  Critics would also be justified in being skeptical as to whether the Grand Chamber will have the capacity in the short-medium term to handle the greater workload which the advisory opinion mechanism would clearly generate.  There is clearly still much to consider: as para 12d of the Brighton Declaration invites the Committee of Ministers to draft an Optional Protocol for a (very much optional) advisory opinion mechanism, its merits will be much debated in the foreseeable future.

No magic bullet

One lesson which can be drawn from the process of concluding the Brighton Declaration is that it was never going to magic away either the Court’s docket or its essential, authoritative role in human rights adjudication.  The hype (in some quarters, hostility) surrounding the negotiation process has not gone unnoticed at the Court.  However, the revised set of proposals in the Brighton Declaration seems to have largely neutralised the more political features of earlier draft versions.

A striking feature of the Declaration, which moves it away from the politicised aspects of the subsidiarity debate, is the prominence of concrete, pragmatic steps which should be taken to enforce the Convention at national level (Section A).  It is no secret that the Court’s backlog is dominated by applications from small minority of jurisdictions.  It is therefore no surprise that the Declaration views the role of the Council of Europe as “crucial” in supporting implementation of the Convention, and in its wider role promoting human rights, democracy and the rule of law.  This is something which the Council of Europe probably under-promotes, and which would merit being better understood.  Efforts to alleviate the Court’s backlog may start in Strasbourg, but its authority, legitimacy, and its success in tackling it also depend on developments much closer to home.

Noreen O’Meara – Lecturer in Law, University of Surrey; Doctoral researcher, Queen Mary, University of London

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Helen Fenwick: An appeasement approach in the European Court of Human Rights?

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[1] 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 [150] and [155]). 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.

Conclusions

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.


[1]             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.

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Mark Elliott: The draft Brighton Declaration, the Human Rights Act, and the Bill of Rights debate

As Noreen O’Meara has already posted, a draft of the Brighton Declaration concerning reform of the European Court of Human Rights (ECtHR) has leaked into the public domain. Of course, that draft may well turn out to be substantially different from the final text, which will reflect whatever consensus (if any) is reached at the High Level Conference on the Future of the European Court of Human Rights in April 2012 – billed by the UK Government as the “flagship event” of its chairmanship of the Council of Europe’s Committee of Ministers. It is nevertheless worth considering what the implications would be if the present draft were adopted: their potential significance, it will be argued, is considerable, and close scrutiny of their merits (or otherwise) is therefore warranted.

Noreen O’Meara’s post provides an excellent overview of and commentary on the present version of the text. This post, however, will focus on a narrower set of issues. In it, I will suggest that the draft Declaration, if implemented, would have the potential to reduce the extent to which the European Convention on Human Rights (ECHR) operates as a concrete restriction upon the legal freedom of state parties. This, in turn, would have implications for both the practical impact of the Human Rights Act 1998 (HRA) and the debate concerning the possibility of replacing it with a “UK Bill of Rights”. In order to develop this argument, it is necessary to begin with some observations about the HRA.

The Human Rights Act: legal and political constitutionalism; national and international law

The HRA, in two related senses, performs distinctive and important “bridging functions”. First, on the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism. By leaving the doctrine of parliamentary sovereignty undisturbed, the Act preserves Westminster’s domestic legal capacity to contravene the ECHR. At the same time, however, the HRA reduces the political scope for exercising legislative supremacy in such a way, not least by requiring courts to use the Convention as a benchmark by which to assess Acts of Parliament (as well as other forms of legislation and administrative action) and authorizing them to issue declarations of incompatibility when legislation is found wanting.

Second, on the vertical plane, the HRA creates a site of interaction between national law and politics, on the one hand, and international law, on the other. One of the defining features of the HRA is that it is not as such constitutive of rights, in the sense of creating or enshrining them in domestic law. Rather, the Act is a conduit whereby the Convention rights are given effect in UK law in a variety of ways and subject to certain limitations – including, most obviously, the capacity of the Westminster Parliament, as matter of national law, to override Convention rights by means of sufficiently clearly worded legislation. As such the HRA implicitly acknowledges, but makes no explicit attempt to resolve, the tension between the legally binding nature of the Convention rights as a matter of international law and the legal freedom of the sovereign UK Parliament to override those rights as a matter of national law.

It is in the interaction of its horizontal and vertical bridging effects that the potency of the HRA lies: the political pressure exerted by a legal judgment that yields a declaration of incompatibility is attributable in part to the fact that, for all that such a declaration is non-binding in terms of national law, it identifies a breach by the UK of norms that are binding upon it in international law. This helps to explain why, for instance, declarations of incompatibility routinely result in remedial legislative action – and why, therefore, the HRA is a more powerful constraint than its status as a non-supreme law bill of rights might be taken to suggest.

The role of the European Court of Human Rights

On this analysis, the success (judged from the perspective of those who welcome rights-based legal restraint of political authority) of the HRA model lies in the way it enables norms that are binding in international law to penetrate the domestic sphere, thereby eroding the distinction between the legal and political realms erected by the orthodox notion of legislative supremacy. This analysis of the HRA is, however, heavily contingent upon certain assumptions about the nature and legal status of the Convention rights themselves. In particular, it presupposes that those rights are characterized by a certainty and precision that gives them real bite. And this, in turn, requires the existence of a mechanism whereby the (inevitably) vaguely-worded text of the Convention may be imbued with specific meaning. In this way, then, the role of the ECtHR is crucial to the HRA model. By standing as the ultimate and authoritative adjudicator upon the meaning of the ECHR, the Court imbues the Convention rights with a legal crispness and practical force that international human rights norms do not inevitably possess.

For example, compare the International Covenant on Civil and Political Rights (ICCPR). While the Human Rights Committee monitors the implementation of the Covenant by state parties, it cannot be said to perform an adjudicative role equivalent to that of the ECtHR. I have argued elsewhere that this may help to explain the differential impact of New Zealand’s Bill of Rights Act 1990 (BORA) and the UK’s HRA. The BORA and the HRA are superficially similar, in that both seek to give greater effect to international human rights instruments – the ICCPR and the ECHR respectively – while neither equips courts to invalidate or set aside incompatible primary legislation. Yet lawmakers in New Zealand are substantially more willing than their British counterparts to enact or maintain legislation that is (in the view of the courts or the Attorney-General, who has a formal compatibility-reporting role under the BORA) incompatible with relevant human rights norms. Part of the reason for this may well be that judicial (or other) views as to compatibility in New Zealand possess less impact because they do not – in the way that a declaration of incompatibility under the HRA does – anticipate the likely outcome of legally binding supranational adjudication. In that way, the ICCPR rights, as they pertain in New Zealand, are softer in nature – and so more susceptible to legislative infringement. Put another way, while the BORA serves as an interface between legal and political modes of constitutionalism at the horizontal level, it does not serve a vertical bridging function equivalent to that of the HRA because of institutional differences between the international human rights regimes to which the two pieces of legislation relate.

The draft Brighton Declaration

Against this background – as I have suggested in a previous post on this blog and, with colleagues, in a submission to the Commission on a UK Bill of Rights – the scope for reforming the HRA, or for replacing it with a Bill of Rights, is limited: the Convention rights are binding upon the UK, and their meaning and application are policed by the ECtHR. However, the position would be different if the Brighton Declaration, in its current form, were implemented. This is so because, for three interlocking reasons, it would reduce the capacity of the ECtHR to invest the Convention rights with precise legal content and to secure their practical application.

First, the Declaration emphasizes that national authorities have primary responsibility for securing the Convention rights, in that the Court’s role is “subsidiary”. The margin of appreciation doctrine is also emphasized to an extent that outstrips its present role in the Court’s jurisprudence: each state party, according to the Declaration, enjoys a “considerable” margin (generally, it is implied, not just in particular contexts) and the Court’s role is to “review decisions taken by national authorities” to ensure that that margin is not exceeded. It therefore appears that cases that got as far as the Court would, under the Declaration, be less likely to result in a judgment adverse to the state party. In that sense, the Convention rights would be rendered less concrete, or less demanding.

Second, the Court’s role would, in some cases, change. At present, the Court determines the meaning of the relevant provisions of the Convention and applies them to the factual matrix of the case. Such judgments are binding under Article 46(1). They also result in concrete pronouncements by the Court about the compatibility of domestic law with Convention norms, thereby in effect fixing national authorities with an obligation to amend such law in order that they may fulfill their duty under Article 1 to “secure to everyone within their jurisdiction” the Convention rights. However, the present text of the Declaration envisages that the Court should be enabled to deliver “advisory opinions”. Under this system, “point[s] of interpretation” could be referred by national courts to the ECtHR, the latter’s role being to “give its opinion on the point of interpretation” while “leaving it to the national court to apply this to the facts of the case”. Such opinions would harness neither Article 46(1) nor Article 1: they would “not be binding”, and nor (given the limitation of the Court’s role to the interpretation of the Convention) would they result in any concrete pronouncement about the compatibility of the relevant national law (or practice). And although the advisory opinion regime would not replace, but would rather sit alongside, the right of individual petition, the Declaration enters a significant caveat: that when such an opinion is “applied” by the national court, the individual concerned “should ordinarily have no further right to make an application to the Court on the same matter”.

Third, fewer cases would reach the court at all. If implemented, the Declaration would result in changes to the admissibility criteria. Article 35 would be amended “to make clear that”, absent exceptional circumstances, an application is inadmissible “if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention”. Exceptional circumstances would be those in which a national court had “clearly erred”, and those in which the case raised “a serious question”, concerning the interpretation or application of the Convention rights.

Such changes to the ECHR regime and the Court’s role within it would have potentially significant implications for the operation of the HRA. As explained above, the relative potency of the HRA is attributable in large part to the shadow which the prospect of binding supranational human rights adjudication casts over the domestic notion of parliamentary sovereignty. The HRA enables that orthodoxy to be at once both formally retained and substantively disrupted. But that is possible in the first place only because domestic courts’ non-binding judgments foreshadow the (strong) possibility of binding judgments by the Strasbourg Court. The three features of the draft Brighton Declaration mentioned above each reduce the probability of such judgments being rendered.

Consider, for instance, a situation in which a domestic court issued a declaration of incompatibility under s 4 of the HRA. Under the regime envisaged in the draft Declaration, the force of such a declaration would probably be less than at present. If the declaration of incompatibility were issued following an advisory opinion by the Strasbourg Court, it would, at least in some circumstances, be open to the Government to contend that that Court might not have concluded (had the matter reached it otherwise than via the advisory route) that domestic law or practice was incompatible with the Court’s interpretation of the Convention. Moreover, the individual concerned would presumably be unable decisively to challenge that view because once the Strasbourg Court had issued an advisory opinion that had been applied in domestic legal proceedings – which it would have been – the Court’s door would be closed. Even if the proposed advisory jurisdiction were not in play, a declaration of incompatibility’s potency would potentially be diminished by the proposed revisions to the admissibility criteria: since the matter would already have been examined by a national court (in proceedings culminating in a declaration of incompatibility), an application to the ECtHR would, absent exceptional circumstances, be inadmissible. And underpinning all of this would be the renewed emphasis on the ECtHR’s subsidiary role and the “considerable” width of the margin of appreciation. The upshot of these changes, then, would be to render the Convention rights less concrete in a way that would doubtless be attractive to a Government that wished to ignore a domestic declaration of incompatibility. Put simply, there would be greater scope than there presently is for the Government to argue that the ECtHR might not see things in the same way as the domestic court, while enjoying the luxury of a procedural regime that reduced the likelihood of the ECtHR pronouncing upon the issue either at all or in a manner sufficiently decisive to remove the scope for advancing such an argument.

The Bill of Rights debate

The debate (such as it is) concerning the replacement of the HRA with a “UK Bill of Rights” is very substantially constrained – whether or not politicians are prepared to admit it – by the simple fact that whatever domestic human rights legislation does or does not say, the text of the ECHR remains the legal bottom line for as long as the UK is a state party to it. Once that point is appreciated, the scope for “reform” of the HRA is very limited – unless it is accompanied by change at the ECHR level. Viewed thus, the draft Brighton Declaration assumes the form of the missing piece of the bill-of-rights debate jigsaw. If the role of the ECtHR were diminished in the way envisaged by the Declaration, the Convention rights themselves would taken on a less obviously prescriptive character. Lighter-touch review by a harder-to-access Court some of whose judgments would become non-binding would render the content of the rights more contestable. As a result, the Convention regime’s capacity to imbue the HRA with real legal bite would be reduced. Alternatively, the features of the new regime could be harnessed more explicitly by means of a reworked bill of rights. For instance, national courts might be required to take account of the UK’s “considerable” margin of appreciation, bearing in mind that – at least according to paragraph 17 of the draft Declaration – the doctrine is based not just on the cultural dislocation of the ECtHR as an international court, but also on the democratic credentials of elected legislatures. National courts might also be legislatively encouraged – or required – to use the advisory opinion mechanism, thereby reducing the prospect of binding judgments rendered by the ECtHR in cases brought by means of individual petition.

For those who regard the HRA as a legislative straight-jacket that undermines Parliament’s ability to legislate in the public interest, the possibilities raised by the draft Brighton Declaration, and the scope they may in turn afford for the weakening of the HRA model, will doubtless be attractive (if modest) ones. Even for those who are less skeptical about the enforcement of human rights via the ECHR/HRA mechanism, there is reason to welcome aspects of the draft Declaration. Certainly, it is right that the process of enhancing the Court’s capacity to manage its caseload should be taken forward. And ECHR/HRA enthusiasts might equally welcome the recognition in the draft Declaration of the need to be sensitive to the fact that the Strasbourg Court should not claim a monopoly of wisdom when it comes to determining the meaning of the Convention text. It should, however, be recognized that the “streamlining” measures proposed by the draft Declaration would have real consequences for the Court’s substantive role, not just the way it operates at a procedural level.

As an interface between the domestic and ECHR legal systems, the HRA’s potency turns, to a large extent, on the nature of the Convention regime. And as a bridge between the realms of (human rights) law and (legislative) politics, the HRA’s capacity to facilitate the disruption of the latter by the former depends, in large part, upon the obligatory character of the transnational regime for which the Act serves as a conduit. Reform of the ECHR and its associated machinery along the lines envisaged in the draft Brighton Declaration would, of course, have implications across Europe. But it possible to assert, without undue parochialism, that it might have particular significance in the UK, where the Convention serves – and, the “bill of rights debate” notwithstanding, is likely to continue to serve – as the closest approximation there is to a constitutional bill of rights. Against that background, the Brighton process deserves the sort of scrutiny that would – in any country with a “normal” constitution – accompany a proposal to amend the constitution itself. It may very well be that none of the aspects of the present draft that are discussed above will find their way (at least in their current form) into the final version of the Declaration. It is important, however, that those arguing for the inclusion of those aspects of the draft – including, presumably, the UK Government – are required to face up to, and defend, their potential implications.

Mark Elliott is a Senior Lecturer in Law at the University of Cambridge

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