4th Report - Protocol 15 to the European Convention on Human Rights - Human Rights Joint Committee Contents


3  Addition to the Preamble to the ECHR

Inclusion of reference to subsidiarity and the margin of appreciation

3.1 Article 1 of Protocol 15 inserts a new recital into the Preamble to the Convention, so as to include in the text of the Convention an express reference to the principle of "subsidiarity" and the doctrine of the "margin of appreciation":

    "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,"

The purpose of the amendment of the Preamble

3.2 The Government, in its Explanatory Memorandum accompanying the Protocol, says that "it will be important that the Court follows the clear direction given by the High Contracting Parties in the Brighton Declaration as to the limits of its role, and reflects this in the cases that it admits and judgments that it gives."

3.3 Some of the submissions we received in relation to the Protocol were concerned that this amendment might be interpreted in a way which weakens the level of human rights protection in the Convention system, and stressed the importance of awareness of the background to this amendment in order properly to understand its intended effect. The group of human rights NGOs and the EHRC, for example, all drew attention to the fact that this amendment of the Preamble was a compromise arrived at in the Brighton Declaration following opposition to more far-reaching proposals made by the UK, including inserting references to the margin of appreciation in the substantive body of the Convention itself. An even more far-reaching UK proposal had been to amend the admissibility criteria so that the Court could only accept applications where the national court had made an obvious error, but that idea was rejected by a number of States in the intergovernmental negotiations which led up to the Brighton Declaration.

3.4 The purpose of this addition to the Preamble of the Convention is set out in the Committee of Ministers' Explanatory Report to the Protocol, which in turn reflects the language of the Brighton Declaration: it is intended to enhance the transparency and accessibility of these two particular characteristics of the Convention system, and to be consistent with the doctrine of the margin of appreciation as developed by the Court in its case-law.[25] The proposal to include a reference to the principle of subsidiarity and the doctrine of the margin of appreciation "as developed in the Court's case-law" was also not intended to dilute in any way the States' commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention, which was explicitly recalled in the same paragraph of the Brighton Declaration.[26]

3.5 To understand fully the intended effect of this amendment of the Preamble to the Convention, it is necessary to consider the amendment in the wider context not only of the process leading up to the Brighton Declaration itself, but also of the process leading up to the adoption of the Protocol, and the Explanatory Report that accompanies the Protocol. We draw to Parliament's attention the fact that during the process of converting the language of the politically agreed Brighton Declaration into the legally binding Protocol 15, the Court expressed reservations about the wording of what is now Article 1 of Protocol 15.[27] Its principal concern was that the reference to the margin of appreciation in Article 1 could give rise to uncertainty as to its intended meaning, because, unlike the relevant paragraph in the Brighton Declaration, it did not include the phrase "as developed in the Court's case law." The Court was concerned that without such a reference in the text of the amended Preamble, it might be mistakenly inferred that the States Parties intended to alter either the substance of the Convention or its system of international, collective enforcement, when there clearly was no such common intention amongst the States Parties. The Court would have preferred the text of the amended preamble to follow the Brighton Declaration by including reference to the doctrine of the margin of appreciation "as developed in the Court's case law."

3.6 The final text of Article 1 was not amended to take account of the Court's concern, but the text of the accompanying Explanatory Report clarifies the drafters' intention that the reference to the margin of appreciation is to be consistent with the doctrine "as developed by the Court in its case-law."[28] The Court in its Opinion on the draft Protocol 15 was satisfied that that this stated intention coincides with its own suggestion of a textual amendment, and pointed out that both the Explanatory Report itself and the travaux preparatoires of the Protocol will be relevant to the interpretation of the Protocol by the Court in due course.[29]

3.7 Paragraphs 8 and 9 of the Committee of Ministers' Explanatory Report on the Protocol are therefore significant to a proper understanding of the intended effect of this amendment, because, as the Government's own Explanatory Memorandum points out, they provide a clear statement of the proper role of the Court, of the principle of subsidiarity and the doctrine of the margin of appreciation.[30]

    8. The States Parties to the Convention are obliged to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, and to provide an effective remedy before a national authority for everyone whose rights and freedoms are violated. The Court authoritatively interprets the Convention. It also acts as a safeguard for individuals whose rights and freedoms are not secured at the national level.

    9. The jurisprudence of the Court makes clear that the States Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged. This reflects that the Convention system is subsidiary to the safeguarding of human rights at national level and that national authorities are in principle better placed than an international court to evaluate local needs and conditions. The margin of appreciation goes hand in hand with supervision under the Convention system. In this respect, the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State's margin of appreciation.

3.8 The Court, in its Opinion on the draft Protocol, welcomed the insertion into the Preamble of a reference to the principle of subsidiarity, which has been a fundamental theme of the reform process, and was satisfied that the wording used in the new recital and in the Explanatory Report reflects the Court's pronouncements on the principle.[31]

3.9 We welcome the clarification in the explanatory material accompanying Protocol 15 which makes clear that the terms "subsidiarity" and "margin of appreciation" in the amended Preamble are to be interpreted in accordance with the Court's well-established case-law. The explanatory material also makes clear that the proposal to include a reference to the principle of subsidiarity and the doctrine of the margin of appreciation "as developed in the Court's case-law", was not intended to dilute in any way the States' commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention, which was explicitly recalled in the same paragraph of the Brighton Declaration.[32]

3.10 The "principle of subsidiarity" referred to in the amended Preamble is therefore the principle that national governments, parliaments and courts have the primary responsibility for securing for everyone within their jurisdiction the rights and freedoms defined in the Convention, and for providing an effective remedy before a national authority for everyone whose rights and freedoms are violated. The "margin of appreciation" referred to in the amended Preamble is the doctrine that, subject to the supervisory jurisdiction of the Strasbourg Court, States enjoy a degree of latitude in deciding from a range of possible ways in which the rights in the Convention may be implemented. The margin of appreciation is variable, and dependent on the circumstances of the particular case, and has no application at all in relation to certain rights, such as the right to life, the prohibition of torture or the ban on slavery or forced labour.

3.11 We draw to Parliament's attention the fact that subsidiarity and the margin of appreciation, properly understood in the light of the Court's case-law, are not therefore concerned with the primacy of national law over Convention law, or with demarcating national spheres of exclusive competence. The Convention system is subsidiary, not to the political will of the national authorities, but to the national system for safeguarding human rights. Where that national system is well developed, and has led to detailed and reasoned assessment of a law or policy by the national authorities in light of the Convention and the principles in the Court's case-law, the assessment of the national authorities is likely to be within the State's margin of appreciation (depending on the nature of the right).

The implications of the amended Preamble

3.12 Since the Brighton Declaration and the adoption of the text of the amended Preamble, there has been much debate about whether the amendment will make any practical difference, or is merely a cosmetic change designed to assuage political anxieties, in the UK in particular, about the proper role of the Court. Much will depend on what significance is attributed to the amended Preamble by the Court.

3.13 The indications are that the amended Preamble is likely to have a tangible impact on the approach of the Court. In a recent public lecture, the President of the Court, Mr. Dean Spielmann, indicated that it is not likely that the new provision will be regarded as modifying the basis of the Court's review, which has been laid down in the case-law of many years, but nor can it be dismissed as being "of limited significance—a mere rhetorical flourish, or form of window-dressing."[33] As he pointed out, under the Vienna Convention on the Law of Treaties, the preamble to a treaty is in an integral part of the treaty itself and so is relevant to its interpretation, and there are many examples in the Court's case-law of the Court drawing upon certain fundamental precepts set out in the Preamble when interpreting the substantive provisions of the Convention.[34] The inclusion of these terms in the Preamble is likely to lead to a renewed focus by the Court on the adequacy of the protection of human rights at the domestic level.

3.14 The amendment to the Preamble therefore has important implications for Parliament and its consideration of the compatibility of legislation with the ECHR. It has long been clear from the case-law of the Court that the legislative process is highly relevant to the margin of appreciation which is afforded to States. In short, where the national authorities have engaged in a detailed process of assessment (or "appreciation") of the impact of a proposed law on the Convention rights which are at stake, the Court of Human Rights is generally reluctant to interfere with the assessment arrived at by those national authorities. In the words of the Court itself, "[w]here 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."[35]

3.15 In recent case-law, the Court has been increasingly explicit that the same deference will be applied by the Court to Parliament's careful consideration of Convention compatibility. In a significant and growing number of recent cases against the UK, for example, the Court has demonstrated its willingness to defer to the reasoned and thoughtful assessment by national authorities (including Parliament) of their Convention obligations, resulting in legislation being upheld as being within the UK's margin of appreciation. Statutes prohibiting paid political advertising,[36] restricting the right of British citizens resident overseas to vote in parliamentary elections,[37] and prohibiting secondary strike action[38] have all been upheld by the Strasbourg Court, in part because of the extensive and detailed examination by Parliament of the Convention compatibility of the law, in which Parliament has taken into account the principles and case-law of the Convention.

3.16 One of the implications of the amendment of the Preamble therefore is that parliamentary consideration of ECHR questions becomes even more important if States wish to invoke the margin of appreciation when laws are challenged for being incompatible with Convention rights. As ILPA pointed out in its submission to us, the new emphasis on the safeguarding of human rights by national authorities casts a heavier onus on legislatures and executives to "secure rights within their respective States and not simply rely on national judiciaries to enforce rights as and when a breach occurs."

3.17 We welcome the amendment of the Preamble to the Convention to include reference to the principle of subsidiarity and the doctrine of the margin of appreciation. In our view, this simple textual amendment goes beyond merely making explicit in the Convention certain principles of interpretation developed by the Court. Rather, it signifies a new era in the life of the Convention, an age of subsidiarity, in which the emphasis is on States' primary responsibility to secure the rights and freedoms set out in the Convention. As the Court's recent case-law on the margin of appreciation makes clear, such a focus on subsidiarity requires the Court to pay close attention to the reasoned assessment of Convention compatibility by the national authorities: the Government when formulating the relevant policy and drafting the relevant law; Parliament when scrutinising and debating the law in question; and the courts when adjudicating on subsequent legal challenges to the compatibility of the law with Convention rights.

3.18 We welcome the Court's renewed attention to the reasoned assessment of Convention compatibility by the national authorities, because in the long run it will increase both the democratic legitimacy and the effectiveness of the Convention system, by encouraging both governments and parliaments to conduct their own detailed and reasoned assessments of Convention compatibility. We therefore draw to Parliament's attention the increased onus the amendment to the Preamble places on the Court to pay respectful attention to the reasoned assessment of the national authorities, and, in turn, the correspondingly greater onus on, first, Government departments to conduct such detailed assessments of the Convention compatibility of their laws and policies and, second, Parliament to subject the Government's assessment to careful scrutiny and debate.

3.19 We look to the Court to ensure that the insertion of references to subsidiarity and the margin of appreciation into the Preamble to the Convention will accelerate the recent trend in the Court's case-law on subsidiarity and the margin of appreciation; and we look to the Government to ensure that this will in turn lead to continued improvement in the quality of the human rights memoranda provided by Government departments to accompany Bills, and more opportunities for informed parliamentary consideration and debate of Convention compatibility issues.


25   Explanatory Report to Protocol 15, CM (2012) 166 add., para. 7. Back

26   Brighton Declaration, para. 12b. Back

27   See Opinion of the Court on Draft Protocol No. 15 to the European Convention on Human Rights, adopted on 6 February 2013, para. 4. Back

28   Explanatory Report, para. 7. Back

29   See e.g. the Court's references to the Explanatory Report to Protocol 14 in Korolev v Russia, App. No. 25551/05 (2010). Back

30   These paragraphs of the Explanatory Report are based on paragraphs 10 and 11 of the Brighton Declaration. Back

31   See Opinion of the Court on Draft Protocol No. 15 to the European Convention on Human Rights, adopted on 6 February 2013, para. 5. Back

32   Brighton Declaration, para. 12b. Back

33   See e.g. "Allowing the Right Margin: the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?", Speech by Mr Dean Spielmann, President of the European Court of Human Rights, 13 December 2013; "Whither the Margin of Appreciation?", Current Legal Problems Lecture, 20 March 2014. Back

34   See e.g., in cases against the UK, Golder v UK; Malone v UK; Matthews v UK; Ireland v UKBack

35   Von Hannover v Germany (No. 2) [GC] (2012). Back

36   Animal Defenders International v UK, Application no. 48876/08 (22 April 2013). Back

37   Shindler v UK, Application no. 19840/09 (7 May 2013). Back

38   RMT v UK, Application no. 1045/10 (2013).See also, to similar effect, MGN Ltd. v UK Application no. 39401/04.  Back


 
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Prepared 2 December 2014