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Abstract
The quality of parliamentary process has been a relevant factor for the European Court of Human Rights in a number of recent judgments. This article asks: to what extent could the technical purpose for assessing parliamentary process – margin of appreciation and/or proportionality analysis – structure the assessment? The analysis combines study of the court’s practice with theory on the margin of appreciation and the proportionality test. Four cases are selected to represent different ways in which parliamentary process has been dealt with by the court: Animal Defenders International v. UK; Sukhovetskyy v. Ukraine; Lindheim v. Norway; and Parrillo v. Italy. The main argument is that the court has been hazy about the technical purpose that reference to parliamentary process is serving in its reasoning. This has affected the coherence of reasoning within cases and the development of a general doctrine on the assessment of parliamentary process. Judges interested in the legitimacy of the court and in favour of placing value in parliamentary process should work towards clearer explanation of the technical purpose it serves within the court’s reasoning.
Acknowledgements
I am grateful to Jan Petrov, Nino Tsereteli, Alain Zysset and two anonymous reviewers for their very useful comments on earlier drafts.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Matthew Saul is a Researcher at PluriCourts, a Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order at the University of Oslo. He publishes on aspects of general international law, international human rights law, and international adjudication. Saul is the editor (with French and White) of International Law and Dispute Settlement: New Techniques and Problems (Hart 2010), (with Sweeney) of International Law and Post-Conflict Reconstruction Policy (Routledge 2015), and (with Follesdal and Ulfstein) of The International Human Rights Judiciary and National Parliaments: Europe and Beyond (CUP 2017). His monograph Popular Governance of Post-Conflict Reconstruction: The Role of International Law was published by Cambridge University Press in 2014.
Notes
1. Sunday Times v. UK, Application No. 6538/74 1979, 26 April 1979, para. 59.
2. See for example, Leyla Sahin v. Turkey, Application No. 44774/98, 10 November 2005, para. 120.
3. Hirst v. United Kingdom (No. 2), Application No. 74025/01, 6 October 2005, para. 79.
4. Von Hannover v. Germany (No. 2), Applications Nos 40660/08 and 60641/08, 7 February 2012, paras 124–6.
5. See, for example, Oddný Mjöll Arnardóttir, ‘Organised Retreat? The Move from “Substantive” to “Procedural” Review in the ECtHR’s Case Law on the Margin of Appreciation’ (31 December 2015). European Society of International Law (ESIL) 2015 Annual Conference (Oslo). http://ssrn.com/abstract=2709669; Janneke Gerards, ‘Procedural Review by the ECtHR – A Typology’ (2015), unpublished book chapter (on file with author); Patricia Popelier, ‘The Court as Regulatory Watchdog: The Procedural Approach in the Case Law of the European Court of Human Rights’, in The Role of Constitutional Courts in Multilevel Governance, ed. P. Popelier et al. (Antwerp: Intersentia, 2012), 249–67; also Eva Brems and Laurens Lavrysen, ‘Procedural Justice in Human Rights Adjudication: The European Court of Human Rights’, Human Rights Quarterly 35, no. 1 (2013): 176–200.
6. On the relevant case law on courts see Arnardóttir, ‘The Move from “Substantive” to “Procedural” Review’, 11–14; also Başak Çalı, ‘From Flexible to Variable Standards of Judicial Review: The Responsible Domestic Courts Doctrine at the European Court of Human Rights’, in Shifting Centres of Gravity in Human Rights Protection – Rethinking Relations between the ECHR, EU, and National Legal Orders, ed. O.M. Arnardóttir and A. Buyse (Abingdon: Routledge, 2016), 144–60, 153–9.
7. See section 3; also Matthew Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’, Human Rights Law Review 15, no. 4 (2015): 745–74 at 771, 773; Matthew Saul, ‘How and When Can the International Human Rights Judiciary Promote the Human Rights Role of National Parliaments?’, in The International Human Rights Judiciary and National Parliaments: Europe and Beyond, ed. M. Saul, A. Follesdal, and G. Ulfstein (Cambridge: Cambridge University Press, 2017, forthcoming).
8. Hirst v. UK (No. 2), Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens, para. 7.
9. Ibid., Joint Concurring Opinion, Judges Tulkens and Zagrebelsky.
10. For analysis of the role of national parliaments in the implementation of judgments of the ECtHR, see Alice Donald and Philip Leach, Parliaments and the European Court of Human Rights (Oxford: Oxford University Press, 2016).
11. This article separates out instances when the court has interpreted procedural obligations into certain rights (see for example, Hatton and Others v. the United Kingdom, Application No. 36022/97, 8 July 2003, para. 99, para. 129) – so that a failure to have a certain procedure is a free-standing basis for finding a violation; from instances when the nature of a procedure influences the court’s own review on matters of substance (see for example, Hirst v. UK (No. 2)); this article’s focus is on the latter; see also Arnardóttir, ‘The Move from “Substantive” to “Procedural” Review’, 6.
12. For comparison of the ECtHR’s practice of the margin of appreciation and proportionality analysis with similar modes of reasoning by domestic judiciaries, see Eirik Bjorge, Domestic Application of the ECHR (Oxford: Oxford University Press, 2015).
13. Janneke Gerards and Hanneke Senden, ‘The Structure of Fundamental Rights and the European Court of Human Rights’, International Journal of Constitutional Law 7, no. 4 (2009): 619–53, 651.
14. See, for example, the general criteria proposed by Liora Lazarus and Natasha Simonsen, ‘Judicial Review and Parliamentary Debate: Enriching the Doctrine of Due Deference’, in Parliaments and Human Rights: Redressing the Democratic Deficit, ed. M. Hunt, H.J. Hooper, and P. Yowell (Oxford: Hart, 2015), 385, 394–401; for an assessment of the motivations that might help to explain the ECtHR taking an interest in parliamentary process and the implications that could follow for the court’s approach, see Eva Brems, ‘The European Court of Human Rights and the Quality of Parliamentary Process’ (paper delivered at the MultiRights Workshop: The International Human Rights Judiciary and National Parliaments, Oslo University, March 2015 (on file)).
15. See, for example Alain Zysset, ‘Searching for the Legitimacy of the European Court of Human Rights: The Neglected Role of “Democratic Society”’, Global Constitutionalism 5 (2016): 16–47; Fiona de Londras and Kanstantsin Dzehtsiarou, ‘Managing Judicial Innovation at the European Court of Human Rights’, Human Rights Law Review 15, no. 3 (2015): 523–54; A. Follesdal, ‘The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory’, Theoretical Inquiries in Law 14, no. 2 (2013): 339–60.
16. Animal Defenders International v. UK, Application No. 48876/08, 22 April 2013.
17. Sukhovetskyy v. Ukraine, Application No. 13716/02, 28 March 2006.
18. Lindheim and Others v. Norway, Applications Nos 13221/08 and 2139/10, 12 June 2012.
19. Parrillo v. Italy, Application No. 46470/11, 27 August 2015.
20. For a detailed survey of this case law, see Saul, ‘Margin of Appreciation and the Processes of National Parliaments’.
21. Gerards, ‘Procedural Review by the ECtHR’, 13.
22. For example, Parrillo v. Italy; Animal Defenders International v. UK; S.A.S v. France, Application No. 43835/11, 1 July 2014; Evans v. the United Kingdom, Application No. 6339/05, 10 April 2007; Murphy v. Ireland, Application No. 44179/98, 10 July 2003; Sukhovetskyy v. Ukraine; Ždanoka v. Latvia, Application No. 58278/00, 16 March 2006; Friend, The Countryside Alliance and Others v. UK, Applications Nos 16072/06, 27809/08, 24 November 2009; Shindler v. UK, Application No. 19840/09, 7 May 2013; A,B and C v. Ireland, Application No. 25579/05, 16 December 2010; The National Union of Rail, Maritime and Transport Workers (RMT) v. United Kingdom, Application No. 31045/10, 8 April 2014; Maurice v. France, Application No. 11810/03, 6 October 2005; Draon v. France, Application No. 1513/03, 6 October 2005; Noack and Others v. Germany, Application No. 46346/99, 25 May 2000 (translation).
23. For example, Hirst v. UK (No. 2); Alajos Kiss v. Hungary, Application No. 38832/06, 20 May 2010; Anchugov and Gladkov v. Russia, Applications Nos 11157/04 and 15162/05, 4 July 2013, paras 108–9; Greens and MT v. UK, 60041/08 and 60054/08, 23 November 2010, paras 111–15; Dickson v. The United Kingdom, Application No. 44362/04, 4 December 2007; Lindheim and Others v. Norway.
24. Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2002), 1; also Howard Yourow, The Margin of Appreciation in the Dynamics of European Human Rights Jurisprudence (The Hague: Martinus Nijhoff, 1996), 15.
25. See Eva Brems, ‘The Margin of Appreciation Doctrine in the Case Law of the European Court of Human Rights’, Zeitschrift fur Auslandisches offentliches Recht und Volkerrecht (1996): 240, 256.
26. For an indicative spectrum of different levels of scrutiny that are available, see Julian Rivers, ‘Proportionality and Variable Intensity of Review’, Cambridge Law Journal (2006): 174–207, 203.
27. See Rivers, ‘Variable Intensity of Review’, 207; Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (Oxford: Oxford University Press, 2012), 70; Arai-Takahashi, The Margin of Appreciation Doctrine, 2.
28. See also Saul, ‘Margin of Appreciation and the Processes of National Parliaments’, 753–9.
29. Animal Defenders International v. UK, para. 108.
30. See sections 4 and 5.
31. Sukhovetskyy v. Ukraine, para. 68.
32. Ibid., para. 64.
33. Ibid., para. 69.
34. Lindheim v. Norway, para. 96; Hutten-Czapska v. Poland, Application No. 35014/97, 19 June 2006, para. 165.
35. Lindheim v. Norway, para. 128.
36. Parrillo v. Italy, para. 183.
37. Parrillo v. Italy, paras 184–8; see also Concurring Opinion of Judge Pinto De Albuquerque.
38. See Janneke Gerards, ‘European Court of Human Rights’, in Comparative Constitutional Reasoning, ed. A. Jákab, A. Dyevre, and G. Itzcovich (Cambridge: Cambridge University Press 2015, forthcoming), 16–17 (on file).
39. See Hirst v. UK (No. 2), Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens, para. 7.
40. See Eva Brems, ‘Procedural Protection: An Examination of Procedural Safeguards Read Into Substantive Convention Rights’, in Shaping Rights in the ECHR, ed. Eva Brems and Janneke Gerards (Cambridge: Cambridge University Press, 2013), 137–61, 159; Alice Donald and Philip Leach, ‘The Role of Parliaments Following Judgments of the European Court of Human Rights’, in Parliaments and Human Rights: Redressing the Democratic Deficit, ed. M. Hunt, H.J. Hooper and P. Yowell (Oxford: Hart, 2015), 59–92, 84.
41. See, for example, Robert Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’, Human Rights Law Review 14 (2014): 487–502, 499; Brems and Lavrysen, ‘Procedural Justice in Human Rights Adjudication’.
42. On the significance of approaches to reasoning for the legitimacy of international courts, see Silje Aambø Langvatn, ‘Should International Courts Use Public Reason?’, Ethics & International Affairs 30, no. 3 (2016): 355–77, 366–7.
43. Ajajos v. Hungary, para. 41; see also Hirst v. UK (No. 2), para. 79; Dickson v. UK, para. 83; Anchugov and Gladkov v. Russia, para. 108–9; Greens and MT v. UK, paras 111–15.
44. Sunday Times v. UK, 1979, paras 59 and 62; also Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge: Cambridge University Press, 2009), 234.
45. See also Saul, ‘Margin of Appreciation and the Processes of National Parliaments’, 771.
46. See Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Leiden: Martinus Nijhoff, 2009), 71, 73, 225; Janneke Gerards, ‘How to Improve the Necessity Test of the European Court of Human Rights’, Journal of International Constitutional Law 11, no. 2 (2013): 466–90 at 469–70; Alastair Mowbray, ‘A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights’, Human Rights Law Review 10, no. 2 (2010): 289–317; although see also Klatt and Meister, The Constitutional Structure of Proportionality, 9.
47. Jeremy Waldron, ‘Judges as Moral Reasoners’, International Journal of Constitutional Law 7, no. 1 (2009): 2–24, 8–9.
48. Jeremey Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 10.
49. Kavanagh, Constitutional Review, 15.
50. Carolyn Evans and Simon Evans, ‘Legislative Scrutiny Committees and Parliamentary Conceptions of Human Rights’, Public Law (2006): 785 at 785–6.
51. See Richard Ekins, ‘Legislating Proportionately’, in Proportionality and the Rule of Law: Rights, Justification, Reasoning, ed. G. Huscroft, B.W. Miller and G. Webber (Cambridge: Cambridge University Press, 2014), 343–69, 366, 369; also Lazarus and Simonsen, ‘Judicial Review and Parliamentary Debate’, 394–401.
52. Animal Defenders International v. UK, para. 114.
53. Ibid., para. 114.
54. Sukhovetskyy v. Ukraine, para. 65.
55. Lindheim v. Norway, para. 128.
56. Ibid., para. 118.
57. Parrillo v. Italy, para. 184.
58. Ibid., para. 185.
59. Parrillo v. Italy, Dissenting Opinion of Judge Sajó, p. 86, fn 5; p. 89, fn 11.
60. Parrillo v. Italy, para. 188.
61. See Gerards, ‘European Court of Human Rights’; Mowbray, ‘A Study of the Principle of Fair Balance’, 312.
62. See Yourow, The Margin of Appreciation, 17: also Brems, ‘The Margin of Appreciation Doctrine’, 256.
63. See Jan Kratochvil, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’, Netherlands Quarterly of Human Rights 29, no. 3 (2011): 324–57, 336; also Janneke Gerards ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, European Law Journal 17, no. 1 (2011): 80–120 at 106.
64. See George Letsas, ‘Two Concepts of the Margin of Appreciation’, Oxford Journal of Legal Studies 26, no. 4 (2006): 705–32, 721.
65. Ibid; also Samantha Besson, ‘Subsidiarity in International Human Rights Law – What is Subsidiary about Human Rights?’, The American Journal of Jurisprudence 61, no. 1 (2016): 69–107, 85.
66. Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford: Oxford University Press, 2012), 17–18; for critique of the extent to which this approach correlates with the court’s practice see Kanstantsin Dzehtsiarou, ‘Book Review’, Legal Studies 32, no. 4 (2012): 688–92; Oddný Mjöll Arnardóttir, ‘Rethinking the Two Margins of Appreciation’, European Constitutional Law Review 12 (2016): 27–53, 44.
67. Legg, The Margin of Appreciation in International Human Rights Law, 17; see similarly the proposed theory of deference as determined through balancing, Matthias Klatt, ‘Positive Rights: Who Decides? Judicial Review in Balance’, International Journal of Constitutional Law 13, no. 2 (2015): 354–82.
68. S.A.S. v. France, para. 129 (emphasis added); with the latter, ‘the role of the domestic policy-maker’, open to be treated as the inverse of the consensus criterion: when there is a lack of consensus, the broader policy environment at the domestic level is more relevant as a factor, see Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, 111; Brems, ‘The Margin of Appreciation Doctrine’, 303.
69. See also Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, 87, ‘Deference is based on the premise that procedures for decision making and regulation are working faultlessly, that they are transparent, that they allow for effective participation of stakeholders, and that they are capable of generating reasonable outcomes (norms and decisions).’
70. See Legg, The Margin of Appreciation in International Human Rights Law, 217; also Antoine Buyse and Michael Hamilton, ‘Conclusion’, in Transitional Jurisprudence and the ECHR Justice, Politics and Rights, ed. A. Buyse and M. Hamilton (Cambridge: Cambridge University Press, 2011), 286, 292.
71. See Saul, ‘Margin of Appreciation and the Processes of National Parliaments’, 752, 772; Spano, ‘Universality or Diversity’, 499.
72. With the ‘broader policy environment’ the inverse of the consensus criterion, see Saul, ‘Margin of Appreciation and the Processes of National Parliaments’, 766.
73. Legg, The Margin of Appreciation in International Human Rights Law, 83; citing Evans v. The United Kingdom as one example (an Article 8 case concerned with the state’s regulation of in vitro fertilisation (IVF) treatment).
74. See Saul, ‘Margin of Appreciation and the Processes of National Parliaments’, 766.
75. Ramussen v. Denmark, 28 November 1984, para. 40.
76. For example, S.A.S v. France, para. 129.
77. See Rivers, ‘Variable Intensity of Review’, 207; Klatt and Meister, The Constitutional Structure of Proportionality, 8, 70; Arai-Takahashi, The Margin of Appreciation Doctrine, 2.
78. Kavanagh, Constitutional Review, 234.
79. See Sunday Times v. UK, paras 59 and 62, quoted in the introduction to this article.
80. Julian Rivers, ‘The Presumption of Proportionality’, Modern Law Review 77, no. 3 (2014): 409–33, 412; for an overview see Rivers, ‘Variable Intensity of Review’, 182–7; Klatt and Meister, The Constitutional Structure of Proportionality, 9; see also S. Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006), 211–12.
81. Legg, The Margin of Appreciation in International Human Rights Law, 179.
82. See Janneke Gerards, ‘How to Improve the Necessity Test of the European Court of Human Rights’, International Journal of Constitutional Law 11, no. 2 (2013): 466–90.
83. Kavanagh, Constitutional Review, 234.
84. Rivers, ‘The Presumption of Proportionality’, 412; the way these steps are handled and given meaning varies from jurisdiction to jurisdiction, Klatt and Meister, The Constitutional Structure of Proportionality, 9.
85. Kavanagh, Constitutional Review, 237.
86. Klatt and Meister, The Constitutional Structure of Proportionality, 10.
87. Mowbray, ‘A Study of the Principle of Fair Balance’; for critique of the terminology of ‘balancing’, preferring ‘considering’ as a more accurate description of the practice of the court, see George Letsas, ‘Rescuing Proportionality’, in Philosophical Foundations of Human Rights, ed. R. Cruft and M. Renzo (Oxford: Oxford University Press, 2016, forthcoming), 13 (on file).
88. Animal Defenders, at Joint Dissenting Opinion, Judges Ziemele, Sajo, Kalaydjiyeva, Vučininć and De Gaetano, para. 9; but the reaction this way of using parliamentary materials will generate can also depend on the broader context of the case, see, for example, Ed Bates, The Evolution of the European Convention on Human Rights: From its Inception to the Creation of a Permanent Court of Human Rights (Oxford: Oxford University Press, 2010), 228, discussing the Belgian Linguistics case before the Commission (Com Rep. 24 June 1965).
89. See Arai-Takahashi, The Margin of Appreciation Doctrine, 193.
90. Rivers, ‘Variable Intensity of Review’, 200; It can be broken down into a set of further steps: first, the degree of infringement with a human right is established; second, the importance of satisfying the competing principle is established; third, whether or not the importance of satisfying the competing principle justifies the infringement with the human right: Klatt and Meister, The Constitutional Structure of Proportionality, 57.
91. The strive for an appropriate equilibrium is considered to be implicit in the convention as a whole, see Mowbray, ‘A Study of the Principle of Fair Balance’, 290; it is possible to distinguish the court’s practice of ‘cost-effectiveness, as a non-moralized standard of instrumental rationality, from a moral idea [utilitarianism] which is too familiar an idea in law and philosophy, namely that an action is morally right if it maximises the total sum of expected societal benefits minus the costs’, Letsas, ‘Rescuing Proportionality’, 7; also Dimitrios Kyritsis, ‘Whatever Works: Proportionality as a Constitutional Doctrine’, Oxford Journal of Legal Studies 34, no. 2 (2014): 395–415, 414; although, see further Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’, International Journal of Constitutional Law 7 (2009): 468.
92. Rivers, ‘Variable Intensity of Review’, 200.
93. See Greer, The European Convention on Human Rights, 209–11, 219–20; Mowbray, ‘A Study of the Principle of Fair Balance’, 317.
94. On the range of considerations that have been included by the court in its practice see Mowbray, ‘A Study of the Principle of Fair Balance’, 312; see also Klatt and Meister, The Constitutional Structure of Proportionality, 65, ‘the external justification of the values assigned to a principle is open to any moral or legal argument, balancing does not depend upon a specific moral theory’; for a proposal to understand the court’s doctrine of proportionality as ‘a subset of normative reasons of political morality, to do with the right to be treated with equal respect and concern by one’s government.’, see Letsas, ‘Rescuing Proportionality’, 31.
95. Klatt and Meister, The Constitutional Structure of Proportionality, 65; for critique see Başak Çalı, ‘Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions’, Human Rights Quarterly 29, no. 1 (2007): 251–70, 254.
96. See also Mattias Kumm, ‘Institutionalizing Socratic Contestation, The Rationalist Human Rights.
Paradigm, Legitimate Authority and the Point of Judicial Review’, European Journal of Legal Studies 1, no. 2 (2007): 153–83, 162 ‘[a]ssessing the justification for rights infringements is … largely an exercise of structured practical reasoning’.
97. Gerards and Senden, ‘The structure of fundamental rights’, 650; Çalı, ‘From Flexible to Variable Standards of Judicial Review’, 145, 151–2.
98. See, for example, VgT Verein Gegen Tierfabriken v. Switzerland, Application No. 24699/94, 28 September 2001, paras 71–9.
99. This classification draws on Rivers’ presentation, ‘Variable Intensity of Review’, 203.
100. See, for example, Murphy v. Ireland, paras 70–82.
101. See, for example, Parillo v. Italy, para. 188.
102. See and compare Patricia Popelier and Catherine Van de Heyning, ‘Procedural Rationality: Giving Teeth to the Proportionality Analysis’, European Constitutional Law Review 9 (2013): 230–62, 243; with Eva Brems and Laurens Lavrysen, ‘“Don’t Use a Sledgehammer to Crack a Nut”: Less Restrictive Means in the Case Law of the European Court of Human Rights’, Human Rights Law Review 15 (2015): 139–68, 151, 167; also Jonas Christoffersen, ‘Individual and Constitutional Justice’, in Law and Politics, ed. J. Christoffersen and M.R. Madsen (Cambridge: Cambridge University Press, 2011), 181–203, 200.
103. Tom Lewis, ‘Animal Defenders International v. United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?’, Modern Law Review 77, no. 3 (2014): 460–92, 468.
104. See, for example, Parillo v. Italy, dissenting opinion of Judge Sajo, critically comparing the analysis of the parliamentary process to that undertaken in Animal Defenders.
105. See Lazarus and Simonsen, ‘Judicial Review and Parliamentary Debate’, 393.