The statement concerns the axiomatic tension between judicial interpretation which promotes the purported subsidiarity[1] nature of the Court by ensuring Contracting States have remained within their limits, (margin of appreciation fits into this subsidiary role) [2] against the idea of judicial legislation (judicial activism) which runs contrary to the notion of the court being a non-intrusive supervisory mechanism.[3]
Therefore there is tension between the principles of universality and subsidiarity[4] – the idea of insisting on the same European protection for everyone by developing a common standard but not to encroach on the sovereignty of the Contracting States who are the primary guarantors of the Convention Rights.[5] Essentially, the two principles should work hand-in-hand. Lord Lester noted that universality could be recognised if there was effective protection of rights by national courts and national legislatures and administrators rather than by relying on a very weak form of European judicial supervision.[6] Balancing the two principles, however, is no easy feat. Some argue that the doctrine helps prevent intruding on State sovereignty by allowing them a degree of latitude in fulfilling their Convention obligations.[7]
The initial part of this document will discuss justifications for the doctrine and whether it really is unjustifiable. It will discuss what factors determine the scope of the doctrine with reference to case law. The latter part will discuss whether the European Court on Human Rights (ECtHR) has, in actual fact, been ‘consistently’ activist.
To call the margin of appreciation doctrine ‘unjustifiably’ deferential would appear to be accurate as it is erratic[8] in its application. The problem with the doctrine is that it ‘illustrates a disappointing lack of clarity’[9] by injecting a strongly subjective element into the interpretation of the Convention. This effectively weakens the Court’s authoritative position due to the absence of clear objective criteria needed to review a State’s decision.[10]
This does not mean, however, that the doctrine has no merit; it allows Contracting States some flexibility for how they ensure rights. However, too much deference means that the Contracting States become the primary concern although it is the protection of the individuals that is at the core of the European Convention.[11]
Firstly, the doctrine allows a degree of latitude in balancing individual rights and national interests as well as in resolving conflicts that emerge as a result of diverse moral convictions.[12] Therefore, it can be argued that it is a necessary and realistic tool for the court. When there are sensitive issues, it can facilitate dialogue with domestic systems in terms of each system’s unique values and needs.[13] In addition, as the defenders of the doctrine note, the discretion is not unlimited and that European supervision goes hand-in-hand with the Contracting States.[14] It is important to note that in the Belgian linguistics[15] case, the Court stated that if they assumed the role of the Contracting State they would lose sight of their subsidiarity role within the Convention. Thus, Contracting States should be free to choose the proper measures in matters governed by the Convention.
The doctrine is best articulated in Handyside[16] but its roots lie in the French Conseil d’Etat jurisprudence and in the administrative law of civil law jurisdictions.[17] The doctrine first came about in relation to government derogations under Article 15.[18] In Greece v United Kingdom[19] they held that Contracting States were entitled to a ‘certain measure of discretion in assessing the extent strictly required by the exigencies of the situation’.[20] The Commission first used the term in Lawless v Ireland.[21]
In Ireland v United Kingdom[22] they justified the position of wide discretion. It was decided that because of their ‘direct and continuous contact with the pressing needs of the moment, the national authorities were, in principle, in a better position than the international judge to make a decision.’[23] Branningan and McBride v United Kingdom[24] further cemented this deferential attitude.[25] It was decided that there needed to be a wide margin when deciding the presence of an emergency situation and the necessary measures to avert that situation.[26] It is questionable whether such deference is justified, especially in the context of an emergency where individual rights are most vulnerable to abuse.[27] To state simply that a decision was within the margin of appreciation of the national authorities provides no real reason for the decision; it is merely expressing a
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