It is my pleasure to introduce a guest post commenting a
specific aspect of the current COVID-19 pandemic: how the European Court of
Human Rights could foster oversight within ECHR state parties by using
procedural rationality. It was written by my SIM colleague Kushtrim Istrefi and
his co-author Vassilis Tzevelekos. Good food for thought!
A Way for the ECtHR to Foster the Domestic Oversight of
Emergency Measures Against the Pandemic: Procedural Rationality’s Special
Mission
Dr
Vassilis P Tzevelekos, senior lecturer at the University of Liverpool School of
Law and Social Justice, and Dr Kushtrim Istrefi, assistant professor with the
Netherland Institute of Human Rights (SIM) at Utrecht University
In
the wake of the current pandemic, a number of international institutions have
stressed the importance of parliamentary and judicial oversight of national
emergency policies. For instance, in the COVID-19 toolkit, the Secretary General of
the Council of Europe noted that any emergency measures “should comply with the
constitution […] and, where applicable, be subjected to review by the Constitutional
Court”. The Venice
Commission has
highlighted the importance of parliamentary oversight and judicial review with
respect to declarations and prolongations of states of emergency. In similar
terms, the OSCE has
called for stronger parliamentary oversight of emergency measures. The UN, in
its policy brief on COVID-19 and human rights,
underlined parliamentary scrutiny as a good practice and criticised weak
domestic oversight of executive measures.
These
calls highlight the importance of domestic oversight of emergency measures in
the wake of COVID-19. In this blog, we argue that the European Court of Human
Rights (ECtHR) has a ‘tool’ of analysis, namely procedural rationality, that
allows for closer engagement with domestic oversight. This engagement, in our
view, can ensure stronger European supervision of such measures and help to
build common standards of domestic oversight in a manner that also takes into
account the pluralism that prevails between the Council of Europe member states
with respect to emergency measures.
The
importance of domestic oversight of emergency measures
The
international calls for domestic oversight of states of emergency in the wake
of COVID-19 are in line with constitutional traditions of checks and balances in
liberal democracies, in particular in times of crisis. For example, when
discussing the Coronavirus Bill, the UK Parliament recently stated that “robust
parliamentary scrutiny […] and judicial oversight are imperative for granting
such significant powers to ministers”. The extraordinary nature of emergency
measures and their effect on fundamental rights protection make it imperative
that effective domestic oversight is in place to ensure that governments are
duly controlled and that they lawfully and legitimately exercise any emergency
powers at their disposal or those which they have been given exceptionally.
During
a public emergency, national courts and parliaments can control whether the
executive duly exercises its enhanced powers. National courts have already
performed this function with regard to measures against the coronavirus and
prevented the executive from applying various unlawful emergency measures. For
instance, constitutional courts in Germany, Kosovo and Bosnia and Herzegovina have recently declared specific
measures related to COVID-19 unconstitutional.
These judicial interventions can serve as examples of the role that human
rights can play in times of emergency. Scrutiny by courts can ensure that
national policies fighting the pandemic do not become abusive or go beyond what
is necessary. Mutatis mutandis,
parliamentary oversight can offer democratic legitimacy to emergency measures,
control the executive and apply pressure, for
instance by inviting governments
to re-evaluate whether emergency powers or measures are still required. This
way, they can prevent so-called entrenched emergencies. Thorough oversight of
national policies against COVID-19 at the domestic level is essential to
maintain respect for human rights, to endow these policies with legitimacy and
to enhance their effectiveness.
The
pertinence of procedural rationality for domestic oversight of emergency
measures
Domestic
oversight is of significance for the purposes also of the international
scrutiny of emergency legislation that interferes with human rights. Domestic
parliamentary debates and judicial decisions reveal the goals pursued by
emergency measures, the priorities that they set, the values that underpin
them, and the risks and trade-offs that they involve. They are also telling of
the aptness of the measures, their duration, necessity and legitimacy. These
are all elements that the ECtHR can duly consider when reaching a decision on
the compatibility of national emergency measures against COVID-19 with the ECHR.
The
ECtHR can engage with the practice of national parliaments and national courts
through so-called procedural rationality review. According to Popelier and Heyning, when applying
procedural rationality analysis, the ECtHR “takes the quality of the
decision-making procedure at the legislative, the administrative as well as the
judicial stage, as a decisive factor for assessing whether government
interference in human rights was proportional, thereby avoiding intense
substantive review”. This procedural approach allows the Strasbourg Court to
rely on domestic oversight by considering parliamentary debates or the lack
thereof, the attempt to weigh competing interests, and the reliance of national
courts on the ECtHR’s case law, to name a few factors. As a result, to use the
words of Kleinlein,
procedural rationality can “increase the ‘ownership’ of European human rights
by domestic institutions and the general public and rationalize the debate”.
The
engagement with and the reliance on domestic oversight sends a signal for
cross-party politics and the proper weighing of different interests at a time
when the power in the hands of a few has the potential to heavily cost the
many. This approach, to borrow the words of President Spano, can thus have “democracy enhancing” effects during
challenging times. Furthermore, as the Strasbourg Court itself cannot provide a
timely review of states of emergency, reliance on domestic oversight helps the
ECtHR to take cognizance of larger policy implications when looking at
individual applications. Finally, as discussed in further detail below, by
means of procedural rationality the Court can set certain standards of domestic
oversight that states ought to meet. In this way, as Gerards and Brems argue, the ECtHR can also “impose[…]
quality standards upon national legislators and encourage […] national courts
to conduct their own procedural rationality review”.
Overall,
our argument is that procedural rationality can prove to be particularly
helpful in the case of emergency measures. With this type of review, the focus
moves from the consequences that emergency measures have for human rights per se to the procedure behind these measures
and to the procedural safeguards a polity offers to control these measures.
Procedural safeguards thus offer a first layer of defence at the local level
and, possibly, in real time, whilst the emergency is still ongoing. Procedural
rationality is not merely a matter of procedure. The procedure can complement,
underpin and condition the substance of human rights, in particular when these
are threatened by extraordinary measures. That being said, it is not surprising
that the role of parliaments in states of emergency has already been raised
before the ECtHR in the past. In A and others v. UK, the UK Government
specifically noted that the contested measure “was not only the product of
the judgment of the Government but was
also the subject of debate in Parliament”. In that case, when assessing whether derogations of
long duration are compatible with the ECHR, the Court also relied upon the fact
that such measures had been annually reviewed by the UK parliament (para 178).
Admittedly, the weight given by the ECtHR to domestic oversight is not entirely
clear in this particular case. In the future, however, the Court can take a
stronger procedural turn by way of engaging with the quality of domestic
parliamentary and judicial review in more depth.
Procedural
rationality and deference to national authorities
Procedural
rationality can potentially be a subsidiarity-friendly tool, by means of which
the ECtHR - whilst also taking into account other relevant factors - decides
when (or the extent to which) it should defer to national decision making and
scrutiny. As such, in an eventual
application before the ECtHR, elements such as the quality of decision-making
processes at the national level, high standards of good governance and the
thoroughness of domestic oversight can be decisive in determining the rigidity
and completeness of the test of conventionality carried out by the ECtHR.
A
process-based review may give the
impression that the ECtHR is lowering its standards or that, by granting
leeway, it is enfeebling the scrutiny that it traditionally exercises; however,
this is not a very safe conclusion to reach.
First, this largely depends
on, inter alia, the
intensity of procedural rationality and its outputs. Procedural rationality
does not necessarily result in increased leeway being given to national authorities.
Second, the ECtHR could adopt
a “semiprocedural review”, that pairs with
substantive review. That is to say, it would not be unreasonable if, particularly in the context of emergency measures,
procedural rationality would complement - instead of replacing or mitigating -
the traditional test of conventionality. With procedural rationality, the ECtHR
could add one extra layer of scrutiny and, alongside other elements such as
proportionality, also check the quality and adequacy of domestic oversight in
cases involving emergency measures. This extra layer could even be added in a
more oblique or concealed way. For instance, procedural rationality analysis
could be associated with (or absorbed by) other questions traditionally
explored by the ECtHR, such as the legitimacy of the aim pursued by an
interference with ECHR rights or the existence within domestic law of a legal
basis for the interference.
Third, even if procedural
rationality (applied in light of the particular circumstances of a case) leads
to deference through a wide margin of appreciation precluding a full test of
proportionality, process-based review can still offer rather satisfactory
results. Essentially, it shifts the level where full scrutiny is being
exercised. Instead of applying its usual scrutiny, the ECtHR can replace it
with a more general review that the requisite scrutiny has been duly exercised
domestically. The reason that procedural rationality may result in the granting
of a wider margin of appreciation is that the national authorities of the
respondent state are considered to have done their job in a manner that in
principle complies with the ECHR.
To
that end, national authorities must duly consider human rights law and strive
to give the ECHR effects that satisfy the ECtHR in that they are close enough
to those that it would have given, had it decided to proceed with its
traditional full test. The key issue in the case of emergency powers is not so
much who (i.e. national authorities or international institutions) exercises
oversight, but that this is duly exercised in a timely manner. Mutatis mutandis, without
undermining the importance that subsidiarity holds to states, the key issue
with the use of procedural rationality with respect to emergency measures is
not so much the granting of a margin of appreciation, but the fact that
procedural rationality puts the accent on domestic oversight. This is the key
reason why we contend that procedural rationality is an apposite method for
cases involving emergency measures.
The
importance of procedural rationality lies in the emphasis that it places on the
quality of oversight procedures at the national level, and also in its possible
connection with margin of appreciation, which is essential for both states’ and
the ECtHR’s legitimacy. As Lord Atkin once lamented, in times of crisis, the
risk remains that courts become “more executive minded than the executive”. With respect
to international courts such as the ECtHR, this danger goes hand in hand with
another risk, namely, to overly restrict national sovereignty. This can be more
problematic when national authorities fight an emergency and, to be in a
position to do this in an effective manner, they need more leeway. It is
largely accepted that the ‘era of subsidiarity’ within the ECHR regime emerged
as a reaction to criticism that the ECtHR has been more interventionist than
(certain) states would have desired it to be in the past. By relying on (ergo essentially also controlling the
quality of) domestic judicial and parliamentary oversight of emergency measures
as a criterion and a precondition to defer to decision making at the local
level, the ECtHR does not second-guess but rather cross-checks what the competent
domestic actors have decided about emergency measures.
Procedural
rationality, pluralism and common minimum standards
Procedural
rationality allows the ECtHR to pay due regard to domestic procedures in each
case and possibly defer to national authorities. This is particularly important
as domestic procedures may well differ from one state to another.
Constitutional variety on how oversight of emergency measures should be
exercised is a ‘natural’ consequence, and also evidence of (constitutional) pluralism
(and wealth) regarding certain aspects of a polity’s reaction to an emergency,
including the special procedures, legal bases and logic behind the allocation
of competences for adopting emergency measures.
Procedural
rationality enables the ECtHR to show - when it deems it necessary - how much
it respects different legal traditions and the different paths taken to respond
to a crisis. In other words, this method can help the Strasbourg Court to
maintain a due balance between the (constitutional) pluralism with respect to
extraordinary measures that inevitably prevails within a community of 47
states, on the one hand, and the exigencies of human rights, on the other. The
former aspect involves subsidiarity and deference to national authorities. The
latter involves ‘smart’ forms of scrutiny, such as procedural rationality that
can help to determine whether national procedures meet certain common minimum
standards regarding the way in which they should operate.
These
common standards of procedural rationality translate into: a) guarantees of due
consideration of the substance of a human rights issues, primarily at the
national level and, if need be (i.e. if a state fails the procedural
rationality test or if the process-based review of the ECtHR complements
substantive review rather than precluding it) to an extent by the ECtHR; b)
respect for national sensitivities and special features (i.e. the idiosyncrasy
of each national constitutional order in the way it regulates reactions to
emergencies); and also c) the gradual building of a common core of minimum
procedural standards that each member state ought to meet as a precondition for
them to pass the procedural rationality test and possibly ‘gain’ an increased
margin of appreciation.
Given
that the margin of appreciation that states traditionally enjoy in states of
emergency is wider, procedural rationality could act as a precondition for
granting margin of appreciation in a way that does not sacrifice the substance
of human rights protection, respects legal pluralism, subsidiarity and
sovereignty, whilst also emphatically placing the accent on what is essential
in times of crises which lead to emergency measures and the granting of
extraordinary executive powers. This way, procedural rationality can positively
contribute to the strengthening of domestic oversight and supervision and,
thereby, to the protection of fundamental human rights by establishing certain
‘red lines’ with respect to domestic procedures pertaining to the oversight of
emergency measures or by setting certain ‘goals’ of domestic scrutiny and
oversight -which could be met in a ‘flexible’ manner, adjusted to the
constitutional physiognomy of each member state. Finally, we must stress that
domestic oversight during states of emergency and its use by the Strasbourg
Court through procedural rationality is not a magic tool to mitigate or
tolerate instances of misapplication or misuse of executive power in a state of
emergency.
Conclusion
The
use of procedural rationality is not without criticism. Some could argue that
it is a form of judicial activism or that the Court lacks the authority to
scrutinise the quality of parliamentary debates. Given its confines, the
purpose of this blog is not to argue in favour or against procedural
rationality in general, but to underscore the pertinence of procedural
rationality with respect to emergency measures. The primary advantage of the
use of this method in the context of emergency measures is that procedural
rationality focuses on what is essential for such measures, i.e. the quality
and depth of domestic oversight, guaranteeing that the emergency measures are
taken with appropriate deliberation, control and reflection, inter alia as to their compatibility with the
rights enshrined in the ECHR.
By
employing the procedural rationality analytical tool, the ECtHR can place the
accent on timely domestic oversight as a crisis/situation calling for emergency
measures unravels. The ECtHR’s case law can thereby contribute to the
establishment of a common threshold, that is, common minimum standards
regarding due oversight of national emergency measures.
Our
view is that by means of procedural rationality, the ECtHR can contribute to the
strengthening of domestic oversight of extraordinary measures. It can infuse
international scrutiny with democratic legitimacy stemming from the national
level, whilst also giving shape to a common pan-European core of checks and
balances in times of emergency in a manner that can, in principle, be
subsidiarity-friendly and respectful of (constitutional) pluralism within the
47 Council of Europe member states. To borrow the EU motto, procedural
rationality can thus help the member states of the Council of Europe to become
more “united in diversity” in times of emergency.
The
authors are thankful to Professor Janneke Gerards, Dr Dimitrios Kagiaros and Dr
Nikos Vogiatzis for their helpful comments.
