The Government’s plans are described as “an opportunity” to make use of the Strasbourg Court’s commitment to an “increased margin of appreciation” and enhanced recognition of the principle of subsidiarity, following the Brighton Declaration and the coming into force of Protocol 15 in August 2021. The proposed Bill of Rights will “reflect, support and encourage” an increased focus on the subsidiarity principle by “enhancing Parliament’s role”, which includes allowing Parliament to have “the last word” on how to respond to adverse rulings from Strasbourg.
Therefore, subsidiarity places obligations on state parties, as well as granting them a margin of appreciation to decide how Convention rights may best be implemented. If states want to use the subsidiarity principle to keep the Strasbourg Court at arm’s length, then they must ensure that Convention rights and case law are properly considered in domestic policy making, during the legislative scrutiny process, and when cases are brought before domestic courts. This means that national governments, parliaments, and courts must follow practices and procedures that are designed to secure Convention rights and freedoms, and must provide an effective remedy when those rights and freedoms are violated. The subsidiarity principle is therefore intended to strengthen, not weaken, states parties’ responsibility for protecting Convention rights.
The current Human Rights Act
(3) Section 19 requires all Government Bills brought before Parliament to be accompanied by a ministerial statement confirming that the Bill’s provisions are compatible with the Convention, or stating the minister’s intention to proceed with a Bill that is likely to be incompatible. Where a Bill raises significant compatibility issues, the Government also publishes an ECHR memorandum as a matter of best practice. This memorandum contains an analysis of the Bill’s provisions that engage Convention rights, and why the Government believes the provisions are compatible with those rights.
(2) Two possible changes are proposed to the interpretative obligation in section 3 of the Human Rights Act. The first is simply repealing section 3, so that domestic courts are no longer required to read and give effect to domestic legislation in a way which is compatible with the Convention rights. The second is replacing section 3 with a provision which permits a court to interpret legislation compatibly with the rights in the Bill of Rights only where there is ambiguity in the legislation, and only if such interpretation “can be done in a manner that is consistent with the wording and overriding purpose of the legislation”.
However, the Court’s use of subsidiarity to impose, at least in a number of cases, a light-touch supervision on the UK’s human rights regime appears not to have quelled dissatisfaction with the Court amongst the country’s Conservative Government. In the UK’s case, subsidiarity is now being used as a justification for the country to remain a signatory to the ECHR while dismantling its domestic system for protecting Convention rights. In the long run, such a misuse of subsidiarity is likely to be extremely damaging to the legitimacy of the Convention system as a whole.