Tuesday 14 June 2022

Invoking Subsidiarity to Weaken ECHR Protection in the UK

Guest post by Katie Lines


For many months now, the United Kingdom’s Government has been solidifying plans to drastically change the country’s human rights framework in a manner that could jeopardise its continued membership of the Council of Europe. On 10 May, the Government confirmed its intention to introduce a new Bill of Rights, with the aim of “curbing the incremental expansion of a rights culture” and restoring “some common sense to the [UK’s] justice system”. The proposed Bill of Rights would replace the current legislation that gives effect to the European Convention on Human Rights (“ECHR”) in UK law, the Human Rights Act 1998. 

This blog post looks at one aspect of the rationale used to justify the Government’s plans for change: the principle of subsidiarity. It argues that, in the name of fostering subsidiarity, the UK’s plans for change would partially dismantle the domestic mechanisms that promote it, and would significantly weaken ECHR protection in the UK.
Subsidiarity UK-style?
The Government outlined its plans for change in a consultation document that was published in December 2021, in which views were sought on a number of options for reform. The Government’s principal aims, as set out in the consultation document, include reducing the influence of the European Court of Human Rights (“ECtHR”) on UK law, affirming the supremacy of the UK Parliament in the face of adverse Strasbourg rulings, and restricting the extent to which individuals who have not “respected the rights of others” can make use of human rights claims and remedies. The Government intends for the UK to remain party to the ECHR, but if the Bill of Rights is enacted in line with the Government’s most far reaching proposals, then the UK would inevitably be placed in breach of its obligations under the Convention. 

Throughout the consultation document, the Government uses the twin principles of subsidiarity and the margin of appreciation to justify its plans for change. The document expresses a narrow view of these principles, mostly portraying them as devices to constrain the Strasbourg Court and protect against overreach. Subsidiarity is described as the Strasbourg Court’s “doctrine of self-restraint” which entitles State Parties to “push back” by taking a different stance from the Court, especially where “there is a democratic mandate on a contentious issue of public policy”. Likewise, the margin of appreciation is portrayed as something that States can claim for themselves to keep Strasbourg at bay, with the consultation document noting that States are able to “assert the margin of appreciation over matters which, particularly in a mature liberal democracy, should be left to national courts and elected legislatures”. 

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. 
Subsidiarity from an ECHR perspective 

The Strasbourg Court has recognised its subsidiary nature since the early years of the Convention system. However, the notion of subsidiarity expressed in the consultation document – as a tool State Parties can invoke to place limits on the Court – first became prominent with the 2012 Brighton Declaration. Although many states have pushed back against this was of framing the issue, the UK is not the only State Party to use subsidiarity as a vehicle to critique the alleged overreach of the ECtHR. For example, when Denmark assumed chairmanship of the Council of Europe in 2017, thecountry’s priorities included promoting “the need to take into account the principle of subsidiarity and its functional tool, the margin of appreciation”, in light of “challenges resulting from the fact that the European Court of Human Rights, through its judgments, increasingly has influence on policy areas of critical important to member States and their populations”. 

However, the ECtHR’s conception of the subsidiarity principle, as expressed in its case law, is more nuanced. Dean Spielmann, former President of the ECtHR, has explained that the Convention should not be seen as subsidiary “to State authorities in a broad or general way on traditional sovereignty grounds. Rather, the Convention mechanism is subsidiary to the national systems safeguarding human rights.” As such, subsidiarity requires domestic authorities to establish a national system which implements the Convention effectively. The Strasbourg Court is subsidiary in that it will take a supervisory role and only intervene when national authorities fail in their primary responsibility. 

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 Government’s consultation document, however, frequently invokes subsidiarity as a rationale for avoiding the obligations placed on the UK under the Convention system. This is ironic given that one of the Government’s main critiques of the Human Rights Act 1998 is that it has apparently led to “a culture of rights” decoupled from responsibilities, and the Government plans to use the Bill of Rights to emphasise “the role of responsibilities within the human rights framework”. 
The UK’s record in Strasbourg 

Since the Interlaken Conference/Declaration of 2010 – where State Parties firmly called for a strengthening of the subsidiarity principle – there has been a general growth in the Strasbourg Court’s reference to the margin of appreciation. At the same time, there has been a relatively drastic decline in the number of cases lost by the UK. For example, in the five years leading up to the Interlaken Conference, 2006-2010, the UK lost 84 cases before the ECtHR. In the next five years, 2011-2015, it lost only 34. There are a number of possible explanations for this decline, but the Court’s increased use of the subsidiarity doctrine is likely to be a meaningful factor. Before 2010, the UK successfully defended less than 40% of cases where the margin of appreciation was invoked before the Court, but as of 2021, that percentage had risen to over 50%. Only two countries in the Council of Europe (Denmark and Sweden) successfully defend a higher percentage of margin of appreciation cases.

The UK’s success in defending margin of appreciation cases can likely be explained partly because, as part of the Court’s turn towards subsidiarity, the Court seems to give greater respect to decisions of domestic institutions in countries where there is a strong procedural embedding of the Convention. 

The current Human Rights Act

In the UK, the Human Rights Act 1998 ensures that Convention rights are properly considered and protected domestically, and the country has been described as “a model in terms of subsidiarity thanks to the Human Rights Act”. To take three examples of how the current Act embeds the principle of subsidiarity:

(1)  Section 2 of the Human Rights Act requires UK courts to “take into account” Strasbourg case law.

(2)  Section 3 imposes a strong interpretative obligation for courts to read and give effect to domestic legislation in a way which is compatible with the Convention rights, so far as it is possible to do so. 
(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. 
The proposed Bill of Rights

The proposed Bill of Rights will severely weaken domestic procedures for securing Convention rights. To take the three examples in the previous paragraph: 

(1)  The Government intends to remove the requirement in section 2 of the Human Rights Act for UK courts to “take into account” Strasbourg case law. Instead, the consultation document proposes inserting a clause in the new Bill of Rights that permits (but does not require) a domestic court to consider relevant case law from the Strasbourg Court, while also stating that domestic courts are “not required to follow or apply any judgment or other decision of the European Court of Human 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”.
(3)  The consultation document queries whether the compatibility statements required by section 19 of the Human Rights Act strike the “right constitutional balance between government and Parliament”, or whether they restrict “the space for innovative policies”. The document seeks views on whether there is “a case for change”. 

Therefore, the proposed Bill of Rights will likely undo many of the procedures and doctrines that have been put in place to ensure Convention rights are properly considered by the UK’s Government, Parliament and courts. It may even be partially self-defeating. The principle of subsidiarity will become far less embedded within the domestic legal framework, with the result that the UK may be afforded a far narrower margin of appreciation when defending cases before the Strasbourg Court. This increased scrutiny from Strasbourg will come at a time when it is likely that a growing number of cases from the UK will come before the ECtHR, as a number of options put forward in the consultation document will, if enacted, prevent some people from enforcing their Convention rights domestically. Therefore, the UK is likely to find itself facing an increasing number of adverse judgments from the ECtHR. 
Wider implications for Europe

National authorities and the Strasbourg Court appear at times to have different motivations for invoking subsidiarity and the margin of appreciation. For the Court, the principles are a helpful way to ensure that the Convention becomes embedded domestically, and to reduce its high case load. For some member states however - for instance the UK and Denmark - the principles have been used tools to try and limit the involvement of the Court in domestic matters and protect against fears of overreach. 

Despite these different motivations, the Strasbourg Court’s increased use of the subsidiarity principle since 2010 should in theory benefit both the Court and disillusioned states parties that perceive the Court to be overly interventionist. If states properly embed the Convention, then they can benefit from a greater margin of appreciation, and the Strasbourg Court should see a reduced case load. 

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. 
Katie Lines is a Research Fellow with the Bingham Centre for the Rule of Law. Before joining the Bingham Centre, Katie worked as a human rights lawyer with the civil liberties organisation Liberty.