Structuring evaluations of parliamentary processes by the European Court of
Human Rights
Matthew Saul
PluriCourts, Department of Public and International Law, University of Oslo, Norway
Abstract:
The quality of parliamentary process has been a relevant factor for the
European Court of Human Rights (ECtHR or the Court) 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 ECtHR’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.
Keywords: parliament, margin of appreciation, proportionality, European Court
of Human Right, legitimacy, legislator, procedure
1. Introduction
The European Court of Human Rights (herein the ECtHR or the Court) is required to
determine the justifiability of interferences with qualified rights. These rights include
those found in Articles 8 – 11 of the European Convention on Human Rights
(ECHR): right to respect for private and family life; freedom of thought, conscience
and religion; freedom of expression; and freedom of assembly and association. The
determination of the justifiability of a limitation requires the Court to assess, in the
light of the case as a whole, ‘whether the "interference" complained of corresponded
to a "pressing social need", whether it was "proportionate to the legitimate aim
pursued", [and] whether the reasons given by the national authorities to justify it are
"relevant and sufficient”’. 1 In making its assessment, the Court has, on certain
occasions, afforded weight to the quality of the domestic process underlying the
interference.
On such occasions, the Court tends (where it is explicit) to use the same sort of
language regardless of the type of domestic authority in focus: administrative, 2
parliamentary,3 or judicial.4 The Court is seeking evidence of weighing and balancing
of the various interests at stake and assessment of the proportionality of the
restriction. Accordingly, it makes sense for case law concerned with all types of
domestic authority to be collected and assessed as a whole. This holistic approach is a
means of bringing into focus the general extent and means by which the Court
encompasses assessment of domestic process in its reasoning. 5
1
However, processes of domestic judicial bodies, executives and parliaments vary in
form and status. While the Court’s own understanding of good judicial practice may
be able to serve as a standard framework for the assessment of the processes of
national courts,6 the same should not be assumed to apply for other types of domestic
bodies. It is therefore important to supplement holistic accounts with the study of how
the Court engages with the particularities of each type of domestic authority. This
approach can help to develop a clearer understanding of the current status of the
Court’s practice and how it might be developed.
This article concentrates on parliaments. Parliamentary process is particularly
interesting as, in contrast to domestic judicial and administrative processes, there are
more significant knowledge based and legitimacy based challenges for the ECtHR’s
judges. 7 This helps to explain why some of the key cases involving parliamentary
process have been decided on the basis of a small majority. Consider also some of the
words of warning made by judges in separate opinions:
‘[it is] not for the Court to prescribe the way in which national legislatures
carry out their legislative functions.’8
‘This is an area in which two sources of legitimacy meet, the Court on the one
hand and the national parliament on the other. This is a difficult and slippery
terrain for the Court in view of the nature of its role, especially when it itself
accepts that a wide margin of appreciation must be allowed to the Contracting
States.’9
This article singles out national parliaments from the general interest in the procedural
rationality of the Court.10 It also singles out two specific technical purposes that can
explain the Court’s interest in process. Reference to the quality of a process can be
used by the Court to help to determine the breadth of the margin of appreciation (qua
the level of deference to be shown to the state in the assessment of the interference). It
can also serve an element that is weighed in the course of the proportionality analysis
of the justifiability of the state’s limitation to a right. 11
The two noted technical purposes each have their own logics.12 The Court’s margin of
appreciation evaluation can be understood as the prior step. It determines the level of
deference to be shown to the state by assessing the extent to which the state is better
placed to pass judgment on the issue at hand. 13 The Court’s analysis of the
justifiability of a limitation concentrates on assessing the strength of the state’s
reasons. Often this is referred to and structured as an assessment of the proportionality
of the limitation.
The main question addressed by this article is as follows. 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 proportionality
analysis. In so doing, it connects to the ongoing scholarly debate in this area about
which interests might guide the development of the Court’s engagement with
domestic processes.14 The article also has relevance for the broader debate about the
2
legitimacy and effectiveness of the Court as a source of rights protection. 15 It is also
likely to be useful for practitioners preparing for future cases.
The article proceeds with an account of the current condition of the Court’s practice
on the engagement with parliamentary process. Four cases are selected to represent
the range of ways in which process can be dealt with in the reasoning of the Court:
Animal Defenders International v. UK; 16 Sukhovetskyy v. Ukraine; 17 Lindheim v.
Norway; 18 Parrillo v. Italy. 19 Attention then turns to how the Court valuing
parliamentary process relates to the existing theory on margin of appreciation and
proportionality analysis. This allows for the development of a theory as to the
difference that the way parliamentary process is positioned within a case could make
for the criteria and level of scrutiny employed for its assessment. The article
concludes with reflections on how this theory relates to the practice of the Court.
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.
2. Locating Assessment of Parliamentary Process in the Case Law of the Court
To develop a clearer understanding of the Court’s practice on making parliamentary
process count for the outcome of a case, relevant case law has been sourced through
following the trail provided by the cases cited in the recent, prominent case of Animal
Defenders International v. UK. In total, approximately 30 relevant cases have been
identified and reviewed, with most decided from around 2005 onwards. 20 Key
features include the following.
The cases are commonly concerned with general measures (meaning a measure the
impact of which is not tailored to the facts of a particular case) that operate as
limitations on rights. Provisions in the relevant case law include Articles 8, 9, 10, 11
of the Convention and Articles 1 and 3 of Protocol No. 1. The specific subject matter
of the cases has been diverse, but at a more general level has been identified as
‘mainly applied in two types of sensitive cases, i.e. cases relating to complex choices
in socio-economic policy fields, and ‘[moral] dilemma-cases’.’ 21 The list includes
cases in which the scrutiny of process has benefited the state,22 and cases in which it
has counted against the state.23
At a general level, then, the case law can appear fairly coherent. However, turning to
more specific issues, such as the technical purpose and criteria for scrutiny of process,
the appearance of coherence in the case law can start to fade. With regard to the
technical purpose for attention to parliamentary process, there are two main options:
margin of appreciation and proportionality analysis.
The ECtHR and the Convention it applies are intended to be complementary but
subsidiary to the national systems. The material manifestation of the subsidiary role of
the Court is the doctrine of the margin of appreciation. The margin of appreciation
can be defined as ‘the measure of discretion allowed the member states in the manner
in which they implement the Convention's standards, taking into account their own
3
particular national circumstances and conditions.’24 Important aspects of the margin
of appreciation are that its width varies from case to case, depending on the
interaction of a host of first order and second order reasons (a point returned to
below).25 A key significance of the determination of the margin of appreciation in a
particular case is that it determines the strength with which the state’s activity is
scrutinised in a particular instance.26 As such, it can be seen as necessarily prior to the
substantive assessment of the justifiability of a rights limitation, 27 which is often
structured according to a proportionality test.
The rest of this section addresses the way in which the Court specifies its technical
purpose for assessing the quality of parliamentary process. 28 The next section
considers the criteria used for assessment of parliamentary process and the level of
scrutiny employed. For both sections, the focus is on four cases, considered to be
some of the clearest examples of four different ways in which the parliamentary
process has been made significant by the Court: Animal Defenders International v.
UK; Sukhovetskyy v. Ukraine; Lindheim v. Norway; Parrillo v. Italy. Each sub-section
takes its title from the way in which parliamentary process has featured in the case.
2.1 Parliamentary process as relevant for determining both the margin of
appreciation and proportionality analysis
For present purposes, the Animal Defenders case is especially important. The Grand
Chamber found that the prohibition on political advertising on television and on radio
by the 2003 Communications Act—under which the applicant, a social advocacy
group for the protection of animals, had been prevented from broadcasting a
television advertisement—did not amount to a disproportionate interference with the
applicant’s right to freedom of expression. To support this finding, the Court offers
one of its most explicit recognitions that the quality of parliamentary process has
relevance for both the margin of appreciation analysis (determining the level of
deference) and the substantive review (assessing the justifiability of a limitation):
It emerges from that case-law that, in order to determine the proportionality of
a general measure, the Court must primarily assess the legislative choices
underlying it (James and Others, § 36). The quality of the parliamentary and
judicial review of the necessity of the measure is of particular importance in
this respect, including to the operation of the relevant margin of appreciation29
The Court does not, however, elaborate on how its subsequent analysis of the
parliamentary process relates to these two particular aspects of the Court’s reasoning.
In so doing, the Court might intend to imply that inclusion of process as part of the
margin of appreciation or as part of proportionality analysis makes no material
difference to the approach taken by the Court. This approach is questioned below on
the basis of the differing logics of the two modes of reasoning.30 It is also brought into
question by other cases, now turned to, which show that it is possible for attention to
parliamentary process to be treated as relevant for just one of the two modes of
reasoning.
2.2 Parliamentary process as relevant for determining the margin of appreciation
4
In Sukhovetskyy v. Ukraine, the second section Chamber made reference to the quality
of the underlying parliamentary process in the course of finding that the requirement
to pay an electoral deposit as a bar to registration of the applicant in the parliamentary
elections was not inconsistent with Protocol 1 Article 3. Parliamentary process is
turned to in a section under the heading ‘proportionality’. It is also discussed before
the Court turns explicitly to engage with the margin of appreciation within the same
section. 31 There are, though, signs that the Court is more properly to be seen as
referring to parliamentary process to help determine its level of deference. These
include that attention to process follows on from reference to other cases in which
process has been linked to the margin;32 and that discussion of process precedes the
key paragraph in which the Court asserts that ‘[t]his margin of appreciation, however,
goes hand in hand with European supervision. The Court must therefore ascertain
whether the discretion afforded to Ukraine was overstepped’.33
2.3 Parliamentary process as relevant for the proportionality analysis
Lindheim v. Norway is a Protocol 1 Article 1 case concerned with legislative changes
in the law on ground lease agreements so as to preserve the existing conditions for the
lessee at the point of extension. It is an example of a case in which attention to
parliamentary process appears to have been treated as just one element amongst
others that are to be weighed in the substantive analysis (rather than a factor that helps
to determine the level of deference in the Court’s analysis). Considerations that
support this reading include the general lack of direct attention to the nature of the
margin of appreciation (relying on a quote from Hutten-Czapska)34; that the relevant
critique of parliamentary process was situated in a list of considerations that pertain to
the Court’s substantive assessment; and that comment was not passed by the Court on
the quality of the parliamentary process as a whole. With regard to this last point, it
was open to the Court to pass comment on the process as a whole, as reference was
made to different aspects throughout the judgment. Instead, the evaluative focus was
on the absence of one specific component from the parliamentary process: a specific
assessment of whether the approach taken constituted a ‘fair balance’.35
2.4 Parliamentary process as a replacement for proportionality analysis?
It is also useful to highlight the recent Parrillo v. Italy case. Here, the Grand Chamber
held that the Italian ban on donating to scientific research embryos conceived through
medically assisted reproduction was not inconsistent with the applicant’s Article 8
right to respect for her private life. It is an example in which reference to
parliamentary process appears to consume the rest of the substantive analysis. This
view stems from the structure of the Court’s reasoning. After specifying the margin of
appreciation, largely in terms of the absence of a European consensus on the use of
embryos for scientific research, the Court is clear that it was still required:
‘to examine the arguments to which the legislature has had regard in reaching
the solutions it has retained and to determine whether a fair balance has been
struck between the interests of the State and those of the individuals directly
affected by the solutions in question’.36
5
Yet, instead of engaging with the substantive arguments developed in the course of
the creation of the legislation, the Court concentrated on certain aspects of the process
by which the law was created.37
2.5 Implications for the legitimacy and effectiveness of the Court
The noted cases highlight two technical purposes for inclusion of parliamentary
process as a factor in a case: margin of appreciation analysis and/or proportionality
analysis. One common theme across the cases is the lack of precision from the Court
on both the technical purpose for assessing parliamentary process and the extent to
which it is of significance relevant to other considerations. To some extent, this is
explained by the Court’s discursive approach to reasoning. The Court moves back and
forth between principles and facts, and focuses on the arguments that it finds most
useful in explaining its judgment.38 Yet there are good reasons why the Court should
be clearer on the technical purpose that reference to parliamentary purpose is serving
within a case.
One reason relates to the criticisms that surround inclusion of parliamentary process
in the Court’s reasoning. It has been argued to represent the Court overstepping its
mandate.39 It also raises concerns about a reduction in the level of protection of rights.
Good process can increase the prospects of, but does not guarantee, good outcomes
from a rights perspective.40 Precision on the purpose can help to ensure that these
critiques are not based on misunderstandings of the nature of the Court’s practice.
A second reason is found in the broader functions that have been associated with the
practice, such as the promotion of democracy and procedural justice.41 These require
states to respond to the Court’s signals, which are strengthened when communicated
through clear reasoning.
A third reason, related to the first two, is that it is not self-evident what criteria or
degree of scrutiny should be employed for the assessment of parliamentary process. A
clear specification of the technical purpose for inclusion of parliamentary process has
the potential to provide an important foundation. It can provide a basis for the
formulation of a framework for assessment of process in the case at hand and for the
development of doctrine on these points more generally. This, in turn, can aid the
consistency and accessibility of the Court’s reasoning across cases. 42 This point is
brought further into focus through consideration of the way in which parliamentary
process has been assessed in the noted cases.
3. Evaluating Parliamentary Process
The clearest expression of ex-ante criteria for the assessment of parliamentary process
that the Court has provided is found in cases where the Court has drawn negative
inferences. In such cases, the Court refers to the absence of evidence that the
parliament has sought to ‘weigh the competing interests or to assess the
proportionality of the restriction as it stands.’ 43 This wording correlates with the
methodology that the Court has developed for assessing the justification of a
limitation.44 Its use helps the Court to depict that it has authority to undertake the
assessment: the Court is undertaking an assessment of the quality of a particular
parliamentary process that is necessary for the case on the basis of the Convention.45
6
Yet the wording struggles as a sufficient basis for the evaluation of parliamentary
process for a number of reasons.
One reason for this is that although the Court uses the terminology of weighing and
proportionality in its own assessments, the way the Court’s reasoning is structured
and what it will take into account in the balancing can vary considerably from case to
case without clear explanation.46 This means that with a simple reference to weighing
and proportionality, the Court does not offer clear guidance to the domestic body as to
what is expected. The significance of this point is compounded by another
consideration: the differences between the functions and contexts of parliaments and
courts.
The processes of both parliaments and courts are to be assessed as sites of group
based, rather than individual based, reasoning. 47 But in contrast to courts, typical
features of parliaments are large numbers, diversity, and disagreement. 48 Consider
also the view that ‘the purpose of parliamentary debate is political persuasion, not
legal interpretation’,49 and that there can also be considerable variation between the
two types of institutions in terms of time, resources, and expertise.50 Such differences
entail that what might be deemed an exceptional balancing exercise for a judicial
context, concentrating on detailed allocation of weight to all the various
considerations in light of the broader context, might struggle to resonate for a
parliamentary setting.51
A review of practice suggests the ECtHR is open to value a range of different types of
parliamentary practice, for different reasons, and on the basis of the varying degrees
of scrutiny. This is illustrated through further attention to the four cases introduced
above.
3.1 ‘Exceptional examination’
The Animal Defenders case is an example of one of the most comprehensive
engagements by the Court with the quality of parliamentary process. The Court
engaged closely with a number of activities and indicated elements that it saw as
relevant. It came to the view that there had been ‘an exceptional examination by
parliamentary bodies of the cultural, political and legal aspects of the prohibition as
part of the broader regulatory system’.52 Key elements that can be read as supporting
the positive inferences drawn from the process for the outcome of the case include the
following. The number of bodies involved (both within and outside of parliament),
the breadth of issues covered, the level of detail involved, the consultation with
experts, and the attention given to the most relevant case law of the Court. The main
focus was on the work of committees. Little attention was given to how the issue had
been dealt with in plenary session, other than to note that the measure was introduced
with cross-party support without a dissenting vote.53
3.2 ‘Serious debate’
In Sukhovetskyy v. Ukraine, the Court determines that ‘the impugned measure has
been the subject of considerable parliamentary scrutiny.’ This view is supported by
the Court’s assessment that there had been ‘a serious debate on electoral deposits in
the Ukrainian parliament before the legislation was adopted.’54 It is not clear from the
7
information provided in the case report whether there was just one debate or whether
it is a reference to one or a collection of sessions of debate. It is also not clear what
made this a ‘serious’ debate for the Court, other than that ‘Parliament sought, inter
alia, to weigh up the competing interests’. No direct evidence is put forward to
support the view that there had been a weighing, but reference to the challenge to the
measure (as originally formulated) at the Constitutional Court by 63 members of
parliament, indicates, for the ECtHR, that it was an important and controversial
debate.
3.3 ‘Specific assessment’
In Lindheim v. Norway, in contrast to the other three cases in focus, the attention to
parliamentary process led to a negative inference. It counted against Norway that,
although the Ministry of Justice provided a full explanation for the background to the
measure and its aims, the Court had no evidence that a ‘specific assessment was made
of whether the amendment to section 33 regulating the extension of the type of
ground lease contracts at issue in the applicants’ case achieved a “fair balance”
between the interests of the lessors, on the one hand, and those of the lessees, on the
other hand.’55 In stating this position, the Court does not give any counter weight to
the argument of the government that there had been heated debate over the issue and
that the compromise that had been found was evidence of the quality of democratic
deliberation underlying the measure.56
3.4 ‘[Lively] discussions’
In Parrillo v. Italy, the state did not present an argument in relation to the quality of
parliamentary process until the oral hearing. At this point, it provided evidence from
the preparatory materials to support the position that the drafting of the Law ‘had
given rise to discussions that had taken account of the different scientific and ethical
opinions and questions on the subject’.57 The exact scope of these discussions and the
fora in which they occurred is unclear from the case report. The Court makes
reference to a report submitted to parliament from a standing committee, which
indicates that medical specialists had a role in the discussions, and that these
discussions had included lively attention to ‘the sphere of individual freedoms, pitting
the advocates of a secular conception of the State against those in favour of a
denominational approach.’58 The Court also makes note of discussions of 19 January
2004 that gave rise to further criticism of the law. It is unclear from the case report the
context in which these occurred – but the separate opinion of Judge Sajó provides a
link to a plenary session debate.59 Note is also made of several referendums on the
Law that were declared invalid due to failing to reach the required threshold of votes.
On the basis of these aspects of the legislative process, the Court forms the view that:
‘during the drafting process of the Law in question the legislature had already
taken account of the different interests at stake, particularly the State’s interest
in protecting the embryo and that of the persons concerned in exercising their
right to individual self-determination in the form of donating their embryos to
research.’60
3.5 Explanation for the variation in the assessments
8
The variation in how parliamentary process has been assessed in the noted cases can
be connected to factors that are known to influence the content and style of the
Court’s reasoning, such as the arguments of the parties and the similarities with extant
case law.61 For instance, the failure of Italy in the Parrillo case to present written
argument might help to explain why the parliamentary process was relatively under
examined. This is in contrast to a case such as Animal Defenders, in which the UK
provided well-evidenced argument on the quality of the underlying process. Further,
the similarity of the Sukhovetskyy case with earlier case law on electoral rights might
go some way to explain why the Court focused on the quality of the parliamentary
debate. This is in contrast to Lindheim, a case concerned with property rights, in
which the democratic pedigree of the parliamentary process was raised by Norway
(the state party) but was not valued in the Court’s reasoning. Yet it is also possible
that some of these differences can be explained by the variation in the technical
purposes that reference to parliamentary process has been argued to be serving in
these cases.
To determine whether and how the technical purpose for the inclusion parliamentary
process in the Court’s reasoning should make a difference to how it is assessed, the
subsequent sections address the theory on margin of appreciation (section 4) and
proportionality analysis (section 5).
4. Margin of Appreciation Theory
Is it possible to develop criteria and a level of scrutiny for the assessment of
parliamentary process when its purpose is part of the determination of the margin of
appreciation?
4.1 Placing assessment of parliamentary process in the margin of appreciation
analysis
The Court is not always careful in how it uses the term margin of appreciation. At
times, the term is not explicitly used even though it appears clearly to be in
operation.62 At other times, the Court uses the term when it is arguably unnecessary.63
Moreover, there can be a blurring between the use of the term in what Letsas has
referred to as the substantive and structural sense. The structural sense is about the
relationship between the Court and the national authorities, how much discretion the
Court will afford to the state given that it is an international court.64 In contrast, the
use of the term in a substantive sense is a reference to the discretion that a state has as
a general matter to determine the relationship between human rights and public
interest.65 For present purposes, it is the use of the term in a structural sense that is in
focus.
A useful way of making sense of the Court’s approach is found in Legg’s argument
that the margin of appreciation can be read as determined by how three second order
reasons – ‘reasons to act or to refrain from acting on one's own assessment of the first
order balance of reasons, or the balance of reasons in the issue'66 – interact with the
circumstances of a particular case. The key second order reasons proposed by Legg
are those that have come to feature regularly in the Court’s explanations for why the
state has a claim to be better placed to make determinations on the limitation of rights
than the Court, ‘democratic legitimacy; the common practice of states; and
9
expertise.’67 These correlate with a recent formulation of the structural reasons for the
Court’s subsidiary position that was provided in S.A.S v France:
‘It is also important to emphasise the fundamentally subsidiary role of the
Convention mechanism. The national authorities have direct democratic
legitimation and are, as the Court has held on many occasions, in principle
better placed than an international court to evaluate local needs and
conditions. In matters of general policy, on which opinions within a
democratic society may reasonably differ widely, the role of the domestic
policy-maker should be given special weight’.68
The standard position of the Court has been to operate on the premise that the
domestic institutions and processes that underpin the second order reasons for
deference to the state authorities are working as they should.69 This allows the Court
to concentrate on working out how significant the second order reasons are for
determining the margin of appreciation in light of the facts of the case (for example, is
democracy especially important for the case? Is there a particular requirement for
domestic expertise?). For this assessment, the nature of the right at stake, the nature of
the legitimate aim invoked for limitation, and the nature of the individual’s interest
are all relevant.70
The attention to procedure under the heading of the margin of appreciation is an
attempt to move beyond the assumption of good quality domestic process. It can be
read as an effort to test the strength of the second order reason(s) for arguing that the
state is better placed to determine the issue in a particular instance.71 This provides a
basis for developing criteria for the assessment of parliamentary process.
4.2 Developing criteria for the assessment of parliamentary process
It follows logically that the second order reason(s) for the Court to address the quality
of parliamentary process should inform how it is assessed.
Thus while the overarching criteria for assessment of process might remain the
evidence it provides of domestic weighing and proportionality assessment, the
criteria’s meaning in particular instances is to be articulated through the second order
lenses of democracy, expertise, and broader policy environment.72
In this way, the Court’s enquiry can be made more focused and structured.
Democracy calls for attention to aspects of representation, participation, and
deliberation in the process. Expertise calls for attention to mechanisms for knowledge
generation. Broader policy environment calls attention to additional benefits that can
arise for rights protection, such as potential for the issue to be addressed by more than
one body, or for it to be addressed in relation to overlapping issues.
The relative significance of the second order reasons is determined by the facts of the
case. For instance, democratic legitimacy has been shown to be particularly important
for determination of the margin of appreciation in cases where domestic legislation
seeks to balance two competing private human rights.73 This variation in the relative
importance of the second order reasons can help to determine where the focus should
be placed in the assessment of parliamentary process. Still, the second order reasons
10
are interconnected. 74 This makes it desirable for there to be a holistic assessment,
taking account of elements connected to all three second order reasons in the
evaluation of the parliamentary process.
4.3 Developing a scrutiny guide
It is also possible for the Court to derive a level of scrutiny from the theory of the
margin of appreciation. The Court has oft repeated that the ‘scope … will vary
according to the circumstances, the subject-matter and its background’. 75 It occurs
that there are cases in which considerations related to democracy, expertise, and
broader policy environment are made central in the Court’s explanation for the
margin of appreciation. 76 The proposal here is that the intensity of scrutiny of
parliamentary process should be in tune with how significant the second order reasons
that motivate the assessment are for the overall determination of the margin of
appreciation. To illustrate, where democratic legitimacy is central to the explanation
of the margin of appreciation, there should be closer scrutiny of parliamentary process
than in a case where democratic legitimacy is mentioned briefly amongst many other
considerations.
5. The Theory of the Proportionality Test
Is it possible to develop criteria and a level of scrutiny for the assessment of
parliamentary process when its purpose is part of substantive review?
The margin of appreciation analysis, just discussed, is concerned with the level of
discretion afforded a state and hence the strength with which their activity is
scrutinised. The focus in this section is on the substantive review, with the term used
as reference to the steps the Court employs to determine when the discretion has been
overstepped. The most prominent model for determining the justifiability of a rights
limitation in constitutional theory is the proportionality test, which can be broken
down into three or four stages.77
The Court’s doctrine on substantive review is judge made on the basis of
interpretation of the limitation clauses within qualified rights. 78 The standard
explanation for the structure of the Court’s reasoning is argued to correspond with the
different stages of the proportionality test.79 Although the text of the ECHR does not
expressly refer to proportionality, ‘its presence is undisputed in the case of expressly
qualified rights such as Articles 8–11; [and] in practice the same structure can be
found in the case-law under the vast majority of rights.’80 The Court is not always
clear in using the language associated with the different stages of the proportionality
test or on distinguishing the different steps. 81 It is also criticised for undervaluing
certain steps. 82 Such criticism must, though, be seen in light of the view that in
practice the proportionality test is not monolithic, ‘but a range of questions that are
put to national authorities who seek to justify a legislative or administrative measure
which allegedly violates convention rights.’83
5.1 Placing parliamentary process in the proportionality test
In theory, the structure of the proportionality test is often captured as follows:
11
‘first, there must be a determination that the enjoyment of a protected right has
been limited, i.e. an infringement or prima facie violation. Thereafter,
proportionality requires (1) consideration of whether the measure resulting in
that limitation is intended to pursue a legitimate public aim; (2) consideration
of whether the limitation is capable of achieving that aim; (3) consideration of
whether the limitation is necessary in the sense that there is no alternative
course of action equally capable of achieving the aim, but at less cost to rights;
(4) consideration of whether the advantage of pursuing the aim by the means
in question outweighs the cost to rights. If the rights-limiting measure satisfies
all four stages, the infringement is justified’.84
The significance and scrutiny of these questions (steps/stages) will vary in light of the
level of deference that is due.85 The level of deference can vary for the different steps.
The Court is more often limited in its scrutiny of the first three elements; instead
placing a focus on the fourth step – also known as proportionality in its narrow
sense,86 or the balancing principle.87
Reference to elements of parliamentary process as a source of information can occur
at all four steps. Reference to parliamentary debates can be used, for instance, ‘to help
the Court to understand the pressing social need for the interference in a given
society’.88
It is, though, with the fourth step that the Court has the greatest room to determine
what is relevant and it is here that a parliamentary process (or elements therein) can
most readily and clearly be valued in its own right.
5.2 Criteria for the assessment of parliamentary process
The fourth step is sometimes considered to consume the other steps (although
theorists stress the importance of adhering to the separate steps in a sequential
manner). 89 It ‘requires courts to assess whether the degree of attainment of the
legitimate aim balances the limitation of interests necessarily caused by the act in
question.’90 Essentially, the Court is required to identify and evaluate the costs and
benefits of the approach taken to determine whether overall it is an acceptable balance
of the community and individual interests at stake.91
Certain features have been argued to attach to balancing in the rights context. There is
the assumption that the greater the infringement of the right, the greater the realisation
of the legitimate aim must be. 92 It is also argued that, in the context of the
Convention, rights are from the outset prioritised in the balancing.93 Still, the details
that provide the substance for the proportionality test are provided from the facts of
the case and the surrounding context and the normative environment of the
Convention.94 As such, the Court has considerable discretion as to the considerations
that it will deem relevant in its evaluation.95 The basic principle for inclusion of a
consideration in the evaluation appears to be something like the following: the
consideration should have the potential to support or detract from the strength of the
state’s reasons that its limitation has achieved a fair balance (making them ‘relevant
and sufficient’ to use the language the Court often uses to conclude its balancing
exercise).96
12
Within this context of fleshing out the balancing exercise for a particular case,
assessment of the quality of parliamentary process could feature. The rationale could
be that there are steps that can be taken within a parliamentary process that can add to
or detract from the strength of the reasons provided by the state. Following this logic,
the sort of activities within a process that could be relevant should flow from the types
of reasons that are given for the limitation. For instance, where reasons about the level
of impact on a particular group are put forward by the state, they might be
strengthened where the state is able to point to consultations with representatives of
the group in the course of the process.
It will be for the Court to determine the aspects of a process that are relevant and the
extent to which the process as a whole should be evaluated. In contrast to the theory
of the margin of appreciation, there is less in the way of predetermined considerations
of relevance (that is, the second order reasons) and consequently less of an onus for a
holistic assessment of the parliamentary process in order for it to impact on the
outcome of the substantive review. With the focus on elements that can strengthen or
detract from the state’s reasons, the Court could reasonably limit its focus to those
elements of the process that most directly connect to the reasons put forward by the
state.
To illustrate, if the reason is that the state’s measure is the only viable way to solve a
societal issue, the parliamentary process should be evaluated for aspects that can
support this reason for the measure. The existence of a detailed report evaluating the
different possibilities could lend weight to this sort of reason. Similarly, the absence
of such a report could count against the state.
5.3 Scrutiny level
The Court does not operate with fixed standards of review. Rather the level of
scrutiny employed in the substantive analysis varies in a flexible manner according to
the margin of appreciation. 97 A narrow margin can be expected to lead to closer
scrutiny: the Court will want to check for itself that the approach taken, even though
necessary on the third step, is in fact the best way of optimising the interests. 98 A
broader margin can be expected to lead to lighter scrutiny: the Court will check that
there are roughly commensurable costs and gains. 99 This, in turn, can be undertaken
with more100 or less101 rigour.
Assessment of the quality of parliamentary process could be factored into the analysis
regardless of the intensity of scrutiny of the state’s balancing. The issue is whether it
is considered relevant by the Court as a means of shedding light on the strength of the
state’s reasons for limitation. It is, though, potentially more likely in instances of
lighter scrutiny. This is because with lighter scrutiny the Court has greater reason to
seek out indicators that can reassure it that, in the absence of its own close scrutiny,
the balance struck by the state is a fair one. Indeed, following this logic, it is possible
that in some cases, in which the Court is not prepared to undertake its own assessment
of the substantive arguments but does not wish to allow the state to simply escape its
scrutiny, that the main focus of the Court’s analysis will be on the quality of the
parliamentary process.
13
It is reasonable to think that the degree to which the quality of parliamentary process
provides the focus of the substantive analysis should impact on how much interest the
Court takes in its quality. Where parliamentary process is one of the main elements in
the Court’s substantive analysis, the Court should take a particular interest in its
quality: considering the scope and methods of an impact assessment report, for
instance. In contrast, in an instance where process is just one element amongst many
in the analysis, the Court may be justified in taking a more distant assessment of the
quality of the process: noting the fact that an impact assessment report was prepared,
for instance.
6. Applying the Theory of Technical Purposes to the Case Law
The analysis of theory in the section above has highlighted the grounds for the Court
to include parliamentary process in either its determination of the margin of
appreciation and/or the proportionality analysis. There may be strategic reasons why
the Court should give attention to parliamentary process within one or the other of the
two technical purposes,102 or at least why it should avoid addressing it in both,103 but
these are not the present focus. What matters presently is that both purposes are viable
and the Court appears to use both – albeit often with a lack of clarity on this point.
6.1 Recapping the theory
In relation to both technical purposes, the Court has been argued to retain
considerable discretion as to what will be included in its assessment of parliamentary
process. There are, though, distinct consequences that should follow for how the
analysis of parliamentary process is assessed depending on whether it is considered
relevant for determining the margin of appreciation or for the substantive analysis.
For the margin of appreciation, the Court should focus on evidence to support the
claim that the state is better placed. This calls for a holistic assessment of
parliamentary process as it pertains to the grounds to determine the extent to which
the state is better placed: democracy, expertise, and broader policy environment
considerations. The intensity of scrutiny of process should be guided by the extent to
which it is important for the determination of the margin.
For the proportionality analysis, the Court should be focused on elements that
strengthen or detract from the state’s reasons that it has achieved a fair balance with
its limitation. This allows for a more ad hoc approach to the determination of which
elements of the process to assess. The level of scrutiny should vary according to the
extent to which process is the main focus in the proportionality analysis.
In the rest of this section, these theoretical positions are applied to the four cases
discussed above. The contention is that the technical purpose theory helps with our
understanding of the differences in the approaches to assessment of parliamentary
process displayed across the cases.
6.2 Discussions or specific assessments?
Consider again Lindheim v. Norway. The Court encountered arguments from the
Norwegian government that it should place value in the deliberative qualities of the
14
process underpinning the legislation in question. In contrast, the applicant called
attention to the absence of a specific assessment of the different interests at stake.
In passing judgment, the court placed significance in the absence of a specific
assessment in the course of its proportionality analysis. It did not seem to afford any
value to the government’s argument about deliberative quality. Such an approach
would appear too hasty under the theory of the margin of appreciation, which calls for
a holistic assessment of the process. Yet in the context of proportionality analysis it is
more understandable. The Court was focused on elements of the process that could
strengthen or detract from the state’s reasons. As such, it could have helped with the
coherence of the Court’s reasoning if it had been clearer on the technical purpose that
the attention to parliamentary process was serving.
Such clarity would also have helped to distinguish Lindheim from other cases, such as
Sukhovetskyy v. Ukraine, in which the deliberative element of the process that been
valued. The Sukhovetskyy judgment, it will be recalled, is better read as placing
parliamentary process as part of the determination of the margin of appreciation qua
level of deference to be applied.
6.3 Light touch or close scrutiny?
Consider again the approach taken in Parrillo v. Italy. In this case, the attention to
parliamentary process takes the place of any other sort of substantive analysis. It is an
instance when the Court is unwilling to perform its own assessment of the reasons. As
such, there is an onus for a stronger degree of scrutiny than in a case such as Lindheim
v Norway where the process is just one component of the proportionality analysis.
Yet, the analysis does little more than note that there was a committee report and a
discussion in parliament. This seems insufficient.
Part of the explanation for the limited assessment of process in Parrillo might be that
the Court was not clear in its reasoning on the extent to which parliamentary process
was to be the main focus of the substantive analysis. The Court proceeded on the
basis that it was going to assess the substantive arguments for itself. Greater clarity
from the Court from the outset on the role it was affording process could have
generated an impetus for it to deploy a deeper and thereby more fitting level of
analysis to the parliamentary process.
Greater clarity on the technical purpose for parliamentary process could also have
helped to distinguish Parrillo from other cases where an even greater role has been
afforded process. In particular, a case such as Animal Defenders, in which process had
a major role as both a factor for the margin of appreciation and for the proportionality
analysis. On the basis of this twin purpose, one can see why there would be a broader
and deeper assessment than in Parrillo, which was apparently a single technical
purpose case (process assessed only in the proportionality analysis). The failure of the
Court to make its single technical purpose approach clear in Parrillo leaves it open to
the criticism that there should have been an even greater engagement with the process
than its actual approach seems to require.104
7. Conclusion
15
The Court has a list of cases in which it has placed value in the quality of
parliamentary process underlying a legislative measure. A review of this practice
reveals two main technical purposes for valuing parliamentary process: part of
determining the margin of appreciation; and as part of the proportionality analysis of
the justifiability of the limitation. The review of practice also reveals that the Court is
often not explicit as to which purpose attention to process is serving in a given case. It
also indicates considerable variations in the way in which similar activities are treated
across the case law, both in terms of relevance and in degrees of scrutiny.
Concerns about evasiveness and apparent inconsistencies in the Court’s reasoning are
not so unusual. Yet such concerns are more significant when seen in light of the
broader context within which this practice is undertaken. The Court is warned about
the prudence of passing judgment of the quality of parliamentary process; it is also
encouraged to use the practice as a way to send signals that promote democracy and
procedural justice within states parties. Both of these elements of the broader context
seem likely to be better served through enhanced clarity on the purpose served, and
criteria and level of scrutiny employed in the analysis. 105 Drawing on theory and
practice, this article has shown the scope for these considerations to be linked.
It has been argued that it is reasonable for the Court to examine parliamentary process
as part of either the margin of appreciation or proportionality analysis. It has further
been contended that these two tests come with different logics that should shape the
assessment of process in different ways. One logic is focused on assessing the extent
to which the state is better placed; the other on assessing the strength of the state’s
reasons for limitation of a right.
When the implications of the different logics for how the evaluation of parliamentary
process is undertaken are recognized, the benefits for the Court of greater clarity on
purpose come into focus. The technical purpose can provide a basis for structuring the
analysis of the process. This can lead to more coherent reasoning within cases and
greater predictability across its case law. Clarity on the purpose can also help the
Court’s audience to understand why there are discrepancies in the activities and
degrees of scrutiny across cases.
Of course, the Court’s practice in this area is shaped by various factors. Not least the
disagreement amongst judges on the prudence of attending to and valuing the quality
of parliamentary process. Yet, it is still possible for judges in favour of placing value
in parliamentary process to work towards greater clarity in the explanation of the
technical purpose it serves within the Court’s reasoning. In so doing, judges can help
to ensure that attention to parliamentary process gives rise to more benefits than
drawbacks for the legitimacy and effectiveness of the Court.
Acknowledgements
I am grateful to Jan Petrov, Nino Tsereteli, Alain Zysset and two anonymous
reviewers for their very useful comments on earlier drafts.
Funding
This article was prepared under the auspices of MultiRights, an ERC Advanced Grant
on the Legitimacy of Multi-Level Human Rights Judiciary (314869); and PluriCourts,
16
a Research Council of Norway Centre of Excellence on the Legitimacy of
International Courts (223274).
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 (forthcoming CUP
2017). His monograph Popular Governance of Post-Conflict Reconstruction: The
Role of International Law was published by Cambridge University Press in 2014.
Email: M.W.Saul@jus.uio.no. This is the unedited version of an article that is forthcoming in a special issue of
The International Journal of Human Rights edited by Nino Tsereteli and Andreas Follesdal.
1
Sunday Times v UK, Application No. 6538/74 1979, 26 April 1979, para. 59.
2
See e.g., 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 124–126.
5
See, e.g., Oddný Mjöll Arnardóttir,’Organised Retreat? The Move from ‘Substantive’ to ‘Procedural’ Review in
the ECtHR’s Case Law on the Margin of Appreciation’ (December 31, 2015). European Society of International
Law (ESIL) 2015 Annual Conference (Oslo). SSRN: http://ssrn.com/abstract=2709669; Janneke Gerards, (2015)
‘Procedural review by the ECtHR – a typology’ 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 eds. P. Popelier et al (Antwerp: Intersentia,
2012) 249-267; also Eva Brems and Laurens Lavrysen, ‘Procedural Justice in Human Rights Adjudication: The
European Court of Human Rights’, Human Rights Quarterly 35, 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 eds. O.M. Arnardóttir, and A. Buyse
(Abingdon: Routledge, 2016) 144 – 160, 153 - 159.
7
See Section 3 below; also Matthew Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the
Processes of National Parliaments’, Human Rights Law Review 15, 4 (2015) 745 – 774 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 eds.
M. Saul, A. Follesdal, and G. Ulfstein (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: OUP, 2016).
11
This article separates out instances when the Court has interpreted procedural obligations into certain rights (see
e.g., 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 e.g., Hirst v. UK (No. 2)); this
article’s focus is on the latter; see also Arnardóttir, ‘The Move from ‘Substantive’ to ‘Procedural’ Review’, p 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: OUP,
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, 4 (2009) 619–653, 651.
14
See, e.g., 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 eds. M. Hunt, HJ. 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, e.g., 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
17
Dzehtsiarou, ‘Managing Judicial Innovation at the European Court of Human Rights’, 15, 3 (2015) Human Rights
Law Review 523-54 A. Follesdal, ‘The Legitimacy Deficits of the Human Rights Judiciary: Elements and
Implications of a Normative Theory’, 14, 2 (2013) Theoretical Inquiries in Law 339 – 360.
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
E.g., 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, Application Nos. 16072/06, 27809/08, 24th 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
E.g., 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 – 115; 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. (Intersentia, 2002) 1; also Howard Yourow, The Margin of Appreciation in the
Dynamics of European Human Rights Jurisprudence, (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 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 – 759.
29
Animal Defenders International v UK, para 108.
30
See sections 4 and 5 below.
31
Sukhovetskyy v Ukraine, para 68.
32
Sukhovetskyy v Ukraine, para 64.
33
Sukhovetskyy v Ukraine, 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 – 188; see also Concurring Opinion of Judge Pinto De Albuquerque.
38
See Janneke Gerards, ‘European Court of Human Rights’, in Comparative Constitutional Reasoning eds. A.
Jákab, A. Dyevre and G. Itzcovich (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 eds. Eva Brems and Janneke Gerards (Cambridge University
Press, 2013) 137 – 161 ,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 eds.
M. Hunt, HJ Hooper and P Yowell (Oxford: Hart, 2015) 59 - 92, 84
41
See, e.g., 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, 3 (2016) 355 –
377, 366 – 367.
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 – 115.
44
Sunday Times v UK, 1979 para 59 and 62; also Aileen Kavanagh, Constitutional Review under the UK Human
Rights Act, (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 (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, 2 (2013)
18
466 – 490 at 469 – 470; 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, 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, 1 (2009) 2 – 24, 8
– 9.
48
Jeremey Waldron, Law and Disagreement (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 eds. G. Huscroft, and B. W Miller, and G. Webber (Cambridge University Press, 2014) 343 – 369, 366,
369; also Lazarus and Simonsen,‘Judicial Review and Parliamentary Debate’, 394 – 401.
52
Animal Defenders International v UK, para. 114.
53
Animal Defenders International v UK, para. 114.
54
Sukhovetskyy v Ukraine, para. 65.
55
Lindheim v Norway, para. 128.
56
Lindheim v Norway, para. 118.
57
Parrillo v Italy, para. 184.
58
Parrillo v Italy, 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, 3 (2011) 324 – 357, 336; also Janneke Gerards ‘Pluralism, Deference
and the Margin of Appreciation Doctrine’, European Law Journal 17, 1 (2011) 80 – 120 at 106.
64
See George Letsas, ‘Two Concepts of the Margin of Appreciation’, Oxford Journal of Legal Studies 26, 4
(2006) 705 – 732, 721.
65
Ibid; also Samantha Besson, ‘Subsidiarity in International Human Rights Law—What is Subsidiary about
Human Rights?’, 61, 1(2016) The American Journal of Jurisprudence 69 -107, 85.
66
Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality
(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, 4, (December 2012), 688 – 692;
Oddný Mjöll Arnardóttir, ‘Rethinking the Two Margins of Appreciation’, European Constitutional Law Review,
12 (2016) 27–53, 44.
67
Legg, ibid.,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, 2
(2015) 354-382.
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 eds. A.
Buyse and M. Hamilton (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 fertilization (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
E.g., 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, para. 59 and para. 62, quoted in the introduction to this article above.
80
Julian Rivers, ‘The Presumption of Proportionality’, Modern Law Review 77, 3 (2014) 409 – 433, 412; for an
overview see Rivers, ‘Variable Intensity of Review’, 182 – 187; Klatt and Meister, The Constitutional Structure of
Proportionality, 9; see also S Greer, The European Convention on Human Rights: Achievements, Problems and
Prospects (Cambridge University Press, 2006) 211 - 212.
19
81
Legg, The Margin of Appreciation in International Human Rights Law, 179.
See Janneke Gerards, ‘How to Improve the Necessity Test of the European Court of Human Rights’,
International Journal of Constitutional Law 11, 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 eds. R. Cruft and M. Renzo (eds), (Oxford
University Press, 2016, forthcoming) p.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, e.g., 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 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 maximizes 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, 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, 219–220; 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, 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, 2 (2007)
153 - 183, 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, 151-152.
98
See, e.g., VgT Verein Gegen Tierfabriken v. Switzerland, Application no. 24699/94, 28 September 2001, paras
71 – 79.
99
This classification draws on Rivers’ presentation, ‘Variable Intensity of Review’, 203.
100
See, e.g., Murphy v Ireland, paras 70 – 82.
101
See, e.g., 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) 230-262, 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 – 168, 151, 167; also Jonas
Christoffersen, ‘Individual and Constitutional Justice’, in Law and Politics, eds. J. Christoffersen and MR. Madsen
(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, 3 (2014) 460 – 492, 468;
104
See, e.g., 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.
82
20
Matthew Saul