Reader in Law, University of Bristol, United Kindom
The following conclusions can, therefore, be drawn about the “margin of appreciation doctrine” in the case-law of the European Convention on Human Rights. First, it is questionable if it is really a “doctrine” at all since it could be said to lack the minimum theoretical specificity and coherence which a viable legal doctrine requires. It is, rather, a pseudo-technical way of referring to the discretion which the Strasbourg institutions have decided the Convention permits national authorities to exercise in certain circumstances. It is also misleading in so far as its use suggests that the various kinds of state discretion identifiable under the Convention have a common identity and rationale. Closer examination shows that this is not so. A good case can, therefore, be made for dispensing with this terminology altogether from the English language versions of the Court’s judgments, and other texts where it might otherwise appear, in favour of terms such as “national executive, administrative and judicial discretion”. However, in view of the momentum the expression has gained over the years this is probably too much to hope for. Since the Convention inescapably makes discretion available to both the Court and to national authorities this cannot be a matter for criticism. It is more appropriate instead, therefore, to understand how and where discretion legitimately arises, which national institutions can exercise it, and to appreciate the variety of justifications for its existence and bandwidths.
Some types of discretion flow directly from one or more of the interpretive principles discussed in this study, for example “implementation discretion” from the principles of effective protection and proportionality and “deference to national judicial decision-making” from the principle of legality. But the key to the others lies in seeking to discover the various types yielded when the matrix of interpretive principles both inherent in, and expressed by, the Convention is applied. The key distinction lies between, on the one hand, the resolution of conflicts between rights and
democracy or the public interest, and, on the other, the definition of rights and obligations where the public interest is not a consideration, with a hybrid category straddling both. The former is the heartland of the “margin of appreciation”, and arguably the only place where the term should be used, if it is to be used at all. The principles of democracy, legality, subsidiarity, and proportionality give national democratic institutions a legitimate role in demarcating rights from public interests for several good reasons. First, since drawing such lines will involve weighing difficult and controversial matters concerning the collective interest, it is fundamentally political rather than judicial by nature. Secondly, national authorities are in a better position to obtain and assess local knowledge which the Court may either not have or the significance of which it may misjudge. Thirdly, there may be a range of equally defensible places where such lines could be drawn each of which may attract support from sections of public opinion in the state concerned, and some of which may be more appropriate in some member states than in others. For the Court to substitute its own conception of what is appropriate might, therefore, result in it taking sides in the resolution of genuine human rights/public interest dilemmas which are not amenable to any straightforward legal solution. However, to acknowledge this is not to offer states carte blanche in the determination of their obligations since their practices are reviewable at Strasbourg under the principles of effective protection, review, commonality, and proportionality. But the key to determining how these principles should operate lies in a clearer distinction being drawn between those exceptions to Articles 8 to 11 which can legitimately be regarded as public interests and those which should be considered individual rights, in the Court insisting on prioritising Convention rights over public interests, and in states being required to discharge the burden of proof by providing convincing evidence that the public interest should prevail over individual rights in specific circumstances.
National executive and administrative agencies should have no discretion at all when it comes to defining rights and obligations in the absence of a public interest or democratic element since the principles of legality, effective protection, autonomous interpretation, commonality, and review make this a judicial function, and one primarily for the European Court of Human Rights. This is particularly clear with respect to the handful of absolute rights in the Convention. However, it is no less true, although much less clearly understood, where the resolution of conflicts between rights is concerned, including between those enshrined in the first paragraphs of Articles 8 to 11 and the individual rights exceptions in the second paragraphs of these provisions. It is difficult to deny that some “adjectival discretion” is legitimate under the Convention, but care needs to be exercised in order to ensure that national administrative and executive authorities are not permitted too much latitude in deciding what is “reasonable” etc. As for other hybrid categories where matters of definition combine with public interest considerations – such as in the identification of positive obligations and in relation to the distinction between difference and discrimination – the definitional question needs to be more clearly separated from the determination of the relationship between rights and democratic or public interest considerations.
Finally, although this discussion has focused exclusively on the European Convention it also has implications for national adjudication.154 Since the “better position rationale” (which lies at the core of the margin of appreciation notion) is fundamentally a transnational device, the margin of appreciation can have no direct domestic application. Domestic courts will, instead, have to settle the scope of national executive and administrative discretion with respect to Convention rights according to the principles of effective protection, democracy, and proportionality. While reference to relevant practice in other states may not be inappropriate it is, however, unlikely to be conclusive.