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Published: Fri, 02 Feb 2018
Explain the margin of appreciation doctrine
The national authorities of Contracting States to the European Convention of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) are permitted a degree of latitude in respect of the manner in which they discharge their obligations under the Convention. This degree of freedom is referred to as the doctrine of the “margin of appreciation”.
The doctrine plays a pivotal role in ensuring that the ECHR is workable throughout the Contracting States despite the varied differences found in the national systems of Contracting States. This essay is aimed at explaining exactly what role the doctrine plays in protecting rights in the United Kingdom (‘UK’). The work shall accordingly provide an analysis of the role played by the doctrine in order to ascertain the extent of the impact on the protection of Convention rights in the UK. It is hoped that the essay shall also shed some light on the remit of the doctrine and how and when it is applied by the UK courts. This in turn ought to reveal whether or not the courts apply principled criteria  when they find that the doctrine is applicable in any given case.
The essay shall begin by providing some general information about “the Doctrine of the Margin of Appreciation” (Section II). In the following section (Section III) examines some important case law pertaining to the application of the doctrine by UK courts. This section shall also highlight certain areas where national authorities are given a wide discretion under the doctrine. The case law examined ought to identify the remit of the doctrine and any trends associated with its application. This section is titled “the Impact of the Doctrine on Case Law relating to the ECHR”.
The Doctrine of the Margin of Appreciation
The doctrine of the “margin of appreciation” plays a fundamental role in the smooth functioning of the organs and institutions of Contracting States and Strasbourg. Given that Contracting States possess different legal and cultural traditions, it is inevitable that States shall occasionally view the application of their EHCR obligations differently. These differences have the potential to result in confrontations between the Strasbourg Court and a Contracting State. Whilst that is the case, the Strasbourg Court is not only obliged to interpret the ECHR, but is also obliged to respect the sovereignty of a Contracting State. The doctrine of the “margin of appreciation” provides the Strasbourg Court with the means by which to permit national authorities to enjoy the freedom to apply the Convention in accordance with their own unique legal and cultural traditions without flouting the ultimate objective and purpose of the Convention.
The doctrine is not unique to the Strasbourg Court however, as it can be found in civil administrative law systems in Europe and a variant of the doctrine is also found in the judicial review process employed in the UK  . In the context of the ECHR, the doctrine is “the expression of the relationship between international review and the domestic legal order, including the role played therein by national courts”  . Under the doctrine the legislature, executive and judiciary enjoy a margin of discretion when exercising their functions in relation to Convention rights and freedoms. Defining the exact scope of the doctrine however is not possible, as it can be observed from Strasbourg jurisprudence that the existence and scope of the doctrine is case-specific and therefore varies according to the circumstances of a case. Whilst it not possible to clearly define the scope of the doctrine until it is viewed in the context of a given case, the significance of the role played by the doctrine cannot in any event be underestimated, as it provides national authorities with a potential defence when confronted with an allegation that they have violated the rights of an individual.
A rough guide as to the ambit of Convention rights and conversely the legality of an interference can however be discerned by considering the doctrine in the context of other the principles developed by the Strasbourg Court to assist in the interpretation of the Convention. This is because these principles play an important role in defining the remit of the doctrine of the margin of appreciation. All factors in a case may influence the outcome of a case, albeit the factors pertinent to the “margin of appreciation” are the same as those which are applicable to the principle of proportionality, namely: (i) The nature and importance of the right; (ii) The intensity of the interference; (iii) The nature and importance of the aim; (iv) The relationship between the measure and the aim, and (v) The comparative standards in national and international law  .
An example of the principles developed by the Strasbourg Court in the context of the doctrine of the “margin of appreciation” can be found in the case of Handyside v. The United Kingdom, (1976). The Court in the case of Handyside was concerned with whether or not a decision by the UK government to convict a person for obscene publication, and therefore forfeit the material, could be classified as ‘necessary in a democratic society..for the protection of morals’. It was stated by the Court that:
[I]t is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judges to give an opinion on the exact content of these requirements….It is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of ‘necessity’ in this context.
The Impact of the Doctrine on Case Law relating to the ECHR
The impact of the doctrine on UK case law is clearly evident in respect of the protection of the ECHR. Albeit, the parameters and significance of the doctrine have often been defined and clarified by the Strasbourg Court. What is evident from the pertinent case law is that the Court has clarified again and again that there are certain areas where it shall find that the sovereignty of the national authority ought to be respected, by allowing the decision-maker a degree of freedom to act under the doctrine of the “margin of appreciation”. The rationale behind the Strasbourg Court’s stance on such issues is based on the premise that in those areas it is felt that the national authority is more competent to decide on whether or not an interference with a Convention right has occurred. An example of some of the areas referred to are outlined below.
The case of Handyside (as outlined above) is a good illustration of how the Court views the “margin of appreciation” in the context of cases concerning “public morals”. A further case where the issue of morals was considered was the case of Dudgeon v United Kingdom (22 October 1981), Series A no.45, ECHR where the Strasbourg Court found that laws against homosexual activities in private were contrary to the right to respect for private life.
Albeit it is noteworthy that the Strasbourg Court found that the application of the “margin of appreciation” was far broader in Handyside than it was in Dudgeon. This is despite the fact that both cases concerned the issue of the protection of morals. From the reasoning, one can draw the conclusion that the rationale for this difference was based on the premise that a narrower scope ought to be given to the “margin of appreciation” where the State’s interference concerns the interference of an aspect of a person’s private life, as opposed to an interference which is in the public sphere. Accordingly, these cases highlight that the remit of the doctrine is placed in a case-specific context, where the facts of a case are first considered before the remit of the doctrine can be correctly deduced. That is to say that the ‘nature of the aim of restriction but also the nature of the activities involved which affect the scope of the margin of appreciation’ are relevant factors in this assessment.
It is also worth noting that the Court in Dudgeon was mindful of an emerging consensus throughout the Contracting States that consensual homosexuality between adults in private ought not to be a crime. This change in “societal values” resulted in a “reduced area of discretion for the States that were out of line”  .
The issue of what constitutes a “public emergency” for the purpose of determining whether a state is threatened by such an emergency is for a Contracting State to determine  . A state has the freedom to implement measures in order to combat such a situation. It was stated in A and Others that:
By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it  .
It therefore follows that the seriousness of such situations results in a ‘wide margin of appreciation being given to a national authority’  . Albeit the Court made is explicit that national authorities do not have “an unlimited discretion”, and that it is for the Court to determine in any given situation whether or not the Contracting State in question has exceeded the discretion permitted by the exigencies of the situation. The Strasbourg Court went on to say that whilst Contracting States do enjoy a wide margin of appreciation in cases concerning public emergencies, this discretion is always subject to the supervision of the Court.
Further, in determining the ambit of the doctrine in an emergency situation, the Court shall “give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation”  .
It has been noted by the Strasbourg Court that the concept of “public interest” is extensive. The doctrine has therefore impacted on cases of this nature. For instance, in James v United Kingdom  8 EHRR 123, which concerned a case falling under Article 1 of the First Protocol, the Court said:
Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation  .
Given that the case concerned considerations of a ‘political, economic and social’ nature, and that these issues are likely to differ from Contracting State to Contracting State, it was found by the Strasbourg Court that in such instances the legislature ought to enjoy a wide margin of appreciation in implementing such policies, given that the legislature is best placed to make a judgment as to what is in the ‘public interest’. However, where it is found that a judgment is “manifestly without reasonable foundation”, the Strasbourg Court shall intervene by finding that the judgment is outside the scope of the doctrine  .
It was recognised by the Court that the wide margin of appreciation was due to the fact that it was removed from the “domestic social situation” and, as such, the national court was better able to make an “intrusive evaluation” due to proximity.
The doctrine of “margin of appreciation” is clearly a discretionary power in which the Strasbourg Court chooses to refrain from interfering with a decision made by a national authority even though, on the facts, they ought to have interfered with the decision on the basis that it was contrary to the ECHR. Albeit, providing the national authorities’ considerations were both ‘relevant and sufficient for the purposes of the Convention’, whilst also complying with the proportionality test, the Strasbourg Court shall find that the national authorities decision is protected against further Court scrutiny by virtue of the doctrine of the “margin of appreciation”.
Strasbourg jurisprudence highlights that a variety of issues are relevant in determining the ‘permissible spectrum’ in which a national authority can act under the doctrine. Whilst the doctrine effectively amounts to no more than “judicial self-restraint”, it is clearly ‘one of the main tools for keeping the international judges within their proper role of judicial review of the exercise of democratic discretion at national level’  .
One can surmise from Strasbourg case law that the drafters of the ECHR intended there to be a discretionary power which ought to be read into the law to give national authorities freedom to ‘regulate the exercise of the Convention right in accordance with normal democratic processes’. To do otherwise would have brought the system to a grinding halt as it would have been unworkable given the innate cultural and legal differences within the national authorities of Contracting States.
It is apparent from Strasbourg case law that national authorities enjoy a wide margin of discretion in areas which are likely to differ considerably from State to State (see Hatton v United Kingdom (2003) 37 EHRR 611, para. 87). Albeit, where the language of the text is “restrictive”, it follows that the “margin of appreciation” enjoyed by a national authority is narrower  . Further, in areas where there is common ground between Contracting States, it follows that the “margin of appreciation” would accordingly be narrower  . Accordingly, it is clear from Strasbourg jurisprudence that the doctrine of the margin of appreciation is malleable to say the least and the existence and ambit of the doctrine can only be truly determined by the particular circumstances of a case. Albeit, it would appear that the Strasbourg Court is particularly sensitive to the need of Contracting States to derogate from their ECHR obligations in areas of significant national interest, such as a threat to the life of a nation by virtue of a public emergency  . Further, case law has highlighted that this is the case even though the reasons for the decision to derogate are applicable to other Contracting States, but they chose to refrain from taking such action  .
It is apparent therefore that the Strasbourg Court regards the respect for the sovereignty of a Contracting State to be sacrosanct, and is therefore inclined to find that a decision taken by a national authority which is serious and relates to a public sphere is well-founded without evidence to the contrary, albeit this is not always the case. The Strasbourg Court does aim to ensure that the application of the ECHR is uniform throughout the Contracting States. For instance, there is a need to construe public policy strictly “so that its scope cannot be determined unilaterally by each Member State without any control by the community institutions”  .
Where the Strasbourg Court deems that a national authority is better placed due to its proximity of the situation, it is inclined to grant the authority a wide discretion. Albeit if the Strasbourg Court finds that a national authority has exceeded its permitted discretion, the authority’s decision shall in any event carry considerable weight.
Overall, the issues to be considered by Strasbourg and national courts in considering the scope of the discretion permitted under the doctrine were summed up in The Human Rights Act 1998: what it mean: The incorporation of the European Convention of Human Rights into the Legal Order of the United Kingdom by Betten when he said:
The existence and breadth of a margin of appreciation will vary according to the circumstance, depending upon such factors as the text of the provision, the existence or not of ‘common European ground’, the nature of the right protected, the nature of the duty incumbent on the State (positive duty of action or negative duty of non-interference), the nature of the aim pursued by the contested restriction, the nature of the activities being regulation, the surrounding circumstances  .
Accordingly the doctrine is strictly concerned with the relationship between national authorities and the Strasbourg Court and, as evidenced by the House of Lords’ reasoning in A and Others, UK courts in particular do take a particularly cautious approach to the scope of the “margin of appreciation”, for fear of offending the ECHR by exercising a discretion wider than that believed to be permitted under the doctrine.
Whilst it is difficult to measure the true impact of the doctrine on the protection of rights in the UK, it is clear that the doctrine itself has performed the important function of ensuring that “the international protection of human rights and sovereign freedom of action are not contradictory, but complementary”  .
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