Could international terrorism expose weaknesses in the margin of

appreciation doctrine and can national implementation address this?

Introduction

Since its opening for signature in 1950, the European Convention on Human Rights
(“ECHR”) has developed into a powerful tool for the protection of the human rights of
citizens of Council of Europe member states. From humble beginnings, the European
Court of Human Rights has become a force that oversees human rights with moral
authority in forty-five very politically and culturally diverse countries.

When implementing the Convention, the European Court of Human Rights (hereinafter
referred to as the “Court”) often faces a tension between the competing concerns of a
substantive international vision of universal human rights and respect for the choices
made by democratic national governments2. To strike a balance between these
competing concerns, the Court developed the “margin of appreciation” doctrine, which
allows the Court to take due consideration of the expertise and authority of national
governments when dealing with particular issues. This essentially means that the Court
gives due deference to national authorities to better understand what is politically,
socially and practically possible in any given situation without, however, giving them the
opportunity to breach the fundamental principles of the Convention.

This paper looks at the how the “margin of appreciation” doctrine has been applied in
selected cases involving terrorism in order to assess what we could expect from the
Court when new anti-terror measures are brought before it. On this basis, it then
questions whether the current situation regarding international terrorism means that the
sustainability of the margin of appreciation doctrine is under significant threat and
whether there is a solid basis for believing that incorporation of the ECHR into national
law can serve to counter this threat.

The paper is divided into three sections:(i) an introduction to the “margin of appreciation”
doctrine, (ii) an analysis of a small selection of past cases related to terrorism, and (iii) a
case study assessing what the margin of appreciation would mean for recent attempts to
introduce indefinite detention without trial in the United Kingdom, had this case been
decided in Strasbourg rather than in London, as well as the advantages of the London
court being in a position to rule on implementation of the ECHR.

The Court has been able to rely on positive national developments to implement
increasingly diligent protection of human rights, using the margin of appreciation

1
Carozza, P.G., “Subsidiarity as a Structural Principle of International Human Rights Law”, The American
Journal of International Law, Vol 97, No. 1, Jan 2003, p 38
2
Ibid
3
Lawson, R.A. and Schermers, H.G, “Leading Cases of the European Court of Human Rights”, Ars Aequi
Libri, Nijmegen, P. XXVII
4
H Waldock quoted in Arai-Takahashi, Y, The Margin of Appreciation Doctrine and the Principle of
Proportionality in the Jurisprudence of the ECHR”, Intersentia, 2002, P3.
approach pragmatically to achieve the most effective level of human rights protection
possible at any given moment. Treatment of transsexuals is one such example, where
Court decisions evolved in parallel with positive societal developments that reflected
greater tolerance. However, international terrorism and the political reaction to it have
created new societal developments, but this time in the direction of decreasing support
for fundamental human rights. Approaches that previously would have seemed far-
fetched are increasingly gaining social acceptance. Examples are ranging from indefinite
detention without trial, as was attempted in the UK, to proposals from the UK, Ireland,
France and Sweden8 to create blanket obligations on all EU communications companies
to store records9 of every electronic communication transmitted within the EU.

The images of September 11th 2001 are engrained in the memories of people across the
Council of Europe region and beyond. The political reaction to the events in New York,
Madrid and so on, may lead to the introduction of highly restrictive anti-terrorist
measures, with populist politicians are playing on, and creating, fear among European
citizens. Strict opposition to anti-terrorism measures by the Court could seriously
undermine its political credibility, while use of the “margin of appreciation” doctrine to
permit over-intrusive anti-terrorism legislation could undermine the Court’s credibility as
a force to protect human rights. This raises two questions: does the new political and
legal climate created by international terrorism raise serious concerns regarding the
sustainability of the margin of appreciation doctrine and could national courts more
credibly implement the ECHR, being closer both to national problems and national
political systems?

Margin of Appreciation

The “success of the Convention depends to a large extent on the cooperation of the
states concerned10”, cooperation which requires the good will of those states and
depends on the sensibilities of the populations that elect their governments. The margin
of appreciation approach allows the Court to take into account social, religious and
political norms and trends when reaching its decisions. Judicious use of the “margin of
appreciation” doctrine has played a major role in ensuring that the delicate balance
between the respect of human rights and subsidiarity is maintained – allowing “the
effective operation of the Convention with the sovereign powers and responsibilities of

5
Handyside v United Kingdom (A-24, 12 December 1976), Paragraph 2 and Open Door Counselling and
Dublin Well Woman Centre (A-246, 29 October 1992), Paragraph 69, are just two examples
6
Brannigan and McBride v UK (A-258-B, 26 May 1993), Paragraph 43 and Ireland v UK (A-25, 18 January,
1978) Paragraph 207, for example.
7
Arai-Takahashi, Y, Op cit
8
Council of the European Union, Draft Framework Decision on the retention of data processed and stored in
connection with the provision of publicly available electronic communications services or data on public
communications networks for the purpose of prevention, investigation, detection and prosecution of crime
and criminal offences including terrorism, April 2004.
9
The nature of the record would depend on the type of communication. For example, a simple SMS
message between mobile phones would consist simply of a record in the sending network that a message
was sent to a particular number in the recipient network and vice versa. An FTP (file transfer protocol)
record, however, would specify what exact file was accessed and when.
10
Lawson, R.A. and Schermers, H.G, “Leading Cases of the European Court of Human Rights”, Ars Aequi
Libri, Nijmegen, P. XXVII
governments in a democracy11”. Particularly (but not only12), in relation to actions taken
in states of emergency, the Court has frequently stated13 that state authorities are better
placed than international judges to decide what specific action to take with regard to
particular issues of national importance. The ECHR system is, therefore,
“complementary but subsidiary to national systems”14 and, as a result, could not fulfil this
role without offering some margin of discretion to the state parties.

The margin of appreciation doctrine originated in cases involving derogations in time of

war or national emergency (article 15)15. The principle was later used in assessing cases
involving forced labour and16 the right to education,17 for example.

The measures taken in time of war or national emergency must be “strictly required by
the exigencies of the situation.” However, this limitation on the power of the national
authority declaring an emergency has to be read in conjunction with the often repeated
assertion of the Court that “state authorities are in principle in a better position than the
international judge to assess local conditions and the necessity of specific measure”19.
This formulation gives state parties a wide degree of freedom with regard the grounds
for the state of emergency and the measures taken as a result. This approach is quite
normal in international human rights thinking. For example, the Paris Minimum
Standards of Human Rights Norms in a State of Emergency20, adopted by the
International Law Association in 1984, also rely heavily on national procedures to ensure
that the state of emergency is justified.

Considering that the declaration of a state of emergency under Article 15 is the basis for
attenuating or removing important human rights, the level of scrutiny imposed by the
Court has traditionally been surprisingly low. The explanation for this may lie in a key
political dilemma facing the Court in derogations under Article 15: where a
democratically elected government declared a state of emergency, how could a foreign
court robustly oppose measures implemented by that government without gravely
undermining that state’s relationship with the whole ECHR system? The divergent
judgments in Brogan v United Kingdom and Branningan and others v United Kingdom
(described below) show the contradictions that can arise when the Court is faced with
this quandary.

11
H Waldock quoted in Arai-Takahashi, Y, The Margin of Appreciation Doctrine and the Principle of
Proportionality in the Jurisprudence of the ECHR”, Intersentia, 2002, P3.
12
Handyside v United Kingdom (A-24, 12 December 1976), Paragraph 2 and Open Door Counselling and
Dublin Well Woman Centre (A-246, 29 October 1992), Paragraph 69, are just two examples
13
Brannigan and McBride v UK (A-258-B, 26 May 1993), Paragraph 43 and Ireland v UK (A-25, 18 January,
1978) Paragraph 207, for example.
14
Arai-Takahashi, Y, Op cit
15
Article 15.1 states that “in time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under this Convention to the extent
strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its
other obligations under international law. Examples of cases involving Article 15 include Greece v UK
(Cyprus Case), Application No 176/56, (1958-9), Lawless v Ireland (A-3, 1 July, 1961), Ireland v UK (A-25,
18 January, 1978)
16
Iverson v Norway (Application 1468/62, 8, October, 1974)
17
Belgian Linguistic Case (A-6, 6 September, 1978)
18
Iverson v Norway (Application 1468/62, 8, October, 1974)
19
See Handyside v United Kingdom (A-24, 12 December 1976), Paragraph 48 and Open Door Counselling
and Dublin Well Woman Centre (A-246, 29 October 1992)
20
Paris Minimum Standards of Human Rights Norms in a State of Emergency (ILA,1984,. Vol 79 [1985] AJIL
1072)
Reliance on the democratic nature of Council of Europe countries does not necessarily
solve this problem. As the President of the Constitutional Court of South Africa stated,
“the very reason [...] for vesting the power of judicial review of all legislation in the courts,
was to protect the rights of minorities and others who cannot protect their rights
adequately through the democratic process.”

Evolution of Judgments

As stated above, the margin of appreciation has been used to tread the difficult line
between support for human rights and the principle of subsidiarity. Judgments on issues
such as the rights of transsexuals and the death penalty have developed in line with the
limits of what was politically and socially acceptable at any given moment.

The wide margin of appreciation offered to states with regard discrimination against
transsexuals has led the Court to respect the political, cultural and religious sensitivities
of state parties by deciding in favour of the state party even when this did not appear to
be in the spirit of the Convention.21 More rigorous interpretations of the Convention were
subsequently given when this was politically possible. In Christine Goodwin v United
Kingdom (2002), for example, the Court – backed up by submissions by Liberty22
regarding the number of new national laws appearing worldwide to protect transsexuals
– was expressly influenced by “the clear and uncontested evidence of a continuing
international trend in favour not only of increased social acceptance of transsexuals but
of legal recognition of the new sexual identity of post-operative transsexuals”23. A similar
judgement was reached in the Tyrer case where the general move away from corporal
punishment in Europe was used as a basis to reject the use of corporal punishment on
the Isle of Man. The ability of the Court to use such trends allows it to develop its
judgments in a positive way to ensure an increasing level of protection for human rights.
However, it is yet to be tested what will happen when the international trend is away
from the protection of human rights.

The following cases illustrate the extent to which the Court’s judgments have varied,
based on the use of Article 15 and also the discretion of the Court.

Terrorism – The Brogan and the Brannigan cases24

Brogan

In the case of Brogan v United Kingdom, the applicant sought redress25 after being held
in custody for five days without charge in September 1984, a few weeks after the United

21
Cossey v United Kingdom (A-184, 27 September, 1984) and Rees v United Kingdom (A-106, 17 October,
1986) for example.
22
Liberty is a leading United Kingdom human rights and civil liberties organisation.
23
Christine Goodwin v United Kingdom (Reports 1996-II, 27 March, 1995) paragraph 85.
24
Brogan and others v United Kingdom (A-145,-B, 29 November, 1988).
25
Brogan alleged violations of articles 5.1, 5.3, 5.4 and 13. In the interests of brevity, and because it is
common with the Brannigan case, only the judgment regarding article 5.3 is addressed here.
Kingdom withdrew its notice of derogation under Article 1526. Despite the withdrawal of
that notice of derogation, the Court expressly stated that the end of the state of
emergency, “does not, however, preclude proper account being taken of the background
circumstances of the case”27 and also noted that the withdrawal of the derogation was at
a time when “the number of deaths was significantly lower” than had previously been the
case, clearly expressing an opinion that it was appropriate for the UK to withdraw its
derogation at that moment.

After hearing the UK government’s difficulties with judicial control over decisions to
arrest and detain terrorist suspects, the Court, with regard to Article 5.3 (which requires
that individuals arrested or detained be brought before a judge or judicial authority and, if
appropriate, tried within a reasonable period of time) nonetheless found that the period
that Mr. Brogan had been held in custody could only be held to be acceptable by using
an “unacceptably wide interpretation of the plain meaning of the world ‘promptly’”28 and
that such an interpretation would “import into Article 5.3 a serious weakening of the
procedural guarantee to the detriment of the individual and […] the very essence of the
right protected under this provision”29. However, in its final judgement on 29 November
1988, the Court did not hold that there had been a breach of Articles 5.1 or 5.4 of the
Convention.

Within weeks of this judgment being made by the Court, the United Kingdom reinstated
the state of emergency and informed the Secretary General of the Council of Europe on
23 December 1988. The context and timelines of these events are illustrated by the
graph30 below, indicating the dates of removal and reinstatement of the state of
emergency in relation to terrorist activity, and the level of arms and explosives finds in
Northern Ireland at that time. Using these two measures, iIt appears clear that there was
no significant increase in terrorist activity – and certainly none “threatening the life of the
nation” (as required by Article 15 of the Convention) that necessitated the reintroduction
of the state of emergency.

26
For a state of emergency to be recognised under the ECHR system, the state party declaring the
emergency must notify the Secretary General of the Council of Europe without undue delay. Once the
emergency is over, this lifting of the state of emergency must also be notified to the Council of Europe
27
Paragraph 46.
28
Paragraph 62.
29
Ibid.
30
This graph was created using figures from the CAIN (Conflict Archive on the Internet) Web Service
maintained by the University of Ulster. As at 05 March, this information was available at
http://cain.ulst.ac.uk/ni/security.htm.
 20000

18000

16000

14000

12000

10000

8000

6000

4000

2000

0
1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990

Firearms found
Kg of explosives found
Arms & explosives finds 1970 to 1990

Brannigan and Others v United Kingdom

Shortly after the reintroduction of the state of emergency, Peter Brannigan was arrested
in January 1989 and detained for six and a half days. He then took a case under Articles
5.3 and 5.5 (on the right to compensation) of the Convention.

In its judgment, the Court recognised the difficulties of investigating terrorism,

acknowledging that these difficulties were also addressed in the Brogan case31.
Nonetheless, the Court came to the conclusion that it was not its “role to substitute its
view as to what measures were most appropriate or expedient at the relevant time in
dealing with an emergency situation”32 and decided that the UK had not exceeded its
margin of appreciation.34,

Bearing in mind

a. the broadly similar nature of the Brogan and Brannigan cases;

b. the similar if, indeed, slightly better situation in Northern Ireland at the time of the
re-introduction of the state of emergency in December 1988;
c. the fact that the Court in the Brogan case referred to the improved situation in
Northern Ireland, implicitly supporting the UK government’s action in withdrawing
the derogation;

31
Paragraph 58
32
Paragraph 59
33
Similar wording was also used in the Markt Intern and Klaus Beerman v Germany (A165, 20 November,
1989) (where the court stated that it “should not substitute its own evaluation for that of the national courts in
the instant case, where those courts, on reasonable grounds, had considered the restrictions to be
necessary”, Paragraph 37
34
Similar wording was also used in the Markt Intern and Klaus Beerman v Germany (A165, 20 November,
1989) (where the court stated that it “should not substitute its own evaluation for that of the national courts in
the instant case, where those courts, on reasonable grounds, had considered the restrictions to be
necessary”, Paragraph 37
 d. the fact that the Court expressly took note of the actual situation on the ground in
both cases35,
e. that the practice in question, according to the Court itself, was contrary to the
very essence of the right protected under36 article 5.3, and
f. that the only material difference that appears in the judgments on both cases is
the introduction of the state of emergency by the United Kingdom,
it seems anomalous that the Court could come to such a different conclusion in the latter
case. It is even more surprising when we consider that, while the Court decided in favour
of Brogan by twelve votes to seven, there was an even more emphatic decision in favour
of the UK in the Brannigan case – twenty-two votes to four.

Considering that the expressed view of the Court in the Brannigan case was that it was
not appropriate to compare the situation in 1984 with that in 1989, it is curious to note
that the Court did take into account statistics regarding the existence of an emergency
existed when assessing the Marshall v United Kingdom37 application. Such an analysis
in the Brannigan case would have made it difficult for the Court to reach the conclusion
that it ultimately reached, as the measure used (deaths and serious injuries) indicate that
there was little difference in the situation between the date of removal of the state of
emergency and its reintroduction38.

Realpolitik?

The Brannigan case caused, even if the Court was not conscious of it, a political
problem. A decision in favour of Brannigan had to be made in the knowledge that the
government had already stated that the measures in place were essential and would not
be changed and in the knowledge that the measures had significant media support after
press reports of the UK being left “unprotected”39 from terrorism as a result of the Brogan
judgment.

The domestic reaction in the UK to a judgment in favour of Brannigan would most

probably have resulted in serious questions being asked regarding the future
relationship of the United Kingdom with the Court. Press headlines indicated – and
reinforced - both the tenuous grasp of human rights law held by the British public and
journalists (“Hurd clings to terror powers: Efforts to get around EEC detention rules”40) as
well as the ease with which terrorism can be manipulated to create opposition and fear
(“UK ‘without protection’: Parliament”41). Meanwhile, the UK Home Secretary made it

35
Paragraph 46 of Brogan (…this does not, however, preclude proper account being taken of the
background circumstances of the case) and paragraph 66 of Brannigan (Having regard to the nature of the
terrorist threat in Northern Ireland…)
36
As expressed in the Brogan judgment (paragraph 62)
37
Marshall v United Kingdom, Application no. 41571/98
38
There was a small decrease in deaths and an increase in serious injuries – although the latter statistic had
gone done in each of the three years leading up to 1989. This is based on figures from CAIN (Conflict
Archive on the Internet) Web Service maintained by the University of Ulster.
39
No byline, “UK ‘without protection’; Parliament”, The Times, January 24, 1989”
40
Carvel, J, “Hurd clings to terror powers: Efforts to get around EEC detention rules”, The Guardian,
December 23, 1988
41
“UK ‘without protection’ Parliament”, Op cit
very clear that Britain was going to keep detention without trial and the only question
was whether the Court was going to accept a new derogation after the reinstatement of
a state of emergency under Article 15 and approve the emergency measures taken. The
unbending position of the UK government was made quite clear during House of
Commons debates where the then Home Secretary said that “if we did away with this
power […] we would in a […] small number of important cases, be imperilling the
public”42 and “the situation cannot continue as it is”43.

The political nature of Court decisions with regard to Article 15 was, somewhat
unusually, expressed by Judge Makarczyk in his dissenting opinion on the Brannigan
case when he explained that “any decision of the Court concerning Article 15 should
encourage and confirm this philosophy”44 (that a derogation by any state affects not only
the position of that state, but also the integrity of the Convention system of protection as
a whole). He went on to question the message that the judgment sent to the international
community – another purely political consideration.

Public emergency threatening the life of the nation

Despite the fact that the Court deemed it necessary to take “proper account of the
background circumstances of the case”45 in the Brogan case, the Court did not, in the
Brannigan case, “judge it necessary to compare the situation which obtained in 1984
(when the state of emergency was lifted) with that which prevailed in December 1988
(when it was re-imposed), arguing that the withdrawal of the state of emergency was “a
matter within the discretion of the State”46.

The UK had taken the view that there was no state of emergency threatening the life of
the nation in 1984, maintained this view until 1988 and – in the absence of evidence
being presented or being obvious to the contrary – decided, following the Brogan
judgement, that the life of the nation was again under threat, resulting in the derogation
being reintroduced. The Court decided that this anomaly did not need to be addressed
as there was no doubt as to the existence of a state of emergency – which logically
means that the Court viewed that there was a de facto state of emergency even at the
time that the UK withdrew its derogation in 1984 – despite having strongly implied the
contrary in its judgment in the Brogan case.

Interestingly, Judge Walsh, in another dissenting judgment in the Brannigan case,

questioned what “nation” was under threat, arguing that there was little threat to the
island of Great Britain. This issue was not addressed in significant detail by the Court in
this case, but the Court acted to close this question by introducing the concept of a

42
House of Commons Hansard, Column 67, 30 January 1989.
43
Paragraph 30 of the Brannigan judgement.
44
Paragraph 1 of the dissenting opinion of Judge Makarczyk in the Brannigan case.
45
Paragraph 62 of the Brogan judgment.
46
Paragraph 47 of the Brannigan case. Similar analysis of the contradiction between the judgments in these
two cases appears in the commentary on Brannigan and McBride v UK in “Leading Cases of the European
Court of Human Rights” Op cit.
47
“regional emergency” in the subsequent Aksoy48 case, thereby avoiding having to deal
with the very politically delicate issue of where the “nation” begins and ends in any future
cases.

Strictly Necessary

The Court had already decided in the Brogan case, while explicitly acknowledging the
particular problems involved in investigating terrorist activities that Article 5.3 of the
Convention had been violated. Indeed, the judgment went quite far by arguing that
accepting the situation in Northern Ireland with regard to detention would “impair the
very essence of the right” which was being protected by that article. Looking purely at
the merits of the UK’s case, it is difficult to understand how the simple fact of the UK
invoking Article 15 of the Convention would have made this practice “strictly necessary”,
when, after taking the problems of investigating terrorism into account, the Court had
already ruled, by a significant majority, that it was not. Was the decision not to rigorously
assess the need for the reintroduction of the state of emergency an appropriate
deference to subsidiarity, or was it simply the most convenient option for the Court to
take?

Torture

The case of Ireland v UK (1978) provides another example of a politically delicate choice
facing the Court – and shows the discretion available to the Court even when dealing
with a non-derogable right which is therefore not within the scope of the “margin of
appreciation”. The case involved terrorist suspects being subjected to five forms of
discomfort and pain (deprivation of food and water, sleep deprivation, subjection to
continuous noise, being kept hooded for extended periods and standing for long periods
in a “stress position’). The UK admitted to using these techniques and undertook, from
the outset, not to use them again.

The Commission, having organised hearings with witnesses:

1. Unanimously viewed the practices in question as constituting “torture”.

2. Established that the practices caused “intense mental and physical suffering”.
3. Recognised that being subjected to this treatment produced “acute psychiatric
disturbances” among the detainees.

In an international context, it is worth noting that the contemporaneous UN Declaration

3452 of 1975 described torture as any act by which “severe pain or suffering, whether
physical or mental, is intentionally inflicted by, or at the instigation of a public official…”49.

48
Aksoy v Turkey (18 December 1996, Reports 1996-VI1996).
49
Declaration on the Protection of All Persons from being Subjected to Torture or Other Cruel, Inhuman or
Degrading Treatment or Punishment”, Adopted by General Assembly Resolution 3452 (XXX) of 9 December
1975.
Nonetheless, faced with a state party that had acknowledged its fault and that had
provided an undertaking not to commit the same fault again, the Court took a decision
that the severity (despite the “intense” suffering described by the Commission) of the
pain inflicted was not sufficient to burden the UK with the stigma of being found guilty of
state-sponsored torture, instead concluding that the treatment was “inhuman.”

Difficulties of the current context

Political Support for Human Rights

Despite the fact that the Convention has been functioning effectively for half a century,
the threat posed by terrorism and the potential for exploitation of fear by populist
politicians again raise the question of what the Court could do when faced with a similar
but more extreme version of the choices that it faced in the Brannigan case.

The United Kingdom which, only seven years ago was so supportive of implementation
of human rights legislation that it incorporated the ECHR into national law, provides a
worrying case study. Despite incorporating the Convention into national law and being
one of the first countries to sign the Convention, the ECHR’s foundations in the UK are
not as solid as one might imagine. For example, in 2003, five years after incorporation
into national law of the Convention, and over fifty years since Britain’s signature of the
Convention, a junior British minister said that far too many people in Britain still see
human rights as “something imported and alien to the British way of doing things’50.

This situation is exacerbated by the way in which leading politicians address the
question of human rights. The main opposition party published a press release in 2005
saying that it was “time to liberate the country from human rights laws”51 and has
threatened to withdraw from parts of the Convention, particularly with regard to asylum
seekers52. Even more worryingly, the Prime Minister, under whose leadership the
Convention was adopted into UK law, stated that, with regard to asylum policy in
particular, “if the measures don't work, then we will have to consider further measures,
including fundamentally looking at the obligations we have under the Convention on
Human Rights”.

In short, the leaders of the two UK political parties representing almost 90% of the UK
Parliament have raised significant doubts about Britain’s ongoing relationship with the
Convention in a context where a significant number of their voters feel that human rights
is, in any event, a foreign concept.

Fear of terrorism

50
Lammy, D, Third Anniversary of the Human Rights Act”, Speech to the Audit Commission Conference, 9
November, 2003
51
Conservative Party Press Release, “Time to liberate the country from Human Rights laws”, 18 March,
2005
52
Maude, F, “Maude: Conservatives to lead from the front”, Speech, 18 May, 2001.
Added to the lack of political leadership with regard to the need for human rights
legislation, politicians in the UK have been far from reticent when describing the level of
the threat from terrorism. The Prime Minister spoke of “several hundred terrorists” in the
United Kingdom plotting to take part in terrorist acts, while the former London
Metropolitan Police Commissioner, defending the government’s position on
imprisonment without trial of suspects, argued that it would be “madness” to release
those in prison and that “for the safety of innocent people they should remain under lock
and key”53.

In this context, it seems unlikely that there would be significant public opposition either to
restrictions to civil liberties or fundamental alterations to the UK’s relationship with the
Convention.

Margin of Appreciation in the new terrorist context

Detention without trial of foreign terror suspects under the Anti-terrorism, Crime and
Security Act 2001 in the United Kingdom provides a first glimpse of the problems that will
face the European Court with regard to post 9/11 international terrorism – while the way
in which this was dealt with by the Lords of Appeal provide an insight into the power of
national courts to make decisions that may not be possible in Strasbourg.

Two months after the September 11, 2001 attacks in the USA, the UK government
notified the Secretary General of the Council of Europe of an intention to derogate under
Article 15 of the ECHR. On the basis of the derogation, the United Kingdom wished to be
exempted from article 5.1(f), which permits the detention without trial awaiting
deportation. In the Chahal v UK case, the Court had already permitted years of detention
without trial and it was the UK’s view that this could be extended, in line with the
exigencies of the situation, to circumstances where deportation was not a practical
option, either “temporarily or indefinitely”54. In essence, the UK intended to detain
terrorist suspects indefinitely unless there was an opportunity to deport them.

The UK’s view, as expressed by the Attorney General55, was that the decision taken to
detain the suspects without trial fell within the “discretionary area of judgment properly
belonging to the democratic organs of the state”,56 and relied heavily on the numerous
examples of the Court stressing its subsidiary nature to argue that this would be
acceptable under the Convention. This appears to be fully in tune with the European
Court’s view that it “is certainly not the Court’s function to substitute for the British
Government’s assessment any other assessment of what might be the most prudent or
most expedient policy to combat terrorism”57.

53
Bourne, B, “Up to 200 Al-Qaeda Terrorists in Britain”, The Times, 06 March, 2005
54
Anti-Terrorism, Crime and Security Act (2001) Article 22.1
55
Paragraph 37, Opinions of the House of Lords for judgment in the cause A(FC) and others
(FC)(Appellants) v Secretary of State for the Home Department, case (2004) UKHL 56,
56
Ibid
57
Ireland v UK, Paragraph 214
It would seem far-fetched that the European Court of Human Rights could possibly
approve of long-term detention without trial. However, if this case had been brought
before it – as would probably have happened if the Human Rights Act had not been
implemented in the UK, the following case law would suggest the outcome would not
necessarily have been as certain as one would assume . For example:

A: The existence of a state of emergency:

The Brannigan and Lawless cases and Marshall application suggest that it is
very likely that the Court would have set a low standard to assess the UK’s
assertion that there was a state of emergency.
B. Long-term detention without trial or deportation
By a majority of 13 to 6 (despite unanimity of the Commission to the contrary),
the Court had ruled in the Chahal case that the five-year detention of Mr Chahal
was not a breach of article 5.1(f) because the UK had been trying to deport him.
C. Non-substitution
The Court has repeatedly made it clear that it is “certainly not the Court's function
to substitute for the British Government's assessment any other assessment of
what might be the most prudent or most expedient policy to combat terrorism”58.
Similar wording also appeared in the judgements on Klass and Others v
Germany and Brannigan and McBride v UK.

This case would create an extremely difficult problem for the Court. Either it could take
the only apparently reasonable course of action and oppose the detentions – knowing
the possible effect in the UK politically (as described above) and the possible wider
repercussions for developing democracies in Eastern Europe, or use previous case law
regarding points a, b, and c above to permit the detentions, thereby putting significant
question marks over its credibility as a court with the ability to effectively enforce the
spirit and letter of the Convention.

In reality, however, the case was decided in the domestic courts of the United Kingdom.
In A(FC) and others (FC)(Appellants) v Secretary of State for the Home Department, the
suspects detained under the abovementioned legislation argued that their detention was
illegal under the Human Rights Act (1998) on the basis that (a) there was no state of
emergency, (b) that the measures were not required by the exigencies of the situation
and that (c) the measures were irrational, discriminatory and disproportionate.

Faced with a significant list of cases where the European Court applied a low standard
for approving a state of emergency under Article 15 of the ECHR, the House of Lords,
understandably, did not find in favour of the appellants. However, the Lords did
substitute their views for those of the government, finding that the measures were
disproportionate and discriminatory and therefore in contravention of the Human Rights
Act. The individual judges made strident criticisms of the legislation in question putting
intense pressure on the Government which, despite initially rejecting the ruling, finally
went on to accept it. That the Lords’ judgement accorded a much less generous “margin
of appreciation” to the government is perfectly summed up by Lord Bingam’s comment
that while “the attorney general is fully entitled to insist on the proper limits of judicial

58
Ireland v UK
authority, but he is wrong to stigmatise judicial decision-making as in some way
undemocratic”59.

Conclusions

The margin of appreciation doctrine has undoubtedly played a valuable role in permitting
the Court to tread the very difficult line between ensuring maximum protection of human
rights and respecting the democratic wishes of Council of Europe member states.
However, as stated above, this has relied on both the generally positive direction of
human rights protection in the Council of Europe region generally and the absence –
with the exception of the Greek Colonels case – of there being an overlap between what
was reasonable under the margin on the one hand, and what the member states were
prepared to accept.

However, the fact that the Court backed down in the only case where this was not true
(Brannigan) does not augur well for situations that may develop where this overlap again
disappears – as would apparently have inevitably happened if the UK case described
above had been decided in Strasbourg. Looking at the initial reaction of the UK
government to the Lords’ judgement, where it argued that the highest court in the
country was “simply wrong”60, and the fact that both the Prime Minister and Leader of the
Opposition have raised questions regarding Britain’s future adherence to the ECHR, it
appears that the Court needs to urgently consider whether its current approach to the
margin of appreciation is sustainable.

As Lord Lester, one of the architects of the 1998 Human Rights act commented61, “in
practice [implementation of the ECHR] depends very much on the independence and
integrity and commitment of the national courts” and “national courts are better placed to
secure compliance with ECHR rights”62.

59
Paragraph 42 of the Opinions of the House of Lords for judgment in the cause A(FC) and others
(FC)(Appellants) v Secretary of State for the Home Department.
60
No byline, “Law Lords ‘simply wrong’ says Straw”, The Guardian, 17 December, 2005.
61
In correspondence with the author.
62
Ibid