Tuesday, 26 May 2020

Guest Post on the European Court, Domestic Oversight of COVID-19 Emergency Measures, and Procedural Rationality

It is my pleasure to introduce a guest post commenting a specific aspect of the current COVID-19 pandemic: how the European Court of Human Rights could foster oversight within ECHR state parties by using procedural rationality. It was written by my SIM colleague Kushtrim Istrefi and his co-author Vassilis Tzevelekos. Good food for thought!

A Way for the ECtHR to Foster the Domestic Oversight of Emergency Measures Against the Pandemic: Procedural Rationality’s Special Mission

Dr Vassilis P Tzevelekos, senior lecturer at the University of Liverpool School of Law and Social Justice, and Dr Kushtrim Istrefi, assistant professor with the Netherland Institute of Human Rights (SIM) at Utrecht University

In the wake of the current pandemic, a number of international institutions have stressed the importance of parliamentary and judicial oversight of national emergency policies. For instance, in the COVID-19 toolkit, the Secretary General of the Council of Europe noted that any emergency measures “should comply with the constitution […] and, where applicable, be subjected to review by the Constitutional Court”. The Venice Commission has highlighted the importance of parliamentary oversight and judicial review with respect to declarations and prolongations of states of emergency. In similar terms, the OSCE has called for stronger parliamentary oversight of emergency measures. The UN, in its policy brief on COVID-19 and human rights, underlined parliamentary scrutiny as a good practice and criticised weak domestic oversight of executive measures.

These calls highlight the importance of domestic oversight of emergency measures in the wake of COVID-19. In this blog, we argue that the European Court of Human Rights (ECtHR) has a ‘tool’ of analysis, namely procedural rationality, that allows for closer engagement with domestic oversight. This engagement, in our view, can ensure stronger European supervision of such measures and help to build common standards of domestic oversight in a manner that also takes into account the pluralism that prevails between the Council of Europe member states with respect to emergency measures.   

The importance of domestic oversight of emergency measures  

The international calls for domestic oversight of states of emergency in the wake of COVID-19 are in line with constitutional traditions of checks and balances in liberal democracies, in particular in times of crisis. For example, when discussing the Coronavirus Bill, the UK Parliament recently stated that “robust parliamentary scrutiny […] and judicial oversight are imperative for granting such significant powers to ministers”. The extraordinary nature of emergency measures and their effect on fundamental rights protection make it imperative that effective domestic oversight is in place to ensure that governments are duly controlled and that they lawfully and legitimately exercise any emergency powers at their disposal or those which they have been given exceptionally.

During a public emergency, national courts and parliaments can control whether the executive duly exercises its enhanced powers. National courts have already performed this function with regard to measures against the coronavirus and prevented the executive from applying various unlawful emergency measures. For instance, constitutional courts in Germany, Kosovo and Bosnia and Herzegovina have recently declared specific measures related to COVID-19 unconstitutional. These judicial interventions can serve as examples of the role that human rights can play in times of emergency. Scrutiny by courts can ensure that national policies fighting the pandemic do not become abusive or go beyond what is necessary. Mutatis mutandis, parliamentary oversight can offer democratic legitimacy to emergency measures, control the executive and apply pressure, for instance by inviting governments to re-evaluate whether emergency powers or measures are still required. This way, they can prevent so-called entrenched emergencies. Thorough oversight of national policies against COVID-19 at the domestic level is essential to maintain respect for human rights, to endow these policies with legitimacy and to enhance their effectiveness.

The pertinence of procedural rationality for domestic oversight of emergency measures

Domestic oversight is of significance for the purposes also of the international scrutiny of emergency legislation that interferes with human rights. Domestic parliamentary debates and judicial decisions reveal the goals pursued by emergency measures, the priorities that they set, the values that underpin them, and the risks and trade-offs that they involve. They are also telling of the aptness of the measures, their duration, necessity and legitimacy. These are all elements that the ECtHR can duly consider when reaching a decision on the compatibility of national emergency measures against COVID-19 with the ECHR.

The ECtHR can engage with the practice of national parliaments and national courts through so-called procedural rationality review. According to Popelier and Heyning, when applying procedural rationality analysis, the ECtHR “takes the quality of the decision-making procedure at the legislative, the administrative as well as the judicial stage, as a decisive factor for assessing whether government interference in human rights was proportional, thereby avoiding intense substantive review”. This procedural approach allows the Strasbourg Court to rely on domestic oversight by considering parliamentary debates or the lack thereof, the attempt to weigh competing interests, and the reliance of national courts on the ECtHR’s case law, to name a few factors. As a result, to use the words of Kleinlein, procedural rationality can “increase the ‘ownership’ of European human rights by domestic institutions and the general public and rationalize the debate”. 

The engagement with and the reliance on domestic oversight sends a signal for cross-party politics and the proper weighing of different interests at a time when the power in the hands of a few has the potential to heavily cost the many. This approach, to borrow the words of President Spano, can thus have “democracy enhancing” effects during challenging times. Furthermore, as the Strasbourg Court itself cannot provide a timely review of states of emergency, reliance on domestic oversight helps the ECtHR to take cognizance of larger policy implications when looking at individual applications. Finally, as discussed in further detail below, by means of procedural rationality the Court can set certain standards of domestic oversight that states ought to meet. In this way, as Gerards and Brems argue, the ECtHR can also “impose[…] quality standards upon national legislators and encourage […] national courts to conduct their own procedural rationality review”.

Overall, our argument is that procedural rationality can prove to be particularly helpful in the case of emergency measures. With this type of review, the focus moves from the consequences that emergency measures have for human rights per se to the procedure behind these measures and to the procedural safeguards a polity offers to control these measures. Procedural safeguards thus offer a first layer of defence at the local level and, possibly, in real time, whilst the emergency is still ongoing. Procedural rationality is not merely a matter of procedure. The procedure can complement, underpin and condition the substance of human rights, in particular when these are threatened by extraordinary measures. That being said, it is not surprising that the role of parliaments in states of emergency has already been raised before the ECtHR in the past. In A and others v. UK, the UK Government specifically noted that the contested measure “was not only the product of the judgment of the Government but was also the subject of debate in Parliament”. In that case, when assessing whether derogations of long duration are compatible with the ECHR, the Court also relied upon the fact that such measures had been annually reviewed by the UK parliament (para 178). Admittedly, the weight given by the ECtHR to domestic oversight is not entirely clear in this particular case. In the future, however, the Court can take a stronger procedural turn by way of engaging with the quality of domestic parliamentary and judicial review in more depth.

Procedural rationality and deference to national authorities

Procedural rationality can potentially be a subsidiarity-friendly tool, by means of which the ECtHR - whilst also taking into account other relevant factors - decides when (or the extent to which) it should defer to national decision making and scrutiny. As such, in an eventual application before the ECtHR, elements such as the quality of decision-making processes at the national level, high standards of good governance and the thoroughness of domestic oversight can be decisive in determining the rigidity and completeness of the test of conventionality carried out by the ECtHR.

A process-based review may give the impression that the ECtHR is lowering its standards or that, by granting leeway, it is enfeebling the scrutiny that it traditionally exercises; however, this is not a very safe conclusion to reach. 

First, this largely depends on, inter alia, the intensity of procedural rationality and its outputs. Procedural rationality does not necessarily result in increased leeway being given to national authorities. 

Second, the ECtHR could adopt a “semiprocedural review”, that pairs with substantive review. That is to say, it would not be unreasonable if, particularly in the context of emergency measures, procedural rationality would complement - instead of replacing or mitigating - the traditional test of conventionality. With procedural rationality, the ECtHR could add one extra layer of scrutiny and, alongside other elements such as proportionality, also check the quality and adequacy of domestic oversight in cases involving emergency measures. This extra layer could even be added in a more oblique or concealed way. For instance, procedural rationality analysis could be associated with (or absorbed by) other questions traditionally explored by the ECtHR, such as the legitimacy of the aim pursued by an interference with ECHR rights or the existence within domestic law of a legal basis for the interference. 

Third, even if procedural rationality (applied in light of the particular circumstances of a case) leads to deference through a wide margin of appreciation precluding a full test of proportionality, process-based review can still offer rather satisfactory results. Essentially, it shifts the level where full scrutiny is being exercised. Instead of applying its usual scrutiny, the ECtHR can replace it with a more general review that the requisite scrutiny has been duly exercised domestically. The reason that procedural rationality may result in the granting of a wider margin of appreciation is that the national authorities of the respondent state are considered to have done their job in a manner that in principle complies with the ECHR.

To that end, national authorities must duly consider human rights law and strive to give the ECHR effects that satisfy the ECtHR in that they are close enough to those that it would have given, had it decided to proceed with its traditional full test. The key issue in the case of emergency powers is not so much who (i.e. national authorities or international institutions) exercises oversight, but that this is duly exercised in a timely manner. Mutatis mutandis, without undermining the importance that subsidiarity holds to states, the key issue with the use of procedural rationality with respect to emergency measures is not so much the granting of a margin of appreciation, but the fact that procedural rationality puts the accent on domestic oversight. This is the key reason why we contend that procedural rationality is an apposite method for cases involving emergency measures.

The importance of procedural rationality lies in the emphasis that it places on the quality of oversight procedures at the national level, and also in its possible connection with margin of appreciation, which is essential for both states’ and the ECtHR’s legitimacy. As Lord Atkin once lamented, in times of crisis, the risk remains that courts become “more executive minded than the executive”. With respect to international courts such as the ECtHR, this danger goes hand in hand with another risk, namely, to overly restrict national sovereignty. This can be more problematic when national authorities fight an emergency and, to be in a position to do this in an effective manner, they need more leeway. It is largely accepted that the ‘era of subsidiarity’ within the ECHR regime emerged as a reaction to criticism that the ECtHR has been more interventionist than (certain) states would have desired it to be in the past. By relying on (ergo essentially also controlling the quality of) domestic judicial and parliamentary oversight of emergency measures as a criterion and a precondition to defer to decision making at the local level, the ECtHR does not second-guess but rather cross-checks what the competent domestic actors have decided about emergency measures.

Procedural rationality, pluralism and common minimum standards

Procedural rationality allows the ECtHR to pay due regard to domestic procedures in each case and possibly defer to national authorities. This is particularly important as domestic procedures may well differ from one state to another. Constitutional variety on how oversight of emergency measures should be exercised is a ‘natural’ consequence, and also evidence of (constitutional) pluralism (and wealth) regarding certain aspects of a polity’s reaction to an emergency, including the special procedures, legal bases and logic behind the allocation of competences for adopting emergency measures.

Procedural rationality enables the ECtHR to show - when it deems it necessary - how much it respects different legal traditions and the different paths taken to respond to a crisis. In other words, this method can help the Strasbourg Court to maintain a due balance between the (constitutional) pluralism with respect to extraordinary measures that inevitably prevails within a community of 47 states, on the one hand, and the exigencies of human rights, on the other. The former aspect involves subsidiarity and deference to national authorities. The latter involves ‘smart’ forms of scrutiny, such as procedural rationality that can help to determine whether national procedures meet certain common minimum standards regarding the way in which they should operate. 

These common standards of procedural rationality translate into: a) guarantees of due consideration of the substance of a human rights issues, primarily at the national level and, if need be (i.e. if a state fails the procedural rationality test or if the process-based review of the ECtHR complements substantive review rather than precluding it) to an extent by the ECtHR; b) respect for national sensitivities and special features (i.e. the idiosyncrasy of each national constitutional order in the way it regulates reactions to emergencies); and also c) the gradual building of a common core of minimum procedural standards that each member state ought to meet as a precondition for them to pass the procedural rationality test and possibly ‘gain’ an increased margin of appreciation.

Given that the margin of appreciation that states traditionally enjoy in states of emergency is wider, procedural rationality could act as a precondition for granting margin of appreciation in a way that does not sacrifice the substance of human rights protection, respects legal pluralism, subsidiarity and sovereignty, whilst also emphatically placing the accent on what is essential in times of crises which lead to emergency measures and the granting of extraordinary executive powers. This way, procedural rationality can positively contribute to the strengthening of domestic oversight and supervision and, thereby, to the protection of fundamental human rights by establishing certain ‘red lines’ with respect to domestic procedures pertaining to the oversight of emergency measures or by setting certain ‘goals’ of domestic scrutiny and oversight -which could be met in a ‘flexible’ manner, adjusted to the constitutional physiognomy of each member state. Finally, we must stress that domestic oversight during states of emergency and its use by the Strasbourg Court through procedural rationality is not a magic tool to mitigate or tolerate instances of misapplication or misuse of executive power in a state of emergency.

Conclusion

The use of procedural rationality is not without criticism. Some could argue that it is a form of judicial activism or that the Court lacks the authority to scrutinise the quality of parliamentary debates. Given its confines, the purpose of this blog is not to argue in favour or against procedural rationality in general, but to underscore the pertinence of procedural rationality with respect to emergency measures. The primary advantage of the use of this method in the context of emergency measures is that procedural rationality focuses on what is essential for such measures, i.e. the quality and depth of domestic oversight, guaranteeing that the emergency measures are taken with appropriate deliberation, control and reflection, inter alia as to their compatibility with the rights enshrined in the ECHR. 

By employing the procedural rationality analytical tool, the ECtHR can place the accent on timely domestic oversight as a crisis/situation calling for emergency measures unravels. The ECtHR’s case law can thereby contribute to the establishment of a common threshold, that is, common minimum standards regarding due oversight of national emergency measures. 

Our view is that by means of procedural rationality, the ECtHR can contribute to the strengthening of domestic oversight of extraordinary measures. It can infuse international scrutiny with democratic legitimacy stemming from the national level, whilst also giving shape to a common pan-European core of checks and balances in times of emergency in a manner that can, in principle, be subsidiarity-friendly and respectful of (constitutional) pluralism within the 47 Council of Europe member states. To borrow the EU motto, procedural rationality can thus help the member states of the Council of Europe to become more “united in diversity” in times of emergency.

The authors are thankful to Professor Janneke Gerards, Dr Dimitrios Kagiaros and Dr Nikos Vogiatzis for their helpful comments. 

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