II. GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS, A, B & C v IRELAND, DECISION OF 17 DECEMBER 2010
Published online by Cambridge University Press: 30 January 2013
The use of ‘European consensus’ as a decision-making mechanism of the European Court of Human Rights has been condemned and praised in almost equal measure.1 On the one hand, some scholars argue that the way in which so-called ‘consensus’ is identified is generally unsound and lacking in rigour.2 It is also claimed that European consensus is overly subjective in its nature3 and, in any case, that it undermines the principle that the Convention has an autonomous meaning determined by the Court and separate to what member States do or interpret it as meaning.4 On the other hand there are scholars who, while often concerned with the suboptimal methodology adopted in identifying and using European consensus in the decisions of the Court, recognize the method's potential to increase the legitimacy of the Court and its function as a mechanism for the progressive liberalization of the European public order.5 This reflects the fact that, generally speaking, European consensus has been applied in order to establish an expanded scope of protection for the Convention in areas not expressly mentioned within it or contemplated at the time of its drafting, on the basis that there is an identifiable trend (although, in strict linguistic terms, not an actual ‘consensus’) among other European States to protect the alleged right.6
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1 See eg Letsas, G, A Theory of Interpretation of the European Convention on Human Rights (OUP 2009) 120–31Google Scholar; Letsas, G, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15 EJIL 279CrossRefGoogle Scholar; Murray, JL, ‘Consensus: Concordance, or Hegemony of Majority’ in Dialogues between Judges (Council of Europe 2008)Google Scholar; Benvenisti, E, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31 JILP 843Google Scholar; McHarg, A, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’ (1999) 62 MLR 671CrossRefGoogle Scholar; Brauch, JA, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’ (2004) 11 CJEL 113Google Scholar; de Londras, F, ‘International Human Rights Law and Constitutional Rights: In Favour of Synergy’ (2009) 9 International Review of Constitutionalism 307Google Scholar; Dzehtsiarou, K, ‘European Consensus and the Evolutive Interpretation of the European Convention on Human Rights’ (2011) 12 GLJ 1730Google Scholar; Martens, P, ‘Perplexity of the National Judge Faced with the Vagaries of European Consensus’ in Dialogues between Judges (Council of Europe, 2008)Google Scholar; Helfer, L, ‘Consensus, Coherence and the European Convention on Human Rights’ (1993) 23 CornelIntlILJ 133Google Scholar; McCrudden, C, ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’ (2000) 4 OJLS 499CrossRefGoogle Scholar; Delmas-Marty, M, ‘A ‘Reasoned’ Conception of the Reason of State’ in Delmas-Marty, M (ed), The European Convention for the Protection of Human Rights. International Protection versus National Restrictions (Kluwer 1992)Google Scholar.
2 Arai-Takahashi, Y, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002), 192–3Google Scholar; Mahoney, P, ‘The Comparative Method in Judgments of the European Court of Human Rights: Reference Back to National Law’ in Canviet, G et al. (eds), Comparative Law Before the Courts (BIICL 2004)Google Scholar, 149.
3 Martens, P, ‘Perplexity of the National Judge Faced with the Vagaries of European Consensus’ in Dialogues between Judges (Council of Europe 2008)Google Scholar, 79.
7 A, B and C v Ireland, Application No 25579/05, Judgment of 16 December 2010.
8 We are not concerned here with the impact of A, B & C v Ireland on Ireland's abortion regime per se. On this see Daly, B, ‘Access to Abortion Services: The Impact of the European Convention on Human Rights in Ireland’ (2011) 30 Medicine and Law 267Google ScholarPubMed; Daly, B, ‘‘‘Braxton Hick's” or the Birth of a New Era? Tracing the Development of Ireland's Abortion Laws in Respect of European Court of Human Rights Jurisprudence’ (2011) 18 European Journal of Health Law 375CrossRefGoogle ScholarPubMed.
9 The Lisbon Treaty and Protocol 14 to the ECHR provided the legal basis for the European Union to become a party to the European Convention on Human Rights, the final negotiations for which are underway. See eg Kuijer, M, ‘The Accession of the European Union to the ECHR: A Gift for the ECHR's 60th Anniversary or an Unwelcome Intruder at the Party?’ (2011) 3 Amsterdam Law Forum 17Google Scholar; X Groussot, T Lock and L Pech, ‘EU Accession to the European Convention on Human Rights: A Legal Assessment of the Draft Accession Agreement of 14th October 2011’ European Issues No 218 (Fondation Robert Schuman 2011); Lock, T, ‘EU Accession to the ECHR: Implications for the Judicial Review in Strasbourg’ (2010) 35 ELR 777Google Scholar.
10 See further F de Londras, ‘The European Court of Human Rights, Dual Functionality, and the Future of the Court after Interlaken’ UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 45/2011 available at SSRN:<http://ssrn.com/abstract=1773430>.
12 For an overview see Verschraegen, B, ‘The Right to Private Life and Family Life, The Right to Marry and to Found a Family, and the Prohibition of Discrimination’ in Boele-Woelki, Katharina and Fuchs, Angelika (eds), Legal Recognition of Same-Sex Couples in Europe (Intersentia 2003)Google Scholar.
13 See eg Lautsi v Italy, Application No 30814/06, Judgment of 18 March 2011; Christine Goodwin v the United Kingdom, Application No 28957/95, Judgment of 11 July 2002. For detailed discussion see Dzehtsiarou (n 5) 546–8.
14 Mowbray, A, ‘The Creativity of the European Court of Human Rights’ (2005) 5 HRLRev 57Google Scholar, 69; Öcalan v Turkey, Application No 46221/99, Judgment of 12 May 2005.
15 See eg Lautsi (n 13) ; Dickson v United Kingdom, Application No 44362/04, Judgment of 4 December 2007 ; Sheffield and Horsham v United Kingdom, Application No 22985/93, Judgment of 30 July 1998 . In such cases a wide margin of appreciation is usually identified: Evans v United Kingdom, Application No 6339/05, Judgment of 10 April 2007 .
16 Stoll v Switzerland, Application No 69698/01, Judgment of 10 December 2007 .
17 See, eg, Ünal Tekeli v Turkey, Application No 48616/99, Judgment of 16 November 2004; Tănase v Moldova, Application No 7/08, Judgment of 27 April 2010; DH and Others v the Czech Republic, Application No 57325/00, Judgment of 13 November 2007; Micallef v Malta, Application No 17056/06, Judgment of 15 October 2009.
18 Republican Party of Russia v Russia, Application No 12976/07, Judgment of 12 April 2011, [127–130]; Tănase v Moldova (n 17) para .
19 In Goodwin v the United Kingdom the European Court of Human Rights stated that lack of European consensus could not justify allowing the respondent State a wide margin of appreciation in relation to transsexuals’ rights, because of ‘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’: Christine Goodwin (n 13) . In this case the continuing international trend was not deployed to trump the existing consensus but rather was used to overcome the lack of such consensus. However, the reasoning behind this argument is similar to trumping consensus, namely a solution supported by European consensus or lack thereof is disregarded under the justification of another trend—this time, an international one.
20 Tyrer v the United Kingdom, Application No 5856/72, Judgment of 25 April 1978.
21 Birching was a statutorily regulated form of corporal punishment conducted by police officers (Summary Jurisdiction Act 1960, section 10). Regulation of this punishment was so precise that the size and weight of the cane to be used was specified in the Directive of the Lieutenant-Governor of 30 May 1960.
25 Dudgeon v the United Kingdom, Application No 7525/76, Judgment of 23 September 1981.
29 In 1981 Paragraph 349(a) of the Norwegian Penal Code was amended to prohibit discrimination on the basis of sexual orientation in the provision of goods and services and in access to public gatherings.
31 Art 40.3.3, Bunreacht ne hÉireann (Constitution of Ireland).
32 Attorney General v X  1 IR 1 (Supreme Court of Ireland, 5 March 1992).
33 See generally Schweppe, J (ed), The Unborn Child, Article 40.3.3° and Abortion in Ireland: 25 Years of Protection? (Liffey Press 2008)Google Scholar.
34 Regulation of Information (Services Outside the State for Termination of Pregnancies) Act 1995.
35 Tysiąc v Poland, Application No 5410/03, Judgment of 20 March 2007.
41 Abortion referenda were held in 1983 (introducing the 8th Amendment to the Constitution (protecting the life of the unborn with equal protection to the life of the mother)), 1992 (introducing the 13th Amendment to the Constitution (allowing for freedom to travel for the purposes of abortion) and 14th Amendment to the Constitution (allowing for the provision of information relating to abortion), but rejecting a proposed amendment to preclude abortion where the life of the mother was endangered by the risk of suicide), and in 2002 (rejecting a proposal to preclude abortion where the life of the mother is endangered by suicide). For a comprehensive outline, see eg Hogan, G & Whyte, G, Kelly: The Irish Constitution (4th edn, Tottel, 2003)Google Scholar.
42 Concerns about abortion becoming more available in Ireland through EU intervention resulted in Protocol 17 of the Maastricht Treaty, which provides ‘[n]othing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Art 40.3.3 of the Constitution of Ireland’.
43 In advance of the second referendum on the Lisbon Treaty the European Council (Heads of Government) adopted a Decision including, in Section A, a guarantee that ‘[n]othing in the Treaty of Lisbon attributing legal status to the Charter of Fundamental Rights of the European Union, or in the provisions of that Treaty in the area of Freedom, Security and Justice affects in any way the scope and applicability of the protection of the right to life in Art 40.3.1, 40.3.2 and 40.3.3…[of] the Constitution of Ireland’.
44 Changes to the founding treaties of the European Union that alter the ‘essential scope or objectives’ of the European Union can only be ratified by Ireland is approved by constitutional referendum: Crotty v An Taoiseach  IR 713 (Supreme Court of Ireland, 9 April 1987).
46 Andorra, Malta and San Marino prohibit abortion in all circumstances.
47 Vo v France, Application No 53924/00, Judgment of 8 July 2004.
54 Hennette-Vauchez, S, ‘Reformatory Rationales Mismatch the Plural Paths of Legitimacy of ECHR Law’ in Christoffersen, J and Madsen, MR (eds), The European Court of Human Rights between Law and Politics (OUP 2011)Google Scholar; Wildhaber, L, ‘Rethinking the European Court of Human Rights’ in Christoffersen, J and Madsen, MR (eds), The European Court of Human Rights between Law and Politics (OUP 2011)Google Scholar; Wildhaber, L, ‘A Constitutional Future for the ECHR’ (2002) 5 HRLJ 161Google Scholar. Some argue the Court is in fact a constitutional court. See especially Sweet, A Stone, A Europe of Rights: The Impact of the ECHR on National Legal Systems (OUP, 2008)Google Scholar; A Stone Sweet, On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court’ (2009) 80 Revue Trimestrielle des Droits de l'Homme 923.
56 See, Waldron, J, ‘The Core of the Case Against Judicial Review’ (2006) 115 YaleLJ 1346Google Scholar; Kavanagh, A, ‘Participation and Judicial Review: A Reply to Jeremy Waldron’ (2003) 22 Law and Philosophy 451Google Scholar; Freeman, S, ‘Constitutional Democracy and the Legitimacy of Judicial Review’ (1990) 9 Law and Philosophy 327CrossRefGoogle Scholar; Poole, T, ‘Legitimacy, Rights and Judicial Review’ (2005) 25 OJLS 697CrossRefGoogle Scholar; Sadurski, W, ‘Law's Legitimacy and “Democracy-Plus”’ (2006) 26 OJLS 377CrossRefGoogle Scholar; Føllesdal, A, ‘The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights’ (2009) 40 Journal of Social Philosophy 595CrossRefGoogle Scholar.
58 This phrase was used in Banković v Belgium, Application No 52207/99, Decision of 12 December 2001 to describe the geographical space within which the Convention operates (subject to some strictly exceptional extraterritorial application).
59 A clear example of such criticism is the reaction of the UK Parliament to the judgments of the European Court of Human Rights in the cases Hirst v the United Kingdom (No. 2), Application No 74025/01, Judgment of 6 October 2005 and Greens v the United Kingdom, Application No 60041/08, Judgment of 24 November 2010 in which the Court found prisoners’ voting ban incompatible with the Convention. As is well known, the law has not been changed in response to these decisions, with members of the parliament in Westminster alleging that the apparent disconnection between this decision and the desires of the people of the United Kingdom delegitimized the decision and the Court itself. See generally the Backbench Parliamentary Debates, ‘Prisoners’ right to vote’, The Hansard, 10 February 2011, Column 498–586.
61 See eg Jenkins, D, ‘There and Back Again: The Strange Journey of Special Advocates and Comparative Law Methodology’ (2010) 42 ColumbHumRtsLR 279Google Scholar.
62 For criticism of European consensus see above n. 1. Criticisms of the margin of appreciation include H Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Martinus Nijhoff 1996) 152. Lester, Lord, ‘Universality Versus Subsidiarity: A Reply’  EHRLR 73Google Scholar; Gross, O and Ní Aoláin, F, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ (2001) 23 HRQ 625CrossRefGoogle Scholar; Carozza, P, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97 AJIL 38CrossRefGoogle Scholar.
65 Full statistics for all Irish referenda including turnout and breakdown are available in Department of Environment, Community and Local Government, Referendum Results 1937–2012 available at <http://www.environ.ie/en/LocalGovernment/Voting/Referenda/PublicationsDocuments/FileDownLoad,1894,en.pdf > .
66 de Londras, F, ‘Ireland Still in Denial about Abortion’, The Guardian (London, 17 December 2010) 36Google Scholar.
67 W Binchy, ‘Referendum to Protect Unborn Now Necessary’, The Irish Times (Dublin, 12 December 2010).
68 The Irish Constitution can only be amended by referendum of the people: Art 46, Bunreacht na hÉireann (Constitution of Ireland).
69 Art 46, European Convention on Human Rights.
70 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland, Application No 45036/98, Judgment of 30 June 2005.