In Re P: UK courts may enforce Convention rights within the margin of appreciation

The Lords’ judgment in the case of In Re P (Northern Ireland) is an important one on the relationship between the UK courts applying the Human Rights Act 1998 on the one hand, and the European Court of Human Rights applying the European Convention on Human Rights on the other.

The issue at stake is about adoption in Northern Ireland, where secondary legislation permits adoption by couples – but only if they are married. Does this discriminate against unmarried couples, contrary to the article 14 Convention right? The Lords have concluded by four to one that it does, and that the courts in Northern Ireland must consider unmarried couples, regardless of the secondary legislation. Lord Walker was the dissenter.

The really interesting point though came about because Lady Hale saw the issue as at least arguably within the “margin of appreciation” allowed to states by the ECtHR, as a result of the judgment in Fretté v France in 2002, in which the court accepted that France’s refusal to allow a gay man to adopt was within its margin of appreciation. If Strasbourg permits that, is a domestic court obliged to permit it too? Or can Britain apply a high standard than the lower limit permitted by the margin of appreciation? If the latter, is it for the courts to decide this, or for Parliament? Lady Hale sets out her dilemma at paragraph 117 of her speech.

Lords Hoffman, Hope and Mance had less difficulty with this, though, partly because the judgment in EB v France suggests Strasbourg has moved on since Fretté; and partly because, as Lord Hoffman argued (paras. 29-38 of his speech), there is no legal reason why British institutions should not go further than Strasbourg within the margin of appreciation, or why the courts should defer to Parliament in that situation. To cite his paragraph 37,

In such a case, it for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch.