In Evans v. United Kingdom (appl. no. 6339/05), a tragic set of circumstances has occasioned judgments from the English Court of Appeal and from Strasbourg that are highly interesting from a methodological point of view. The judgments provide rare explicit judicial discussions of (a) the problem of incommensurability, and (b) the choice between rules and standards. The ECHR's choice for a "bright-line rule" - the first mention of this concept in ECHR case law - furthermore, is very uncharacteristic for this Court, which is generally so concerned with anti-formalism and consideration of all circumstances of each individual case.
At issue in the case was UK legislation allowing both men and women involved in an in vitro procedure to negate their consent at any time up to the moment of actual implantation of the embryo's in a woman's uterus. The applicant, Mrs. Evans, had been about to undergo an in vitro procedure when an advanced form of cancer was discovered that necessitated the removal of her ovaries. A number of her eggs could, however, be 'harvested' before this removal. At the advice of the hospital, these eggs were not stored as such, but fertilised with gametes from her partner, J, and only then frozen. When, two years later, their relationship broke down, J asked the hospital to destroy the stock of embryos, effectively ending Mrs. Evan's last hope of ever having a child that would be biologically hers.
The relevant UK legislation provided that both man and woman could at all times and in all circumstances go back on their given consent for use of embryos (up untill the moment of implantation). It was the inflexibility of this rule that was attacked by the applicant, both at the Court of Appeal and in Strasbourg, as a violation of her right to respect for her private life (art. 8 European Convention).
At the Court of Appeal, Thorpe LJ and Sedley LJ found that a rule making the withdrawal of consent non-conclusive and subject to external evaluation, would "diminish the respect owed to [J's] private life in proportion as it enhanced the respect accorded to hers". Furthermore, the judgment required under such a non-conclusive rule " would also require a balance to be struck between two entirely incommensurable things". For Lady Justice Arden, in this "sensitive area of ethical judgment, the balance to be struck between the parties must primarily be a matter for Parliament". She too refered to the problem of incommensurability, stating "it would be difficult for a court to judge whether the effect of [J's] withdrawal of consent on [the applicant] is greater than the effect that the invalidation of that withdrawal of consent would have on [J]. The court has no point of reference by which to make that sort of evaluation".
Incommensurability raises many fundamental questions in law and philosophy but is generally not dealt with explicitly by courts. Much of human rights law simply is based on the assumption that it must be possible for courts to make rational choices between incommensurable values or interests. It is therefore surprising to see the argument figure in this specific case, where one could argue that the balance to be struck between J and Mrs. Evans involved relatively comparable parameters. The Court of Appeal's judgment actually says as much: respect for J's private life would be diminished in proportion as respect for Mrs. Evans respect for private life would be enhanced. This is not to say that the argument from incommensurability, or the lack of a point of reference as Arden LJ put it, is valid, invalid or irrelevant. It is merely that if the argument is found so important in this case, it is easy to think of many other cases in which the balance to be struck arguably involves a much more complicated evaluation of relative weights.
At the ECHR, the main point of contention is the "bright-line rule" character of the UK provision on consent. The Court found this concept of a bright-line rule novel enough to keep using it in brackets until the very end of the judgment. And, as suspected, this is indeed the first time the concept is used in a judgment of the ECHR. Incidentally, the French version of the ruling uses the term "regle intangible". It seems that these two terms do not convey precisely the same meaning. Bright-line rule refers to a norm's form; the fact that it is observably cast in such a way as to allow for no exceptions. Intangible seems to refer to a norm's content; the content of the provision is such that exceptions should not be allowed. I cannot help the impression that the French expression has a larger degree of 'ought' - the norm has a certain quality and therefore should not provide for exceptions - than the English expression. (but I'd be happy to hear suggestions to the contrary!).
Be that as it may, the Court, uncharacteristically, finds that this strict quality of the British rule is not in violation of Article 8 of the Convention. The Court begins by noting that the legislation at issue "was the culmination of an exceptionally detailed examination of the social, ethical and legal implications" of developments in the field of human fertilisation. Next, in my view hinting to the unconventional nature of the ruling it is about to give, the Court "recalls that on several previous occasions it has found that it was not contrary to the requirements of Article 8 of the Convention for a State to adopt legislation governing important aspects of private life which did not allow for the weighing of competing interests in the circumstances of each individual case". Referring to the Pretty ('right to die') and Odievre (right to give birth anonymously) cases, the Court finds that "as in those cases, strong policy considerations underlay the decision of the legislature to favour a clear or 'bright-line' rule which would serve both to produce legal certainty and to maintain public confidence in the law in a highly sensitive field". The Court then adopts the English Court of Appeal's considerations on the points of incommensurability and danger of arbitrariness and inconsistency. Ultimately, "the absence of a power to override a genetic parent's withdrawal of consent, even in the exceptional circumstances of the present case, is [not] such as to upset the fair balance as required by Article 8".
By contrast, the dissenters (Judges Traja and Mijovic) argue for a "case specific test" which "should rely upon careful balancing of the private interests at stake with a view to protecting the essence of the rights from being destroyed". As Mrs. Evans did not have any other chance of having a genetic child, this balance should - in the circumstances of the case - have turned out in her favour.
As mentioned above, the approach of the majority is uncharacteristic of the ECHR. Very often, despite offering assuring statements on the need for deference to local (democratic) decision making (the 'margin of appreciation doctrine' , in particular) the Court resorts to case-specific balancing in which (virtually) all the circumstances of the case are taken into consideration. More generally, the Court often finds that the least that the 'fair balance' requirement - found to be inherent in the whole of the Convention - asks of the Member States is that their legislation provides for an adequate assessment of all relevant interests in individual cases and, if necessary, allow for exceptions. The principle of proportionality, often presented as the operationalisation of the 'fair balance' requirement, similarly points in the direction of particularistic decision making. Legislative schemes that do not offer sufficient opportunities to take individual situations into account, are labelled 'formalistic' and are judged to 'go beyond what is necessary in the circumstances of the case' to protect an otherwise legitimate governmental aim.
Both the substantive issue raised by the case and the methodological implications of rules versus standards generally are too complicated (for me) to evaluate here. With regard to the substance of the case; even The Economist, uncharacteristically, seems to refrain from offering an appraisal (See: 'Embryonic Conundrum', March 11-17, 2006). On the second issue, I can only suggest the following at this time. It seems that the Court's tolerance of 'bright-line' rules as applied to human rights will remain limited after Evans. But the case's explicit discussion of the concept may initiate a more extended and general judicial analysis of whether the the proportionality- and 'fair balance' dominated Strasbourg decsional model is able to accomodate rule-like norms and the advantages they sometimes offer, to a sufficient extent.
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Excellent post Jacco!
ReplyDeleteI am all in favour of the incommensurability discourse. I want to stress an important point, however.
To refuse to balance, does not imply that the only alternative option is to defer to more representative institutions.
The issue is even deeper than that. If we do acknowledge the existence of 'constitutional dilemmas' involving incommensurability, then what we are saying is that neither moral reasoning, nor legal reasoning can provide a satisfactory answer to that dilemma.
In this context, we cannot expect that a political institutions will be able to draw bright lines. What we have to acknowledge is the fact that rights discourse does not offer a solution to every problem. Secondly, we need to engage in a rethinking of bills of rights, one which take into account the possibility of conflicts among rights.
In order to understand constitutional dilemmas we will have to ask why we need law (or ethics) to solve them, as opposed to try and accept dilemmas as a constitutive part of our polity and identity.