Sense and Sensitivity

Civitas, 17 February 2011

At first glance, a recent decision by the European Court of Human Rights (ECtHR) seems to challenge the flurry of accusations of judicial expansionism fired at the Strasbourg court over the past weeks. However, a closer reading reveals a troubling subtext which largely belies the laudable national sensitivity the Court purports to possess.

The facts of the case are simple. The applicant, Christopher Donaldson, was serving a 12 year sentence in HMP Maghaberry. As a republican prisoner, he was held in a segregated wing and had contact with other prisoners only in the visiting hall. On Easter Sunday 2008, Donaldson affixed a white Easter lily to his clothing, in commemoration of the republicans lost during the 1916 Easter Rising. When he refused to remove the lily, he was charged with disobeying a lawful order and given three days of cellular confinement.

The applicant claimed that the Northern Ireland Prison Service had violated his right to freely express his political beliefs and cultural identity (ECHR Art 10) and his right not to be discriminated against in his enjoyment of this right (ECHR Art 14 taken with Art 10).

Having progressed (albeit via a somewhat unconventional route) through the domestic court system, the Court of Appeal dismissed the Donaldson case on its merits. Dissatisfied with this decision, Donaldson went to Strasbourg. The ECtHR judgement appears to be profoundly well-reasoned. Dexterously striking the subtle balance between independent scrutiny and respect for the domestic ruling, the Court readily affords the UK the wide margin of appreciation the country was so palpably denied in Hirst.

Or at least it seems to. On a more careful reading, the supposedly self-denying ordinance of the Court is somewhat more tenuous. Far from acting with appropriate deference to the national decision maker, it seems that the ECtHR’s own view of the substantive issues conveniently coincide with those of the domestic court. The Strasbourg court “readily accepts” that the measure pursues a legitimate aim and largely echoes the finding of the Court of Appeal that the restriction was “a very minimal interference”, as prisoners could wear the flower in their cells. Similarly, both courts held that contact between segregated and other prisoners could not be excluded, and in any case there would always be contact with members of staff.

Moreover, the Easter lily emblem is so tightly wed to the very specific and complex history of Northern Ireland, it would be nigh on impossible to justly decide this case without a nuanced understanding of the very specific cultural context. The Court itself accepts that “in Northern Ireland many emblems are…inextricably linked to the conflict” and “have many levels of meaning which can only fully be understood by persons with a full understanding of their historical background” – an understanding which a Strasbourg-based panel, composed of judges from countries as diverse and distant as the Slovak Republic and Moldova (the presence of the UK representative Bratza notwithstanding) would be hard-pressed to claim for themselves. Indeed, the Court accepts largely without question the expert guidance of the Northern Ireland Equality Commission (ECNI).

This raises two main concerns. Firstly, it appears that the ECtHR will bend to national authority only when its hand is effectively forced by the facts. On a more constitutional line, it is paradoxical that a court which refuses to cede to the will of a sovereign Parliament (acting within the margin of appreciation), will grant such a high degree of deference to an unelected public body. This is not to dispute that the ECNI is best placed to offer guidance on this particular issue. However, national sensitivity should involve not only consideration of a country’s culture and history, but also respect for a country’s democratic decision making process. The Court must recognise that a democratically elected legislature “reflects political social and cultural values” no less than a non-departmental Commission.

The facts of Donaldson made consideration of the country’s peculiar history unavoidable in a way the facts of Hirst did not. It was for this reason the Court ostensibly defers to the domestic ruling in the more recent case. The European Court acted appropriately and proficiently in Donaldson, and full credit must be given for that. However, with ECtHR President, Jean-Paul Costa, lambasting the UK for its reticence to toe the Strasbourg line, it seems inevitable that fears of judicial imperialism will not readily be extinguished.