The "margin of appreciation"

.... is a legal term relating to the way in which the laws of the European Union are implemented in individual member countries. We do not hear very much about this concept from those who would rather represent the implementation of European laws in the UK as being "UK law being made in Brussels". It does not usually make its way into the media reporting of EU court judgements on instances of legal determinations that have been the subject of appeal in the European Court of Human Rights, though often the judgement of that European Court is less one that upholds the UK legal decision per se but rather one that says that the UK determination can stand because it lies within that "margin of appreciation". The idea of a "margin of appreciation" allows individual member states to enact legal provisions to implement European Union directives in a manner that reflects their own particular situations. This consideration, for example, can be found in the judgement of the European Court with regard to the Christian registrar who was subject to disciplinary action by Islington Council because she did not feel able to register civil partnerships. One can see the whole of the ECHR judgement, which brought together four different cases of Christians claiming discrimination on the grounds of their religion, here. Whilst is is worth reading the whole (OK, there is a lot of it!), n.106 of the judgement concluded, with regard to the Christian registrar (my italics added):

In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them. It cannot, therefore, be said that there has been a violation of Article 14 taken in conjunction with Article 9 in respect of the third applicant.

What has prompted this reflection is the controversy currently raging in the news media about a legal provision in the Russian Federation which makes it illegal to provide information about homosexuality to those under the age of 18. Some of the BBC reporting can be found here: Russian Duma passes law banning 'gay propaganda',  Q&A: Gay rights in Russia, Stephen Fry calls for Olympics ban over Russia's anti-gay laws. More recent reporting picks up its implications for sport: Yelena Isinbayeva says anti-gay remarks were 'misunderstood' (and the links to other reporting contained in this report).

I would ask three questions about the controversy with regard to the Russian legislation.

1. The BBC reporting readily identifies the legislation as being an "anti-gay law".  As reported, though, the terms of the law seem to have some comparability to Section 28 which used to apply in this country, a law which would now be characterised by the great and good as "anti-gay" but was actually expressed in terms that forbade the promotion of homosexuality by public bodies. The extent of the promotion of homosexual/LGBT culture in our country since the repeal of Section 28 (see, for example, Nick Clegg's observation with regard to the passing of a law allowing same-sex marriage, that he didn't believe we could have gone so far so quickly) is very telling. Does the characterisation of the Russian law as an "anti-gay law" and the mobilisation of the international gay lobby in the media represent an attempt to bring about exactly the same course of events in Russia as has happened here, that is, a legitimisation of a promotion of the acceptability of LGBT behaviours? If that is the case, does not Russian society have some entitlement to resist the promotion of that acceptability if it wishes to do so? [But note: resisting promotion is not to be equated with a campaign of persecution ... the two are not the same thing.]

2. As Stephen Fry suggests in his letter, there may well be a question to be asked about the purpose of those politicians who have taken the lead in enacting the Russian legislation, and its effect as a convenient scapegoating of a minority in Russian society. And there may also be a question about the effective rule of law in protecting all citizens of Russia, something which I expect has implications in other circumstances as well as that of violence directed against members of the LGBT community. If the passing of the law has legitimised this violence, then that needs to be the subject of media reporting and protest. However, to protest these concerns - and to publish the specific evidence of incidents and people as the human rights movement of the 1970's and 1980's did during Communist times - is one thing. To "picky back" on to that the same promotion of LGBT culture that we have seen in the developed nations of the West is something different. Whereabouts within this consideration does the campaign to move the winter Olympics sit? If it sits as a protest against a violation of the human rights of a section of Russian society, then I have no difficulty - or indeed hesitation - in supporting it. However, the added aspect of the promotion of LGBT culture is one that I will not support.

3. The third question is one I cannot answer without an understanding of the details of the Russian legislation, and I do not have that detailed understanding. If the Russian Federation were a member state of the European Union, would a judgement of the ECHR allow the law to stand as being within the margin of appreciation that would allow it as proportionate for the achievement of a legitimate aim in the particular situation of the Russian Federation?

[And, so far as I can tell from the BBC reporting (here and here) and a report on the Telegraph website (here), Yelena Isinbayeva has expressed what Rocco Buttiglione referred to in rather different circumstances as "the principle of non-discrimination" - indicating that the lifestyle choices of individual citizens should not be the subject of public scrutiny. That she has expressed a different view, as her own conviction, than some of her fellow athletes with regard to homosexuality .... why should she not have the freedom to express a different view? As Rocco Buttiglione suggested, the key issue in the public arena for the promotion of equality is that "principle of non-discrimination", not the holding of different views.]