Margin of Appreciation

The margin of appreciation is the space the European Court of Human Rights leaves to national authorities to make their own judgment calls about how to apply Convention rights within their own societies, rather than imposing a single uniform European standard on every question. As Lord Sales explained in a Supreme Court speech on the doctrine, 'the doctrine of the margin of appreciation is at the heart of the accommodation encapsulated in the case-law of the [European Court of Human Rights]' between a liberal tradition of individual rights and a tradition of democratic self-government — it is the mechanism that lets the Strasbourg Court respect national democratic choices without abandoning its supervisory role altogether.

The width of the margin is not fixed: it expands or contracts depending on what is at stake. Lord Sales set out the key factors: 'the width of the margin of appreciation narrows or expands depending on the strength of the individual interests at stake and the force of countervailing collective interests', with the margin tending to widen where legislation touches on sensitive and complex areas of social or economic policy, where opinions can reasonably differ in a democracy, or where the case raises sensitive moral or ethical questions. Conversely, a strong individual interest at stake — particularly a core Convention right — narrows the space given to national authorities.

Domestic courts apply an analogous concept when reviewing administrative decisions engaging human rights. Lord Justice Singh, in a public law lecture, described how a court assessing whether a decision-maker acted unreasonably must ask 'whether the decision-maker has exceeded this margin of appreciation', with the intensity of that review increasing where the human rights context is engaged — showing how the Strasbourg-originated concept has also shaped the domestic standard of review applied by UK courts to administrative decisions.