Accepted author manuscript, 103 KB, Word document
Available under license: CC BY: Creative Commons Attribution 4.0 International License
Research output: Contribution to Journal/Magazine › Journal article › peer-review
Research output: Contribution to Journal/Magazine › Journal article › peer-review
}
TY - JOUR
T1 - Strasbourg's views on the modern mirror principle
T2 - Shattering the mirror?
AU - Letwin, Jeremy
PY - 2023/10/11
Y1 - 2023/10/11
N2 - I argue that the main line of European Court of Human Rights (ECtHR) jurisprudence counter-intuitively favours less strict adherence by national courts to its own jurisprudence than is favoured by UK courts. I identify four key justifications from the UK case law that have been used to support the contention that domestic jurisprudence should generally "mirror" ECtHR jurisprudence. I argue that the ECtHR’s conception of its own role, especially evident in its "procedural turn", is at odds with these four key justifications from the UK case law. I show how the ECtHR’s use of principles such as subsidiarity, incrementalism, the margin of appreciation, European consensus, and judicial dialogue, militate against any strong "mirroring" between domestic courts and the ECtHR, and point in favour of a more flexible approach unhindered by many of the hard and fast rules which have been developed by the UK courts in this area.
AB - I argue that the main line of European Court of Human Rights (ECtHR) jurisprudence counter-intuitively favours less strict adherence by national courts to its own jurisprudence than is favoured by UK courts. I identify four key justifications from the UK case law that have been used to support the contention that domestic jurisprudence should generally "mirror" ECtHR jurisprudence. I argue that the ECtHR’s conception of its own role, especially evident in its "procedural turn", is at odds with these four key justifications from the UK case law. I show how the ECtHR’s use of principles such as subsidiarity, incrementalism, the margin of appreciation, European consensus, and judicial dialogue, militate against any strong "mirroring" between domestic courts and the ECtHR, and point in favour of a more flexible approach unhindered by many of the hard and fast rules which have been developed by the UK courts in this area.
M3 - Journal article
SP - 628
EP - 649
JO - Public Law
JF - Public Law
SN - 0033-3565
ER -