PluriCourts Lunch Seminar: Shaping Legislative Processes from Strasbourg

PluriCourts Lunch Seminar with Matt Saul.

Abstract:

The European Court of Human Rights’ (ECtHR/the Court) role as a facilitator of national protection of human rights is changing. Initially, the Court focused on the substantive embedding of European human rights in member states by giving meaning to the rights and obligations in the Convention.  Recently, the Court entered the ‘age of subsidiarity’, in which its focus is on ‘procedural embedding’.  By checking and valuing the quality of domestic processes, the Court incentivises domestic institutions to make use of its human rights tools and to become more active in the ECHR system.  This practice – referred to in this paper as active subsidiarity –extends to legislators.  Indeed, one of Judge Spano’s normative arguments in favour of the practice is that it will be democratic quality enhancing.  It will motivate fulfilment of the ‘human rights-oriented role of national parliaments in defining the domestic scale of rights protections subject to European supervision’,  engendering ‘democratic debate where reasonable minds may differ on the scope and content of the proposed policy’.  Scholars have made and examined the desirability of similar arguments from various perspectives. Yet the practice of active subsidiarity is controversial amongst judges and remains under examined from an empirical perspective.

 

To develop a platform for further reflection on the desirability and developmental prospects of active subsidiarity, this paper addresses how, when and in what manner the practice of active subsidiarity at the ECtHR affects the production of corrective legislation. The paper draws on available documents and a series of interviews with key actors to process trace the implementation of a most likely case for ECtHR impact: Lindheim v. Norway. The analysis shows how the ECtHR’s reasoning on the absence of an adequate balancing exercise led to an updating of the legislative process. To produce effects, the ECtHR’s reasoning interacted with a combination of rational calculations and elements of path dependence. The effects included more sustained attention to the rights issues in the expert committee charged with preparation of the legislation, but no direct attempt to stimulate more engagement with the rights issues by elected parliamentarians.

 

The paper’s findings have several implications for the viability of active subsidiary. In particular, it is contended that if the ECtHR is concerned about advancing the democratic quality of engagement with rights in legislative processes, it should consider domestic circumstances when it constructs active subsidiarity analysis.

 

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PluriCourts Lunch Seminars are a forum for pluridisciplinary discussion of core issues relating to international courts and tribunals. PluriCourts scholars or invited speakers present new and ongoing research or comment on current questions. The seminars are open to everyone.

Published Nov. 26, 2019 11:53 AM - Last modified July 20, 2020 1:04 PM