Strasbourg's views on the modern mirror principle : Shattering the mirror?

Letwin, Jeremy (2023) Strasbourg's views on the modern mirror principle : Shattering the mirror? Public Law. pp. 628-649. ISSN 0033-3565

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Abstract

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.