Enhanced Subsidiarity and a Dialogic Approach—Or Appeasement in Recent Cases on Criminal Justice, Public Order and Counter-Terrorism at Strasbourg Against the UK?

摘要

This chapter is written against a back-drop of rising hostility to the ECHR in an increasingly nationalistic Britain which is currently confronting the threat represented by Russian action in Ukraine and the threat of ISIS expansion in Iraq and Syria. In that context, at present, the defence of British national sovereignty against encroaching European power so that government can take necessary measures to protect the public commends itself with particular force to some Parliamentarians, much of the media, and parts of the population.1udThis chapter considers the devices, including the principle of subsidiarity, and the notion of dialogue with domestic courts, that the Strasbourg Court is increasingly under pressure to employ in order to avoid head-on clashes with Britain in relation to especially sensitive issues. The discussion will be placed in the context of the Interlaken and Brighton declarations leading to Protocols 15 and 16 with a view to considering whether, or how far, the notion of ‘enhanced subsidiarity’, which underpins those declarations, is having an impact on some recent Court judgments, especially in the counter-terror context, as an example of an especially sensitive area of Strasbourg jurisprudence.