The European Court of Human Rights' Margin of Appreciation and the Processes of National Parliaments
This article addresses how the processes of national parliaments feature in the ECtHR’s practice of affording states a margin of appreciation. The analysis is centred on a collection of recent case law, including prominent cases such as Animal Defenders International v United Kingdom and S.A.S. v France, which have been associated with a deepening of the Court’s concept of subsidiarity. Questions addressed include the following. How does the Court’s attention to the quality of parliamentary process relate to a theory of deepened subsidiarity? Which cases support the thesis of deepened subsidiarity in the context of parliamentary process? What is the scope of the Court’s concept of parliamentary process? What criteria have the Court used for assessing the quality of parliamentary process? And to what level of scrutiny have parliamentary processes been examined? A key argument is that although there is considerable ambiguity in how the Court depicts its engagement with the quality of parliamentary processes, the extent to which certain considerations and approaches are repeated across the case law makes it possible for a start to be made at outlining the subsidiarity-based framework that structures the Court’s assessment of national parliamentary processes.
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