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Mechanisms of influence

Mechanisms of influence. John Bell (Cambridge). Need to build a team. ECtHR is not integrated into judicial hierarchy decisions, as such, do not upset res judicata national courts can ’ t refer issues for decision National judges are front line implementers of Convention.

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Mechanisms of influence

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  1. Mechanisms of influence John Bell (Cambridge)

  2. Need to build a team • ECtHR is not integrated into judicial hierarchy • decisions, as such, do not upset res judicata • national courts can’t refer issues for decision • National judges are front line implementers of Convention

  3. Problems for national judges • To understand and emulate decisions and reasons • different style: how to read and then translate into national style • reasons for the reasons • assertion or justification? • formal or policy-based arguments? (Lasser) • Building commitment • divergent policy/interpretative choices • do they try to understand our decisions before they criticise them? • commissaire du gouvernement • Osman and Z v UK

  4. How does Strasbourg reach out? • Conferences by judges of ECtHR • part of judicial continuing education • chance for exchange of views • No forum for national and ECtHR judges to debate common problems • Visits to ECtHR, e.g. Lord Mackay • In short, insular, remote, relying on text of decisions

  5. Visits to national judges National judges visit court Secondment into cabinets at Court Explain decisions through Advocate-General and rapporteur Visits to national judges No budget for visits No cabinets, merely Registrar No Advocate-General, but independent opinions Luxembourg v Strasbourg

  6. Are national judges part of team? • Awareness through national training • Internal debate • Priority of national law? • Status conferred by applying European law • Natural instinct for conform interpretation • Ability to deliver changes • what can judges achieve? • when does it have to be left to legislator? • judges as agenda setter

  7. Team-work: Mutual Influence • Sources of ideas • European Convention needs to build on national concepts and ideas • Needs to produce autonomous ideas applicable in all systems • Benchmark: not lowest common denominator, but most effective • Communication/dialogue • How far are national judges inspired? • willingness to apply • spill-over effect • How far is ECtHR willing to respond to national judges?

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