ABSTRACT
This chapter considers how an increased role for consensus can promote a progressive interpretation of rights, including the right to liberty. This is rooted, first, in the argument that consensus cannot be used to regress rights (framed as the mandatory non-regression principle), and second, in the need to preserve the effectiveness of the rights of vulnerable groups, whose rights are particularly prone to societal shifts. Upholding the principle of non-regression guarantees that rights will not be weakened by reference to majoritarian preferences, allowing the Court’s review to reach beyond the ECHR to address any gaps in protection. The need to safeguard vulnerable groups, meanwhile, offers normative justification for turning to international standards where needed to advance rights and thereby ensure external harmonisation. Although a margin of appreciation is not always recognised under Article 5, the chapter shows its existence and elaborates how consensus can be used to determine the scope of this margin. The recognition of detainees as a vulnerable group moreover provides normative justification for incorporating international principles in Article 5 adjudication. Chapter 2 ultimately emphasises the potential of consensus to build a more consistent and evolutive body of minimum protections against arbitrary detention.
