Where next in judicial interpretation of section 2(1) of the Human Rights Act 1998?
MICHAEL LANGRIDGE
LLb LAW
04.04.2013

I hereby declare that this dissertation is my own work entire, that no part of it consists of the work of others, except where this is acknowledged, and that no part of it has been published.
Signed: _______________ Dated:_________

This dissertation is an examination of the judicial interpretation of Section 2 (1) of the
Human Rights Act 1998. It is argued that the instruction under that section ‘to take into account’ relevant jurisprudence of the European Court of Human Rights has been too narrowly construed, and that the judgement of Lord Bingham in Ullah v Special Adjudicator has been applied so as to stymie the development of domestic rights jurisprudence. It is further argued that the justifications commonly given for the adoption of this approach do not stand up to scrutiny. The most common justifications are therefore examined in turn. The final part of the dissertation suggests a more nuanced approach to rights adjudication under the HRA. This involves the Supreme Court entering into greater dialogue with Strasbourg, being more willing to depart from Strasbourg rulings, and being more prepared to innovate in novel situations over which the European Court of Human Rights has not ruled. It is submitted that this approach better serves the purposes of the Act to ‘bring rights home’, is less susceptible to many of the criticisms commonly made of the Act, and accords better with the requirements of the Ullah judgment when this judgement is read as a whole.

CHAPTER ONE The Ullah Principle: Origin, Development & Exceptions
1.1 Introduction – Origin and Development
1.2 Exceptions
1.2.1 The Margin of Appreciation
1.2.2 Pre-Empting Strasbourg
1.2.3 Eluding Ullah Altogether
1.3 Conclusions
CHAPTER TWO Justifying the Ullah Principle
2.1 The Nature of the Rights
2.2 Analysing Hansard
2.3 Uniformity
2.4 Compliance with International Obligations & Comity
2.5 Respecting the Constitutional Order of the UK
2.6 Conclusions
CHAPTER THREE An Alternative Approach
CONCLUSION
BIBLIOGRAPHY
3.1 Promoting Dialogue
3.2 Deriving Principles
3.3 Taken Together
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1.1 INTRODUCTION ORIGIN AND DEVELOPMENT
Entering into force on the 2 nd
December 2000, the Human Rights Act 1998 rights heralded a paradigm shift in domestic rights protection, no longer would domestic litigants be required to take the long road to Strasbourg,
1
rather, with ‘rights brought home’ the rights set out in the European Convention on Human Rights would be justiciable in the courts of the United
Kingdom.
2
Yet a curious orthodoxy has arisen in judicial interpretation under s2(1) of the HRA.
Under that section the House of Lords and the Supreme Court, 3 in considering the weight to be attached to Strasbourg jurisprudence when ‘determining a question which has arisen in connection with a Convention right are directed to simply ‘take into account’ the decisions of the European Court of Human Rights.
4
Yet from this ostensibly moderate instruction the UK
Court has issued a self-denying ordinance, that domestic, judicial human rights protection reflects only the protections given by Strasbourg in its interpretation of the Convention. Lord
Bingham, expressing the unanimous view of the House of Lords, held in R (on the
1 See; HL Deb 03 March 1999 vol 597 col 1657. See also the Bill of Rights: Select Committee Report
2 The long title to the HRA beginning ‘An Act to give further effect to rights and freedoms guaranteed under the
European Convention on Human Rights…’ (emphasis added).
3 Since these two institutions have both existed during the Ullah approach when reference is made to the UK’s highest court but without reference to a specific institution (i.e. the House of Lords or Supreme Court) it will simply be described as the UK Court.
4 Henceforth the ECtHR, or for some variation, the Strasbourg Court or Strasbourg. The court must consider not only ECtHR judgements under this section but also: Opinions of the Commission given in a report adopted under Article 31 of the Convention; decisions of the Commission in connection with Article 26 or 27(2) of the
Convention, and decisions of the Committee of Ministers taken under Article 46 of the Convention; whenever these were given provided they are of relevance to the question at hand.
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application of Ullah) v Special Adjudicator
5
that it is simply ‘the duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’. This famous doctrine appeared to ossify in the late Lord Rodger’s pithy dictum
‘ Argentoratum locutum, iudicium finitum’
– Strasbourg has spoken, the case is closed
6
.
In truth, the origins of what has been termed the ‘mirror principle’ 7 are found in two cases prior to Lord Bingham’s judgement in Ullah. In an early form it appeared in Brown v
Stott , 8 in which Lord Bingham reminded the court that the Convention ‘is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from "The heart-ache and the thousand natural shocks / That flesh is heir to."’
9
That is, that the rights protected by
Strasbourg are those which are fundamental to the preservation of the rule of law.
10
As such the judiciary ought to approach the question of interpretation of the rights under the
Convention with caution, lest Parliament be bound by obligations it did not intend to be bound by.
11
The first clear exposition of the doctrine was made by Lord Slynn in R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment,
Transport and the Regions .
12
He argued that:
[a]lthough the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights.’
5 R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323 [20] (Lord
Bingham).
6 Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269 [98].
7 This appellation was coined in Jonathan Lewis, ‘The European Ceiling on Human Rights’ (2007) PL 720, placing reliance on R (on the application of Quark Fishing) v Secretary of State for Foreign and Commonwealth
Affairs [2005] UKHL 57, [2006] 1 AC 529 [34] (Lord Nicholls).
8 Brown v Stott [2001] SC(PC) 43, [2003] 1 AC 681.
9 Brown (n8) 703. Quoting Hamlet Act 3, Scene 1.
10 Tom Bingham, The Rule of Law (Penguin, 2010) p66.
11 Brown v Stott (n8) [59].
12 R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295. [26].
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This approach is one that has persevered. Following Ullah , in R (on the application of Clift) v Secretary of State for the Home Department
13
Lord Hope was persuaded (albeit with some reluctance) that it was not open to the court to extend the protection under Article 14 of the
Convention in the context of a discriminatory measure in parole hearings under Article 5 on the basis that ‘Strasbourg jurisprudence has not yet addressed this question’. For that reason
‘[a] measure of self-restraint is needed, lest we stretch our own jurisprudence beyond that which is shared by all the states parties to the Convention.’ 14 Such reticence was shared by
Lord Hoffman in Secretary of State for the Home Department v AF (No 3) , 15 although the concern was that the court could not depart from the Strasbourg interpretation, this time in the context of the application of Article 6(1) in challenging a non-derogating control order
16
by way of proceedings employing closed material disclosed only to special advocates. He allowed the appeals of the persons concerned, but with ‘considerable regret’, 17
since the
Grand Chamber had, in A v United Kingdom ,
18 declared that the requirements of a fair hearing could never be satisfied if the decision was based ‘solely or to a decisive degree’ on closed material. Failing to adhere to the decision of Strasbourg under section 2(1), thus threatening a breach of the United Kingdom’s international obligations (despite a conviction that the decision of the ECtHR was wrong on the matter) was a not a proposition that the
House of Lords was prepared to countenance. Later, in Al-Skeini v Secretary of State for
Defence
19
Lord Brown argued for what has been termed the ‘heightened mirror principle’;
20
Lord Bingham’s dictum might well be rewritten as ‘no less, but certainly no more’ since there is an ever present danger of ‘the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly’.
21
With this Baroness Hale agreed, adding that ‘[i]f Parliament wishes to go further [than Strasbourg], or if the courts find it
13 R (on the application of Clift) v Secretary of State for the Home Department) [2006] UKHL 54, [2007] 1 AC
484.
14 Clift (n13) [48]-[49].
15 AF (No 3) (n6) [70].
16 Under the Prevention of Terrorism Act 2005.
17 AF (No 3) (n6) [70].
18 A v United Kingdom (2009) 49 EHRR 625.
19 Al-Skeini v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153.
20 Lewis, ‘Ceiling’ (n7) 727.
21 Al-Skeini (n19) [106].
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appropriate to develop the common law further, of course they may. But that is because they choose to do so, not because the Convention requires it of them.’
22
As a result of this line of reasoning, a ‘party unable to mount a successful claim in
Strasbourg can never mount a successful claim under … the 1998 Act’.
23
Informing this approach the court must: assess how a claim by the appellant, that his international law rights under… the
Convention had been violated by the United Kingdom, would fare before the
European court in Strasbourg. How would that court resolve… issues of international law?
24
In accordance with this view the HRA has therefore become ‘a remedial structure in domestic law for the rights guaranteed in the Convention’,
25
which Roger Masterman has criticised as
‘giving rise to the suggestion that the Act is no more than a cipher’.
26
Indeed in N v Secretary of State for the Home Department
27
Lord Hope held that the House of Lords must decline to rule in favour of the applicant because Strasbourg had not spoken clearly enough.
28
It was not for their Lordships: ‘to search for a solution to her [N’s] problem which is not to be found in the Strasbourg case law…We must take its case law as we find it, not as we would like it to be’. On these accounts one might choose to invert the words of Lord Rodger –
Argentoratum silens est, iudicium finutum – Strasbourg is silent, the case is closed.
22 Al-Skeini (n19) [90].
23 Quark Fishing (n7) [25] (Lord Bingham); [33]-[34] (Lord Nicholls); [88] (Lord Hope). Strictly speaking this part of the judgement relates to the co-extensiveness of the rights justiciable under the HRA and the Convention.
These rights are co-extensive in locus, but not temporally. Rights under the HRA only became justiciable on
02/10/2000, when the Act came into force. See Re McKerr [2004] UKHL 12, [2004] 1 WLR 807 [48]-[54]
(Lord Hoffman).
24 R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332 [55]
(Lord Rodger).
25 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004]
1 AC 546, 564, [44] (Lord Hope).
26 Rodger Masterman ‘Deconstructing the Mirror Principle’ (May 2012). The UK's Statutory Bill of Rights:
Constitutional and Comparative Perspectives (R Masterman and I Leigh (eds) (Proceedings of the British
Academy, 2013). Available at SSRN: http://ssrn.com/abstract=2084090. Accessed 05.01.2013
27 N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 AC 296 [25].
28 cf. the House of Lords decision in R (on the application of Animal Defenders International) v Secretary of
State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312 where the Court refused to apply an onall-fours decision of Strasbourg, preferring to apply a less similar case.
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It is suggested, therefore, that judicial interpretation of section 2(1), and the subsequent application and development of Lord Bingham’s
Ullah dictum has led to an unsatisfactory situation in which the House of Lords and the Supreme Court has acted with undue restraint when faced with issues not yet addressed by Strasbourg, thereby reducing effective domestic rights protection. Furthermore, the application of the ‘no more, no less’ direction has not, however, been uniform, nor has it been entirely predictable when the UK
Court will choose to follow or deviate from it.
1.2 EXCEPTIONS
Although the UK Courts has mandated adherence to the judgements of Strasbourg, it has developed exceptions to this doctrine, as envisaged by Lord Slynn’s ‘special circumstances’ derogation in Alconbury . These exceptions, discussed below, are important when weighed up against the justifications for the principle which, it is submitted, do not stand up to scrutiny.
1.2.1 THE MARGIN OF APPRECIATION
The doctrine of the margin of appreciation has arisen through the jurisprudence of the
ECtHR as a means of preserving the subsidiary function of the court
29
and allowing the national legislature a degree of latitude in securing the rights and freedoms under the
Convention in accordance with the particular cultural proclivities and heritage of a given member state.
30
Since the obligation to ensure adequate protection of rights under the Convention is divided between national authorities and Strasbourg, with the national authorities responsible for protection of liberties and the ECtHR responsible
29 That is, it is principally up to national authorities to secure the rights under the Convention, and that
Strasbourg is not a ‘court of fourth instance’, for a recent example see Minshall v United Kingdom (2012) 55
EHRR 36, para 58.
30 S & Marper v United Kingdom (2008) EHRR 1581, para 102. ‘The breadth of this margin varies and depends on a number of factors including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual's effective enjoyment of intimate or key rights.’ See also
Connors v United Kingdom (2004) 40 EHRR 9, paras 27 & 82; Evans v United Kingdom (2007) 46 EHRR 34, para 77; Dickson v United Kingdom (2007) EHRR 150, para 78.
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for oversight,
31
the margin delineates the respective areas of competence between the two and balances their competing interests.
32
Thus, in pursuance of the principle of subsidiarity, the ECtHR has expressed that: the Court cannot disregard those legal and factual features which characterise the life of the society in the State … it cannot assume the rôle of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention.
The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the conformity of these measures with the requirements of the Convention.
33
The margin is ordinarily utilised only for the extension of restrictions on rights
34
that are afforded to member states by permissible derogations under the articles of the Convention.
35
Therefore:
[b]y reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements
31 Of course, the enforcement mechanism of ECtHR is particularly weak. Under Article 46 of the Convention member states must ‘abide by’ rulings against them, under the supervision of the Committee of Ministers.
32 Richard Clayton and Hugh Tomlinson, The Law of Human Rights vol 1 (2 nd edn, Oxford 2009) 6.42
33 Belgian Linguistic Case (No 2) (23 rd July 1968) (1979-80) 1 EHRR 252, para 10.
34 Under Article 53 of the Convention, the states are free to secure rights more extensively than provided for in the Convention itself. However for an early exposition of the obverse of the margin see R (on the application of
S) v Chief Constable of the South Yorkshire Police (2002) EWCA Civ 1275, [2002] 1 WLR 3223 [34] (Lord
Woolfe): ’[J]ust as in the appropriate circumstances a margin of appreciation has to be extended for any shortcomings in this jurisdiction in relation to observing the Convention, so there can be situations where the standards of respect for the rights of the individual in this jurisdiction are higher than those required by the
Convention. There is nothing in the Convention setting a ceiling on the level of respect which a jurisdiction is entitled to extend to personal rights.
35 For example, Article 10 (Freedom of Expression) is subject to limitations under Article 10(2) ‘as prescribed by law’ which are ‘necessary’ for national security, etc.
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[of societal values] as well as on the 'necessity' of a 'restriction' or 'penalty' intended to meet them.
36
However, despite the margin of appreciation ordinarily representing a discretion for the reduction of liberties secured under the Convention the by domestic authorities, the UK Court has found itself able to give more generous interpretations of the rights than have otherwise been given in different member states. In an earlier interpretation of the doctrine Lord Mance argued that argued that: the . . . ‘margin of appreciation’ . . . is . . . to be understood in another sense, as referring to the freedom of national courts, or member states, to provide for rights more generous than those guaranteed by the Convention, though not as the product of interpretation of the Convention.
37
Yet the court has recently taken rather a different tack, creating an exception to the ‘no more, no less’ rule under the Convention. In
Re G (Adoption: Unmarried Couple)
38 the House of
Lords was seized of the issue of whether a provision under subordinate legislation
39
that automatically precluded adoption by unmarried couples was contrary to Articles 8 and 14 of the Convention. The applicants in that case were an unmarried heterosexual couple; the woman the natural mother of the child. The starting point for the Court was determining that
‘in general terms, married couples are more likely to be suitable adoptive parents than unmarried ones…’ but that this could not be ‘rationally elevated to an irrebuttable presumption of unsuitability’.
40
The issue of restrictions on adoptions based on such
‘irrebuttable presumptions’ had been discussed in two Strasbourg cases, though both of these related to blanket restrictions on adoption by homosexual persons. In the first of these,
Fretté v France , 41 the ECtHR held that the French authorities’ decision to prevent a man from adopting on the sole consideration of his sexuality was within the margin of appreciation
36 Handyside v United Kingdom (1979-80) 1 EHRR 737 para 48. It is not an unfettered discretion. The ECtHR will do more than ensure the respondent state acted in good faith, rather it will seek to determine whether the restriction is ‘legitimate to the aim pursued’. See also Vogt v Germany (1996) 21 EHRR 205 para 52(iii).
37 Secretary of State for Work and Pensions v M [2006] UKHL 11, [2006] 2 AC 91 [136] (Lord Mance).
38 Re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2008] 3 WLR 76.
39 Within the meaning of s21(1) HRA. In this case Adoption (Northern Ireland) Order 1987 (SI 1987/2203).
40 Re G (n38) [18] (Lord Hoffman).
41 Fretté v France (2002) 38 EHRR 438.
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afforded to the state on the basis that there was no common ground between states.
42
In the second, EB v France ,
43
a homosexual woman, who was in a relationship, was prevented from adopting on the basis of her sexuality. In EB , however, Strasbourg held that the ban was a breach the applicant’s rights, the implication of which was to overrule the Fretté
decision.
44
The lack of clarity in the ECtHR 45 persuaded their Lordships that the Northern Irish provisions may have been within the margin, (even though, in the alternative, was likely that
Strasbourg would find a breach).
46 Thus, if it was in the margin, the court may nonetheless determine that there had been an infringement because the remarks in Ullah were ‘not made in the context of a case in which Strasbourg has declared the matter to be within the margin’.
As such ‘the question is one for the national authorities to decide for themselves… [therefore] it follows that different member states may well give different answers.’
47
It therefore falls upon the UK Court in such cases, as the ultimate safeguard in rights protection,
48
to determine the correct interpretation of the right whenever the issue in question falls within the expertise of the court rather than the legislature.
49
42 Fretté (n41) paras 36-41. On this point Judge Rozakis describes the margin of appreciation as ‘a vehicle of judicial restraint limiting the spectrum of ECtHR interference in certain matters to an external review of the compatability of the domestic acts with the convention… A state party has a wider margin of appreciation to construe its obligations whenever there is no established European consensus delimiting a right’ Christos
Rozakis, ‘The European Judge as Comparatist’ (2005) 80 Tulane Law Review 257, 273.
43 EB v France (Application No 43546/02) (unreported) 22 January 2008.
44 EB (n43) dissenting opinion of Judge Costa, para 3.
45 The judgements of the courts were split in both cases. For example, in EB Judges Costa, Türmen,
Ugrekhelidze, Jočienė, as well as Judges Zupančič, Loucaides and Mularoni, expressed dissenting opinions, finding the measure to be within the margin but on the basis that it related to marital status, rather than sexuality.
46 Re G (n38) [27] (Lord Hoffman) but see the dissenting opinion of Lord Walker who held that it would be far from clear that such a breach would be established having regard to Northern Irish heritage [82].
47 Re G (n38) [31] (Lord Hoffman) This reasoning is predicated on the decision of Lord Steyn in R (on the application of S & Marper) v Chief Constable of South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196
[27] where he held that cultural traditions are material in considering the objective justifications for the limitations of a right, whereas the content of the right requires to be determined by the Strasbourg Court.
48 Re G (n38) [48] (Lord Hope).
49 Re G (n38) [48] (Lord Hope): ‘the best guide as to whether the courts should deal with the issue is whether it lies within the field of social or economic policy on the one hand [in which case it is a matter for the legislature] or of the constitutional responsibility which resides especially with them on the other… Cases about discrimination in an area of social policy… will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the
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Critically, the margin of appreciation exception rests on the distinction between domestic rights under the Human Rights Act, which are consonant with those under the
Convention, and the Convention rights themselves.
50
Where the Strasbourg court intentionally gives no guidance, and because the rights exist as a ‘remedial structure’ in domestic law, the courts have substantially greater freedom in interpretation since it is the domestic courts’ ‘first duty to give effect to the domestic statute according to what they consider to be its proper meaning, even if its provisions are in the same language as the international instrument which is interpreted in Strasbourg’.
51 Therefore in Re G it was possible for the House of Lords to give an expansive definition to the content of the right and a restrictive interpretation of the limitation.
52
Of course, the margin of appreciation attaches only to qualified rights, therefore under this exception the UK Court has no opportunity to deviate from rulings of Strasbourg in domestic cases involving absolute rights. Such a situation would of course only be desirable where the UK Court felt that the Strasbourg ruling was too restrictive.
1.2.2 PRE-EMPTING STRASBOURG
As was the case in Re G , the UK Court has been prepared to make an educated guess at how
Strasbourg would likely treat the case if it were to reach that court. After all, the discussion risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen.’
The power of the court is to so adjudicate is heightened by the provisions under s.6 of the HRA, which requires all public authorities, including courts, to act in accordance with convention rights. See also Kay v Lambeth
London Borough Council [2006] UKHL 10, [2006] 2 AC 465 [44] (Lord Bingham). On institutional competence see R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 381 (Lord Hope).
Aileen Kavanagh has suggested that the House acted the way it did as their Lordships ‘may not have been confident that the Northern Ireland Assembly would succeed in passing legislation to reform the adoption law’-
Aileen Kavanagh, ‘Strasbourg, the House of Lords or Elected Politicians: Who decides about rights after Re
P?’(2009) 72(5) MLR 828, 842.
50 Re G (n38) [36] (Lord Hoffman). See also Re McKerr (n22) [63] (Lord Hoffman).
51 Re G (n38) [34] (Lord Hoffman).
52 Re G (n38) [38] Lord Hoffman argues that distinction means that the three typical reasons that usually dictate mirroring approach (uniformity across member states, treaty interpretation, and supranational comity) are not applicable in a case concerning the margin of appreciation, since they are necessarily obviated by the discretion
Strasbourg allows the domestic authorities.
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over the applicability of the margin was obiter , and as Lord Hoffman made clear he felt that it was eminently likely that, should the margin not apply, the court ought to proceed on the basis that Strasbourg would inevitably find an infringement, despite earlier judicial suggestions that the court should not do so.
53
Conversely, in the context of recently passed legislation deference to Parliament is due, thus when the UK Court ‘can reasonably predict that Strasbourg would regard the matter as within the margin of appreciation… [the court] should not attempt to second guess the conclusion which Parliament has reached’.
54
However, the extent to which the court is prepared to beat Strasbourg to the punch where the margin of appreciation is not likely to be applicable is limited. Baroness Hale stated in R (on the application of Gentle) v Prime Minister
55
that since the House of Lords was ‘interpreting the Convention rights in the light of the jurisprudence of Strasbourg as it evolves over time’ it was ‘not free to foist upon Parliament or upon public authorities an interpretation of a Convention right which goes way beyond anything which we can reasonably foresee that Strasbourg might do.’ Indeed Lord Rodger’s latin scholarship arose in AF (No. 3) only as a result of the absolute certainty of the House that, were the case to be appealed to the ECtHR, it would not go in the Government’s favour.
56
As has been argued above, where the Strasbourg Court does not speak authoritatively on in issue in a ‘clear and constant’ voice the UK Court will not be prepared to make any such leap, thus the utility of this exception is so narrow that it is hardly likely to be employed at all.
57
1.2.3 ELUDING ULLAH ALTOGETHER
A third exception to the ‘no more, no less’ Ullah dictum is found in a small number of cases in which the UK Court has given no attention to the exigencies of the principle whatsoever, and, unconstrained, has gone beyond what Strasbourg has held to be the proper delineation of a right.
53 See M (n38) [30] (Lord Nicholls).
54 R (on the application of Countryside Alliance v Attorney General [2007] UKHL 52, [2007] 3 WLR 922 [126].
(Baroness Hale). She did however make it clear that this was strictly in accordance with the Ullah principle.
55 R (on the application of Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356 [56].
56 AF (No 3) (n6). See for example: [121] (Lord Brown); [108] (Lord Carswell); [88] (Lord Hope); [70]-[74]
(Lord Hoffman).
57 Jonathan Lewis argues that the circumstances in which exception on the basis of pre-empting Strasbourg may operate is so narrow that its very existence is ‘doubtful’, see ‘Ceiling’ (n7) 731.
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In EM (Lebanon) v Secretary of the Home Department
58
the House of Lords considered whether there would be a flagrant breach, or nullification of the essence, of
Article 8 and 14 of the Convention by returning a mother and her son to Lebanon, where they had previously escaped as fugitives from Shari’a law. The Lebanese law further provided that upon the a child attaining the age of seven, following the divorce of a married couple, physical custody of the child would transfer to the father or to a paternal male relative, thereafter the mother could have no right to custody under any circumstances, and few (if any) rights of supervised visitation. He had since reached that age since entering the United
Kingdom. In terms of the Ullah judgement this was a foreign case.
59
Under the Strasbourg jurisprudence there would be no obligation on the state to allow the applicant to remain even, when the application regarded an unqualified right,
60
except in exceptional circumstances
61 which presented a ‘real risk of a flagrant denial’ 62
of the rights of the applicant. Strasbourg had further held in F v United Kingdom
63 that when a case concerned a qualified right (in that case Article 8 again) that it ‘cannot be required that an expelling contracting state only return an alien to a country which is in full and effective enforcement of all the rights and freedoms set out in the Convention.’
64
Moreover, prior to EM there was no case in any of the
Strasbourg jurisprudence in which the ECtHR had found such a flagrant breach in respect of
Article 8.
65
Yet the House of Lords extended the protection under the ‘flagrant/nullification’ test to the applicant even though, as Lord Bingham pointed out, Lebanese ‘family law reflects
58 EM (Lebanon) v Secretary of the Home Department [2008] UKHL 64, [2009] 1 AC 1198. This was the last case on which Lord Bingham sat before his retirement. Ullah is discussed in EM , not in the context of the mirror principle but in the meaning of the word ‘flagrant’ as a threshold test.
59 Ullah (n5) [9] (Lord Bingham). That is, one in which the respondent state brings about a violation of the
Convention by a third party state (even one which is a non-signatory to the Convention). A domestic case is thus defined as on in which the respondent state has of will commit a violation on of one of the directly articles vis-àvis its own actions.
60 See N v United Kingdom (2008) 47 EHRR 885, para 42. The case concerned a woman suffering from AIDS who claimed that to be deported to Uganda would be to subject her to ‘inhuman or degrading treatment’. The court ruled her case inadmissible as the Convention was not intended to address economic and social disparities between states.
61 N (n60) para 42. See D v United Kingdom (1997) 24 EHRR 423 for such circumstances.
62 The word ‘flagrant’ was first used in Soering v United Kingdom (1989) 11 EHRR 439, para 113.
63 F v United Kingdom (Application No 17341/03) (unreported) 22 June 2004.
64 F (n63) para 88.
65 For example, Al-Nashif v Bulgaria (2002) 36 EHRR 655.
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a religious and cultural tradition which, in one form or another, is respected and observed throughout much of the world. This country has no general mandate to impose its own values on other countries who do not share them.’
66
Her return could only be described as a breach
‘of the life she now lived’.
67
Similarly, the House of Lords held in the earlier case of R (on the application of
Limbuela) v Secretary of State for the Home Department
68
went beyond Strasbourg, apparently creating positive socio-economic rights by their interpretation of Article 3 of the
Convention, 69 which, once more, were not to be found in contemporaneous Strasbourg jurisprudence. Rather, it had previously asserted the denial of such rights.
70
The applicants were asylum seekers for whom accommodation and other financial support
71
was refused.
72
As a result the applicants were left destitute. The ECtHR had described the terms of Article 3
‘as imposing a primarily negative obligation on states to refrain from inflicting serious harm on persons within their jurisdiction’.
73
But once more their Lordships went further, as Lord
Bingham explained:
The fact that an act of a positive nature is required to prevent the treatment from attaining the minimum level of severity which engages the prohibition does not alter the essential nature of the article. The injunction which it contains is prohibitive and the prohibition is absolute. If the effect of what the state or the public authority is doing is to breach the prohibition, it has no option but to refrain from the treatment which results in the breach. This may mean that it has
66 EM (n58) [42] (Lord Bingham).
67 EM (n58) [41] (Lord Bingham).
68 R (on the application of Limbuela) v Secretary of State for the Home Department [ 2005] UKHL 66, [2006] 1
AC 396. In this case there was no discussion of Ullah in any respect.
69 See Baroness Hale ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’(2012) 12(1) HRL
Rev 65, 72.
70 In relation to an Article 8 claim Strasbourg has said ‘It is important to recall that article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right… Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.’ See Chapman v United Kingdom (2001) 33 EHRR 399, para 99.
71 Under section 95 of the Immigration and Asylum Act 1999.
72 This was on the ground that they had not claimed asylum as soon as reasonably practicable after their arrival in the United Kingdom in accordance with s55(1) of the Nationality, Immigration and Asylum Act 2002, and support was not necessary to prevent a breach of their Convention rights under s55(5).
73 Pretty v United Kingdom (2002) 35 EHRR 1, para 49.
12

to do something in order to bring that about. In some contexts rights which are not expressly stated in the Convention may have to be read into it as implied rights.
74
However, the interpretation of the term ‘treatment’ under Article 3 was important in this case. Were it not for the presence of the statutory regime, the applicants would have had provision of accommodation and welfare benefits, and it was therefore treatment for the purposes of the Convention by way of specific exclusion. In this respect it is arguable that their Lordships created no positive rights, as Baroness Hale has suggested they did,
75
rather they merely removed unfair conditions of access. But what is certain is that at the very least they expanded the meaning of ‘inhuman and degrading’ treatment beyond what Strasbourg had previously held.
76
1.3 CONCLUSIONS
The description of the circumstances in which the court will go beyond the framework established by Strasbourg as ‘exceptional’ is wholly apposite; it is indicative of the extremely strong presumptive weight the UK Court puts upon the decisions emanating from Strasbourg. This is unlikely ever to allow a body of discrete rights beyond those provided for by Strasbourg to develop, such is the rarity of these circumstances. Yet the justifications given for this approach are often not substantiated, and the most common of these are discussed in the next chapter.
74 Limbuela (n68) [47] (Lord Bingham). In so doing he rejected Laws’ LJ ‘spectrum analysis’ in the Court of
Appeal which resulted in a finding for the Secretary of State. This analysis drew a distinction between
‘absolutely prohibited acts of violence and decisions in the exercise of lawful policy’, which would only infringe
Article 3 if they inflicted ‘so high a degree of suffering that the court is bound to limit the state’s right to implement the policy.’ See R (on the application of Limbuela) v Secretary of State for the Home Department
[2004] EWCA Civ 540, [2004] QB 1440 [63]-[73] (Laws LJ).
75 Hale, ‘Argentoratum’ (n69) 72.
76 Linbuela (n68) [101] Lord Brown. See O'Rourke v United Kingdom (Application No 39022/97) (unreported)
26 June 2001 where it held that 14 months of homelessness was not sufficiently severe to engage article 3.
13

As Lord Elias points out there is nothing in the language of section 2(1) that would support an ‘autonomy model’ of domestic human rights that would give rise to British judges
‘stepping where Strasbourg fears to tread’.
77 But equally, there is nothing to suggest that the model currently employed by the UK Court is to be preferred, though the judgements of the
UK Court are replete with justifications. These will therefore be considered in turn.
2.1 THE NATURE OF THE RIGHTS UNDER THE HRA
The rights under the Convention and the Human Rights Act are not the same. In Ullah Lord
Bingham argued that Lord Slynn’s
Alconbury direction reflected ‘the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court’.
78
This has, however, been misconstrued. Aileen
Kavanagh, for example, takes this as a justification of the ‘no more, no less’ dictum on the basis that the rights under the HRA consequently have ‘dual status’.
79
As such, the UK Court is therefore being required to ‘give a ruling on the UK’s [international] obligations under the
Convention’.
80
But this is not the case: although the rights are framed in the same terms they co-exist independently of each other, as Lord Nicholls stated in Re Mckerr :
81
77 Lord Elias, ‘The rise of the Strasbourgeoisie: judicial activism and the ECHR’ (Statute Law Society Annual
Lord Renton Lecture, Institute for Advanced Legal Studies, London 24 November 2009) 9, 11-12. Available at
<http://www.statutelawsociety.org/__data/assets/word_doc/0019/85321/EliasLectureSLS24.11.09FINAL.doc> accessed 26/02/2013.
78 Ullah (n5) [20]. See also N (n27) [21] (Lord Hope).
79 Kavanagh ‘Who decides?’ (n49) 834.
80 Kavanagh ‘Who decides?’ (n49) 834.
81 Re McKerr [2004] UKHL 12, [2004] 1 WLR 807 [63]. See also [128]-[129] (Lord Mance).
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[t]wo sets of rights now exist side by side. But there are significant differences between them. The former existed before the enactment of the 1998 Act and they continue to exist. They are not as such part of this country's law because the
Convention does not form part of this country's law.
Indeed, it is well established that treaties do not form part of the corpus of the domestic law without express statutory incorporation
82
(as is the case with the HRA) and as Lord Hoffman explained in R v Lyons : 83
Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so.
84
Moreover, where the UK Court does interpret a statute in accordance with an international obligation established under a treaty, as it will where it can,
85
that does not amount to the incorporation of the terms of the international treaty into domestic law.
86
Furthermore still, this principle of statutory interpretation cannot be used as a means to interpret the words of section 2(1) such as to bind the UK Court, or at least, to mandate that the content and scope of the rights are given precisely the same meaning as to do so would fundamentally alter the language used in the Act itself, which is unwarrantable.
87
Lord Scott recognised the
82 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Others and Related Appeals [1990] 2
AC 418, 500 (Lord Oliver): ‘[A]s a matter of the constitutional law of the United Kingdom, the Royal
Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of
Parliament. Treaties, as it is sometimes expressed, are not self-executing.’
83 R v Lyons [2003] 1 AC 976 [27].
84 See also Re G (n38) [34]-[35] (Lord Hoffman).
85 Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (HL) 283 (Lord Goff): ‘In any event I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the
Crown under this treaty [the ECHR].’
86 R v Secretary of State for the Home Department, ex p Brind and Others [1991] 1 AC 696 (HL) 748 (Lord
Bridge)
87 Brind (n86) 718 (Lord Donaldson). See also Garland v British Rail Engineering [1983] 2 AC 751 (HL) 771
(Lord Reid).
15

discrepancy between the rights in R (on the application of Animal Defenders International) v
Secretary of State for Culture, Media and Sport
88
(although he does misuse the incorporation metaphor). He argued:
The possibility of such a divergence is contemplated, implicitly at least, by the
1998 Act… The incorporated articles are not merely part of domestic law. They remain, as they were before the 1998 Act, articles of a Convention binding on the
United Kingdom under international law. In so far as the articles are part of domestic law, this House is… the court of final appeal whose interpretation of the incorporated articles will, subject only to legislative intervention, be binding in domestic law. In so far as the articles are part of international law they are binding on the United Kingdom as a signatory of the Convention and the
European Court is, for the purposes of international law, the final arbiter of their meaning and effect.
89
It is also the case that Convention provisions, and subsequent interpretative limitations placed upon them by Strasbourg judgements, cannot enter the domestic judicial sphere by way of customary international law (CIL), as Lord Steyn suggested they might in
Re Mckerr
. He argued that ‘human rights treaties enjoy a special status’ 90
and since:
‘treaties may generate rules of customary international law: the accepted view that unenacted treaties ‘cannot be a source of rights and obligations’ in England is thus effectively sidestepped.’ 91
While this is the case, the rulings of Strasbourg on the interpretation of the Convention, as a supranational treaty body, 92 are not, in general, constitutive of CIL (and even if the terms
88 n28.
89 Animal Defenders (n28) [45].
90 Citing: Murray Hunt, Using Human Rights Law in English Courts (1998) pp 26-28. This is a point Philip
Sales QC vociferously refutes, see Philip Sales QC and Joanne Clement, ‘International Law in Domestic Courts: the Developing Framework’ (2008) 28 LQR 388, 398-400.
91 Citing: Andrew J Cunningham, ‘The European Convention on Human Rights , Customary International Law and the Constitution’ (1994) 43 ICLQ 537. See R R Baxter, ‘Multilateral Treaties as Evidence of Customary
International Law’ (1965-1966) 41 BYBIL 275 for a full discussion.
92 Under Article 32 of the Vienna Convention on the Law of Treaties 1969, decisions of a treaty body can be indicative of a state practice, but for the foregoing reasons it is submitted that this is not the case with respect to the ECtHR.
16

alone of the Convention at least were held to be customary, they are already enumerated in the HRA itself). CIL requires state practice and opinio juris (that states accept the practice as being required by law).
93
However the rulings of Strasbourg are not necessarily evidence of state practice.
94
But even if the adoption of a ruling of the Strasbourg Court by the member states is accepted as subsequent evidence of developing state practice, with respect to the fact that the state practice is thereafter altered, it extends only to the practice of the 47 member states, not all of which do alter their practice following a judgement.
95 Furthermore, the factual specificity 96 of the Strasbourg judgements would be insufficiently indicative of a normative change of the gravity to be recognised as a new customary rule.
97
Although there are a few instances where the ECtHR can be said to have identifying new regional customary rules,
98
it does so principally as a consequence of its comparative method,
99
and these tend to be basal. For instance, in Al-Sadoon v United Kingdom
100
Strasbourg held that although the derogation under Article 2 permitting the death penalty was still contained in the Convention,
CIL among the member states rendered such practice impermissible. Conversely in Schalk &
93 See the North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark and Netherlands) 1969
ICJ 3; Nicaragua v USA (merits) ICJ Rep 1986 14 [97].
94 International Law Association, ‘International Human Rights Law and Practice: Final Report on the Impact of
Findings of the United Nations Human Rights Treaty Bodies’ (Berlin Conference 2004) paras 15-19, 39.
Available at <http://www.ila-hq.org/download.cfm/docid/3B0BF58A-C096-4113-830E8E1B5BC6DEC5> accessed 26.02.2013.
95 i.e. there is a commonly a persistent objector, for example following Hirst v United Kingdom (No 2) (2005)
ECHR 681 the UK has continued to object to a prohibition on a blanket ban on prisoner voting. The UK intervened as a third party in the later case Scoppola v Italy (No 3) [2012] ECHR 868 in which the Grand
Chamber held that although a blanket ban on prisoner voting exceeded the margin of appreciation afforded to states, a partial ban set down in ‘bright line’ terms in an act of Parliament would be acceptable.
96 The judgements of the Strasbourg Court are essentially declaratory in nature, particularly admissibility decisions. See David Harris, Michael O’Boyle, and Colin Warbrick, Law of the European Convention on
Human Rights (Butterworths 1995) 26.
97 There are few instances where the ECtHR can be said to be identifying new regional customary rules, and it does so principally as a consequence of its comparative method. See Stec (n141) below.
98 Regional custom can exist down to the level of the interaction between two states alone. See Right of Passage over Indian Territory (Portugal v India) 1957 ICJ 3.
99 See Stec (n141) below.
100 Al-Sadoon v United Kingdom [2009] ECHR 1040. See also Öcalan v Turkey [2005] ECHR 282; Soering v
United Kingdom (1989) 11 EHRR 439.
17

Kopf v Austria
101
the ECtHR could not find sufficiently wide evidence of state practice establishing as a right the legal recognition of same-sex relationships. In any event, as Lord
Bingham held in R v Jones (Margaret) ,
102
CIL is no longer directly incorporated into the body of domestic common law. Rather, it merely forms the basis by which there might be future development.
103 As such, customary international law will not necessarily influence the common law as far as the development of Convention rights is concerned. This, of course, is not to say that the development of human rights is ignorant of CIL as the ECtHR itself will takes account international law in determining the meaning of the words of the
Convention
104
which may subsequently be adopted (or not) by domestic courts.
Of course, ultimately, each contracting state is free to develop rights further than
Strasbourg,
105
as provided for by Article 53 of the Convention itself. However there is no reason, either emanating from domestic or international law, by which the UK Court need treat itself as bound by the Strasbourg jurisprudence and be timid in developing municipal rights under the HRA. Nevertheless, the domestic courts have consistently held that:
‘Parliament clearly intended that... the width of the rights recognised in the
United Kingdom courts should be consistent with the scope of the relevant rights accepted in Strasbourg.’
106
The next section will therefore seek to refute such claims by examining the legislative history of the Act.
101 Schalk & Kopf v Austria [2010] ECHR 995, para 105.
102 R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136 [11]. Lord Bingham observed: ‘There seems to be truth in Brierly’s contention (“International Law in England” (1935) 51 LQR 24, 31) also espoused by the appellants, that international law is not a part, but is one of the sources, of English law. There was, however, no issue between the parties on this matter, and I am content to accept the general truth of the proposition’.
103 See also Sales and Clement, ‘Framework’ (n90) 413-414.
104 ‘[T]he Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law.’ See Neulinger v Switzerland (2010) 54 EHRR 1087, para 131.
105 Indeed Strasbourg does not concern itself with which institution does so, the courts, the executive or the legislature. See Re G (n38) [32] (Baroness Hale).
106 R (on the application of Al-Jeddah) v Secretary of State for Defence [2005] EWHC 1809, [2005] HRLR 39,
[50] (Moses J].
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2.2 ANALYSING HANSARD
It is specified under section 1(1) of the Act that: ‘the Convention rights means the rights and fundamental freedoms set out in a) Articles 2 to 14 of the Convention b) Articles 1 to 3 of the
Convention’, and ‘c) Article 1 of the Thirteenth Protocol’ all as read with Articles 16 107
to
18 108 of the Convention. Meanwhile, under section 21 it is stipulated that: ‘‘The Convention’ means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time being in relation to the United Kingdom’. That the Act cleaves to the Convention is unquestionable, and this is would appear to support the approach the UK Court has taken.
However, the text of each right is appended by to the Act under schedule 1 by section 1(3), and two distinct differences can be outlined between the Convention rights and those under the Act. Firstly, no right equivalent to those under Articles 1 or 13 of the Convention is contained in schedule 1.
109
Secondly, under sections 12 and 13 the Act, applicants are offered greater protection (in relation to right to freedom of expression and freedom of religion) than is otherwise apparent under the Convention. Additionally, under section 6, the courts are required to act in accordance with Convention rights. It would make no sense at all if the Act, intended to ‘bring rights home’ were to preclude judges from deciding on matters brought before them on the basis that Strasbourg had not spoken clearly enough on the scope of a right in a particular context. It cannot therefore be inferred from the Act that it is intended to provide no greater protection that Strasbourg would be prepared to offer.
Although the text of the Human Rights Act should not give rise to the assertion that
Parliament ‘clearly intended’ that the courts should give effect only to the Strasbourg interpretation of rights and no more , such statements are common. For example, Lord
Nicholls in Quark Fishing ,
110
stated unequivocally on the territorial application of the rights under the Act that:
107 That is, the state’s capacity to restrict the political activity of aliens.
108 Limitations on Use of Restrictions on Rights: ‘restrictions permitted under this Convention to the said right and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’
109 In Al-Skeini (n19) [14] Lord Bingham did concede that since these Articles are effectively otherwise provided for under the Act itself ‘that Parliament intended the effect of the Act to be governed by its terms and not, save by reference, the Convention.’
110 Quark Fishing (n7) [34].
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‘The Act was intended to provide a domestic remedy where a remedy would have been available in Strasbourg. Conversely, the Act was not intended to provide a domestic remedy where a remedy would not have been available in Strasbourg.’
However, Lord Irvine, promoter of the HRA, has recently argued that on the proper construction of section 2(1) ‘it is simply untenable to suggest that the Judges are entitled to treat themselves as bound by decisions of the Strasbourg Court’.
111 While Philip Sales QC states that the ‘subjective views of a promoter of an Act of Parliament about its meaning are not a relevant aid to its construction’,
112
it was not only Lord Irvine who expressed such a desire for the UK Court to be able to innovate novel interpretations of Convention rights where Strasbourg jurisprudence is insufficient, and for the UK Court not be bound by
Strasbourg. Furthermore, he did not hold that view only in retrospect.
Lord Bingham himself was a champion of incorporating the Convention into domestic law.
113
Quoting Milton’s Areopagatica he argued in the House of Lords that, we must ‘let not
England forget her precedence of teaching nations how to live’.
114
Similarly Lord Irvine argued that to ‘take into account’ would: permit the United Kingdom courts to depart from Strasbourg decisions where there has been no precise ruling on the matter… [W]here it is relevant we would of course expect our courts to apply convention jurisprudence and its principles to the cases before them… [O]ur courts must be free to try to give a lead to Europe as well as to be led.
115
Importantly, during the passing of the Act an amendment was introduced to alter the wording of Section 2(1) from ‘must take into account’ to ‘may take into account’ 116
which
111 Lord Irvine, ‘A British Interpretation of Convention Rights’ [2012] PL 237, 239.
112 Philip Sales ‘Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine’ (2012) 2 PL
253, 254. However, in R (on the application of Public and Commercial Services Union) v Minister for the Civil
Service [2010] EWHC 1027 (Admin) [2010] ICR 1198, Sales J held that statements made by the promoter of a bill were appropriate aids, but explanatory notes on clauses not cited in debate and therefore unavailable to the public were not, [42] and [53]-[55].
113 See Tom Bingham, ‘The European Convention on Human Rights: time to incorporate’ (1993) 109 LQR 390.
114 Hansard HL Deb 03 November 1997 vol 582 col 1246.
115 Hansard HL Deb 18 November 1997 vol 583 col cc 514-514.
116 Hansard HC Deb 03 June 1997 vol 295 col 388.
20

was intended to take advantage of the margin of appreciation, thereby obviating the risk of the importing values contrary to British idiosyncrasies. But it was subsequently withdrawn.
117
Geoff Hoon argued at the time that such a direction could result in inconsistency in consideration of Strasbourg within the British judicial system, and that discretion to take into account the rulings of Strasbourg could result in a breach of the international obligations of the UK.
118
Contrariwise, in the House of Lords, a motion to amend the Bill to read ‘shall be bound by’ rather than ‘take into account’ was introduced by Lord Kingsland’, lest the domestic courts be cast adrift from their international moorings… with no accurate charts by which to sail.’ 119
This too was withdrawn.
120
To bind the UK Court to the jurisprudence of the Strasbourg Court would be incompatible with the ‘living instrument’ principle – that the
Convention must be interpreted in the light of present-day conditions – that is so clear in its case law.
121
Moreover, binding the domestic courts to an evolving interpretation would clearly be undesirable given the strength of precedent within the domestic court structure,
122 with even the Supreme Court treating its own decisions as normally binding.
123
For Section
2(1) to do so would tie domestic courts in knots. Finally, Lord Irvine made it clear that the
Convention proper was not to be incorporated into of the domestic law,
124
and that:
117 Hansard HC Deb 03 June 1997 vol 295 col 408.
118 Hansard HC Deb 03 June 1997 vol 295 col 402.
119 Hansard HL Deb 18 November 1997 vol 594 col 511.
120 Hansard HL Deb 18 November 1997 vol 594 col 516.
121 For example, Tyrer v United Kingdom (1979-80) 2 EHRR 1, para 31. The ECtHR does however treat its previous decisions as persuasive in pursuit of legal certainty, see also Goodwin v United Kingdom (2002) 35
EHRR, para 74: ‘While the Court is not formally bound to follow its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous case…However… the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally.’ This has not always proved successful, and has led to plainly contradictory judgements that the ECtHR will not acknowledge as such, see Banković v Belgium and 16 other
Contracting States (2007) 44 EHRR SE5 cf. Al-Skeini v United Kingdom (2011) 53 EHRR 18, para 137, but see the separate opinion of Judge Bonello, paras 4-8.
122 See Kay (n49) [44] (Lord Bingham). The House of Lords held that lower domestic courts must apply the rulings of the House even where a later Strasbourg judgement was contrary to the earlier domestic decision.
‘Leapfrog’ appeals under ss12-16 of the Administration of Justice Act 1969 may be appropriate to expedite a ruling to the Supreme Court that does ‘take into account’ relevant Strasbourg authority.
123 Practice Statement [1966] 3 All ER 77.
124 Hansard HL Deb 18 November 1997 vol 583 cc 509-509.
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the Bill provides that individuals may rely upon convention rights, but his convention rights are, as it were, a floor of rights; and if there are different or superior rights or freedoms conferred on him by or under any law having effect in the United Kingdom, this is a Bill which only gives and does not take away.
Parliamentary legislative history was of paramount importance in Baroness Hale’s judgement in Re G , in which the House of Lords extended the scope of Article 8 under the margin of appreciation. She asked:
[w]hat did Parliament mean when it required the courts to act compatibly with the
Convention rights? Did it mean us only to go as far as Strasbourg would go? Or did it mean us, in at least some cases, to be able to go further? It seems clear that
Parliament… intended the latter… [t]he courts must be free to develop human rights jurisprudence and to move out in new directions.
125
As such, the principle expounded by the cases following Ullah , particularly views such as those of Lord Hope in Ambrose v Harris
126
where he stated that: ‘Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court’, is not borne out when the legislative history of the HRA is taken into account.
2.3 UNIFORMITY
When ‘a country voluntarily incorporates the exact wording of the Convention into its national law, the Convention ceases to be a European text and becomes a national text, to which national courts are free to give a more generous interpretation’.
127
Lord Bingham, however, argued in Ullah that:
It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the
125 Re G (n38) [120].
126 Ambrose v Harris (Procurator Fiscal, Oban) [2011] UKSC 43, [2011] 1 WLR 2435, [19].
127 Robert Wintermute, ‘The Human Rights Act’s First Five Years: too strong, too weak or just right?’ (2006) 17
Kings College Law Journal 209.
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Convention should be uniform throughout the states party to it (emphasis added).
128
Likewise in M
129
Lord Nicholls held: ‘[i]t goes without saying that it would be highly undesirable for the courts of this country… to be out of step with the Strasbourg interpretation of the relevant convention right.’ In Brown v Stott Lord Bingham counselled against expanding the rights under the ‘process of implication [i.e. reading into the
Convention rights not expressly stated] is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept’.
130
This contention, however, can mean only one of two things, as Baroness Hale has pointed out,
131
either that domestic courts should be wary of binding all member states to the decisions of the UK courts through later adoption of those decisions in Strasbourg,
132
or, that domestic courts should not bind the UK at an international level should the decision subsequently be used in a later case against the UK before the ECtHR.
133
Neither of these ought to be a cause of concern for the UK Court. In the case of the former, although
Strasbourg does take decisions of domestic courts into account when developing its jurisprudence, it tends to reserve considerations of cases by national courts to cases where the parent state of that court is the respondent party. For instance, in Von Hannover
134
the ECtHR went beyond its previous jurisprudence to declare that Article 8 was applicable between
128 Ullah (n5) [20].
129 n37.
130 Brown v Stott (n8) 703.
131 Baroness Hale, ‘Law Lords at the Margin: Who Defines Convention Rights?’ JUSTICE Tom Sargant
Memorial Annual Lecture 2008 (London, 15 October 2008) available at:
<http://www.justice.org.uk/resources.php/169/law-lords-at-the-margin> accessed 15/01/2013.
132 ‘[a]n enlargement of its scope in its application to one contracting state is an enlargement for them all. The question must always be whether the enlargement is one which the contracting parties would have accepted and agreed to be bound by.’ N (n27) [21] (Lord Hope).
133 It must be recalled that under Article 34 the Convention there is no right of appeal for member states against decisions of domestic tribunals, therefore a decision going beyond Strasbourg jurisprudence could not be challenged until another case arose. Lord Brown evinced such a fear in Al-Skeini (n16) [106] stating: ‘There seems… a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected.’
134 Von Hannover v Germany (2005) 40 EHRR 1.
23

private parties. This approach was consistent with the earlier decision reached by the House of Lords in Campbell v MGN ,
135
but this case was not even cited before the Strasbourg Court.
As Baroness Hale recounts: ‘the main contribution our judgments make in Strasbourg is to explain why we have not found a violation of the Convention in a particular case.’
136
But even if Strasbourg were to take into account a higher obligation imposed domestically, it would likely accord the particular respondent state a margin of appreciation in respect of its own, less generous practice.
137 Besides, as has already been argued, the approach taken by the court vis-à-vis binding the UK to higher obligations where necessary is consistent with the legislative intent of Parliament.
This desire for uniformity does not sit well with the later interpretations of the rights as discrete under the Convention and the HRA
138
nor does it dovetail with the principle of subsidiarity by which Strasbourg is itself a remedial institution for ensuring rights are properly secured national authorities of member states.
139
Such an approach is inconsistent the fact that Strasbourg must take its lead from national systems in order to determine a minimum standard, simply put, Convention adjudication is ‘not a watertight, self-sufficient system’.
140
Stec v United Kingdom
141
illustrates this point regarding the right to peaceful enjoyment of possessions, as it related to state pensions. The ECtHR stated that:
The Court's approach to Art.1 of Protocol No.1 should reflect the reality of the way in which welfare provision is currently organised (emphasis added) within the Member States of the Council of Europe. It is clear that within those states, and within most individual states, there exists a wide range of social security benefits designed to confer entitlements which arise as of right… In the modern,
135 Campbell v Mirror News Group International [2005] UKHL 61, [2005] 1 WLR 3394.
136 Hale ‘Law Lords’ (n130) 4. The Grand Chamber has itself stated that: ‘Where… the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law’ See Roche v United Kindgom (2006) 42 EHRR 30, para
120. See also Z and Others v United Kingdom (2002) 34 EHRR 3,
137 See Lewis ‘Ceiling’ (n7) 734.
138 See Lewis ‘Ceiling’ (n7) 730.
139 n33.
140 Rozakis ‘Comparatist’ (n42) 268.
141 Stec v United Kingdom (Admissibility) (2005) 41 EHRR SE18.
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democratic state, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits.
142
If the meaning of the Convention were the same across all member states, Convention interpretation would enter a torpor from which the ECtHR would be unable to develop its jurisprudence in light of ‘present day conditions’ as interpreted by national courts, which would be taking their lead from Strasbourg. Both the national and supranational court would in effect entrust the task of defining the rights under the Convention to national legislatures 143 .
The very ambition of uniformity throughout the member states is misguided, not least because the ECtHR does not require uniformity, as is quite clear from the national discretion afforded by the margin of appreciation, but perhaps most tellingly because it is not the approach taken by other member states party to the Convention. In monist France, for example, the ECHR ‘does not impose on the State the introduction into municipal law of rules identical to those of the Convention; it delineates a standard of minimum protection, defined uniformly in the jurisprudence of the Court… according to which the ECHR is subject to overt evolutive interpretation [within French courts]’.
144
Clearly this is at variance with the conservative Ullah approach, and it defeats any attempt by any another national court to pursue uniformity.
145
Reducing the status of human rights protection in the UK to the lowest common denominator
146
by striving for uniformity amongst member states ‘carries the risk that in trying to stay level, we shall fall behind’.
147
The consequence of pursuing uniformity rather than taking an innovative approach to rights protection has therefore contributed to inadequate domestic rights protection and the reintroduction of the long road to Europe.
142 Stec (n141) paras 49-50.
143 Lord Bingham himself has argued that: ‘anyone who sees Parliament as a reliable guardian of human rights in practice is, I suggest, guilty of wishful thinking’. See Bingham, ‘Time to incorporate’ (n113) 392.
144 Eirik Bjørge, ‘National supreme courts and the development of ECHR rights’ (2011) 9(1) ICON 5, 23-24
145 See also Lord Kerr, ‘The UK Supreme Court: The Modest Underworker of Strasbourg?’ (Clifford Chance
Lecture, 25th January 2012) 7, where he states that: ‘Our courts do not have power to bind the courts of any other member states of the Council of Europe or the Strasbourg court itself. A decision as to the content of a
Convention right in UK does not, therefore, impose on, or require of, other countries in the Council of Europe any corresponding conclusion.’ Available at <http://www.supremecourt.gov.uk/docs/speech_120125.pdf> accessed 03.02.1013.
146 Jonathan Lewis, ‘In Re P and others: an exception to the "no more, certainly no less" rule’ [2009] PL 43, 46.
147 Stephen Sedley, ‘Bringing rights home: time to start a family?’ (2008) 28(3) LS 327, 332.
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Indeed, Judge Martens
148
has argued that the duty of domestic courts in rights adjudication
‘goes further than seeing to it that the minimum standards in the ECHR are maintained’.
Ultimately, uniformity among member states is not the concern of national courts; it is the concern of only the Strasbourg Court to ensure that pan-European minimum standards are devised and upheld.
2.4 COMPLIANCE WITH INTERNATIONAL OBLIGATIONS AND COMITY
The United Kingdom must uphold its international obligations as delineated by Strasbourg jurisprudence.
149
However, the practical failure of the approach envisaged by Sedley LJ, that we will fall behind the ECtHR by trying to keep pace, eventuated in Strasbourg following R
(on the application of S & Marper) v Chief Constable of South Yorkshire Police.
150
Although the House of Lords undertook an extensive review of the relevant jurisprudence in
Strasbourg, concluding that ‘Strasbourg case law does not support the appellants' argument that there has been a violation of article 8 in the circumstances [i.e. fingerprint retention] of these cases.’ 151 In spite of this, rather than preferring the considered reasoning of the House of Lords, the ECtHR advanced its own interpretation of the Convention holding that: the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard.
152
148 Judge Sibrand Karel Martens, ‘Incorporating the European Convention: the role of the judiciary’ [1998]
EHRLR 5, 14.
149 As the Supreme Court held in AF (No 3) (n6): ‘the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.’ [70] (Lord Hoffman).
150 S & Marper (n47). See also Gillan & Quinton v United Kingdom (2010) 50 EHRR 45.
151 S & Marper (n47) [67] (Lord Roger). Baroness Hale [67]-[78] stated that although ‘we must interpret the
Convention rights in a way which keeps pace with rather than leaps ahead of the Strasbourg jurisprudence as it evolves over time’ the ‘general tenor’ of the Strasbourg jurisprudence suggested that Strasbourg would find an infringement, although in the case she felt it justifiable.
152 S v United Kingdom (2009) 48 EHRR 50, para 125.
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Since prior judgements of the ECtHR are not determinative of the approach that it will take in the future (although it will usually follow its own decisions)
153 keeping abreast of international obligations is not best served by the hesitant approach developed in the cases following Ullah , but by a more dynamic approach outlined in the Chapter Three.
Equally, judicial comity, the principle that although not bound to follow the decision of a foreign court, a domestic court ought to follow the decision of a court of equal jurisdiction in its reasoning on the same or very similar issue 154 contributes to the requirement that the UK Court does not deviate from judgements of Strasbourg. Indeed there is good a reason for adopting this approach toward the ECtHR since, like the Convention, the HRA was not enacted in a vacuum, and it would be peculiar for the UK Court to adopt a completely unique approach when Strasbourg has a ‘deeper appreciation of the true ambit of
[the] articles… of the Convention’.
155
Moreover, by the terms of section 2(1) it ‘ must take into account’ (emphasis added) Strasbourg jurisprudence, and while this gives no indication to the weight that is to be given it, it is clear that the UK Court is not at liberty to entirely disregard ECtHR decisions. In this respect, Lord Slynn’s direction in Alconbury not to depart from ‘clear and constant’ Strasbourg authority is sensible. However, as has been argued above, there are reasons beyond comity requiring the court to depart from the ‘no more, no less’ principle.
The drive for comity with Strasbourg alone which has prevented courts assessing comparative jurisdictions, and from deciding cases where there was no ‘on point’ Strasbourg authority has, however, been departed from. Such strictures arose in Sheldrake v DPP
156 in which Lord Bingham argued: ‘[s]ome caution is in any event called for in considering different enactments decided under different constitutional arrangements… the United
Kingdom courts must take their lead from Strasbourg.’ And in a later case that it would be
‘perilous’ to transpose the outcomes of cases decided under different legislative regimes.
157
153 Cossey v United Kingdom (1991) 13 EHRR 622, para 35.
154 Police Authority for Huddersfield v Watson [1947] KB 842, 848 (Lord Goddard CJ).
155 R (on the application of Anderson) v Secretary of State for the Home Department [2001] EWCA Civ 1698;
[2002] 2 WLR 1143 [65] (Simon Brown LJ).
156 Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264 [33].
157 R (on the application of Gillan and another) v Commissioner of Police of the Metropolis and another [2006]
UKHL 12, 2006 2 AC 307 [23]. Here the court refused to apply a Canadian case.
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However, in Re G ,
158
for example, where the court did go beyond Strasbourg, Lord Hoffman
(arguably needlessly)
159
relied on the South African Constitutional Court’s decision in Du
Toit v Minister for Welfare and Population Development .
160
The requirement for comity with Strasbourg is predicated on the premise that it is the
UK Court’s task to give ‘full and fair effect to Strasbourg jurisprudence’.
161 While this is true in respect of its minimum international obligations it does not require the strict approach that has been adopted. Lord Hoffman argues that: ‘judicial isolationism is no more tenable than political isolationism in today’s world… legal ideas do not stop at borders’.
162 Allowing influence from other jurisdictions is a valuable analytic tool to help answer questions that
Strasbourg has not yet broached, and it is to be welcomed in a more nuanced approach to domestic human rights adjudication
2.5 RESPECTING CONSTITUTIONAL ORDER OF THE UK
It is important to consider to whether the constitutional order of the United Kingdom requires the UK Court to adopt the approach it has.
Although, of course, unwritten the general tenet of this framework is that ‘Parliament makes the law, the judiciary interpret it’.
163
Under section 3 of the HRA the courts are directed to read legislation ‘so far as it is possible to do so… in a way which is compatible with convention rights’, and should they not be able to do so then they are directed to issue a statement of incompatibility.
164
While there is no power to strike down legislation that is incompatible, the domestic court now has the power to
‘perform heroic feats of interpretation’.
165
In Ghadian v Godin-Mendoza
166
it was held that the court did not require even to identify ambiguity in the statute, and that the court could
158 Re G (n38) [17].
159 Lord Hope made the point that although the South African case could be aligned with some Strasbourg authority, so too could Scottish jurisprudence considering the same point. See Re G (n38) [54].
160 Du Toit v Minister for Welfare and Population Development (2002) 13 BHRC 187 [21]-[22].
161 R (Gillan) (n157) [23].
162 Lester, Pannick and Herberg, Human Rights Law and Practice (3 rd edn, LexisNexis 2009) para 2.2.2.
163 Duport Steels Ltd v Sirs [1980] 1 WLR 142 (HL), 157 (Lord Diplock).
164 Section 4 HRA.
165 Hale, ‘Argentoratum’ (n69) 66.
166 Ghadian v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.
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read in words not present in the legislation, otherwise compatibility would become a
‘semantic lottery’.
167
The question is: to what extent should the UK Court employ novel interpretations of rights under the Human Rights Act in accordance with this statutory requirement? The HRA is a constitutional instrument: it ‘conditions the legal relationship between the citizen and the state in some general, overarching way’,
168
and as such it is appropriate that its interpretation is approached generously.
169 Richard Clayton QC has, however, observed that ‘there is an obvious tension between the courts giving effect to the HRA as a constitutional instrument and avoiding the charge of excessive judicial activism’.
170
Nevertheless, the Act was drafted in order to preserve the principle of parliamentary sovereignty,
171
and indeed it does so by reserving the power of statutory amendment to Parliament under section 4.
172
The House of
Lords in Ghadian was therefore careful to limit its interpretative powers of under section 3 in that they do not ‘adopt a meaning inconsistent with a fundamental feature of the legislation’.
173
How far the court should be prepared to innovate lies in the relative competencies of the institutions over the right concerned – as it did in Re G . The UK Court requires, where it asserts its competency to do so, to pronounce its own interpretation of a right under the HRA.
Though the scope of a right is contestable, as Paul Craig points out, the very contestability of a particular right should not be a reason for deferring to Parliament
174
though it is a legitimate, but not determinative, consideration. Moreover, the courts do not have power to strike down legislation but merely declare it incompatible with the Convention, after which it will remain in force. Following such a declaration Parliament may respond by amending the problematic legislation, thus, a dialogue between the two institutions is established. Clayton therefore argues that:
167 Ghadian (n166) [31] (Lord Nicholls).
168 Thoburn v Sunderland City Council [2003] QB 151 [62] (Laws LJ).
169 Roger Masterman ‘Taking the Strasbourg jurisprudence into account: developing a "municipal law of human rights" under the Human Rights Act’ [2005] ICLQ 907, 912.
170 Richard Clayton, ‘Judicial deference and "democratic dialogue": the legitimacy of judicial intervention under the Human Rights Act 1998’ [2012] PL 33, 40.
171 Kebilene (n49) 367 (Lord Steyn).
172 Re S [2002] UKHL 10, [2002] 2 AC 291 [39], (Lord Nicholls).
173 Ghadian (n166) [33] (Lord Nicholls).
174 Paul Craig, Administrative Law (7 th edn, Sweet and Maxwell 2012) 630-631.
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The value [of dialogue] is that it draws attention to a critical structure of the
HRA… the need for Courts to defer to Parliament or the executive is less compelling once it is acknowledged that the HRA envisages that the other branches of the government will get another bite of the cherry.’ 175
Thus the obligation to refrain from extending the scope of rights that have not yet been similarly articulated by Strasbourg is diminished. Finally, the constitutional principle does not take into account the fact that it is not Parliament alone that makes the law, the courts incrementally develop it through the common law, as such, domestic courts should be free to innovate as product of interpretation of the Convention in respect of both the common law and legislative compliance with the Convention.
2.6 CONCLUSIONS
The approach that has developed following Ullah is not justified by the reasons that the courts commonly have given, and is it certainly not supported by the legislative history of the Act. It has rendered the UK Court improperly subordinate to Strasbourg and has undermined the capacity for judges in the United Kingdom to adjudicate on fundamental human rights under the Act. Consequently the Act has been poorly received and frequently criticised as a ‘malign influence’,
176
importing the ‘crazy judgements’
177
of
‘bullying…unelected dictators’.
178
Although the UK Court ought to consider the judgements of Strasbourg from simple comity, it is required to do no more than take them into account, therefore, since current approach is inappropriate, a new direction is required.
175 Richard Clayton, ‘Principles for judicial deference’ (2006) 11(2) JR 109, 125.
176 Leo McKinstry, ‘Human right’s ( sic ) act has become the villain’s ( sic ) charter’ The Daily Express (London,
23 October 2011) <http://www.express.co.uk/posts/view/275220/Human-right-s-act-has-become-the-villain-scharter/> accessed 25 February 2012.
177 James Slack, ‘Unelected euro judges are bringing terror to the streets of Britain’ The Daily Mail (London, 18
January 2012) <http://www.dailymail.co.uk/debate/article-2087831/Abu-Qatada-human-rights-Unelected-eurojudges-bringing-terror-streets-Britain.html> accessed 25 February 2012.
178 Editorial, ‘Do us rights’ The Sun (London, 11 February 2011)
<http://www.thesun.co.uk/sol/homepage/news/sun_says/3407431/The-Sun-Says.html> accessed 25 February
2012.
30

There have been a few recent cases which suggest an alternative approach to domestic human rights adjudication that would certainly leave the Act and its implementation less vulnerable to the foregoing criticisms, and that would accord better with the legislative intent behind the
Act, viz. that ‘British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights across Europe’.
179
The first arm of this approach stipulates that the Supreme Court ought now to develop a greater dialogue with
Strasbourg. This more assertive approach would help restore democratic legitimacy. The second arm would ensure that the United Kingdom does not inadequately protect rights by failing to provide protection where the Strasbourg court has failed to speak clearly enough, rather it requires domestic courts to derive principles from Strasbourg and comparative jurisprudence to resolve novel cases. Any applications to Strasbourg as a result of this second element further fulfil the dialogical approach. Taken together these would nevertheless ensure that the courts remain cognisant of the entire body of Strasbourg case law, as the Act requires.
3.1 PROMOTING DIALOGUE
A dialogical approach between institutions requires a deliberative process with ‘specific mutual practical purposes: it aims at taking decisions in common; reaching agreement; solving problems of conflicts collectively’ and ‘…determining which particular practical view should govern actions or decisions’.
180
Moreover, it further requires ‘readiness to admit
179 Hansard HC 16 February 1998 vol 307 col 769 (Jack Straw).
180 Luc B Tremblay, ‘The legitimacy of judicial review: the limits of dialogue between courts and legislatures’
(2005) ICON 644, 681.
31

that the other party may be right on some issues as well as to consider positively proposals aimed at improving human rights observance’.
181
The UK Court has at times shown itself to be willing to deviate from ‘authoritative’ rulings of Strasbourg, as Lord Scott suggested it might in Animal Defenders
182
stating: ‘[i]f, for example, an English court considers that the ECHR has misunderstood or been misinformed about some aspect of English law, it may wish to give a judgment which invites the ECHR to reconsider the question... There is room for dialogue on such matters’. To that end in R v Spear, 183 which preceded the Lord Slynn’s Alconbury judgement, the House of
Lords considered the conformity of the court martial procedure with the substantive element of Article 6(1) of the Convention. In assessing the question, the House took into account the judgement of the ECtHR in Morris v United Kingdom ,
184
in which Strasbourg declared that legislation brought in to reform the court martial procedure (following an infringement in
Findlay v United Kingdom )
185
nonetheless contravened the right to a fair trial. Their
Lordships, however, refused to follow the Morris judgement deeming that it was ‘clear that the European Court did not receive all the help which was needed to form a conclusion’.
186
Although the ECtHR was misinformed as to the procedures ensuring impartiality of adjudicating officers in courts martial, it had in other cases outlined the requirements necessary to ensure impartiality,
187
therefore Lord Roger felt himself able to state that: ‘[t]he case law of the European Court shows that, in principle, trial by court-martial does not infringe an accused's right to a fair trial’. Consequently Strasbourg overturned its Morris judgement in Cooper v United Kingdom
188
holding, on the basis of Lord Roger’s assessment of the additional measures inherent in the procedure to ensure impartiality in Spear , that there were sufficient safeguards in place. More recently, in Al-Khawaja & Tahery v United
181 Beata Faracik, ‘Constructive dialogue as a cornerstone of the human rights treaty bodies supervision’ (2006)
38 Bracton LJ 39, 41.
182 n28. See also n88.
183 R v Spear [2002] UKHL 31, [2003] 1 AC 734.
184 Morris v United Kingdom (2002) 34 EHRR 52.
185 Findlay v United Kingdom (1997) 24 EHRR 221.
186 Spear (n183) [12] (Lord Bingham).
187 See, for example, Engel v The Netherlands (No 1) (1976) 1 EHRR 647.
188 Cooper v United Kingdom (2004) 39 EHRR 245.
32

Kingdom
189
the Grand Chamber accepted the view of the Supreme Court in R v
Horncastle .
190
In Horncastle their Lordships resolutely refused to accept the earlier Fourth
Section judgement given in Al-Khawaja & Tahery v United Kingdom,
191 that the hearsay provisions of s116 of the Criminal Justice Act 2003 were incompatible with the right to a fair trial. In Horncastle , Lord Philips stated that:
[i]t is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue…
The approach in Horncastle therefore differs visibly from that in Spear ; the court deliberately sought to require that Strasbourg reconsider its judgement, rather than attempt to fit the domestic case within Strasbourg’s Procrustean bed. Such active seeking of dialogue is to be endorsed.
There are other means to encourage dialogue between the courts. Firstly dialogue may arise in Re G situations where the Strasbourg court has accorded a margin of appreciation with respect to a restriction of a particular right, and secondly, in situations where the Strasbourg jurisprudence fails to speak with clarity, or indeed, at all. In Re
McCaughey ,
192
for example, Lord Hope said of Strasbourg’s judgement in
Šilih v Slovenia 193 that: ‘[o]nly the most starry-eyed admirer of the Strasbourg court could describe the guidance that the Grand Chamber offered… as clear.’ This final opportunity for dialogue with
Strasbourg forms the basis of the ‘principled approach’ to the jurisprudence of the ECtHR, which is discussed below.
There are clear advantages to promoting dialogue between the two institutions. Two in particular can be brought into light – norm creation (on which the ECtHR depends
194
) and greater legitimacy of decisions of both the Supreme Court and Strasbourg within a supranational system of human rights. Merris Amos argues that although a greater dialogue
189 Al-Khawaja & Tahery v United Kingdom (2012) 54 EHRR 23, para 146. The Court held that: it would not be correct ‘for the Court to ignore entirely the specificities of the particular legal system concerned and, in particular its rules of evidence, notwithstanding judicial dicta that may have suggested otherwise’.
190 R v Horncastle (Michael Christopher) [2009] UKSC 14, [2010] 2 AC 373.
191 Al-Khawaja & Tahery v United Kingdom (2009) 49 EHRR 1.
192 Re McCaughey [2011] UKSC 20, [2012] 1 AC 725.
193 Šilih v Slovenia (2009) 49 EHRR 37.
194 See n142.
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between the two courts will not necessarily enhance democratic legitimacy (i.e. where the view of the populace is represented through elected representatives) legitimacy of decisions of the two courts is nonetheless enhanced where ‘the decision reflects the shared values of those affected; or the decision is made by an… authoritative institution.’
195
Therefore if a judgement of the ECtHR fairly considers and reflects the values of a particular state, which it will be more likely to do after deliberative dialogue with home institutions, then the judgement is likely to be more considered acceptable. Moreover, increased legitimacy is more likely to encourage and enhance the adoption of judgements of the ECtHR by states who are party to a decision against them; although the member states are bound to implement such decisions, remedying the source of the breach by transposition of judgements by is essentially voluntary.
196
Similarly, as Lord Irvine has argued ‘the standing of our own courts it likely to be enhanced if their position is more rather than less assertive.’
197
Amos’s view reflects that of Sir Nicolas Bratza, that since in some instances ‘Strasbourg is uniquely placed to determine certain issues of general importance concerning the protection of human rights not only in the United Kingdom but in Europe as a whole’,
198
thus, following deliberative dialogue between the courts, even if Strasbourg disagrees with the UK Court, the outcome is more legitimate than had the dialogue not taken place.
199
Conversely, where there is little dialogue between the institutions and the UK Court is seen to ‘internalize ( sic ) conflicting international norms’ 200
then decisions adopted by the domestic courts are unlikely to be possessed of the same legitimacy.
Naturally there are limits to the legitimacy that the courts can create through dialogue; the Hirst
201 judgement provides a startling example. Despite being accepted by the UK
195 Merris Amos, ‘The dialogue between the United Kingdom courts and the European Court of Human Rights’
(2012) 61(3) ICLQ 557, 651.
196 Nico Krisch, ‘The Open Architecture of European Human Rights Law’ (2008) 71 MLR 185, 206.
197 Lord Irvine, ‘British’ (n111) 247.
198 Nicolas Bratza, ‘The relationship between the UK Courts and Strasbourg’ (2011) EHRLR 505, 508.
199 Amos, ‘Dialogue’ (n195) 566. On this point see Manchester City Council v Pinnock [2010] UKSC 45,
[2011] 2 AC 104 where, after Strasbourg had considered and rejected earlier House of Lords judgements in Kay v United Kingdom [2010] ECHR 1322, the Lord Neuberger held that while ‘no disrespect is intended to the impressive and careful reasoning’ [26] of the House of Lords, the Strasbourg answer was ‘clearly the right conclusion’ [48].
200 Melissa Waters, ‘Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law’ (2005) 93 Geo LJ 487, 559.
201 n95.
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courts in Smith v Scott
202 and re-affirmed in Strasbourg
203
the issue of prisoner voting is nonetheless portrayed as an affront to democracy. While such divisive cases are inevitable they are, at least, representative of the ECtHR’s purview – to seek to bring member states into conformity with the minimum requirements of the Convention that it sets forth
204
through a comparative examination of the practices amongst those states, but not to ‘destroy the richness of the cultural and other variety found in Europe by imposing rigid, uniform solutions’ 205 such that the Ullah -type desire for uniformity would ensure. It may be a bitter pill, but in cases where the UK oversteps any acceptable margin of appreciation, however broad,
206
and however rarely,
207
the UK is bound to accept judgements against her.
208
Moreover, without a preliminary reference procedure
209
by which the Supreme Court could request an opinion of the ECtHR during the disposition of a case, dialogue depends on appeals being made to Strasbourg. In the context of the relationship between Strasbourg and the Supreme Court, however, such a procedure would be undesirable as it would be deleterious to the legitimacy that dialogue confers by almost certainly ensuring greater deference to the ECtHR.
210
The UK Court must be ‘mature enough to regard the prospect [of
202 Smith v Scott [2006] CSIH 9, 2007 SC 345 [26]-[29]. The Inner House held that under section 3 of the HRA, and in accordance with the Supreme Court judgement in Ghadian (n166) (although their Lordships did disapprove of that judgement) that the Representation of the People Act 1983 could not be read in a way that was compatible with the Convention.
203 See Greens & MT v United Kingdom [2010] ECHR 1826; Scoppola v Italy (n95).
204 Lech Garlicki, ‘Cooperation of courts: The role of supranational jurisdictions in Europe’ (2008) 6(3-4)ICON
509, 512.
205 Rolv Ryssdall, ‘The Coming Age of the ECHR’ [1996] EHRLR 18, 25-26.
206 See Hirst (n95) para 82; S (n152) para 125.
207 By 01.01.2011 there had been a total of 443 judgements given in cases to which the UK was a party, in 271 of which violations were found. By that time, however, there had been 14029 applications declared inadmissible. See European Court of Human Rights, Country Fact Sheets 1959-2010 available at
<http://www.echr.coe.int/NR/rdonlyres/C2E5DFA6-B53C-42D2-8512-
034BD3C889B0/0/FICHEPARPAYS_ENG_MAI2010.pdf> accessed 13.3.2013
208 Article 46 ECHR.
209 cf. Article 267 of the Treaty on the Functioning of the European Union which allows municipal courts to refer questions of EU law to the Court of Justice of the European Union before giving a definitive answer.
However, judgements of that court are binding (see European Communities Act 1972 s.3) and therefore no other means of dialogue is available.
210 Joint Committee on Human Rights, Human Rights Judgements (15 November 2011, HC 873-ii) Question 98
(Lord Judge).
35

appeals] with equanimity’,
211
and where it disagrees with Strasbourg ‘state its disagreement and, [if necessary]… leave the applicant to his remedy in Strasbourg’.
212
Dialogue fulfils Lord Bingham’s Milton charge ‘to let not England forget how to teach the world how to live’ through norm creation, which occurs when:
[d]omestic courts and other domestic law-declaring fora articulate or champion a particular domestic norm at the transnational level. The norm is then picked up by other transnational actors, thus being diffused… and becoming part of the international legal discourse. If the norm becomes sufficiently embedded… it becomes the dominant normative standard on a given issue.
213
In addition, dialogue preserves cultural richness across the supranational jurisdiction of the
ECtHR. As Amos points out, not having a voice may result in transnational norms
‘overwhelming the local’, thus dialogue ‘provides an important check on the power of the
ECtHR’.
214
Indeed, there are a number of examples in which the ECtHR has adopted the reasoning that has been given in judgements of the UK Court.
215
Moreover, the ECtHR itself is clearly keen to encourage dialogue to develop between the national courts and itself, not least as a consequence of its comparatist function.
216
Judge François Tulkens has argued that:
‘the [Strasbourg] court can and must enrich its own scrutiny by reflecting on national decisions in which the convention law is analysed’.
217
Similarly Sir Nicolas Bratza has recognised the value of the full reasoning of judges under the HRA, and stated that there is room for increased dialogue,
218
and that although Lord Roger’s view that when ‘Strasbourg has spoken, the case is closed’ is important in determining the basic international obligations
211 Lord Kerr, ‘Modest Underworker’ (n144) 7.
212 Lady Arden, ‘Peaceful or Problematic? The relationship between National Supreme Courts and
Supranational Courts in Europe’ (2010) 29(1) YEL 3.
213 Waters, ‘Mediating’ (n200) 503.
214 Amos, ‘Dialogue’ (n195) 573.
215 By way of example, in Ali v United Kingdom (2011) 53 EHRR 12 Strasbourg adopted the reasoning in Ali v
Lord Grey School Governors [2006] UKHL 14, [2006] 2 AC 363; likewise in O’Donoghue v United Kingdom
(2011) 53 EHRR 1 Strasbourg adopted R (on the application of Baiai) v Secretary of State for the Home
Department [2008] UKHL 53, [2008] 3 WLR 549.
216 Rozakis ‘Comparatist’ (n42) 268.
217 European Court of Human Rights, Dialogue between judges 2010: The Convention is yours (Council of
Europe, 2010)
218 Bratza, Relationship’ (n198) 511. Baroness hale has also concluded that Ullah (n5) and Al-Skeini (n19) are highly restrictive in terms of developing dialogue, see Hale ‘Argentoratum’ (n69) 78.
36

to which the UK must adhere that ‘it is right and positive for the protection of human rights that the national courts… should sometimes consciously leap ahead of Strasbourg’.
219
As
Judge Jean Paul Costa has stated that it is therefore essential that ‘domestic judicial authorities assume ownership of the Convention’.
220
A dialogical approach respects the fundamental difference in the nature of the rights.
It permits the domestic courts to make its own assessment of the requirements of the
Convention rights (including by reliance on comparative jurisdictions), and to be corrected by
Strasbourg if necessary. Lastly it better respects the constitutional requirements of the Act by permitting the Supreme Court to take better account of the views of Parliament
221
(where appropriate) as it does not mandate that when interpreting legislation Strasbourg’s view is to be preferred.
222
3.2 DERIVING PRINCIPLES
A dialogue-led approach is meaningless without taking a different view of the declaratory judgements of the ECtHR,
223
such as Lord Kerr (dissenting) took in Ambrose v Harris
224
in
2011. He stated that: in the absence of a declaration by the European Court of Human Rights as to the validity of a claim to a Convention right, it is not open to courts of this country to adopt an attitude of agnosticism and refrain from recognising such a right simply because Strasbourg has not spoken.
225
219 Bratza, Relationship’ (n198) 511.
220 ‘Dialogue’ (n195) 5.
221 See Brown (n8) 703 (Lord Bingham): ‘judicial recognition and assertion of human rights defined in the convention is not a substitute for the processes of democratic government’.
222 Lord Irvine’s view is that ‘the obligation merely to take into account does not chance irrespective of how many times Strasbourg repeats itself’. Lord Irvine ‘British’ (n112) 242. However, this does not take into account the UK’s international obligations that Strasbourg sets by clear repetition.
223 Sir Nicolas Bratza has expressed his desire that Strasbourg ‘should strive for greater clarity in the way we express our judgements which too frequently seem to have causes exasperation among national judges, confronted with the task of interpreting them’ See Bratza, ‘Relationship’ (n186) 509.
224 n126.
225 Ambrose (n126) [128] (Lord Kerr).
37

Lord Kerr gave three reasons for this. The first of these was that it was inevitable, as a matter of practical reality that ‘claims to Convention rights will have to be determined by courts at every level in the United Kingdom without the benefit of unequivocal jurisprudence from the
ECtHR.
226
Indeed it is to be hoped that domestic courts are given this opportunity.
227
Secondly he stated that: ‘as a matter of elementary principle, it is the court's duty to address those issues when they arise, whether or not authoritative guidance from Strasbourg is available.’ 228 That the courts and citizens had direct access to the Convention rights was the great advantage of the Act.
229 Finally the Act itself, as a consequence of Section 6, 230 leaves no alternative to courts when called upon to adjudicate on claims by litigants under a
Convention right’.
231
He concluded that:
If… dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that
Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.
In Ambrose
Lord Hope stated that Lord Kerr ‘had doubted that Lord Bingham had intended that his discussion of the issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they had been pronounced upon by Strasbourg’
232
but for his part, he ‘would hesitate to attribute to him an approach to the issue which he did not himself ever express and which, moreover, would be at variance with what he himself actually said.’
233
With respect to Lord Hope, the Ullah dictum is not as clear as is supposed; it could easily be read as it being the duty that is no more, and no less,
226 Ambrose (n126) [129] (Lord Kerr).
227 Ambrose (n126) [129] (Lord Kerr).
228 Ambrose (n126) [129] (Lord Kerr).
229 Ambrose (n126) [129] (Lord Kerr).
230 This section makes it unlawful for a public authority, including courts (but not Parliament), to act in a way which is incompatible with Convention rights.
231 Ambrose (n126) [129].
232 Ambrose (n126) [126] (Lord Kerr); [19] (Lord Hope).
233 Ambrose (n126) [19].
38

than to keep pace with Strasbourg, which is much less strict.
234
Moreover, he stipulated only that Strasbourg jurisprudence should not be ‘weakened or diluted’; 235
developing rights beyond what Strasbourg has previously held clearly escapes this constraint. But more importantly still there is a distinct difference between what Lord Bingham said in Ullah , and what he actually did. Before Ullah had reached the House of Lords, Philips MR in the Court of Appeal
236
had taken the now familiar line that although Strasbourg had ‘contemplated the possibility of such a step [of allowing an infringement of Article 9 to form the basis of a claim under Article 3], it has not yet taken it. The obligations… of the 1998 Act do not require this court to take that further step.’
237
While Lord Steyn in the House of Lords described this as ‘too narrow an approach to the evolving jurisprudence of the European
Court’, 238
Lord Bingham held that the existing Strasbourg jurisprudence could not preclude an applicant relying on religious persecution as a form of inhumane treatment to try to prevent deportation
239
and it could be inferred from the existing case law of Strasbourg that there would be a high threshold if they did (which the applicants did not meet). He gave another clear indication of the non-restrictive construction of Ullah in Secretary of State for the Home Department v JJ
240 where he made the point that: ‘[t]he task of the English courts is to seek to give fair effect, on the facts of this case, to the principles which the Strasbourg court has laid down.’ Mads Andenas and Eirik Bj rge thus argue that if Lord Hope’s attitude
234 Indeed, this is the way Baroness Hale appeared to read the Ullah dictum in Countyside Alliance (n54) stating:
‘that this House should not attempt to second guess the conclusion which Parliament has reached. I do not think that this has to do with the subject matter of the issue, whether it be moral, social, economic or libertarian; it has to do with keeping pace with the Strasbourg jurisprudence as it develops over time, neither more nor less.’
[126].
235 Ullah (n5)
236 Ullah v Special Adjudicator [2002] EWCA Civ 1856, [2003] 1 WLR 770.
237 Ullah (EWCA) (n236) [47] (Phillips MR).
238 Ullah (n5) [35] (Lord Bingham).
239 Ullah (n5) [24] (Lord Bingham). Likewise Lord Carswell held that: ‘there does not appear to be any conceptual reason why article 9 should not be capable in principle of engagement’ [67].
240 Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385, [19]. He also argued that ‘For guidance on the autonomous Convention meaning to be given to the expression, national courts must look to the jurisprudence of the commission and the European Court of Human Rights in Strasbourg, which
United Kingdom courts are required by section 2(1) of the Human Rights Act 1998 to take into account. But that jurisprudence must be used in the same way as other authority is to be used, as laying down principles and not mandating solutions to particular cases’.
39

in Ambrose that: ‘[i]f Strasbourg has not yet spoken clearly enough… the wiser course must surely be to wait until it has done so’
241 was transposed to Ullah then ‘only one outcome seems possible, that no claim in Ullah could be based on Article 9’
242
. In other words, the attempt of the applicants in Ullah to extend the scope of rights beyond what existed in
Strasbourg case law would not have merited consideration. Indeed the jurisprudence of
Strasbourg supports this principled approach.
243
The question therefore should not be ‘whether a rule… is to be found, with a sufficient degree of clarity, in the jurisprudence of the Strasbourg court’ 244 that allows the UK
Court to apply any such rule when taking into account Strasbourg decisions and applying the
Convention. Rather, Sir Andrew Morritt V-C was correct when he said that the domestic judges’ task: is not to cast around in the European Human Rights Reports like black letter lawyers seeking clues. In the light of s.2(1) of the HRA, it is to draw out the broad principles which animate the Convention.
245
In support of this alternative method, Eirik Bjørge has further argued that the principled approach accords much more strongly with the ordinary operation of the common law.
246
As
Neil MacCormick has put it, to understand the common law is ‘to understand how it is that particular decisions by particular judges concerning particular parties to particular cases can
241 Ambrose (n126) [15].
242 Mads Andenas and Eirik Bjørge, ‘Ambrose, is the Ullah principle wrong? [2012] 128 LWR 319, 322.
243 See, for example, Kennedy v United Kingdom (2011) 52 EHRR 4; Burden v United Kingdom (2008) 47
EHRR 38, para 42; A v United Kingdom (2009) 49 EHRR 29, para 154. The court stated in A that: ‘it is appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries.’ Importantly, Strasbourg emphasised the Convention, not its jurisprudence: compliance with the former necessitates a more generous approach.
244 McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 54, [2011] 1 WLR 3121 [12] (Lord
Hope); Ambrose (n126) [25] (Lord Hope). Similarly in McGowan Lord Brown held that he ‘could not accept that the Strasbourg jurisprudence has already established an absolute rule’ to the effect that he was required to rule in favour of the applicant [59].
245 Parochial Church Council of Aston Cantlow and Wilmcote with Billesley v Wallbank [2001] EWCA Civ 713,
[2001] 3 WLR 1323 [44]. This decision was however overturned in the House of Lords, see n25.
246 Eirik Bjørge, ‘The Courts and the ECHR: A Principled Approach to the Strasbourg Jurisprudence’ (April 13,
2012). Oxford Student Legal Studies Paper No. 01/2012. Available at SSRN: http://ssrn.com/abstract=2039378 or http://dx.doi.org/10.2139/ssrn.2039378
40

be used in the construction of general rules applying to the actions and transactions of persons at large’.
247
Despite this, Philip Sales QC states that the more conservative line taken by Lord
Hope better facilitates dialogue, since the public authority cannot appeal to have the matter
‘corrected’ 248 by Strasbourg if Lord Kerr’s lead is followed. But if that is the case then the very aim of the HRA to ‘bring rights home’ is defeated – a much higher number of unsatisfied applicants would, prima facie , have a further chance of success in Strasbourg – and domestic rights protection is once more reduced to the ‘lowest common denominator’.
Moreover, although the government may not have the right to apply to Strasbourg, a more dynamic interpretation by the domestic courts of Convention rights informed by Strasbourg jurisprudence would nevertheless afford the government ample opportunity to argue its case in the face of broader interpretation. This is so because cases are admissible before
Strasbourg only once all domestic remedies are exhausted.
249
In any event, even if the
Government could appeal it would be unlikely that the ECtHR would overturn a more generous interpretation.
250
Pursuit of dialogue should not therefore compromise the Supreme
Court’s willingness to innovate.
3.3 TAKEN TOGETHER
Taken together, the dialogical, principle-led approach to rights adjudication requires the domestic courts to be ‘imaginative and conservative at the same time’.
251
An over-zealous rights interpretation would be as equally destructive of a constructive dialogue as has been the application of Ullah . In the case of considered legislation passed in accordance with the
247 Neil MacCormick, ‘Why Cases have Rationes and What They Are’ in L Goldstein (ed) Precedent in Law
(Oxford 1987) 155.
248 Sales ‘Irvine’ (n112) 264-265.
249 ECHR Article 26. The ECtHR has also stated that the since the case should be heard before domestic courts in order to for Strasbourg to benefit from the domestic judicial reasoning the government requires to maintain the same position in took domestically as it does before Strasbourg. See Pine Valley Developments v Ireland
(1992) 14 EHRR 319, para 47. As such, by virtue of the domestic authorities’ ‘direct and continuous contact the forces of their countries’, it is arguable that the government is in fact granted a better chance of success domestically and in Strasbourg (see n135). That the domestic courts are more willing to innovate serves the purposes of both the government and claimants.
250 See ‘Uniformity’, p23 above.
251 John Laws, ‘The Limitations of Human Rights’ [1998] PL 256, 257.
41

HRA
252
and where it recognises Parliament’s institutional competence
253
on a particular matter, the Supreme Court should not have to invent rights which the European institutions have never recognised’,
254
but rather, defer to Parliament’s judgement. After all in many cases, ‘judicial recognition and assertion of human rights defined in the Convention is not a substitute for the processes of democratic government’.
255 Equally, however, it should not
‘shrink from telling Parliament when it has infringed rights’ even when it would ‘prefer to leave certain kinds of question to the Parliamentarians’.
256 Although Baroness Hale has argued that: the concept of the ‘Convention rights’, upon which all our powers and duties under the Human Rights Act depend, cannot mean different things depending upon whether we are developing the common law, controlling the executive or assessing the legislation.
257
The weight to be given to Strasbourg jurisprudence must be variable depending on context,
258 in order to balance deference to Parliament, comity with the ECtHR, and domestic rights
252 i.e. that Parliament has felt its able to, and has, passed the legislation with a Statement of Compatibility under section 19.
251 See Jeffrey Jowell, ‘Judicial Deference and Human Rights: A Question of Competence’ in Paul Craig and
Richard Rawlings (eds), Law and Administration in Europe: Essays in Honour of Carol Harlow (Oxford 2003).
This is exactly the line the court took in Re G , (see n38 and n49 above). Richard Clayton has argued that this does not extend to where there is an overlap between institutional competencies, or where an issue before the court is relevant at the same time to separate competencies of both institutions. See Clayton, ‘Judicial
Deference’ (n174) 40.
254 Countryside Alliance (n54) [132] (Baroness Hale).
255 Brown (n8) 703 (Lord Bingham). See also Animal Defenders (n28) where the Lord Bingham held that although Parliament was unable to make a statement of compatibility in relation to the Communications Act
2003 which placed a prohibition on political advertising, a declaration of incompatibility should not be issued despite the case of VgT Verein v Switzerland (2002) 34 EHRR 4, a very similar case in which Strasbourg had held that such a blanket ban would be incompatible with the Convention. Rather, the Court applied a significantly different case, Murphy v Ireland (2003) 38 EHRR 212, which permitted a margin of appreciation in respect of religious advertising. He did so on the basis that ‘it is reasonable to expect that our democraticallyelected politicians will be peculiarly sensitive to the measures necessary to safeguard the integrity of our democracy.’ [33].
256 Countryside Alliance (n54) [132] (Baroness Hale).
257 Hale, ‘Argentoratum’ (n69) 70.
258 Although, as Aileen Kavanagh, argues it is ‘clear that when adjudicating a case concerning Convention rights, the courts must take Strasbourg jurisprudence into account in some meaningful way. Judges are not
42

enforcement. But the domestic courts can, and must, at the same time maintain a dynamic interpretation of the case law and Convention principles such that questions not yet answered or addressed by Strasbourg with clarity, or even at all, are not excluded from their purview.
Again, the domestic courts should respect clear and constant jurisprudence of the ECtHR
(including where it is negative in respect of a right), where it is not fundamentally at odds with a principle feature of the domestic legal system, in order not to infringe international obligations.
This combined approach may have allowed domestic courts to answer certain controversial cases differently. In Cadder v HMA ,
259
for example, the Supreme Court unanimously held that the Grand Chamber case Salduz v Turkey
260
was to be followed.
However, although Salduz had been followed in a number of subsequent Strasbourg decisions, there were later cases that were ‘difficult to reconcile with the absolutist position in
Salduz
’. In that respect the jurisprudence of Strasbourg could not be described as ‘clear and constant’. Moreover, the
Salduz decision clearly could not have paid any regard to the implications for the Scottish legal system, or alternative safeguards.
261
The transferability of a case concerning Turkey to Scottish circumstances is also questionable. Although Lord
Hope argued in the Cadder on the grounds of uniformity that:
[t]here is no room in [Strasbourg’s] jurisprudence for, as it were, one rule for the countries in Eastern Europe such as Turkey on the one hand and those on its
Western fringes such as Scotland on the other.
262
Domestic courts must be circumspect in such direct application; Lord Bingham made this clear in JJ
263
where he cautioned that it is ‘perilous to transpose the outcome of one case to another where the facts are different.’ 264 Ultimately, however, the Supreme Court must be entitled to ignore it or to give it no weight whatsoever, deciding purely on the basis of the ordinary meaning of the words contained in the Convention’. Aileen Kavanagh, ‘Judging the judges under the Human Rights Act: deference, disillusionment and the "war on terror"’ [2009] PL 287, 297.
259 Cadder v HMA [2010] UKSC 43 [2010] 1 WLR 2601.
260 Salduz v Turkey (2009) 49 EHRR 19.
261 See HMA v McLean [2009] HCJAC 97, (2010) SLT 73, [29] (Hamilton LJ G).
262 Cadder (n259) [40].
263 n238.
264 See also Tom Bingham, ‘The Human Rights Act’ [2010] EHRLR 568, the last article Lord Bingham wrote, in which he said of the JJ case that ‘The facts of Guzzardi, whose confinement on a Mediterranean island bore
43

free to agree with the analysis that Strasbourg provides where it feels that that is the correct interpretation, even with domestic attitudes and safeguards taken into account, as it did in
Cadder ,
265 and as the Inner House did in Smith
266
following the Hirst judgement. little resemblance to the situation of JJ, could not readily be transposed to JJ's case: the problem was to ascertain the true governing principle and apply it.’
265 Cadder (n259) [50] (Lord Hope).
266 See Smith (n201) [13]-[16], [22]-[27], [51]. Hirst was also applied in in R (on the application of Chester) v
Secretary of State for Justice and another [2010] EWCA Civ 1439, [2011] 1 WLR 1436.
44

It can be see that the application of the ‘ Ullah principle’ in Ullah itself does not reflect the manner in which it has been subsequently interpreted and applied, and this has resulted in inadequate domestic rights adjudication and protection. While many justifications have been given for the approach that the UK Court has subsequently adopted, these do not stand up to scrutiny.
Hart offered the following description of the judicial function, which is apposite for the more dynamic approach the judges should take:
The open texture of law means that there are, indeed, areas of conduct which must be left to be developed by courts or officials striking a balance… between competing interests which vary in weight from case to case… Here at the margin of rules and the fields left open by the theory of precedents, the courts perform a rule-producing function which administrative bodies perform centrally in the elaboration of variable standards.
267
As Lord Bingham said in A v Secretary of State for the Home Department : 268 ‘the 1998 Act gives the courts a very specific, wholly   democratic, mandate… The courts are charged by
Parliament with delineating the boundaries of a rights-based democracy’. In order to fulfil that mandate they must produce rules which animate the Convention and enter into dialogue with Strasbourg where necessary.
While it is not, principally, the Ullah dictum that is at fault but the interpretation of it, there have been recent calls from the bench for Ullah to be reconsidered. In particular Laws
LJ, in a postscript to his judgement in R (on the application of the Children’s Rights Alliance for England) v Secretary of State for Justice
269 added:
[p]erhaps I may be forgiven for stating, with great deference to the House of
Lords and the Supreme Court, that I hope the Ullah principle may be revisited.
There is a great deal to be gained from the development of a municipal
267 H L A Hart, The Concept of Law (2 nd edn, Oxford 1994) 135.
233 A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 [42] (Lord Bingham)
269 R (on the application of the Children’s Rights Alliance for England) v Secretary of State for Justice [2013]
EWCA Civ 34 [64]. Laws LJ has also criticised the Ullah principle extrajudicially. See John Laws, ‘The Good
Constitution’ (2012) 71(3) CJL 567.
45

jurisprudence of the Convention rights, which the Strasbourg court should respect out of its own doctrine of the margin of appreciation, and which would be perfectly consistent with our duty to take account of (not to follow) the
Strasbourg cases. It is a high priority that the law of human rights should be, and be seen to be, as sure a part of our domestic law as the law of negligence. If the road to such a goal is clear, so much the better.
Likewise Lord Wilson has said that he would welcome an appeal in which the Supreme Court
‘might now usefully do more than to shadow the European Court of Human Rights…in aid of the further development of human rights and sometimes in aid of their containment within proper bounds.’
270
It is now time, therefore, that the final words of Lord Roger’s ‘wonderful judgement’ are ‘amended to read, “
Argentoratum locutum, nunc est nobis loquendum
” –
Strasbourg has spoken, now it is our time to speak.’ 271
270 Sugar v BBC [2012] UKSC 4, [2012] 1 WLR 439 [59].
271 Lord Kerr, ‘Modest Underworker) (n145) 24.
46

DOMESTIC CASES
A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68
Ali v Lord Grey School Governors [2006] UKHL 14, [2006] 2 AC 363
Al-Skeini v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153
Ambrose v Harris [2011] UKSC 43, [2011] 1 WLR 2435
Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003]
UKHL 37, [2004] 1 AC 546
Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109
Begum v Tower Hamlets LBC [2003] UKHL 5, [2003] 2 AC 430
Brown v Stott [2001] SC(PC) 43, [2003] 1 AC 681
Cadder v HMA [2010] UKSC 43 [2010] 1 WLR 2601
Campbell v Mirror News Group International [2005] UKHL 61, [2005] 1 WLR 3394
Doherty v Birmingham BC [2006] UKHL 10, [2006] 2 AC 495
DS v HMA [2007] UKPC D1, 2007 SLT 1026
Duport Steels Ltd v Sirs [1980] 1 WLR 142 (HL)
EM (Lebanon) v Secretary of the Home Department [2008] UKHL 64, [2009] 1 AC 1198
Ghadian v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557
Harrow LBC v Qazi [2003] UKHL 43, [2004] 1 AC 983
HMA v McLean [2009] HCJAC 97, (2010) SLT 73
JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry and Others and Related
Appeals [1990] 2 AC 418
Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465
Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104
McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 54, [2011] 1 WLR
3121
N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 AC 296
Nicklinson v Ministry of Justice [2012] EWHC 304 (QB), [2012] HRLR 16
Parochial Church Council of Aston Cantlow and Wilmcote with Billesley v Wallbank [2001]
EWCA Civ 713, [2001] 3 WLR 1323
Pepper v Hart [1993] AC 593
47

Police Authority for Huddersfield v Watson [1947] KB 842
Practice Statement [1966] 3 All ER (HL) 77
Qazi v Harrow LBC [2003] UKHL 43, [2004] 1 AC 983
R (on the application of Aguilar Quila) v Secretary of State for the Home Department [2011]
UKSC 45, [2012] 1 AC 621
R (on the application of Alconbury Developments Ltd) v Secretary of State for the
Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295
R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008]
1 AC 332
R (on the application of Al-Jeddah) v Secretary of State for Defence [2005] EWHC 1809,
[2005] HRLR 39
R (on the application of Anderson) v Secretary of State for the Home Department [2001]
EWCA Civ 1698, [2002] 2 WLR 1143
R (on the application of Animal Defenders International) v Secretary of State for Culture,
Media and Sport [2008] UKHL 15, [2008] 1 AC 1312
R (on the application of Baiai) v Secretary of State for the Home Department [2008] UKHL
53, [2008] 3 WLR 549
R (on the application of Chester) v Secretary of State for Justice and another [2010] EWCA
Civ 1439, [2011] 1 WLR 1436
R (on the application of Clift) v Secretary of State for the Home Department) [2006] UKHL
54, [2007] 1 AC 484
R (on the application of Countryside Alliance v Attorney General [2007] UKHL 52, [2007] 3
WLR 922
R (on the application of Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356
R (on the application of Gillan and another) v Commissioner of Police of the Metropolis and another [2006] UKHL 12, 2006 2 AC 307
R (on the application of Limbuela) v Secretary of State for the Home Department [2005]
UKHL 66, [2006] 1 AC 396
R (on the application of Limbuela) v Secretary of State for the Home Department [2004]
EWCA Civ 540, [2004] QB 1440
R. (on the application of Pearson) v Secretary of State for the Home Department
[2001] EWHC Admin 239, [2001] HRLR 39
R (on the application of ProLife Alliance) v BBC [2003] UKHL 23, [2004] 1 AC 185
48

R (on the application of Public and Commercial Services Union) v Minister for the Civil
Service [2010] EWHC 1027 (Admin), [2010] ICR 1198
R (on the application of Quark Fishing) v Secretary of State for Foreign and Commonwealth
Affairs [2005] UKHL 57, [2006] 1 AC 529
R (on the application of Razgar) v Secretary of State for the Home Department (No.2) [2004]
2 AC 368, [2004] 3 WLR 58
R (on the application of S & Marper) v Chief Constable of South Yorkshire Police [2004]
UKHL 39, [2004] 1 WLR 2196
R (on the application of S) v Chief Constable of the South Yorkshire Police [2002] EWCA
Civ 1275, [2002] 1 WLR 3223
R (on the application of the Children’s Rights Alliance for England) v Secretary of State for
Justice [2013] EWCA Civ 34
R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323
R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326
R v Horncastle (Michael Christopher) [2009] UKSC 14, [2010] 2 AC 373
R v Jones (Margaret) [2006] UKHL 16, [2007] 1 AC 136
R v Lambert [2002] QB 1112
R v Lyons [2003] 1 AC (HL) 976
R v Secretary of State for the Home Department, ex p Brind and Others [1991] 1 AC (HL)
696
R v Spear [2002] UKHL 31, [2003] 1 AC 734
Rabone v Pennine NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72
RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC
110
Re E [2008] UKHL 66, [2009] 1 AC 536
Re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2008] 3 WLR 76
Re McCaughey [2011] UKSC 20, [2012] 1 AC 725
Re McKerr [2004] UKHL 12, [2004] 1 WLR 807
Re S [2002] UKHL 10, [2002] 2 AC 291
Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269
Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385
Secretary of State for the Home department v MB [2007] UKHL 46, [2008] 1 AC 440
Secretary of State for Work and Pensions v M [2006] UKHL 11, [2006] 2 AC 91
Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264
49

Smith v Scott [2006] CSIH 9, 2007 SC 345
Sugar v BBC [2012] UKSC 4, [2012] 1 WLR 439
Thoburn v Sunderland City Council [2003] QB 151
Ullah v Special Adjudicator [2002] EWCA Civ 1856, [2003] 1 WLR 770
R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323
Wilson v. First Country Trust[2003] UKHL 40, [2003] 3 WLR 568
YL v Binrmingham CC [2007] UKHL 27, [2008] 1 AC 95
ECtHR CASES
A v United Kingdom (2009) 49 EHRR 625
Ali v United Kingdom (2011) 53 EHRR 12
Al-Khawaja & Tahery v United Kingdom (2009) 49 EHRR 1
Al-Khawaja & Tahery v United Kingdom (2012) 54 EHRR 23
Al-Nashif v Bulgaria (2002) 36 EHRR 655
Al-Sadoon v United Kingdom [2009] ECHR 1040
Al-Skeini v United Kingdom (2011) 53 EHRR 18
Banković v Belgium and 16 other Contracting States (2007) 44 EHRR SE5
Belgian Linguistic Case (No 2) (23rd July 1968) (1979-80) 1 EHRR 252
Burden v United Kingdom (2008) 47 EHRR 38
Chapman v United Kingdom (2001) 33 EHRR 399
Christine Goodwin v United Kingdom (2002) 35 EHRR 18
Connors v United Kingdom [2004] 40 EHRR 9
Cooper v United Kingdom (2004) 39 EHRR 245
Cossey v United Kingdom (1991) 13 EHRR 622
D v United Kingdom (1997) 24 EHRR 423
Dickson v United Kingdom [2007] EHRR 150
EB v France (Application No 43546/02) (unreported) 22 January 2008
Engel v The Netherlands (No 1) (1976) 1 EHRR 647
Evans v United Kingdom [2007] 46 EHRR 34
F v United Kingdom (Application No 17341/03) (unreported) 22 June 2004
Findlay v United Kingdom (1997) 24 EHRR 221
Fretté v France (2002) 38 EHRR 438
Greens & MT v United Kingdom [2010] ECHR 1826
50

Handyside v United Kingdom (1979-80) 1 EHRR 737
Hirst v United Kingdom (No 2) (2005) ECHR 681
Judge v United Kingdom (2011) 52 EHRR SE17
Kay v United Kingdom [2010] ECHR 1322
Kennedy v United Kingdom (2011) 52 EHRR 4
McCann v United Kingdom (2008) 47 EHRR 913
Minshall v United Kingdom [2012] 55 EHRR 36
Morris v United Kingdom (2002) 34 EHRR 52
Murphy v Ireland (2003) 38 EHRR 212
Mustafa v UK (2011) 52 EHRR SE11
N v United Kingdom (2008) 47 EHRR 885
NA v United Kingdom (2009) 48 EHRR 15
O’Donoghue v United Kingdom (2011) 53 EHRR 1
Öcalan v Turkey [2005] ECHR 282
O'Halloran v United Kingdom (2008) 46 EHRR 21
O'Rourke v United Kingdom (Application No 39022/97) (unreported) 26 June 2001
Peck v United Kingdom (2003) 30 EHRR 719
Pine Valley Developments v Ireland (1992) 14 EHRR 319
Pretty v United Kingdom (2002) 35 EHRR 1
Roche v United Kindgom (2006) 42 EHRR 30
S & Marper v United Kingdom (2008) EHRR 1581
S v United Kingdom (2009) 48 EHRR 50
Salduz v Turkey (2009) 49 EHRR 19
Saunders v United Kingdom (1994) 18 EHRR CD23
Schalk & Kopf v Austria [2010] ECHR 995
Scoppola v Italy (No 3) [2012] ECHR 868
Šilih v Slovenia (2009) 49 EHRR 37
Soering v United Kingdom (1989) 11 EHRR 439
Stec v United Kingdom (Admissibility) (2005) 41 EHRR SE18
Tyrer v United Kingdom (1979-80) 2 EHRR 1
VgT Verein v Switzerland (2002) 34 EHRR 4
Vogt v Germany (1996) 21 EHRR 205
Von Hannover v Germany (2005) 40 EHRR 1
Z and Others v United Kingdom (2002) 34 EHRR 3
51

ICJ CASES
Nicaragua v USA (merits) ICJ Rep 1986 14
North Sea Continental Shelf Cases 1969 ICJ 3
Right of Passage over Indian Territory (Portugal v India) 1957 ICJ 3
LEGISLATION
Administration of Justice Act 1969
European Communities Act 1972
Representation of the People Act 1983
Adoption (Northern Ireland) Order 1987
Human Rights Act 1998
Scotland Act 1998
Immigration and Asylum Act 1999
Communications Act 2003
Criminal Justice Act 2003
Prevention of Terrorism Act 2005
TREATIES
European Convention on Human Rights
Vienna Convention on the Law of Treaties
HANSARD
Hansard HC Deb 03 June 1997 vol 295 col 408
Hansard HC Deb 03 June 1997 vol 295 col 388
Hansard HC Deb 03 June 1997 vol 295 col 402
Hansard HC Deb 16 February 1998 vol 307 col 769
Hansard HL Deb 03 November 1997 vol 582 cc1227-1312
Hansard HL Deb 18 November 1997 vol 594 col 511
Hansard HL Deb 18 November 1997 vol 594 col 516
52

Hansard HL Deb 18 November 1997 vol 583 cc509 - 509
Hansard HL Deb 19 January 1998 vol 584 cc 1270 - 1271
Hansard HL Deb 03 March 1999 vol 597 col 1657
Joint Committee on Human Rights, Human Rights Judgements (15 November 2011,
HC 873-ii)
Rights Brought Home: The Human Rights Bill CM 3782 (October 1997)
JOURNAL ARTICLES
Aileen Kavanagh, ‘Judging the judges under the Human Rights Act: deference, disillusionment and the "war on terror"’ [2009] PL 287
Aileen Kavanagh, ‘Strasbourg, the House of Lords or Elected Politicians: Who decides about rights after Re P?’(2009) 72(5) MLR 828
Arthur Weisburd, ‘Customary International Law: The Problems of Treaties’ (1988) 21(1)
Vanderbilt Journal of Transnational Law 1
Baroness Hale ‘ArgentoratumLocutum: Is Strasbourg or the Supreme Court Supreme?’(2012)
12(1) HRL Rev 65
Beata Faracik, ‘Constructive dialogue as a cornerstone of the human rights treaty bodies supervision’ (2006) 38 Bracton LJ 39
Bharat Malkani, ‘A rights-specific approach to section 2 of the Human Rights Act’ (2012) 5
EHRLR 516
Christos Rozakis, ‘The European Judge as Comparatist’ (2005) 80 Tulane Law Review 257
Colm O’Cinneide ‘Human rights law in the UK - is there a need for fundamental reform’
(2012) 6 EHRLR 595
Eirik Bjorge, ‘National supreme courts and the development of ECHR rights’ (2011) 9(1)
IJCL 5
Eirik Bjørge, ‘The Courts and the ECHR: A Principled Approach to the Strasbourg
Jurisprudence’ (April 13, 2012). Oxford Student Legal Studies Paper No. 01/2012.
Available at SSRN: http://ssrn.com/abstract=2039378
Jane Wright, Interpreting section 2 of the Human Rights Act 1998: towards an indigenous jurisprudence of human rights’ [2009] PL 595
Janneke Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2011)
17(1) ELJ 80
Janneke Gerards, ‘The prism of fundamental rights’ (2012) 8(2) ECL Review 173
53

John Laws, ‘The Good Constitution’ (2012) 71(3) CJL 567
John Laws, ‘The Limitations of Human Rights’ [1998] PL 256
Jonathan Lewis, ‘‘In Re P and others: an exception to the "no more, certainly no less" rule’
[2009] PL 43
Jonathan Lewis, ‘The European Ceiling on Human Rights’ [2007] PL 720
Judge Sibrand Karel Martens, ‘Incorporating the European Convention: the role of the judiciary’ [1998] EHRLR 5
Julian Arato, ‘Constitutional Transformation in the ECtHR: Strasbourg’s Expansive Recourse to External Rules of International Law’ (2012) 37(2) Brooklyn Journal of
International Law 349
Keith Ewing & Joo-Cheong Tham, ‘The continuing futility of the Human Rights Act [2008]
PL 668
Keith Ewing, ‘The Futility of the Human Rights Act – A Long Footnote’ [2005] 37 Bracton
LJ 41
Keith Ewing, ‘The Futility of the Human Rights Act [2004] PL 829
Lady Arden, ‘Peaceful or Problematic? The relationship between National Supreme Courts and Supranational Courts in Europe’ (2010) 29(1) YEL 3
Lech Garlicki, ‘Cooperation of courts: The role of supranational jurisdictions in Europe’
(2008) 6(3-4) ICON 509, 512.
Lord Hoffman, ‘The universality of human rights’ (2009) 125 LQR 416
Lord Irvine, ‘A British Interpretation of Convention Rights’ [2012] PL 237
Luc B Tremblay, ‘The legitimacy of judicial review: the limits of dialogue between courts and legislatures’ (2005) ICON 644
Mads Andenas and Eirik Bjørge, ‘Ambrose, is the Ullah principle wrong? [2012] 128 LWR
319
Marny Requa, ‘Absent witnesses and the UK Supreme Court: judicial deference as judicial dialogue? (2010) 14(3) IJEP 208
Mary Arden, ‘The changing judicial role: human rights, Community law and the intention of
Parliament’ (2008) 67(3) CLJ 487
Melissa Waters, ‘Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law’ (2005) 93 Geo LJ 487
Merris Amos, ‘The dialogue between the United Kingdom courts and the European Court of
Human Rights’ (2012) 61(3) ICLQ 557
54

Merris Amos, ‘The Principle of Comity and the Relationship between British Courts and the
European Court of Human Rights’ (2009) 28(1) YEL 503
Neil MacCormick, ‘Why Cases have Rationes and What They Are’ in L Goldstein (ed),
Precedent in Law (Oxford 1987)
Nico Krisch, ‘The Open Architecture of European Human Rights Law’ (2008) 71 MLR 18
Nicolas Bratza, ‘The relationship between the UK Courts and Strasbourg’ (2011) EHRLR
505
Philip Sales, ‘Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord
Irvine’ (2012) 2 PL 253
Philip Sales and Joanne Clement, ‘International Law in Domestic Courts: the Developing
Framework’ (2008) 28 LQR 388
Philip Sales, ‘A comparison of the principle of legality and section 3 of the Human Rights
Act1998’ (2009) 125 LQR 598
Philip Sales and Richard Ekins, ‘Rights-consistent interpretation and the Human Rights Act’
(2011) 127 LQR 217
R R Baxter, ‘Multilateral Treaties as Evidence of Customary International Law’ (1965-1966)
41 BYBIL 275
Richard Bellamy, ‘Political constitutionalism and the Human Rights Act’ (2009) 9(1) ICON
86
Richard Clayton, ‘Judicial deference and "democratic dialogue": the legitimacy of judicial intervention under the Human Rights Act 1998’ [2012] PL 33
Richard Clayton, ‘Principles for judicial deference’ (2006) 11(2) JR 109
Richard Clayton, ‘Smoke and   mirrors: the Human Rights Act and the impact of Strasbourg case law’ [2012] PL 639
Richard Ekins. ‘The Intention of Parliament’ [2010] PL 709
Robert Wintermute, ‘The Human Rights Act’s First Five Years: too strong, too weak or just right?’ (2006) 17 Kings College Law Journal 209
Rodger Masterman ‘Deconstructing the Mirror Principle’ in R Masterman and I Leigh (eds),
The UK's Statutory Bill of Rights: Constitutional and Comparative Perspectives)
Available at SSRN: http://ssrn.com/abstract=2084090
Roger Masterman ‘Taking the Strasbourg jurisprudence into account: developing a
"municipal law of human rights" under the Human Rights Act’ [2005] ICLQ 907
55

Roger Masterman, ‘Section 2(1) of the Human Rights Act 1998: binding domestic courts to
Strasbourg?’ [2004] PL 725
Rolv Ryssdall, ‘The Coming Age of the ECHR’ [1996] EHRLR 18
Stephen Sedley, ‘Bringing rights home: time to start a family?’ (2008) 28(3) LS 327
Tawhida Ahmed & Israel de Jesús Butler, ‘The European Union and Human Rights: An
International Law Perspective’ (2006) 17(4) EJIL 771
Tom Bingham, ‘The European Convention on Human Rights: time to incorporate’ (1993)
109 LQR 390.
Tom Bingham, ‘The Human Rights Act’ 2010 EHRLR 568
BOOKS
Arden M, ‘On Liberty and the European Convention on Human Rights’ in Andenas M and
Fairgrieve D(eds),
Amicorum
Tom Bingham and the Transformation of the Law: A Liber
(Oxford 2009)
Bingham T, The Rule of Law (1st edn, Penguin 2010)
Clayton R and Tomlinson H, ‘Lord Bingham and the Human Rights Act 1998: The
Search for Democratic Legitimacy During the ‘War on Terror’’ in Andenas M and
Fairgrieve D (eds), Tom Bingham and the Transformation of the Law: A Liber
Amicorum (Oxford 2009)
Clayton R, The Law of Human Rights (2 nd
edn, Oxford 2009)
Craig P, Administrative Law (7th edn, Sweet and Maxwell 2012)
Fenwick H et al (eds), Judicial Reasoning under the Human Rights Act (Cambridge
2007)
Harris D, O’Boyle M, and Warbrick C, Law of the European Convention on Human Rights
(Butterworths 1995)
Hart H, The Concept of Law (2nd edn, Oxford 1994) 135
Jowell J, ‘Judicial Deference and Human Rights: A Question of Competence’ in Craig P and Rawlings R (eds), Law and Administration in Europe: Essays in Honour of
Carol Harlow (Oxford 2003).
Legg A, The Margin of Appreciation in International Human Rights Law: Deference and
Proportionality (Oxford 2009)
Lester, Pannick and Herberg, Human Rights Law and Practice (3rd edn, LexisNexis 2009)
56

Reed R and Murdoch J, Human Rights Law in Scotland (3 rd
edn, Bloomsbury 2012)
Sales P, ‘The General and the Particular: Parliament and the Courts under the Scheme of the
European Convention on Human Rights’ in Andenas M and Fairgrieve D (eds), Tom
Bingham and the Transformation of the Law: A Liber Amicorum (Oxford 2009)
COUNCIL OF EUROPE PUBLICATIONS
European Court of Human Rights, Dialogue between judges 2012: How can we ensure greater involvement of national courts in the Convention system?
Europe, 2012)
(Council of
European Court of Human Rights, Dialogue between judges 2011: What are the limits to the evolutive interpretation of the Convention ? (Council of Europe, 2011)
European Court of Human Rights, Dialogue between judges 2010: The Convention is yours
(Council of Europe, 2010)
European Court of Human Rights, Country Fact Sheets 1959-2010 (Council of Europe 2011)
SPEECHES & LECTURES
Lord Elias, ‘The rise of the Strasbourgeoisie: judicial activism and the ECHR’ Statute Law
Society Annual Lord Renton Lecture (Institute for Advanced Legal Studies, London 24
November 2009) 9, 11-12.
Available at:
<http://www.statutelawsociety.org/__data/assets/word_doc/0019/85321/EliasLectureSLS24.1
1.09FINAL.doc>
Baroness Hale, ‘Law Lords at the Margin: Who Defines Convention Rights?’ JUSTICE Tom
Sargant Memorial Annual Lecture 2008 (London, 15 October 2008)
Available at: <http://www.justice.org.uk/resources.php/169/law-lords-at-the-margin>
Lord Kerr, ‘The UK Supreme Court: The Modest Underworker of Strasbourg?’ (Clifford
Chance Lecture, 25th January 2012)
57

Available at: < http://www.supremecourt.gov.uk/docs/speech_120125.pdf>
Lord Howard, ‘The Human Rights Act: Bastion of Freedom or Bane of Good Government’
Kingsland Memorial Lecture (Policy Exchange London 2011)
Available at http://www.policyexchange.org.uk/images/publications/the%20human%20rights%20act%20
< bastion%20of%20freedom%20or%20bane%20of%20good%20government%20-
%20nov%2011.pdf.>
Lord Bingham ‘The Way We Live Now: Human Rights in the New Millennium’ The Earl
Grey Memorial Lecture (University of Newcastle upon Tyne, 29 January 1998)
Available at: < http://webjcli.ncl.ac.uk/1998/issue1/bingham1.html>
NEWS ARTICLES
Stephen Pollard, ‘Yet another farce from the hated Human Rights Act’ The Daily Express
(London) 13 January 2012)
Leo McKinstry, ‘Human right’s ( sic
) act has become the villain’s ( sic
) charter’ The Daily
Express (London, 23 October 2011)
James Slack, ‘Unelected euro judges are bringing terror to the streets of Britain’ The Daily
Mail (London, 18 January 2012)
Editorial, ‘Do us rights’ The Sun (London, 11 February 2011)
MISCELLANEOUS REPORTS
International Law Association, ‘International Human Rights Law and Practice: Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies’ (Berlin
Conference 2004).
Available at <http://www.ila-hq.org/download.cfm/docid/3B0BF58A-C096-4113-
830E8E1B5BC6DEC5>
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