Salinidad

Section 2(1) states that judges ‘must take into account’ Strasbourg case law when ‘determining a question which has arisen in connection with a Convention right;’ they are not bound by it. Thus, Strasbourg case law is given persuasive, but not binding, authority. As Harris et al states, Strasbourg decisions are ‘essentially declaratory’6 _{in their nature and, according to Smith, ‘it is}

difficult sometimes, to read them as giving rise to any clear ratio decidendi; of the kind of sought and applied by common lawyers.’7 _{Arguably, therefore, the decision to not make such}

case law binding on the UK courts was done out of necessity and common sense; domestic discretion is needed in order to make sense of the decisions of an international court which makes decisions on issues for over forty countries.8 _{Thus, discretion is arguably essential}

because, as Lord Irvine makes clear, ‘[t]he courts will often be faced with cases that involve factors perhaps specific to the United Kingdom which distinguish them from cases considered by the European Court … it is important that our courts have the scope to apply that discretion so as to aid the development of human rights law.’9

Indeed, according to the government white paper, s 2 was designed in order to permit a ‘distinctively British contribution to the development of the jurisprudence of human rights in Europe.’10 _{Therefore, Parliament wanted British judges to have greater interpretive discretion}

so that they could ‘make an express contribution to the decisions of the European Court,’11 _as

human rights law had, for many decades, been interpreted solely in light of European traditions. It could therefore be argued that the HRA was not inte nded to merely give easier access to the Convention rights within the domestic law, but to create domestic rights subject to judicial discretion akin to the ‘living tree interpretation’ of Bills of Rights in other

6 _{Harris, D.J. O’Boyle, M. and Warbrick, C. Law of the European Convention on Human Rights (London:} Butterworths, 1995) 26.

7

Smith, A.T.H. ‘The Human Rights Act: The Constitutional Context,’ in Cambridge Centre for Public Law,

The Human Rights Act and the Criminal Justice and Regulatory Process (Oxford: Hart Publishing, 1999) 6.

8

Fenwick, H. M. Civil Liberties and Human Rights (Routledge-Cavendish, 2007) 191: ‘the adoption of the Strasbourg jurisprudence may, sometimes have the effect of ‘reading down’ the right due to the effect of the margin of appreciation doctrine.’

9

Hansard HL vol 584 cols 1270-71 (19 January 1998). 10

Rights Brought Home: The Human Rights Bill (Cm 3782, 1997) <http://www.archive.official- documents.co.uk/document/hoffice/rights/intro.htm> accessed 12.08.2009 [1.14].

11

Hoffman, D. and Rowe, J. Human Rights in the UK: A general introduction to the Human Rights Act (London: Longman, 2003) 53.

constitutional states.12 _{In addition to this, because the obligation under s 2 is not restricted to}

legislation, it has been suggested that the courts are obliged to develop the common law in light of the Convention rights;13 _{an obligation which is arguably reinforced by the additional}

duty upon the courts, as a public authority under s 6, to not infringe any of the Convention rights.14 _{So far, however, the impact of this obligation appears to have been restricted to the}

law of privacy.15

It has been argued by Fenwick that this obligation on the courts to merely take into account Strasbourg decisions and not to be bound by them makes it ‘open to the judiciary to consider but disapply a particular decision.’16 _{This is supported by Masterman, who states that s 2(1)}

‘creates a significant judicial discretionary power.’17 _{As a consequence of this, the ‘ability of}

domestic courts to depart from Strasbourg jurisprudence has been seen by a number of commentators as one of the characteristics of the HRA which most resembles such a Bill [of Rights].’18 _{Such an assertion does have merit, as any increase in judicial power could fit, at the}

very least, the definition of a third wave Bill of Rights. For instance, as argued by Lord Kingsland, the absence of a duty to follow Strasbourg precedence in the HRA ‘means that the Bill [HRA] is effectively a domestic Bill of Rights and not a proper incorporation of international rights. It means that the judges … are not obliged to act on it and can go in whatever direction they wish,’19 _{just as Fenwick argues above. Therefore, as a result, it is clear that ‘the injunction}

contained in HRA section 2(1) that courts should take Strasbourg jurisprudence into account is a flexible adjudicatory device but one which inevitably creates an area of uncertainty for judges.’20

This sentiment is also reflected in part by Lord Kingsland, who agues that ‘if our judges only take account of the jurisprudence of the European Court of Human Rights, we cast them adrift from their international moorings.’21 _{It is this, he argues, that causes the HRA under s 2 to}

12 _{See Huscroft, G. ‘The Trouble with Living Tree Interpretation’ (2006) 25 U. Queensland L.J. 24.} 13

See Fenwick (n 8) 198; Kavanagh, A. Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2009) 144; and Wright, J. ‘Interpreting s 2 of the Human Rights Act 1998: towards an indigenous jurisprudence of human rights’ (2009) PL 595, 599-600.

14

Kavanagh (n 13). 15

Wright (n 13). For a more in-depth discussion see Chapter Five. 16 _{Fenwick (n 8) (emphasis added).}

17

Masterman, R. ‘Aspiration or Foundation? The status of the Strasbourg jurisprudence and the ‘Convention rights’ in domestic law’ in Fenwick, H. Phillipson, G. and Masterman, R. (eds.) Judicial

Reasoning under the UK Human Rights Act (Cambridge University Press, 2007) 62.

18

Ibid. See also Bonner, D. Fenwick, H.M. and Harris-Short, S. ‘Judicial Approaches to the Human Rights Act’ (2003) 52 ICLQ 549, 553.

19 _{Hansard HL vol 583 col 514 (18 November 1997).} 20

Tierney, S. ‘Devolution issues and s 2(1) of the Human Rights Act 1998’ [2000] EHRLR 380, 392. 21

become a domestic Bill of Rights because ‘[t]he Bill [HRA] … will have no accurate charts by which to sail because judges are obliged only to take account of provisions of the

Convention.’22 _{This issue is therefore of fundamental importance to the status of the HRA. If s}

2 is to make the HRA a de facto Bill of Rights, much will depend on the extent to which the judges themselves use their discretion under s 2 to apply Strasbourg jurisprudence.