Open UKLSR Volume 1(2) - Uklsa

The Human Rights Act Section 2(1) Taken into Account
only that the courts “take into account” Strasbourg authority. As has been explained,
within this term there is substantial scope for discretion. Whereas one might rightly be
hesitant about adopting a meaning lesser than one provided for by Strasbourg and
thereby likely violating human rights, one need hardly be as diligent in providing too
much protection.
Moreover, it is not true that affording greater protection than Strasbourg has thus far
provided would take domestic courts beyond their jurisdiction. Affording rights
greater than those provided by Strasbourg case law does not transform them into
freestanding rights going beyond the Convention and the UK’s treaty obligations.
Strasbourg jurisprudence is more nuanced than this. Lord Hope’s position assumes
that it is alone Strasbourg’s role to define the Convention rights, just as Lord Bingham
claimed:
The Convention is an international instrument the correct interpretation of
which can be authoritatively expounded only by the Strasbourg court. 70
Similarly, Buxton LJ in the Court of Appeal contended that:
where an international court has the specific task of interpreting an
international instrument it brings to that task a range of knowledge and
principle that a national court cannot aspire to. 71
Under such an interpretation, one might well claim that, Strasbourg alone being
capable of defining Convention rights, it would be beyond the jurisdiction of British
courts – under a maximum duty to protect “Convention rights” – to afford a definition
greater than that already provided by Strasbourg.
However, whilst the ECtHR should certainly have final authority on appeal, it is not
specifically the case law that has absolute authority, because this may not have taken
into account specific objections relating to the particular domestic, legal and cultural
context in question. British society is indubitably especially liberal in its cultural
traditions, and as such should rightly be beholden to a higher standard. Simply
because the ECHR is a common minimum does not mean the obligations of a specific
country do not go further than to maintain that minimum. As former ECtHR Judge
Karel Martens has explained:
[domestic courts] should go further than seeing to it that the minimum
standards in the ECHR are maintained. That is because the ECHR’s
injunction to further realise human rights and fundamental freedoms
contained in the preamble is also addressed to domestic courts.” 72
In conjunction with this, one must remember that, under Handyside, it is for domestic
courts in the first place to secure the rights and freedoms the Convention enshrines. 73
Where they believe they have not done so, viz. that they have not provided sufficient
protection to secure the rights rather than believing that they have provided too much,
70 Ullah (n 63) 350.
71 R (on the application of Anderson) v Secretary of State for the Home Department [2002] 2 W.L.R.
1143, 1168.
72 Judge Sibrand Karel Martens, “Incorporating the European convention: The Role of the Judiciary”
[1998] EHRLR 5, 14.
73 Handyside (n 48) 753.
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