Open UKLSR Volume 1(2) - Uklsa

UK Law Students’ Review – 2013 – Volume 1, Issue 2
there must be especial grounds for going beyond case law. It is part of the Strasbourg
jurisprudence that domestic courts may take the lead in interpreting and securing the
relevant rights. The meaning of the Convention is not, as Lord Hope seems to suggest,
fixed under treaty obligations by ECtHR case law until Strasbourg itself decides
otherwise on appeal. Unlike where potentially insufficient protection is granted by
domestic courts, it is difficult to imagine a domestic ruling that extends ECHR
protection being rejected by Strasbourg. Rather, it is to be seen as requisite under the
cultural traditions of the UK that domestic courts are better placed to understand, if
not under the UK’s ECHR direction to “further realise human rights and fundamental
freedoms” which is just as much addressed to the courts. 74 Therefore, where British
courts perceive the need for greater protection than provided in Strasbourg case law, it
is entitled to provide it within the ambit of the UK’s ECHR obligation.
One might note also, with regard to Lord Bingham’s Ullah statement cited above, that
Strasbourg jurisprudence does not “evolve” independently. Challenges to its position
are needed to prompt development. The then-President of the Court has written that:
[The Strasbourg Court] has been particularly respectful of decisions
emanating from courts in the United Kingdom since the coming into effect
of the Human Rights Act and this because of the very high quality of the
judgments of these courts, which have greatly facilitated our task of
adjudication. In many cases, the compelling reasoning and analysis of the
relevant case-law by the national courts has formed the basis of the
Strasbourg Court's own judgment. 75
From all this it is evident that British courts are very much a part of the ECHR
jurisprudence and a part of its evolution. Strasbourg recognises this, and so the British
courts are entitled to do so too. Interpretation of Convention rights as greater than that
provided in other cases by the ECtHR is therefore not beyond the legitimate role of
British courts.
Furthermore, the objection to the contrary within the Ullah principle is inconsistent. In
this particular respect, the courts have restricted themselves for fear of exceeding their
jurisdiction, denying themselves the ability to develop the law. Yet on the other hand,
they have allowed themselves the freedom to take into account considerations beyond
those applying to the protection of British law, namely that divergences of Convention
rights between nations is undesirable. It is well noted that the HRA merely
incorporated Convention rights into British law. 76 Where then does the court derive its
authority to consider issues of ulterior scope – to let what ultimately becomes British
law be decided by considerations purely of the Convention as applicable to other
states? This in itself is involving the courts in issues of wider diplomacy, foreign
affairs and statecraft. To deny protection felt otherwise necessary and within its
jurisdiction on the basis merely of its influence beyond Britain is to accept an
authority to make a wider impact, to make a “distinctive contribution to human
rights” 77 .
74 Judge Martens (n 72) 14.
75 Bratza (n 68) 507.
76 As per Lord Hoffman, In re McKerr [2004] 1 W.L.R. 807, 826.
77 HL Deb (n 35) col 1227.
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