Although Strasbourg jurisprudence has only persuasive force under s 2, it has been argued that ‘it has been treated in a fashion that comes close to giving binding force.’38 Such an approach
demonstrates reluctance on behalf of the j udiciary to adopt an expansive Bill of Rights
approach towards s 2 and to use their discretion to create free-standing domestic rights which go beyond the limits of Strasbourg; an assessment which is supported by Leigh and
Masterman, who state that ‘[t]he trend of judicial reasoning under section 2(1) has
overwhelmingly been towards limiting this area of discretion.’39 This can be seen in a number
of cases since the passing of the HRA which demonstrate a mixed response by the judiciary towards s 2, first, with how to engage with Strasbourg case law. As Leigh and Masterman note, ‘[i]n some cases counsel were told that domestic legislation already fully took into account the Convention so that it was unnecessary to cite relevant jurisprudence.’40
For example, in Re F (Care: Termination of Contract),41 Mr Justice Wall displayed a greater trust
in English legal criteria of fairness and justice over that of Strasbourg reasoning when
discussing compatibility with Convention rights, thus showing a flagrant disregard for his duty under s 2 to even take into account such case law ‘whenever made or given.’ Similarly, in R v
Davis (Michael George) (No 3),42 Lord Justice Mantell, as argued by Leigh and Masterman,
‘stressed that the duty under the HRA to ‘take account’ of the Strasbourg decision did not mean that the English court had ‘to adopt’ or ‘to apply it,’’43 thus illustrating a degree of
judicial distrust in their own powers under the HRA, stressing a desire to follow decisions of
36
See Hansard HL vol 583 col 510 (18 November 1997). 37
Clayton, R. ‘The Human Rights Act six years on: where are we now?’ (2007) EHRLR 11, 18. 38 Fenwick (n 8) 192.
39
Leigh and Masterman (n 4) 60. 40
Ibid 56.
41 [2000] 2 FCR 481; The Times, 22 June 2000. 42
[2001] 1 Cr App R 8 [60]. 43
the House of Lords as always as opposed to engaging in meaningful human rights dialogue. This was made most explicit in the case of R (Bright) v Central Criminal Court,44 where Lord
Justice Judge stated that ‘we [judges] are not permitted to re-examine decisions of the European Court to ascertain whether the conclusion of the House of Lords or the Court of Appeal may be inconsistent with those decisions, or susceptible to a continuing gloss.’45
Indeed, as far as the early cases under the HRA are concerned, there would appear to be a distinct rejection of the very idea put forward by Lord Bingham of judges having a ‘significant contribution to make in the development of the law of human rights,’46 a rejection which,
according to Leigh and Masterman, ‘is down to a ‘dangerous complacency over home-grown standards of justice, with a dash of mild Europhobia thrown in for good measure.’47 However,
despite such harsh and arguably inevitable reactions towards the introduction of s 2, it has still been asserted that such ‘invocation of the doctrine of precedent and attempts to distinguish Strasbourg case law were reassuring: they indicate just how quickly most judges appear to have adjusted to the influx of a substantial new source of law into the legal system’ thus leading to an ‘engagement with the Strasbourg decisions at a detailed and sometimes
extensive level.’48 Though this may be true, thus suggesting a greater degree of human rights
discussion and dialogue within the UK judiciary, it has still been argued that the intention behind the HRA and s 2 to develop Convention rights for the domestic sphere and, most importantly, to provide a floor and not a ceiling for Convention rights, has been lost because of what Jonathan Lewis describes as the ‘mirror principle.’49
According to Lewis, the ‘mirror principle’ is a description of the judiciary’s approach towards jurisprudence they are obliged to take into account under s 2; namely that ‘the scope and content attributed by domestic courts must always match that attributed to Convention rights by the European Court of Human Rights.’50 The basis for such a claim can be traced to Lord
Slynn’s dictum in R (on the application of Alconbury Developments Ltd.) v Secretary of State for
the Environment.51 Here, Lord Slynn stated that:
Although 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
44
[2001] 1 WLR 662. 45
Ibid 682.
46 Hansard HL vol 582 col 1245 (3 November 1997). 47
Leigh and Masterman (n 4) 57. 48
Ibid 59.
49 Lewis, J. ‘The European ceiling on human rights’ (2007) PL 720, 725. 50
Ibid 720. 51
the absence of special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court which is likely in the ordinary case to follow its own constant jurisprudence.52
According to Fenwick, this ‘stance appears to indicate that the domestic courts cannot provide greater Convention protection for citizens than is available at Strasbourg – that they are inhibited in developing a more expansive domestic Convention jurisprudence.’53
This would certainly appear to be the case, especially when one considers the House of Lords’ decision in R (on the application of Begum) v Denbigh High School, where it was held that ‘the purpose of the HRA was not to enlarge the rights or remedies of those in the United Kingdom whose Convention rights have been violated, but to enable Convention rights and remedies to be asserted and enforced by the domestic courts, and not only by recourse to Strasbourg.’54
Such a decision by the House of Lords demonstrates a clear rejection of the view that the HRA creates domestic rights,55 thus also rejecting the adoption of a generous ‘living tree
interpretation’ of the Convention rights which is used by other constitutional states with a Bill of Rights. A similar sentiment was also expressed in R (on the application of Ullah) v Special
Adjudicator, where Lord Bingham reiterated Lord Slynn’s statement that ‘clear and constant’
jurisprudence should be followed subject to ‘special circumstances,’ asserting that this approach ‘reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this, it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law.’56 Indeed, as
Clayton reservedly acknowledges, ‘[i]t is a well established principle that when treaty
obligations are incorporated into domestic law, the obligation will be construed by reference to the principles of international law governing its interpretation rather than any domestic principle of construction.’57 Because of this, it could be said that the adoption by the courts of
the ‘mirror principle’ is in line with conventional judicial approaches. However, it is submitted that such an argument stands in opposition to the apparent desire and intention of Parliament 52 Ibid [26]. 53 Fenwick (n 8) 193. 54 [2006] UKHL 15; [2006] 2 WLR 719 [29]. 55
In re McKerr [2004] UKHL 12 (Lord Hoffmann) [65]: ‘What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights, not international rights. Their source is the statute, not the Convention.’
56
[2004] UKHL 26 [20]. 57
for UK courts to ‘take their lead from Strasbourg’58 and thus create domestic human rights for
the UK as typified by Bills of Rights.59