Taking the Strasbourg jurisprudence into account: Developing a 'Municipal Law of Human Rights' under the human rights act

International and Comparative Law Quarterly

Volumn 54, Issue 4, 2005, Pages 907-932

  Masterman, Roger ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

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EID: 27844435292     PISSN: 00205893     EISSN: None     Source Type: Journal    
DOI: 10.1093/iclq/lei042     Document Type: Review

References (167)

1. JAG Griffith The Politics of the Judiciary (Fontana Press London 1991) chs 8 and 9
2. R Stevens The English Judges (Hart Publishing Oxford 2002) ch 5
3. A Bradley 'Judicial Independence Under Attack' [2003] PL 397.
4. 'The Convention Rights' are defined in s 1(1) HRA and include Arts 2-12 and 14 of the Convention, Arts 1-3 of the First Protocol and Arts 1 and 2 of the Sixth Protocol; the 'Convention Rights' are to be read with Arts 16-18 of the Convention. The discussion which follows should be taken as referring to the interpretation in the domestic context of those rights included in s 1(1) HRA; as regards those parts of the Convention which are not given 'further effect' through the HRA-eg Art 1-it is entirely arguable that a closer adherence to the Strasbourg case law than advocated in the following might be appropriate: On which see R (on the application of Al-Skeini) v Secretary of State for Defence [2005] HRLR 3.
5. On which see: C Gearty 'Reconciling Parliamentary Democracy and Human Rights' (2002) 118 LQR 248. The ability to grant such a declaration is however, only vested in the 'higher' courts: S 4(5) HRA.
6. R Clayton 'Judicial Deference and "Democratic Dialogue": The legitimacy of judicial intervention under the Human Rights Act 1998' [2004] PL 33, 34.
7. R v A (No 2) [2002] 1 AC 45, 68, per Lord Steyn.
8. For commentary on the developing case law on s 3(1) HRA see: Gearty (n 3)
9. G Phillipson '(Mis)-Reading Section 3 of the Human Rights Act' (2003) 119 LQR 183
10. C Gearty 'Revisiting Section 3 of the Human Rights Act' (2003) 119 LQR 551
11. A Kavanagh 'The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998' 24(2) OJLS (2004) 259.
12. Re S (Children) (Care Order: Implementation of Care Plan); Re W (Children) (Care Order: Adequacy of Care Plan) [2002] 2 AC 291, para 40, per Lord Nicholls.
13. R v A (No2) (n 5).
14. R (on the application of Anderson) v Secretary of State for the Home Department [2003] 1 AC 837.
15. D Nicol 'Statutory Interpretation and Human Rights after Anderson' [2004] PL 274, 280.
16. Cf A Kavanagh 'Statutory interpretation and human rights after Anderson: A more contextual approach' [2004] PL 537.
17. Anderson (n 9) para 30, per Lord Bingham.
18. ibid.
19. Although questions of 'compatibility' under s 3(1) and s 6(1) are determined by reference to 'the Convention rights'.
20. H Fenwick Civil Liberties and Human Rights (3rd edn Cavendish London 2002) 146-7.
21. S Grosz, J Beatson, and P Duffy Human Rights: The 1998 Act and the European Convention (Sweet & Maxwell London 2000) 18.
22. R Masterman 'Section 2(1) of the Human Rights Act 1998: Binding domestic courts to Strasbourg?' [2004] PL 725, 731-5.
23. ATH Smith 'The Human Rights Act: The Constitutional Context' in Cambridge Centre for Public Law The Human Rights Act and the Criminal Justice and Regulatory Process (Hart Publishing Oxford 1999) 6.
24. The preamble to the ECHR contains the following: 'Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms.'
25. Section 6(1) HRA.
26. Tyrer v United Kingdom (1979-80) 2 EHRR 1, para 30.
27. See eg Cossey v United Kingdom (1991) 13 EHRR 622, para 35.
28. Stafford v United Kingdom (2002) 35 EHRR 32, para 68.
29. That the Convention is a 'living instrument' has been acknowledged by domestic courts in litigation under the HRA: See eg Brown v Stott [2003] 1 AC 681, 727, per Lord Clyde.
30. Grosz, Beatson, and Duffy (n 15) 20.
31. See also Handyside v United Kingdom (1979-80) 1 EHRR 737, para 49.
32. Handyside v United Kingdom (n 24) para 48.
33. Judge Sibrand Karel Martens 'Incorporating the European Convention: The role of the judiciary' (1998) EHRLR 5, 14.
34. HL Deb vol 583 col 514 18 Nov 1997.
35. ibid Art 46(1) ECHR provides: 'The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are the parties.' Art 46(2) provides the task of supervising the execution of such a judgment is exercised by the Committee of Ministers.
36. HL Deb vol 583 col 515 18 Nov 1997.
37. HL Deb vol 584 cols 1270-1 19 Jan 1998.
38. The House of Lords seems to have in general adopted quite a strict approach to the issue of 'following' Strasbourg decisions. The following quote from Lord Bingham is a typical example: 'In my opinion, even if the United Kingdom courts are only to take account of the Strasbourg decisions and are not strictly bound by them (s 2 of the Human Rights Act 1998), where the Court has laid down principles and, as here a minimum threshold requirement, United Kingdom courts should follow what the court has said. If they do so without good reason the dissatisfied litigant has a right to go to Strasbourg where existing jurisprudence is likely to be followed' (R v Secretary of State for the Home Department, ex parte Amin [2004] 1 AC 653, para 44).
39. HL Deb vol 595 col 784-6 24 Nov 1997.
40. R (on the application of Ullah) v Special Adjudicator; Do v Immigration Appeal Tribunal [2004] UKHL 26, para 20, per Lord Bingham.
41. Grosz, Beatson, and Duffy (n 15) 20. A possibility which has been recognized in domestic litigation: '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' (R (on the application of S) v Chief Constable of South Yorkshire; R (on the application of Marper) v Chief Constable of South Yorkshire [2003] 1 All ER 148, 157-8, per Lord Woolf).
42. F Klug 'The Human Rights Act-A "Third Way" or "Third Wave" Bill of Rights' (2001) EHRLR 361, 370
43. D Bonner, H Fenwick, and S Harris-Short 'Judicial Approaches to the Human Rights Act' (2003) 52 ICLQ 549, 553.
44. Clayton (n 4) 33-4.
45. Thoburn v Sunderland City Council [2003] QB 151, para 62.
46. See eg Brown v Stott (n 23) 703, per Lord Bingham.
47. Lord Steyn 'The New Legal Landscape' [2000] EHRLR 549, 550.
48. On which see KD Ewing 'A Bill of Rights: Lessons from the Privy Council' in W Finnie, CMG Himsworth and N Walker (eds) Edinburgh Essays in Public Law (Edinburgh University Press Edinburgh 1991) 236-41.
49. ibid 238-9. In that case Lord Wilberforce outlined the 'generous and purposive' approach to be taken suggesting that it would, 'treat a constitutional instrument such as this sui generis, calling for principles of interpretation of its own, suitable to its character ... without necessary acceptance of all the presumptions that are relevant to legislation of private law'. He continued, '[r]espect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point for departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the constitution commences' (Minister of Home Affairs v Fisher [1980] AC 319, 329).
50. A Lester 'The Human Rights Act 1998-Five Years On' [2004] EHRLR 258, 259-60.
51. It should be noted that there has been some disagreement over the appropriateness of giving the Convention rights themselves a 'generous' interpretation: See D Pannick 'Principles of interpretation of Convention rights under the Human Rights Act and the discretionary area of judgment' [1998] PL 545
52. RA Edwards 'Generosity and the Human Rights Act: The right interpretation? [1999] PL 400.
53. R v DPP, ex parte Kebilene [2000] 2 AC 326, 375, per Lord Hope.
54. Brown v Stott (n 23) 703, per Lord Bingham.
55. Clayton (n 4) 34.
56. KD Ewing and CA Gearty 'Rocky Foundations for Labour's New Rights' (1997) EHRLR 146, 147.
57. See also S Fredman 'Scepticism under Scrutiny: Labour Law and Human Rights' in T Campbell, KD Ewing, and A Tomkins (eds) Sceptical Essays on Human Rights (OUP Oxford 2001) 210.
58. Handyside v United Kingdom (n 24), para 48.
59. Lord Irvine of Lairg 'Activism and Restrain: Human Rights and the Interpretive Process' in Cambridge Centre for Public Law The Human Rights Act and the Criminal Justice and Regulatory Process (Hart Publishing Oxford 1999) 14.
60. DJ Harris, M O'Boyle, and C Warbrick Law of the European Convention of Human Rights (Butterworths London 1995) 26.
61. ibid where the example given is of Vermeire v Belgium (1993) 15 EHRR 488.
62. Smith (n 17) 6.
63. C Warbrick '"Federal" aspects of the European Convention on Human Rights' (1989) 10 Michigan Journal of International Law 698, 715-16.
64. And should also note that the margin of appreciation may not only vary as between subject matter but also as between the justification relied upon for the restriction of a right: Sunday Times v United Kingdom (1979-80) 2 EHRR 245, para 59.
65. Although - in the words of the Commission - those circumstances 'cannot of themselves be decisive' (Dudgeon v United Kingdom (1981) 3 EHRR 40, para 114).
66. H Fenwick and G Phillipson 'Direct Action, Convention Values and the Human Rights Act' (2001) 21 LS 535, 553-4.
67. Masterman (n 16).
68. R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para 26.
69. See also Anderson (n 9) para 18
70. Amin (n 31) para 44.
71. Cf, eg, Sheffield and Horsham v United Kingdom (1999) 27 EHRR 163
72. with Goodwin v United Kingdom (2002) 35 EHRR 18.
73. For discussion of the possible justifications for departing from 'relevant' Strasbourg case-law, see below n 113-16.
74. A Clapham 'The European Convention on Human Rights in the British Courts: Problems Associated with the Incorporation of International Human Rights' in P Alston (ed) Promoting Human Rights Through Bills of Rights (Oxford University Press Oxford 1999) 134-5.
75. Although some judicial comment seems to indicate that although national courts might have the autonomy to give 'maximum protection' to the international standards at the domestic level, they would not necessarily do so if that means going beyond the 'Strasbourg standard': '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 Convention should be uniform throughout the States party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: No more, but certainly no less' (Ullah (n 33) para 20, per Lord Bingham).
76. ibid see also R v Chief Constable of South Yorkshire, ex parte LS; R v Chief Constable of South Yorkshire, ex parte Marper [2004] UKHL 39, para 27, per Lord Steyn, para 66, per Lord Rodger, and para 78, per Baroness Hale.
77. Runa Begum v Tower Hamlets London [2002] 2 All ER 668, para 17.
78. See also R (on the application of Prolife Alliance) v British Broadcasting Corporation [2002] 2 All ER 756, paras 33-44: 'The English court is not a Strasbourg surrogate ... our duty is to develop, by the common law's incremental method, a coherent and principled domestic law of human rights ... treating the ECHR text as a template for our own law runs the risk of an over-rigid approach.'
79. Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2002] Ch 51, 65.
80. Minister of Home Affairs v Fisher (n 41) 329, per Lord Wilberforce.
81. Brown v Stott (n 23) 707, per Lord Steyn.
82. For the viewpoint of the Strasbourg Court on the objectives of the Convention see: United Communist Party of Turkey v Turkey (1998) 26 EHRR 121, paras 43-5.
83. D Pannick and A Lester Human Rights Law and Practice (Butterworths London 1999) 68-9.
84. Artico v Italy (1981) 3 EHRR 1, para 33.
85. Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, para 69.
86. Sunday Times v United Kingdom (n 54) para 65.
87. As in, eg, Otto-Preminger Institute v Austria (1985) 19 EHRR 34.
88. As in, eg, the case law on public protest, on which see: H Fenwick and G Phillipson 'Public Protest, the Human Rights Act and Judicial Responses to Political Expression' [2000] PL 627, 640-1.
89. Strasbourg decisions on restrictions on freedom of expression on grounds of morality provide useful examples: Handyside v United Kingdom (n 24);
90. Müller v Switzerland (1991) 13 EHRR 212.
91. Fenwick and Phillipson (n 56) 564.
92. Justice Antonin Scalia 'The Bill of Rights: Confirmation of Extent Freedoms or Invitation to Judicial Creation?' in G Huscroft and P Rishworth (eds) Litigating Rights: Perspectives from Domestic and International Law (Hart Publishing Oxford 2002) 23.
93. F Klug 'The Human Rights Act 1998, Pepper v Hart and All That' [1999] PL 246, 251.
94. For a particularly useful examination of the use of comparative jurisprudence in human rights adjudication see C McCrudden 'A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights' (2000) 20(4) OJLS 499.
95. Brown v Stott (n 23).
96. ibid 724.
97. Attorney-General's Reference, No 4 of 2002 [2004] UKHL 43, para 33.
98. See also Douglas v Hello! Ltd [2001] QB 967, 989, per Brooke LJ.
99. Funke v France (1993) 16 EHRR 297, para 44
100. Murray v United Kingdom (1996) 22 EHRR 29, paras 44-5
101. Saunders v United Kingdom (1997) 23 EHRR 313, paras 67-76.
102. Although in those circumstances it should not simply be assumed that the domestic judge will 'take account' of decisions from other jurisdictions: R (on the application of the National Union of Journalists v Central Arbitration Committee [2004] EWHC 2612, para 49, per Hodge J: 'it seems to me that ... the Canadian jurisprudence adds little to the interpretation in this case.'
103. Campbell v MGN Ltd [2004] 2 AC 457.
104. G Phillipson 'Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act' (2003) 65 MLR 726, 731.
105. [2002] 2 WLR 1034, 1045.
106. A Lester and L Clapinska 'Human Rights and the British Constitution' in J Jowell and D Oliver (eds) The Changing Constitution (5th edn OUP Oxford 2004) 83.
107. An exception to this general point might be if the actual content of the Convention right was unclear.
108. R v A (No 2) (n 5), paras 100-2.
109. This case is also of interest due to the reliance placed in particular on two decisions of the Supreme Court of Canada - R v Seaboyer [1991] 2 SCR 577
110. and R v Darrach (2000) 191 DLR (4th) 539 - due to the similarity of the restrictions on admissible evidence in rape trials in place under the Canadian Criminal Code.
111. R v Lambert [2002] 2 AC 545.
112. ibid para 34 (State v Coetzee [1997] 2 LRC 593).
113. ibid para 35 (R v Whyte (1998) 51 DLR 4th 481).
114. As Lord Steyn has noted extra-judicially, the classification of a right as constitutional 'is a powerful indication that added value is attached to the protection of the right. It strengthens the normative force of such rights. It virtually rules out arguments that such rights can be impliedly repealed by subsequent legislation' (Lord Steyn 'Dynamic Interpretation amidst an orgy of statutes' [2004] EHRLR 245, 252). For criticisms of the common law method of rights protection see J Doyle and B Wells 'How far can the common law go towards protecting human rights?' in Alston (n 61) 17.
115. International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, para 71.
116. R (on the application of Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, para 27.
117. Lord Cooke of Thorndon 'The Road Ahead for the Common Law' 53 ICLQ 273, 276-7.
118. Douglas and others v Hello! (n 80) 998.
119. The symbiotic relationship between the common law and a 'bill of rights' has also been noted by the Chief Justice of Canada, Beverly McLachlin: 'bills of rights do alter the common law ... the common law modifies a bill of rights, even an entrenched bill of rights. The result is a hybrid system, incorporating aspects of the rights tradition into the common law and vice versa' (B McLachlin 'Bills of Rights in Common Law Countries' (2002) ICLQ 197, 197.
120. Campbell v MGN Ltd (n 83)
121. on which see J Morgan 'Privacy in the House of Lords, again' (2004) 120 LQR 563.
122. ibid para 14.
123. R v Secretary of State for the Home Department, ex parte Daly [2001] 2 AC 532.
124. Raymond v Honey [1983] 1 AC 1
125. R v Secretary of State for the Home Department, ex parte Anderson [1984] QB 778
126. R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198.
127. Of which Campbell v United Kingdom (1992) 15 EHRR 137 is the only example cited by the House of Lords - although reference is made to Smith and Grady v United Kingdom (1999) 29 EHRR 493
128. and Lustig Prean v United Kingdom (1999) 29 EHRR 548 to 'illuminate the distinctions between "traditional" ... standards of judicial review and higher standards under the European Convention or the common law of human rights' (para 32, per Lord Cooke).
129. Daly (n 100) para 30.
130. For an example of the common law of Canada being used to remedy what would have been a 'lacuna created by [the] strict application of the Charter' see: R v Seaboyer [1991] 2 SCR 577 (described in McLachlin (n 97) 202).
131. Steyn (n 39) 551-2.
132. Anufrijeva (n 94) para 27, per Lord Steyn.
133. R v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] AC 240, 250, per Lord Scarman.
134. Dupont Steel v Sirs [1980] 1 WLR 142.
135. R v Secretary of State for Trade and Industry, ex parte Lonrho [1989] 1 WLR 525.
136. (1765) 19 St Tr 1030.
137. X v Morgan-Grampian Ltd [1991] AC 1, 48, per Lord Bridge.
138. Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 638, per Lord Diplock.
139. R v Lyons (No 3) [2003] 1 AC 976, para 46: 'If, for example, an English court considers that the ECtHR has misunderstood or been misinformed about some aspect of English law, it may wish to give a judgment which invites the ECtHR to reconsider the question' (per Lord Hoffmann).
140. An example of such a misunderstanding can be seen in Osman v United Kingdom (2000) 29 EHRR 245
141. see R Clayton 'Developing Principles for Human Rights' (2002) EHRLR 175, 178
142. Lord Hoffmann 'Human Rights and the House of Lords' (1999) 62(2) MLR 159, 162-4.
143. R v Spear and Others [2003] 1 AC 734, para 12, per Lord Bingham.
144. See n 58 above
145. and, eg, Anderson (n 9) para 18, per Lord Bingham.
146. Alconbury (n 58) para 76.
147. McGonnell v United Kingdom (2000) 30 EHRR 289, para 51.
148. Stafford v United Kingdom (n 22) para 78.
149. Benjamin and Wilson v United Kingdom (2003) 36 EHRR 1, para 36.
150. Anderson (n 9) where Lord Bingham observed that the European Court of Human Rights had been correct to 'describe the complete functional separation of the judiciary from the executive as "fundamental" since the rule of law depends on it' (882), with Lord Hutton adding that such a separation is 'an essential part of a democracy' (899).
151. Kleyn v Netherlands (2004) 38 EHRR 14, para 193.
152. Ringeisen v Austria (1979-80) 1 EHRR 455, para 95.
153. A v United Kingdom (2003) 36 EHRR 51, para 77, where, in a case concerning parliamentary immunity, the court noted that: 'the Parliamentary immunity enjoyed by the MP in the present case pursued the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary.'
154. Dissenting opinion of Judge Borrego Borrego in Pabla KY v Finland, 22 June 2004 (available at ).
155. Kleyn v Netherlands (n 121) (Judge Tsatsa-Nikolovska's dissenting opinion was joined by Judges Strážnická and Ugrekhelidze) (emphasis added).
156. Anderson (n 9) 882.
157. ibid 899.
158. M Amos 'R v Secretary of State for the Home Department, ex p Anderson - Ending the Home Secretary's Sentencing Role' (2004) 67(1) MLR 108, 123.
159. Response of the Law Lords to the Government's consultation paper, A Supreme Court for the United Kingdom (available at .
160. Irvine (n 49) 12.
161. Ghaidan v Godin-Mendoza [2003] Ch 380.
162. I Loveland 'Making it up as they go along?: The Court of Appeal on same sex spouses and succession rights to tenancies' [2003] PL 222
163. S Harris-Short 'Family Law and the Human Rights Act 1998: Protecting "The Family"?' (paper delivered at the University Of Durham Human Rights Centre seminar, Allen and Overy LLP, London, 22 Apr 2004, as a part of the AHRB-funded project, 'Judicial Reasoning and the Human Rights Act 1998').
164. Ghaidan v Godin-Mendoza [2004] 2 AC 557.
165. In Re McKerr [2004] UKHL 12, para 65.
166. Alconbury (n 58) para 26, per Lord Slynn.
167. Most obviously in terms of judging the 'compatibility' of an act or omission with the Convention rights under s 3(1) or s 6(1) HRA and in the potential making a 'declaration of incompatibility' under s 4(2).