Section 2 Flashcards
Section 2
Section 2 - The Interpretation of Convention Rights
(1) A Court or tribunal determining a question which has arisen in connection with a convention right MUST TAKE INTO ACCOUNT any-
a. ) judgement, decision, declaration or advisory opinion of the European Court of Human Rights
The implementation of s.2.
The government white paper prior to the enactment of the HRA stated that the intention in passing the HRA was to provide a cheaper and easy means of citizens enforcing the Convention rights in the UK courts.
This was the reason for the enactment of s.2.
Where is the boundary for the differing phases of judicial action?
2009
What are the cases within phase one, and the principle they demonstrate?
R (Alconbury) v. SofS for Environment [2001]
R (Anderson) v. SofS for Home Depart [2002]
R (Ullah) v. Immigration appeal tribunal [2004]
SofS for Home Depart v. AF [2009]
The rise of the Mirror Principle - Alconbury
- The initial reaction by the court to s.2 can be demonstrated by the comments made by Lord Slynn in the case of Alconbury, where he stated that “in the absence of any special circumstances, it seems to me that the court should follow any clear and constant jurisprudence of the ECHR”,
The High Water Mark of the Mirror Principle
- The case of AF was considered as the peek of the mirror principle in 2009.
- In this case Strasbourg had ruled on a previous case with identical facts, and the law lords felt bound to follow that precedent due to s.2.
- Lord Rodger noted his displesure with ruling in line with Strasbourg through stating “even through we are dealing with the rights under a UK statute, in reality we have no choice: argentoratum locartum induicam finitum.”
Phase 2 of the Case Law.
- Following the AF case in 2009, the case of Horncastle came to the newly formed Supreme Court.
- right to a fair trial,
- Strasbourg had previously rule on the case of Al-Khawajia but not in the grand chamber.
- Lord Phillips pushed for a judicial dialogue to open up between the national and international courts,
- This criticism by the Supreme Court was considered by the Grand Chamber, and the final decision of the case of Al-Khawaja was a departure from the initial interpretation.
What is the extent of judicial dialogue?
- Pinnock v. Manchester City Council Lord Neuburger outlines the extent of of judicial dialogue stating it is only allowed when there “it was at odds with some substantive or procedural aspect of our law”.
- Chester, were the court noted that there was no question of the Strasbourg position, as the point of law had been considered twice by the Grand Chamber, Lord Sumption stated that there is no real chance of dialogue as their position is clear, therefore they upheld the Strasbourg jurisprudence.
Extra Judaical comment on s.2
In 2013 as a result of the case of Chester Lord Sumption commented in a Lecture that Strasbourg was extending into areas which were social policy and therefore overstepping it jurisdiction.
This was echoed by Lord Laws and Judge who both made speeches stated their concern with s.2 and ECHR jurisprudence.
What was the criticism of s.2 when it was being implemented?
However, throughout the debating process in the House of Lords it was criticised, with Lord Browne-Wilkinson stating that it is strange that the UK is binding itself to be judged by judges from countries not renowned for their human rights protection. Lord Irvine echoed this, stating that it was strange that the UK was not bound by the ECHR naturally, so it is strange that it is choosing to do so through section 2.
The rise of the Mirror Principle - Anderson
- Lord Bingham in Anderson, “the court will not depart from Strasbourg jurisprudence without good reason to”
The rise of the Mirror Principle - Ullah
Ullah, Lord Bingham went on to state that “it is the duty of the national courts to keep pact with Strasbourg courts as it evolves over time, no more but certainty no less”.
The rise of the Mirror Principle - Mastermann (2016)
- Masterman (2016) notes these cases established a presumption that the courts will keep in line with Strasbourg in the absence of special circumstances, noting the relationship as dominant and the UK courts as submissive.
Who called it the Mirror Principle?
J Lewis
Bates (2015)
This discontent with the European element of s.2 should be contextualised in a wider disenchantment with Europe