Section 2

Question 1

Section 2

Answer 1

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

Question 2

The implementation of s.2.

Answer 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.

Question 3

Where is the boundary for the differing phases of judicial action?

Answer 3

2009

Question 4

What are the cases within phase one, and the principle they demonstrate?

Answer 4

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]

Question 5

The rise of the Mirror Principle - Alconbury

Answer 5

• 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”,

Question 6

The High Water Mark of the Mirror Principle

Answer 6

• 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.”

Question 7

Phase 2 of the Case Law.

Answer 7

• 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.

Question 8

What is the extent of judicial dialogue?

Answer 8

• 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.

Question 9

Extra Judaical comment on s.2

Answer 9

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.

Question 10

What was the criticism of s.2 when it was being implemented?

Answer 10

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.

Question 11

The rise of the Mirror Principle - Anderson

Answer 11

• Lord Bingham in Anderson, “the court will not depart from Strasbourg jurisprudence without good reason to”

Question 12

The rise of the Mirror Principle - Ullah

Answer 12

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”.

Question 13

The rise of the Mirror Principle - Mastermann (2016)

Answer 13

• 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.

Question 14

Who called it the Mirror Principle?

Answer 14

J Lewis

Question 15

Bates (2015)

Answer 15

This discontent with the European element of s.2 should be contextualised in a wider disenchantment with Europe

Question 16

Commission on a British Bill of Rights (2012)

Answer 16

The criticism of the HRA is with the lack of ownership of the HRA rather than any of the issues themselves

Question 17

Mastermann (2015)

Answer 17

Criticism levelled against s.2 are based on a dated interpretation, in line with the mirror principle, therefore it should not be reformed

Question 18

Potential reform to s.2?

Answer 18

include more jurisdiction, other than ECHR, to gain a wider pool of jurisprudence - link with the argument that the only reasons for using ECHR was to gain jurisprudence because we did not already have any (Klug, 2007), therefore why do we need to be linked to anything now the court has established human rights jurisprudence in the UK.