REFLECTING ON ULLAH:

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REFLECTING ON ULLAH:

Where next in judicial interpretation of section 2(1) of the Human Rights Act 1998?



MICHAEL LANGRIDGE




















LLb LAW

04.04.2013



































I hereby declare that this dissertation is my own work

entire, that no part of it consists of the
work of others, except where this is acknowledged, and that no part of it has been published.

Signed: _______________






Dated:_________




ABSTRACT





This dissertation is an examination of the judicial interpre
tation of Section 2 (1) of the
Human Rights Act 1998. It is argued that the instruction under that section ‘to take into
account’ relevant jurisprudence of the European Court of Human Rights has been too
narrowly construed, and that the judgement of Lord B
ingham in
Ullah v Special Adjudicator

has been applied so as to stymie the development of domestic rights jurisprudence. It is
further argued that the justifications commonly given for the adoption of this approach do not
stand up to scrutiny. The most com
mon justifications are therefore examined in turn. The
final part of the dissertation suggests a more nuanced approach to rights adjudication under
the HRA. This involves the Supreme Court entering into greater dialogue with Strasbourg,
being more willing

to depart from Strasbourg rulings, and being more prepared to innovate in
novel situations over which the European Court of Human Rights has not ruled. It is
submitted that this approach better serves the purposes of the Act to ‘bring rights home’, is
les
s susceptible to many of the criticisms commonly made of the Act, and accords better with
the requirements of the
Ullah

judgment when this judgement is read as a whole.


















C
ONTENTS








Page


CHAPTER ONE
The Ullah
Principle
: Origin,
Development & Exceptions


1


1.1 Introduction


Origin and Development





1


1.2 Exceptions









5



1.2.1 The Margin of Appreciation





5



1.2.2 Pre
-
Empting Strasbourg






9



1.2.3 Eluding Ullah Altogether





10


1.3 Conclusions








13


CHAPTE
R TWO
Justifying the Ullah Principle





14


2.1 The Nature of the Rights







14


2.2 Analysing Hansard







19


2.3 Uniformity








22


2.4 Compliance with International Obligations & Comity



25


2.5 Respecting the Constitutional Order of the UK




28


2.6 Conclusions








30


CHAPTER THREE
An Alternative Approach





31


3.1 Promoting Dialogue







31


3.2 Deriving Principles







37


3.3 Taken Together








42


CONCLUSION









45

BIBLIOGRAPHY









47






1


CHAPTER ONE




THE ULLAH
PRINCIPLE:

ORIGIN, DEVELOPMENT & EXCEPTIONS



1.1 INTRODUCTION ORIGIN AND DEVELOPMENT

Entering into force on the 2
nd

December 2000,
the Human Rights Act 1998 rights heralded

a
paradigm shift in domestic rights protection, no longer would domestic litigants be required
to take the long road to Strasbourg,
1

rather, with ‘rights brought home’ the rights set out in
the European Convention
on Human Rights would be justiciable in the courts of the United
Kingdom.
2



Yet a curious
orthodoxy has arisen in

judicial interpretation under s
2(1) of the
HRA
.
Under that
section

the

House of Lords and the Supreme Court,
3

in considering the weight to
be

attached to Strasbourg jurisprudence when ‘determining a question which h
as arisen in
connection with a C
onvention right are directed to simply ‘take into account’ the decisions of
the E
uropean Court of Human Rights.
4

Yet from this ostensibly moderate ins
truction the
UK
Court has issued

a self
-
denying ordinance
, that domestic, judicial human rights protection

reflect
s

only the protections given by
Strasbourg

in its interpretati
on of the Convention. Lord
Bingham, expressing the unanimous view of the House o
f Lords, held in
R

(on the



1

See; HL Deb 03 March 1999 vol 597 col 1657. See also the Bill of Rights: Select Committee Report

2

The long title to the HRA beginning ‘An Act to give
further effect

to rights and freedoms guaranteed under the
European Convention on Human Rights…’ (empha
sis added)
.

3

Since these two institutions have both existed during the
Ullah

approach when reference is made to the UK’s
highest court but without reference to a specific institution (i.e. the House of Lords or Supreme Court) it will
simply be described a
s the UK Court.

4

Henceforth the ECtHR, or for some variation, the Strasbourg Court or Strasbourg. The court must consider not
only ECtHR judgements under this section but also: Opinions of the Commission given in a report adopted
under Article 31 of the C
onvention; decisions of the Commission in connection with Article 26 or 27(2) of the
Convention, and decisions of the Committee of Ministers taken under Article 46 of the Convention; whenever
these were given provided they are of rele
vance to the question
at hand.


2


application of
Ullah
)

v Special Adjudicator
5

that it is simply
‘the
duty of national courts is to
keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no
less’.
This famous doctrine appeared to
ossify

in the late Lord Rodger’s pithy
dictum

Argentoratum locutum, iudicium finitum’



Strasbourg has spoken, the case is closed
6
.


In truth, t
he
origins of what has been termed the ‘mirror principle’
7

are found in two
c
ases prior to Lord Bingham’s judgement in
Ullah
.
In an early form it appeared in
Brown v
Stott
,
8

in which Lord Bingham reminded the court that the Convention ‘
is concerned with
rights and freedoms which are of real importance in a modern democracy governed

by the
rule of law. It does not, as is sometimes mistakenly thought, offer relief from "The heart
-
ache
and the thousand natural shocks /
That flesh is heir to."

9

That is, that the rights protected by
Strasbourg are those which ar
e fundamental
to the pres
ervation of the rule of law.
10

As such
the judiciary ought to approach the question of interpretation of the rights under the
Convention with caution, lest Parliament be bound by obligations it did not intend to be
bound by.

11

The first clear exposition o
f the doctrine was made by Lord Slynn in
R (on the

application

of Alconbury Developments
Ltd)

v Secretary of State for the Environment,
Transport and the Regions
.

12

He argued that:

[a]
lthough the Human Rights Act 1998 does not provide that a national cour
t is
bound by these decisions it is obliged to take account of them so far as they are
relevant. In the absence of some special circumstances it seems to me that the
court should follow any clear and constant jurisprudence of the European Court
of Human Ri
ghts
.’




5

R (on the application of Ullah) v Special Adjudicator

[2004] UKHL 26, [2004] 2 AC 323 [20] (Lord
Bingham).

6

Secretary of State for the Home Department v AF (No 3)
[2009] UKHL 28, [2010] 2 AC 269 [98].

7

This appellation was coined in Jonathan Lewis, ‘The European Ceiling on Human Rights’ (2007) PL 720,
placing reliance on
R (on the application

of Quark Fishing) v Secretary of State for Foreign and Commonwealth
Affairs

[2005] UKHL 57, [2006] 1 AC 529 [34]

(Lord Nicholls).

8

Brown v Stott

[2001] SC(PC) 43, [2003] 1 AC 681.

9

Brown
(n8) 703
.

Quoting
Hamlet

Act 3, Scene 1.

10

Tom Bingham,
The Rule of Law

(Penguin
,

2010) p66.

11

Brown v Stott

(n8
) [59].

12

R (on the application of Alconbury Developments Ltd) v Se
cretary of State for the Environment, Transport
and the Regions

[2001]

UKHL 23, [2003] 2 AC 295. [26].


3


This approach is one that has persevered. Following
Ullah
, in
R (on the application of Clift)
v Secretary o
f State for the Home Department
13

Lord Hope was persuaded (albeit with some
reluctance) that it was not open to the court to extend the protection under Article 14 of the
Convention in the context of a discriminatory measure in parole hearings under Article 5 on
the basis that ‘Strasbourg

jurisprudence has not yet addressed this question
’. For that reason

‘[a]

measure of self
-
restraint is needed, lest we stretch our own jurisprudence beyond that
which is shared by all the states parties to the Convention
.’
14

Such reticence was shared by
L
ord Hoffman in
Secretary of State for the Home Depar
tment v AF (No 3)
,
15

although the
concern was that the court could not depart from the Strasbourg interpretation, this time in the
context of the application of Article 6(1) in challenging a non
-
derogating

control order
16

by
way of proceedings employing closed material disclosed only to special advocates. He
allowed the appeals of the persons concerned, but with ‘considerable regret’,
17

since the
Grand Chamber had, in
A v United Kingdom
,
18

declared that the re
quirements of a fair
hearing could never be satisfied if the decision was based ‘
solely or to a decisive degree
’ on
closed material. Failing to adhere to the decision of Strasbourg under section 2(1), thus
threatening a breach of the United Kingdom’s inte
rnational obligations (despite a conviction
that the decision of the ECtHR was wrong on the matter) was a not a proposition that the
House of Lords was prepared to countenance. Later, in
Al
-
Skeini v Secretary of State for
Defence
19

Lord Brown argued for wh
at has been termed the ‘heightened mirror principle’;
20

Lord Bingham’s dictum might well be rewritten as ‘
no less, but certainly no more’

since there
is an ever present danger of ‘
the national court construing the Convention too generously in
favour of an
applicant than in construing it too narrowly
’.
21

With this Baroness Hale agreed,
adding that ‘[i]
f Parliament wishes to go further

[than Strasbourg]
, or if the courts find it



13

R (on the application of Clift) v Secretary of State for the Home Department)
[2006] UKHL 54, [2007] 1 AC
484
.

14

Clift
(n13)

[48]
-
[49].

15

AF (No 3)
(n6
)

[70].

16

Under the Prevention of Terrorism Act 2005.

17

AF (No 3
)

(n6) [70].

18
A v United Kingdom

(2009) 49 EHRR 625.

19

Al
-
Skeini v Secretary of State for Defence

[2007] UKHL 26, [2008] 1 AC 153.

20

Lewis, ‘Ceiling’ (n7)

727.

21
Al
-
Skeini

(n19
) [106].


4


appropriate to develop the common law further, of course they may. But that is be
cause they
choose to do so, not because the Convention requires it of them.

22


As a result of this line of reasoning, a


party unable to mount a successful claim in
Strasbourg can never

mount a successful claim under … the
1998 Act
’.
23

Informing this
approa
ch the court must:

a
ssess how a claim by the appellant, that his international law rights under

the
Convention had been violated by the United Kingdom, would fare before the
European court in Strasbourg. H
ow would that court resolve…
issues of
internation
al law?
24

In accordance with this view the HRA has therefore become ‘
a remedial structure in domestic
law for the rights guaranteed in the Convention
’,
25

which Roger Masterman has criticised as

giving rise to the suggestion that the Act is no more than a ci
pher
’.
26

Indeed in
N v Secretary
of State for the Home Department
27

Lord Hope held that the House of Lords must decline to
rule in favour of the applicant because Strasbourg had not spoken clearly enough.
28

It was
not for their Lordships: ‘
to search for a
solution to her

[N’s]

problem which is not to be found
in the Strasbourg case law…We must take its case law as we find it, not as we would like it
to be
’. On these accounts one might choose to invert the words of Lord Rodger


Argentoratum sil
ens est
, iudi
cium finutum



Strasbourg is silent,
the case is closed.




22

Al
-
Skeini

(n19)

[90].

23

Quark Fishing

(
n7)

[25] (Lord Bingham); [33]
-
[34] (Lord Nicholls); [88] (Lord Hope). Strictly speaking this
part of the judgement relates to the co
-
extensiveness of the rights justiciable under the HRA and the Convention.
These rig
hts are co
-
extensive in locus, but not temporally. Rights under the HRA only became justiciable on
02/10/2000, when the Act came into force. See
Re McKerr
[2004] UKHL 12, [2004] 1 WLR 807 [48]
-
[54]
(Lord Hoffman).

24

R (on the application of Al
-
Jedda) v Sec
retary of State for Defence

[2007] UKHL 58, [2008] 1 AC 332 [55]
(Lord Rodger).

25

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank
[2003] UKHL 37,
[2004]
1 AC 546, 564, [44] (Lord Hope).

26

Rodger Masterman ‘Deconstructing the Mirror Principle’ (May 2012). The UK's Statutory Bill of Rights:
Constitutional and Comparative Perspectives (R Masterman and I Leigh (eds) (Proceedings of the British
Academy, 2013). Available at SSRN:
http://ssrn.com/abstract=2084090
. Accessed 05.01.2013

27

N v Secretary of State for the Home Department

[2005] UKHL 31, [2005] 2 AC 296 [25]
.

28

cf. the House of Lords decision in
R (on the application of Animal Defenders I
nternational) v Secretary of
State for Culture, Media and Sport
[2008] UKHL 15, [2008] 1 AC 1312 where the Court refused to apply an on
-
all
-
fours decision of Strasbourg, preferring to apply a less similar case.


5



It is suggested, therefore, that j
udicial interpretation of
section

2(1), and the
subsequent application and development of Lord Bingham’s
Ullah
dictum has led to an
unsatisfactory situation in whi
ch the House of Lords
and the Supreme Court has acted

with
undue restraint
when faced with issues not yet addressed by Strasbourg, thereby reducing
effective domestic rights protection.

Furthermore, t
he application of the ‘no more, no less’
direction

has n
ot, however, been uniform, nor has it been entirely predictable when the

UK
Court
will choose to follow or deviate from it
.



1.2 EXCEPTIONS

Although the UK Courts has mandated adherence to the judgements of Strasbourg, it has
developed exceptions to th
is doctrine, as envisaged by Lord Slynn’s ‘special circumstances’
derogation in
Alconbury
. T
he
se

exceptions
, discussed below,

are important when weighed up
against the justifications for the principle which, it is submitted, do not stand up to scrutiny.



1.2.1 THE MARGIN OF APPRECIATION

The doctrine of the margin of appreciation has arisen through the jurisprudence of the
ECtHR as a means of preserving the subsidiary function of the court
29

and allowing the
national legislature a degree of latitude in securing the rights and freedoms under the
Convention in accordance with the particular cultural proclivities and heritage of a
given member state.
30

Since the obligation to ensure adequate pro
tection of rights
under the Convention is divided between national authorities and Strasbourg, with the
national authorities responsible for protection of liberties and the ECtHR responsible



29

That is, it is principally up to national
authorities to secure the rights under the Convention, and that
Strasbourg is not a ‘court of fourth instance’, for a recent example see
Minshall v United Kingdom

(2012) 55
EHRR 36, para 58.


30

S & Marper v United Kingdom

(2008) EHRR 1581, para 102. ‘Th
e breadth of this margin varies and depends
on a number of factors including the nature of the Convention right in issue, its importance for the individual,
the nature of the interference and the object pursued by the interference. The margin will tend to
be narrower
where the right at stake is crucial to the individual's effective enjoyment of intimate or key rights.’ See also
Connors v United Kingdom

(2004) 40 EHRR 9, paras 27 & 82;
Evans v United Kingdom

(2007) 46 EHRR 34,
para 77;
Dickson v United
Kingdom

(2007) EHRR 150, para 78.


6


for oversight,
31

the margin delineates the respective areas of com
petence between the
two and balances their competing interests.
32

Thus, in pursuance of the principle of
subsidiarity, the ECtHR has expressed that:

the Court cannot disregard those legal and factual features which characterise the
life of the society in
the State


it cannot assume the rôle of the competent
national authorities, for it would thereby lose sight of the subsidiary nature of the
international machinery of collective enforcement established by the Convention.
The national authorities remain fr
ee to choose the measures which the
y consider
appropriate in those

matters which are governed by the Convention. Review by
the Court concerns only the conformity of these measures with the requirements
of the Convention.
33

The margin is ordinarily utilised
only for the extension of restrictions on rights
34

that are
afforded to member states by permissible derogations under the articles of the Convention.
35

Therefore:

[b]
y reason of their direct and continuous contact with the vital forces of their
countries,
State authorities are in principle in a better position than the
international judge to give an opinion on the exact content of these requirements




31

Of course, the enforcement mechanism of ECtHR is particularly weak. Under Article 46 of the Convention
member states must ‘abide by’ rulings against them, under the supervision of the Committee of Ministers.

32

Richard Cl
ayton and Hugh Tomlinson,
The Law of Human Rights
vol 1 (2
nd

edn, Oxford 2009) 6.42

33

Belgian Linguistic Case (No 2) (23
rd

July 1968)

(1979
-
80) 1 EHRR 252, para 10.

34

Under Article 53 of the Convention, the states are free to secure rights more extensiv
ely than provided for in
the Convention itself. However for an early exposition of the obverse of the margin see
R (on the application of
S) v Chief Constable of the South Yorkshire Police
(2002) EWCA Civ 1275, [2002] 1 WLR 3223 [34] (Lord
Woolfe)
:
’[J]ust

as in the appropriate circumstances a margin of appreciation has to be extended for any
shortcomings in this jurisdiction in relation to observing the Convention, so there can be situations where the
standards of respect for the rights of the individual i
n 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.

35

For example, Article 10 (Freedom of Expressi
on) is subject to limitations under Article 10(2) ‘as prescribed
by law’ which are ‘necessary’ for national security, etc.


7


[of societal values]

as well

as on the 'necessity' of a

'restriction' or 'penalty'
intended to meet them.
36

However, despite the margin of appreciation ordinarily representing a discretion for the
reduction of liberties secured under the Convention the by domestic authorities, the UK Court
has found itself able to give more generous interpretations of the rights

than have otherwise
been given in different member states. In an earlier interpretation of the doctrine Lord Mance
argued that argued that:

the . . . ‘margin of appreciation’ . . . is . . . to be understood in another sense, as
referring to the freedom o
f national courts, or member states, to provide for rights
more generous than those guaranteed by the Convention, though not as the
product of interpretation of the Convention.
37

Yet the court has recently taken rather a different tack, creating an exceptio
n to the ‘no more,
no less’ rule under the Convention. In

R
e G (Adoption: Unmarried Couple)
38

the House of
Lords was seized of the issue of whether a provision under subordinate legislation
39

that
automatically precluded adoption by unmarried couples was con
trary to Articles 8 and 14 of
the Convention. The applicants in that case were an unmarried heterosexual couple; the
woman the natural mother of the child. The starting point for the Court was determining that

in general terms, married couples are more
likely to be suitable adoptive parents than
unmarried one
s



but that this could not
be

rationally elevated to an irrebuttable
presumption of unsuitability
’.
40

The issue of restrictions on adoptions based on such
‘irrebuttable presumptions’ had been discu
ssed in two Strasbourg cases, though both of these
related to blanket restrictions on adoption by homosexual persons. In the first of these,
Fretté
v France
,
41

the ECtHR held that the French authorities’ decision to prevent a man from
adopting on the sole
consideration of his sexuality was within the margin of appreciation



36

Handyside v United Kingdom

(1979
-
80) 1 EHRR 737 para 48. It is not an unfettered discretion. The ECtHR
will do more than ensure th
e respondent state acted in good faith, rather it will seek to determine whether the
restriction is ‘legitimate to the aim pursued’
. See also

Vogt v Germany

(1996) 21 EHRR 205 para 52(iii).

37

Secretary of State for Work and Pensions v M

[2006] UKHL 11,
[2006] 2 AC 91 [136] (Lord Mance).

38
Re G (Adoption: Unmarried Couple)

[2008] UKHL 38, [2008] 3 WLR 76.

39

Within the meaning of s21(1) HRA. In this case Adoption (Northern Ireland) Order 1987 (SI 1987/2203).

40

Re G
(n38)

[18] (Lord Hoffman).

41

Fretté v Fra
nce

(2002) 38 EHRR 438.


8


afforded to the state on the basis that there was no common ground between states.
42

In the
second,
EB v France
,
43

a homosexual woman, who was in a relationship, was prevented from
adoptin
g on the basis of her sexuality. In
EB
,

however, Strasbourg held that the ban was a
breach the applicant’s rights, the implication of which was to overrule the
Fretté

decision.
44

The lack of clarity in the ECtHR
45

persuaded their Lordships that the Northern

Irish
provisions
may

have been within the margin, (even though, in the alternative, was likely that
Strasbourg would find a breach).
46


Thus, if it was in the margin, the court may nonetheless
determine that there had been an infringement because

the remarks in
Ullah

were

no
t

made
in the context of a case in which Strasbou
r
g has declared th
e matter to be with
in

the

margin
’.
A
s such ‘the question is one for the national authorities
to decide for themselves… [therefore]

it follows that different me
mber states may well give different answers.’
47

It therefore falls
upon the UK Court in such cases, as the ultimate safeguard in rights protection,
48

to
determine the correct interpretation of the right whenever the issue in question falls within the
experti
se of the court rather than the legislature.
49




42

Fretté

(n41
) paras 36
-
41. On this point Judge Rozakis describes the margin of appreciation as ‘a vehicle of
judicial restraint limiting the spectrum of ECtHR interference in certain matters to an external review of the
compatabil
ity of the domestic acts with the convention… A state party has a wider margin of appreciation to
construe its obligations whenever there is no established European consensus delimiting a right’ Christos
Rozakis, ‘The European Judge as Comparatist’ (2005)

80 Tulane Law Review 257, 273.

43

EB v France

(Application No 43546/02) (unreported) 22 January 2008.

44

EB

(n43
) dissenting opinion of Judge Costa, para 3.

45

The judgements of the
courts were split in both cases.

For example,
in
EB

Judges Costa, Türmen,
Ugrekhelidze, Jočienė, as well as Judges Zupančič, Loucaides and Mularoni, expressed dissenting opinions
,
finding

the m
easure to be within the margin but on the basis that it related to marital status, rather than sexuality.

46

Re G

(n38)

[27] (Lord Hoffman
)

but see the dissenting opinion of Lord Walker who held that it would be far
from clear that such a breach would be established having regard to Northern Irish heritage [82].

47

Re G

(n38)

[31] (Lord Hoffman) This reasoning is predicated on the decision of

Lord Steyn in
R (on the
application of S

& Marper
) v Chief Constable of South Yorkshire Police

[2004] UKHL 39, [2004] 1 WLR 2196
[27] where he held that cultural traditions are material in considering the objective justifications for the
limitations

of a
right, whereas the
content

of the right requires to be determined by the Strasbourg Court.

48

Re G

(n38)

[48] (Lord Hope).

49

Re G

(n38)

[48]
(
Lord Hope)
:

‘the best guide as to whether the courts should deal with the issue is whether it
lies within the fiel
d of social or economic policy on the one hand [in which case it is a matter for the legislature]
or of the constitutional responsibility which resides especially with them on the other… Cases about
discrimination in an area of social policy… will always b
e appropriate for judicial scrutiny. The constitutional
responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the

9


Critically, the margin of appreciation exception rests on the distinction between
domestic rights under the Human Rights Act, which are consonant with those under the
Convention, and the Convention rights thems
elves.
50

Where the Strasbourg court
intentionally gives no guidance,
and

because the rights exist as a ‘remedial structure’ in
domestic law, the courts have substantially greater freedom in interpretation since it is the
domestic courts’ ‘first duty

to give

effect to the domestic statute according to what they
consider to be its proper meaning, even if its provisions are in the same language as the
international instrument which is interpreted in Strasbourg
’.
51

Therefore in
Re G

it was
possible for the House
of Lords to give an expansive definition to the content of the right and
a restrictive interpretation of the limitation
.
52


Of course, the margin of appreciation attaches
only to qualified rights, therefore under this exception the UK Court has no opportuni
ty to
deviate from rulings of Strasbourg in domestic cases involving absolute rights. Such a
situation would of course only be desirable where the UK Court felt that the Strasbourg
ruling was too restrictive.



1.2
.2 PRE
-
EMPTING STRASBOURG

As was the case in
Re G
, the UK Court has been prepared to make an educated guess at how
Strasbourg would likely treat the case if it were to reach that court. After all, the discussion





risk is that some people will be discriminated against in ways that engage their Conv
ention rights. It is for the
courts to see that this does not happen.’

The power of the court is to so adjudicate is heightened by the provisions under s.6 of the HRA, which requires
all public authorities, including courts, to act in accordance with conv
ention rights. See also
Kay v Lambeth
London Borough Council

[2006] UKHL 10,

[2006] 2 AC 465 [44] (Lord Bingham). On institutional
competence see
R v Director of Public Prosecutions, Ex p Kebilene

[2000] 2 AC 326, 381 (Lord Hope).

Aileen Kavanagh has sugge
sted that the House acted the way it did as their Lordships ‘may not have been
confident that the Northern Ireland Assembly would succeed in passing legislation to reform the adoption law’
-

Aileen Kavanagh, ‘Strasbourg, the House of Lords or Elected Politi
cians: Who decides about rights after Re
P?’(2009) 72(5) MLR 828, 842.

50

Re G
(n38
) [36] (Lord Hoffman). See also
Re McKerr
(n22) [63] (Lord Hoffman).

51

Re G
(n38
) [34]
(
Lord Hoffman
).

52

Re G

(n38
) [38] Lord Hoffman argues that distinction means that the
three typical reasons that usually dictate
mirroring approach (uniformity across member states, treaty interpretation, and supranational comity) are not
applicable in a case concerning the margin of appreciation, since they are necessarily obviated by the
discretion
Strasbourg allows the domestic authorities.


10


over the applicability of the margin was
obiter
, and as Lord Hoffman
made clear he felt that it
was eminently likely that, should the margin not apply, the court ought to proceed on the
basis that Strasbourg would inevitably find an infringement, despite earlier judicial
suggestions that the court should not do so.
53

Conver
sely, in the context of
recently

passed
legislation deference to Parliament is due, thus when the UK Court ‘
can reasonably predict
that Strasbourg would regard the matter as wi
thin the margin of appreciation… [the court]

should not attempt to second guess
the conclusion which Parliament has reached
’.
54

However, the extent to which the court is prepared to beat Strasbourg to the punch
where the margin of appreciation is
not

likely to be applicable is limited. Baroness Hale
stated in
R (on the application of
Gentle) v Prime Minister
55

that since the House of Lords
was ‘
interpreting the Convention rights in the light of the jurisprudence of Strasbourg as it
evolves over time
’ it was ‘
not free to foist upon Parliament or upon public authorities an
interpretation
of

a Convention right which goes way
beyond anything which we can
reasonably foresee that Strasbourg might do.
’ Indeed Lord Rodger’s latin scholarship arose
in
AF (No. 3)

only as a result of the
absolute

certainty of the House that, were the case to be
ap
pealed to the ECtHR, it would not go in the Government’s favour.
56

As has been argued
above, where the Strasbourg Court does not speak authoritatively on in issue in a ‘clear and
constant’ voice the UK Court will not be prepared to make any such leap, thus

the utility of
this exception is so narrow that it is hardly likely to be employed at all.
57




1.2.3 ELUDING
ULLAH

ALTOGETHER

A third exception to the ‘no more, no less’
Ullah

dictum is found in a small number of cases
in which the UK Court has given no a
ttention to the exigencies of the principle whatsoever,
and, unconstrained, has gone beyond what Strasbourg has held to be the proper delineation of
a right.




53
See
M
(n38)

[30] (Lord Nicholls).

54

R (on the application of Countryside Alliance v Attorney General
[2007]

UKHL 52, [2007] 3 WLR 922 [126].

(Baroness Hale). She did however make it clear that this wa
s strictly in accordance with the
Ullah

principle.

55

R (on the application of Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356 [56].

56

AF (No 3)
(n6
)
.

See for example: [121] (Lord Brown
); [108] (Lord Carswell); [88] (Lord Hope);

[70]
-
[74]
(Lord Ho
ffman).

57
Jonathan Lewis argues that the circumstances in which exception on the basis of pre
-
empting Strasbourg may
operate is so narrow that its very existence is ‘doub
tful’, see ‘Ceiling’ (n7) 731.


11


In
EM (Lebanon) v Secretary of the Home Department
58

the House of Lords
considered whether there w
ould be a flagrant breach, or nullification of the essence, of
Article 8 and 14 of the Convention by returning a mother and her son to Lebanon, where they
had previously escaped as fugitives from Shari’a law. The Lebanese law further provided
that upon th
e a child attaining the age of seven, following the divorce of a married couple,
physical custody of the child would transfer to the father or to a paternal male relative,
thereafter the mother could have no right to custody under any circumstances, and fe
w (if
any) rights of supervised visitation. He had since reached that age since entering the United
Kingdom. In terms of the
Ullah

judgement this was a foreign case.
59

Under the Strasbourg
jurisprudence there would be no obligation on the state to allow the applicant to remain even,
when the application regarded an unqualified right,
60

except in exceptional circumstances
61

which presented a ‘real risk of a flagrant denia
l’
62

of the rights of the applicant. Strasbourg
had further held in
F v United Kingdom
63

that when a case concerned a qualified right (in that
case Article 8 again) that
it

cannot be required that an expelling contracting state only return
an alien to a cou
ntry which is in full and effective enforcement of all the rights and freedoms
set out in the Convention.

64

Moreover, prior to
EM

there was no case in any of the
Strasbourg jurisprudence in which the ECtHR had found such a flagrant breach in respect of
Ar
ticle 8.
65

Yet the House of Lords extended the protection under the ‘flagrant/nullification’
test to the applicant even though, as Lord Bingham pointed out, Lebanese ‘
family law reflects



58

EM (Lebanon) v Secretary of the Home Department
[2008]

UKHL 64, [2009] 1 AC 1198. This was the last
case on which Lord Bingham sat before his retirement.
Ullah

is discussed in
EM
, not in the context of the
mirror principle but in the meaning of the word ‘flagrant’ as a threshold test
.

59

Ullah
(n5)

[9] (Lord
Bingham)
. T
hat is, one in which the respondent state
brings about

a violation of the
Convention by a third party state (even one which is a non
-
signatory to the Convention).

A domestic

case

is
thus
defined as on in which the respondent state has of will co
mmit a violation on of one of the directly articles
vis
-
à
-
vis
its own actions.

60

See
N v United Kingdom

(2008) 47 EHRR 885, para 42. The case concerned a woman suffering from AIDS
who claimed that to be deported to Uganda would be to subject her to ‘inhuma
n or degrading treatment’. The
court ruled her case inadmissible as the Convention was not intended to address economic and social disparities
between states.

61

N
(n60)

para 42. See
D v United Kingdom
(1997) 24 EHRR 423 for such
circumstances.

62
The word ‘flagrant’ was first used in
Soering v United Kingdom

(1989) 11 EHRR 439, para 113.

63

F v United Kingdom

(Application No 17341/03) (unreported) 22 June 2004.

64

F
(n63)

para 88.

65

For example,
Al
-
Nashif v Bulgaria

(2002) 36 EHRR 655.


12


a religious and cultural tradition which, in one form or another, is
respected and observed
throughout much of the world. This country has no general mandate to impose its own values
on other countries who do not share them
.’
66

Her return could only be described as a breach
‘of the life she now lived’.
67

Similarly, the House
of Lords held in the earlier case of
R (on the application of
Limbuela) v Secretary of State for the Home Department
68

went beyond Strasbourg,
apparently creating positive socio
-
economic rights by their interpretation of Article 3 of the
Convention,
69

which,

once more, were not to be found in contemporaneous Strasbourg
jurisprudence. Rather, it had previously asserted the
denial

of such rights.
70

The applicants
were asylum seekers for whom accommodation and other financial support
71

was refused.
72

As a result t
he applicants were left destitute. The ECtHR had described the terms of Article 3

as
imposing a primarily negative obligation on states to refrain from inflicting serious harm
on persons within their jurisdiction
’.
73

But once more their Lordships went further, as Lord
Bingham explained:

The fact that an act of a positive nature is required to prevent the treatment from
attaining the minimum level of severity which engages the prohibition does not
alter the essential
nature of the article. The injunction which it contains is
prohibitive and the prohibition is absolute. If the effect of what the state or the
public authority is doing is to breach the prohibition, it has no option but to
refrain from the treatment which
results in the breach. This may mean that it has



66

EM

(n58)

[
42] (Lord Bingham).

67

EM

(n58)

[41] (Lord Bingham).

68

R (on the application of Limbuela) v Secretary of State for the Home Department [
2005] UKHL 66, [2006] 1
AC 396. In this case there was no discussion of
Ullah

in any respect.

69

See Baroness Hale ‘Argen
toratum

Locutum: Is Strasbourg or the Supreme Court Supreme?’(2012) 12(1) HRL
Rev 65,

72.

70

In relation to an Article 8 claim Strasbourg has said ‘It is important to recall that article 8 does not in terms
give a right to be provided with a home.

Nor does

any of the jurisprudence of the Court acknowledge such a
right… Whether the State provides funds to enable everyone to have a home is a matter for political not judicial
decision.’

See
Chapman v United Kingdom
(2001) 33 EHRR 399, para 99.

71

Under section

95 of the Immigration and Asylum Act 1999.

72

This was on the ground that they had not claimed asylum as soon as reasonably practicable after their arrival
in the United Kingdom in accordance with s55(1) of the Nationality, Immigration and Asylum Act 2002
, and
support was not
necessary

to prevent a breach of their Convention rights under s55(5).

73

Pretty v United Kingdom

(2002) 35 EHRR 1, para 49.


13


to do something in order to bring that about. In some contexts rights which are
not expressly stated in the Convention may have to be read into it as implied
rights
.
74

However, the interpretation of the term
‘treatment’ under Article 3 was important in
this case. Were it not for the presence of the statutory regime, the applicants would
have had provision of accommodation and welfare benefits, and it was therefore
treatment for the purposes of the Convention
by way of specific exclusion. In this
respect it is arguable that their Lordships created no
positive
rights, as Baroness Hale
has suggested they did,
75

rather they merely removed unfair conditions of access. But
what is certain is that at the very least th
ey expanded the meaning of ‘inhuman and
degrading’ treatment beyond what Strasbourg had previously held.
76



1.3 CONCLUSIONS

Th
e description of the circumstances in which the court will go beyond the framework
established by Strasbourg as ‘exceptional’ is wholly apposite; it is indicative of the
extremely strong presumptive weight the UK Court puts upon the decisions emanating
fro
m Strasbourg. This is unlikely ever to allow a body of discrete rights beyond those
provided for by Strasbourg to develop, such is the rarity of these circumstances. Yet the
justifications given for this approach are often not substantiated, and the most c
ommon
of these are discussed in the next chapter.







74

Limbuela

(n68)

[47] (Lord Bingham). I
n so doing he rejected Laws’ LJ ‘spectrum analysis’ in the Court of
Ap
peal which
resulted in a finding for the Secretary of State.
This

analysis drew a distinction between

absolutely prohibited acts of violence and decisions in the exercise of lawful policy

, which wou
ld only infringe
Article 3 if they inflicted ‘so

high a degree of suffering that the court is bound to limit the state’s right to
implement the policy.


See
R (on the application of Limbuela) v Secretary of State for the Home Department

[2004] EWCA Civ 540, [2004] QB 1440 [63]
-
[73] (Laws LJ).

75

Hale, ‘A
rgentoratum’ (n69) 72.

76

Linbuela
(n68
) [101] Lord Brown. See
O'Rourke v United Kingdom
(Application No 39022/97) (unreported)
26 June 2001 where it held that 14 months of homelessness was not sufficiently severe to engage article 3.


14


CHAPTER 2




JUSTIFYING THE ULLAH APPROACH



As Lord Elias points out there

is nothing in the language of section

2(1) that would support
an
‘autonomy model’ of domestic human rights that would give ri
se to British judges
‘stepping where Strasbourg fears to tread’.
77

But e
qually, there is nothing to suggest

that the
model currently employed by the UK Court is to be preferred, though the judgements of the
UK Court are replete with justifications. These w
ill therefore be considered in turn.



2.1 THE NATURE OF THE RIGHTS UNDER THE HRA

The rights under the Convention and the Human Rights Act are not the same. In
Ullah

Lord
Bingham argued that Lord Slynn’s
Alconbury

direction reflected ‘
the fact that the
Convention
is an international instrument, the correct interpretation of which can be authoritatively
expounded only by the Strasbourg court
’.
78

This has, however, been misconstrued. Aileen
Kavanagh, for example, takes this as a justification of the ‘no m
ore, no less’ dictum on the
basis that the rights under the HRA consequently have ‘dual status’.
79

As such, the UK Court
is therefore being required to ‘
give a ruling on the UK’s

[international]

obligations under the
Convention

.
80

But this is not the case:
although the rights are framed in the same terms they
co
-
exist independently of each other, as Lord Nicholls stated in
Re Mckerr
:
81




77

Lord Elias, ‘The ris
e of the Strasbourgeoisie: judicial activism and the ECHR’ (Statute Law Society Annual
Lord Renton Lecture, Institute for Advanced Legal Studies, Londo
n 24 November 2009) 9, 11
-
12. A
vailable at
<http://www.statutelawsociety.org/__data/assets/word_doc/0019
/85321/EliasLectureSLS24.11.09FINAL.doc>
accessed 26/02/2013.

78

Ullah

(n5
)

[20]. See also
N
(n27
) [21] (Lord Hope).

79

Kavanagh ‘Who decides?’ (n49)

834.

80

Kavanagh ‘Who decides?’ (n49)

834.

81

Re McKerr

[2
004] UKHL 12, [2004] 1 WLR

807
[63]. See also
[128]
-
[129] (Lord Mance)
.


15


[t]
wo sets of rights now exist side by side. But there are significant differences
between them. The former existed before
the enactment of the 1998 Act and they
continue to exist. They are not as such part of this country's law because the
Convention does not form part of this country's law
.

Indeed, it is well established that treaties do not form part of the corpus of the do
mestic law
without express statutory incorporation
82

(as is the case with the HRA) and as Lord Hoffman
explained in
R v Lyons
:
83

Parliament may pass a law which mirrors the terms of the treaty and in that sense
incorporates the treaty into English law. But e
ven then, the metaphor of
incorporation may be misleading. It is not the treaty but the statute which forms
part of English law. And English courts will not (unless the statute expressly so
provides) be bound to give effect to interpretations of the treaty

by an
international court, even though the United Kingdom is bound by international
law to do so
.
84

Moreover, where the UK Court
does

interpret a statute in accordance with an international
obligation established under a treaty, as it will where it can,
85

t
hat does not amount to the
incorporation of the terms of the international treaty into domestic law.
86

Furthermore still,
this principle of statutory interpretation cannot be used as a means to interpret the words of
section 2(1) such as to bind the UK Cou
rt, or at least, to mandate that the content and scope
of the rights are given precisely the same meaning as to do so would fundamentally alter the
language used in the Act itself, which is unwarrantable.
87

Lord Scott recognised the



82

JH Rayner (Mincing Lane) Ltd

v Department of Trade and Industry and Others and Related Appeals

[1990] 2
AC 418, 500 (Lord Oliver)
:


[A]
s a matter of the constitutional law of the United Kingdom, the Royal
Prerogative, whilst it
embraces the making of treaties, does not extend to altering the law or conferring rights
upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of
Parliament. Treaties, as it is sometimes expressed, a
re not self
-
executing.’

83

R v Lyons

[2003] 1 AC 976 [27].

84

See also
Re G

(n38
) [34]
-
[35]
(
Lord Hoffman
)
.

85

Attorney General v Guardian Newspapers Ltd (No 2)

[1990] 1 AC 109 (HL
)

283 (Lord Goff)
:

‘In any event I
conceive it to be my duty, when I am free to

do so, to interpret the law in accordance with the obligations of the
Crown under this treaty [the ECHR].’

86

R v Secretary of State for the Home Department, ex p Brind and Others

[1991] 1 AC 696 (HL
)

748 (Lord
Bridge)

87

Brind

(n86)

718 (Lord Donaldson). See also
Garland v British Rail Engineering
[1983] 2 AC 751 (HL
)

771
(Lord Reid).


16


discrepancy between the

rights in
R (on the application of Animal Defenders International) v
Secretary of State for Culture, Media and Sport
88

(although he does misuse the incorporation
metaphor). He argued:

The possibility of such a divergence is contemplated, implic
itly at leas
t, by the
1998 Act… T
he incorporated articles are not merely part of domestic law. They
remain, as they were before the 1998 Act, articles of a Convention binding on the
United Kingdom under international law. In so far as the articles are par
t of
domestic

law, this House is…

the court of final appeal whose interpretation of the
incorporated articles will, subject only to legislative intervention, be binding in
domestic law. In so far as the articles are part of international law they are
binding on the Uni
ted Kingdom as a signatory of the Convention and the
European Court is, for the purposes of international law, the final arbiter of their
meaning and effect.
89


It is also the case that Convention provisions, and subsequent interpretative
limitations placed

upon them by Strasbourg judgements, cannot enter the domestic judicial
sphere by way of customary international law (CIL), as Lord Steyn suggested they might in
Re Mckerr
. He argued that ‘human rights treaties enjoy a special status’
90

and since:


treatie
s may generate rules of customary international law: the accepted view
that unenacted treaties ‘cannot be a source of rights and obligations’ in England
is
thus effectively sidestepped.’
91


While this is the case, the rulings of Strasbourg on the interpreta
tion of the Convention, as a
supranational treaty body,
92

are not, in general, constitutive of CIL (and even if the terms



88

n28
.

89

Animal Defenders

(n28
) [45].

90

Citing: Murray Hunt,
Using Human Rights Law in English Courts

(1998
)

pp 26
-
28. This is a point Philip
Sales
QC

vociferously
refutes, see Philip Sales

QC

and Joanne Clement, ‘International Law in Domestic Courts:
the Developing Framework’ (2008) 28 LQR 388, 398
-
400.

91

Citing: Andrew J Cunningham, ‘The European Convention on Human Rights , Customary International La
w
and the Constitution’ (1994) 43 ICLQ 537
.

See
R R Baxter, ‘Multilateral Treaties as Evidence of Customary
International Law’ (1965
-
1966) 41 BYBIL 275
for a full discussion.

92

Under Article 32 of the Vienna Convention on the Law of Treaties 1969, decision
s of a treaty body can be
indicative of a state practice, but for the foregoing reasons it is submitted that this is not the case with respect to
the ECtHR.


17


alone of the Convention at least were held to be customary, they are already enumerated in
the HRA itself). CIL requires state practice

and
opinio juris

(that states accept the practice as
being required by law).
93

However the rulings of Strasbourg are not necessarily evidence of
state practice.
94

But even if the adoption of a ruling of the Strasbourg Court by the member
states is accepte
d as subsequent evidence of developing state practice, with respect to the fact
that the state practice is thereafter altered, it extends only to the practice of the 47 member
states, not all of which do alter their practice following a judgement.
95

Furthe
rmore, the
factual specificity
96

of the Strasbourg judgements would be insufficiently indicative of a
normative change of the gravity to be recognised as a new customary rule.
97

Although t
here
are

a

few instances w
here the ECtHR can be said to have

identify
ing new regional

customary
rules,
98

it does so principally as a consequence of its comparative method
,
99

and these tend to
be basal.

For instance
, in
Al
-
Sadoon v United Kingdom
100

Strasbourg held that although the
derogation under Article 2 permitting the deat
h penalty was still contained in the Convention,
CIL among the member states rendered such practice impermissible. Conversely in
Schalk
&




93

See the
North Sea Continental Shelf Cases

(Federal Republic of Germany/Denmark and Netherlands)

1
969
ICJ 3;
Nicaragua v USA (merits)

ICJ Rep 1986 14 [97
].

94

International Law Association, ‘International Human Rights Law and Practice: Final Report o
n
the Impact of
Findings o
f
t
he United Nations Human Rights Treaty Bodies
’ (Berlin Conference 2004) paras

15
-
19, 39.

Available at <
http://www.ila
-
hq.org/download.cfm/docid/3B0BF58A
-
C096
-
4113
-
830E8E1B5BC6DEC5
>
accessed 26.02.2013.

95

i.e. there is a commonly a persistent objector, for example following
Hirst v United Kingdom (No 2)
(2005)
ECHR 681

the UK has
continued to object to a prohibition on a blanket ban on prisoner voting. The UK
intervened

as a third party

in the later case
Scoppola v Italy

(No 3)

[2012] ECHR 868

in which the Grand
Chamber held that although a blanket ban on prisoner voting exceeded t
he margin of appreciation afforded to
states, a partial ban set down in ‘bright line’ terms in an act of Parliament would be acceptable.

96

The judgements of the Strasbourg Court are essentially declaratory in nature, particularly admissibility
decisions.
See David Harris, Michael O’Boyle, and Colin Warbrick,
Law of the European Convention on
Human Rights

(Butterworths 1995) 26.

97

There are few instances where the ECtHR can be said to be identifying new regional customary rules, and it
does so principally a
s a consequ
ence of its comparative method. S
ee
Stec
(n141) below.

98

Regional custom can exist down to the level of the interaction between two states alone. See
Right o
f Passage
over Indian Territory

(
Por
tugal v India)
1957 ICJ 3.

99

S
ee
Stec

(n141
)

below
.

100

Al
-
Sadoon v United Kingdom

[2009] ECHR 1040
.

See also
Öcalan v Turkey

[2005] ECHR 282
;
Soering v
United Kingdom

(1989) 11 EHRR 439
.


18


Kopf v Austria
101

the ECtHR could not find sufficiently wide evidence of state practice
establishing as a right the lega
l recognition of same
-
sex relationships. In any event, as Lord
Bingham held in
R v Jones (Margaret)
,
102

CIL
is

no longer directly incorporated into the
body of domestic common law. Rather, it merely forms the basis by which there might be
future development.
103

As such, customary international law will not
necessarily

influence
the common law as far as the development of Convention rights is concerned. This, of
course, is not to say that the development of human rights is ignorant of CIL as the ECtHR
itself will takes account international law in determining the meani
ng of the words of the
Convention
104

which may subsequently be adopted (or not) by domestic courts.

Of course, ultimately, each contracting state is free to develop rights further than
Strasbourg,
105

as provided for by Article 53 of the Convention itself. How
ever there is no
reason, either emanating from domestic or international law, by which the UK Court need
treat itself as bound by the Strasbourg jurisprudence and be timid in developing municipal
rights under the HRA. Nevertheless, the domestic courts hav
e consistently held that:


P
arliament clearly intended that... t
he width of the rights recognised in the
United Kingdom courts should be consistent with the scope of the relevant rights
accepted in Strasbourg
.’
106

The next section will therefore seek to refu
te such claims by examining the legislative history
of the Act.








101

Schalk & Kopf v Austria
[2010] ECHR 995
, para 105.

102
R v Jones (Margaret)
[2006] UKHL 16, [2007] 1 AC 136 [11]. Lord B
ingham observed: ‘There seems to be
truth in Brierly’s contention (“International Law in England” (1935) 51 LQR 24, 31
)

also espoused by the
appellants, that international law is not a part, but is one of the sources, of English law. There was, however, no

issue between the parties on this matter, and I am content to accept the general truth of the proposition’.

103

See also Sal
es and Clement, ‘Framework’ (n90)

413
-
414.

104

‘[T]he Convention cannot be interpreted in a vacuum but must be interpreted in harmony w
ith the general
principles of international law.’ See
Neulinger v Switzerland

(2010) 54 EHRR 1087, para 131.

105

Indeed Strasbourg does not concern itself with which institution does so, the courts, the executive or the
legislature. See
Re G

(n38) [32] (Baroness Hale).

106

R (on the application of Al
-
Jeddah) v Secretary of State for Defence
[2005] EWHC 1809, [2005] HRLR 39,
[50] (Moses J].


19


2.2 ANALYSING HANSARD

It is specified under section 1(1) of the Act that:

‘the Convention rights means the rights and
fundamental freedoms set out in a) A
rticles 2 to 14 of the C
onvention
b) Articles 1 to 3 of the
Convention’, and ‘c) Article 1 of the Thirteenth Protocol’ all as read with Articles 16
107

to
18
108

of the Convention.


M
eanwhile,

under
section

21 it is stipulated that
: ‘

The Convention’
means the Convention for the Protection of Hu
man Rights and Fundamental Freedoms,
agreed by the Council of Europe at Rome on 4th November 1950 as it has effect for the time
being in relation to the United Kingdom’.

That the Act cleaves to the Convention is
unquestionable
, and this is would appear to
support the approach the UK Court has taken.

However, the text of each right is appended by to the Act u
nder schedule 1 by section 1(3),
and two distinct differences can be outlined between the Convention rights and those under
the Act. Firstly, no right e
quivalent to those under Articles 1 or 13 of the Convention is
contained in schedule 1.
109

Secondly, under sections 12 and 13 the Act, applicants are
offered greater protection (in relation to right to freedom of expression and freedom of
religion) than is
otherwise apparent under the Convention.

Additionally, under section 6, the
courts are required to act in accordance with Convention rights. It would make no sense at
all if the Act, intended to ‘bring rights home’ were to preclude judges from deciding

on
matters brought before them on the basis that Strasbourg had not spoken clearly enough on
the scope of a right in a particular context. It

cannot

therefore

be inferred from the Act that it
is intended to provide no greater protection that Strasbourg w
ould be prepared to offer.



Although the text of the Human Rights Act should not give rise to the assertion that
Parliament ‘clearly intended’ that the courts should give effect only to the Strasbourg
interpretation of rights
and no more
, such statement
s are common. For example, Lord
Nicholls in
Quark Fishing
,
110

stated unequivocally on the territorial application of the rights
under the Act that:




107

That is,
the state’s capacity to restrict

the political activity of aliens.

108

Limitations on Use of
Restrictions on Rights:


restrictions permitted under this Convention to the said right
and freedoms shall not be applied for any purpose other than those for which they have been prescribed.


109

In
Al
-
Skeini
(n19
) [14] Lord Bingham did concede that since t
hese Articles are effectively otherwise
provided for under the Act itself ‘that Parliament intended the effect of the Act to be governed by its terms and
not, save by reference, the Convention.’

110

Quark Fishing

(n7)

[34]
.


20



The Act was intended to provide a domestic remedy where a remedy would have
been available in Strasbourg. Co
nversely, the Act was not intended to provide a
domestic remedy where a remedy would not have been available in Strasbourg.



However, Lord Irvine, promoter of the HRA, has recently argued that on the proper
construction of section 2(1) ‘it is simply unte
nable to suggest that the Judges are entitled to
treat themselves as bound by decisions of the Strasbourg Court’.

111

While Philip Sales QC
states that the ‘subjective views of a promoter of an Act of Parliament about its meaning are
not a relevant aid to it
s construction’,
112

it was not only Lord Irvine who expressed such a
desire for the UK Court to be able to innovate novel interpretations of Convention rights
where Strasbourg jurisprudence is insufficient, and for the UK Court not be bound by
Strasbourg. F
urthermore, he did not hold that view only in retrospect.

Lord Bingham himself was a champion of incorporating the Convention into domestic
law.
113

Quoting Milton’s Areopagatica he argued in the House of Lords that, we must ‘l
et not
England forget her
precedence of teaching nations how to live
’.
114

Similarly Lord Irvine
argued that to ‘take into account’ would:

permit the United Kingdom courts to depart from Strasbourg decisions where
there has been no precise ruling on the matter


[W]
here it is relevant
we would
of course expect our courts to apply convention jurisprudence and its principles to
the cases before them
… [O]
ur courts must be free to try to give a lead to Europe
as well as to be led.
115


Importantly, during the passing of the Act an amendment w
as introduced to alter the
wording of Section 2(1) from ‘must take into account’ to ‘may take into account’
116

which



111

Lord Irvine, ‘A British Interpre
tation of Convention Rights’ [2012] PL 237, 239.

112

Philip Sales ‘Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine’ (2012) 2 PL
253, 254. However, in
R (on the application of Public and Commercial Services Union) v Minister for
the Civil
Service

[2010] EWHC 1027 (Admin
)

[2010] ICR 1198, Sales J held that statements made by the promoter of a
bill
were

appropriate aids, but explanatory notes on clauses not cited in debate and therefore unavailable to the
public were not, [42] and [
53]
-
[55].

113

See Tom Bingham, ‘The European Convention on Human Rights: time to incorporate’ (1993) 109 LQR 390.

114

Hansard HL Deb 03 N
ovember 1997 vol 582 col 1246
.


115

Hansard HL Deb 18 November 1997 vol 583 col cc 514
-
514.

116

Hansard HC Deb 03 June 1997
vo
l 295
col 388.


21


was intended to take advantage of the margin of appreciation, thereby obviating the risk of
the importing values contrary to British idiosync
rasies. But it was subsequently withdrawn.
117

Geoff Hoon argued at the time that such a direction could result in inconsistency in
consideration of Strasbourg within the British judicial system, and that discretion to take into
account the rulings of Strasbo
urg could result in a breach of the international obligations of
the UK.
118

Contrariwise, in the House of Lords, a motion to amend the Bill to read ‘shall be
bound by’ rather than ‘take into account’ was introduced by Lord Kingsland’, lest the
domestic cou
rts be cast adrift from their international moorings… with no accurate charts by
which to sail.’
119

This too was withdrawn.
120

To bind the UK Court to the jurisprudence of
the Strasbourg Court would be incompatible with the ‘living instrument’ principle


that

the
Convention must be
interpreted in the light of present
-
day conditions



that is so clear in its
case law.
121

Moreover, binding the domestic courts to an evolving interpretation would
clearly be undesirable given the strength of precedent
within the dom
estic court structure,
122

with even the Supreme Court treating its own decisions as normally binding.
123

For
Section

2(1) to do
so

would tie domestic courts in knots.

Finally,

L
ord Irvine made it clear that the
Convention proper was not to be incorporated into

of the domestic law,
124

and that:




117

Hansard HC Deb

03 June 1997 vol 295 col 408.

118

Hansard HC Deb 03 June 1997
vol 295
col 402
.

119

Hansard HL Deb 18 November 1997 vol 594 col 511
.

120

Hansard HL Deb 18 November 1997 vol 594 col 516
.

121

For example,
Tyrer v United Kingdom

(1979
-
8
0) 2 EHRR 1, para 31. The ECtHR does however treat its
previous decisions as persuasive in
pursuit of legal certainty, see

also

Goodwin v United Kingdom

(2002) 35
EHRR, para 74: ‘While the Court is not formally bound to follow its previous judgments, it is

in the interests of
legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from
precedents laid down in previous case…However… the Convention is first and foremost a system for the
protection of human r
ights, the Court must have regard to the changing conditions within the respondent State
and within Contracting States generally.’ This has not always proved successful, and has led to plainly
contradictory judgements that the ECtHR will not acknowledge as

such, see
Banković v Belgium and 16 other
Contracting States

(2007) 44 EHRR SE5 cf.
Al
-
Skeini v United Kingdom

(2011) 53 EHRR 18
, para 137, but see
the separate opinion of Judge Bonello, paras 4
-
8.

122

See
Kay
(n49
) [44] (
Lord
Bingham). The
House of Lords

held that lower domestic courts must apply the
rulings of the
House

even where a later Strasbourg judgement was contrary to the earlier domestic decision.
‘Leapfrog’ appeals under ss12
-
16 of the Administration of Justice Act 1969 may be appropriate to exp
edite a
ruling to the Supreme Court that does ‘take into account’ relevant Strasbourg authority.

123

Practice Statement

[1966] 3 All ER 77.

124

Hansard HL Deb 18 November 1997 vol 583 cc 509
-
509.


22


the Bill provides that individuals may rely upon convention rights, but his
convention rights are, as it were, a floor of rights; and if there are different or
superior rights or freedoms conferred on him by or under any la
w having effect in
the United Kingdom, this is a Bill which only gives and does not take away.


Parliamentary legislative history was of paramount importance in Baroness Hale’s
judgement in
Re G
, in which the House of Lords extended the scope of Article 8
under the
margin of appreciation. She asked:

[w]
hat did Parliament mean when it required the courts to act compatibly with the
Convention rights? Did it mean us only to go as far as Strasbourg would go? Or
did it mean us, in at least some cases, to be abl
e to go further?

It seems clear that
Parliament…
intended the latte
r… [t]
he courts must be free to develop human
rights jurisprudence and to move out in new directions.
125

As such, the principle expounded by the cases following
Ullah
, particularly views such

as
those of Lord Hope in
Ambrose v
Harris
126

where he stated that: ‘Parliament never intended
to give the courts of this country the power to give a more generous scope to those rights than
that which was to be found in the jurisprudence of the Strasbourg c
ourt’, is not borne out
when the legislative history of the HRA is taken into account.



2.3 UNIFORMITY

When ‘a country voluntarily incorporates the exact wording of the Convention into its
national law, the Convention ceases to be a European text and
becomes a national text, to
which national courts are free to give a more generous interpretation’.
127

Lord Bingham,
however, argued in
Ullah

that:

It is of course open to member states to provide for rights more generous than
those guaranteed by the Conven
tion, but such provision should not be the product
of interpretation of the Convention by national courts,
since the meaning of the



125

Re G

(n38) [120
].

126

Ambrose v Harris (Procurator Fiscal, Oban)

[2011] UKSC 43, [2011] 1 WLR 2435, [19].

127

Robert Wintermute, ‘The Human Rights Act’s First Five Years: too strong, too weak or just right?’ (2006) 17
Kings College Law Journal 209.


23


Convention should be
uniform throughout the states party to it

(emphasis
added)
.
128

Likewise in
M
129

Lord Nicholls held: ‘[i]t g
oes without saying that it would be highly
undesirable for the courts of this country… to be out of step with the Strasbourg
interpretation of the relevant convention right.’ In
Brown v Stott

Lord Bingham counselled
against expanding the rights under the
‘process of implication [i.e. reading into the
Convention rights not expressly stated] is one to be carried out with caution, if the risk is to
be averted that the contracting parties may, by judicial interpretation, become bound by
obligations which they
did not expressly accept and might not have been willing to accept’.
130

This contention, however, can mean only one of two things, as Baroness Hale has pointed
out,
131

either that domestic courts should be wary of binding all member states to the
decisions of

the UK courts through later adoption of those decisions in Strasbourg,
132

or, that
domestic courts should not bind the UK at an international level should the decision
subsequently be used in a later case against the UK before the ECtHR.
133

Neither of these
ought to be a cause of concern for the UK Court. In the case of the former, although
Strasbourg does take decisions of domestic courts into account when developing its
jurisprudence, it tends to reserve considerations of cases by national courts to cases w
here the
parent state of that court is the respondent party. For instance, in
Von Hannover
134

the ECtHR
went beyond its previous jurisprudence to declare that Article 8 was applicable between



128

Ullah (n5) [20]
.

129

n37
.

130

Brown v Stott
(n8) 703
.

131

Baroness Hale, ‘Law

Lords at the Margin: Who Defines Convention Rights?’ JUSTICE Tom Sargant
Memorial Annual Lecture 2008 (London, 15

October 2008) available at:
<http://www.justice.org.uk/resources.p
hp/169/law
-
lords
-
at
-
the
-
margin>

accessed 15/01/2013.

132

‘[a]n enlargement
of its scope in its application to one contracting state is an enlargement for them all. The
question must always be whether the enlargement is one which the contracting parties would have accepted and
agreed to be bound by.’
N

(n27
) [21] (Lord Hope)
.

133

It

must be recalled that under Article 34 the Convention there is no right of appeal for member states against
decisions of domestic tribunals, therefore a decision going beyond Strasbourg jurisprudence could not be
challenged until another case arose. Lord
Brown evinced such a fear in
Al
-
Skeini

(n16) [106] stating: ‘There
seems… a greater danger in the national court construing the Convention too generously in favour of an
applicant than in construing it too narrowly. In the former event the mistake will nec
essarily stand: the member
state cannot itself go to Strasbourg to have it corrected.’

134

Von Hannover v Germany

(2005) 40 EHRR 1.


24


private parties. This approach was consistent with the earlier de
cision reached by the House
of Lords in
Campbell v MGN
,
135

but this case was not even cited before the Strasbourg Court.
As Baroness Hale recounts: ‘the main contribution our judgments make in Strasbourg is to
explain why we have not found a violation of the

Convention in a particular case.’
136

But
even if Strasbourg were to take into account a higher obligation imposed domestically, it
would likely accord the particular respondent state a margin of appreciation in respect of its
own, less generous practice.
137

Besides, as has already been argued, the approach taken by
the court
vis
-
à
-
vis

binding the UK to higher obligations where necessary is consistent with
the legislative intent of Parliament.

This desire for uniformity does not sit well with the later interpr
etations of the rights as
discrete under the Convention and the HRA
138

nor does it dovetail with the principle of
subsidiarity by which Strasbourg is itself a remedial institution for ensuring rights are
properly secured national authorities of member states
.
139

Such an approach is inconsistent
the fact that Strasbourg must take its lead from national systems in order to determine a
minimum standard, simply put, Convention adjudication is ‘not a watertight, self
-
sufficient
system’.
140

Stec v United Kingdom
141

illustrates this point regarding the right to peaceful
enjoyment of possessions, as it related to state pensions. The ECtHR stated that:

The Court's approach to Art.1 of Protocol No.1 should reflect the reality of the
way in which welfare provision is
cu
rrently organised

(emphasis added)
within
the Member States of the Council of Europe. It is clear that within those states,
and within most individual states, there exists a wide range of social security
benefits designed to confer entitlements which arise

as of right


In the modern,



135

Campbell v Mirror News Group International

[2005] UKHL 61, [2005] 1 WLR 3394.

136

Hale ‘Law Lords’ (n130
) 4.

The Grand Chamber has itself stated that:


Where


the superior national courts
have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the
basis of the relevant Convention case law and principles drawn the
refrom, this Court would need strong reasons
to differ from the conclusion reached by those courts by substituting its own views for those of the national
courts on a question of interpretation of domestic law
’ See
Roche v United Kindgom

(2006) 42 EHRR 30,

para
120. See also
Z and Others v United Kingdom

(2002) 34 EHRR

3
,

137

See Lewis ‘Ceiling’

(n7) 734.

138

See Lewis ‘Ceiling’ (n7) 730.

139

n33
.

140

Rozakis ‘Comparatist’ (n42
) 268.

141

Stec v United Kingdom (Admissibility)

(2005) 41 EHRR SE18.


25


democratic state, many individuals are, for all or part of their lives, completely
dependent for survival on social security and welfare benefits.
142

If the meaning of the Convention were the same across all member states, Conven
tion
interpretation would enter a torpor from which the ECtHR would be unable to develop its
jurisprudence in light of ‘present day conditions’ as interpreted by national courts, which
would be taking their lead from Strasbourg. Both the national and supra
national court would
in effect entrust the task of defining the rights under the Convention to national
legislatures
143
.

The very ambition of uniformity throughout the member states is misguided, not least
because the ECtHR does not require uniformity, as
is quite clear from the national discretion
afforded by the margin of appreciation, but perhaps most tellingly because it is not the
approach taken by other member states party to the Convention. In monist France, for
example, the ECHR ‘does not impose on
the State the introduction into municipal law of
rules identical to those of the Convention; it delineates a standard of minimum protection,
defined uniformly in the jurisprudence of the Court…

according to which the ECHR is
subject to overt evolutive inte
rpretation [within French courts]’.
144

Clearly this is at variance
with the conservative
Ullah

approach, and it defeats any attempt by any another national
court to pursue uniformity.
145


Reducing the status of human rights protection in the UK to the lowest c
ommon
denominator
146

by striving for uniformity amongst member states ‘carries the risk that in
trying to stay level, we shall fall behind’.
147

The consequence of pursuing uniformity rather
than taking an innovative approach to rights protection has therefore

contributed to
inadequate domestic rights protection and the reintroduction of the long road to Europe.



142

Stec
(n141) paras 4
9
-
50.

143

Lord Bingham himself has argued that: ‘
anyone who sees Parliament as a reliable guardian of human rights
in practice is, I suggest, guilty of wishful thinking
’. See Bingham, ‘Time to incorporate’ (n113) 392.

144

Eirik Bjørge, ‘National supreme courts

and the development of ECHR rights’ (2011) 9(1)
ICON

5, 23
-
24

145

See also Lord Kerr, ‘The UK Supreme Court: The Modest Underworker of Strasbourg?’ (Clifford Chance
Lecture, 25th January 2012
) 7, where h
e
states

that: ‘Our courts do not have power to bind
the courts of any
other member states of the Council of Europe or the Strasbourg court itself. A decision as to the content of a
Convention right in UK does not, therefore, impose on, or require of, other countries in the Council of Europe
any correspondin
g conclusion.’

Available at <
http://www.supremecourt.gov.uk/docs/speech_120125.pdf
>
accessed 03.02.1013.

146

Jonathan Lewis, ‘
In Re P and others: an exception to the "no more, certainly no less" rule’ [2009] PL 43, 46.

147

Stephen Sedley, ‘Bringing rights home
: time to start a family?’ (2008) 28(3) LS 327, 332.


26


Indeed, Judge Martens
148

has argued that the duty of domestic courts in rights adjudication
‘goes further than seeing to it that the minimum standards in

the ECHR are maintained’.
Ultimately, uniformity among member states is not the concern of national courts; it is the
concern of only the Strasbourg Court to ensure that pan
-
European minimum standards are
devised and upheld.



2.4 COMPLIANCE WITH
INTERNATIONAL OBLIGATIONS AND COMITY

The United Kingdom must uphold its international obligations as delineated by Strasbourg
jurisprudence.
149

However, the practical failure of the approach envisaged by Sedley LJ, that
we will fall behind the ECtHR by tryi
ng to keep pace, eventuated in Strasbourg following
R
(on the application of

S &
Marper) v Chief Constable of South York
shire Police.
150

Although
the House of Lords undertook an extensive review of the relevant jurisprudence in
Strasbourg, concluding that ‘
Strasbourg case law does not support the appellants' argument
that there has been a violation of article 8 in the circumstances

[i.e. fingerprint retention]

of
these cases.

151

In spite of this, rather than preferring the considered reasoning of the House
of

Lords, the ECtHR advanced its own interpretation of the Convention holding that:

the blanket and indiscriminate nature of the powers of retention of the
fingerprints, cellular samples and DNA profiles of persons suspected but not
convicted of offences, as

applied in the case of the present applicants, fails to
strike a fair balance between the competing public and private interests and that
the respondent State has overstepped any acceptable margin of appreciation in