Strasbourg Jurisprudence in Domestic Courts under the Human Rights Act

Abstract

Section 2 of the Human Rights Act 1998 enjoins UK domestic courts to ‘take into account’ Strasbourg jurisprudence but does not bind them to it. Neither does s.2 oblige domestic courts to follow it, imitate it or restrict themselves to it. However, judicial guidance to ‘follow’ the ‘clear and constant’ Strasbourg jurisprudence has fed a restrictive interpretation of the s.2 duty. The eagerness to maintain consistency with the Strasbourg Court and the central importance of the House of Lords’ guidance to ‘keep pace’ with Strasbourg jurisprudence ‘no more, no less’ has placed obvious limits on judicial reasoning under s.2. Further, this Strasbourg focus may overly inflate the value of Strasbourg jurisprudence, which is often affected by a number of factors that make following it undesirable or simply impossible. In the end, ‘taking into account’ Strasbourg jurisprudence may require more than simply ‘keeping pace’ with or following the ‘clear and constant’ decisions of that court. For many reasons – not least related to the scheme of the Human Rights Act to ‘bring rights home’ – domestic courts may better address their duty under s.2 by focusing primarily on the cases as they arise in the specific context of domestic law, being guided by Strasbourg jurisprudence but not reliant upon it.