New Report: Supreme, Submissive or Symbiotic? The United Kingdom Courts and the European Court of Human Rights.
1 October 2015
The Constitution Unit has today published a report titled Supreme, Submissive or Symbiotic? The United Kingdom Courts and the European Court of Human Rights.
The report, written by Roger Masterman, suggests that the Conservative government's proposals for a British Bill of Rights breaking the formal link between the British courts and the European Court of Human Rights could have unintended, unpredictable and constitutionally undesirable consequences.
The report argues:
- The idea that domestic courts and law are subservient to the whims of the European Court of Human Rights as a result of the Human Rights Act is an oversimplification.
- Recent years have seen a weakening of the domestic courts' presumption in favour of applying relevant Strasbourg case-law.
- 'Breaking the link' between domestic law and the European Court of Human Rights through the adoption of a British Bill of Rights alone is not possible because the UK's obligations under Article 46 of the European Convention on Human Rights would continue to apply.
- A re-worded section 2 of the Human Rights Act - making the consideration of Strasbourg case law optional rather than mandatory - would still be likely to be interpreted in the light of the assumption that Parliament legislates in compliance with the UK's Treaty obligations.
- Complete removal of an equivalent to section 2, leaving the interpretation of the Bill of Rights' protections to the discretion of domestic judges, or permitting recourse to an extensive range of comparative law sources, would open up the possibility of increased unpredictability and instability in the UK's rights regime.
- A new equivalent to section 2(1) might deliver symbolic change (amending or altering the link with the Convention case-law), but it is unclear that it would lead to significant practical change in the approach of domestic courts to the Strasbourg jurisprudence.