Ed Bates UK Country Report Draft text available at https://ukstrasbourgspotlight.wordpress.com And upon request at epb3@le.ac.uk

Overview Slides 2-5: the ‘alienating effect’ of he HRA? Slides 5 – end: the UK courts’ approach [under the HRA] = emphasis on principled compliance

The Human Rights Act backdrop 1 Lord Neuberger, ‘Reflections on significant moments in the role of the Judiciary’, 16 March 2017 ’The Human Rights Convention is particularly prone to play an important part in the law of a country such as ours which unusually has no overriding coherent constitution. The rights contained in the Convention would be regarded as established constitutional rights in a country with a formal written constitution, and those rights would be expected to be enforced as a matter of routine by domestic judges. It is largely because we have no such constitutional rights in this country that the introduction Convention into our law has been seen to have such a significant effect’.

The HRA backdrop 2: sections 6(1) and 2(1) 2 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)judgment, … of the European Court of Human Rights, …whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. [section 6(1): ‘it is unlawful for a public authority to act it a way which is incompatible with a Convention right’]

The Human Rights Act backdrop 3 Lord Lester (2012) ‘The weakness in the Human Rights Act is that it depends upon the Convention to define our rights and freedoms. Instead of asking whether our constitutional rights have been infringed, the Human Rights Act asks whether our Convention rights have been infringed. That is not the way it works in the rest of Europe and the common law world where written constitutions protect the universal civil and political rights anchored in international treaties. Instead of bringing rights home, the Human Rights Act has an alienating effect, especially among those for whom "Europe" is a dirty word’.

The HRA backdrop 4 UK courts have evolved in their approach to the domestic application of the Convention under HRA. Lord Neuberger (August 2016, lecture): ‘… while UK judges may well initially have been too readily prepared to follow decisions of the Strasbourg court, we are now more ready to refuse to follow, or to modify or finesse, their decisions, as we become more confident in forming our own views about Convention rights’

Manchester City Council v Pinnock [2010] UKSC 45 [48] ‘This Court is not bound to follow every decision of the EurCtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law … Of course, we should usually follow a clear and constant line of decisions by the EurCtHR… But we are not actually bound to do so … Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line’. (emphasis added).

Summing up UKSC position Under what may be referred to as the ‘Pinnock criteria’, the UK courts look carefully at relevant ECtHR’s law, expecting to follow it when: (i) there is ‘a clear and constant line of decisions’; (ii) ‘whose reasoning does not appear [from the UK perspective] to overlook or misunderstand some argument or point of principle’, and (iii) ‘whose effect’ is ‘not inconsistent with some fundamental substantive or procedural aspect of our law’ (emphasis added). Manchester City Council v Pinnock [2010] UKSC 45, para 48 (Lord Neuberger).

Analysing the position of UK courts ‘cases of principled resistance’? No Examples of following Strasbourg when no room for dialogue [Chester, UKSC: prisoner voting] Dialogue with Strasbourg (not principled resistance?) 1) Al-Khawaja v UK (chamber) – Horncastle (UKSC) – Al-Khawaja v UK (GC) 2) Ali (UKSC, 2010) – Ali v UK (chamber) – Poshteh UKSC 2017 [Poshteh GC to come???] 3) Vinter (GC) – McLoughlin (UK Court of Appeal) – Hutchinson (GC, 2017)