adjudicating HR claims
S10(2) if a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility
power: “the requirement for compelling reasons (in S10 HRA) is there to make it absolutely clear that a remedial order is not a routine response in preference to fresh primary legislation”
S2 HRA
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
how judges should the jurisprudence of the European Court of Human Rights?
jurisprudence = philosophy of law / body of law
effect of S2 HRA
so: should these be treated as binding precedents? i.e. should the UK courts always follow that case law?
NO - S2 tell judges that they must ‘take into account’ the Strasbourg case
judicial interpretation of S2 - Alconbury
LORD SLYNN [26]: “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 Rights”
judicial interpretation of S2 - Ullah
LORD BINGHAM [20]: “the duty of the courts is to keep pace with Strasbourg jurisprudence as it evolved over time; no more, but certainly no less”
judicial interpretation of S2 - N
HOL took into account ECTHR case law but it suggested that Article 3 was breached by deporting AIDS sufferers who would not receive proper treatment where the facts of the case were very exceptional and even though the Strasbourg case law couldn’t be said to be very clear “it is not for us to search for a solution … which is not to be found in the Strasbourg case law”
this is later developed in AM (Zimbabwe)
[2020] UKSC 17 - the UKSC adopted new interpretation of Article 3, set out in the ECTHR decision in Paposhvili v Belgium
‘Strasbourg has spoken’ - AF No3
LORD RODGER [98]: “even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum loctum, judicium finitum - Strasbourg has spoken, the case is closed”
not following Strasbourg - Horncastle
LORD PHILLIPS [11]: “… ‘take into account’ … will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. there will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process”
margin of appreciation in practice
LORD REED [55]-[67]: the width of the margin varies depending on the circumstances / imposition of positive obligations requires changes to law and public policy and as such incur expense / for contracting states to determine priorities
it is clear that in the present case it it to be wide & the inferior courts were right in their determination of it being wide
