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Mohammed Sbahuddin Rafiuddin                626290


The Human Rights Act 1998 (HRA) is one of the most ground-breaking pieces of legislation to have been passed by parliament in recent times. The act, which came into force on October 2nd 2000, gives further effect to the European Convention on Human Rights (ECHR) within domestic British law.  This essay will evaluate the role the courts have played in attempting to facilitate the act in achieving its objectives and the obstacles they have faced in doing so.

Firstly, in order to critically evaluate whether the objectives have been achieved, it may be beneficial to familiarise oneself with what the intended objectives actually were. One of the most fundamental objectives of the HRA is to develop domestic common law and statutes so that they reflect convention rights. Prior to the enactment of the HRA, UK courts had the option (if necessary) to look at cases from the Strasbourg Jurisprudence (judgements of the European Court of Human Rights (ECtHR)) but “were legally not obliged to do so”. However, now under Section 2 of the act, courts are required to “take into account” relevant ECtHR case law whilst making their judgements. Nonetheless it should be noted that the provision does not legally bind domestic courts to follow the Strasbourg Jurisprudence and hence gives them substantial leeway in terms of developing their own law which reflects their own traditions and culture (a key objective of the act).  This same objective appeared to be significantly undermined by the House of Lords in Ullah v Special Adjudicator; where it was held that domestic courts should now not only acknowledge ECtHR cases, but should also follow them if they are “clear and constant”. This judgement explicitly contradicts section 2 of the act and resulted in vast legal confusion arising as a result of a “judge-made” restriction on the law. This controversial decision in Ullah was supported by Lord Bingham who declared that the roles of domestic courts are “to keep pace with the Strasbourg Jurisprudence as it evolves over time: no more, but certainly no less”. This can be strongly criticised on the grounds that it could create an extremely restrictive approach in the UK courts, thus limiting the development of domestic human rights law in an attempt to follow Strasbourg. Lord Bingham further goes on to claim that “convention rights should be uniform throughout the member states”. Again, this statement appears to contradict another basic objective of the act, which is to allow domestic countries to interpret and develop their national law in accordance to their own culture and political views. Nevertheless, for arguments sake, if we apply Lord Bingham’s argument and all convention rights were changed to become uniform, it would not only cause political unrest between the 47 countries signed up to the convention but it would also mean the courts would be failing to uphold the fundamental aims of the act itself. It was this exact problem that the ECtHR attempted to overcome by keeping the convention rights “conservative rather than radical”; in an attempt to “keep all signatories content”.

However, it should be noted that not all courts have agreed with Lord Bingham’s divisive view. Lord Hoffman takes a different view in Alconbury Ltd, where he states that Strasbourg Jurisprudence is “merely persuasive” and reminds the court that “this House is not bound by the decisions of the European Court”; re-emphasizing that there is no legal obligation to follow the judgements of the ECtHR. Both these conflicting judgements have caused an apparent legal confusion and judicial uncertainty due to the courts attempt in “blindly following Strasbourg”. These judgements have been the centre of immense criticism from legal commentators such Elizabeth Wicks. Wicks argues that a fundamental reason as to why the courts seem to be unsure about their responsibility, is because of their failure to “adequately distinguish between an obligation to “take into account” the Strasbourg jurisprudence [as required under Section 2] and an obligation to be bound by it” [as suggested by Lord Bingham in Ullah]. A similar opinion is expressed by Jane Wright who argues that the courts have been afraid of violating section 2, so much so, that they have “been too conservative in their judgements” in attempt to ensure compliance with the act. However, in defence of the courts, it may be argued that these “conservative judgements” are as a result of a lack of clear guidance from the ECtHR who have placed an obligation on the court without explicit clarification of its role. The broad and ambiguous term “taking into account” does not state the duty of the domestic courts and only gives them a rough direction as to what they should be doing. It may be argued that if there was clarity from the ECtHR then this could clean up the legal confusion which appears to have been caused by domestic courts.. [add journal here]

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The courts further hindered chances of achieving the objectives of HRA in Leeds City Council v Price (2006)  where they controversially held that where there is a conflict between domestic law and Strasbourg jurisprudence, it is domestic law that should take precedent as it is “the cornerstone of our legal system”. Similar to the controversial decision in Ullah, this judgement overtly undermines the basic responsibility placed on the courts under section 3 of the act which requires them to interpret law “so far as is possible” in a way which is compatible with the convention. This appears to be explicitly contradictory of the ...

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