Thread by @GeorgePeretzQC

This is an excellent piece on the recent UK case-law on the extent to which UK courts should, under the HRA, regard themselves as bound by Strasbourg ECtHR case law. It is relevant to a key aspect of the current government’s consultation on HRA reform.

https://twitter.com/ukcla/status/1480826850377183233

First, the current U.K. case law.

There are some problems here. First, if you say that the U.K. courts applying the HRA should never go beyond the ECtHR, does that mean you can’t find an HRA breach just because the ECtHR has not ruled on that particular issue, even if it has found a breach in analogous case?

That approach would make rights dependent on the accidents of litigation, not on principle.

What about saying that a UK court can’t find a breach in a case where the ECtHR has refused to find one? Sounds obvious, but remember the difference in roles. The ECtHR rightly remembers that it is a pan-European court and that European countries are very different.

So it allows member states a margin of appreciation (often very wide) in applying the ECHR to their own circumstances. But it isn’t obvious that that point applies with the same force to a national court.

The article explores where the current case-law is. Best just to read it, if you’re interested.

But I wanted to pick up a point at the end about the current government’s somewhat inconsistent approach to the question of whether U.K. courts should follow the ECtHR.

On the one hand, it complains that our courts sometimes follow the ECtHR too closely, even though our courts are better placed to develop the law.

On the other hand, it is worried about what might happen if they aren’t tied to the ECtHR’s case-law.

What this ends up with is a stance that our courts should be freer to depart from ECtHR case law that finds the existence of rights, but constrained by ECtHR case-law finding no breach (or even by absence of ECtHR case-law finding a breach).

None of that is very coherent.