Taking Strasbourg Jurisprudence into Account

European Human Rights Law Review (2022)

16 Pages Posted: 8 Jul 2022

See all articles by Lewis Graham

Lewis Graham

University of Oxford - Wadham College

Date Written: 2022

Abstract

This paper examines the way domestic courts have interpreted their obligations under section 2 of the Human Rights Act (HRA) in practice. Section I examines the position adopted when Strasbourg is silent – that is, where it has yet to determine an issue under consideration by a UK court. Sections II and III examine the position where Strasbourg has spoken on a matter – firstly, when it finds that a situation does not breach the Convention, and secondly when it finds that a situation does breach the Convention. Section IV draws the picture together, identifying ambiguities and inconsistencies in the case law and how they might be resolved. Ultimately, it will be shown that domestic courts are much more comfortable with departing from Strasbourg case law which identifies, or increases the scope of, obligations upon public bodies; by contrast, they are much more likely to mirror Strasbourg case law which limits the scope of a Convention right, or grants more leeway to public bodies. This is an unsatisfying prospect.

Keywords: ECHR; Human Rights; International Human Rights; HRA; Human Rights Act

Suggested Citation

Graham, Lewis, Taking Strasbourg Jurisprudence into Account (2022). European Human Rights Law Review (2022) , Available at SSRN: https://ssrn.com/abstract=4143495 or http://dx.doi.org/10.2139/ssrn.4143495

Lewis Graham (Contact Author)

University of Oxford - Wadham College ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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