Follow or lead?: the Human Rights Act and the European Court of Human Rights

Since the Human Rights Act 1998 (HRA) came into force ten years ago a debate has rumbled on about its larger purpose. It was drafted in response to a long-standing campaign for a bill of rights for the UK which attracted support across the political spectrum. But to what extent can its legal form serve that purpose if, as has been suggested, the HRA was intended not just to incorporate most of the rights in the European Convention on Human Rights (ECHR) into domestic law, but the totality of its case law? To shed light on the debate, this article examines the duty in HRA s.2 for domestic courts to “take into account” Strasbourg jurisprudence when considering a Convention right. We identify three broad approaches taken by the domestic courts to European Court of Human Rights jurisprudence: the mirror approach, the dynamic approach and the municipal approach. The parliamentary debate on s.2 reveals that the language of that section was purposefully drafted to avoid the domestic courts from being bound by Strasbourg jurisprudence, whilst still requiring them to take it into account. Developing this further, we suggest that the purpose of the HRA was to allow the courts to use the ECHR as a source of rights and freedoms to be interpreted domestically in the manner of a bill of rights, in order to enhance human rights in the UK