Chapter 8: THE MIRROR AND THE DIALOGUE: THE COMMON LAW, STRASBOURG AND HUMAN RIGHTS Two metaphors

s have developed as ways of thinking about the relationship between British courts and Strasbourg. In this chapter, we want to examine them in some detail. The mirror prin ip!e determines that the r"!in#$ o% the S"preme Co"rt (S ! (and the "ouse of #ords! must re%!e t the &"ri$pr"'en e o% the ECtHR. The idea of the dialogue is a (a) o% thin*in# a+o"t thi$ re!ation$hip in a more n"an e' (a), Dome$ti o"rt$ may ha-e to %o!!o( the r"!in#$ o% Stra$+o"r# to ena+!e the oherent 'e-e!opment o% internationa! h"man ri#ht$

 +"t this principle 'oe$ not mean "n."e$tionin# o+e'ien e. $hilst there have been tensions between the domestic courts and Strasbourg, but the ro!e that the Briti$h o"rt$ ha-e p!a)e' in the 'e-e!opment o% h"man ri#ht$ !a( suggests that there is indeed a developing relationship that is $!o(!) he!pin# to reate a ontinent/(i'e h"man ri#ht$ "!t"re,

 But, all is not well. %s Sir &icolas Brat'a has commented( )*t+he -itrio!i , , , %"r) 0strong feeling1 'ire te' a#ain$t the &"'#e$ o% m) Co"rt i$ "npre e'ente' in m) e2perien e, as someone who has been involved with the onvention system for over ,- years.. $hy should this be the case/ We (i!! !oo* at the re!ation$hip +et(een Briti$h po!iti $ an' h"man ri#ht$ to analyse why the complex relationship between Strasbourg and the domestic courts have been )flattened out. and seen in terms of crisis. $e will argue that we need a more sober assessment of human rights in British politics.

 0ur argument will develop as follows. %s the 1uestion of the re!ation$hip +et(een Strasbourg and the common law ha$ to +e a''re$$e' in the term$ o% the H"man Ri#ht$ A t, the first section of the chapter will outline the %ct.s key provisions. $e will then turn to examine in detail the re!ation$hip +et(een E"ropean h"man ri#ht$ an' the ommon !a(2 assessing both the key cases and scholarly and 3udicial commentaries. %lthough the mirror principle is under strain, but we have to appreciate that it continues to play an important role. $e will then turn to our analysis of the dialogue between the domestic courts and Strasbourg, before concluding with our discussion of the tensions between law, politics and democracy.

Ne( Se tion: EURO3EAN HUMAN RIGHTS AND THE COMMON LAW HRA 1998 0ur discussion of the mirror principle begins with the key sections of the "4% that articulate the relationship between common law and 5uropean "uman 4ights #aw. Section 4051 of the "4% specifies that in the interpretation of onvention rights, a court or tribunal m"$t ta*e into a o"nt a number of sources of 5uropean human rights law if )in the opinion o% the o"rt or tri+"na!, it i$ re!e-ant to the pro ee'in#$ in which that 1uestion has arisen..

 The court thus has discretion to determine whether or not the authorities are relevant to the proceedings in 1uestion2 e-en i% the) pre/'ate the A t, Section 6(7! states that the relevant source can be taken into account 6(hene-er ma'e or #i-en7, The %ct then goes on to state at $,80!1, that as far as the interpretation of legislation is concerned, primar) !e#i$!ation an' $"+or'inate or 'e!e#ate' !e#i$!ation m"$t +e rea' an' #i-en e%%e t $o that the) are ompati+!e (ith Con-ention ri#ht$, 6$o %ar a$ it i$ po$$i+!e to 'o $o7, 0nce again, the court has a wide discretion to determine whether or not legislation is onvention compliant. Section 8(6! concerns the extent of this section.s operation.

 It applies, first of all, to primar) !e#i$!ation an' $"+or'inate !e#i$!ation (hene-er ena te', Bear in mind that in ompati+i!it) 'oe$ not a%%e t the -a!i'it) or continuing operation of any provision, or the -a!i'it) or ontin"e' operation o% in ompati+!e $"+or'inate !e#i$!ation, i% the primar) !e#i$!ation %rom (hi h it i$ 'eri-e' pre-ent$ the remo-a! of that incompatibility.

%rgument( $hy 9: can choose not to follow 5 t"4/ ;ue to several reasons Le(i$ contrasts $,4 o% the HRA with s,8051 o% the EC A t 59:4, (hi h $tate$ that U; o"rt$ are +o"n' +) the 'e i$ion$ o% the EC< #ater, he cites <asterman.s rationale for the structure of the "4%, which in turn (at least for the first three points!, are taken from statements of #ord Irvine during =arliamentary debate. Dome$ti o"rt$ are not +o"n' to follow the 5 t"4 because( (a! the onvention is the )ultimate. source of law2 +"t has 6no $tri t r"!e o% pre e'ent7 (>87!2 (b! the onvention states that the 9: is +o"n' on!) +) r"!in#$ in a$e$ in (hi h it (a$ a part)2 (c! *from the $hite =aper+, the ommon !a( o"rt$ m"$t +e %ree to 'e-e!op Con-ention !a(2

 (d! as the &"'#ment$ o% the ECtHR are 6'e !arator)7 in nat"re, it i$ 'i%%i "!t to %o!!o( them a$ pre e'ent 'e i$ion$. #ewis cites layton.s (below! argument that there i$ a 'i%%eren e +et(een the (a) in (hi h the ECtHR an' ommon !a( o"rt$ pro'" e their 'e i$ion$, This makes it all the more ne e$$ar) to ."a!i%) $tri t a'heren e to the mirror prin ip!e 0on!) in !imite' ir "m$tan e$1 and to develop indigenous interpretations of the onvention.

Depend on proper interpretation to follow In Re M ;err, #ord &icholls pointed out that the $ ope o% Con-ention ri#ht$ in common law 'epen'$ on the 6proper interpretation o% that HRA7. This takes us back to s.6(7! of the %ct. B"t, ho( i$ thi$ $e tion to +e interprete'=

Follow the clear and constant decisions unless special circumstances Lor' S!)nn7$ speech in R 0A! on+"r)1 -, Se retar) o% State %or the En-ironment, Tran$port an' the Re#ion$ is seen as the origin of a particular interpretation of s.6(7!. #ord Slynn pointed out that whilst a court was not bound by decision of the 5 t"4, +"t it (a$ 6o+!i#e' to ta*e a o"nt o% them $o %ar a$ the) are re!e-ant7, "e went on to assert that unless there were special circumstances, a 'ome$ti o"rt ha' to %o!!o( 6 !ear an' on$tant &"ri$pr"'en e o% the E"ropean Co"rt o% H"man Ri#ht$7.

 If a domestic court failed to follow consistent Strasbourg case law, then there was the !i*e!ihoo' that the a$e (o"!' +e hear' +) the ECtHR, and the o"t ome (o"!' pre$"ma+!) +e that the o"rt ha' %ai!e' to app!) the 6 on$tant &"ri$pr"'en e7 and rule against the domestic court.

Keep pace no more and no less with Strasbourg development in HR to get uniform uropean HR #ord Bingham developed these arguments in 9llah?. It is of course open to mem+er $tate$ to pro-i'e %or ri#ht$ more #enero"$ than those guaranteed by the onvention, +"t $" h pro-i$ion $ho"!' not +e the pro'" t o% interpretation o% the Con-ention by national courts, since the meaning of the Con-ention $ho"!' +e "ni%orm thro"#ho"t the $tate$ part) to it. The duty of national courts is to *eep pa e (ith the Stra$+o"r# &"ri$pr"'en e as it evolves over time( no more but certainly no less. #ord Bingham is drawing attention to the central role of the 5 t"4( the "ni%orm 'e-e!opment o% E"ropean h"man ri#ht$ !a(.

 $hilst national legislatures could supplement onvention rights if they so chose, +"t o"rt$ ha-e to +e min'%"! o% the nee' not to mo-e too %ar ahea' o% Stra$+o"r#, or %a!! too %ar +ehin'. The nationa! o"rt$ nee' to *eep 6pa e7 with the evolution of international human rights law( )no more, or no less..

!he wa" Domestic court develop with Strasbourg $hilst this view of the relationship between national courts and Strasbourg makes general sense, +"t it !ea-e$ ertain matter$ o% 'etai! "nre$o!-e'. What 'oe$ it mean to 6*eep pa e7 (ith Stra$+o"r#= #ord Bingham had argued that nationa! o"rt$ 6$ho"!' not (itho"t $tron# rea$on 'i!"te or (ea*en the e%%e t of the Stra$+o"r# a$e !a(7. ;oes this suggest that, pro-i'e' $tron# rea$on$ e2i$t, there might be room for a nationa! o"rt to o%%er a narro(er or more re$tri te' interpretation o% Con-ention ri#ht$ than Stra$+o"r#/ It may also suggest that a court could, if it had strong reasons, 'e-e!op Stra$+o"r# a$e !a(,

 "owever, it te!!$ "$ -er) !itt!e a+o"t ho( a 'ome$ti o"rt $ho"!' re$pon' to Stra$+o"r# i% the !atter mi$"n'er$too' a %"n'amenta! prin ip!e o% nationa! !a(, $e need to think about these general guidelines in the light of key recent decisions. $e will analyse these decisions in five groups. 7st ? contains those cases in which Stra$+o"r# ha$ o-err"!e' 'e i$ion$ o% the Ho"$e o% Lor'$ (<arper, @illan, 0thmann2 and "irst!. 6nd ? are cases where the SC ha$ %o!!o(e' Stra$+o"r#, +"t e2pre$$e' 'o"+t$ about the principles of law concerned (%A!. 8rd ?$e will also examine those cases where the SC ha$ re%"$e' to %o!!o( Stra$+o"r# ("orncastle, and %nimal ;efenders! or otherwise asserted

itself in a more )nuanced. way (=innock!. ,th ? consists of those cases where the nationa! o"rt ha$ pre%erre' not to 'e-e!op h"man ri#ht$ principles because so doing would go beyond the position of the 5 t"4 (%mbrose!. Bth? cases where the Ho"$e o% Lor'$ p"$he' h"man ri#ht$ &"ri$pr"'en e in $" h a (a) a$ to +roa'en the prin ip!e$ involved (4. (#imbuela!2 5< (#ebanon!2 4. (@!.!

>ir$t Gro"p: ECtHR o-err"!e' HOL >IGHTING TERMS= O?ERRULING THE HOUSE O> LORDS CThe first two cases that we will examine are examples of the "ouse of #ords being overruled by the 5 t"4.

#verruled on broad and arbitrar" power decision as no safeguard and no clear detailed rule provided In R, 0Marper1 -, Chie% Con$ta+!e o% So"th @or*$hire the "ouse of #ords determined that there was no +rea h o% Arti !e 8 ri#ht$ when the 3o!i e retaine' DNA and fingerprint evidence a%ter an a ."itta! or 'i$ ontin"an e o% a pro$e "tion. 4I@"T T0 45S=5 T A04 =4ID%T5 %&; A%<I#E #IA5 Ho(e-er, in S, -, Unite' ;in#'om, the ECtHR "nanimo"$!) he!' that there ha' +een a +rea h o% Arti !e 8. 0ne of the essential grounds of the argument was that U; !a( (a$ "n !ear on a n"m+er o% important point$ re!atin# to the $tora#e an' "$e o% $" h per$ona! in%ormation,

 The 5 t"4 argued that it (a$ 6e$$entia!7 that )telephone tapping, secret surveillance and covert intelligence? gathering were 'e%ine' +) 6 !ear, 'etai!e' r"!e$7 that governed )the scope and application of measures. and a!$o pro-i'e' 6minim"m $a%e#"ar'$7 that pro-i'e' 6$"%%i ient #"arantee$ a#ain$t the ri$* o% a+"$e an' ar+itrarine$$7,

 In R, 0Gi!!an1 -, Commi$$ioner o% 3o!i e o% the Metropo!i$ "ouse of #ords upheld the !e#a!it) o% $ear he$ "n'er the 3re-ention o% Terrori$m A t 4AAA on two individuals who had been stopped near an arms fair in 5ast #ondon. The powers that enabled the =olice to undertake such searches had been continually renewed since the %ct entered into force. The app!i ant$ ar#"e' that thi$ amo"nte' to 6a ontin"o"$ +an thro"#ho"t the Lon'on area7,

 The applicants also asserted that their rights under %rticles B and F had been breached by the searches to which they were sub3ected. B? right to liberty and security In Gi!!an an' B"inton -, Unite' ;in#'om the ECtHR %o"n' that there ha' +een a +rea h o% Arti !e 8 and was parti "!ar!) riti a! o% the +roa' an' ar+itrar) nat"re of the powers under the %ct. @iven the evidence of the 'i$proportionate "$e o% $" h po(er$ on +!a * an' A$ian )suspects., the court found that )the ri$*$ o% the 'i$ riminator) "$e o% the po(er$ against such persons is a very real consideration..

#verruled on torture evidence decision that H#$ held it did not lead to in%ustice The notorious case of A+" Bata'a -, U; saw the ECtHR o-err"!e the Ho"$e o% Lor'$ on a point re!atin# to Arti !e C an' tort"re. %bu Gatada, an Islamic fundamentalist, had been detained under the 6--7 %nti?Terrorism, rime and Security Bill, and then sub3ect to control orders under =T% 6--B. The Secretary of State sought to deport Gatada on the ground of national security to Hordan. Gatada appealed to the Special Immigration %ppeals ommission (SI% !. "is argument was based on %rticle 8. "e had been tried in his absence, and found guilty by the Hordanian

authorities for terrorism related offences. Gatada.s case was that, if he was returned to Hordan, he would be retried, put at risk of being tortured, and evidence obtained by the torture of a third party would be used against him. SI% dismissed his appeal on the grounds that the U; #o-ernment ha' $o"#ht 'ip!omati a$$"ran e$ that tort"re e-i'en e (o"!' not +e "$e' and he would not be mistreated. $e will deal in depth with the argument around %rticle I in another chapter. Fair to trial

 Suffice to say for our purposes in this chapter, that whilst the ourt of %ppeal held that the use of torture evidence would amount to a flagrant abuse of Gatada.s %rticle I rights, +"t the Ho"$e o% Lor'$ he!' on the ontrar), that the 'ip!omati a$$"ran e$ (ere $"%%i ient The) %"rther $ai' that there was no 6r"!e that in the onte2t o% a tria! in a %orei#n $tate, the ris& of the use of evidence obtained b" torture ne e$$ari!) amo"nte' to a %!a#rant 'enia! o% &"$ti e7. That mean The 5 t"4 agreed with the "ouse of #ords on the %rticle 8 point( 'ip!omati a$$"ran e$, in the onte2t o% the U;7$ re!ation$hip (ith <or'an, were $"%%i ient to en$"re that Bata'a (o"!' not +e i!!/treate'. Ho(e-er, the) 'i$a#ree' (ith the Ho"$e o% Lor'$ in re!ation to the "$e o% tort"re e-i'en e,

 iting the Belmarsh case, and #ord Bingham.s strong condemnation of torture evidence, Stra$+o"r# a$$erte' that tort"re e-i'en e (a$ inherent!) "n%air. The court also relied on evidence that tort"re (a$ (i'e$prea' in <or'an, and that Bata'a7$ o/ a "$e' ha' in'ee' +een tort"re', The <or'anian o"rt ha' ta*en no a tion on the a!!e#ation that torture had been used.

 This is a controversial ruling, but we will defer any analysis until we have reviewed the other groups of cases that we described above. So, we now move to the second category of cases( where the SC ha$ e2pre$$e' 'o"+t a+o"t Stra$+o"r#7$ interpretation of the law, +"t ne-erthe!e$$ %o!!o(e' the ECtHR7$ r"!in#,

4n' Gro"p: A>/SC 'o"+te' an' %o!!o( a$ it i$ U; internationa! o+!i#ation RELUCTANT 3ARTNERS= To understand the main case, AF, we need to briefly reconstruct the context. In MB, the House of $ords had held that, for the most part, %ai!"re to 'i$ !o$e !o$e' pro e'"re materia! (a$ ompati+!e (ith Arti !e C, a!tho"#h there (o"!' +e 6rare7 o a$ion$ (hen %ai!"re to 'i$ !o$e did breach the %rticle. >ai!"re o% !arit) over the precise terms of the ruling in <B provided ground for the CA to or'er an appea! in A>, Ho(e-er, 3ust after the "ouse of #ords had begin its hearing of the case, Stra$+o"r# p"+!i$he' it$ &"'#ment in A, an' other$ -, Unite' ;in#'om,

 "ow did the "ouse of #ords understand this ruling/ #ord =hillips argued that A, meant that !o$e' materia! o"!' not +e re!ie' "pon (hen it ontain$ theDma&or e-i'en e a#ain$t the app!i ant that (a$ not a-ai!a+!e in the open materia!. Lor' Ho%%mann #a-e a po(er%"! 'i$$entin# &"'#ment, "e asserted that a!tho"#h the ECtHR $ho"!' +e %o!!o(e', +"t the o"rt7$ 'e i$ion on !o$e' pro e'"re materia! (a$ 6(ron#7 and that it (o"!' ompromi$e the $)$tem o% ontro! or'er$. The Ho"$e o% Lor'$ ha' no hoi e +"t to 6$"+mit7 to Stra$+o"r#, This argument took #ord "offmann to the interpretation of 6(7!(a!. must take into account anyJ (a! 3udgment, decision, declaration or advisory opinion

of the 5uropean "uman 4ights,

ourt of

 A!tho"#h it only re1uires the court to )take into account. the 5 t"4, and there%ore, in prin ip!e the Ho"$e o% Lor'$ o"!' $ti!! pre%er not to %o!!o( a Stra$+o"r# r"!in#, but such a course of action would risk putting the 9: in breach of the 5 t"4. MB (previous case) and AF were exercises in )reading down. the =T% under s.8 of the "4%. 3- As far as possible

 In MB, the "ouse of #ords read down para , of the schedule to the 6--B %ct to ensure that an )irre'" i+!e minim"m o% pro e'"ra! prote tion7 was a or'e' to the 6 ontro!!e' per$on7, Not rea' 'o(n (ith HRA In A>, para , (a$ a#ain rea' 'o(n $o a$ to +e oherent (ith Arti !e C prote tion. Read down mean ma&e compatible with 'onvention right

 Lor' 3hi!!ip$ commented that the approach in MB 0decision earlier1 mar*e' a 'epart"re %rom 6the apparent!) a+$o!"te re."irement$ o% the re!e-ant $tat"tor) pro-i$ion$72 Indeed, the approach of the court raised 1uestions about the e2tent to (hi h the $tat"te o"!' +e ma'e ompati+!e (ith the Con-ention, Ho(e-er, as a declaration of incompatibilit" was not suggested by either party to the case, )there i$ #oo' rea$on to !et the rea'in# 'o(n $tan'7.

8r' Gro"p: SC re%"$e ECtHR TA;ING A STAND= In contrast with %A, there are cases where SC ha$ e2p!i it!) re%"$e' to %o!!o( Stra$+o"r#.

Refuse on the fundamental issue( )ntegrit" of Democrac" in *K 0ur starting point is R, 0Anima! De%en'er$1 -, Se retar) o% State %or C"!t"re, Me'ia an' Sport, The Ho"$e o% Lor'$ 'e i'e' not to %o!!o( Stra$+o"r# a$e !a( that would re."ire them to 'epart %rom a %"n'amenta! prin ip!e o% me'ia ne"tra!it) +e%ore an e!e tion. #ord Bingham pointed out the compelling reasons that 3ustified this departure from human rights principles.

 =arliament had considered that the +an on po!iti a! a'-erti$in# mi#ht +e in +rea h o% Arti !e 5A, +"t ha' $ti!! ho$en to 6maintain the prohi+ition7 in or'er to 6to $a%e#"ar' the inte#rit) o% o"r 'emo ra )7. #ord Bingham.s language suggests that this case raises a pro%o"n' an' %"n'amenta! point2 and, as such, provides a clear rationale for the "ouse of #ord.s decision

Re%ect due to 'tHR+s ignorance provided the principle upheld b" *K court has the safeguard The second ma3or authority, R, -, Horn a$t!e, also reflects a very specific issue. To understand "orncastle, we need to begin with A!/;ha(a&a and Ta+er) -, Unite' ;in#'om, In %l?:hawa3a and Tahery, Stra$+o"r# he!' that there ha' +een -io!ation$ o% Arti !e C (hen the app!i ant$ (ere on-i te' on the +a$i$ o% hear$a) e-i'en e, In Horn a$t!e, the SC re%"$e' to %o!!o( this ruling. #ord =hillips argued that )the 3urisprudence of the Stra$+o"r# Co"rt in re!ation to arti !e C081 0'1 ha$ 'e-e!ope' !ar#e!) in a$e$ re!atin# to i-i! !a( rather than ommon !a( 3urisdictions..

 "e went on to boldly state that there (o"!' +e 6rare o a$ion$7 (hen the 'ome$ti o"rt ha$ 'o"+t$ o-er 6(hether a 'e i$ion o% the Stra$+o"r# Co"rt $"%%i ient!) appre iate$ or a ommo'ate$7 prin ip!e$ o% ommon !a(. It would therefore +e a epta+!e %or 'ome$ti o"rt not to %o!!o( the r"!in# and to #i-e 6the Stra$+o"r# Co"rt the opportunity to recon$i'er the parti "!ar a$pe t of the decision that is in issue.. Strasbourg did indeed reconsider their ruling. In %l?:hawa3a and Tabery v. 9nited :ingdom, the) 'e i'e' that the SC (a$ ri#ht on thi$ o a$ion.

 %s far as the exclusion of hearsay evidence rule was concerned, the ECtHR a epte' that the) ha' i#nore' 6the $pe i%i itie$7 o% the ommon !a( when it came to hearsay evidence. The ommon !a( ha' 'e-e!ope' it$ o(n prin ip!e$ o% 6(ei#hin#7 6the ompetin# intere$t$ o% tho$e in-o!-e' in a tria!7, and ensuring that there (ere he *$ an' $a%e#"ar'$ on the a'mini$tration o% hear$a) e-i'en e,

,ill refuse if no nglish law was developing and consistent from 'tHR decision Horn a$t!e suggests that the S willing to assert itself against Strasbourg. =innock is a less dramatic case. It shows that the SC (i!! %o!!o( Stra$+o"r#, but retain a riti a! e)e on it$ 'e i$ion$. In =innock, the S provided a definitive conclusion to a long running argument over %rticle F. The 1uestion to be resolved was whether or not a tenant facing eviction from public housing could rely on %rticle F. Arti !e 8 re."ire$ the &"'#e to consider the proportiona!it) o% the e-i tion. is

 There (ere 'i$$entin# &"'#ment$ in the "ouse of #ords (;oherty, "arrow and :ay! $"##e$tin# $" h an ar#"ment o"!' +e ma'e, =innock.s else before the Supreme ourt was that this 'i$$entin# !ine $ho"!' +e %o!!o(e' a$ it (o"!' +e on$i$tent (ith r"!in#$ +) the Stra$+o"r# o"rt. The Supreme ourt.s approach to the issue indeed $tre$$e' that Stra$+o"r# no( ha' an 6"nam+i#"o"$ an' on$i$tent approa h7 that m"$t +e ta*en into a o"nt in determining (hether or not it (a$ 6appropriate %or thi$ Co"rt to 'epart %rom the three 'e i$ion$ o% the Ho"$e o% Lor'$7.

 iting "orncastle, the S argued that it (a$ 6not +o"n' to %o!!o( e-er) 'e i$ion o% the ECtHR7, It would be both )impra ti a!7 an' 6inappropriate7 %or the SC to +e +o"n' +) e-er) 'e i$ion o% the ECtHR. It was necessary to preserve the )ability of the ourt to engage in the constructive dialogue with the 5 t"4. as this )i$ o% -a!"e to the 'e-e!opment o% Con-ention !a(7, "owever, it (o"!' 6"$"a!!)7 +e the a$e that the) (o"!' %o!!o( 6a !ear an' on$tant !ine o% 'e i$ion$7 +) Stra$+o"r#. This argument rested ultimately on the authority of s.6 of the "4%. Strasbourg should be followed when there is a ) !ear an' on$tant !ine o% 'e i$ion$7 that are )not in on$i$tent (ith $ome %"n'amenta! . . . aspect. of

common law, and when Strasbourg.s reasoning )does not appear to overlook or misunderstand some argument or point of principle . . . ,. So, how would this principle apply to =innock.s eviction/ The ECtHR a$e !a( ertain!) on$i'ere' the re!e-ant prin ip!e$ o% 'ome$ti !a(. Briti$h !a(, a$ e-i'en e' +) the r"!in# in Dohert) (a$ 6a!rea') mo-in# in the 'ire tion7 of Strasbourg 3urisprudence. #ord &euberger also pointed out that i% the British courts r"!e' on the Arti !e 8 point, the) (o"!' ha-e %o!!o(e' the 'i$$entin# &"'#ment$ in Harro( an' ;a), Thus, to make British law consistent with the 5 t"4.s position on %rticle F, the matter of proportionality would have to be taken into account.

Eth Gro"p: Re%"$e to &"mp ahea' Stra$+o"r# <UM3ING AHEAD O> STRASBOURG Is it 3ustifiable for a domestic court to )3ump ahead. of Strasbourg 3urisprudence/ This happened in Ghai'an, where the (% anticipated the outcome of ;arner -, A"$tria <ore recently, this issue has appeared in Am+ro$e -, Harri$, The issue in %mbrose was whether %rticle I $ho"!' he interprete' to pro-i'e !e#a! a'-i e +e%ore interro#ation too* p!a e in a police station.

 The S"preme Co"rt he!' that because this point ha' not )et +een 'etermine' by the 5 t"4, the SC o"!' not ma*e a r"!in# that anticipated developments in %rticle I 3urisprudence. Lor' Hope.s speech made the crucial issue clear( )*iFIt i$ not %or thi$ o"rt to e2pan' the $ ope o% the Con-ention ri#ht further than the 3urisprudence of the Strasbourg court 3ustifies..

 R, 0C!i%t1 -, Se retar) o% State %or the Home Department *6--I+, court refused to extend the protection offered by %rticle 7,, as it was necessary to work within the limits imposed by the 5 t"42 similar approaches have been taken to %rticle B in Secretary of State for the "ome ;epartment v. HH 6--I and %rticle K in 4. (SB! v. ;enbigh "igh School *6--I+ #ord Bingham was clear in Begum.s case that the HRA (a$ not to a!!o( the o"rt$ to e2pan' the prote tion offered by the onvention +"t to en$"re that Con-ention ri#ht$ (ere a-ai!a+!e in 5nglish law

%rgument( It is impractical to wait from 5 t"4 "owever, Lor' ;err.s dissenting 3udgment 'eno"n e' the 6U!!ah/t)pe reti en e ,. which )considered wrong. an )attempt to anticipate developments at the supra national level of the Strasbourg court.. 9llah case( )It is of course open to mem+er $tate$ to pro-i'e %or ri#ht$ more #enero"$ than those guaranteed by the onvention, +"t $" h pro-i$ion $ho"!' not +e the pro'" t o% interpretation o% the Con-ention by national courts, since the meaning of the Con-ention $ho"!' +e "ni%orm thro"#ho"t the $tate$ part) to it.. "e suggested that although Strasbourg had not ruled on a particular point, +"t nationa! o"rt$ $ho"!' not 6re%rain %rom re o#ni$in# $" h a ri#ht $imp!) +e a"$e Stra$+o"r# ha$ not $po*en7, It would be impra ti a! for national courts to (ait %or Stra$+o"r# r"!in#$.

 Aurthermore, )as a matter of elementary principle, it i$ the o"rt7$ '"t) to a''re$$ tho$e i$$"e$ (hen the) ari$e, whether or not authoritative guidance from Strasbourg is available.. #ord :err.s speech supports this line of argument. "e asserted that if the )much vaunted dialogue between national courts and Strasbourg is to mean anything. that the S must LassertM itself and indicate how it believes the law should develop..

Gth Gro"p: SC ta*e the !ea'in# T"5 "# T%:5S T"5 #5%;( ;5D5#0=I&@ "9<%& 4I@"TS =4I& I=#5S $e now turn to our final group cases( three instances in which the "ouse of #ords has suggested developments of onvention 3urisprudence that enhance the protection of human rights.

-tend on ver" essence of famil" life+s right although 'tHR clear 'ourt can do otherwise EM 0Le+anon1 -, Se retar) o% State for the "ome ;epartment concerned an asylum seeker who ar#"e' that her remo-a! to Le+anon (o"!' +rea h her ri#ht$ "n'er Arti !e 8, 9nder Sharia !a(, $he (o"!' +e %or e' to #i-e "$to') o% her $on to her a+"$i-e an' -io!ent partner. %s #ord "ope pointed out, there was a )rea! ri$* , , , that the -er) e$$en e o% the %ami!) !i%e that mother an' hi!' ha-e $hare' to#ether "p to that 'ate (i!! +e 'e$tro)e' or n"!!i%ie'7. (para B!. The pre$$in# i$$"e was ho( to interpret Con-ention &"ri$pr"'en e Stra$+o"r# had indicated that )in the a+$en e o% -er)

e2 eptiona! ir "m$tan e$, a!ien$ annot !aim an) entit!ement "n'er the Con-ention to remain Hin a o"ntr)F to e$ ape %rom the 'i$ riminator) e%%e t$ of the system of family law in their country of origin.. In other words, remo-in# EM to Le+anon (o"!' not ne e$$ari!) -io!ate her Arti !e 8 ri#ht$, =revention of removal only can happen in very exceptional Strasbourg allows( )!imit$ Hto +eF $et on the e2tent to (hi h Hnation$F an +e he!' re$pon$i+!e o"t$i'e the area$ that are pre$ ri+e' +) arti !e$ 4 an' 8 and by the fundamental right under article I to a fair trial.. &evertheless, the "ouse of #ords went on to hold that a )flagrant violation. of 5<.s rights would take place if she was returned to #ebanon( )the e-i'en e ma'e p!ain that the +on' +et(een7 EM an' her $on 6(a$ one o% 'eep !o-e an' m"t"a! 'epen'en e7 and their %ami!) !i%e (o"!'/+e 6'e$tro)e'7 if

custody passed to a man who had )inflicted physical violence and psychological in3ury. on 5<.

-tend due to national authorit" and legislation if otherwise. 'tHR will do so/ Re G, an unmarried couple, who were !i-in# to#ether, (i$he' to app!) %or a'option o% the (oman7$ hi!'. The woman.s partner was not the child.s biological father. %rticle 7, of the %doption (&orthern Ireland! 0rder 7KF> pre-ente' their app!i ation %or a'option +e a"$e the) (ere not marrie', The couple argued that article 7, of the 0rder +rea he' arti !e$ 8 an' 5E o% the ECtHR, F?Aamily life, 7,? discrimination

 The "ouse of #ords held that their ri#ht$ ha' +een +rea he' as it (a$ (ron# %or the !a( to +e +a$e' on an 6irre+"tta+!e pre$"mption that no unmarried couple could make suitable adoptive parents.. Importantly from our perspective, #ord "offmann, #ord "ope and #ord <ance argued that the )developing 3urisprudence. of the 5 t"4 was such that( )it (a$ !i*e!) that the E"ropean Co"rt o% H"man Ri#ht$ (o"!' ho!' that 'i$ rimination against a couple wishing to adopt a child on the ground that they were not married would violate article 7, of the onvention.. They also asserted that the )margin of appreciation. that was a or'e' to nationa! a"thoritie$ app!ie' to the o"rt$ as well as the !e#i$!at"re.

 %s such the Ho"$e o% Lor'$ o"!' #i-e 6(hat it on$i'ere' to +e a prin ip!e' and rational interpretation to the concept of discrimination on grounds of marital status..

-tend in recent "ears %rt. 8 R, 0Lim+"e!a1 -, Se retar) o% State %or the Home Department 4AAG on erne' three a$)!"m $ee*er$ (ho, a!tho"#h 'e$tit"te , ha' +een re%"$e' $"pportD 9nder the Immigration and %sylum %ct 7KKK as the) ha' not !aime' a$)!"m 6a$ $oon i$ rea$ona+!) pra ti a+!e7 under the &ationality, Immigration and %sylum %ct 6--6. The app!i ant$ (ere in 'e$perate ir "m$tan e$, one of them )sleeping in the open.. They were pre-ente' %rom (or*in# an', other than re!)in# on harit), had no means of supporting themselves.

 They argued that )their $"%%erin# (a$ $o $e-ere7 as to constitute a breach of %rticle 8 of the onvention. The Secretary of State appealed against the order of the 3udges who granted the claimants application, and also sought clarification of the relevant test. The "ouse of #ords upheld the original applications and further determined that the orre t te$t to a$$e$$ 6inh"man or 'e#ra'in# treatment7 "n'er Arti !e 8 re!ate' to the $e-erit) of the )entire package of work restrictions and deprivations.. 8? =40"IBITI0& 0A T04T945

 They went on to hold that( )the thre$ho!' o% $e-erit) would, in the ordinary way, be ro$$e' (here a per$on 'epri-e' o% $"pport. . . . was obliged to sleep in the street, or was seriously hungry or unable to satisfy the most basic re1uirements of hygiene.. #ord Bingham ? $tre$$in# Lor' Hope7$ ar#"ment / $ho(e' that Con-ention &"ri$pr"'en e o"!' +e p"$he' in a $pe i%i 'ire tion( Arti !e 8 a$e$ re."ire' a 6minim"m $tan'ar' o% $e-erit)7 and, in the )context. of the present case precisely because )'e!i+erate in%!i tion o% pain or $"%%erin#7 (a$ not at $ta*e, )the threshold is a high one.. It would not +e po$$i+!e to interpret Arti !e 8 in a -er) +roa' (a), and derive )a general

public duty to house the homeless or provide for the destitute., +"t, the thre$ho!' o% $e-erit) 6ma) +e ro$$e' if *an applicant+ with no mean$ an' no a!ternati-e $o"r e$ o% $"pport, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life..

%rt. 6 Ra+one an' another -, 3ennine Care NHS >o"n'ation Tr"$t *6-76+ In Rabone the S developed an interpretation of %rticle 6 that went further than the Strasbourg court in asserting that employees of the &"S trust had duties to protect a patient voluntarily detained for mental health reasons from threats to his life, including suicide.

Ne( Se tion STRASBOURG, THE HOUSE O> LORDS AND THE SU3REME COURT: A WOR; IN 3ROGRESS= "ow can we weigh up these claims/

#verruled for coherent development over urope The first group (E o-err"!e' SC! of cases are, of course, entire!) on$i$tent with the mirror principle. If the 'ome$ti o"rt$ ha-e %ai!e' to understand the scope of rights, then it would follow that there i$ a ri$* that the) (i!! +e o-err"!e' +) Stra$+o"r#.

 Is this 3ustifiable/ %s Sir Ni o!a$ BratIa has pointed out )at the heart. of Marper and Gi!!an were 6'i$a#reement7 a$ to 6the $erio"$ne$$ o% the inter%eren e (ith the ri#ht to respect for private life involved.. The ruling of the Strasbourg court should be preferred, as it (a$ 6a+!e to e2amine the !a( an' pra ti e in other Mem+er State$7 and concludes( )En#!an' an' Wa!e$ H(a$F the on!) E"ropean &"ri$'i tion e2pre$$!) to permit the systematic and indefinite retention of ;&% profiles and cellular samples of persons who had been ac1uitted or in respect of whom criminal proceedings had been discontinued.. In this instance, then, the mirror prin ip!e i$ pre$er-in# the oherent 'e-e!opment of human rights law a ro$$ E"rope, !orture evidence never can wor& <ost controversially, Gatada shows a clear disagreement between the "ouse of #ords and Strasbourg. (5

overruled over torture evidence issue! $e nee' to a-oi' an) ea$) ar#"ment that Bata'a i$ $omeho( e$ apin# &"$ti e. The point is not that he should not face trial, but that hi$ tria! (o"!' +e ompromi$e' +) the "$e o% tort"re e-i'en e. Indeed, Strasbourg cited the Belmarsh case on the inherent unreliability of torture evidence. $e could also argue that the decision of the 5 t"4 in Gatada en$"re' the prin ip!e' oheren e o% h"man ri#ht$ !a(,

 If one is committed to the rule of law, then a tria! pro e$$ annot +e ompromi$e' thro"#h ."a!i%i ation$ to the prohi+ition on tort"re e-i'en e, Aurthermore, as the Stra$+o"r# 'e i$ion i$ on$i$tent (ith Unite' Nation$ Con-ention A#ain$t Tort"re (9& %T!, of which the 9: is a signatory, it would appear that there are $tron# ar#"ment$ to $"pport Stra$+o"r#7$ interpretation o% Arti !e C,

Short summary The effect of these rulings might play into the hands of those !aimin# that the SC $ho"!' +e more a$$erti-e.

S' has the right to depart if there is flaw in %s we will see in the section below, #ord Irvine has argued that it i$ 6the on$tit"tiona! '"t) o% &"'#e$ to re&e t Stra$+o"r# 'e i$ion$ the) %ee! are %!a(e' in %a-o"r o% their o(n &"'#ment$7. "owever, we have to be aware that the coherence of uropean human ri!hts law would be ompromi$e' i% the SC +e#an to 'epart ra'i a!!) %rom the ECtHR7$ r"!in#$. This point was perhaps appreciated in %A. "0# doubted but still follow #ord "offmann.s dissent shows that a!tho"#h $enior &"'#e$ (ere "n om%orta+!e with Strabourg.s decision in %., but they nevertheless followed the ruling.

 Thi$ i$ entire!) on$i$tent (ith Horn a$t!e. This case showed that the Cham+er ha' $erio"$!) mi$"n'er$too' %"n'amenta! ommon !a( prin ip!e$. There was a ompe!!in# rea$on to 'epart %rom Stra$+o"r# a$e !a(. %lthough the S followed the 5 t"4 in 3inno *, its critical comments on the nature of a ) on$tr" ti-e 'ia!o#"e7 appears to be consistent with the position outlined in "orncastle. S held reason why they follow 5 t"4 in =innock case

*K 'ourt and court has a 0dialogue+ to develop "ow can we sum up on those cases that show national courts moving ahead of Strasbourg/ % on$i$tent 'e-e!opment o% Con-ention 3urisprudence re."ire$ nationa! o"rt$ to +e are%"! in this area. In %mbrose, the Supreme ourt was reluctant to move forward on an %rticle I point because Strasbourg had not yet made a definitive ruling. %mbrose can perhaps be distinguished from the cases in the fifth group (S moving ahead! because the $tate o% Con-ention &"ri$pr"'en e was such that the nationa! o"rt$ (ere a+!e to interpret prin ip!e$ +roa'!) (itho"t #oin# +e)on' Stra$+o"r#7$ po$ition, The "ouse of #ords approach in 5<, #imbuela and 4e @ suggests that there i$ room %or a 'ome$ti o"rt to in'i ate ho( h"man ri#ht$ !a( $ho"!' 'e-e!op.

 The 'ome$ti o"rt ha$ room %or manoe"-re where( )Stra$+o"r# ha$ 'e!i+erate!) 'e !ine' to !a) 'o(n an interpretation %or a!! mem+er $tate$, as it does when it says that the 1uestion is within the margin of appreciation.. This is why, in 5<, the "ouse of #ords saw itself as )%ree to #i-e, in the interpretation o% the 5998 A t, what it on$i'er$ to +e a prin ip!e' an' rationa! interpretation to the concept of discrimination on #ro"n'$ o% marita! $tat"$7,

 Sir &icolas Brat'a has commented that thi$ approa h i$ orre t. "e has been are%"! to a!$o $ho( that the relationship between the 5 t"4 and the British courts is in'ee' one o% 'ia!o#"e, There are n"mero"$ o a$ion$ when Stra$+o"r# ha$ either 'e%erre' to the Ho"$e o% Lor'$, or %o!!o(e' Ho"$e o% Lor'$ or S rulings in 'e-e!opin# h"man ri#ht$ prin ip!e$,

 $e cannot consider all these cases( but there are a couple of key points to focus upon. onsider >rien' -, U;. =recisely because this case was so contentious, with En#!i$h an' S otti$h o"rt$ omin# to 'i%%erent interpretation$ o% Arti !e$ 8 an' 55, the ECtHR 'e%erre' to the U; 3ar!iament, $e have also seen how important #ord Bingham.s interpretation of the prohibition of torture was for the development of 5uropean human rights principles. =erhaps we could conclude that there is indeed evidence that the ECtHR 6ha$ 'emon$trate' a (i!!in#ne$$ to en#a#e in a J&"'i ia! 'ia!o#"eK (ith the $"perior o"rt$ o% the U;7, Ne( Se tion: BETWEEN STRASBOURG AND WESTMINSTER: THE 3OLITICS O> HUMAN RIGHTS

 Is it possible to approach the relationship between Strasbourg and the British courts in a principled way/ The mirror prin ip!e certainly seems to be ne e$$ar) an' &"$ti%ia+!e in terms of the development of coherent international human rights law.

%( Relied on our %udge and return to 1arliament+s intention There are however, ertain ten$ion$. Lor' Ir-ine, for one, has attempted to ret"rn to )the 3urisdiction under the "4% that 3ar!iament inten'e'7 and, in $o 'oin#, en o"ra#e the SC to $tri*e the orre t +a!an e +et(een re$pe tin# the 'e i$ion$ o% the ECtHR an' not !imitin# it$ o(n reati-it), The SC $ho"!' on!) 'epart from the 5 t"4 )on the basis that the re$o!"tion o% the re$"!tant on%!i t m"$t ta*e e%%e t at State, not &"'i ia!, !e-e!.. Influencing this argument is the 'e$ire to 6enhan e p"+!i re$pe t %or o"r Briti$h HRA an' the 'e-e!opment an' prote tion o% h"man ri#ht$ +) o"r o(n Co"rt$ in Britain7. %ccompanying this claim is a powerful statement of the cultural autonomy of the common law 3udge(

 It is o"r o(n <"'#e$ who are em+e''e' in o"r "!t"re and society and so are +e$t p!a e' to $tri*e the t)pe$ o% +a!an e between the often competing ri#ht$ an' intere$t$ which ad3udication "n'er the HRA re."ire$, =ut shortly, more often than not (e $ho"!' tr"$t o"r o(n &"'#e$ to rea h a 6+etter7 an$(er,

'(A2 3est answer has no definition B"t (hat i$ a 6+etter7 an$(er= This is a slippery expression (as the 1uotation marks around the word suggest!. Doe$ the +etter an$(er re!ate to the term$ o% the 6'ia!o#"e7=

Dialogue onl" can be entered b" same level court ertainly a 6H Fo"rt (hi h $"+or'inate$ itself to follow another.s rulings annot enter into a 'ia!o#"e (ith it$ $"perior in any meaningful sense.. So S is not under 5 court This, as a strategic point may be true( however, it does beg the 1uestion of the values that inform the dialogue. The 1uestion can perhaps only be resolved at the level of principle( +"t, are the prin ip!e$ ri$p eno"#h to a!!o( a 'etermination=

S' did not blindl" follow . so mirror principle still wor& in develop international law Sales has pro-i'e' a 'e%en e o% the mirror prin ip!e that takes on #ord IrvineCs position. "e allows that 6HtFhere i$ ertain!) $ ope %or ar#"ment in man) a$e$ a+o"t ho( to i'enti%) the proper interpretation o% Con-ention ri#ht$7 ? even though this is not a dispute over the mirror principle itself. He a "$e$ Lor' Ir-ine o% mi$"n'er$tan'in# the (a) in (hi h the &"'#e$ ha-e 'e-e!ope' a 6 riti a! $pa e7 where they will on!) %o!!o( Stra$+o"r# i% it ha$ e$ta+!i$he' a 6 !ear an' on$tant7 !ine to be followed2

 a point supported by Lor' Ho%%mann7$ argument that the SC (o"!' not %o!!o( a r"!in# 6%"n'amenta!!) at o''$ with the distribution of powers under British constitution.. So, we should probably avoid the extremes of the argument. The relationship between Strasbourg and the domestic courts is not one o% the !atter $!a-i$h!) %o!!o(in# the r"!in#$ o% the %ormer. $e can see the 'ia!o#"e +et(een the 'ome$ti o"rt$ an' the ECtHR a$ (or* in pro#re$$ o-er the pre i$e term$ in which the mirror principle operates2

 or, to put this in slightly different terms, over the relationship between the domestic courts and an international court whose ro!e i$ to en$"re the oherent 'e-e!opment o% internationa! !a(.

3o!iti $ an' H"man Ri#ht Against HRA In the final section of this chapter, we want to turn to a broader set of problems and issues that are impacted in the discussion of this area( the pro+!em o% 'emo ra ) an' h"man ri#ht$, riticisms of the 5 t"4 have come from both sides of the part) po!iti a! 'i-i'e. In =arliamentary debate, <a * Stra(, former &ew #abour minister, a "$e' the o"rt o% 6&"'i ia! a ti-i$m7, ;avid ameron has also shown himself to be a critic of the 5 t"4.

 These arguments have been taken up, in a somewhat different form, +) Lor' S"mption, who has tried to articulate the issue in term$ o% &"'i ia! en roa hment on po!iti a! 'e i$ion ma*in#, "e has argued that the whole idea of a )a common le!al standard that underlies the law of human rights, )+rea*$ 'o(n (hen it i$ $o"#ht to app!) it to a!! o!!e ti-e a ti-it) or po!iti a! an' a'mini$trati-e 'e i$ion/ ma*in#7. This is because )the on$en$"$ necessary to support it at this level of detail simply docs not e2i$t7.

'riticisms e-ist in HRA $e might suggest then, that there are two variations on a theme in the criticisms of Strasbourg( the o"rt ha$ $omeho( 6en roa he'7 on the po(er o% po!iti ian$, and that h"man ri#ht$ a'&"'i ation i$ in rea$in#!) po!iti a!, an' there%ore, i!!e#itimate,

HRA more rational than 1olitician $hat do we make of these arguments/ =erhaps h"man ri#ht$ have come to %i!! $omethin# o% a -oi' in Briti$h 'emo ra ). In the wake of the "4%, and as the very idea of a 'ia!o#"e +et(een the o"rt$ an' 3ar!iament a$$"me$, 3udges are acting differently and, in certain instances, $tan'in# "p to mini$ter$, I$ thi$ a +a' thin#= The po!iti ian$ who take anti/ Stra$+o"r# positions are perhap$ re$pon'in# to their $en$e in (hi h their o(n po(er ha$ $omeho( +een ."e$tione',

 %s &icol has argued )the 5uropean ourt of "uman 4ights. appears to have )assume*d+ a decisive role. because )the #"i'an e o% rationa!!) 'e-e!ope' h"man ri#ht$ !a(7 i$ 6$een a$ more re!ia+!e than e!e torate$: rationa! te hno rat$ (o"!' not +e $("n# +) the -a#arie$ o% part)/po!iti a! i'eo!o#)7. "uman rights ? a discourse of )rational technocrats. ? !ea'$ to a !earer an' !e$$ irrationa! 'e-e!opment of principles to re#"!ate p"+!i !i%e, 3o!iti $ i$ too emoti-e2 'ri-en +) an irre$pon$i+!e an' "na o"nta+!e pre$$ an' me'ia,

%rgument( ;emocracy but loss faith in =olitic/ "owever, this argument is also problematic. It suggests a !a * o% %aith in po!iti a! pro e$$e$, The risk is the whole debate becomes distorted. If one examines the figure, then one finds that in 6-77 only 8 per ent o% the tota! n"m+er o% a$e$ a#ain$t the U; considered by Strasbourg )resulted in a 3udgment of the ourt, several of which ended in findings of no -io!ation7, This har'!) $"##e$t$ that po!iti ian$ are !o$in# ontro!, or that Stra$+o"r# ha$ ta*en o-er po!iti a! and !e#a! 'e i$ion ma*in#,

?%( "4% did make some good changes in legal and political If we leave to one side the frustrations with certain elements of British politics, then we have to suggest that human rights law provides an important element in both political and legal decision making. We annot a!!o( har' a$e$ and extreme po!iti a! rhetori to 'i$tra t "$ from the facts. The HRA ha$ !e' to han#e$ in !a( an' po!iti $, changes that are arguably better for a realisation of a contemporary rule of law culture which means that, in certain cases, h"man ri#ht$ p!a e$ !imit$ on (hat the e2e "ti-e an 'o, Think again about cases like 5<, #imbuela, 4e @ and %bu Gatada. Surely is it a good thing that asylum seekers are not left destitute, sleeping in car parks2 that -io!ent, a +"$i-e men 'o not #et "$to') o% hi!'ren2 that marrie' an' "nmarrie' peop!e

ha-e the $ame ri#ht to adopt, and that individuals, no matter how unpleasant they seem, and no matter how much we disagree with their ideas, are not trie' on tort"re e-i'en e,

Ne( Se tion: CONCLUSION This chapter has considered the relationship between Strasbourg and the common law courts. Since the "4%, h"man ri#ht$ !a( ha$ +e#"n to p!a) a more an' more entra! ro!e in the development of the common law. The common law courts are meant to be #"i'e' +) the mirror prin ip!e, in ensuring that ommon !a( prin ip!e$ are oherent (ith tho$e o% h"man ri#ht$ !a(. $e have examined the developing 3urisprudence around this issue reviewing a set of key authorities that concern various points of conflict collaboration between the 5 t"4, the S and the "ouse of #ords. $e have argued that ? a!tho"#h there are point$ o% ten$ion ? one needs to see the re!ation$hip a$ a (or* in pro#re$$.

 $hilst the idea of a dialogue remains a little vague, it an +e "$e' in a ."a!i%ie' $en$e to sketch out the dynamics of the relationship between the common law courts and Strasbourg. 0ur final points related to the ongoing debate about human rights law. $e suggested that ? while these issues are inseparable from our thinking of human rights ? it i$ ne e$$ar) to a-oi' the more e2treme rhetori , and to appre iate the *e) ro!e that h"man ri#ht$ p!a)$ in a%%irmin# the entra! -a!"e$ o% a 'emo rati po!it).

Ne( Se tion: CODA: 3RISONER7S RIGHTS Declare as against 1arliamentar" Supremac" In 6--B, Strasbourg ruled that the +!an*et +an on pri$oner7$ -otin# ri#hts was a +rea h of %rticle 8 of =rotocol &o 7 of the 5uropean onvention on "uman 4ights. The La+o"r #o-ernment %ai!e' to 'e-e!op po!i ) on this issue before defeat in the election of 6-7-. oalition policy, %o"n'e' on a ompromi$e o% #rantin# a !imite' !a$$ o% pri$oner$ voting rights, was re&e te' +) 3ar!iament, and the blanket ban continued in force.

 The 5 t"4 responded by re? affirming its original decision, and #i-in# the #o-ernment a $i2/ month 'ea'!ine %or re%orm2 a deadline that was subse1uently extended. $hile the oalition government vacillates in its approach to prisoner.s rights, riti $ o% Stra$+o"r# ha-e $eiIe' "pon the o"rt7$ r"!in#$ to ar#"e that it$ inter%eren e in po!i ) ma*in# ha$ #one too %ar. The time has come, so the argument goes, to 6$tan' "p to7 Stra$+o"r# and a$$ert the $o-erei#nt) o% 3ar!iament, even if this means that the U; i$ in +rea h o% it$ internationa! o+!i#ation$.

A2 3lan&et ban is against fundamental principle. should rule b" law The E"ropean ommi$$ioner for human rights, Thoma$ Hammar+er#, has countered this argument. "e has asserted that( An) (ea*enin# o% the h"man ri#ht$ protections in the act would be noted outside the 9:, and welcomed by less democratic states as ta it en o"ra#ement to (ea*en their o(n h"man ri#ht$ prote tion$, . . . $hat the 9: does today will send a powerful signal to other states about what they can do tomorrow.

 "ammarberg has criticised the general lack of knowledge and the tone of debate in the 9: about the onvention( I must say that I find some of the criticism here in the U; a#ain$t the Stra$+o"r# $)$tem surprisingly ill?informed, and I have hoped that the po!iti ian$ (ho *no( +etter (o"!' $tan' "p $tron#er a#ain$t thi$ pop"!i$t and 2enopho+i discourse.

 The following point is worth pondering( Uni-er$a! $"%%ra#e i$ a %"n'amenta! prin ip!e in a 'emo ra ). <y position is that a +!an*et, a"tomati +an 'oe$ in'ee' -io!ate +a$i prin ip!e$. If 'epri-ation o% the ri#ht to -ote i$ to +e a p"ni$hment, then thi$ $ho"!' +e e2pre$$!) $pe!!e' o"t in ea h in'i-i'"a! a$e +) a &"'i ia! a"thorit), "ammarberg is not ar#"in# that pri$oner$ $ho"!' / (itho"t ."e$tion / ha-e the ri#ht to vote. "is argument is that a )+!an*et +an7 i$ a -io!ation o% h"man ri#ht$ prin ip!e$,

 Such principles are entire!) oherent (ith the ar#"ment that pri$oner$ $ho"!' +e 'epri-e' o% the ri#ht to -ote as a punishment. ;epriving a prisoner of the right to vote, would, however, ha-e to +e 6e2pre$$!) $pe!!e' o"t7, Surely this general approach is a 'e-e!opment o% r"!e o% !a( prin ip!e$ that are meant to be central to the 5nglish legal system and the constitution. $here the state has the power to deprive an individual of a right, $" h a po(er $ho"!' +e are%"!!) ir "m$ ri+e' +) the !a(. "ammarberg.s point is well made. riticisms of the onvention and the 5 t"4 appear to be driven by xenophobia and ignorance, rather than an understanding of human rights.