SMOKE AND MIRRORS: THE HUMAN RIGHTS ACT AND THE IMPACT OF THE STRASBOURG CASE LAW

By Richard Clayton QC

The implications of the judgments of the European Court of Human Rights (ECtHR) for the development of the Human Rights Act (HRA) continue to be controversial.  When Lord Phillips and Lord Judge gave evidence to the Select Committee on the Constitution in October 2011, Lord Phillips expressed the view that in the end Strasbourg is going to win because we have the HRA. Lord Judge, on the other hand, stressed that it is, at least, arguable that, having taken account of the decisions of the ECtHR, our courts are not bound to follow them. Lord Judge’s views were given strong support from Lord Irvine, the former Lord Chancellor who presided over the enactment of the HRA, in his recent lecture, ‘A British Interpretation of Convention Rights’; and in February 2012 the Supreme Court appeared to welcome the possibility of going beyond the Strasbourg case law.

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