The Human Rights Act 1998 and “Bringing Rights Home”

An edited version of Frank’s presentation to the Interfaith Legal Advisers’ Network on 20 October 2015

The saga of the “British Bill of Rights” grinds on: what follows is an attempt to update readers on where we appear to have got to. [In the interests of transparency I should say that I think it’s a lousy idea.]

Under s 2(1) of the Human Rights Act 1998, the domestic courts are required to “take into account” any judgment, decision, declaration or advisory opinion of the ECtHR: the judgments of the CJEU, on the other hand, are binding. As Lord Judge put it in an address at UCL in December 2013, after he had retired from the Bench:

“I have never doubted … that the words mean what they say. To ‘take account of’ the decisions of the European Court [of Human Rights] does not mean that you are required to apply or follow them. If that was the statutory intention, that would be the language used in the statute”.

His subtext was that UK judges were perhaps too ready to treat judgments of the ECtHR as binding rather than advisory. Continue reading