The Duty to Take into Account Decisions of the European Court of Human Rights: A Critical Analysis

Christopher Sargeant 

University of Cambridge - Faculty of Law
December 17, 2012

University of Cambridge Faculty of Law Research Paper No. 1/2013 
Abstract:      
This article discusses the current jurisprudence from UK Courts and Tribunals under section 2 of the Human Rights Act 1998, particularly the duty to take into account any relevant judgment, decision, declaration or advisory opinion of the European Court of Human Rights or its associated bodies when determining a question concerning a Convention Right.

It argues that the current practice of domestic Judges of deferring to the views of the Strasbourg Court and following its approach even when considering it manifestly incorrect is unsatisfactory and ought to be replaced by a more flexible approach which recognises the original intent of Parliament to create a legislative instrument to be understood within the traditions of the British State.

Number of Pages in PDF File: 70

Keywords: Human Rights, Human Rights Act, European Convention on Human Rights, Supreme Court, European Court of Human Rights, Supremacy

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2197851