10. HRA 1998: Section 2 ‘Take into Account’ (Judicial Interpretation of ECtHR Jurisprudence)

What is the primary requirement of HRA Section 2 for UK judges?

Judges must "take into account" the jurisprudence of the European Court of Human Rights

Are Strasbourg Court judgments considered binding precedents for UK courts?

No, Section 2 indicates judges must "take into account" Strasbourg case law, not be bound

What was the intended role for British judges regarding human rights jurisprudence?

To make a distinctively British contribution to the development of human rights law in Europe

How did Lord Slynn interpret Section 2 in R (Alconbury) regarding Strasbourg jurisprudence?

Courts should follow clear and constant jurisprudence of the ECtHR in the absence of special circumstances

What did Lord Bingham famously state about "keeping pace" with Strasbourg in Ullah?

The courts' duty is to "keep pace" with Strasbourg jurisprudence as it evolves, "no more, but certainly no less"

What is the "Mirror Principle" in the context of HRA Section 2 interpretation?

It reflects the early judicial tendency to closely follow Strasbourg jurisprudence

What powerful statement did Lord Rodger make in AF No3 about Strasbourg's influence?

"Strasbourg has spoken, the case is closed" (Argentoratum locutum, iudicium finitum)

When might UK courts decline to follow a Strasbourg decision, according to Horncastle?

On rare occasions, if the Strasbourg decision doesn't appreciate domestic process

What did Lord Neuberger state in Pinnock about following every ECtHR decision?

The UK Supreme Court is not bound to follow every decision; it's impractical and inappropriate

What is the benefit of courts not being strictly bound by every Strasbourg decision?

It allows for constructive dialogue with the European Court, developing Convention law

What was a central issue for the applicant in Elan-Cane regarding her passport?

She identified as "non-gendered" and sought an 'X' marker on her passport

Does Article 8 ECHR (private life) compel states to issue "X" gender markers on passports?

The Supreme Court in Elan-Cane held no, it does not impose such an obligation

What concept determines how much discretion states have in human rights matters?

The Margin of Appreciation, which varies depending on the circumstances

In Elan-Cane, how wide was the Margin of Appreciation determined to be?

It was considered wide, particularly for positive obligations requiring policy changes and expense

Can UK judges interpret Section 2 to "go further" than Strasbourg, especially with a Margin of Appreciation?

No, judges are not minded to go further, especially where a Margin of Appreciation applies

What debate did Lord Hoffman's dicta in Re G spark regarding Section 3 and HRA?

Whether courts could modify unambiguous statutes even if Strasbourg would accept Parliament's approach

Does HRA Section 2 require UK courts to consider jurisprudence from other jurisdictions?

No, the Act is silent on foreign domestic courts, but these sources are not prohibited

What is a key criticism of the judicial interpretation of HRA Section 2?

That it ties UK courts "too closely to Europe," making them "subservient"