Their Lordships' Timorous Souls
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TOM RAINSBURY*
This paper evaluates the 'mirror principle' which has recently been
embraced by the senior appellate court. According to the House of Lords,
the domestic courts must not deviate from the case law of the European
Court of Human Rights when interpreting the meaning and application of
rights under the Human Rights Act 1998.
Focusing solely on the 'scope' stage of rights interpretation, it is first
argued that there is no legal source which mandates such a principle. More
importantly, there is no compelling reason why the national courts should
be unable to extend the peripheries of these municipal rights beyond the
scope of convention rights currently envisaged by the European Court (Part
I). There are in fact a number of very good reasons why the courts should
remain unrestrained in adopting a more generous interpretative role (Part
II). Finally, in order to quell any concerns of judicial activism, several
restraints are outlined which should colour this new dynamic approach (Part
III).
One of the greatest triumphs of modern civilisation has been the
prominence afforded to the protection of human rights. As every English
law student will know, the spirit of liberty has existed in the United
Kingdom for many centuries; the domestic courts have long acted as the
guardians of our individual rights and freedoms by developing and
upholding a number of 'Common Law rights.' The ratification of the
European Convention on Human Rights 1950 (ECHR) and its
incorporation under the Human Rights Act 1998 (HRA) represented two
further bulwarks - one statutory and one under international law - to
complement and add to these judicial constructs. Generally speaking, the
national courts have employed these new instruments to great effect and
decisions such as A v Secretary of State for the Home Department (No /)2 and (No
2) illustrate what some academics have labelled the 'new liberal voice' of the
* Tom Rainsbury read Law at University College London. He is currently studying for an LLM at
Cambridge University, Fitzwilliam College.
1 This is the initial stage where the court must determine whether a right has been 'engaged' and
is thus applicable.
2 A v Secretay of State for the Home Department [2004] UKHL 56.
3 Av Secretay ofState for the Home Department [2005] UKHL 71.](ViewImageLocal?handle=hein.journals/uncolhurire1&div=8&collection=&method=preview&ext=.png&size=3)
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Their Lordships' Timorous Souls
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