Eddie Craven & Rowan Pennington-Benton examine the judicial pecking order
UK courts are required to “take into account” Strasbourg jurisprudence under s 2(1) of the Human Rights Act 1998 (HRA 1998). In R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] UKHL 23, [2001] All ER (D) 116 (May) Lord Slynn famously held that UK courts should “in the absence of some special circumstances, follow any clear and consistent jurisprudence of the ECtHR” [20]. The possibility of declining to follow Strasbourg case law has been consistently and expressly preserved in successive judgments. In practice however the courts have been extremely reluctant to exercise that right, leading some – including judges – to start talking the language of binding precedent.
Professor Jane Wright suggests that this practice is justified given that the ECtHR does not lay down exacting rules, but instead “embodies very general principles which have to be mediated into national legal cultures” (Public Law (2009), Jul, 595–616). Recent case law disputes this account. One notable example is A
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