05 Jan 2022

Joseph Hume writes for Solicitors Journal on the complications of judicial dialogue between the UKSC and The European Court of Human Rights.

Associate, Joseph Hume, has written an article for Solicitors Journal looking at the complications of judicial dialogue between the UKSC and The European Court of Human Rights, looking at the case of R (on the application of AB) v Secretary of State for Justice [2021] 3 WLR 494.

“Whilst this approach is rooted in established authority, its consequences are troubling. It goes without saying that the UKSC should not seek to undermine decisions and principles adumbrated by the ECtHR. But the UKSC’s approach in this case suggests a positive reluctance to apply those decisions and principles to any factual question that has yet to be decided by the ECtHR. The logical consequence of this approach is that our domestic courts will have to take decisions based on a ‘rulebook’ of European decisions. Keeping pace with Strasbourg is fine when Strasbourg has set the pace, but when it has not, there is a risk domestic courts and authorities apply ‘square-peg’ decisions to ‘round-hole’ facts.”

“The UKSC seemed untroubled by this prospect – and even doubled down on its position.”

You will require a subscription to access the full article, which can be found here.

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