3 - Aspiration or foundation? The status of the Strasbourg jurisprudence and the ‘Convention rights’ in domestic law  pp. 57-86


By Roger Masterman

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Introduction

In A Bill of Rights for Britain, Ronald Dworkin advocated the incorporation of the European Convention on Human Rights into domestic law to halt the ‘decline in the culture of liberty’ that had affected freedom in the UK since the 1970s. He rejected the idea of adopting a newly drafted domestic instrument on the ground that – with the Convention still enforceable at Strasbourg – ‘potential conflict between the two fundamental charters of rights would be a source of wasteful confusion’. That the incorporated Convention could be as powerful an instrument as such a Bill of Rights was not, however, in doubt:

Incorporation would put the special skills of British lawyers and judges, and the heritage of British legal principle, at the service of the civilised world. Britain could become once again a leader in defining and protecting individual freedom, instead of a sullen defendant giving ground to liberty only when ordered to do so by a foreign court.

Dworkin saw that, in the hands of the domestic judiciary, the framework provided by the Convention might be crafted to form a ‘distinctly British scheme of human rights and liberty’, and that specifically:

British judges could certainly adopt … a more generous interpretation, using the rich and special traditions of the British common law to develop out of the Convention a particularly British view of the fundamental rights of citizens in a democratic society.