The Conservative Project to ‘Break the Link between British Courts and Strasbourg’: Rhetoric or Reality?

Fenwick, H.; Masterman, R.

doi:10.1111/1468-2230.12304

The Conservative Project to ‘Break the Link between British Courts and Strasbourg’: Rhetoric or Reality?

Fenwick, H.; Masterman, R.

Authors

Professor Helen Fenwick h.m.fenwick@durham.ac.uk
Professor

Professor Roger Masterman r.m.w.masterman@durham.ac.uk
Professor

Abstract

The Conservative party has repeatedly pledged to replace the HRA with a British Bill of Rights, with the aim of ‘breaking the link’ between domestic courts and Strasbourg. This article examines the implications of this proposal, the nature of the current relationship with the European Court, and the extent to which the link has already been weakened. It considers the bases of the Conservative proposal, and the options available in breaking that link in a Bill of Rights, taking account of the potential introduction of limitation clauses and the possibility of according Strasbourg judgments against the UK an advisory status only. Finally, taking account of the European Court's recent movement towards ‘enhanced’ subsidiarity, it will examine the consequences for the protection of human rights of reliance on a Bill of Rights intended to be interpreted and applied independently of Strasbourg influence.

Citation

Fenwick, H., & Masterman, R. (2017). The Conservative Project to ‘Break the Link between British Courts and Strasbourg’: Rhetoric or Reality?. Modern Law Review, 80(6), 1111-1136. https://doi.org/10.1111/1468-2230.12304

Journal Article Type	Article
Acceptance Date	Apr 19, 2017
Online Publication Date	Nov 20, 2017
Publication Date	Nov 20, 2017
Deposit Date	Apr 27, 2017
Publicly Available Date	Nov 20, 2018
Journal	Modern Law Review
Print ISSN	0026-7961
Electronic ISSN	1468-2230
Publisher	Wiley
Peer Reviewed	Peer Reviewed
Volume	80
Issue	6
Pages	1111-1136
DOI	https://doi.org/10.1111/1468-2230.12304

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Copyright Statement
This is the accepted version of the following article: Fenwick, H. & Masterman, R. (2017). The Conservative Project to ‘Break the Link between British Courts and Strasbourg’ Rhetoric or Reality? Modern Law Review 80(6): 1111-1136, which has been published in final form at https://doi.org/10.1111/1468-2230.12304. This article may be used for non-commercial purposes in accordance With Wiley Terms and Conditions for self-archiving.