Human Rights in the UK and the Influence of Foreign Jurisprudence

Description

Human Rights in the UK and the Influence of Foreign Jurisprudence represents the first major empirical study of the use of foreign jurisprudence at the UK Supreme Court. This book focuses on the patterns of use and nonuse of rulings from foreign domestic courts in human rights cases before the UK Supreme Court. Results are drawn from quantitative and qualitative research methods, presenting data from the first eight years of Supreme Court activity. The evidence includes interviews with active and former members of the senior judiciary, as well as a focus group with some of the Supreme Court Judicial Assistants. It is argued that foreign jurisprudence is more intimately woven into the fabric of judicial reasoning, and serves a wider range of functions, than the term ‘persuasive authority’ might imply. Foreign jurisprudence is used mainly as a heuristic device, providing judges with a fresh analytical lens. Foreign jurisprudence is also important when interpreting a common legislative scheme, supporting dialogue between the Supreme Court and supranational courts such as the European Court of Human Rights. The perspectives offered by foreign jurisprudence can also support a stronger conception of domestic human rights. In these ways, this book addresses a broader political question about the source of human rights in the UK. Volume 22 in the series Hart Studies in Comparative Public Law Acknowledgements Contents List of Figures and Tables Table of Cases 1. Introduction I. Structure of the Book II. Style 2. Research Methodology I. Research Parameters II. Interviews 3. Legitimacy and Authority I. Persuasive Authority II. The Influence of Domestic v Supranational Jurisprudence III. Conclusions 4. The Purpose of Foreign Jurisprudence I. Many Minds II. Decoration III. Courtesy IV. Supplements V. Consensus VI. Conclusions 5. Foreign Jurisprudence in the UK Supreme Court I. The Extent to Which Foreign Jurisprudence is Used II. The Individual Approaches of the Justices III. Accessing Foreign Jurisprudence IV. The Influence of Common Law Jurisdictions V. The Effect of Changing Judgment Styles VI. Conclusions 6. Foreign Jurisprudence as a Heuristic Tool I. Gap Filling II. An Analytical Lens III. Reassurance IV. Conclusions 7. The Pursuit of a Common Enterprise I. Using Foreign Jurisprudence to Promote Uniformity II. Uniformity under the Human Rights Act III. The Absence of a Supranational Court IV. Conclusions 8. Instrumental Uses of Foreign Jurisprudence I. To Confirm or Bolster Conclusions II. The Absence of Strasbourg Jurisprudence III. 'Departing' from Strasbourg IV. Conclusions 9. Conclusions I. An Absence of Guiding Principles II. The Individual Approaches of the Justices III. Foreign Jurisprudence as a Heuristic Tool IV. Providing a Given Audience with Reasons V. The Effect of Changing Working Methods VI. Reflections on Judicial Reasoning at the Supreme Court Appendix 1: UK Supreme Court Appointments 2009–17 Appendix 2: Interview Design Bibliography Index