‘The literature on section 2 of the Human Rights Act 1998 has largely been preoccupied with a single direction of travel: how far domestic courts may go beyond the Strasbourg case law, or against it. Those are the questions behind Ullah, behind the refusal to follow Strasbourg in Horncastle, and behind the long debate over whether there is a ‘ceiling’ on domestic rights (see L. Graham, ‘The Modern Mirror Principle’ [2021] PL 523, and the work of Roger Masterman on the domestic–Strasbourg relationship). A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16 (‘the AGNI Reference’) runs in the other direction. Sitting as a panel of seven, the Supreme Court used the 1966 Practice Statement to overrule its own decision in Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19 (‘Cheshire West’), holding that the ‘acid test’ for deprivation of liberty under article 5 ECHR had never been adopted by the European Court of Human Rights and was wrong in principle. Craig Wells has read the decision through a rule-of-law lens, stressing the consequences for those who lack capacity and the risk of arbitrary power (UKCLA, 15 June 2026); I approach it from another angle, though, as I suggest at the close, the two meet. My claim is narrow. The constitutionally distinctive feature of the AGNI Reference is not simply that the Court narrowed a Convention right, or even that it overruled itself to do so. It is the reason the Court gave for making that correction itself rather than leaving the matter to Strasbourg: a public authority cannot ask the European Court of Human Rights to correct an over-protective domestic reading of the Convention. What follows traces that move: its basis in precedent, the statutory link to article 5, the Article 34 asymmetry that made domestic correction necessary, and its 2012 pedigree, before turning to why it matters.’
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UK Constitutional Law Associaton, 30th June 2026
Source: ukconstitutionallaw.org