City Research Online

Abstract

The article analyses the ramifications of the Supreme Court’s 2014 Nicklinson judgment. It argues that the majority approach to a declaration of incompatibility as judicial incursion into legislative territory does not rest convincingly on the distribution of power envisaged by the Human Rights Act. Contrasting the domestic courts’ wider prerogatives to develop human rights with the self-restraint of the Strasbourg Court, driven by the margin of appreciation, the author contends that the judgment fails to protect the right to personal autonomy. Unlike the Strasbourg Court, reserved in matters pertaining to the sensitive field of bioethics, where no European consensus can legitimise progressive judgments, domestic courts have more leeway to signal to the legislature that the manner in which discretion was exercised does not strike a fair balance between competing interests. A development in this direction would find support in the general Strasbourg approach to blanket bans in other controversial areas.

Publication Type:	Article
Additional Information:	Draghici, C, European Human Rights Law Review, Sweet and Maxwell, reproduced with permission of THOMSON REUTERS (PROFESSIONAL) UK LIMITED.
Subjects:	K Law > K Law (General)
Departments:	The City Law School > Academic Programmes The City Law School > International Law and Affairs Group The City Law School > Institute for the Study of European Laws
SWORD Depositor:	Symplectic Administrator

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