English Courts and Human Rights Act

The brief will discuss the approach of the English courts to the provision of Section 2(1) of the Human Rights Act 1998 requiring that the courts consider the judgements of the Strassbourg Court in light of the doctrine of precedent. The brief will briefly discuss the doctrine of judicial precedent. The brief will then discuss various decisions of the UK courts and the Strassbourg Court relating to the issue of precedent. The brief will show that the UK courts warn against the rigid reliance on the precedents of the Strassbourg Court but that the courts should develop its own precedents of law on Human Rights always remembering to consider the judgements of the Strassbourg Court.

Introduction

The rule of judicial precedent plays a major part in any legal system. It is based on the principle that like cases be treated alike. [1]

In Re Schweppes [2] the court of appeal made an order relating to the discovery of documents. Lord Willmer dissented from the majority. On the very same day Lord Willmer was again required to adjudicate in a second case on a similar point and said that he was bound by the ruling of the earlier case and was forced to follow it again although he did not agree with the finding. [3]

Court’s Approach to Section 2(1) of The Human Rights Act 1998

The provision of Section 2(1) of the Human Rights Act 1998 [4] requires that the courts should take Strassbourg jurisprudence into account is a flexible adjudicatory device but one which creates uncertainty for judges. [5] There is no provision in the Convention [6] that requires the court to consider itself bound by its previous judgements. [7]

The Appellate Committee of the House of Lords has provided guidance to the courts and tribunals under section 2(1) of the HRA. [8] Lord Slynn of Hadley said that although it is not required that a national court be bound by the decisions of the Strassbourg Court it is obliged to take account of them where they are relevant. If there are no special circumstances the court should follow clear and constant judgements of the Strassbourg Court. [9] The House of Lords followed the Alconbury decision and Lord Bingham held that the court will not easily depart from principles that the Grant Chamber has laid down in a carefully considered judgement even though the judgements of the Strassbourg Court is not strictly binding. [10]

The Strassbourg Court stressed that the Convention is a living document that must be interpreted in light of the present day conditions. [11] The Strassbourg Court said that the court is not formally bound to follow previous judgements but it is in the interests of legal certainty, foreseeability and equality before the law that the court should not depart from precedents laid down in previous cases without good reason. [12]

Not all courts agree with the above position and some require judges to take a more holistic approach to precedents of the Strassbourg Court. In Clancy Lord Sutherland said that it is the courts have a duty to have regard to the decisions of the Strassbourg Court but they are not to be treated in the same way as precedents of the local courts. The court must apply those principles that can be extracted from the decisions. [13]

The difference between the first approach and the second approach is that the second approach looks at the principles and not the precedent itself. The principles that can be deduced from the judgements of the Strassbourg Court are important this has been acknowledged in Amin [14] when Lord Woolf said that the principles were important and relevant. [15]

Lord Hope also said that although Section 2(1) of the HRA requires respect for precedents this must allow for growth and development and a strict application of the precedent doctrine is out of place in this field. [16]

The court’s task under the HRA is not to simply add the Strassbourg learning as an add-on to the English law but to develop the municipal law of human rights by the incremental method of the common law from case to case and in the process to take account of the Strassbourg jurisprudence as required by section 2 of the HRA. [17] This line of reasoning was followed in Prolife when the court held that the English court is not a Strassbourg surrogate and that the common law must develop incrementally a coherent and principled domestic law of human rights. To rigidly follow the Strassbourg Court can lead to an over rigid approach. [18]

Conclusion

The doctrine of incremental development of the law by the doctrine of precedents is important to the proper development of the common law of England. By keeping in mind the principles that can be gleaned from the judgements of the Strassbourg Court, the courts in England should develop its own common law principles on human rights. The court has rightly pointed out in Prolife that it is not bound by the judgements of the Strassbourg Court but must take due cognisance of such judgements. The challenge is to develop domestic law of human rights that is compatible with the Strassbourg Court judgements. It is not desirable that foreign precedents be added onto the domestic law.

Bibliography

Books

Betten L., The Human Rights Act 1998 What it Means –The Incorporation of the European Convention on Human Rights into the Legal Order of the United Kingdom (1999) Kluwer Law International

Fenwick H., Phillipson G., and Masterman R., Judicial Reasoning under UK Human Rights Act (2007) Cambridge University Press

Zander M., The Law-Making Process (2004) Cambridge University Press

Cases

Chapman v. the United Kingdom [2001] ECHR 43 available at as at 21 April 2010

Clancy v Caird 2000 SLT 546 available at as at 21 April 2010

Goodwin v United Kingdom (2002) 35 EHRR 18 available at as at 21 April 2010 at paragraph 74

Re Automatic Telephone and Electric Co. Ltd’s Agreement [1965] 1 All ER 206

Re Schweppes Ltd’s Agreement [1965] 1 All ER 195.

R (on the Application of Al-Hasan) v Secretary of State for the Home Department [2002] 1 WLR 545

R (on the Application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 31 available at as at 21 April 2010

R (Amin) v Secretary of State for the Home Department [2003] UKHL 51 available at as at 21 April 2010

R (on the Application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46 available at as at 21 April 2010

R (on Application of Prolife Alliance) v British Broadcasting Corporation [2002] 2 All ER 756

Begum v Tower Hamlets London Borough Council [2002] 2 All ER 688 available at as at 21April 2010

Tyrer v United Kingdom (1978) 2 EHRR 1