Doctrine of Precedent and Principle of Law

The doctrine of precedent means identical cases are treated alike (the principle of stare decisis). Lower courts in the United Kingdom are generally bound by the decisions on the principle of law (the ratio decidendi) of higher courts and therefore previous decisions of such courts. [1] There are exceptions to this rule since the 1966 Practice Statement (Judicial Precedent). [2] The arrangement of the United Kingdom constitution means that international treaties are not binding unless accompanied by an Act of Parliament [3] and therefore prior to the introduction of the Human Rights Act 1998, a domestic legal challenge of Convention rights was not possible. [4]

Following the introduction of the Act, section 2(1) provided that any court deciding a question in relation to the Convention on Human Right must ‘take into account’ previous judgements of the European Court of Human Rights, opinions of the Commission under Article 31, decisions under Article 26 or 27(2) and decisions of the Committee of Ministers under Article 46 of the European Convention on Human Rights. [5] This is taken further in section 6(1) of the Human Rights Act which states: ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’ In this case a public authority is described as any court or tribunal under section 6(3). [6]

Although the courts are required to consider cases decided by the European Court of Human Rights, they form persuasive rather than binding precedents. They are not bound by them. Despite this in the case of Alconbury, Lord Slynn of Hadley commented that unless there were ‘special circumstances’ that the ‘clear and constant jurisprudence’ of the European Court of Human rights should be followed. [7] This was further supported by Lord Bingham in the Anderson case who stated: ‘…the House will not without good reason depart from the principles laid down in a carefully considered judgement of the court sitting as a Grand Chamber.’ [8]

Under the Human Rights Act, if a court’s previous decision would be incompatible with that of the European Court of Human Rights then the court has a duty under section 6(1) of the Act to follow the European Court. This was illustrated in Re Medicaments and Related Classes of Goods (No 2) [9] where the Court of Appeal adjusted the House of Lords judgement in R v Gough [10] to make it compatible.

However in Price v Leeds City Council, [11] in an action for the possession of land the defendants (who were gypsies) argued that to be moved off the recreational land they had occupied would violate their rights under Article 8 of the European Convention on Human Rights. The Court of Appeal followed the decision of the House of Lords in Harrow London Borough Council v Qazi [12] that Article 8 rights could not be used as a defence to an action to exercise an absolute right to possession of land, in deference to an opposite judgement of the European Court in Connors v United Kingdom. [13] Though following the House of Lords decision it gave permission to appeal so that the House could reconsider its earlier decision in light of the European Court.

The House of Lords has also refused to follow earlier decisions of the European Court of Human Rights. In R v Spear, R v Boyd, R v Saunby [14] three soldiers convicted by court martial of assault argued that their right to fair trial had been violated as the court martial system breached the European Convention on Human Rights. The House departed from the European Court of Human Rights’ previous decision in Morris v United Kingdom [15] and found no violation of the right to a fair trial. The House of Lords felt that the European Court had an incomplete understanding of the operation of the court martial system in the UK.

During the parliamentary debates on the Human Rights Bill Lord Irvine described reasons why UK courts should not be bound to follow the jurisprudence of the European Court of Human Rights. The first being that the Convention rather the jurisprudence of the court was the ‘ultimate source of relevant law.’ [16] Secondly, under the Convention the United Kingdom is only bound to follow rulings where it has been involved in the proceedings. [17] Finally it was suggested that binding would prevent development of the law in this area where they may be no relevant Strasbourg case law. This would allow greater flexibility in the application of the relevant case law. The argument has also been put forward that judgements of the European Court of Human Rights are ‘essentially declaratory’ [18] and it is often difficult to distill the ratio decidendi of a case sufficiently to be able to apply it. [19] In fact the Lord Chancellor, Lord Irvine rejected the amendment by the Conservatives at the time of the parliamentary debates to change the influence of Strasbourg to binding.

In summary, the Human Rights Act 1998 does not bind any UK court to decisions of the European Court of Human rights but the judgements have to be taken into consideration. It also makes it unlawful to provide judgements that are not compatible with the European Convention. In general courts in the United Kingdom have attempted to provide judgements compatible with the European Convention. However, the courts have departed from judgments of the European Court in the past and where there is conflict, and followed the precedent of the House of Lords.

BIBLIOGRAPHY

PRIMARY SOURCES

CASES

Connors v United Kingdom (App 66746/01) (2004) 40 EHRR 189.

Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983 (HL).

Morris v United Kingdom (App 38784/97) (2002) 34 EHRR 1253.

Price v Leeds City Council [2005] EWCA Civ 289, [2005] 3 All ER 573.

R (Alconbury Developments Ltd.) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295 [26].

R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837.

R v Chief Immigration Officer, Heathrow Airport, Ex p Salamat Bibi [1976] 3 All ER 843, [1976] 1 WLR 979, 844

R v Gough [1993] AC 646 (HL).

Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 (CA).

R v Spear, R v Boyd, R v Saunby [2002] UKHL 31, [2003] 1 AC 734.