Human Rights Act on Doctrine of Precedent

The purpose of this article is to analyse the impact of the Human Rights Act 1998 on the operation of the doctrine of precedent. The first part of this article provides an explanation of the doctrine of precedent and its role in the English legal system. This is followed by an insight into the background of enactment of the HRA and a brief analysis of some of its key provisions in the context of this article. The final part addresses the issue of the impact of HRA on the operation of the doctrine of precedent by analysing the influence of HRA on the decisions of courts in the United Kingdom (“UK”).

Doctrine of Precedent and its role in the English legal system

Precedents are the principles of law laid down by courts in previously decided cases. Under the English legal system, a judge is bound to follow the precedents laid down by higher courts while determining the case before him. This is known as the “doctrine of precedent” or the “doctrine of stare decisis” [2] .

The doctrine of precedent has always played a pre-eminent role in English law, because common law (also known as “case law”) is an integral source of law in the English legal system as opposed to the European legal system, which is based on legal models and theories. The doctrine of precedent is a fundamental principle of English law and it has been a vital component of the decision making process of courts in England and Wales. In the words of Lord Denning, “It is the foundation of our system of case law.” [3]

The Human Rights Act 1998 – A brief analysis

HRA is based upon the European Convention on Human Rights [4] (the “Convention”), which set out certain basic human rights to be followed by all Council of Europe member states. Although the Convention was ratified by the UK in March 1951, it was not incorporated into any legislation of the country until the enactment of HRA in 1998. The HRA received Royal Assent on 9 November 1998, and came into force on 2 October 2000 [5] . Enforcement of the HRA meant that relief for breach of “the Convention rights” [6] could be made available in the courts in UK itself, thereby eliminating the need to seek relief in the European Court of Human Rights [7] (“ECHR”).

The interpretation of Section 6 [8] shows that the HRA applies to all public authorities within the UK, including central government, local authorities, and bodies exercising public functions. Section 6(3)(a) of the HRA expressly includes “courts” and “tribunals” under the definition of “public authority”, thereby placing an obligation on the courts and tribunals in UK to ensure that their judgments comply with the provisions contained in HRA and the Convention rights. Thus, all courts and tribunals in the UK are under a duty to “take into account” [9] the decisions of the ECHR, and “so far as it is possible to do so”, to interpret legislations “in a way which is compatible with the Convention rights” [10] . If any primary UK legislation is found to be in direct conflict with the Convention rights, a declaration of incompatibility [11] may be made by the courts, which will then put an obligation upon the Parliament to change the law accordingly.

Impact of HRA on operation of the doctrine of precedent

Before the enactment of HRA, courts could interpret statutes in a manner compatible with the Convention rights only if the wording of the statue in question was unclear or ambiguous, as observed by the House of Lords in Regina v. Secretary of State for the Home Department [12] . However, with the coming into force of HRA, the obligation to ensure compatibility with the Convention rights applies not only to statutes, but also to the common law, thereby affecting the doctrine of precedent.

The following cases illustrate the impact of HRA on the operation of the doctrine of precedent:

Liability of public authorities in cases of negligence

The liability of police and other public authorities in cases of negligence has surfaced before the courts in UK from time to time, thereby establishing the precedent of their immunity in such cases. In Hill v. The Chief Constable of West Yorkshire [13] the House of Lords while dismissing the appeal, held that there is no general duty of care owed by the police to members of the public at large to apprehend an unknown criminal. It further observed that in any event, as a matter of public policy, the police were immune from allegations of negligence arising from their investigation and suppression of crime.

Thus, the immunity of police from allegations of negligence has remained a core principle established through various decisions of the House of Lords. However, Van Colle v. Chief Constable of Hertfordshire Police [14] is an example of the impact of HRA, which led the Court of Appeal to overlook the precedent laid down by the House of Lords in Hill’s case. The claim – the first of its kind in the UK – was brought under sections 6 and 7 of HRA, alleging violations of Articles 2 and 8 of the Convention. The courts held the Chief Constable to be liable under the HRA and awarded damages. Subsequently, however, the House of Lords allowed the appeal of the Chief Constable [15] .

Liability of local authorities

In X (Minors) v. Bedfordshire County Council [16] while deciding whether a duty of care arose in child abuse cases and in special educational needs cases, the House of Lords held that local authorities should not be held liable in respect of exercise of their statutory duties of safeguarding the welfare of children. However, when X went to ECHR in Strasbourg, it was concluded that there had been a breach of Article 3 of the Convention (which granted freedom from torture or inhuman or degrading treatment) in the context of failure to prevent child abuse. [17]

Thereafter, various decisions of the Court of Appeal and the House of Lords followed the precedent of immunity of local authorities laid down in X’s case. However, the Court of Appeal in D v. East Berkshire Community NHS Trust [18] decided otherwise and effectively overlooked the precedent in the light of breach of the Convention rights. In appeal [19] , the House of Lords decided that there was no duty owed by the local authority to the parents. However, there was no appeal against the issue of duty towards the child and it was not even argued before the House of Lords.

Detention of foreign nationals under the ATCS Act 2001

In A & Others v Secretary of State for the Home Department [20] , the House of Lords held that the indefinite detention of foreign prisoners without trial under the Anti-terrorism, Crime and Security Act 2001 was incompatible with the HRA, since having discriminated between nationals and foreign nationals, it was contrary to the Convention [21] .

Thus, the aforementioned cases demonstrate how the HRA has influenced operation of the doctrine of precedent. If not for the HRA, the courts would have followed the precedents, under which the decisions would have been different in the above cases. Hence, it is clear that the HRA has enabled judges to deviate from the doctrine of precedent and make new case laws in matters where the law is contrary to the Convention rights. In such cases, higher courts are obliged to revisit and eventually reverse the precedents. This has resulted in more uncertainty being brought to the table in litigation where public authorities are the defendants, particularly in cases concerning the liability of public authorities.

Conclusion

Enactment of the Human Rights Act 1998 has resulted in the European Court of Human Rights becoming a part of the English legal system. Thus, the HRA has to a large extent affected the operation of the doctrine of precedent, especially with respect to matters in which the case laws are not in line with the Convention rights and have to be refined or overruled. This has, to some extent, reduced the role of precedents in the English Legal system in the present times. In other words, HRA has invigorated the common law and ensured that it is developed to mirror the protection provided by the Convention.

Word Count: 1373 words

Part II

Bibliography

Cases

Regina v. Secretary of State for the Home Department [1991] 1 All E.R. 720

Hill v. The Chief Constable of West Yorkshire [1989] A.C. 53

Van Colle v. Chief Constable of Hertfordshire Police [2006] 3 All ER 963

Chief Constable of Hertfordshire Police v. Van Colle [2008] U.K.H.L. 50

X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633

Z v United Kingdom (2002) 34 E.H.R.R. 3

D v. East Berkshire Community NHS Trust [2004] Q.B. 558

D v. East Berkshire Community NHS Trust [2005] 2 A.C. 373

A & Others v Secretary of State for the Home Department [2005] 2 A.C. 68

R (Laporte) v Chief Constable of Gloucester [2004] 2 AER 874

R v Lambert [2001] 3 WLR 206