Common Law
Part 5-Doctrine of Precedent & HRA 1998 - Conclusions
2012///
The introduction of the HRA 1998 initially raised issues regarding the potential impact of, inter alia, s.2 and s.6, on the judicial understanding of precedent, since lower courts in the UK could potentially depart from the domestic precedent established by higher courts (due to their “public authorities” status of the UK under s.6) and pursuant to the requirements of s.2 to follow the decisions of ECtHR instead (a court that itself does not recognize the principle of binding precedent with respect to its own previous decisions). Even though such course of action was a potential possibility after the enactment of the HRA 1998, the case law developed in the last 12 years suggests that the UK lower courts continue to follow the domestic precedent even when it is in conflict with later decisions of the ECtHR, and granting the claimants direct right to appeal to the Supreme Court for it to resolve the inconsistency between domestic precedent and the ECtHR’s decisions. Furthermore, the Supreme Court has made it clear that it is not bound to follow every decision of the ECtHR and has successfully appealed cases before the Grand Chamber of the ECtHR. In conclusion, in light of the case law developed after the enactment of the HRA 1998, the underlying features of the doctrine of judicial precedent, (i.e., the binding nature of a single decision of a domestic superior court on lower courts) seem to be impacted but the doctrine remains largely unchanged. It is likely, however, that the Supreme Court may depart more often than before from their own previous decisions based on the jurisprudence of the ECtHR, especially when the decisions are directed to the interpretation of Convention Rights and are not in direct conflict with legislation enacted after the HRA 1998.
Part 4-Relevant Case Law (Precedent & HRA1998)
2012///
UK Court Following ECtHR Decisions
In R (Alconbury Developments Ltd) v Secretary of State for the Environment [10] the House of Lords held that UK courts should “in the absence of some special circumstances, follow any clear and consistent jurisprudence of the ECtHR”. This principle is illustrated in its extreme in a case concerning a challenge to control orders imposed on terrorist suspects based on “solely or to a decisive degree” on closed evidence without an opportunity for a proper challenge, namely, in A v UK by the House of Lords in Secretary of State for the Home Department v AF [11], Lord Hoffman noted that the ECtHR decision was “wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism”. Nevertheless the court chose to follow A v UK, and surprisingly stated the domestic courts had ”no choice but to submit”. Lord Roger stated “we have no choice [...] Strasbourg has spoken, the case is closed”. Similarly, Lord Carswell noted “not all may be persuaded that the Grand Chamber’s ruling is the preferable approach”.
The House of Lords also seems to tend to follow ECtHR decisions instead of the domestic precedent where the rulings conflict on questions of interpretation of Convention rights. As an example, the House of Lords followed the Pretty v United Kingdom [12] ECtHR’s decision instead of their own domestic precedent established in Pretty v DPP [13].
UK Court of Appeal Court Not Following ECtHR Decisions
In Price v Leeds County Council it was held by the Court of Appeal that when faced with a House of Lords proposition of law inconsistent with a decision of the ECtHR, it should follow domestic precedent and refer the case to appeal to the House of Lords. This position should be contrasted with the Court of Appeal decision in D v East Berkshire NHS Trust [14], where the Court of Appeal departed from an earlier House of Lords decision. However, arguably, this case did not proceed contrary to the principles of stare decisis, since it was considered that the prior decision could not have survived the introduction of the HRA 1998. While the decision was affirmed in Kay v London Borough of Lambeth [15] Kay & Anor v. London Borough of Lambeth; Leeds City Council v Price [16], the decision clearly affirmed the priority of domestic precedent and regarded the facts in D v East Berkshire NHS Trust as extraordinary.
UK SC Court Not Following ECtHR Decisions & Courts Dialogue
In R v Horncastle [17], the Supreme Court decided not to follow the ECtHR’s jurisprudence based on the margin of appreciation, that is, the ECtHR decisions on the matter failed to sufficiently appreciate aspects of domestic criminal law. In refusing to follow Al-Khawaja v UK [18], it was stated that “there will be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process.” It is important to remark, however, that at the time of this decision the decision on Al-Khawaja was being appealed before the Grand Chamber of the ECtHR. Significantly, the Grand Chamber has now partially accepted the UK Supreme Court’s position. This has been, at last, the “Lively dialogue, in and out of court” between the ECtHR and English courts that had been advocated by Lady Justice Arden in her extra-judicial writings.
Another leading case in this line is Manchester City Council v Pinnock [19]. In this case, Lord Neuberger decisively and clearly stated “This Court is not bound to follow every decision of the EurCtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law (see e g R v Horncastle [2009] UKSC 14; [2010] 2 WLR 47). Of course, we should usually follow a clear and constant line of decisions by the EurCtHR: R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to ‘take into account’ EurCtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line. In the present case there is no question of the jurisprudence of the EurCtHR failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way.” This is probably one of the statements that adds the greatest degree of clarity regarding the impact of the HRA 1998 on the doctrine of judicial precedent.
UK Low Courts Position
Finally, a clarifying case regarding the relationships between domestic precedent and the effects of HRA s.2 and s.6, is R (GC) v Commissioner of the Police of the Metropolis [20] where the High Court had to decide whether to follow an older domestic precedent from the House of Lords or a more recent ECtHR ruling. The High Court followed domestic precedent and granted the claimants a direct right of Appel to the Supreme Court. Consequently, based on this decision it seems that lower courts are inclined to follow domestic precedent and letting the Supreme Court decide in cases of inconsistency between domestic precedent and later ECtHR rulings.
In R (Alconbury Developments Ltd) v Secretary of State for the Environment [10] the House of Lords held that UK courts should “in the absence of some special circumstances, follow any clear and consistent jurisprudence of the ECtHR”. This principle is illustrated in its extreme in a case concerning a challenge to control orders imposed on terrorist suspects based on “solely or to a decisive degree” on closed evidence without an opportunity for a proper challenge, namely, in A v UK by the House of Lords in Secretary of State for the Home Department v AF [11], Lord Hoffman noted that the ECtHR decision was “wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism”. Nevertheless the court chose to follow A v UK, and surprisingly stated the domestic courts had ”no choice but to submit”. Lord Roger stated “we have no choice [...] Strasbourg has spoken, the case is closed”. Similarly, Lord Carswell noted “not all may be persuaded that the Grand Chamber’s ruling is the preferable approach”.
The House of Lords also seems to tend to follow ECtHR decisions instead of the domestic precedent where the rulings conflict on questions of interpretation of Convention rights. As an example, the House of Lords followed the Pretty v United Kingdom [12] ECtHR’s decision instead of their own domestic precedent established in Pretty v DPP [13].
UK Court of Appeal Court Not Following ECtHR Decisions
In Price v Leeds County Council it was held by the Court of Appeal that when faced with a House of Lords proposition of law inconsistent with a decision of the ECtHR, it should follow domestic precedent and refer the case to appeal to the House of Lords. This position should be contrasted with the Court of Appeal decision in D v East Berkshire NHS Trust [14], where the Court of Appeal departed from an earlier House of Lords decision. However, arguably, this case did not proceed contrary to the principles of stare decisis, since it was considered that the prior decision could not have survived the introduction of the HRA 1998. While the decision was affirmed in Kay v London Borough of Lambeth [15] Kay & Anor v. London Borough of Lambeth; Leeds City Council v Price [16], the decision clearly affirmed the priority of domestic precedent and regarded the facts in D v East Berkshire NHS Trust as extraordinary.
UK SC Court Not Following ECtHR Decisions & Courts Dialogue
In R v Horncastle [17], the Supreme Court decided not to follow the ECtHR’s jurisprudence based on the margin of appreciation, that is, the ECtHR decisions on the matter failed to sufficiently appreciate aspects of domestic criminal law. In refusing to follow Al-Khawaja v UK [18], it was stated that “there will be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process.” It is important to remark, however, that at the time of this decision the decision on Al-Khawaja was being appealed before the Grand Chamber of the ECtHR. Significantly, the Grand Chamber has now partially accepted the UK Supreme Court’s position. This has been, at last, the “Lively dialogue, in and out of court” between the ECtHR and English courts that had been advocated by Lady Justice Arden in her extra-judicial writings.
Another leading case in this line is Manchester City Council v Pinnock [19]. In this case, Lord Neuberger decisively and clearly stated “This Court is not bound to follow every decision of the EurCtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the EurCtHR which is of value to the development of Convention law (see e g R v Horncastle [2009] UKSC 14; [2010] 2 WLR 47). Of course, we should usually follow a clear and constant line of decisions by the EurCtHR: R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to ‘take into account’ EurCtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line. In the present case there is no question of the jurisprudence of the EurCtHR failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way.” This is probably one of the statements that adds the greatest degree of clarity regarding the impact of the HRA 1998 on the doctrine of judicial precedent.
UK Low Courts Position
Finally, a clarifying case regarding the relationships between domestic precedent and the effects of HRA s.2 and s.6, is R (GC) v Commissioner of the Police of the Metropolis [20] where the High Court had to decide whether to follow an older domestic precedent from the House of Lords or a more recent ECtHR ruling. The High Court followed domestic precedent and granted the claimants a direct right of Appel to the Supreme Court. Consequently, based on this decision it seems that lower courts are inclined to follow domestic precedent and letting the Supreme Court decide in cases of inconsistency between domestic precedent and later ECtHR rulings.
Part 3- Human Rights Act 1998 & Judicial Precedent
2012///
This posting provides a concise introduction to the HRA 1998 and states the main issues it raises regarding the traditional understanding of the doctrine of precedent in the English legal system.
The objective of the HRA 1998 was “to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights” [1]. The HRA 1998 provides for a partial incorporation of the European Convention on Human Rights (ECHR) into domestic law by giving selective elements of the Convention a special legal status as “Convention Rights” under HRA, s.1. While the Act was intended to provide for greater protection of human rights and civil liberties in domestic law, it also affects the English legal system in general due primarily to the provisions of s.2, s.3, and s.6. With regards to the relationships between the judiciary and Parliament, the act requires that primary legislation and subordinate legislation must be interpreted and given effect in a way which is compatible with the Convention rights (HRA, s.3), that is, domestic judges are given two significant legal powers [9]: 1) the duty of interpretation of legislation to achieve consistency with Convention rights and 2) the ability to issue declarations of incompatibility “if the court is satisfied that the provision is incompatible with a Convention right” (HRA, s.4).
More significant with regards to the doctrine of precedent are the ramifications of s.2., which states that, inter alia, “a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration, or advisory opinion of the European Court of Human Rights (ECtHR)” (HRA, s.2). The fact that an Act of Parliament provides specific instructions to the courts regarding the “Interpretation of Convention Rights,” and compels the domestic courts to take into account decisions of the ECtHR raises issues related to the traditional judicial understanding of the doctrine of precedent.
The language of HRA, s.2 introduces uncertainty because it simply seems to impose a duty on the domestic courts to “take into account”. On one hand, domestic courts are not required to follow the decisions of the ECtHR, and such decisions could be considered more like obiter dicta in domestic courts (i.e., statements said in the case that do not form part of the ratio decidendi and are persuasive but not binding on other cases). On the other hand, since HRA, s.6.(1) makes it “unlawful for a public authority to act in a way which is incompatible with a Convention right” and according to HRA, s.6.(2) a “public authority includes (a) a court or tribunal [...]”, the Act could be interpreted as placing a duty on inferior courts (public authorities) to avoid precedent of a superior court (also a public authority) if the superior court’s decision is not compatible with a decision of the ECtHR. Consequently, all common law principles and precedent that are incompatible with Convention rights are potentially open to challenge by inferior courts. This uncertainty is compounded by the fact that Convention law, as opposed to European Community law (EC/EU law), has never been intended to be supreme over the domestic law of the signatory states, and that the ECtHR jurisprudence has always offered a “margin of appreciation” for member states in order to give effect to Convention rights in a way consistent with their own legal system -which in the case of UK law is based on the doctrine of judicial precedent. This uncertainty related to the HRA 1998 impact on precedent is apparent in early peer-reviewed publications on the topic [5].
In order to resolve the uncertainty with regards to the impact of the HRA 1998 on the doctrine of precedent, we would need to ascertain more precisely what is the current status of the ECtHR decisions and their relationship with decisions of superior courts in the UK. To accomplish this we look at the authorities in case law involving the interaction between of the HRA 1998 and judicial precedent. We are particularly interested on instances of dissent between the UK courts and the ECtHR, as well as instances where domestic court decisions may have departed from the traditional understandings of the doctrine of judicial precendent. Recent scholarly publications also help add clarity to the current understandings of the impact of the HRA 1998 on judicial precedent [7, 6, 8].
The objective of the HRA 1998 was “to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights” [1]. The HRA 1998 provides for a partial incorporation of the European Convention on Human Rights (ECHR) into domestic law by giving selective elements of the Convention a special legal status as “Convention Rights” under HRA, s.1. While the Act was intended to provide for greater protection of human rights and civil liberties in domestic law, it also affects the English legal system in general due primarily to the provisions of s.2, s.3, and s.6. With regards to the relationships between the judiciary and Parliament, the act requires that primary legislation and subordinate legislation must be interpreted and given effect in a way which is compatible with the Convention rights (HRA, s.3), that is, domestic judges are given two significant legal powers [9]: 1) the duty of interpretation of legislation to achieve consistency with Convention rights and 2) the ability to issue declarations of incompatibility “if the court is satisfied that the provision is incompatible with a Convention right” (HRA, s.4).
More significant with regards to the doctrine of precedent are the ramifications of s.2., which states that, inter alia, “a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration, or advisory opinion of the European Court of Human Rights (ECtHR)” (HRA, s.2). The fact that an Act of Parliament provides specific instructions to the courts regarding the “Interpretation of Convention Rights,” and compels the domestic courts to take into account decisions of the ECtHR raises issues related to the traditional judicial understanding of the doctrine of precedent.
The language of HRA, s.2 introduces uncertainty because it simply seems to impose a duty on the domestic courts to “take into account”. On one hand, domestic courts are not required to follow the decisions of the ECtHR, and such decisions could be considered more like obiter dicta in domestic courts (i.e., statements said in the case that do not form part of the ratio decidendi and are persuasive but not binding on other cases). On the other hand, since HRA, s.6.(1) makes it “unlawful for a public authority to act in a way which is incompatible with a Convention right” and according to HRA, s.6.(2) a “public authority includes (a) a court or tribunal [...]”, the Act could be interpreted as placing a duty on inferior courts (public authorities) to avoid precedent of a superior court (also a public authority) if the superior court’s decision is not compatible with a decision of the ECtHR. Consequently, all common law principles and precedent that are incompatible with Convention rights are potentially open to challenge by inferior courts. This uncertainty is compounded by the fact that Convention law, as opposed to European Community law (EC/EU law), has never been intended to be supreme over the domestic law of the signatory states, and that the ECtHR jurisprudence has always offered a “margin of appreciation” for member states in order to give effect to Convention rights in a way consistent with their own legal system -which in the case of UK law is based on the doctrine of judicial precedent. This uncertainty related to the HRA 1998 impact on precedent is apparent in early peer-reviewed publications on the topic [5].
In order to resolve the uncertainty with regards to the impact of the HRA 1998 on the doctrine of precedent, we would need to ascertain more precisely what is the current status of the ECtHR decisions and their relationship with decisions of superior courts in the UK. To accomplish this we look at the authorities in case law involving the interaction between of the HRA 1998 and judicial precedent. We are particularly interested on instances of dissent between the UK courts and the ECtHR, as well as instances where domestic court decisions may have departed from the traditional understandings of the doctrine of judicial precendent. Recent scholarly publications also help add clarity to the current understandings of the impact of the HRA 1998 on judicial precedent [7, 6, 8].
Part 2- Traditional Judicial Understanding of Precedent
2012///
This posting provides a concise overview of the traditional understanding of precedent in order to later assess the impact of the HRA 1998 [1] on the underlying features of this doctrine.
The English legal system follows the doctrine of judicial precedent. Judicial precedent holds that judges in lower courts are bound to follow decisions previously made in higher courts. This doctrine is based on the general principle of stare decisis (i.e., to stand by cases already decided). Consequently, when a legal proposition has been decided in one case, it has to be followed in certain courts. Precedents created by superior courts bind lower courts, that is, the ratio decidenti (i.e., the reason for deciding) or legal principle upon which a case is decided in light of material facts is a binding legal principle on other cases. For instance, the decisions of the House of Lords/Supreme Court bind all lower courts in the UK. The advantage of the doctrine of precedent is that it provides certainty and predictability. The disadvantage, however, is that stare decisis can result in a lack of flexibility and an inability of the common law to adapt to changing moral, socio- economic, and political realities resulting in a static body of law.
The certainty versus flexibility dilemma was addressed in the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 [2] where the House of Lords stated that while it considers itself normally bound by its own decisions, it may depart from a previous decision in certain rare circunstances. Their Lordships departure from the traditional understanding established in the London Tramways Co Ltd v London County Council [1898] AC 375 [3] where the House of Lords stated that it was strictly bound by its past decisions was based on the fact that “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law” (i.e., the need for flexibility). At the same time, they also highlighted “the especial need for certainty as to the criminal law”, the danger of “disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into”, and that binding precedent “provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs” (i.e., the need for certainty). Consequently, the House of Lords (currently the Supreme Court of the UK [4]) binds all the lower courts and would only depart from its own decisions in rare cases. This helps achieve certainty in business dealings, criminal law, land law, and all other relevant areas of law that critically depend on predictability, while also enabling them to develop the common law.
The English legal system follows the doctrine of judicial precedent. Judicial precedent holds that judges in lower courts are bound to follow decisions previously made in higher courts. This doctrine is based on the general principle of stare decisis (i.e., to stand by cases already decided). Consequently, when a legal proposition has been decided in one case, it has to be followed in certain courts. Precedents created by superior courts bind lower courts, that is, the ratio decidenti (i.e., the reason for deciding) or legal principle upon which a case is decided in light of material facts is a binding legal principle on other cases. For instance, the decisions of the House of Lords/Supreme Court bind all lower courts in the UK. The advantage of the doctrine of precedent is that it provides certainty and predictability. The disadvantage, however, is that stare decisis can result in a lack of flexibility and an inability of the common law to adapt to changing moral, socio- economic, and political realities resulting in a static body of law.
The certainty versus flexibility dilemma was addressed in the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234 [2] where the House of Lords stated that while it considers itself normally bound by its own decisions, it may depart from a previous decision in certain rare circunstances. Their Lordships departure from the traditional understanding established in the London Tramways Co Ltd v London County Council [1898] AC 375 [3] where the House of Lords stated that it was strictly bound by its past decisions was based on the fact that “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law” (i.e., the need for flexibility). At the same time, they also highlighted “the especial need for certainty as to the criminal law”, the danger of “disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into”, and that binding precedent “provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs” (i.e., the need for certainty). Consequently, the House of Lords (currently the Supreme Court of the UK [4]) binds all the lower courts and would only depart from its own decisions in rare cases. This helps achieve certainty in business dealings, criminal law, land law, and all other relevant areas of law that critically depend on predictability, while also enabling them to develop the common law.
Part 1- An Analysis of the Impact of the Human Rights Act 1998 on the Judicial Understanding of Precedent
2012///
This series of blog postings analyse the impact of the Human Rights Act 1998 (HRA 1998) on the judicial understanding of precedent. In order to examine whether the underlying features of the doctrine of precedent remain unchanged after the partial incorporation of Convention Rights by the HRA 1998 it is necessary to analyse the relevant developments in case law involving the interaction between the HRA 1998 and judicial precedent. This article provides a concise introduction to the underlying features associated with the traditional understanding of judicial precedent in the English legal system, introduces the relevant sections of the HRA 1998 that affect the doctrine of precedent, and analyses the relevant case law on the topic to draw.