Part 4-Relevant Case Law (Precedent & HRA1998)
2012/// Filed in: Common Law
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.