Part 3- Human Rights Act 1998 & Judicial Precedent
2012/// Filed in: Common Law
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].