Part 5-Doctrine of Precedent & HRA 1998 - Conclusions
2012/// Filed in: Common Law
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.