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Senior judges defend English courts' human rights record

Parliament could easily clear confusion by amending the Human Rights Act

21 November 2011

Lord Judge, the Lord Chief Justice, and Lord Phillips, president of the Supreme Court, put up a united front in defence of human rights in a hearing before a parliamentary committee Tuesday last week.

The two senior judges were the only witnesses before the Commons human rights committee as part of its review of the role of European Court of Human Rights. They made clear that the judiciary could not be blamed for making new laws and were merely giving effect to the intention of parliament.

Unlike the obligation of the UK courts under the European Communities Act 1973 to apply the rulings of the European Court of Justice, the obligation under the Human Rights Act 1998 is merely to “take account” of the decisions of the European Court of Human Rights.

The requirement, in section 2 of the HRA, has caused ever greater controversy as a number of cases have pitted the Strasbourg court against English courts.

The statutory obligation on UK courts, Lord Phillips explained, was to take account of the jurisprudence of the Strasbourg court, whether a particular decision was in relation to English law or any other legislation by a member state of the Council of Europe.

“‘Take account’ is a phrase which one could talk about a little – and I expect you’d like us to,” he said, defining the debate firmly in terms of statutory interpretation.

Lord Judge added there would soon be another case where this issue would be addressed. The issue was raised more abruptly by Dominic Raab, Conservative MP for Esher and former Linklaters lawyer. Raab, who supports a British Bill of Rights, asked Lord Judge about the apparent contradiction between the position he expressed in his 2010 Judicial Studies Board lecture that “the final word does not rest with Strasbourg, but with our Supreme Court”, and Lord Bingham’s 2004 judgment in Ullah that the duty of national courts was to “keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”.

Did this mean that it was now time for the legislator to make section 2 clearer, asked Raab? Lord Judge retorted that Strasbourg decisions were not “finally binding” on the Supreme Court and that “it is at the very least arguable that Lord Bingham in Ullah went too far”.

There will be occasions where the question falls to be considered, he continued, before adding there was “a very strong likelihood” that this would occur again in the next 12 months. It was up to the legislator, he continued, to determine whether “‘take account of’ does not mean ‘is bound by’. That would be a very simple piece of legislation, simple to draft.”

Lord Phillips provided further clarification, saying that Lord Bingham was referring to a set of Strasbourg cases setting a trend, not decisions in specific cases that would be regarded as individually binding precedents in the traditional English way (see below).

Asked further how they suggested enforcement authorities such as police and parole board officers could establish the meaning of human rights provisions where Britain’s two most senior judges didn’t seem to agree, Lord Phillips countered: “It’s a very esoteric discussion. There’s no difference between Lord Judge and me,” he said. “I’m talking from a matter of practical law. We don’t have to follow Strasbourg but we do.”

Lord Judge added: “This is your legislation, the one parliament produced in 1998. There’s no difference at all between Lord Phillips and myself.”

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