Lords Judge and Phillips united in defence of human rights

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 this afternoon.

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 concurred, saying that what Lord Phillips has said was 'obviously right', before comparing the situation under the convention with that of European Union law.

The lord chief justice added there would soon be a case where this issue was going to 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 his position, as 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.

In Ullah, Lord Bingham said the duty of national courts was to 'keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less', which has since been construed as a duty to give effect to the Strasbourg jurisprudence as it evolves.

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 what 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.

The Lord Chief Justice went on to say that if the question was whether the statute should be made clearer, that was for parliament to say.