HUMAN RIGHTS AND LEGAL SYSTEM To follow the Supreme Court or Strasbourg? Judicial precedent and the Human Rights Act 1998 Manchester City Council v Pinnock [2010] UKSC 45 Supreme Court Introduction Dr Steve Foster * The passing and coming into force of the Human Rights Act 1998 was intended to have a profound effect on the protection of human rights and civil liberties in domestic law. However, it should not be forgotten that the Act has also affected the general legal system. For example, as the courts are now bound to provide greater redress for breach of rights under the European Convention on Human Rights, 1 its provisions have affected the remedies that are available from the domestic courts, 2 and the process under which those rights might or must be accessed. 3 Perhaps most significantly, the Act creates new rules on the following of precedent, as s.2 of the Act states that the domestic courts must take into account (author s italics), inter alia, the decisions of the European Court of Human Rights when determining any question involving any Convention right. This is to ensure that Convention rights, case law and principles are given appropriate effect by the domestic courts. This should in turn ensure that the parties are allowed to argue their case on such principles and that the courts are, as far as possible, able to decide the case in conformity with the Strasbourg case law. This, of course, will in many cases obviate the need for the dispute to be sent to the Strasbourg Court; as one of the main purposes of the Act is to ensure conformity with Convention law and, thus, to provide adequate and similar remedies at the domestic level. The inclusion of s.2 in the Act thus begs the question whether the traditional principles of judicial precedent are now abandoned in place of a rule which compels the domestic courts to follow the decisions of the European Court of Human Rights. If the Convention was intended to have overriding force, as is the case with European Union law, then the answer would appear to be in the affirmative. However, as Convention law was never intended to be supreme over member states domestic law, and the European Court of Human Rights has always offered member states a margin of appreciation of how they give effect to Convention law in it own legal system, the answer has never been so clear. This uncertainty is, of course, compounded by the wording of s.2 of the Act, which merely imposes a duty on the courts to take such cases into account, rather than follow the decision. A recent decision of the UK Supreme Court has provided some clarification and guidance in this complex area, although the very nature of the Convention and its relationship with state law will continue to pose a dilemma to the domestic courts as to which decision to follow in cases of conflict. * Principal Lecturer in Law, Coventry University 1 Under s.6 of the Human Rights Act the courts are regarded as public authorities, who must not breach the rights under the European Convention. 2 Section 8 Human Rights Act 1998 3 Section 7 Human Rights Act 1998
The facts and decision in Pinnock P was a tenant of property owned by the respondent local authority. The local authority had obtained a demotion order in respect of P's secure tenancy following serious allegations against his partner and children. P appealed unucessfully against a possesion order made under s.143d of the Housing Act 1996; the county court, and Court of Appeal, 4 considering that the order should be made and that the courts' role did not extend to considering whether article 8 of the European Convention had been complied with. 5 P claimed that a possession order would violate his rights of private and family life and home under article 8 and argued that although the House of Lords had peviously held that a residential occupier against whom possession was sought by a local authority could not raise a proportionality argument under article 8, there was now a consistent series of European Court of Human Rights decisions which unambiguously supported the minority view in the House of Lords cases, making it appropriate to depart from them. The Supreme Court held that the jurisprudence of the European Court has indeed established that: any person at risk of being dispossessed of his home at a local authority's suit should in principle have the right to question the measure's proportionality under article 8, even if their right of occupation under domestic law had ended. 6 Further, a procedure limited to considering proportionality through traditional judicial review without the court making its own factual assessment in an appropriate case was inadequate. 7 Where, as in the present case, the measure included proceedings involving more than one stage, the proceedings as a whole had to be considered to see if article 8 had been complied with. If the court concluded that it would be disproportionate to evict a person, then it would be unlawful to do so. The European Court also seemed to be of the view that it would only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant had no right under domestic law to remain. 8 With respect to precedent, it was held that the Supreme Court was not bound to follow every European Court decision. That would be impractical and sometimes inappropriate because it would destroy its ability to engage in constructive dialogue with the European Court on the specific law and its compatibility with the Convention. However, where there was a clear and constant line of decisions whose effect was not inconsistent with some fundamental substantive or procedural aspect of United Kingdom law, and whose reasoning did not appear to overlook or misunderstand some argument or point of principle, it would be wrong for the domestic court not to follow that line. There was no question of the European Court s jurisprudence having such inconsistency, as shown by the minority opinions in the House of Lords and by domestic law already having moved towards the European jurisprudence in cases such as Doherty. 9 Consequently, if United Kingdom law was to be compatible with article 8, where a court was asked to make an order for possession of a person's home at the suit of a local authority, it had to have the power to assess the proportionality of making the 4 [2010] 1 WLR 713 5 Relying on Qazi v Harrow LB [2004] 1 AC 983, Kay v Lambeth LBC [2006] 2 AC 465 and Doherty v Birmingham City Council [2009] 1 AC 367. 6 McCann v United Kingdom (2008) 2 FLR 899, Cosic v Croatia (App. No. 28261/06) Unreported January 15, 2009, Zehentner v Austria (App. No. 20082/02) Unreported July 16, 2009, Paulic v Croatia (App. No 3572/06) Unreported October 22, 2009, and Kay v United Kingdom, The Times, October 18, 2009. 7 Connors v United Kingdom (2005) 40 EHRR 9. 8 McCann v United Kingdom and Kay v United Kingdom, note 6 above. 9 See note 5, above.
order and, in making that assessment, to resolve any relevant factual dispute. In this respect, therefore, Qazi, Kay and Doherty should not be followed. Further, in the Supreme Court s view it was unsafe only to consider proportionality in exceptional cases as the question was always whether the eviction was a proportionate means of achieving a legitimate aim. Applying those principles to the factual scenario, it was impossible to conceive of circumstances at the stage of making a demotion order where article 8 would not be satisfied by the plain words of the relevant statute. However, greater problems arose when the court was asked to make a possession order against a demoted tenant. As article 8 required the court to consider proportionality under s.3 of the Human Rights Act 1998 s.143d(2) of the 1996 Act had to be read as not excluding its power to consider proportionality, if at all possible. A court had jurisdiction under normal judicial review principles to satisfy itself that the local authority had acted reasonably when deciding to bring and continue possession proceedings. It followed that it was open to a demoted tenant to challenge the local authority's decision on the ground that it was disproportionate under article 8. Moreover, the European Court s jurisprudence required the court considering such a challenge to have the power to assess any relevant facts. Accordingly, the court's traditional review powers should be expanded to permit it to carry out that exercise, and s.143d(2) was to be read accordingly. However, on the facts, the Supreme Court was satisfied that it had been proportionate to make the order against P. The appeal, therefore, was dismissed. Commentary Before the Act came into operation, the courts were reluctant to refer to the case law of the Convention in resolving disputes regarding the legality and reasonableness of actions that interfered with basic human rights. 10 Section 2 of the Act not only allows domestic courts to give effect to substantive Convention rights, but also requires them to consider the relevant case law of the Convention when determining disputes that raise such rights and their application. 11 However, while the section states that the courts must take into account the decisions of the European (Court), the provision does not insist that they apply such decisions. Of course, if the courts fail to apply case law of the Convention that is favourable to the claimant s case, that claimant will be required to take his or her case to Strasbourg, thus defeating one of the main aims of the 1998 Act. Another possibility is that the courts will ignore the Strasbourg case law where they want to give a more generous interpretation to the Convention right, although often the domestic courts will be reluctant to disturb the status quo, and will follow the Strasbourg case law instead of developing a human rights jurisprudence independent of and superior to that of the Convention. 12 Thus, in R v Secretary of State for the Home Department, ex parte Taylor and Anderson 13 the Court of Appeal suggested that it would be improper for the domestic courts 10 See, for example, R v Staines and Morrissey, The Times, 1 May 1997. 11 In full, it provides that when a court or tribunal is determining a question involving any Convention right, it must take into account any judgment, decision, declaratory or advisory opinion of the European Court of Human Rights, any opinion of the European Commission given in a report, any decision of the European Commission, and any decision of the Committee of Ministers whenever made or given, so far as, in the opinion of the court and tribunal, it is relevant to the proceedings in which that question has arisen. 12 See, for example, the decisions in R v Secretary of State for the Home Department, ex parte Pearson and Martinez, The Times, 17 April 2001 (prisoner s right to vote), and the decision of the Court of Appeal in Bellinger v Bellinger [2002] 1 All ER 311 (recognition of transsexual marriage). Both decisions were subsequently found to be in violation of Convention rights. 13 [2002] 2 WLR 1143.
to decide a case in a way that was contrary to the application currently being applied by the European Court of Human Rights. In that case the Court of Appeal held that the power of the Home Secretary to set tariffs for mandatory life sentence prisoners had clearly been accepted by both the domestic legislature and the European Court of Human Rights, and that in such a case it would not be proper to act in a manner which was inconsistent with the European Court s approach to that matter. 14 In constrast, In Re P and others, 15 the House of Lords declared that where the European Court had not laid down a definitive interpretation of the legal position the domestic courts were not bound to follow those decisions, becuase the rights in the Human Rights Act were domestic and not international human rights and the domestic courts could give their own interpretation to them. Thus, in that case, the domestic court was free to give what it considered to be a principled and rational interpretation of the concept of discrimination on the grounds of marital status. Equally, and more pertient to our opresent discussions, there have been cases where the domestic courts felt it more appropriate to apply specific domestic precedent to a dispute, rather than relying on general principles that have been laid down by the European Court of Human Rights. Thus, in Price v Leeds County Council, 16 it was held by the Court of Appeal that when faced with a House of Lords decision that was inconsistent with a decision of the European Court of Human Rights, 17 it should follow the decision of the House of Lords and refer the case to appeal. As the previous House of Lords decision was on a particular statutory scheme, it would subvert legal certainty if the decision of the European Court was followed. When the case was appealed, 18 the House of Lords stressed that the European Court accorded a generous margin of appreciation to the national authorities, attaching much importance to the facts of the case. Accordingly, it was for the courts to decide how in the first instance the principles expounded in Strasbourg should be applied in the special context of national legislation, practice and social and other considerations. In such cases, therefore, the domestic law and domestic precedent should be followed unless there was a strongly arguable case that the law and cases were incompatible with the European Convention. 19 The danger of this approach, as shown in the present case, is that the domestic decision might not adequately facilitate the principles of the Convention and that this may be exposed by subsequent appeal to the Strasbourg Court. Thus, in Kay v United Kingdom, 20 the European Court eventually held that there had been a violation of Article 8 of the Convention when the applicants (the unsuccessful claimants in the domestic proceedings in Kay v Lambeth LBC, above) were unable to challenge a dispossession order on grounds of proportionality and were limited, by precedent, to challenges on grounds of legality and rationality. 14 At the time of the Court of Appeal decision, the European Court was waiting to hear a similar complaint under the European Convention machinery. In Stafford v United Kingdom (2002) 35 EHRR 32 the European Court suggested that the Home Secretary s powers were in violation of Article 6 and the House of Lords subsequently declared such powers incompatible with Article 6 under s.4 of the Human Rights Act 1998; [2002] 3 WLR 1800. 15 [2008] UKHL 38 16 [2005] 1 WLR 1825. 17 Connors v United Kingdom (2005) 40 EHRR 9 on the rights of gypsies to private and home life under article 8. 18 Kay v Lambeth London Borough Council; Price v Leeds City Council [2006] 2 WLR 570. 19 That decision was followed in Doherty v Birmingham City Council [2008] UKHL 57, where it was held that the Mobile Homes Act 1983 clearly gave the local authority the power to evict travellers from its site, despite the ruling of the European Court in McCann v UK (2008)FLR 889. Until the European Court developed principles of general application in English law, the House of Lords must apply the clear provisions of the Act and domestic case law. 20 Application No. 37431/06, decision of the European Court 21 September 2010.
Despite the example in Kay, the mere fact that the United Kingdom has lost a case before the European Court on this legal matter will not necessarily mean that the domestic courts will subsequently alter its interpretation or application of the law. For example, in R v Horncastle, 21 the Supreme Court, in confirming that the statutory regime on the admissibility of evidence was not incompatible with article 6 or the case law of the European Court of Human Rights, stressed that the judgment in Al-Khawaja v United Kingdom 22 on hearsay evidence was not determinative of the case. Although s.2 of the Human Rights Act normally resulted in the national courts applying principles clearly established by the European Court of Human Rights, there would be rare occasions, such as the instant case, when the Supreme Court would have concerns as to whether such a decision sufficiently appreciated particular aspects of the domestic process. In such a case the Supreme Court could decline to follow that decision, giving reasons for adopting that course. It should be noted, however, that at the time of the Supreme Court s judgment in Horncastle the government were appealing the decision in Al-Khawaja to the Grand Chamber of the European Court. In such a case the domestic courts may be reluctant to relinquish its previous interpretations of domestic law until they have total clarification on the matter from the Grand Chamber of the European Court. 23 This flexibility will, however, be lost where the domestic courts are satisfied that the European decision in question has general application and is clearly intended to cover the present case. In such a scenario the domestic courts (usually the House of Lords (now the Supreme Court) will follow the European ruling in preference to the domestic decision. For example, in R (Purdy) v DPP, 24 although the Court of Appeal recognised that it would only be in very exceptional circumstances that it would override what would otherwise be the binding precedent of the House of Lords, 25 on appeal the House of Lords followed the European Court s decision in Pretty v United Kingdom 26 in preference to the House of Lords in Pretty v DPP 27 on the question of whether the right to die engaged Article 8 of the European Convention. This was because the European Court s ruling clearly conflicted with the House of Lords decision on a question of the interpretation of a Convention right rather than its application to specific domestic legislation. Similarly, in AF v Secretary of State for the Home Department, 28 the House of Lords held that the decision of the European Court in A v United Kingdom 29 had to be followed in preference to its previous decision in Re MB, 30 where there was any conflict between the two decisions with respect to the use of closed evidence in control order proceedings. The case law in this delicate area is, thus, difficult to predict, but the High Court has recently indicated that the issue of precedent should be determined by the Supreme Court rather than by allowing lower courts to depart from previous decisions of the House of Lords or the Supreme Court. In R (GC) v Commissioner of the Police of the Metropolis, 31 the court had to decide whether to follow a House of Lords decision which justified the retention of DNA 21 [2009] UKSC 14 22 (2009) 49 EHRR 1 23 The decision of the Grand Chamber is expected early in 2011. 24 [2009] 1 WLR 403 25 [2009] EWCA Civ 92 26 (2002) 35 EHRR 1 27 [2002] 1 All ER 1 28 The Times, 11 June 2009 29 (2009) 49 EHRR 29 30 [2006] 3 WLR 839 31 [2010] EWHC 2225 (Admin)
samples, 32 or to follow the European Court s subsequent ruling, that such retention was inconsistent with article 8. 33 It was held that legal certainty demanded that the court followed the decision of the House of Lords rather than the Strasbourg court, despite the fact that the claimants in both those cases were the same. However, the court also held that it was appropriate to grant the present claimants a direct right of appeal to the Supreme Court to determine the issue of precedent. The present policy, therefore, is to follow domestic case law until the Supreme Court has the opportunity to decide which decision it is appropriate to follow, taking into account both the margin of appreciation and the need to secure compliance with clear rulings of the European Court. Conclusions The decision in Pinnock highlights the danger of domestic courts not following the decisions of the European Court of Human Rights when Convention rights are in dispute. In such a case, perhaps the main aim of the Act, to ensure as far as possible that domestic law is compatible with Convention rights, will be lost and we will return to the pre-act position where our domestic law was continuously out of line with Convention law and principles. Further, unsuccessful claimants will then need to seek redress in Strasbourg, thus defeating another aim of the Act which was to curtail the number of individuals which would need to take the long and expensive road to Strasbourg. However, it is clear that European Convention law and cases are not intended to have an overriding force over specific domestic law. Thus, there is room for the development of specific provisions and remedies in domestic law provided they comply with the essence of the Convention rights as established by the Strasbourg Court. The current trend is for the lower courts to follow clear domestic precedent instead of Strasbourg jurisprudence and then refer the conflict to the Supreme Court. The Supreme Court will then decide whether there is indeed room to depart from the Strasbourg case law and to continue applying domestic provisions. This is a sensible solution, provided the domestic courts are capable of foreseeing subsequent appeals to Europe; something which the House of Lords was not capable of doing in this case. 32 R (S) v Chief Constable of South Yorkshire [2004] 1 WLR 2196 33 S and Marper v United Kingdom (2009) 48 EHRR 50