Lord Chief Justice says European Court has too much influence over British Legal System

2 April 2010 by Adam Wagner

Lord Judge, the Lord Chief Justice, has used the annual Judicial Studies Board (JSB) lecture to complain that the English courts were being influenced too heavily by judgments of the European Court of Human Rights (ECtHR).

This is becoming something of a tradition at the annual JSB lecture. Lord Hoffman used the same platform last year (read lecture here) to criticise the ECtHR, saying it had been “unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States.”

In this year’s lecture, Lord Judge suggested that “statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court” and that the Luxembourg-based ECtHR was encroaching on the legal territory of its Strasbourg cousin, the European Court of Justice.

The full lecture can be found here, or you can read more of the address after the page break below:

You all know that the decisions of that court bind our domestic courts. That is a consequence of our domestic legislation. As a matter of statute the decisions of the European Court of Human Rights in Strasbourg do not bind our courts. The statutory obligation on our courts is to take account of the decisions of the court in Strasbourg. I have no problem with this. Naturally, the decisions there must command our respect. This is the court with ultimate responsibility for the convention itself. We can follow the reasoning and if possible identify and apply the principle to be found in the decisions, particularly those of the Grand Chamber. But I venture to suggest that that is not because we are bound to do so, even if the decision is that of the Grand Chamber, or because the Supreme Court is a court subordinate to the Strasbourg court, but because, having taken the Strasbourg decision into account and examined it, it will often follow that it is appropriate to do so. But it will not always be appropriate to do so. What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court. But however that question is approached, the further development that has to be addressed is that the European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg. Before I come to it I want to express another concern.

Too many decisions from Strasbourg, and too many domestic decisions, are cited in argument, and, I’m sorry to have to say this to my brother and sister judges, in all our judgments. Part of this is a manifestation of the extraordinary way in which the forensic technique has changed, and part at any rate the result of the development of modern technology. All the cases on the point are assembled, and put into the skeleton argument. That skeleton argument is saved. When another case emerges, from whatever source, Europe or England and Wales, from any part of the European system, and unreported casesin this jurisdiction joining hands with and achieving spurious importance by being linked with an earlier reported case. The process is just too simple.