What was the Lord Chief Justice really saying about the European Court?

16 April 2010 by

The Lord Chief Justice used a recent lecture to argue that the European Court of Human Rights (ECtHR) is being given too much respect in the UK courts, with its judgments being cited by lawyers and judges with alarming regularity.

Joshua Rozenberg writing the Law Society Gazette suggests that Lord Judge’s lecture was in fact misunderstood by many in the media, who used the speech to “call for the judiciary to give the good old English common law supremacy over that nasty foreign stuff they make in ‘Alsace, France’

The issue an important one, as it goes to the heart of the debate over whether the Human Rights Act 1998 should be repealed. The original intention of the 1998 Act was to “bring rights home”; in other words, to prevent decisions on matters of great public importance and local sensitivity being decided in Strasbourg rather than the UK. Before the 1998 Act, the only human rights cases which could be cited were from Strasbourg. But the UK courts now have almost ten years of home-grown human rights case law to consider. The effect of the 1998 Act was therefore to diminish the relevance of ECtHR cases, and the Lord Chief Justice was reminding lawyers of this point.

Analysing the speech, it is clear that Lord Judge’s main complaint was that too many lawyers cite ECtHR authorities at inappropriate times, and that modern technology (including, it would seem, overzealous use of copy and paste) has meant that too many European authorities are creeping back into arguments.

Section 2(1) of the Human Rights Act 1998 states that a court determining a human rights question must “take into account” any “relevant” judgment of the ECtHR. However, as the Lord Chief Justice pointed out, unlike decisions of the European Court of Justice, “the decisions of the European Court of Human Rights in Strasbourg do not bind our courts… What I respectfully suggest is that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court.”

Lord Judge also appears to despair of lawyers and even judges’ use of copy and paste. He said:

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.”

But what was he actually suggesting should be done about it? Joshua Rozenberg comments:

Judges may be good at expressing themselves in written judgments, but they can sometimes be less than clear when speaking out of court. One sentence in particular made it appear that the lord chief justice was calling for a change in the law. ‘What I respectfully suggest,’ he said, ‘is that statute ensures that the final word does not rest with Strasbourg but with our Supreme Court.’ But Judge was not urging the next parliament to pass a law giving the UK’s judiciary supremacy over rulings by the European Court of Human Rights. He was pointing out, with unnecessary self-deprecation, that our own law already does just that.

In respect of changing the law, Lord Judge was actually very clear. He said early in the speech “When I reflect on some of these issues about the future it is essential for you to understand that I am not advocating – repeat not advocating – any particular changes.”

He did, however, advocate at the least a new system whereby ECtHR authorities are restricted from being cited once a domestic Supreme Court case has superseded them. He recommended that the courts “employ a powerful self denying ordinance against allowing further citation of decisions on the point which provide no more than an illustration of a principle which has been encapsulated in the decisions of the Supreme Court.

In light of these comments, perhaps lawyers will think twice before copying and pasting another European judgment into their arguments.

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