Last month, Matt Hill posted on a case relating to the retention of DNA profiles and fingerprints by the police, for which the full judgment is finally available. Permission has been granted for an appeal directly to the Supreme Court, and the outcome of that appeal may have interesting implications for the status of European Court of Human Rights decisions in domestic law.
It is worth revisiting the decision in order to extract some of the principles, as although not novel, they do highlight the difficulties for claimants who have taken a case to the European Court of Human Rights and won, but who are still waiting for their decision to be implemented by the UK government.
The issue, as put by Lord Justice Moses was
whether this court is bound by the decision of the House of Lords [now the Supreme Court] in Marper or is free to follow the decision of the European Court of Human Rights in S and Marper. There is no dispute but that those two decisions cannot be reconciled.
When the appeal reached the UK’s highest court, the House of Lords had been “unanimous in concluding that any interference was justified for the purposes of Article 8(2). It was in accordance with the law and was proportionate.”
The decision was appealed to the European Court of Human Rights, which disagreed with the House of Lords, finding “the blanket and indiscriminate nature of the powers of the retention of biometric samples failed to strike a fair balance between the competing public and private interests and that the United Kingdom had “overstepped any acceptable margin of appreciation in this regard” (see paragraph 125)””
The claimants went back to the High Court, arguing that the European Court of Human Rights decision put a different complexion on the matter, and the issue should be revisited. In the judgment, Lord Justice Moses made clear that the UK courts were “bound by the decision of the House of Lords. The doctrine of precedent and the legal certainty which that doctrine protects demands that this court follows the decision in S and Marper.” He quoted and approved the statement of Lord Bingham in K & Ors v Lambeth Borough Council explaining why the doctrine of precedent must operate in this way:
There is a more fundamental reason for adhering to our domestic rule. The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.
The applicants argued that their case represents an exception to the general rule, as, amongst other things, “the doctrine of precedent operates differently in relation to questions concerning proportionality and exercise of a discretion”. In other words, in human rights cases it should be – in exceptional scenarios – be open for a lower domestic court to prefer a European Court of Human Rights decision. Lord Justice Moses entirely disagreed:
I am unable to see how that affords any ground for distinction. Of course it was open to chief officers of police, albeit unlikely, to follow the lead set by the European Court of Human Rights and change the policy following the promulgation of the decision in Marper in Strasbourg. But no Chief of Police decided to adopt that course. There was no change in the circumstances, nor materially in the policy which formed the subject matter of the decision in the House of Lords. There was no change in the circumstances which could have made any difference to the House of Lords consideration of the justification for the policy. All that had happened was the decision of the European Court of Human Rights. Even if there had been a change in circumstances that, in my view, would be a matter for the Supreme Court and not for this court.
So far, so predictable. It was highly unlikely that a judge in the High Court would suddenly reverse the basic doctrine of precedent, therefore effectively making the European Court of Human Rights our highest court on human rights issues. However, interestingly, Lord Justice Moses went on to grant permission to appeal directly to the Supreme Court (a ‘leapfrog’ appeal, which bypasses the Court of Appeal), an appeal which he made clear was far from a foregone conclusion:
No one can properly predict the conclusion that the Supreme Court might reach. It is far from a foregone conclusion. In particular the Supreme Court will have to consider the relevance of the government’s contention that continuing the policy at the moment is merely temporary, pending the introduction of new legislation, which will take into account the decision of the European Court of Human Rights and their contention that time should be given to make such changes in an area of great public concern, where legitimate views as to retention and use of biometric data may differ.
In other words, watch this space. If the government fails to change the law in time, this case could see the Supreme Court flexing its judicial muscle in order to give lower courts stronger powers in order to encourage the government to implement European human rights judgments. As Matt Hill said in his post, this case “raises the question of the extent to which decisions of the Strasbourg Court shape the law of the United Kingdom.” This is an important issue, particularly given that some decisions of the Strasbourg-based court have languished unimplemented for years, notably relating to prisoners being banned from voting.
Senior Supreme Court justices have been intimating recently that human rights law has special status in UK law. The court’s president, Lord Phillips, called the Human Rights Act a “constitutional statute, and his deputy Lord Hope has argued that no government would have the power to remove human rights protections, even if it wanted to. As such, if there is to be any kind of constitutional confrontation between the new highest court and the government, it seems likely to be in relation to a human rights issue. Of course, this may not be that issue and the Supreme Court may just follow Lord Bingham in Kay v Lambeth. But it will be an interesting debate.
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Read more:
- Courts entitled to ignore European Court decision on DNA and fingerprint retention
- 31 Aug Do foreign policy and human rights mix?
- DNA, home testing and fuzzy human rights
- Many European human rights decisions left unimplemented for years
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