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I want to deal with the relationship between the

European Court of Human Rights and the Domestic courts.

At least, as far as it impacts upon the doctrine of precedent.

The key case here is called Leeds City Council

v Price and Kay and the London Borough of Lambeth.

A case from 2006.

And I want to refer to Lord Bingham in

the House of Lords, who outlined the fundamental issue.

I think in a very clear way.

The fundamental issue here is whether a court which would

ordinarily be bound to follow the decision of another court.

Higher in the domestic hierarchy of courts is

or should be no longer bound to follow that decision if it appears to be

inconsistent with a later ruling of the court in Strasbourg.

Now this is a novel problem isn't it?

That comes out of the relationship between

the domestic courts, and an international court.

That international court being the European Court of Human Rights.

And the issue is, since rights were domesticated under the Human

Rights Act, what is the relationship between the jurisdiction of the

International Court, the European Court of Human Rights and the domestic

courts as far as the domestic hierarchy of courts is concerned?

And the kicker is this, again to just stress

what Lord Bingham's pithy summation of this problem is.

Here's the issue.

Whether a court which would ordinarily be found to follow, be bound

to follow, the decision of another court higher in the domestic hierarchy

is, or should be, no longer bound to follow that decision, if

it appears to be inconsistent with a later ruling of the Strasbourg Court.

So what's an example?

How could this happen?

Well, let's almost go back to what happened in Davis and Johnson.

In other words, Lord Denning was trying to argue that

the Court of Appeals should depart from its previous rulings.

This problem now appears in a different way, given

the new context and new circumstances post the Human Rights

Act and given the relationship between the jurisdiction of

the European Court of Human Rights and the Common Law.

What if the court of appeal is deciding a case.

And there is a ruling of Strasbourg, at the Strasbourg court, the European

Court of Human Rights, that suggests that we should develop the law in one

way, and that is consistent with either a rule, an earlier ruling of

the Court of Appeal, or indeed, an earlier ruling of the House of Law.

So there's clearly a problem here.

Which way should the Court of Appeal turn?

Now, Lord Bingham has a very clear answer.

And the clear answer is that we affirm the domestic hierarchy.

This is what he says.

Lord Bingham invokes the spectre of confusion that would haunt the common law.

If the settled arrangement for the creation of authority was disturbed.

In other words, what Lord Bingham is saying here, is in

the face of this complex relationship that has developed since the

Human Rights Act, between domestic courts, and the European Courts of

Human Rights, we fall back on

the conventional understanding of the doctrine.

In other words, the Court of Appeal in our example, would have to follow the

earlier ruling of the Court of Appeal, or indeed the ruling of the House of Lords.

It could not use the inconsistency between the earlier ruling of the

Court of Appeal or the ruling of the House of Lords with the

Strasbourg decision to justify departing either from the earlier ruling of the

Court of Appeal or indeed from the ruling of the House of Lords.

The certainty of the common law, according to Lord Bingham is achieved

by a daring even in the convention context to our rules of precedent.

If an authority is inconsistent with the Strasbourg Ruling,

then it is best dealt with as an appeal and

the House of Lords or the Supreme Court given

the opportunity to produce a definitive statement of the law.

Lord Bingham supports his position with a second argument.

The convention requires a constructive dialogue between national

courts and the European Court of Human Rights.

The Strasbourg court has the authority to pronounce on

the convention in the correct interpretation of its principles.

However, in its decisions on particular cases,

the Strasbourg court allows a margin of appreciation.

Allows a national court, domestic court, to develop and apply, their

own understanding of the law, to the facts of the case.

This means that the national court must

decide precisely, how the convention applies, and how

the principles elaborate in Strasbourg should be

applied in the special context of national legislation.

If the national courts have to apply convention

jurisprudence or the rules of the European Court

of Human Rights, then they must do so

in the prevalent terms of the national legal system.

Thus, as far as the UK is concerned, the ordinary rules of precedent should apply.

The European Courts and precedent

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