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Lord Kerr on the Relationship between ECtHR and Domestic Courts

As we noted here, Friday evening saw UCD School of Law host the 13th Memorial John M Kelly Lecture, this year delivered by Lord Kerr; justice of the UK Supreme Court. The lecture, entitled “The Conversation between the European Court of Human Rights and National Courts: Dialogue or Dictation” was a wide ranging and extremely interesting one and the audience ranged from sitting and retired justices of the Supreme and High Court to undergraduate students in the School.

Lord Kerr was primarily concerned with the implications for courts in Ireland and the UK (although, primarily the UK), of Europen Court of Human Rights decisions that appeared to lay down a universal rule for the member states of the Council of Europe but where implementation of that rule caused substantial practical difficulties in the domestic state. The focus on Ireland and the UK had two bases: firstly these two jurisdictions are the only common law jurisdictions in the Council of Europe; secondly, s. 2 of the Human Rights Act 1998 and s. 4 of the ECHR Act 2003 require the courts, respectively, to take ECtHR jurisprudence “into account” (HRA 1998) or to take “judicial notice” and “due account” thereof (ECHR Act 2003).

Lord Kerr identified a number of reasons why any conception of Convention caselaw as ‘binding’ (if that was how these statutory provisions were interpreted) might be problematic. 1: Where there is a written constitution there may be tensions between constitutional supremacy and Convention caselaw. 2: Because of the ECtHR’s commitment to dynamic/evolutive interpretation of the Convention there is strict concept of precedent in the Strasbourg court, which may make things like the contemporaneousness of a judgment important in considering whether it ought to be binding or not; 3: Where a domestic court considers itself bound to follow a Strasbourg decision serious practical difficulties may flow from the implementation of that decision.

The latter two of these considerations were particularly prominent in the recent House of Lords decision in Secretary of State for the Home Department v AF & Another (2009), in which the Lords held that people have the right to know the information used against them to impose control orders, so that they can effectively challenge those orders. The hearing of this case in the House of Lords took place mere days after the Grand Chamber of the European Court of Human Rights handed down its decision in A & Others v United Kingdom. In that case, the Grand Chamber had held inter alia that while Special Advocates can be used to effectively protect the rights of persons suspected of involvement in terrorist activity with concerns of national security surrounding disclosure of evidence, “he special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate” (para 220). The exact extent of evidence to be made available with depend on the circumstances of every case. In the AF case, the House of Lords had somewhat reluctantly followed the Grand Chamber’s decision in A v United Kingdom, feeling itself bound by it. The opening paragraph of Lord Hoffman’s speech is revelatory in this respect:

[T]he judgment of the European Court of Human Rights (“ECtHR) in A v United Kingdom (Application No 3455/05), BAILII: [2009] ECHR 301, requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.

What was important here, Lord Kerr opined, was that the decision in A v United Kingdom was extremely current and exactly on point; in fact, he said that to have refused to follow it would have been “unseemly and discordant”. Interestingly, however, Lord Kerr noted that when reading the speeches in the case it is clear that the members of the House of Lords were trying to communicate to the Strasbour Court the difficulties in practical terms that laying down such a universal rule regarding disclosure might have in the domestic jurisdictions and especially in common law jurisdictions.

Lord Kerr was clear in his support for the European Court of Human Rights as an institution, noting that without it we would be deprived of “an invaluable and irreplacable strain of jurisprudence”. While there were some difficulties with the Court–particularly of the kind revealed by the A anf AF litigation considered above–he felt that there were ways in which such difficulties might be overcome or at least effectively communicated. In this respect, Lord Kerr said that where difficulties arise national courts ought to clearly communicate them to the Strasbourg Court. To do this, common law superior courts need to become very familiar with the civil law systems in order to be able to point out situations in which a universal rule handed down by the European Court of Human Rights might not be suitable within a common law context. Importantly, however, Lord Kerr went on to note that the exchange of views and ideas should not be limited to the adjudicatory process.

On this last point, and in response to a question from my colleague Prof. Colin Scott, Lord Kerr noted that the writing of a judgment provides somewhat limited opportunity for such communication because (a) appropriate cases might not reach appeal courts and (b) a court is limited by the circumstances of the case in preparing its judgments. Lord Kerr therefore felt that structured and effective systems of court visits and judicial networks (although he expressed some discomfort with the term ‘networking’) ought to be encouraged.

This short report-written based on personal notes and not on a transcript-can give only a flavour of the lecture as presented, but will hopefully have conveyed the stimulating content and the insight the lecture offered from a judicial perspective.

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