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Lord Kerr on the Relationship between ECtHR and Domestic Courts

November 22, 2009 3 comments

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. Read more…

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