In the House of Lords

Transcription

1 A In the House of Lords ON APPAL ROM HR MAJSTY S OURT O APPAL (IVIL IVISION) TWN: PRI AN ORS - and - LS ITY OUNIL Appellants Respondent (1) JUSTI and (2) TH NATIONAL OUNIL OR IVIL LIRTIS ( LIRTY ) AS ON HAL O JUSTI AN LIRTY (INTRVNRS) Interveners Introduction 1. y order of the Appeal ommittee of your Lordships House dated 8 th November 2005, Justice and Liberty ( the Interveners ) were given leave to present written submissions in intervention in this appeal. 2. Justice was founded in 1957 as an independent human rights organisation. Justice is the ritish section of the International ommission of Jurists and has intervened in numerous domestic and Strasbourg legal disputes. 1

2 3. Liberty was formed in 1934 as the National ouncil for ivil Liberties and is an independent, non-political body whose principal objectives are the protection of civil liberties and the promotion of human rights in the United Kingdom. Liberty has intervened in some 30 cases before the uropean ourt of Human Rights ( thr ) and in numerous cases before domestic courts. A. The Precedent Question 4. In these submissions, the Interveners do not deal with the specific question of the correct interpretation of Article 8 of the uropean onvention on Human Rights ( HR ) raised by this appeal. Instead, the submissions address the question of general application raised by the appeal, namely whether a court below this House should follow earlier and higher domestic authority which is in conflict with a subsequent decision of the thr or whether it should follow the decision of the thr itself ( the Precedent Question ). The Precedent Question is Issue (5) in the Statement of Issues prepared by the Parties. The Interveners submit that the appropriate answer to the Precedent Question is the lower court is free to follow and, barring some special circumstances, should follow the later decision of the thr where four conditions are met ( the onditions ), namely where: (1) the thr has passed a further judgment since a domestic authority ruling upon the point in issue ( the resh Judgment ondition ); (2) which further judgment has established a clear and authoritative interpretation of onvention rights based (where applicable) upon an accurate understanding of UK law ( the larity ondition ); 2

3 A (3) which authoritative ruling is necessarily inconsistent with that earlier domestic judicial decision ( the onflict ondition ); and (4) the result reached in the inconsistent domestic decision was or is not dictated by the terms of primary legislation, such as to fall within s.6(2) of the Human Rights Act 1998 ( the HRA ) ( the Parliamentary Sovereignty ondition ). 5. These submissions fall into the following parts: A. An analysis of how the Precedent Question arose in the present appeal.. The modification to stare decisis needed to take account of the HRA.. The justifications for stare decisis.. onclusion. A. How the Precedent Question arose 6. Their Lordships will be familiar with the background to this matter. The Interveners adopt the Parties Statement of acts and Issues. In essence, the Precedent Question arose before the ourt of Appeal in the form of a challenge to the decision of His Honour Judge ush (sitting as a deputy judge of the High ourt). The ourt of Appeal s judgment is reported as Price & Ors v Leeds ity ouncil [2005] WA iv 289. The essential features are as follows: (1) HHJ ush decided that he was bound by the decision of this House in Harrow London orough ouncil v Qazi [2003] UKHL 43; 3

4 [2004] A 983 to hold that the Appellants in these proceedings ( Price ) could not defend an action for possession by relying on Article 8 HR where the public authority which instituted the proceedings had an absolute legal right to the possession of land. A (2) Price submitted before the ourt of Appeal that the approach of this House in Qazi, and thus HHJ ush s decision, was wrong in light of the later decision of the thr in onnors v United Kingdom (Application no ; judgment 27 May 2004) in which it was held that Article 8 HR may provide a defence to possession proceedings in certain circumstances. (3) The ourt of Appeal accepted that Qazi and onnors were irreconcilable and answered the Precedent Question in the following terms (Price, 33, per Lord Phillips MR on behalf of the ourt): It seems to us that in these circumstances, the only permissible course is to follow the decision of the House of Lords but, to give permission, if sought and not successfully opposed, to appeal to the House of Lords, thereby and to that extent taking the decision in onnors into account. 7. The Interveners submit that the ourt of Appeal erred in law in answering the Precedent Question in this way. 8. Instead, the ourt of Appeal should have treated itself as free to follow onnors (having found, in effect, the onditions to be met) by reason of its statutory duty under s.2 HRA, properly construed. S.2 HRA must be read in the light of and so as to comply with s.3 and s.6 HRA. urther, it must be understood in the light of the requirement for an effective remedy which runs as an interpretative thread throughout the 4

5 A HRA. Such statutory obligations released the ourt of Appeal from following the purely common law rules of stare decisis.. Modifying stare decisis to take account of the HRA (i) The common law nature of the doctrine 9. The traditional definition of stare decisis is that it is an nglish common law doctrine, or more strictly, one of the rules of practice in the courts of ngland and Wales that together form the rules of precedent, which requires courts to abide by the rationes decidendi of previous cases. The principle is of particular force where the earlier decision is one of a superior court in the judicial hierarchy: for a comprehensive account see ross & Harris, Precedent in nglish law (4 th ed), esp. h 1 and 3. How narrowly such rationes decidendi should be construed and conversely how far previous decisions may be distinguished because of differences of fact between cases is a matter of some controversy: see ross & Harris, pp It appears that the Scottish ourts may apply a less strict version of the doctrine of precedent. Indeed, in eith s Trustees v eith [1950] S 66 at 70 it was stated by Lord President ooper that: 1 It is manifest that the ratio decidendi upon which a previous decision has rested has been superseded and invalidated by subsequent legislation or from other like cause, that ratio decidendi ceases to be binding. 11. However, it is equally clear that the nglish common law principles are not immutable. Thus, the principle of stare decisis was not regarded as fully formulated in relation to this House until 1898, when the rule that this House was absolutely bound by its past decision was finally put 1 or further analysis, see ross & Harris, loc cit, pp

6 beyond doubt. 2 More importantly, this House regarded itself subsequently as having the power to alter the principle of its own motion in the Practice Statement of The material terms of that Practice Statement reveal much about the underlying common law philosophy of the rules of precedent and also the capacity of those rules for change. The Practice Statement reveals in material part as follows: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House. (emphasis added) 12. Two points immediately arise from this statement: A (1) ven at common law, the rules of precedent may be modified (for that is what the Practice irection itself does) where their rigid application leads to either: (a) injustice in a particular case; or (b) an undue restriction in the proper development of the law. (2) As the highest domestic judicial authority, the House of Lords has the authority or power, not in fact exercised in the Practice 2 London Tramways v London ounty ouncil [1898] A 375. or a fuller account, see ross & Harris, pp Read by Lord ardiner L before judgments were delivered on 26 July

7 A Statement (but the flagging of which limitation would be otiose were it to lack that authority or power), to modify the use of precedent by other ourts. 13. The recent decision of this House in In Re Spectrum Plus Ltd [2005] 3 WLR 58 reinforces the fact that, such rules being common law in nature, the ourts have power to modify such rules of practice. (ii) Statutory amendment: the analogy with the uropean ommunities Act 14. As a rule of common law the principle of stare decisis may also be amended by statute. An obvious and relevant example is s. 3(1) of the uropean ommunities Act 1972 ( the A ) which provides: or the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any ommunity instrument, shall be treated as a question of law (and, if not referred to the uropean ourt, be for determination as such in accordance with the principles laid down by and any relevant decision of the uropean ourt or any court attached thereto). 15. omestic courts have acknowledged that this provision requires them to apply decisions of the uropean ourt of Justice even in the face of earlier conflicting domestic authority. 16. The Interveners submit that it is against this background that s. 2 HRA must be viewed, for it too constitutes a statutory modification (albeit in less rigid terms) of the usual common law rules of precedent. Section 2(1) provides: A court or tribunal determining a question which has arisen in connection with a onvention right must take into account any (a) judgment, decision, declaration or advisory opinion of the uropean ourt of Human Rights, 7

8 (b) opinion of the ommission given in a report adopted under Article 31 of the onvention, (c) decision of the ommission in connection with Article 26 or 27(2) of the onvention, or (d) decision of the ommittee of Ministers taken under Article 46 of the onvention whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. A 17. It is significant that Parliament rejected an amendment which would substituted the permissive word may for the mandatory term must in s. 2(1). 4 Nevertheless, the requirement that a domestic court should take into account Strasbourg jurisprudence is prima facie a weaker obligation than that contained in s. 3 of the A. There are a number of explanations for this difference in legislative approach. (1) Under the HR, there is no equivalent procedure to that contained in Article 234 of the Treaty which permits (or in some cases requires) a reference to be made to the uropean ourt of Justice ( J ) for a binding interpretation on a matter of U law in the very proceedings in question. (2) Section 3 HRA applies to a much broader range of decisions and decision-makers than s. 3 A. The latter is confined to decisions of the J and any ourt attached to it (such as the ourt of irst Instance). In contrast, s. 2 HRA also applies to declarations and advisory opinions of the thr and to the opinions or decisions of the ommission or the ommittee of Ministers H Official Report col 388 (3 June 1998). 5 See R v Secretary of State for Work and Pensions, ex parte arson [2002] 3 All R 994 (A), at [38], per Stanley urnton J. 8

9 A (3) The status of the HR as a living instrument, and the comparatively rapid development of its case law in some areas, means that older decisions of even the thr are entitled to less deference than more recent ones. (4) inally and most fundamentally, the decisions of the Strasbourg organs are intended to lay down minimum standards to be observed throughout the ouncil of urope and the ontracting States. 6 Such decisions are decisively not intended to impose uniform solutions, because national conditions may vary and, in particular, different approaches may be taken to justification of interferences with qualified rights or as to the best means to discharge positive obligations. It is for this reason that the thr has developed the principle of the margin of appreciation. As such, it may be appropriate for domestic courts to interpret the HR in a manner which provides a higher level of protection for onvention rights than the lowest common denominator found to be sufficient to satisfy the requirements of the HR by the thr. 7 (5) y contrast, in many areas law is concerned with the attainment of near complete uniformity, typically by means of the identification and/or interpretation of the Treaties and/or legislation with a view to identifying uniform -wide principles, terms or meanings (e.g. of the terminology used in a irective). 8 After all, much of the purpose of legislative 6 See e.g. R (Amin) v Secretary of State for the nvironment, Transport and the Regions [2001] UKHL 23; [2002] 2 A 295, at [44] per Lord ingham. 7 R v otmeh [2002] 1 WLR 531 (A), at [16], per Rose LJ. The treatment of transsexuals domestic law and the HR provides a further example. 8 See e.g. -201/02 R (Wells) v Secretary of State for Transport, Local overnment and the Regions ( ), at [37], where the J stated, The ourt has consistently held that, in light of both the principle that ommunity law should be applied uniformly and the principle of equality, the terms of a provision of ommunity law which makes no express 9

10 output is harmonisation. That said, this distinction should not A be overstated. There are necessarily areas in which, in deciding questions of principle, the thr makes a ruling that has direct relevance for each and every ontracting State. Such is most likely to occur: (a) (b) When ruling upon the engagement or not of onvention rights e.g. does practice A amount to inhuman or degrading treatment, does Article 1 Protocol 1 cover non-contributory as well as contributory benefits? When ruling definitively that a rule or practice falls outside the margin of appreciation (as with, say, the treatment of transsexual persons, culminating in the ruling in oodwin v UK). 9 (6) In such areas, barring some special circumstances, domestic ourts should be expected to follow the minimum threshold requirement identified by the HR or these reasons, it is not surprising that Parliament chose to use a different form of words from that considered appropriate in the A. Such does not detract from the fact that the very passing of s.2 HRA is obviously intended to modify the common law rules of precedent so as to give the decisions of the thr, an international ourt, some status in nglish law. The next stage is to determine what may be the full reach of that statutory rule and/or duty. reference to the law of the Member States for the purpose of determining its meaning and scope is normally to be given throughout the ommunity an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question. 9 oodwin v UK (2002) 35 HRR See Amin, loc cit, at [44]-[45]. 10

11 A (iii) iving effect to the HRA as a whole 19. urther, s. 2 HRA must be read in light of the other provisions of the Act, in particular, ss. 3 and 6. Section 3(1) provides: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with onvention rights. 20. Section 3(1) expressly applies to all legislation whenever enacted (s. 3(2) of the HRA). Section 3(1) must also therefore apply to the interpretation of the HRA itself. Nothing within the HRA displaces this obvious inference. As such, a domestic court is bound to interpret its obligation under s.2 in a way which is itself compatible with onvention rights. 21. urther, s. 2 of the HRA must be read along with s. 6 which provides (as relevant): (1) It is unlawful for a public authority to act in a way which is incompatible with a onvention right.... (3) In this section public authority includes (a) a court or tribunal Whilst the full scope of this obligation is a matter of some dispute, particularly when dealing with questions of horizontality or with contended modifications of substantive law, what is clear is that s.6 HRA requires the ourts to modify and adapt, even overturn, common-law rules of procedure and practice (into which category the rules of precedent undoubtedly fall) when to do so is necessary in order to comply with the requirements of onvention rights. 11 As was 11 See ampbell v MN [2004] 2 A 457, esp at [18] per Lord Nicholls; [49] per Lord Hoffmann (both in the minority, but clearly of the view that s.6 HRA could require modification of rules of practice and procedure, at least in cases involving public authorities); [114] per Lord Hope; [132]-[134] per aroness Hale 11

12 stated by the then Lord hancellor during the passage of the HRA the A courts have the duty of acting compatibly with the onvention not only in cases involving other public authorities but also in developing the common law in deciding cases between individuals The only relevant exception to the s.6 obligation is that provided by s.6(2), an exception that has no application in the present case as there is no statutory obligation to, say, preserve without change domestic rules of precedent. 24. The next consideration is Article 13 HR. Article 13 provides: veryone whose rights and freedoms as set forth in this onvention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. 25. Although not incorporated in the HRA, Article 13 of the HR is also relevant since it forms part of the Strasbourg jurisprudence to which domestic courts are required to have regard. 13 Indeed, when construing provisions of the HRA, whether separately or as a whole, Article 13 HR is of direct relevance as the very purpose of the HRA is to provide an effective domestic remedy against breaches of onvention rights. Article 13 HR is thus woven into the very fabric of the HRA; it is a common interpretative thread running through that Act. 26. The reasoning in relation to Article 13 is given further force by consideration of Article 46(1) of the HR, which provides: 12 Lord Irvine of Lairg, House of Lords ommittee Stage, 583 HL Official Report (5 th series) col 783 (24 Nov 1997). 13 rown v Stott (Procurator iscal, umfermline) [2003] 1 A 681, 715X and 716X, per Lord Hope of raighead. See further, Lord Irvine of Lairg, 583 HL Official Report (5 th series) col 477 (18 November 1997). 12

13 A The High ontracting Parties undertake to abide by the final judgment of the ourt in any case to which they are parties. 27. The decisions of its courts plainly engage the United Kingdom s responsibilities under the onvention. 14 As such, the United Kingdom and its judicial organs are required to abide by the thr s decision in onnors. (iv) Application of those principles 28. The Interveners submit that, in a case where the ondition are met, the obligation arising under s.2 HRA, properly construed, empowers the domestic court to give effect to the thr s decision and, if necessary, authorises it to disapply or refuse to follow any inconsistent domestic authority otherwise binding by reason of the rules of stare decisis. 29. Moreover, where such onditions are met, and in the new terrain created by the HRA, this House would, applying the principles to be discerned from the Practice Statement, be justified in modifying the rules of stare decisis for all ourts to the limited extent contemplated in paragraph 4 above, purely as a matter of domestic common law. 30. The Interveners reach this conclusion for the following reasons of principle: (1) The duty of any ourt under s.2 is statutory in nature and, by its very nature, intended to be a qualification of the usual common law rules of precedent, which it supersedes. The ourt s first duty is to ask itself what do the duties under s.2 HRA require this ourt to do?. As this is a question of statutory duty, this 14 Among many illustrations, see for example Sunday Times v United Kingdom [1979] 2 HRR

14 question should be approached in a manner unfettered by the A rules of stare decisis, save insofar as the earlier domestic decisions referred to in fact construe, apply, consider or distinguish the same HR case-law relied upon in the case in hand. Necessarily, that latter proviso will not be operative where the resh Judgment ondition is met. (2) Secondly, where the onditions are met, natural as well as purposive construction (under s.3 HRA) of s.2 HRA requires the domestic court faced with such an unavoidable clash to take account of the most recent HR ruling by giving effect to it. The previous domestic ruling is no longer binding since it was reached without the benefit of the later and (on questions concerning the onvention) more authoritative ruling on the onvention. The thr s decisions are themselves plainly the best indicator of compatibility. The lower ourt is therefore free to and must take account of this new HR case as it thinks fit. (3) Thirdly, the only putative obstacle that stands between the course above suggested are the common law rules of stare decisis. However, where such onditions are met, it is adherence to the rules of stare decisis alone that would result in an incompatibility of reasoning (and thus, potentially, of result) between higher domestic courts and the HR. S.6 HRA requires the domestic courts, as public authorities charged with ensuring the compatibility of national law with onvention rights, to disapply or modify such common law rules of practice and procedure in such circumstances. (4) urther, there is no other interpretation of the ourt s obligation under s. 2 of the HRA which is compatible with onvention 14

15 A rights. The only alternative, namely obedient application of an inconsistent previous domestic authority, would lead to an incompatibility for each and every judgment reached in such fashion. Whilst an appeal may be possible so that the case eventually reaches the plane of the higher domestic authority, such an approach would constitute the denial of an effective domestic remedy. The requirement to provide an effective remedy before a national authority is met if, but only if, the domestic court applies the thr s decision to the facts before it and does not require the Appellants to pursue further appeals through the judicial hierarchy (and possibly to Strasbourg) with their consequent delay and cost (which is potentially prohibitive of justice in the case). (5) Lastly, any other approach will result in an unfortunate mismatch between the treatment of human rights arguments in cases with no dimension and those where, because of the context (e.g. primary legislation implementing a irective, or a national rule justified a permissible restriction on, say, a right of free movement) fundamental rights apply. ecause the fundamental rights doctrine is based upon the HR as a minimum, being an invariable part of the common constitutional tradition of the member states, it is likely that in any case involving law lower national courts would be obliged to decline to follow the reasoning of a higher domestic court that conflicted with a subsequent HR ruling meeting the onditions. 31. So far as the reach of the obligation under s.2 is ambiguous (and the Interveners say it is not) it is submitted that it was also the intention of Parliament that thr decisions should be followed, as supported by 15

16 the following statement of the Lord hancellor, Lord Irvine of Lairg, A during the committee stage in the House of Lords debates on the Human Rights ill: [W]here it is relevant, we would of course expect our courts to apply onvention jurisprudence and its principles to the cases before them At the report stage, the Lord hancellor gave as an example of the situation where it may be appropriate for domestic courts not to follow a Strasbourg decision the situation where the decision was taken by the thr some decades ago and in circumstances which are not be wellsuited to today. 16 (Neither the thr s decision in onnors nor any case meeting the resh Judgment ondition would fall within such an exception). 33. omestic courts (including this House) have also decided that domestic courts should normally follow decisions of the thr. 17 or example, in the Alconbury case, Lord Slynn of Hadley stated: In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the uropean ourt of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence ven in a case in which some doubt was cast upon the correctness of the thr s approach, domestic authority indicates that the appropriate course is generally to follow the Strasbourg jurisprudence. uxton LJ put the matter in the following way in a passage which bears HL Official Report (5 th series) cols (18 November 1997) HL Official Report (5 th series) cols (19 January 1998). 17 R (Anderson) v Secretary of State for the Home epartment [2002] UKHL 46; [2003] 1 A 837, para 18, per Lord ingham of ornhill on behalf of the House. 18 R (Alconbury evelopments Ltd) v Secretary of State for the nvironment, Transport and the Regions [2001] UKHL 23; [2003] 2 A 295, at [26], per Lord Slynn of Hadley. 16

17 A lengthy quotation, from the ourt of Appeal judgments in the case of Anderson: 89 The onvention is a broadly stated international treaty, applying to a wide range of countries. Not only is it the objective of the onvention to bring its benefits to all of those countries, but also fairness between the citizens of those different countries requires that its terms have a uniform and accessible meaning throughout the member countries. The principal machinery for achieving that end is to be found in the court, and in the interpretative rulings that it gives. There may well be many cases facing a national court where the jurisprudence of the ourt of Human Rights is unclear, or on the particular point in issue non-existent. Then the national court has to do the best that it can. ut that is not this case. Here, there is clear and consistent jurisprudence of the Strasbourg court. If we are to say that that jurisprudence is wrong, we will be creating in ngland and Wales a different set of onvention rules from those that apply in other countries who are signatories to the onvention. That will be a clear departure from international comity within the onvention, and a step that should only be taken in extreme circumstances. 90 I appreciate that the United Kingdom appears to be the only country that enjoys mandatory penalties for murder, at least in the form that they take under the Murder (Abolition of eath Penalty) Act 1965; so it could be said that if we act as urged we will in practice do no damage to international comity. There are three objections to that approach. irst, the issue of comity is one of principle. It is precisely not for a national court to select the issues on which it will act on the principle and the issues as to which it will not so act. Second, although the unique nature of the mandatory penalty seems clear enough, the national court should be slow in concluding that the jurisprudence of the ourt of Human Rights does not impact on any other part of the laws of the 41 states that have ratified the onvention: about which laws this court knows nothing. Third, we can only say what the onvention means in ngland and Wales. Unless there is a decision in the same terms by the courts of Scotland and Northern Ireland, murderers in those parts of the United Kingdom will continue to be dealt with under the onvention as it is understood in Strasbourg. That is perhaps a local, but none the less a pressing, example of the dangers of deviating from an international norm. 91 The second and different reason why we should exercise restraint is that where an international court has the specific task of interpreting an international instrument it brings to that task a range of knowledge and principle that a national court cannot aspire to. I of course recognise that the relationship between the national court and, on the one hand, the ourt of Human Rights and, on the other hand, 17

18 the uropean ourt of Justice is very different, in terms both of domestic and of international law. However, I would venture to refer to the observations as to the proper modesty of the national court in the face of international experience that fell from ingham J in ustoms and xcise omrs v ApS Samex [1983] 1 All R 1042, I am not prepared to hold that such considerations should be set aside just because it appears to an nglish lawyer that the issue in this case is wholly contained within the understanding and categorisation of an nglish legal institution, the mandatory life sentence. 92 I fully accept that the foregoing considerations of principle are not absolute. It may be appropriate, or necessary, to depart from them in a particular case. ut the present is, very clearly, not that case. The conclusions of the ourt of Human Rights may appear surprising, and to depart from the now current nglish understanding of the nature of the mandatory life sentence. ut those conclusions were not arrived at by accident or in ignorance, or for lack of instruction. 19 A 35. Some justifications have been suggested judicially for departing from Strasbourg jurisprudence in certain cases, for instance where the thr s reasoning was incomplete or where the thr have misinterpreted a piece of domestic legislation. 20 ut such problems do not arise where the onditions are met, as such cases would fail to meet the larity ondition. In any event, the key is that s.2 properly understood releases the domestic court from a strict obligation to follow prior domestic higher authority. How such a court then decides to take account of Strasbourg case-law suffering from such potential defects is a matter for its judgement. 36. The presumption of leading commentators is also that thr decisions will be followed by domestic courts unless there are exceptional 19 R (Anderson) v Secretary of State for the Home epartment, above, at [89]-[93]. See further Simon rown LJ (as he then was) at paras R v Spear [2002] UKHL 31; [2003] 1 A 734, at [12]-[13], per Lord ingham of ornhill and [65]-[66], per Lord Rodger of arlsferry and R v Lyons [2002] UKHL 44; [2003] 1 A 976, at [46], per Lord Hoffmann. See further, the recent judgment of Mummery LJ in opsey v WW evon lays Ltd [2005] WA iv 932, paras

19 A circumstances. 21 They have identified a number of situations in which it may be legitimate for a domestic court not to follow a decision of the thr. These include the cases where the Strasbourg jurisprudence has been overtaken by legal developments or where the thr applied the margin of appreciation. None of these exceptions applies to the present case. Such cases would also fail to meet the larity ondition. (v) Application of the principles to Qazi, Price and onnors 37. The onditions appear to be met by the thr s decision in onnors. In particular, the HR s ruling is plainly not only relevant to the dispute between the parties in the present proceedings, but also unavoidably inconsistent with the approach of the House of Lords in Qazi, as the ourt of Appeal below accepted at para 26. In addition, another division of the ourt of Appeal has relied upon onnors for the proposition that thr jurisprudence makes it clear that the right to respect for a home has inherent in it the principle that procedural fairness will be observed before the home is taken away The Interveners submit that the reasons identified by uxton LJ in Anderson apply, if anything, with greater force to the thr s decision in onnors, as there is no suggestion that the thr has failed to appreciate the nature of the singular, domestic legal provisions in issue. However, ultimately this is a matter for argument between the parties. 21 Lester and Pannick (eds), Human Rights Law and Practice (2 nd ed, 2004), para 2.2.2, fn 4; layton and Tomlinson, The Law of Human Rights (2000 and 2 nd Supp: 2003), para 3.49; and rosz, eatson and uffy, Human Rights The 1998 Act and the uropean onvention (2000), para See, for a general review, R. Masterman, Section 2(1) of the Human Rights Act 1998: binding domestic courts to Strasbourg?. 22 Moat Housing roup-south Ltd v Harris and Hartless [2005] WA iv 287, at [102], per rooke LJ. 19

20 39. or these reasons, the Interveners submit that the present case is an A appropriate one for this House to uphold the modest and clear exception to the principle of stare decisis set out at paragraph 4 above.. The justifications for stare decisis 40. Perhaps the most compelling reason in favour of strict adherence to the principle of stare decisis is certainty. 23 However, as is clear from the decision in onnors, the modest exception sought by the Interveners in this case would not create any uncertainty since: (1) the proper interpretation of s.2 HRA is tolerably clear as a matter of first principle and reasoning under the HRA itself. The explanation of how s.2 HRA should be understood and how it should operate is itself a perfectly legitimate judicial function; (2) once this House has clarified the modification to the rules of precedent made by s.2 HRA, the relevance of fresh HR judgments to the applicability of existing authority will also be tolerably clear; (3) the thr s decision in onnors is clear; (4) in any case where the thr s decision was uncertain, the domestic court would not be required to follow it; and (5) in any event, as noted by Lord Hoffmann in R v Lyons, It is obviously highly desirable that there should be no divergence between domestic and HR jurisprudence. 24 oubtless that conclusion was reached in part precisely because of the greater legal 23 or example, Lewis v Attorney-eneral of Jamaica [2001] 2 A 50 (P), 89-90, per Lord Hoffmann (dissenting) and avis v Johnson [1979] A Loc cit, at [46]. 20

21 A uncertainty that would be created by a failure to do so, other than on clear principled grounds. 41. urther support for this approach is provided by examples of cases where domestic courts have found it appropriate to depart from its previous decisions. In Khawaja, this House decided to overturn its own recent decision in Zamir. 25 Lord ridge of Harwich had regard to the fact that the case raised a question of high constitutional principle affecting the liberty of the subject and delineating the respective functions of the executive and judiciary. The majority of the Privy ouncil was prepared to depart from recent authority in Lewis in a case involving fundamental rights and where they were satisfied that their previous conclusion was wrong. 26 urther, Lord ingham of ornhill J was prepared to depart from previous ivisional ourt authority upon which substantial reliance had been placed where satisfied that the earlier decisions were clearly incorrect It is submitted that the present case also raises questions of considerable constitutional importance concerning: (1) the scheme and operation of the HRA, which is in truth both a question concerning a constitutional statute and a matter of statutory interpretation; and (2) the rights of individuals and the permissible limits of interference with them by public authorities. 25 R v Secretary of State for the Home epartment, ex parte Khawaja [1984] 1 A 74, 125-; R v Secretary of State for the Home epartment, ex parte Zamir [1980] A Lewis, above, 75-, per Lord Slynn of Hadley. 27 R v overnor of rockhill Prison, ex parte vans [1997] Q 443,

22 43. Moreover, the present case is not one where the considerations A identified by this House in the Practice Statement suggest that overruling would be inappropriate. In the Practice Statement, the House referred to the need to bear in mind: the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty in the criminal law. 44. The present case does not raise these particular causes for concern, a fact which further supports the Interveners case. In any event, this House has recently established in the case of Spectrum Plus that there are circumstances in which it may be appropriate for a judgment to be given prospective effect only where to do otherwise would undermine established dealings. 28 Again, whether or not such exceptional course is appropriate (as this House recognised in might be in some cases under the HRA) 29 is, the Interveners would submit, a question for the parties. 45. As regards decisions of the ourt of Appeal, there is authority for the proposition that the ourt of Appeal is not bound by the ordinary rules of precedent where an otherwise binding decision has been affected by changes in public international law The ourt of Appeal s judgment in the present case is striking for the summary way in which it addresses the Precedent Question which occupies only 4 out of some 34 paragraphs. In the course of these paragraphs, the ourt of Appeal only really identifies one argument 28 National Westminster ank plc v Spectrum Plus Ltd [2005] UKHL See Spectrum Plus, ibid. 30 Trendtex Trading orporation v entral ank of Nigeria [1977] 1 Q 529, XXX, per Lord enning MR. It should be added that this viewed was disapproved by onaldson J (as he then was) in Uganda o (Holdings) Ltd v overnment of Uganda [1979] 1 Lloyd s Rep

23 A against the course advocated by the Interveners and that is the principle of legal certainty and the chaos which will follow if inferior courts are to be permitted to rely on decisions of the Strasbourg ourt to justify departing from decisions of the House of Lords (para 32, per Lord Phillips of Worth Matravers). 47. The Interveners submit that this fear is over-stated in the context of the present case for the reasons given above. In particular: (1) The exception proposed would bite only where an authoritative national decision (which would presumably, if properly argued, have covered all of the operative relevant HR jurisprudence available at the date of argument) was shown by later HR authority to be wrongly decided. Such exception would not offer an opportunity to simply reargue Strasbourg authorities in each and every case, for the doctrine of stare decisis would continue to apply to any higher domestic authority which had given an authoritative interpretation on such materials. (2) As such, cases truly meeting the onditions are likely to be comparatively rare. (3) Anecdotal experience with the use of J authorities shows that national courts treat with real caution similar arguments based upon law. Indeed, it is hard to see why any more or less chaos would be created by periodic HR rulings which conflicted with national lines of jurisprudence, than by J rulings or, for that matter, decisions of the House of Lords unsettling settled lower court jurisprudence. 23

24 48. The Interveners submit that it is also appropriate for the House to have regard to the likely consequences of rejecting the present appeal. irst, there is the clear risk that litigants will be put to the additional expense and delay of appealing a decision which is certain to be overturned (in whole or in part) up the domestic judicial hierarchy. Such appeals would plainly have an effect on the efficient conduct of business in this House. urther, litigants are more likely in suitable cases to deliberately frame their cases in terms of U law because of the advantage that doing so will offer when faced with stare decisis arguments. A. onclusion 49. or the above reasons, the Interveners submit that this appeal should be allowed to the extent indicated in paragraph 4 above. 14 November 2005 THOMAS LA MAR IVAN HAR lackstone hambers Temple, London 4Y 9W

25 In the House of Lords ON APPAL ROM HR MAJSTY S OURT O APPAL (IVIL IVISION) TWN: PRI AN ORS Appellants - and - LS ITY OUNIL Respondent JUSTI and TH NATIONAL OUNIL OR IVIL LIRTIS ( LIRTY ) Interveners AS ON HAL O JUSTI AN LIRTY (INTRVNRS) Justice 59 arter Lane London, 4V 5AQ Liberty 21 Tabard Street London, S1 4LA Agents for the Interveners 25