‘Although the Human Rights Act 1998 Has Impacted on the Judicial Understanding of Precedent, the Underlying Features of the Doctrine Remain Unchanged

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University of London

Common Law Reasoning and Institutions

Essay Title: ‘Although the Human Rights Act 1998 has impacted on the judicial understanding of precedent, the underlying features of the doctrine remain unchanged.’

Student Number: 090485789

Candidate Number: 54206

The Human Rights Act 1998 came into force for almost twelve years and it was drafted in response to years of debate about whether the United Kingdom should introduce a bill of rights and if so, what kind. The Act protects human rights and civil liberties in the UK; therefore, the Act has brought rights home. However, it is necessary to consider whether its legal form serves the purpose for which the Act was enacted i.e. to create more efficient human rights culture. Therefore, to assess the impact of the Human Rights Act 1998 on Doctrine of Binding Precedent a number of question must be addressed such as the status of the decisions of the European Court of Human Rights (ECtHR), whether the new Act has remedied the deficiencies in the traditional English Legal System and created identifiable right based culture in UK and whether the Act significantly widened the power of the judges in the judicial law- making.

Traditionally, judges enjoy the judicial law-making power in the English legal system, however, this power is said to be subservient position compared to that of parliament as the parliamentary legislation is superior to that of a judge made law. It is to be noted that a judge can only respond to the situation which has arisen (cf parliament) and judge made law can be overruled by parliament. There is no doubt that on occasion judges make law. Nevertheless, their freedom is restricted by the supremacy of Parliament & by the rules of precedent and the rules of statutory interpretation. It is to be noted that ‘judicial precedent’ is dependent upon: * The identification of the principle of law stated in the courts’ judgment; * The court in which the previous case was decided; the courts are organized accorded to a hierarchical structure. Judges are bound by the decisions of the court above them in this hierarchy. This principle that courts follow judgments of courts above them is known as the doctrine of Stare decisis.

As far as, Human Rights Act is concerned, it is necessary to consider the relationship between ECtHR and domestic courts. Despite the fact that each court is bound to follow the decisions of a higher Court above it in the hierarchy, but there are two exceptions to this requirement. The first one is national court must follow the decisions of the European court of justice if it involves the European Union Law. The Second exception is that by virtue of HRA s.2 domestic courts are required to “take into account” Strasbourg jurisprudence when considering a Convention right. Labour 1997 manifesto commitment to give some effect in domestic law to ECHR, so individuals could enforce rights in UK courts. However, HRA does not ‘incorporate’ the ECHR rather it defines most of the ECHR rights as ‘Convention rights’, then it gives Convention rights special status in UK law. S2 HRA provides that any court of tribunal dealing with Convention rights ‘must take into account’ the case law which has developed under the Convention (ie case law from ECtHR in Strasbourg). This does not mean courts must follow Strasbourg case law. Moreover, as regards the interpretative obligation, S3 HRA provides that where it is possible both primary and secondary legislation should be read (interpreted) in a way to make the legislation compatible with Convention rights. However, where this is not possible, the legislation prevails, and is not invalidated. Thus parliamentary supremacy is preserved. The principle are now well established as a result of House of Lords cases such as R. v A (No.2), Re S (Children) (Care Order: Implementation of Care Plan) and Ghaidan v Goden-Mendoza.

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