UK v Strasbourg

Kay and others v Lambeth London Borough Council and another; Leeds City Council v Price and others [2005] 3 All ER 71; HL TLR 10 March

Section 2 of the Human Rights Act 1998 requires UK courts to take Strasbourg judgments and opinions into account and s6 makes it unlawful for domestic courts, as public authorities, to act incompatibly with a Convention right. Nevertheless, adherence to precedent is a cornerstone of the legal system by which some degree of certainty in legal matters, to be regarded as at least as valuable a part of justice as perfection, was achieved. A fundamental reason for adhering to our rule of domestic precedent was that effective implementation of the Convention depended on constructive collaboration between the Strasbourg court and national courts. The former authoritatively expounded the interpretation of the rights embodied in the Convention and its protocols, as it had to do if the Convention was to be uniformly understood by all Member States. But in its decisions on particular cases, it accorded a margin of appreciation, often generous, to the decisions of national authorities and attached much importance to the facts of the case. It was by decisions of national courts that the domestic standard had to be initially set; until those decisions the ordinary rules of precedent should apply. To that rule there is one partial exception demonstrated in D v East Berkshire Community NHS Trust [2005] 2 All ER 314 where the Court of Appeal had been entitled to depart from a decision of the House of Lords on the basis that given its exceptional facts, it could not survive the introduction of the Human Rights Act 1998. But such a course was not permissible save where the facts were of that extreme character. Accordingly, the Court of Appeal was right in holding that it was bound by the decision of the House of Lords in Harrow London Borough Council v Quazi [2004] 1 AC 983 (where a public authority landlord had an unqualified right to possession, a defence based only on the occupier’s personal circumstances was not permissible) which took precedence over the Strasbourg decision in Connors v United Kingdom (Application No 66746/01) (2004) 40 EHRR 189 (where a gypsy family’s article 8 right was held to be infringed by a possession order in favour of a local authority made by the UK court). In any event Connors was decided on narrow grounds relating to its own fact. A requirement that the article 8 issue had to be considered by the court in every case by taking into account the defendant’s personal circumstances would go further than was justified in the light of the Strasbourg jurisprudence. It would drive a deep wedge into the domestic system for handling possession cases and would be a colossal waste of time and money. Judges in the county courts faced with such a defence should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupier’s Convention rights.