Unconventional?
Date: 11 December 2009
Authors: David Lock
Issue: Vol 159, Issue 7397
Categories: Features, Human rights, Public
Every law student learns how the theory of precedent works in practice. Statute law has supreme authority, but after that the House of Lords, or now the Supreme Court, binds the Court of Appeal; the Court of Appeal binds the High Court.
Precedent is ageless. It does not matter how long ago the Court of Appeal pronounced on a matter; no High Court judge can overturn that decision until it is distinguished by another Court of Appeal or overturned by the Supreme Court. But what happens if a lower court has to wrestle with a Human Rights Act 1998 point which has not been raised in previous cases?
Public bodies
The Human Rights Act 1998 (HRA 1998) s 6 provides that all public bodies are required to comply with the European Convention on Human Rights (the Convention). Judges are public bodies for these purposes. Hence judges are required by an Act of Parliament to produce judgments which comply with the Convention. If there is a conflict, which way should a judge turn if he or she has to choose between following a Court of Appeal case or deciding the case in a way that is Convention complaint?
In Culnane v Morris & Anor [2005] EWHC 2438, [2006] 2 All ER 149 Eady J had to consider the effect of the Defamation Act 1952, s 10 upon the plea of qualified privilege. The Court of Appeal had decided the meaning of the section in Plummer v Charman [1962] 1 WLR 1469 which held that its effect was to impose significant restrictions upon a candidate’s scope for pleading privilege in respect of words published during an election period. Eady J said that, despite the restricted meaning in Plummer v Charman “I am bound by the requirements of HRA 1998 to do the best I can to construe legislation in a way that is consistent with the rights guaranteed by the European Convention”.
He then asked whether the restricted meaning was consistent with the obligations of the Convention and decided they were not, within Art 10(2) “proportionate to the achieving of a legitimate aim”. He therefore refused to follow Plummer v Charman and, in the process side-stepped the decision of the Court of Appeal.
Twist
The same issue came up recently before Tugendhat J in Miller v Bull [2009] EWHC 2640 (QB), [2009] All ER (D) 281 (Oct) but the twist here was that the relevant Court of Appeal case was heard after HRA 1998 became part of UK domestic law, but no human rights points were taken in the case.
In Ahmed v Kennedy [2002] EWCA Civ 1793, [2002] All ER (D) 171 the Court of Appeal had decided that there was no power to extend the time to comply with the formalities required under election law. In particular the Election Petition Rules 1960 require that the petitioner shall not only provide security for costs in an election case but shall also notify all the other parties of the amount and nature of the security. In Ahmed v Kennedy the Court of Appeal decided that if the other parties are not notified within the period set out in the rules, the whole election petition must fail.
No arguments were run in Ahmed v Kennedy to the effect that such a drastic rule was itself a breach of both Art 6 of the Convention and Art 3 of protocol 1.
In Miller v Bull Mr Miller, as a litigant in person at that stage, sought and failed to comply with the Election Petition Rules which are of byzantine complexity. He provided security but failed to notify the other parties he had done so.
When he applied to extend time his case was put on the basis that the absence of a discretion in a case where it was in the wider public interest for issues to be tried breached both Art 6 and Art 3 of Protocol 1.
The judge accepted those arguments holding that an approach without any discretion was too restrictive to comply with the Convention. However he went on to hold that he could, in effect, depart from the decision of the Court of Appeal because Convention arguments were not run in that case, even though the case was decided after HRA 1998 came into effect. He therefore extended time to comply with the notice provisions under the Election Rules and the petition was allowed to proceed.
Impact
The impact of these decisions is to create a breach in the doctrine of precedent. The requirement to comply with the Convention arises from the highest authority of all in the UK courts, namely an Act of Parliament (with the possible exception of EU law of course as a result of the Factortame decisions). Thus, on one view, there is no departure at all from precedent because all that was decided was that the obligation to follow the law as set down by Parliament took precedence over judge-made law.
However, in practical terms, these cases amount to a gaping hole in the precedent wall. They mean that new human rights points can be taken at whatever level they first arise and notwithstanding previous cases which would otherwise be binding. The doctrine of precedent will only apply where a Court of Appeal has ruled specifically on the relevant human rights point, but otherwise the lower court is free to express its own view of the merits of the point.
David Lock is a barrister at No 5 chambers. He was counsel for the petitioner in Miller v Bull
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