Thankyou Nigel, I stand corrected on European Court of Justice cases,
and it looks like we're in agreement on the effect of ECHR cases.
Carolyn Howard
Solicitor
Leicester City Council
email: [log in to unmask]
ext: 29 6498
tel: 0116 252 6498
(Office hours: Mon a.m./Tue/Thu)
>>> Nigel Roberts <[log in to unmask]> 08/05/2008 11:37 >>>
Carolyn Howard wrote:
> Decisions of European courts are not binding on UK courts (as decided
in the House of Lords in Kay v Lambeth Council) but are persuasive. Of
course, as the ultimate right of appeal on a UK decision is to the
European Court any decision reached by the latter is significant, at
least.
>
The (Luxemburg) European Court of Justice decisions ARE binding in
English Law in actions between private parties as well as against
emanations of the State (that is to say, they have binding horizontal
and vertical effect).
ECJ decisions only refer to EC Treaty Rights but they _must_ be
followed
(see s.3(1), European Communities Act 1972)
(Strasburg) European Court of Human Rights decisions are declaratory
and
although UK courts "are not strictly required follow Strasburg
rulings"** in the usual common law sense (Kay v Lambeth [2006] UKHL 10
at 28) ) ECtHR decisions ARE binding, in the that High Contracting
Parties to the Convention have committed to secure to everyone within
their jurisdiction the Conventional rights and freedoms and have given
a
binding undertaking in international law to “abide by the final
judgments of the Court in any case to which they are parties” (see
Article 46 of the Convention) and action may be take by the Council of
Europe's Council of Ministers against a contracting party who fails to
do so, up to expulsion from the CoE (although this has never
happened).
This, coupled with the explicit statutory duty of all UK courts under
domestic law (the 1998 Act) now to 'take account' of the Convention and
Conventional jurisprudence in reaching their decisions, means, in my
view, that ECtHR judgments are effectively binding.
There is only a narrow scope to depart from ECtHR decisions where there
are cases on their own facts "peculiarly within the knowledge of
national authorities."
As Lord Bingham said, also in Kay v Lambeth:
"That Court [the ECtHR] is the highest judicial authority on the
interpretation of those rights, and the effectiveness of the Convention
as an international instrument depends on the loyal acceptance by
member
states of the principles it lays down"
Nigel Roberts
[** this comment about strict following is entirely unsurprising, since
the ECtHR is not a court of appeal or court of reference like the ECJ]
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