The Supreme Court and Europe
Relationship with the European Court of Human Rights
Before the Human Rights Act was passed by Parliament in 1998 it was not possible for an individual in the UK to challenge a decision of a public authority on the grounds that it violated his or her rights under the European Convention of Human Rights (ECHR), within the courts of the UK. Individuals instead had to take their case directly to the European Court of Human Rights in Strasbourg (ECtHR).
Once the Act came into force on 2 October 2000, individuals could claim a remedy for breaches of their Convention rights in the UK courts. An individual who thinks that his or her Convention rights have not been respected by a decision of a UK court may still bring a claim before the ECtHR, but they must first try their appeal in the UK courts.
It is the duty of all such courts, including the UK Supreme Court, to interpret all existing legislation so that it is compatible with the ECHR; so far as it is possible to do so. If the court decides it is not possible to interpret legislation so that it is compatible with the Convention it will issue a 'declaration of incompatibility'.
Although a declaration of incompatibility does not place any legal obligation on the government to amend or repeal legislation, it sends a clear message to legislators that they should change the law to make it compatible with the human rights set out in the Convention. In giving effect to rights contained in the ECHR the Court must take account of any decision of the ECtHR in Strasbourg. No national court should "without strong reason dilute or weaken the effect of the Strasbourg case law" (Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] UKHL 26).
However, in rare circumstances, the Supreme Court has effectively sent issues back to Strasbourg for reconsideration. For example, in 2009 the Court declined to follow a decision of the ECtHR in R v Horncastle. This case raised the question whether there could be a fair trial when a defendant was prosecuted based on evidence given by witnesses who subsequently did not attend the trial in person and therefore were not available to be cross-examined by the defendant.
Lord Philips said that although the requirement to "take into account" the Strasbourg jurisprudence would "normally result" in the domestic court applying principles that are clearly established by the ECtHR. "There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course".
In December 2011, the ECtHR gave judgment in Al-Khawaja, a case that raised the same issue as in Horncastle. Commentators noted how the Strasbourg court had evidently taken into consideration the UK Supreme Court's judgment in the latter case, demonstrating the concept of 'dialogue' between the two courts.
This concept was also demonstrated in the two courts' determinations of a string of cases relating to the proportionality test to be applied when local authorities and other social landlords seek to repossess a property that constitutes a person's home for the purposes of article 8 of the ECHR (see Manchester City Council v Pinnock [2010] UKSC 45; Mayor and Burgesses of the London Borough of Hounslow v Powell [2011] UKSC 8; Kay v UK [2010] ECHR 1322).
The UK's exit from the European Union does not change its membership of the Council of Europe, its being a signatory to the ECHR, or the jurisdiction of the European Court of Human Rights, as these are separate from the European Union.
References to the Court of Justice of the European Union
Like other final courts, the UKSC is, in the areas of European law in which the United Kingdom has accepted the jurisdiction of the Court of Justice of the European Union (CJEU), under the duty imposed by Article 267 of the Treaty on the Functioning of the European Union to ask the CJEU to give preliminary rulings concerning:
- the interpretation of the Treaties; and
- the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
where such a question is raised in proceedings before it and it considers that a decision on the question is necessary to enable it to give judgment.
Where an application for permission to appeal raises such a question, the UKSC does not, when considering whether in the light of that question to grant permission or to make a reference to the CJEU, apply a test of whether the question is of general public importance.
During the implementation period (i.e. until 31 December 2020), the system of references will continue. It remains to be seen what the legal position will be after the implementation period.