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Lord Kerr and Professor John Jackson at UCD

The full text of Lord Kerr’s J M Kelly Memorial Lecture, given at University College Dublin on 20 November 2009 has now been made available.  We blogged about the lecture when it was given, referring to the summary on the excellent “Human Rights in Ireland Blog“.

Lord Kerr has now revised the text of the Lecture, the full title of which is “The Conversation between Strasbourg and National Courts – Dialogue or Dictation?”

Lord Kerr begins his lecture by pointing out that, among the Council of Europe members, only Ireland and the UK have a legislative stipulation that the domestic courts should take account of Strasbourg jurisprudence.  He considers the impact of Strasbourg case in a number of countries, discussing the decision of the Italian Constitutional Court in Sentenza – in which it was decided that Strasbourg rulings which conflict with provisions of the Italian Constitution “lack legitimacy”.   He also points out that in France it appears that the authority of European jurisprudence “remains negligible”.

After considering the legislative background to section 2 of the Human Rights Act (which provides that the domestic courts to “must taken into account Strasbourg jurisprudence”) Lord Kerr goes on to discuss the decision in Secretary of State for the Home Department v AF ([2009] UKHL 28) – the control order case.  In that case the House of Lords felt obliged to follow the decision of the Grand Chamber in A v United Kingdom (Judgment of 19 February 2009) Lord Keer concludes that the House felt compelled to follow that decision for three reasons:  First the Government had asked the Grand Chamber to deal with the very issues which arose in AF.  Second, the Grand Chamber had given an unambiguous ruling on those issues.  Third, the judgment was directly in point.

Lord Kerr then goes on to discuss Lord Hoffmann’s Judicial Studies Board lecture of May 2009.  He disagrees with what he takes to be Lord Hoffmann’s suggestion that the Court of Human Rights should cease to deal with individual petitions, for two reasons.  The first is pragmatic – as there is no realistic possibility of this happening.  The second is principled because

“If we did not have the ECtHR acting in its current jurisdiction we would be deprived, I am convinced, of an invaluable, irreplaceable vein of jurisprudence.  The case-law of the ECtHR has, I strongly believe, enriched and enlivened our own human rights law … the unrivalled access that its jurisprudence gives us to experience of how human rights issues are resolved throughout the forty seven member states of the Council of Europe is one which we would be unwise to abandon“

In section of the lecture added since delivery, Lord Kerr deals with the decision of the Supreme Court in R v Horncastle [2010] UKSC 14)(our case comment is here).

He then discusses the future – with the opportunities for dialogue between Strasbourg and national courts.  He makes the interesting and important point that it will be necessary

for national courts to have or, if they do not already possess it, to acquire a general awareness of considerations in civil law jurisdictions that might impel a conclusion on a particular issue that would be incongruous with a sensible and workable result in a common law setting.  I consider that national courts should not be reticent in explaining why, because of fundamental differences between the common law tradition and civil law systems of law, a solution geared to meet the requirements of one will not necessarily be suitable for the other.

He concludes by suggesting that making the Strasbourg court aware of these problems might stimulate a more generous approach to the margin of appreciation doctrine and might lead to reconsideration of the setting of an absolute standard for the disparate jurisdictions in the Council of Europe.

This is an interesting and stimulating lecture which we hope will soon be made available on the Supreme Court’s website.

http://ukscblog.co.uk/case-comment-r-v-horncastle-2009-uksc-14