On 29 January 2010, Lady Justice Arden took part in a “Seminar to mark the official Opening of the Legal Year of the European Court of Human Rights”.   Details of the Seminar can be found on the Court of Human Right’s website here.  The proceedings at the seminar can be watched here.

The text of Lady Justice Arden’s “intervention” is available here.  In it she seeks to “pose some questions about what makes for effective supranational adjudication by the Strasbourg court.”  Arden assures us “we all gain more than we lose by having the Strasbourg Court”. But she identifies ‘a toolkit’ of suggestions for improving the system of supranational adjudication of human rights – (1) more dialogue between national judges and those in Strasbourg as well as between judges of different national courts; (2) more subsidiarity; (3) more temporal limitations; and (4) clearer judgments. She has previously expounded each of these ideas in more detail in her Sir Thomas More lecture, Peaceful or Problematic?  The Relationship Between National Supreme Courts and Supranational Courts in Europe.

Most of the seminar focuses on the first of these ‘tools’. Critical of the Ullah approach in the UK (which sees the function of the ECtHR as authoritative on interpretation of the Convention, which domestic courts must follow), she argues that a key aspect of increasing dialogue is allowing a national court to “send a message to the Strasbourg court by reflecting its views on the Strasbourg jurisprudence in its judgment either in a case before it goes to Strasbourg or in some other case raising the same issue”.

She identifies the issue of Strasbourg misunderstanding a domestic legal position. She is therefore supportive of the decision of the Supreme Court of the UK in Horncastle, which she points out didn’t refer to Ullah at all, but instead “approved a departure from Strasbourg jurisprudence in the knowledge that the same point was likely to come before the Grand Chamber . . . “ She concludes: “It is important to give both the national and supranational court the chance to think again”.

Lady Justice Arden’s views are part of a series of recent ‘judicial lectures’ on the respective roles of national courts, Strasbourg and Convention rights. For example, Baroness Hale’s 2008 JUSTICE Tom Sargent memorial lecture Law Lords at the Margin: Who defines Convention Rights. Again, there is criticism of Ullah, with Lady Hale suggesting that national courts should be confident in interpreting Convention rights beyond Strasbourg jurisprudence. She too draws on ideas of ‘dialogue’ through judgments. Similarly, Lord Kerr’s 13th John M Kelly Memorial lecture at the University College Dublin School of Law, The Conversation between the European Court of Human Rights and National Courts: Dialogue or Dictation tackles similar issues (The text of the lecture has not yet been published but the Human Rights in Ireland blog has a report here).