The Human Rights Act and the Doctrine of Precedent

Pattinson, Shaun D.

Abstract

Conflicts between domestic precedents and subsequent decisions of the European Court of Human Rights have resulted in the lower courts following prior domestic decisions even when convinced that they will be overruled on appeal. The standard interpretation of the decision of the House of Lords in Kay v Lambeth holds the lower courts to domestic precedents that are manifestly inconsistent with the subsequent Strasbourg jurisprudence and admits only the most limited exception. This paper advances an alternative approach to the relationship between the domestic courts' obligations under the Human Rights Act 1998 and the doctrine of precedent by analysis of the nature of the doctrine of precedent and the reasons offered by Lord Bingham in his leading judgment in Kay. This analysis is then extended and applied to two recent cases in which the lower courts have considered themselves bound by a decision of the UK's highest appeal court that fails to give due effect to the applicants' Convention rights.

Citation

Pattinson, S. D. (2015). The Human Rights Act and the Doctrine of Precedent. Legal Studies, 35(1), 142-164. https://doi.org/10.1111/lest.12049

• Journal Article Type: Article
• Acceptance Date: Dec 27, 2013
• Online Publication Date: Mar 17, 2014
• Publication Date: 2015-03
• Deposit Date: Jan 1, 2014
• Publicly Available Date: Mar 17, 2016
• Journal: Legal studies
• Print ISSN: 0261-3875
• Electronic ISSN: 1748-121X
• Publisher: Cambridge University Press
• Peer Reviewed: Peer Reviewed
• Volume: 35
• Issue: 1
• Pages: 142-164
• DOI: https://doi.org/10.1111/lest.12049
• Public URL: https://durham-repository.worktribe.com/output/1442875