Eugenia Suarez Siempre

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 Setting precedents

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Mr007



Posts : 108
Join date : 2011-02-03

PostSubject: Setting precedents   Wed Nov 16, 2011 10:45 am



Giving evidence to a joint parliamentary committee on human rights, Lord Judge - the Lord Chief Justice of England and Wales - said domestic courts had not been "sufficiently flexible" in the way that they had treated judgements of the ECHR and other supra-national courts.
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“Start Quote

We have got to be very careful not to treat the Human Rights Act as encompassing or bringing into operation by the European Convention something which, as a society, do not all actually believe in. We do believe in these things”

End Quote Lord Judge

"Most of the decisions are fact-specific decisions, they are not deciding any point of principle. They are just saying 'here are the facts, here is the answer'. That is not precedent for anything.

"There has been a tendency to follow much more closely than I think we should.

"I think there is a realisation of that and I think judges generally are aware of this and are examining decisions of the European court that much more closely to see whether what you can spell out of it is a principle or just a facts-specific decision."
'Final court'

The Conservatives want to replace the Human Rights Act (HRA) - through which the European Convention is incorporated into UK law - with a British Bill of Rights but Lib Dem leader Nick Clegg has insisted the HRA must remain in force.

Lord Judge said the principles of the European Convention - of which the UK was a founding signatory - reflected English common law and were things "we would all espouse" such as proscribing arbitrary detention and torture, guaranteeing the right to trial and protecting family life.

"We have got to be very careful not to treat the Human Rights Act as encompassing or bringing into operation by the European Convention something which, as a society, we do not all actually believe in.

"We do believe in these things."

He added: "I am afraid in the end you have a court system and, under the act you have given us, the ECHR is the final court that decides what the Convention means. You cannot get around that."

If Parliament was unhappy about European court rulings, he said it was up to legislators to decide whether to amend the Human Rights Act, which he said merely obliges the UK to "take account" of decisions taken in Strasbourg.

Changing the law to state the UK was not bound by European Court decisions would be "very simple", he suggested, although this would put the UK at odds with its treaty obligations.

"You will have to deal with the question of what you want the law to be. You decide that. We don't."

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