Strasbourg has spoken, the case is closed

The chasm between Strasbourg and London is at its widest for some time. There are countless examples of cases in which the British Courts have dismissed a claim for a breach of human rights and then the appellants have successfully appealed to Strasbourg: S and Marper v. UK; Gillan and Quinton v. UK to name just two recent examples.

Lord Hoffman, in his first extra-judicial comments made shortly before retiring as a Law Lord, spoke of his concern about the legitimacy of the Strasbourg Court. Lord Rodger in AF (2009) UKHL 28 (judicially but rather abruptly) said rather laconically “Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed”. And most recently, Lord Chief Justice, Igor Judge, has urged the lower courts to “save the common law”, and rely on common law precedents rather than surrendering to Strasbourg.

Lord Kerr has given the staunchest judicial backing to the jurisprudence of the Strasbourg court:

“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”.

He does however talk of his disconcertment that only Ireland and the United Kingdom have legislative obligations to “take account of” Strasbourg jurisprudence.

I sit closer to Lord Kerr on this issue. There is much to gain from the jurisprudence from Strasbourg (as Strasbourg will also gain much from our senior judiciary). But the chasm is perilously wide, and with further appeals soon to be heard by the Grand Chamber in Al-Skeini and Al-Khawaja, the gap could become inoperable.