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Thursday, October 20, 2011

The Lord Chief Justice Lord Judge should apologise or resign

The Lord Chief Justice Lord Judge should apologise or resign

UK courts 'not bound by Strasbourg'

By Wesley Johnson

Thursday, 20 October 2011

British courts do not need to abide by the rulings of the European Court of Human Rights, the most senior judge in England and Wales has said.

The Lord Chief Justice Lord Judge said that while courts should always take the rulings of the Strasbourg-based court into account, they were not bound by them.

His comments will fuel the controversial debate over the Human Rights Act as a commission set up by David Cameron looks at the case for a British Bill of Rights.

But in giving evidence to the Lords Constitution Committee, a split over the issue emerged between two of Britain's most senior judges.

Lord Phillips, the president of the Supreme Court and a former Lord Chief Justice, told the peers: "In the end, Strasbourg is going to win so long as we have the Human Rights Act and the Human Rights Act is designed to give effect to that part of the rule of law which says we must comply with the convention.

"If we have Strasbourg saying, 'You can't do that', it raises some very real problems."

But Lord Judge said: "I would like to say that maybe Strasbourg shouldn't win and doesn't need to win."

He went on: "For Strasbourg there is a debate yet to happen, it will have to happen in the Supreme Court, about what we really do mean in the Human Rights Act, what Parliament means in the Human Rights Act, when it said that courts in this country must 'take account' of the decisions of the European Court of Human Rights (ECHR).

"I myself think it's at least arguable that, having taken account of the decision of the court in Strasbourg, our courts are not bound by them.

"We have to give them due weight, and in most cases obviously we would follow them, but not I think necessarily."

The Prime Minister's decision to set up a commission to consider a British Bill of Rights came after the Government lost a legal challenge to the ECHR ruling that the UK's blanket ban on prisoners voting was unlawful.

Speaking in April, Justice Secretary Kenneth Clarke warned that the ECHR has been "rather too ready to substitute its own judgment for that of national courts".

It was failing to give enough weight to the domestic legal system and was not allowing for "genuine differences of national approach", he said.

The Strasbourg-based court has been widely criticised in the UK for assuming a legislative function beyond its powers.


Comment: It would be absurd to allow the Individual to challenge the State by petition to the European Court of Human Rights, and then allow the State the discretion to ignore the Court's decision when the State is the losing party to the action.

The Lord Chief Justice Lord Judge has failed to take into account the European Convention on Human Rights and has only taken into account the Human Rights Act 1998.

Article 44 – Final judgments

The judgment of the Grand Chamber shall be final.
The judgment of a Chamber shall become final:
when the parties declare that they will not request that the case be referred to the Grand Chamber; or
three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or
when the panel of the Grand Chamber rejects the request to refer under Article 43.
The final judgment shall be published.

Article 46 – Binding force and execution of judgments

The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

Will the Lord Chief Justice Lord Judge now do the honourable thing and apologise for his error or failing this resign?

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