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Tuesday, 23 February 2010

Sovereignty once more

Internal blog once more:

In a previous blog commenting on the case of Secretary of State for the Home Department v AF and other appeals (Justice intervening) [2009] All ER (D) 84 (Jun), I suggested that the judicial committee of the House of Lords found itself in a position analogous to the unfortunate Fortunato in Poe’s The Cask of Amontillado, since they were faced with a decision of Strasbourg with which they patently disagreed, yet considered themselves powerless to do anything about it. Admittedly it wasn’t quite on the same scale as the decision which Fortunato didn’t like – being chained to a dungeon wall and immured – but they obviously felt about as powerless.

In the story Fortunato, who was tricked into entering the catacombs when drunk, sobers up pretty quickly once he realises his predicament and makes a few attempts to escape. Similarly, now their Lordships have turned into the Supreme Court, they are indulging in a bit of chain-rattling themselves. In R v Horncastle and another [2009] All ER (D) 88 (Dec), the Justices had this to say about the suggestion they should follow another wrong Strasbourg judgment:

The requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case.

In other words, Strasbourg just doesn’t understand, so we will kindly give them the chance to mend their ways.

It remains to be seen whether the Europeans will have any of this. In the story, of course, Fortunato’s efforts came to nothing and his body remained in the same place fifty years later. I have a similar suspicion about the Supreme Court vis a vis Europe.

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