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The Use of Foreign Jurisprudence in Human Rights Cases Before the UK Supreme Court

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The Use of Foreign Jurisprudence in Human Rights Cases Before the UK Supreme Court The Use of Foreign Jurisprudence in Human Rights Cases before the UK Supreme Court Hélène Tyrrell 2014 Submitted in partial fulfilment of the requirements of the Degree of Doctor of Philosophy Queen Mary, University of London Department of Law 1 I, Hélène Grace Tyrrell, confirm that the research included within this thesis is my own work or that where it has been carried out in collaboration with, or supported by others, that this is duly acknowledged below and my contribution indicated. Previously published material is also acknowledged below. I attest that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge break any UK law, infringe any third party’s copyright or other Intellectual Property Right, or contain any confidential material. I accept that the College has the right to use plagiarism detection software to check the electronic version of the thesis. I confirm that this thesis has not been previously submitted for the award of a degree by this or any other university. The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. 31 January 2014 2 Acknowledgements Thanks are due to a great deal too many people than can be named here. A modest list must nevertheless include Kate Malleson and Merris Amos, who supervised the project from beginning to end, made constructive suggestions and provided invaluable support along the way. The study would also have been very different without the contributions of those who agreed to be interviewed: ten Justices of the Supreme Court, one Lady Justice of Appeal and the Supreme Court Judicial Assistants. A number of people donated time and energy to read and comment upon drafts. They are, in no particular order: Jason Lagrue, Matthew Walker, Vivienne Inmonger, Jessica Breen, Rebecca Roffe, Charlotte Rushworth, Michael Walker, Mary Walker, Jacqui Lagrue, Kathryn Lagrue and Alexander Horne. Remaining errors are my own. Many more supported (and endured) the project in other ways and deserve greater thanks than can be expressed in these short words. They will know who they are. 3 Abstract This thesis is the first major study of the UK Supreme Court’s use of jurisprudence from foreign domestic courts in human rights cases. It contributes to the debate on judicial comparitivism by asking when, how and why the Supreme Court uses foreign jurisprudence, as well as whether the Court should be making greater use of it. The research findings are drawn from quantitative and qualitative analysis of judgments handed down by the Supreme Court during its first four years (2009-2013). These are supported by evidence obtained through interviews with ten Justices of the Supreme Court, one Lord Justice of Appeal and the eight Supreme Court Judicial Assistants. In the absence of legislative guidance, the use of foreign jurisprudence is neither consistent nor systematic. Different Justices use foreign jurisprudence to different degrees and for different reasons. The main use of foreign jurisprudence is as a heuristic device: it provides the Justices with a different analytical lens through which to reflect on their own reasoning about a problem. Some Justices also use foreign jurisprudence when interpreting a common legislative scheme and to support their conclusions. As a result, the Justices use foreign jurisprudence differently according to the audience to whom their reasons are addressed. Thus foreign jurisprudence can assist the Supreme Court to enter into dialogue with the Strasbourg Court. However, this thesis does not support theories of transjudicial dialogue with other domestic courts; the evidence does not indicate that the Supreme Court considers itself to be part of global conversation. Further, the use of foreign jurisprudence is limited by practical barriers including, but not restricted to, time pressures, the availability of comparative resources and the greater use of plurality style judgments. These barriers are worth addressing if the Supreme Court is to fully utilise the heuristic value of foreign jurisprudence. 4 Table of Contents ACKNOWLEDGEMENTS .......................................................................................... 3! ABSTRACT ................................................................................................................ 4! ABBREVIATIONS ...................................................................................................... 7! TABLE OF CASES ..................................................................................................... 8! TABLES AND FIGURES .......................................................................................... 12 ! ! 1! INTRODUCTION ................................................................................................ 13! 1.1! A NOTE ABOUT STYLE .................................................................................... 23! 2! THE EXISTING LITERATURE ........................................................................... 24! 2.1! DOES THE UK SUPREME COURT USE FOREIGN JURISPRUDENCE? ................... 27! 2.2! IS FOREIGN JURISPRUDENCE USED IN HUMAN RIGHTS CASES? ......................... 35! 2.3! WHERE DOES FOREIGN JURISPRUDENCE COME FROM? ................................... 39! 2.4! WHY DO JUDGES USE FOREIGN JURISPRUDENCE? .......................................... 52! 3! RESEARCH METHODOLOGY .......................................................................... 61! 3.1! RESEARCH PARAMETERS .............................................................................. 61! 3.1.1! Foreign jurisprudence ........................................................................... 62! 3.1.2! Use of foreign jurisprudence ................................................................. 64! 3.1.3! Courts and Judges ............................................................................... 65! 3.1.4! Human Rights Cases ............................................................................ 66! 3.2! RESEARCH METHODOLOGY ........................................................................... 68! 3.2.1! Empirical research ................................................................................ 69! 3.2.2! Interviews ............................................................................................. 78! 3.2.3! Primary Subjects .................................................................................. 80! 3.2.4! Questions ............................................................................................. 82! 3.2.5! Secondary Subjects .............................................................................. 85! 3.2.6! Reliability of Interview Evidence ........................................................... 87! 3.2.7! Secondary Sources .............................................................................. 92! 4! THE BASIS FOR USING FOREIGN JURISPRUDENCE .................................. 93! 4.1! PERSUASIVE AUTHORITY ................................................................................ 95! 4.1.1! Cherry picking ..................................................................................... 103! 4.1.2! Supranational jurisprudence ............................................................... 106! 4.2! LEGITIMACY OF USING FOREIGN JURISPRUDENCE .......................................... 114! 4.3! CONCLUSIONS ............................................................................................. 139! 5! HOW IS FOREIGN JURISPRUDENCE USED? .............................................. 142! 5.1! EXTENT TO WHICH FOREIGN JURISPRUDENCE IS USED ................................... 143! 5.2! THE INDIVIDUAL APPROACHES OF THE JUSTICES ........................................... 146! 5.3! PRACTICAL MATTERS: ACCESSING FOREIGN JURISPRUDENCE ........................ 153! 5.4! THE PREFERENCE TOWARDS COMMON LAW JURISDICTIONS ........................... 163! 5.5! THE EFFECT OF CHANGING JUDGMENT STYLES ............................................. 179! 5.6! THE DECLINE OF COMPARATIVISM IN HUMAN RIGHTS CASES ........................... 188! 5.7! CONCLUSIONS ............................................................................................. 193! 5 6! FOREIGN JURISPRUDENCE AS A HEURISTIC DEVICE ............................. 201! 6.1! GAP FILLING ................................................................................................ 204! 6.2! ANALYTICAL LENS ........................................................................................ 212! 6.3! REASSURANCE ............................................................................................ 217! 6.4! CONCLUSIONS ............................................................................................. 221! 7! FOREIGN JURISPRUDENCE USED FOR CONSISTENCY ........................... 225! 7.1! USING FOREIGN JURISPRUDENCE TO PROMOTE UNIFORMITY ......................... 226! 7.2! UNIFORMITY UNDER THE HUMAN RIGHTS ACT .............................................. 229! 7.3! ABSENCE OF A SUPRANATIONAL COURT ........................................................ 241! 7.3.1! Background from non-human rights cases ......................................... 243! 7.3.2! Refugee Convention Cases ................................................................ 249! 7.4! CONCLUSIONS ............................................................................................
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