Human Rights in the UK and the Influence of Foreign Jurisprudence sits in Hart’s ‘Studies in Comparative Public Law’ series, which includes two closely related works: The Use of Foreign Precedents by Constitutional Judges by Tania Groppi and Marie-Claire Ponthoreau; and Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts by Elaine Mak (which BACL members might also remember from the 2014 annual seminar, ‘Transnational Judicial Conversations’).
The focus of this book is on judicial reasoning at the UK Supreme Court, explaining the patterns of use and non-use of rulings from foreign domestic courts (‘foreign jurisprudence’) in UK human rights cases. In particular, it provides evidence on the influence of foreign jurisprudence in the UK Supreme Court, as well as the reasons or purposes for which foreign jurisprudence is used. Results are drawn from quantitative and qualitative research methods, drawing on data from the first eight years of Supreme Court activity and interviews with active and former members of the senior judiciary.
Perhaps unusually, an entire chapter (two) is devoted to an explanation of research methodology. It was a huge support to be able to absorb the warnings and advice given by other researchers in the field and it felt fair to explain the methodological choices in similar terms. In particular, it is worth reiterating that ‘foreign jurisprudence’ here encompasses foreign domestic law and does not refer to the jurisprudence of international courts. It thereby excludes, for example, the jurisprudence of the European Court of Human Rights in Strasbourg from the quantitative analysis of foreign case citations. Although the judgments of that court are not binding, the explicit direction to take it into account (under s.2 of the Human Rights Act 1998) gives the Strasbourg jurisprudence a different character to the decisions of foreign domestic courts. For more obvious reasons, ‘foreign jurisprudence’ also excludes the decisions of supranational courts which UK courts are bound to follow. During the research period, and at the time of writing, this included decisions of the Court of Justice of the European Union under section 3 of the European Communities Act 1972. The ‘influence’ of foreign jurisprudence is taken broadly and analysed through any contribution from explicit citation to a passing reference—including references that do not form a part of the published judgment (although, for obvious reasons, these implicit references not form part of the quantitative data sample).
Chapter three begins with an analysis of the legitimacy and authority of foreign judgments in the UK. In short, aside from some legislative steer to prioritise relevant supranational jurisprudence, there are no rules governing judicial comparativism. The absence of clear guiding principles leaves the judiciary with the discretion to use or ignore foreign judgments, in the same way as any persuasive authority. But foreign jurisprudence also represents an unusual kind of persuasive authority. For example, it is unclear that the usual distinction between persuasive and binding authority (being authoritative by virtue of content and source respectively) works in the context of foreign jurisprudence. Both the content and source of a foreign judgment is likely to be relevant to its persuasiveness. The relevance of foreign precedents is also likely to be context dependent. Understanding the influence of foreign jurisprudence therefore requires a deeper understanding of the purposes that these sources can serve—the focus of chapter four. The aim in chapters five, six, seven and eight is therefore to identify the way in which foreign jurisprudence is used at the Supreme Court and the purposes that these sources serve.
Chapter five is the heart of the book, setting out the reality of citations of foreign jurisprudence at the Supreme Court. The data demonstrates that judges are using the jurisprudence of foreign domestic courts: of the 533 cases handed down by the Supreme Court in the first eight years, explicit citations of foreign jurisprudence were found in 157, just under 30 per cent of the total. As others have found, judicial individualism is important in this context. For example, Lord Collins is known to have been a more enthusiastic user of foreign jurisprudence, particularly from the United States of America. It is not surprising, therefore, that a large proportion of cases contained explicit citations of foreign jurisprudence prior to Lord Collins’ retirement in 2011. It was more surprising to see that some other judges that had a reputation for enthusiasm about foreign law did not come out as some of the more frequent users of foreign jurisprudence. One explanation is that that foreign jurisprudence is used more extensively than is possible to tell on the face of the judgments, informing judges ‘behind the scenes’.
In terms of geography, readers are unlikely to be surprised that explicit citations of foreign judgments tend to be drawn from a small family of common law courts. Figure 1 below (figure 8 in the book) shows that Australia, the United States and Canada were the most commonly cited jurisdictions between 2009 and 2017, referenced in 54 per cent, 47 per cent and 45 per cent of all cases making reference to foreign jurisprudence. Other common law jurisdictions followed, with fewer cases referring to courts working in civil law or mixed legal traditions.
However, while citations of foreign jurisprudence are mostly drawn from a small family of courts, it is not found that the UK Supreme Court considers itself to be part of a global conversation. A more realistic conclusion is that foreign jurisprudence is used as a heuristic device. Some of the classical explanations for the use of foreign jurisprudence fall into this category, detailed in chapter six. A clear example is the theory that judges would be most likely to use foreign jurisprudence in order to fill ‘gaps’ in the indigenous case law. A slightly more accurate picture of judicial reasoning at the UK Supreme Court is that foreign jurisprudence provides an analytical lens, elucidating the issues or providing reassurance about a conclusion reached independently of foreign law. The only evidence for the ‘gap-filling’ theory in human rights cases might be the tendency to review foreign jurisprudence where the Strasbourg jurisprudence was unhelpful or non-existent. This is also affected by the well-reported tendency to elevate ‘clear and constant’ Strasbourg jurisprudence to a status of binding, rather than persuasive, authority. Chapter seven explains that this is to do with a drive towards uniformity among the states signatory to the European Convention on Human Rights. The Supreme Court may also prefer to accept the results of the supranational (Strasbourg) court’s comparative research, if relevant.
The emphasis on maintaining uniformity among contracting states is particularly prevalent when the court is interpreting an international instrument with no supervisory body (such as the 1951 Convention Relating to the Status of Refugees)—considered in chapter seven. Nevertheless, anxieties remain about the legitimacy of references to foreign jurisprudence, especially if recourse to those sources leads to an interpretation that enlarges the scope of rights or obligations under a common instrument. In part, this risk also explains the Supreme Court’s reluctance to make advances on the Strasbourg jurisprudence in questions engaging the ECHR. That is not to say that the UK’s top court is wedded to the Strasbourg jurisprudence. Foreign jurisprudence may provide a valuable and underused perspective on the Strasbourg jurisprudence, especially where the relevant case law of that court is unclear, unhelpful or has misunderstood some aspect of domestic law. It is argued in chapter eight that foreign jurisprudence can lend confidence to the Supreme Court’s reasoning in these cases, ensuring that the Court is not simply a ‘Strasbourg surrogate’.
It is concluded that the influence of foreign jurisprudence in judicial reasoning is more important than many have recognised. Foreign jurisprudence is far more intimately woven into the fabric of judicial reasoning, and serves a wider range of functions, than the words ‘persuasive’ or ‘authority’ might suggest. This is both legitimate and appropriate. The value of foreign jurisprudence can be quite different in flavour to other persuasive sources. The judgments of foreign domestic courts represent valuable empirical tools, or heuristic devices. In human rights cases, the perspectives offered by foreign jurisprudence have the potential to support a stronger conception of domestic human rights. Paradoxically, it may be the jurisprudence of foreign domestic courts that assists the Supreme Court to realise its full potential: to develop the domestic law of human rights which many hoped the HRA 1998 would foster.
Posted by Dr Hélène Tyrrell (Newcastle)
British Association of Comparative Law 