Although the Human Rights Act, 1998 has impacted on the judicial understanding of precedent, the underlying features

of the doctrine remain unchanged I. INTRODUCTION The doctrine of precedent has always occupied a significant position in the hist ory of common law of the UK as the system itself is firmly based on the doctrine . But after the incorporation of the European Convention on Human Rights (ECHR)1 into the UK by way of enactment of the Human Rights Act, 1998 (HRA), there appea rs to have taken place some changes, though not in a significant way, in the und erstanding of the long standing doctrine of precedent since the courts are now b ound to take into consideration the Convention rights and the judgments of the E uropean Court of Human Rights (ECoHR) while interpreting any legislation, whethe r passed before or after the 1998 Act, and in delivering judgments. In short sta ture of this essay I will try to scrutinize how the enactment of HRA incorporati ng the basic human rights of the ECHR has impacted on the judicial understanding of precedent outlining the doctrine, judges view on it and finally showing the cu rrent position of the doctrine after such enactment. II. DOCTRINE EXPLAINED Judicial precedent is the process whereby judges follow previously decided cases where the facts or point of law are sufficiently similar.2 The concept of bind ing precedent or the doctrine of staredecisis3is based on the primary idea that like cases should be treated alike. According to this doctrine, if a particular question of law is settled in a case, then the decision of that case should be a pplied by later courts required to rule on the initial question of law. This is how the first case sets a binding precedent in relation to the initial question. III. THE DOCTRINE HOW WORKS The role of precedent is tightly fixed in the hierarchy of courts. A court is bo und to follow the ratio of any decision by a court above it in the hierarchy, wh ether or not it considers that decision correct.4 The basic rule is that higher courts bind lower courts, and that all courts are bound by their own decisions. It involves the following principles: First, stare decisis, whereby lower courts are bound to apply the legal principles set down by superior courts in earlier cases. For example, the High Court must follow decisions of the Court of Appeal (CA), which must follow decisions of the House of Lords (HL). Secondly, the bind ing part of a previous decision is the ratio decidendi5and it must be followed b y judges in later cases even if the facts are not exactly the same. For examplethe principles established by Donoghue v Stevenson(1932)was applied in the case of Grant v Australian Knitting Mills(1936)even though the facts in these cases w ere not identical. Anything said obiter dictum6 in the original case is merely p ersuasive because it was not strictly relevant to the matter in issue and hence does not have to be followed. Where there is no existing precedent, the court wi ll declare the law and the case will become an original precedent, e.g. Airedale NHS Trust v Bland (1993)7. Precedent thus provides consistency and predictability i n the law. IV. VIEW OF THE HIGHEST COURTS ABOUT THE DOCTRINE The HL was not bound by its own previous decisions until the case of London Str eet Tramways v London County Council (1898)when it bound itself in the interests of certainty. Then the Practice Statement (1966) 3 All ER 77, HL issued by Lord Gardiner LC changed the longstanding culture stating that the House, and the Ho use only, was to depart from precedent whenever it appears right to do so (emphasi s added ).8InFood Corps of India v Antclizo[1988]Lord Goff stated that their Lor dships would not depart from a previous decision of HL unless:(i)It felt free to depart from both reasoning and decision of the earlier case; and(ii)Such a revi ew would affect the resolution of the actual case before them and not be of mere academic interest. The CA is bound by the decisions of the HL even if it considers them to be wrong

.9InYoung v Bristol Aeroplane Co Ltd [1944] KB 718, the CA held that it was boun d by its own previous decisions subject to the following three exceptions:(i)Whe re there are two conflicting decisions, the CA must choose between the two;(ii)W here a decision of its own has been impliedly overruled by the HL; and(iii)Where the previous decision was given per incurium(wrongly decided).In the criminal d ivision, in addition to the Young exceptions, precedent is not followed as rigi dly because a person's liberty may be at stake. In R v Taylor [1950] 2 KB 368the CA held that if the law has either been misapplied or misunderstood then it mus t reconsider the earlier decision. Lord Denning tried unsuccessfully quite a cou ple of times, much at the displeasure of the law lords though, to depart from th e established decisions of the HL where, in his opinion, they were decided per i ncurium10, where the HL reached at a decision on the basis of facts which became non-existent in the course of time (Lapsed Rule).11But the Law Lords straightwa y rejected those arguments and held in Milangos v George Frank [1977]that if a development of law is necessary in the interest of justice, it is for the HL to make it and not the CA. V. THE HRA, 1998 AND ITS IMPACT ON THE DOCTRINE The UK is a state party to the ECHR from its very birth but before the enactment of the HRA it had not given domestic effect to the convention by way of ratific ation. It was only the passing of the HRA in 1998 which gave explicit reference to the convention rights. The HRA marks a major and completely novel development regarding precedent. The implementation in 2000 has given the courts a consider able freedom to ignore precedent when deciding points of law under the ECHR. The passing and coming into force of the HRA was intended to have a profound effect on the protection of human rights and civil liberties in domestic law of the UK . However, it should not be forgotten that the Act has also affected the general legal system.12Perhaps most significantly, the Act creates new rules on the fol lowing of precedent, as section 2 of the Act states that the domestic courts mus t take into account, inter alia, the decisions of the ECoHR when determining any question involving any Convention right. This provision impacts on the operatio n of the doctrine of precedent within the English legal system, as it effective ly sanctions the overruling of any previous English authority that was in confli ct with a decision of the ECoHR .13The inclusion of section 2 in the Act thus be gs the question whether the traditional principles of judicial precedent are now abandoned in place of a rule which compels the domestic courts to follow the de cisions of the ECoHR. But the wording of section 2 of the Act makes it ambiguous since it merely imposes a dutyon the courts to take such cases into account, ra ther than to follow the decision. Section 3(1) demands that courts and tribunals must interpret all legislation, whether passed before or after the HRA, in such a way as to make it compatible with Convention rights so far it is possible to do so. This section provides the courts with new and extended power of interpretatio n and hence it has also the potential to invalidate previously accepted interpre tations of statutes that were made, by necessity, without recourse to the Conven tion.14 Where it is impossible to interpret provisions in primary legislation to be compatible with Conventions rights, section 3(2)(b) provides that the primar y legislation must be given effect, whether the legislation in question pre-date s the Act or is made after it has come into force. In R v Secretary of State for the Home Department [2002] 2 WLR 1143, the CA suggested that it would be improp er for the domestic courts to decide a case in a way that was contrary to the ap plication currently being applied by the ECoHR. Section 6 declares it unlawful f or any public authority to act in a way that is incompatible with the ECHR. Sect ion 6(3)(a) specifically states that as courts and tribunals are public authorit ies, they must, therefore, act in accordance with the Convention. But where a pu blic authority is acting under the instructions of some primary legislation, whi ch is itself incompatible with the ECHR, the public authority will not be liable u/s 6.But an important question has always peeped in regarding which law to fol low in the event of conflict between the common law and the decisions of the ECo HR since the enactment of the Act. The cloud of confusion was, however, dispelle d when in Prince v. Leeds City Council (2006)theHL held that where there were co

ntradictory rulings from it and the ECoHR, English courts were required to follo w the ruling of the HL. The decision of the UK Supreme Court (the erstwhile Hous e of Lords) in the case of Manchester City Council v Pinnock [2010] UKSC 45has also provided some clarifications and guidance as to which decision to follow in cases of conflict between the two. With respect to precedent, it was held that the Supreme Court was not bound to follow every European Court decision. That wo uld be impractical and sometimes inappropriate because it would destroy its abil ity to engage in constructive dialogue with the European Court on the specific l aw and its compatibility with the Convention. However, where there was a clear a nd constant line of decisions whose effect was not inconsistent with some fundam ental substantive or procedural aspect of the UK law, and whose reasoning did n ot appear to overlook or misunderstand some argument or point of principle, it w ould be wrong for the domestic court not to follow thatline.15 In Re P and other s[2008] UKHL 38, the HL declared that where the ECoHR had not laid down a defini tive interpretation of the legal position, the domestic courts were not bound to follow those decisions, because the rights in the HRA were domestic and not int ernational human right sand the domestic courts could give their own interpretat ion to them. VI. CONCLUSION From the discussion above it is unequivocally clear that although the HRA requir es the judges to take special care when deciding a case or interpreting any stat ute to make sure that cases before them are decided in line with the decisions o f the ECoHR and statutes are interpreted in accordance with the ECHR, this does not, however, mean that inferior courts are to defy the decisions of the superio r courts and to follow the decisions of the ECoHR only. Rather it means that the courts are bound by the decisions of the superior courts as they were before bu t while doing so they are to take into consideration the decisions of the ECoHR in conjunction with the decisions of the superior courts and thus come to a harm onious decision so that the basic human rights of the citizens are better protec ted. Therefore, we see that the HRA has bought about some changes in the underst anding of the judges with regard to precedent but the doctrine itself continues to reign in the same manner, though with a varied notion and taste, as it was pr eviously binding the lower tier of the judiciary by the upper ones. References: 1The Convention was signed in Rome in 1950 and entered into force in 1953. The C onvention guarantees certain rights including the right to life, freedom from to rture, freedom from arbitrary arrest, the right to fair trail, right to privacy, freedom of religion, freedom of expression, freedom of assembly and association . 2But there are situations where the doctrine is applied even if the facts are no t similar, e.g., the principle of Donoghue vStevenson (1932) was applied in the case of Grant v Australian Knitting Mills (1936). 3The term stare decisis comes from the Latin term stare decisis et non quieta mover e which means to stand by decisions and not disturb that what is settled . If a cour t is dealing with a case which shares material facts with a previous, already de cided case, the court is generally bound by the previous decision and should arr ive at the same conclusion. However, the court is not bound by the whole decisio n but only by the rules and principles the decision creates and is based on. 4Robert Mackay, Elements of English Legal System: JUDICIAL PRECEDENT , available fr om:http://www.lectureme.studio400.me.uk/resources/Elements+of+English+Legal+Syst em++++PRECEDENT.pdf; last visited:12 April 2012. 5It means reasons for the decision arrived at. The part of a judgment considered

binding is the ratio decidendi, the legal principle underlying the decision in the particular case. Other statements of law are obiter dicta and have no more t han persuasive force. 6It is usually the non-binding part of the judgment which is pronounced by the j udges by the way which might work as persuasive precedent. 7Where a young man seriously injured in the Hillsborough disaster was being kept alive only by extensive medical care and had no chance of recovery; his doctors (with the support of his family) sought a declaration that it would be lawful f or them to discontinue treatment so that he might die peacefully. The precedents were uncertain - the ability to sustain life artificially was relatively recent - and the House of Lords could have decided either way. In fact they drew a dis tinction between active euthanasia (which is unlawful) and the withdrawal of tre atment (which may be lawful if the treatment is no longer in the patient's best interests) and granted the declaration sought. 8Some of the cases where the HL departed from its previous decisions applying the Practice Statement include, inter alia, Conway v Rimmer [1968] 1 All ER 874, HL; Jones v Secretary of State for Social Services [1972] 1 All ER 145, HL; British Railways v Herrington [1972] 1 All ER 749, HL; Knuller v DPP [1972] 2 All ER 89 8, HL; R v Shivpuri [1986] 2 AllER 334, HL; R v Howe [1987] 1 All ER 771, HL; R v Kansal (No.2) [2002] 1 All ER 257, HL; R v G & R [2003] 4 All ER 765, HL; A v Hoare [2008] UKHL 6. 9For example Lord Denning in many occasions tried unsuccessfully to depart from the decisions of the HL which we will see in the later part of this essay. 10For example- in Broome v Cassel [1971] Lord Denning persuaded the other member s of the CA to reach a decision which went against the established principle of Rookes v Barnard. 11This approached was adopted in the case of Schorsch Meier Gmbh v Hennin [1975] where he argued that the HL s sterling judgment rule in Havana Railways case had ch anged and hence the rule should no longer be applied. 12For example, as the courts are now bound to provide greater redress for breach of rights under the ECHR, its provisions have affected the remedies that are av ailable from the domestic courts, and the process under which those rights might or must be accessed. 13Slapper, Gary & Kelly, David; ledge, Abingdon, Oxon, p 46. The English Legal System , 11thedition (2010), Rout

14See Mendoza v Ghaidan (2002). This case is of particular interest in the fact that it shows how the HRA can permit lower courts to avoid previous and otherwis e binding decisions of the HL. 15Dr. Steve Foster, HUMAN RIGHTS AND LEGAL SYSTEM: To follow the Supreme Court or Strasbourg? Judicial precedent and the Human Rights Act 1998 , http://alumni.cove ntry.ac.uk/NetCommunity/Document.Doc?id=87 <12 April,2012>. Other References: 1.Barnett, Hilarie; Constitutional & Administrative Law , 8thedition (2010), Routle dge, Abingdon, Oxon. 2.Elliott, Catherine & Quinn. Frances; English Legal System , 8thedition, (2007), P earson Education Limited, Harlow, England.

3.Gearey, Adam; Morrison, Wayne and Jago, Robert; The Politics of the Common Law: Perspecctives, Rights, Processes, Institutions ; (2009), Routledge-Cavendish, Abi ngdon, Oxon. 4.Holland, James & Webb, Julian; Learning Legal Rules , 7thedition (2010), Oxford U niversity Press, New York.5.Slapper, Gary & Kelly, David; The English Legal Syste m , 11thedition (2010), Routledge, Abingdon, Oxon. Articles 1.AfKRISTINE RBERG, Common Law &The Human Rights Act 1998 ,http://law.au.dk/fileadmi n/site_files/filer_jura/dokumenter/forskning/rettid/2003/2003.afh-1.pdf <12 Apri l, 2012> 2.Robert Mackay, Elements of English Legal System: JUDICIAL PRECEDENT ,http://www.l ectureme.studio400.me.uk/resources/Elements+of+English+Legal+System++++PRECEDENT .pdf <12 April, 2012> 3.ROMAN KALI , IS THE ENGLISH DOCTRINE OF JUDICIALPRECEDENTBECOMING ONLY AN ILLUSIO N? ,http://www.law.muni.cz/sborniky/dp08/files/pdf/mezinaro/kalis.pdf <12 April, 2 012> 4.Dr. Steve Foster, HUMAN RIGHTS AND LEGAL SYSTEM: To follow the Supreme Courtor Strasbourg? Judicial precedent and the Human Rights Act 1998 ,http://alumni.covent ry.ac.uk/NetCommunity/Document.Doc?id=87 <12 April, 2012> 5.Asif Tufal, JUDICIAL PRECEDENT , http://www.lawteacher.net/PDF/Judicial%20Precede nt.pdf <12 April, 2012> 6. Judicial Reasoning and the HRA - Discussion Paper ,http://www.dur.ac.uk/resources /hrc/projects/judicial/discussion/Judicial%20Reasoning%20and%20the%20HRA.pdf <12 April, 2012> 7.Francesca Klug, Professorial Research Fellow, Centre for the Study of Human Ri ghts, LSE JUDICIAL DEFERENCE UNDER THE HUMAN RIGHTS ACT 1998 http://www2.lse.ac.uk/h umanRights/articlesAndTranscripts/Judicial_deference_under_HRA1998. pdf <12 Apri l, 2012>8. THE IMPACT OF THE HUMAN RIGHTS ACT IN THE COURTS http://www.conservativel awyers.com/assets/uploads/publications/pdf/Faulks-&-Warnock-Impact-of-HRA.pdf <1 2 April, 2012>9.Tanzum Mozammel, Doctrine of Judicial Precedent ,http://denningzcav e.wordpress.com/2011/10/21/doctrine-of-judicial-precedent/ <12 April, 2012>. 4