The Law Lords and Human Rights
| Date | 01 January 2011 |
| Author | Thomas Poole,Sangeeta Shah |
| Published date | 01 January 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00837.x |
The Law Lords and Human Rights
Thomas Poole
n
and Sangeeta Shah
nn
This article presents an empirical analysis of the impact of the Human Rights Act on the House
of Lords. Drawing o n a database of judgments from 1994 to 2007, changes in judgment-giving
behaviour are identi¢ed bycharting patterns of agreement and dissent across di¡erent categories
of case.Voting records are also examinedi norder to identify whether signi¢cant di¡erences exist
between individual Law Lords in their approachto human rights cases.
INTRODUCTION
This article presents the ¢ndings of aquantitative analysis of decision-making in
the Appellate Committee of the House of Lords (HL). It draws on a database of
HL judgments dating from 1 January 1994 to 31December 2007 in order to iden-
tify whatimpact, if any, the HumanRights Act(HRA) has had on decision-mak-
ing within the UK’s highest court. There has been a considerable amount of
scholarshipdevoted tothe HRA overthe last decade, butlittle sustained statistical
analysis of judicial decision-making under the Act.This article, the second in a
projected series, aims to ¢ll this lacuna. In so doing, it also provides a picture of
decision-making within the HL in the years leading up to its transformation into
the Supreme Court.
Our ¢rst article, which analysed the caseload of the HL and the court’s hand-
ling of petitions for leave to appeal, contained some signi¢cant ¢ndings.
1
Cases
were coded into four categories, the precise contours of which are explained
below: ‘human right s’ ; ‘right s-related’; ‘refugee’ and ‘other’. The stati stics on case -
load revealed a picture of a busier court, one that devoted a much higher percen-
tage of itscaseload to public law (includinghuman rights) matters after the HRA
came into operation thanbefore.The data on petitions revealed that this develop-
ment was essentially a matter of choice, since the ¢gures showed that the Law
Lords have been especially willing to grant leave to human rights cases post-
HRA. Interestingly, however, the statistics also revealed a very low ‘win rate’ for
human rights cases: fewer than one in three such cases were successful, compared
with aboutone in two in rights-related cases.The mostsatisfactoryexplanation of
these central ¢ ndings ^ the sel ection of more human rights cases combined with
low win rates i nthese cases ^ is that while the Law Lords may be keenon hearing
n
Law Department,London School of Economics.
nn
School of Law, University of Nottingham. The authors would like to thankTom Hickman, Bert
Huang, Mark Lehain, and Vanessa Munro for their comments on earlier drafts. Thanks are owed to
John Picton and Anna Medvinskaia for their research assistance.Wewould also like to acknowledge
both the British Academyand the London School of Economics, whose funding made the project of
which this article forms a part viable.
1S. Shah andT. Poole,‘TheImpact of the Human Rights Act on the House of Lords’[2009] PL 347.
r2011The Authors.The Modern LawReview r2011The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(1) 79^105
human rights cases, they are not part icularly sympathetic in genera l to human
rights claim s.
This article peers beneath our earlier ¢ndings, o¡ering a richer survey of post-
HRA decision-making in the HL. The article looks at what might be called ‘noise
levels’ in HL judgments, speci¢cally by tracking the rate s of dissents and concur-
rences across the sample period (1994^2007) with a view to identifying any observa-
ble trends. This approach is not only capable of providing a more complete picture of
patterns of judging within the HL. It also allows us to identify whether the intro-
duction of the HRA has led to any changes in the judgment-giving habits of the
Law Lords. The article also presents data on the judicial records of individual judges
across the sample period,e nabling us to establish whether there have been substantial
di¡erencesamong HL judges when decidinghuman rights cases.This informationis
not only interesting in its own right ^ the HL was, after all, a body that exercised
considerable power ^ but it may also tell us something more general about the way a
new human rights instrument operates in domestic supreme courts.
THE POLYPHONIC COMMON LAW, HUMAN RIGHTS ANDTHE
HOUSE OF LORDS
Dissenting and separate concurring opinions are integralfeatures of the common
law.
2
The common law is inherently polyphonic, having a tendency to speak in
many voices. The judicial HL embraced this ‘noisy’ approach to judgment-
delivery, allowing each Law Lord to issue an ‘opinion’ on the case before them.
To those unfamiliar with common law practice, there must be something odd
about the existence of individual opinions. By their nature, dissents (and to a les-
ser extentseparate concurrences) detract fromthe force of ajudgment and thereby
carry the potential to undercut the declaratorypower of the legal statement issued
by the court. Recognising thatpublic dissent has the capacity to undermine legal
certainty, French
3
and German
4
legal systems (and those in£uenced by them)
have generally required judicial deliberation to remain secret.
5
Law’s message
should not be compromised by the idiosyncrasies of individual judges.
6
2J.Alder,‘Dissents i n Courts of Last Resort:Tragic Choices?’(2000) 20 OJLS 221.
3The tradition in France is very old, if not quite unbroken.In a decree of 1344, PhilippeVI imposed
secrecy during deliberation in courts and reminded the judge of the duty to keep to himself what
happened during deliberation.There was a brief hiatus after the French Revolution,whe ndi strust
of the courts by the masses led to the abandonment of secretdel iberationsfor a time (1791^1795).
4Absolute secrecy of judicial deliberation was the rule in pre-uni ¢cation Prussia, although some
German states did allow awritte n dissent to be added tothe part of the court record not accessible
to the public. (This was the rule in Austria too.) The Weimar Constitution forbade dissents in con-
stitutional cases: eg Rules of the Constitutional Court of 20 September1921,y8(2), [1921] R.G.Bl.
1535.So too did the Bonn Constitution.
5For comparative analysis see eg K. H. Nadelmann,‘The Judicial Dissent:Publication v Secrecy’
(1959 ) 8 AmericanJournal of Comparative Law 417; M. Kirby, ‘Judicial Dissent ^ Common Law and
Civil LawTraditions’(2007) 123LQR 379.
6Secrecy of judicial deliberationhas also been valued in those systems in the past on account of the
protection it appears to o¡er judges from outside interference. According to Henri Franc ois
d’Aguesseau, Chancellor of France, writing in 1706, secrecy is ‘the strength of the feeble and the
guarantee of justice’: Oeuvres comple
'tes du Chancellier d’Aguesseau Vol I (Paris: Fantin, new ed, 1819)
135, 142.
The Law Lords and Human Rights
80 r2011The Authors.The Modern LawReview r2011The Modern Law ReviewLimited.
(2011) 74(1) 79^105
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