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I. Introduction

This report will look at the use of comparative law by the judges in the House of Lords, which until late 2009 was the highest court in the land in the United Kingdom.  It has since been reconstituted as the Supreme Court, but because the Supreme Court has produced few judgments to date, the report focuses on judgments of the House of Lords, with a brief overview of the regulation of the use of comparative law in the lower courts.

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II.  Foreign Judgments in the House of Lords

The use of comparative law in England is neither unfamiliar nor insignificant.  The legal system of the country itself has been described as straddling two worlds: “[i]t has one foot in the ius commune novum with the legal systems of Continental Europe and the other in the ‘unity of common law’ with the legal systems in the Commonwealth and the USA,” as well as having a mixed jurisdiction within the United Kingdom with Scotland.[1]

Foreign judgments and foreign laws have been used by the Law Lords in the House of Lords as a comparative aid to the interpretation of English law with increasing regularity, both in a supplementary manner as well as substantively.  It has been noted that the Commonwealth’s past has meant that the House of Lords is more accustomed and open to the use of comparative law than other jurisdictions.[2]

The incorporation of the European Convention on Human Rights into the national law of the United Kingdom by the Human Rights Act 1998 placed the UK in a different legal climate.  The directly enforceable rights provided for in the Human Rights Act apply not only to the UK, but also to a number of other countries, as well as having certain parallels with the Constitution of the United States.[3]  Certain scholars have noted that the explosion of human rights legislation and treaties has led to a “transjudicial dialogue on human rights [that] has blurred the distinction between comparative constitutional law and international law.”[4]  

It should be noted that the English courts are required by law to take into account decisions of the European Court of Justice[5] and organs of the European Convention on Human Rights.[6]  Even prior to the incorporation of these legal obligations, however, the House of Lords had been utilizing comparative methods from other jurisdictions.  In White et al., the Law Lords took a comparative law approach, with Lord Nicholas noting in the first paragraph of his opinion that “courts in other jurisdictions had reached opposite conclusions.”[7]  The judgment in this case referred to cases from New Zealand, Australia, the United States, and Germany.  During the trial the Law Lords were referred to over forty cases of English and foreign law.   Lord Steyn expressly acknowledged that due to the complexity of the case he also referred to academic writings on foreign law to aid him in his judgment, stating: “such material, properly used, can sometimes help to give one a better insight into the substantive arguments.”[8]  Additionally, during his opinion Lord Goff expressed reservations over using comparative practices between Germany’s civil system and England’s common law traditions, but noted that the use of not only cases but comparative writings aided him, stating:

We can, I believe, see this most clearly if we compare the English and German reactions ….  Strongly though I support the study of comparative law, I hesitate to embark in an opinion such as this upon a comparison, however brief, with a civil law system; because experience has taught me how very difficult, and indeed potentially misleading, such an exercise can be.  Exceptionally however, in the present case, thanks to material published in our language by distinguished comparatists, German as well as English, we have direct access to publications which should sufficiently dispel our ignorance of German law and so by comparison illuminate our understanding of our own.[[9]]

The House of Lords has, where relevant, used decisions from foreign courts in these cases to compare how the rights have been interpreted.  This applies for not only the European Convention on Human Rights, but also for a number of other international treaties.  For example, in A v. Secretary of State, foreign cases were used throughout the opinions of the Law Lords, which was considering the use of evidence that may have been obtained by torture.  It noted how the Torture Convention had been implemented into the law of France, Canada, the Netherlands, Germany, and the United States.[10]  During this case, numerous foreign decisions were referred to—three from the Supreme Court of the United States, twelve from the Supreme Courts of six other countries, and others from international courts and tribunals.[11]  Some commentators have noted that the use of so many foreign cases was a “conscious attempt to put the practice of the UK within a global context and to upgrade the common law to modern international standards.”[12]  In fact, the approach of Lord Bingham was highly commended by an article in the Law Society Gazette, which provided:

Lord Bingham has performed brilliantly in the job for which he was specifically selected in defiance of the principle of “buggin’s turn”, which would have given it to another.  He has stitched the Human Rights Act into the fabric of our domestic law and, in doing so, aligned our jurisprudence with that of an emerging global approach.  The breadth of the approach of the House of Lords under his leadership throws into stark relief the decline of its US equivalent … this was a conscious attempt to put the practice of the UK within a global context and to upgrade the common law to modern international standards.[[13]]

In another case, heard by the House of Lords in 2002, Lord Bingham noted at the beginning of his opinion his apparent favor towards the use of comparative law in achieving a fair and just outcome that served the ends of justice:

This survey shows, as would be expected, that though the problem underlying the cases such as the present is universal the response to it is not.... But ... most jurisdictions would, it seems, afford a remedy to the plaintiff.  Development of the law in this country cannot of course depend on a head-count of decisions and codes adopted in other countries around the world, often against a background of different rules and traditions.  The law must be developed coherently, in accordance with principle, so as to serve, even-handedly, the ends of justice.  If, however, a decision is given in this country which offends one’s basic sense of justice, and if consideration of international sources suggests that a different and more acceptable decision would be given in most other jurisdictions, whatever their legal tradition, this must prompt anxious review of the decision in question.  In a shrinking world … there must be some virtue in uniformity of outcome whatever the diversity of approach in reaching that outcome.[[14]]

The opinions of the Law Lords in this case included substantive references to a number of foreign cases and materials from a significant number of different jurisdictions, with different legal systems.  Cases were referred to and discussed from the common law countries of Australia, New Zealand, Canada, and the United States; from Scotland, a mixed jurisdiction; and from civil law jurisdictions, including France, Germany, the Netherlands, Greece, Spain, and Norway; and the opinions also included references to Roman law.[15]  Indeed, it has been noted that the use of German legal materials in this case was: “a ‘difficult’ book even for German lawyers to use,”[16] and that it was not counsel that requested the use of foreign law in this instance, but the Law Lords themselves, who requested to be “addressed on the solutions adopted by civilian law systems, thus ‘forcing’ Counsel to extend their research and argument beyond the traditional consideration of Commonwealth and American authority.”[17]

The value that comparative law can bring English law through the use of foreign cases has been observed many times in the House of Lords, with the Law Lords on different occasions noting that England can learn much from legal developments in other jurisdictions.[18]    

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III. Restrictions on the Use of Foreign Judgments in the Lower Courts

The benefits of the use of foreign judgments in the lowers courts in England and Wales have been noted in a Practice Direction,[19] which regulates the use of foreign cases in these courts.  The Practice Direction acknowledges that “cases decided in other jurisdictions can, if properly used, be a valuable source of law in this jurisdiction.”[20]  However, the same paragraph that advocates the use of foreign cases also comes with a warning that, “at the same time, however, such authority should not be cited without proper consideration of whether it does indeed add to the existing body of law.”[21]

These courts are permitted to use foreign cases for comparative purposes, but have restrictions on the cases that can be used in court.  A Practice Direction notes that:

In recent years, there has been a substantial growth in the number of readily available reports of judgments in this and other jurisdictions, such reports being available either in published reports or in transcript form.  Widespread knowledge of the work and decisions of the courts is to be welcomed.  At the same time, however, the current weight of available material causes problems both for advocates and for courts in properly limiting the nature and amount of material that is used in the preparation and argument of subsequent cases.[[22]

To ensure that foreign authorities are only cited in the English courts when their use would add to the law, the Practice Direction provides specific criteria that must be met.  These are that the advocate citing the foreign authority must:

  • state the proposition of law that the authority shows;
  • indicate what the authority adds that is not found in the cases of England and Wales, or justify what adding a foreign authority to the domestic authorities would bring; and
  • certify that there is no authority in England and Wales that prohibits the acceptance of the proposition that the foreign authority seeks to establish.[[23]]

This Practice Direction also does not apply to cases that were decided in the European Court of Justice or the organs of the European Convention on Human Rights.  As noted above, cases from these latter bodies have a special status in English law as a result of the European Communities Act 1972 and the Human Rights Act 1998.[24]

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IV. Concluding Remarks

As can be seen from the case examples from the House of Lords and the Practice Direction issued to the courts of England and Wales, the use of foreign cases and comparative law is widely accepted in England.  While the use is regulated, in that there must be specific reasons for resorting to foreign law, its value is not underestimated. 

In an article in the International and Comparative Law Quarterly, T. Koopmans expressed his opinion that the twenty-first century may become the era of comparative methods, opining that:

As we share so many difficult problems of society, and as we live closer and closer together on the planet, we seem bound to look at one another’s approaches and views.  By doing so we may find interesting things—but we may also find ways to cope with the tremendous legal challenges that seem to be in store for us.[[25]

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Prepared by Clare Feikert-Ahalt
Senior Foreign Law Specialist
March 2010
 

[1] Esin Orucu, Looking at Convergence Through the Eyes of a Comparative Lawyer, E.J.C.L., vol. 92, July 2, 2005, http://www.ejcl.org/92/art92-1.html.

[2] Walter van Gerven, The Open Method of Convergence, Juridica International, vol. XIV, 2008, http://www.juridicainternational.eu/the-open-method-of-convergence.

[3] See, e.g., R. v. Camberwell Green Youth Court [2005] UKHL 4 [14], where parallels were drawn between the U.S. Constitution and the European Convention on Human Rights.  Lord Hoffman noted:

It is for the people of the United States, and not for your Lordships, to debate the virtues of the Sixth Amendment in today’s world. It overlaps, to some extent, with article 6(3)(d) of the Convention as interpreted by the European Court. But, as interpreted by the Supreme Court, the Sixth Amendment appears to go much further towards requiring, as a check on accuracy, that a witness must give his evidence under the very gaze of the accused. For my part, I would certainly not disparage the thinking behind that requirement. But, whatever its merits, this line of thought never gave rise to a corresponding requirement in English law. Id.

[4] Karen Knop, Here and There: International Law in the Domestic Courts, 32 N.Y.U. J. Int’l L. & Pol. 501 (2001).

[5] European Communities Act 1972, c. 68 § 3.

[6] Human Rights Act 1998, c. 42, § 2(1). 

[7] White et al. v. Jones et al, [1995] 2 AC 207.

[8] Id.

[9] Id.

[10] A et al. v. Secretary of State, [2005] UKHL 71 [35]. 

[11] Id. (generally). 

[12] Roger Smith, Rights and Wrongs: A Hard Act to Follow, L. Soc’y Gazette 105.40(1) (2008).

[13] Id.

[14] Fairchild v. Glenhaven Funeral Services Ltd. and others; Fox v. Spousal (Midlands) Ltd.; Matthews v. Associated Portland Cement Manufacturers (1978) Ltd. and others, [2002] UKHL 22 [34].

[15] IdSee also Orucu, supra note 1.

[16] Sir Basil Markesinis & Jörg Fedtke, The Judge as Comparatist, 80 Tul. L. Rev. 11 (Nov. 2005) (referring to Fairchild, [2002] UKHL 22 [25]).

[17] Id.

[18] White et al. v. Jones et al., [1995] 2 AC 207.

[19] Practice Direction on the Citation of Authorities, http://www.hmcourts-service.gov.uk/cms/814.htm (last visited Mar. 15, 2010).  This practice direction applies to all courts in England and Wales, with the exception of the criminal courts, but extends to the Court of Appeal’s Criminal Division.  See id. ¶ 5.

[20] Id. ¶ 9.1.

[21] Id.

[22] Id. ¶ 1.

[23] Id. ¶ 9.2.

[24] Id. ¶ 9.3 (referring to the European Communities Act 1972, c. 68, § 3; and the Human Rights Act 1998, c. 42, § 2(1)). 

[25] T. Koopmans, Comparative Law and The Courts, 45 Int’l & Comp. L.Q. 545, 556 (July 1996).

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Last Updated: 02/28/2014