How should the English courts address conflicts between its domestic precedents and subsequent decisions of the ECtHR in the light of Kay v Lambeth?

An Example Research Proposal

 Topic: The Human Rights Act and the Doctrine of Precedent

 Background:

This dissertation will consider how the English courts do and ought to address conflicts between its domestic precedents and subsequent decisions of the European Court of Human Rights (ECtHR). When such conflicts have arisen, the lower courts have followed prior domestic decisions even when convinced that they will be overruled on appeal on basis that the appeal court will inevitably follow a subsequent decision of the ECtHR.^[1]  This is despite section 2(1) of the Human Rights Act 1998, which requires domestic courts to take account of any relevant Strasbourg judgment or opinion when determining a question in connection with the rights in the European Convention of Human Rights (the Convention rights).  The leading authority on this issue is Kay v Lambeth.^[2] There has been relatively little written about this case and its subsequent application.^[3]

Research question:

How should the English courts address conflicts between its domestic precedents and subsequent decisions of the ECtHR in the light of Kay v Lambeth?

Methodology

This dissertation will consider the meaning and defensibility of the approach of the House of Lords in Kay v Lambeth. It will consider whether Lord Bingham’s reasoning in Kay supports his conclusion that the lower courts are strictly bound by domestic precedents that are manifestly inconsistent with the subsequent Strasbourg jurisprudence with only the most limited exception. It will also consider whether the lower courts that have followed Kay have adopted a defensible approach to the doctrine of precedent and the Human Rights Act. The approach of this dissertation to its research question will require both doctrinal analysis of Human Rights Act and the relevant case law, and use of legal theory.^[4]

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