PART I

THE HUMAN RIGHTS ACT

1
Background and Interpretation
1. The Protection of Human Rights Prior to the Human Rights Act
The protection of human rights through law in the countries of the United Kingdom did not start on 2 October
2000 with the coming into force of the Human Rights Act 1998 (HRA). For many years the common law, primary
and secondary legislation, and European Union (EU) law have provided protection whilst international human
rights law, although not directly enforceable,1 has provided an important benchmark for the courts, executive
and legislature. With the coming into force of the HRA, these other mechanisms of protection have not
disappeared but operate alongside the HRA, in some instances filling the gaps2 and in others providing
equivalent3 or even stronger legal protection for human rights.4 Section 11 of the HRA provides that a person’s
reliance on a Convention right does not restrict ‘any other right or freedom conferred’ by or under any ‘law
having effect in any part of the United Kingdom’ or restrict the ‘right to make any claim or bring any
proceedings’ apart from HRA claims. Given the continuing importance of common law and, for now, EU law,
each is considered briefly at the end of this chapter.

2. Background to the Human Rights Act

2.1 The Incorporation Debate

Constitutional tradition, in particular the principle of the sovereignty of Parliament, and the protection provided
by common law and statute, meant that for a long time there was very little interest in adopting a modern form
of a Bill of Rights. By the late 1970s this had changed, with bodies such as the National Council for Civil

1
In R (Hurst) v Commissioner of Police of the Metropolis [2007] UKHL 13, [2007] 2 AC 189 the House of Lords confirmed that
decision-makers are under no obligation to exercise discretionary powers so as to comply with unincorporated international obligations.
2
In some instances the HRA may not apply. For example, the act may have occurred before 2 October 2000 or the claimant may not
be a s 7 victim.
3
See, for example, R v Secretary of State for the Home Department, ex p Daly [2001] UKHL 26, [2001] 2 AC 532.
4
See, for example, Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27.

1
Liberties (now Liberty) campaigning for it. This soon transformed into calls for incorporation of the European
Convention on Human Rights (ECHR) into domestic law as the first—or only—step in the process of improving
the legal protection of human rights.5 Many non-governmental organisations (NGOs) joined the campaign,
including JUSTICE, the Runnymede Trust, the Constitutional Reform Centre, the Institute for Public Policy
Research, the British Institute of Human Rights and Charter 88. The shared view was that the traditional freedom
of the individual ‘under an unwritten constitution to do himself that which is not prohibited by law’ gave no
protection from misuse of power by the state, nor any protection from acts or omissions of public bodies which
harmed individuals in a way that was incompatible with their human rights.6
Around this time judicial interest in human rights was also stirred. Judges began referring to the ‘right to
freedom of expression’, sometimes the ‘constitutional right to freedom of expression’.7 In many judgments,
Article 10 of the ECHR was also mentioned.8 This was in some part driven by the European Court of Human
Rights (ECtHR) finding a violation of Article 10 in Sunday Times v UK.9 The judgment shattered the illusion
that acceptance of the Convention would have ‘few implications’ and the assumption that the United Kingdom
‘as a democracy would have nothing to be concerned about’.10
Judicial interest in human rights continued, and by the 1990s many judges, writing and speaking extra-
judicially, had entered the rights debate. For example, in the 1993 Denning Lecture, Lord Bingham, then the
Master of the Rolls, stated that:

[T]he ability of English judges to protect human rights in this country and reconcile conflicting rights in the manner
indicated is inhibited by the failure of successive governments over many years to incorporate into United Kingdom
law the European Convention on Human Rights.11

He saw the ECHR as an instrument which lay ready to hand which, if not providing an ideal solution, nonetheless
offered a clear improvement on the present position.12
In the 1994 FA Mann Lecture Lord Woolf considered that it was unacceptable ‘that our citizens should be
able to obtain a remedy which the Government will honour in the European Court of Human Rights, which they

5
The possibility of a UK Bill of Rights and Responsibilities was mentioned in the Labour Party consultation paper by Jack Straw
MP and Paul Boateng MP, ‘Bringing Rights Home: Labour’s Plans to Incorporate the European Convention on Human Rights into UK
Law’ (London, Labour Party, 1996) 14, it was not mentioned in the Home Office White Paper Rights Brought Home: The Human Rights
Bill (Cm 3782) (London, TSO, 1997).
6
HL Deb, vol 582, col 1228 (3 November 1997), Lord Chancellor. On the campaign for incorporation, see KD Ewing, ‘The Futility
of the Human Rights Act’ [2004] Public Law 829.
7
See eg Cassell & Co v Broome [1972] 2 WLR 645 per Lord Kilbrandon at 726; Harman v Secretary of State for the Home
Department [1982] 2 WLR 338 per Lord Scarman at 351; Secretary of State for Defence v Guardian Newspapers Ltd [1984] 3 WLR 986
per Lord Fraser at 1001.
8
See eg R v Lemon [1979] 2 WLR 281 per Lord Scarman at 315; Associated Newspapers Group Ltd v Wade [1979] 1 WLR 697 at
708–09 per Lord Denning; A-G v BBC [1980] 3 WLR 109 per Lord Scarman at 130; Schering Chemicals Ltd v Falkman Ltd [1981] 2
WLR 848 per Lord Denning at 862, 864.
9
Sunday Times v UK (1979) 2 EHRR 245. See the comments of Lord Scarman in A-G v BBC [1980] 3 WLR 109, 130.
10
E Wicks, ‘The United Kingdom Government’s Perceptions of the European Convention on Human Rights at the Time of Entry’
[2000] Public Law 438, 441. The first finding of violation on the part of the UK occurred in Golder v UK (1975) 1 EHRR 524.
11
See TH Bingham, ‘The European Convention on Human Rights: Time to Incorporate’ (1993) 109 Law Quarterly Review 390, 390.
12
Ibid, 393.

2
cannot obtain from the courts in this country’. In his view, a ‘British Bill of Rights would avoid the difficulty
which exists at present in protecting some of our basic rights. It would enable us to play our part in the
development of human rights jurisprudence internationally.’13
Various attempts were made via private members’ bills to achieve statutory human rights protection.14 But
whilst there was considerable interest and enthusiasm amongst supporters, there was very little interest from the
Conservative government. In 1994, in its Fourth Periodic Report to the UN Human Rights Committee under the
Covenant on Civil and Political Rights,15 the government maintained that the rights and freedoms recognised in
international instruments and in the constitutions of those countries with a bill of rights were inherent in the
United Kingdom’s legal system and were protected by it and by Parliament unless they were removed or
restricted by statute.

The Government does not consider that it is properly the role of the legislature to confer rights and freedoms which
are naturally possessed by all members of society. It also believes that Parliament should retain the supreme
responsibility for enacting or changing the law, including that affecting individual rights and freedoms, while it is
properly the role of the judiciary to interpret specific legislation.16

It stated that the incorporation of an international human rights instrument into domestic law was not necessary
to ensure that the United Kingdom’s obligations were reflected in the deliberations of government and the courts.

The United Kingdom’s human rights obligations are routinely considered by Ministers and their officials in the
formulation and application of Government policy, while judgments of the House of Lords have made clear that such
obligations are part of the legal context in which the judges consider themselves to operate. 17

It was clear that only a change in government would make incorporation of the ECHR possible.18

2.2 The Human Rights Bill

In March 1993, incorporation of the ECHR was adopted as Labour Party policy and in December 1996 the
Labour Party published ‘Bringing Rights Home’,19 outlining its plans to incorporate the Convention into UK law
and thereby enable British people ‘to bring grievances against the state covered by the Convention to a British
court whilst still retaining a right of ultimate recourse to the Strasbourg court’.20 It saw incorporation as a way

13
The Rt Hon Lord Woolf of Barnes, ‘Droit Public—English Style’ [1995] Public Law 57, 70. See also Sir Nicolas Browne-
Wilkinson, ‘The Infiltration of a Bill of Rights’ [1992] Public Law 405; The Hon Sir John Laws, ‘Is the High Court the Guardian of
Fundamental Constitutional Rights?’ [1993] Public Law 59 and id, ‘Law and Democracy’ [1995] Public Law 72; The Hon Sir Stephen
Sedley, ‘Human Rights: A Twenty-First Century Agenda’ [1995] Public Law 386.
14
See eg the Human Rights Bill 1994 presented and First Reading HL Deb, vol 559, col 150 (22 November 1994). See further M
Zander, A Bill of Rights? (London, Sweet & Maxwell, 1985).
15
CCPR/C/95/Add.3, 19 December 1994.
16
Ibid, [4].
17
Ibid, [5].
18
For a background to the Human Rights Act generally, see F Klug, Values for a Godless Age: The Story of the UK’s New Bill of
Rights (London, Penguin, 2000).
19
Straw and Boateng, ‘Bringing Rights Home’ (n 5).
20
Ibid, 4.

3
to ‘change the relationship between the state and the citizen, and to redress the dilution of individual rights by
an over-centralising government’. It also saw incorporation as a way to encourage citizens to better fulfil their
responsibilities and to improve awareness of human rights thus nurturing a culture of understanding of rights
and responsibilities at all levels of society.21
With incorporation a key manifesto commitment, Labour won the General Election in May 1997 with a
majority of 179 seats. In October 1997 the Home Office published the White Paper Rights Brought Home,22
which accompanied a draft Bill. This was an important part of a comprehensive policy of constitutional reform,
including the establishment of a Scottish Parliament and a Welsh Assembly, reform of the House of Lords,
freedom of information, an elected Mayor for London and a referendum on the voting system for the House of
Commons.23 Human rights was a ‘key component’ of the government’s

drive to modernise our society and refresh our democracy. It is part of a blueprint for changing the relationship between
the Government and people of the United Kingdom to bring about a better balance between rights and responsibilities,
between the powers of the state and the freedom of the individual. 24

In Rights Brought Home the case for change was set out. First, the rights and freedoms guaranteed under the
Convention were ones with which the people ‘were plainly comfortable’.25 Second, the growing awareness that
it was not sufficient to rely on the common law and that incorporation was necessary.26 Third, the fact that the
rights were no longer seen as British rights, and enforcing them took too long and cost too much.27 Fourth, the
approach which the UK adopted towards the Convention did not sufficiently reflect its importance and had not
stood the test of time—the most obvious proof lying in the number of cases in which violations had been found
by the Commission and the Court.28 The key argument was as follows:

Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts—
without this inordinate delay and cost. It will also mean that the rights will be brought much more fully into the
jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and
powerfully woven into our law. And there will be another distinct benefit. British judges will be enabled to make a
distinctly British contribution to the development of the jurisprudence of human rights in Europe. 29

Following lengthy parliamentary debates,30 the Human Rights Bill was passed by both Houses and received the
Royal Assent on 9 November 1998. It was brought fully into force on 2 October 2000.

21
Ibid, 14. For a discussion of possible models for incorporation, see B Emmerson, ‘Opinion: This Year’s Model—The Options for
Incorporation’ [1997] European Human Rights Law Review 313. On the motivations for incorporation, see M Amos, ‘Transplanting
Human Rights Norms: The Case of the United Kingdom’s Human Rights Act’ (2013) 35 Human Rights Quarterly 386.
22
Home Office, Rights Brought Home (n 5).
23
Ibid, 1.
24
HC Deb, vol 306, col 783 (16 February 1998), Secretary of State for the Home Department, Mr Jack Straw.
25
Home Office, Rights Brought Home (n 5), [1.3].
26
Ibid, [1.4].
27
Ibid, [1.14].
28
Ibid, [1.15]–[1.16].
29
Ibid, [1.14].
30
See generally F Klug, ‘The Human Rights Act 1998, Pepper v Hart and All That’ [1999] Public Law 246.

4
3. Purpose of the Human Rights Act
In the Long Title to the HRA it is described as ‘An Act to give further effect to rights and freedoms guaranteed
under the European Convention on Human Rights’. The word ‘further’ was used as the courts were already
applying the Convention in many different ways.31 More information is contained in the White Paper Rights
Brought Home,32 where the purpose of the Act is simply stated as ‘to make more directly accessible the rights
which the British people already enjoy under the Convention … to bring those rights home’.33 The longer version
is as follows:

[T]he time has come to enable people to enforce their Convention rights against the State in the British courts, rather
than having to incur the delays and expense which are involved in taking a case to the European Human Rights
Commission and Court in Strasbourg and which may altogether deter some people from pursuing their rights. Enabling
courts in the United Kingdom to rule on the application of the Convention will also help to influence the development
of case law on the Convention by the European Court of Human Rights on the basis of familiarity with our laws and
customs and of sensitivity to practices and procedures in the United Kingdom. …Enabling the Convention rights to be
judged by British courts will also lead to closer scrutiny of the human rights implications of new legislation and new
policies.34

The additional purposes of ‘nurturing a culture’ of understanding of rights and responsibilities at all levels in
society and ‘assisting public discussion’ of what might be the character of any future UK ‘Bill of Rights and
Responsibilities’, contained in the consultation paper Bringing Rights Home,35 were not included, although it
was noted that the Act would ‘enhance the awareness of human rights in our society’ and stand alongside the
decision to put the promotion of human rights at the forefront of foreign policy.36
In the Parliamentary debates the Lord Chancellor said that our ‘courts will develop human rights throughout
society. A culture of awareness of human rights will develop.’37 Lord Williams expanded on this, stating that
every public authority ‘will know that its behaviour, its structures, its conclusions and its executive actions will
be subject to this culture,’38 and in the House of Commons the Home Secretary noted that, over time, ‘the Bill
will bring about the creation of a human rights culture in Britain.’39 He later said in evidence to Parliament’s
Joint Committee on Human Rights that the HRA was intended, over time, to help bring about the development
of a culture of rights and responsibilities.40

31
HL Deb, vol 583, col 478 (18 November 1997).
32
Home Office, Rights Brought Home (n 5).
33
Ibid, [1.19].
34
Ibid, [1.18]; see also [2.4].
35
Straw and Boateng, ‘Bringing Rights Home’ (n 5), 14.
36
Home Office, Rights Brought Home (n 5), 1.
37
HL Deb, vol 582, col 1228 (3 November 1997).
38
Ibid, col 1308.
39
HC Deb, vol 317, col 1358 (21 October 1998).
40
Minutes of evidence taken on Wednesday 14 March (2000–01 HL 66 HC 332). Building a culture of respect for human rights law
is now see as the responsibility of the Equality and Human Rights Commission created by the Equality Act 2006.

5
 Early judicial comment on the purpose of the HRA was reflective of the observations in Rights Brought
Home. For example, in his judgment in Lambert41 Lord Clyde stated that the HRA did not incorporate the rights
set out in the Convention into the domestic laws of the United Kingdom.

The purpose of the Act, as set out in its preamble, was ‘to give further effect to rights and freedoms’ guaranteed under
that Convention. The Convention rights have not become part of the constitution so as to obtain any superiority over
the powers of Parliament or the validity of primary legislation … One principle achievement of the Act is to enable
the Convention rights to be directly invoked in the domestic courts. In that respect the Act is important as a procedural
measure which has opened a further means of access to justice for the citizen, more immediate and more familiar than
a recourse to the Court in Strasbourg.

Lord Rodger emphasised in his judgment in Attorney General’s Reference No 2 of 200142 that these rights were
to have effect in a way that had not previously been possible in domestic law in that the national courts were to
have power to grant victims remedies in terms of the Act for violations of their rights.43
Judges have also found purposes beyond simply bringing rights home. Lady Hale has observed that the
HRA ‘is for the benefit of ordinary people who lead ordinary lives’.

[The HRA] is to protect them inter alia against arbitrary interceptions of their mail, email and telephone conversations,
searches of their homes and persons, arrest, prolonged imprisonment without charge or trial, enforced separation from
their children and families, trials in secret before military tribunals, inhuman and degrading treatment in hospital and
care homes. … It may well be that, in practice, the people who have had the most need of its protection are rather out
of the ordinary; but that does not alter the fact that it is there to protect us all as we go about our everyday lives. 44

She has also observed that the HRA is a limit upon what a democratically elected parliament may do in order to
‘protect the rights and freedoms of individuals and minorities against the will of those who are taken to represent
the majority’.45

4. Structure of the Human Rights Act

The Act … follows a scheme which recognises that the role of the judiciary is to apply and enforce the ‘Convention
rights’ municipally, treats the executive branch of government, in the form of any public authority, as being civilly
liable for any breach of the ‘Convention rights’ on its part and makes their offending conduct unlawful, and recognises
that laws passed by the Legislature may be incompatible with a ‘Convention right’.47

41
R v Lambert [2001] UKHL 37, [2002] 2 AC 545.
42
Attorney General’s Reference No 2 of 2001 [2003] UKHL 68, [2004] 2 AC 72.
43
Ibid, [173].
44
Friend v Lord Advocate [2007] UKHL 53, [2008] HRLR 11, [38].
45
R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2007] 3 WLR 922, [114].
46
See eg the comments of Lord Hobhouse in Wilson v First County Trust [2003] UKHL 40, [2003] 3 WLR 568.
47
Ibid, [126].

6
Section 1 defines the Convention rights given further effect. Section 2 provides that a court or tribunal
determining a question which has arisen in connection with a Convention right must take into account, inter alia,
any judgment, decision, declaration or advisory opinion of the ECtHR or opinion of the Commission. Section 6,
a key provision, states that it is unlawful for a public authority to act in a way which is incompatible with a
Convention right. This section also provides a defence to a public authority if, as a result of primary legislation,
it could not have acted differently. Section 7 provides that only the victims of the unlawful acts of public
authorities as defined in section 6 may bring proceedings under the HRA or rely on the Convention rights in any
legal proceedings. Section 8 sets out the remedies that may be granted for the acts of public authorities
incompatible with Convention rights.
The HRA preserves the sovereignty of Parliament and the section 6 defence is an important part of this
objective. Where primary legislation is itself incompatible with a Convention right, courts have two alternatives.
First, to use section 3 of the Act and read and give effect to the legislation in a way which is compatible with
Convention rights, so far as it is possible to do so. If this is not possible, the court may make a declaration of
incompatibility under section 4 of the Act. Such a declaration does not affect the validity, continuing operation
or enforcement of the provision. Once a declaration is made, section 10 of the Act applies, empowering a minister
to make such amendments to the legislation as considered necessary to remove the incompatibility. Schedule 2
of the Act makes further provision about such remedial orders.

In short, the HRA provides two different methods to ensure compliance with Convention rights:

One is for victims to bring proceedings in respect of an unlawful act of a public authority, or to rely on such an unlawful
act in other proceedings, pursuant to section 7(1) of the HRA. The other is to challenge the compatibility of legislation
under sections 3 and 4 of the HRA, irrespective of whether there has been any unlawful act by a public authority.48

And, as Lord Rodger commented in his judgment in Wilson,49 the HRA applies across the board:

While most statutes apply to one particular topic or area of law, the 1998 Act works as a catalyst across the board,
wherever a Convention right is engaged. It may affect matters of substance in such areas as the law of property, the
law of marriage and the law of torts. Or else it may affect civil and criminal procedure, or the procedure of
administrative tribunals.50

5. Convention Rights Given Further Effect

5.1 The Nature and Scope of the Convention Rights

The HRA gives further effect to the ‘Convention rights’, and in section 1 these are defined as Articles 2–12 and
14 of the ECHR, Articles 1–3 of Protocol No 1 to the ECHR and Articles 1–2 of Protocol No 6 to the ECHR.

48
In the Matter of an Application by the Northern Ireland Human Rights Commission for Judicial Review [2018] UKSC 27, [2018]
NI 228 at [17] per Lady Hale.
49
Ibid.
50
Ibid, [182].

7
All must be read with Articles 16 to 18 of the ECHR and have effect subject to any designated derogation or
reservation.
These rights are predominantly civil and political and, given that the ECHR was drafted in 1950 and
Protocol No 1 in 1952, are not the most modern list of rights that could be given effect.51 Nevertheless, as it is
often observed, these are fundamental and important rights.

Those who negotiated and first signed the convention were not seeking to provide a blueprint for the ideal society.
They were formulating a statement of very basic rights and freedoms which, it was believed, were very largely
observed by the contracting states and which it was desired to preserve and protect both in the light of recent experience
and in view of developments in Eastern Europe. The convention was seen more as a statement of good existing practice
than as an instrument setting targets or standards which contracting states were to strive to achieve. … Thus the rights
guaranteed by the convention were minimum rights.52

And, it has been assumed, these rights are ones with which the people of the United Kingdom are ‘plainly
comfortable’.53
At first there were different views as to whether, as a result of the HRA, the Convention rights were part of
domestic law or remained international law. Lord Hoffmann in his judgment in R v Lyons54 stated as follows:

Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English
law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms
part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to
interpretations of the treaty by an international court, even though the United Kingdom is bound by international law
to do so.55

Returning to the topic in his judgment in McKerr56 he stated that the HRA had created domestic rights expressed
in the same terms as those contained in the Convention. However, he saw these as domestic rights, not
international rights: ‘Their source is the statute, not the Convention. They are available against specific public
authorities, not the United Kingdom as a state. And their meaning and application is a matter for domestic courts,
not the court in Strasbourg.’57 As he later summarised, ‘[t]he Act did not transmute international law obligations
into domestic ones. It created new domestic human rights.’58 In the same case Lord Nicholls explained that ‘by

51
Compare eg the EU Charter of Fundamental Rights. See further G Van Bueren, ‘Including the Excluded: The Case for an
Economic, Social and Cultural Human Rights Act’ [2002] Public Law 456 and id, ‘Socioeconomic Rights and a Bill of Rights—An
Overlooked British Tradition’ [2013] Public Law 821.
52
Procurator Fiscal, Linlithgow v Watson [2002] UKPC D1, [2004] 1 AC 379, [48]–[49] per Lord Bingham. See also the comments
of Lord Bingham in Brown v Stott [2003] 1 AC 681 and in Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983,
[8]. As to the background to the rights included in the EHCR, see generally D Nicol, ‘Original Intent and the European Convention on
Human Rights’ [2005] Public Law 152.
53
Home Office, Rights Brought Home (n 9), [1.3].
54
R v Lyons [2002] UKHL 44, [2003] 1 AC 976.
55
Ibid, [27]. See also [40].
56
In re McKerr [2004] UKHL 12, [2004] 1 WLR 807.
57
Ibid, [65]. See also Lord Nicholls at [26], Lord Steyn at [50], Lord Rodger at [77].
58
Ibid, [68].

8
enacting the 1998 Act Parliament created domestic law rights corresponding to rights under the convention’.59
Picking up on these observations in his judgment in Al-Skeini,60 Lord Bingham noted that there was a
distinction between (1) rights arising under the Convention and (2) rights created by the 1998 Act by reference
to the Convention.61 However, in Animal Defenders62 he expressly disagreed with the comment of Lord Scott
that the Articles of the ECHR were a part of domestic law and that the House of Lords was the final court of
appeal on the interpretation and application of the Convention rights.63
The question arose again in the Supreme Court in its judgment in DSD64 where the Secretary of State had
argued that the Article 3 question should be left to the ECtHR. As Lord Kerr observed, the ‘sub-text to this
argument’ was that ‘where Strasbourg has not yet spoken, national courts should not venture forth.’65 A majority
disagreed. Lord Kerr held as follows:

. . . the courts of this country, constituted as they are as public authorities, must give effect to (or refuse to give effect
to) Convention rights as a matter of domestic law. The HRA introduced to the law of the United Kingdom the European
Convention on Human Rights and Fundamental Freedoms by making the Convention part of national law so that the
rights became domestic rights. Because the rights are domestic, they must be given effect according to the correct
interpretation of the domestic statute.66

He later observed that reticence by UK courts to decide whether a Convention right had been violated ‘would be
an abnegation of our statutory obligation under section 6 of the HRA.’67 For now, at least, the Convention rights
are considered a part of domestic law.

5.2 The Impact of Other International Conventions

Where another international convention is relevant to a HRA claim, as a matter of international law this may
displace the ECHR and alter the application of the Convention right at the national level.68 This was the position
in Al-Jedda69 where the claimant, a national of the UK and Iraq, was held in custody by British troops at a
detention facility in Iraq. He claimed under the HRA that his detention was in breach of Article 5 of the ECHR.
The question before the House of Lords was whether Article 5(1) of the ECHR was qualified by the legal
regime established pursuant to UN Security Council Resolution 1546, and subsequent resolutions, by reason of
the operation of Articles 25 and 103 of the UN Charter such that his detention was not actually in violation of

59
Ibid [34].
60
R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26.
61
Ibid, [10].
62
R (Animal Defenders) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312.
63
Ibid, [44].
64
Commissioner of Police of the Metropolis v DSD [2018] UKSC 11, [2019] AC 196.
65
[73].
66
[75].
67
[78]. Lord Neuberger and Lady Hale agreed.
68
See further C Eckes and S Hollenberg, ‘Reconciling Different Legal Spheres in Theory and Practice’ [2013] Maastricht Journal of
European and Comparative Law 220.
69
R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332.

9
Article 5(1). The House of Lords concluded that a binding Security Council decision taken under Chapter VII
of the Charter of the United Nations superseded all other treaty commitments.70

I do not think that the European Court, if the appellant’s article 5(1) claim were before it as an application, would
ignore the significance of article 103 of the Charter in international law. The court has on repeated occasions taken
account of provisions of international law, invoking the interpretative principle laid down in article 31(3)(c) of the
Vienna Convention on the Law of Treaties, acknowledging that the Convention cannot be interpreted and applied in a
vacuum and recognising that the responsibility of states must be determined in conformity and harmony with the
governing principles of international law.71

It held that where there was a clash between a power or duty to detain exercisable on the express authority of the
UN Security Council and a fundamental right which the UK had undertaken to secure to those within its
jurisdiction, this could only be reconciled by ruling that the UK may lawfully, where it was necessary for
imperative reasons of security, exercise the power to detain authorised by the UN Security Council Resolutions
but must ensure that the detainee’s rights under Article 5 were not infringed to any greater extent than was
inherent in such detention.72

5.3 The Convention as a ‘Living Instrument’

The language in which the Convention rights are written is open textured and permits adaptation to modern
conditions.73 The ECtHR regards the ECHR as a ‘living instrument’ and the House of Lords has confirmed that
it is a ‘living tree capable of growth and expansion within its natural limits.’74 What is written in the ECHR and
Protocol No 1 is only the starting point for determining the scope of the Convention rights. For example, the
right against self-incrimination, the right of access to a court and the right to equality of arms are all rights that
have been implied into Article 6, the right to a fair trial. The concept of living instrument also means that the
scope of a Convention right may change over time. For example, in its judgment in Bellinger75 the House of
Lords observed that although previously the ECtHR had determined that non-recognition of a change of gender
by a post-operative transsexual person did not constitute a violation of either Article 8 or Article 12, it had
recently changed this view in Goodwin v UK,76 finding that non-recognition by the state of a sex change
constituted a violation of Articles 8 and 12.77

70
Ibid, per Lord Bingham at [35].
71
Ibid, [36] per Lord Bingham.
72
Ibid, per Lord Bingham at [39]. See also A v Secretary of State for the Home Department [2005] UKHL 71, [2006] 2 AC 221; HM
Treasury v Ahmed [2010] UKSC 2, [2010] 2 AC 534.
73
R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2001] 3 WLR 1598 per Lord Steyn at [56].
74
Brown (n 52). See also the comments of Lord Clyde and the observations of Lord Bingham in Procurator Fiscal, Linlithgow v
Watson (n 52), [48]–[49].
75
Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467.
76
Goodwin v UK (2002) 35 EHRR 18.
77
See also R v Secretary of State for the Home Department, ex p Anderson [2002] UKHL 46, [2003] 1 AC 837 and Re McCaughey
[2011] UKSC 20, [2012] 1 AC 725 concerning the extension of the ambit of Art 2.

10
 There are limits to the living instrument approach. For example, in his judgment in Brown78 Lord Clyde
held that the Convention is dealing with the realities of life and it is not to be applied in ways which run counter
to reason and common sense. In his view, if the Convention rights were to be applied in ways which would seem
absurd to ordinary people, the courts would be doing a disservice to the aims and purposes of the Convention,
and the result would simply be to prejudice public respect for an international treaty which seeks to express the
basic rights and freedoms of a democratic society. Similarly, in his judgment in Matthews79 Lord Bingham
observed that

the exact limits of such rights are debatable and, although there is not much trace of economic rights in the 50-year-
old Convention, I think it is well arguable that human rights include the right to a minimum standard of living, without
which many of the other rights would be a mockery. But they certainly do not include the right to a fair distribution of
resources or fair treatment in economic terms—in other words, distributive justice. Of course distributive justice is a
good thing. But it is not a fundamental human right.80

Nevertheless, as discussed later in this chapter, there is considerable willingness on the part of UK courts to
follow the jurisprudence of the ECtHR regardless of the path that it has taken.

5.4 Absolute and Non-absolute Convention Rights

Very few of the Convention rights are expressed in absolute terms. The majority are limited or qualified and
determining the limits of these exceptions forms the bulk of HRA jurisprudence. In relation to absolute rights,
such Article 3, it has been held that such rights should not be capable in any circumstances of being overridden
by the majority, even if it is thought that the public interest so requires.81 For example, in Millar82 the absolute
right to an independent and impartial tribunal was upheld notwithstanding the prediction that the Scottish legal
system would be ‘plunged into chaos’ as a result.83
With respect to the non-absolute rights, as Lord Steyn noted in his judgment in Brown,84 the framers of the
Convention realised that from time to time the fundamental right of one individual may conflict with the human
right of another.

They also realised only too well that a single-minded concentration on the pursuit of fundamental rights of individuals
to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European liberal
democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we
live in communities of individuals who also have rights.

78
Brown (n 52).
79
Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163.
80
Ibid, [26]. See also the comments of Lord Scott in Harrow London Borough Council v Qazi (n 52), [123].
81
R v Secretary of State for the Environment, Transport and the Regions, ex p Alconbury Developments Ltd [2001] UKHL 23,
[2001] 2 WLR 1389 per Lord Hoffmann.
82
Millar v Procurator Fiscal [2002] 1 WLR 1615.
83
See eg J Oldham and A Jamieson, ‘Law Lords Rule Against Sheriffs’, The Scotsman, 26 July 2001, 2.
84
Brown (n 52).

11
For example, the judgment of the House of Lords in McCann85 concerned the making of anti-social behaviour
orders. Lord Steyn pointed out that in Parliament the view was that proceedings for an antisocial behaviour order
would be civil and would not ‘attract the rigour of the inflexible and sometimes absurdly technical hearsay rule
which applies in criminal cases’. In his view, if this supposition was wrong ‘it would inevitably follow that the
procedure for obtaining anti-social behaviour orders is completely or virtually unworkable and useless’. His
starting point was ‘an initial scepticism of an outcome which would deprive communities of their fundamental
rights’.86

5.5 Derogations and Reservations (deleted)

6. Principles of Interpretation
As already discussed, a number of principles of interpretation relate to the Convention rights including the
understanding that the rights given further effect are the most important and fundamental and the concept of
‘living instrument’. It has also been held that human rights are for everyone:

The whole point about human rights is their universal character. The rights set out in the European Convention are to
be guaranteed to “everyone” (article 1). They are premised on the inherent dignity of all human beings whatever their
frailty or flaws.87

Other principles of interpretation relevant to the process of determining incompatibility, such as the principles
of legality, necessity, proportionality and the practice of judicial deference, are discussed in Chapter 4.
Principles of interpretation also apply to the HRA itself. First, it has been held that a generous and purposive
construction is to be given to that part of a constitution which protects and entrenches fundamental rights and
freedoms, such as the HRA.88 It has also been held that the HRA ‘must be given its full import’ and that ‘long
or well entrenched ideas may have to be put aside, sacred cows culled’.89 Sometimes there is little evidence of
such an approach. An example is the question of retrospective effect. In the case of Lambert,90 only Lord Steyn
interpreted section 6 of the HRA in the ‘broader framework of an Act which was undoubtedly intended “to bring
home” the adjudication on fundamental rights’91 and concluded that it could apply to a trial which took place

85
R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787.
86
Ibid, [18]. See also the observations of Lord Hope at [41]-[43], Lord Hutton at [85] and [113].
87
Cheshire West v P [2014] UKSC 19, [2014] AC 896 at [36] per Lady Hale.
88
R v Director of Public Prosecutions ex p Kebilene [2000] 2 AC 326 per Lord Hope endorsing the observations of Lord
Wilberforce in Minister of Home Affairs v Fisher [1980] AC 319, 328 and Lord Diplock in Attorney-General of The Gambia v Momodou
Jobe [1984] AC 689, 700. See also the speeches of Lord Steyn in McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277
and Brown (n 52).
89
Lambert (n 41), per Lord Slynn. See also Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001]
EWCA Civ 595, [2000] QB 48 per Lord Woolf CJ at [58]. See further RA Edwards, ‘Generosity and the Human Rights Act: The Right
Interpretation?’ [1999] Public Law 400; D Pannick, ‘Principles of Interpretation of Convention Rights under the Human Rights Act and
the Discretionary Area of Judgment’ [1998] Public Law 545.
90
Ibid.
91
Ibid, [29]. See also the speech of Lord Clyde at [135].

12
before the Act came into force.92
Second, it has been held that, in accordance with section 3 of the HRA, the HRA itself must be read and
given effect in a way that is compatible with Convention rights.93 Whilst this has had some impact on the
interpretation of section 12 of the HRA, which concerns freedom of expression,94 as Article 13 of the ECHR,
the right to an effective remedy, is not a Convention right given further effect by the HRA, the potential for
radical reinterpretation of the key provisions of the HRA using section 3 is limited. Indeed it is likely that one
motivation for the exclusion of Article 13 from the list of Convention rights was the possibility that a court would
declare the HRA itself incompatible with Article 13 for failure to provide an effective remedy to those subject
to a violation of Convention rights perpetrated by primary legislation.
Third, satellite litigation within the criminal justice system utilising the HRA has been discouraged. For
example, in Kebilene95 prior to trial it was argued that the enactment of the HRA gave rise to an enforceable
legitimate expectation that the Director of Public Prosecutions would exercise prosecutorial discretion in
accordance with the Convention rights. Lord Steyn, with whom Lords Slynn and Cooke agreed, held that once
the HRA was fully in force it would not be possible to apply for judicial review on the ground that a decision to
prosecute was in breach of a Convention right and the only available remedies would be in the trial process or
on appeal.

If the Divisional Court’s present ruling is correct, it will be possible in other cases, which do not involve reverse legal
burden provisions, to challenge decisions to prosecute in judicial review proceedings. The potential for undermining
the proper and fair management of our criminal justice system may be considerable. 96

He continued:

While the passing of the Human Rights Act 1998 marked a great advance for our criminal justice system it is in my
view vitally important that, so far as the courts are concerned, its application in our law should take place in an orderly
manner which recognises the desirability of all challenges taking place in the criminal trial or on appeal. The effect of
the judgment of the Divisional Court was to open the door too widely to delay in the conduct of criminal proceedings.
Such satellite litigation should rarely be permitted in our criminal justice system.97

Finally, although the coming into force of the HRA has meant that many subject areas formerly regarded as not

92
See also Lord Steyn’s speech in Kebilene (n 99).
93
See the speeches of Lords Hope and Clyde in Lambert (n 41).
94
See Douglas v Hello! Ltd [2001] QB 967.
95
Kebilene (n 99).
96
Ibid, per Lord Steyn.
97
Lord Hope commented that he could see no reason why, in a clear case where the facts of the case were of no importance, a
decision that a provision was incompatible should not be capable of being taken at a very early stage. However, he agreed that, absent
dishonesty, bad faith or some other exceptional circumstance, the DPP’s decisions to consent or not to consent to a prosecution were not
amenable to judicial review. In Pretty (n 73) Lord Steyn at [67] stood by this rule as did Lord Hobhouse at [119], [121] and [123]. Lord
Hope at [78] held that in these exceptional circumstances it was open to Mrs Pretty to raise the issue by judicial review. In R v
Hertfordshire CC ex p Green Environmental Industries Ltd [2000] 2 AC 483 Lord Cooke stated that the comments in Kebilene (n 99)
concerning satellite litigation in the criminal justice system had nothing to say about the general ability by a citizen to challenge by
appropriate civil proceedings the validity of a requisition issued against him or her by a public authority—here a request for information
under the Environmental Protection Act 1990. Lord Hobhouse agreed. See further Alconbury (n 81).

13
justiciable have come under scrutiny, there are still limits on how far a court is prepared to go. This is discussed
in more detail in the context of each of the Convention rights but an example is Gentle98 where the House of
Lords was reluctant to find that Article 2 imposed upon the government a duty to establish an independent public
inquiry into all the circumstances surrounding the invasion of Iraq by British forces in 2003. Lord Bingham
observed that if the claimants had a legal right it was justiciable in the courts, but in deciding whether a right
existed, it was relevant to consider what exercise of the right would entail:

Thus the restraint traditionally shown by the courts in ruling on what has been called high policy—peace and war, the
making of treaties, the conduct of foreign relations—does tend to militate against the existence of the right.99

7. UK Courts and the European Court of Human Rights

7.1 Section 2, Human Rights Act

7.1.1 To ‘Take into Account’ and to Follow?

The relationship between UK courts and the ECtHR is regulated by section 2 of the HRA and many years of
judicial interpretation. Section 2 provides that a court or tribunal determining a question which has arisen in
connection with a Convention right, must take into account, inter alia, any judgment, decision, declaration or
advisory opinion of the ECtHR, whenever made or given, so far as, in the opinion of the court or tribunal, it is
relevant to the proceedings in which that question has arisen.
It has been held that section 2 ‘sharpens’ what would be the natural approach when construing provisions
designed to incorporate domestically the provisions of an international convention interpreted by an international
court.100 But the House of Lords has confirmed that section 2 does not make these decisions directly binding on
the courts,101 although this jurisprudence has been very warmly received. In his judgment in Alconbury102 Lord
Slynn observed:

Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged
to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that
the court should follow any clear and constant jurisprudence of the ECtHR. If it does not do so, there is at least a
possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant
jurisprudence.103

A few years later Lord Bingham held in Ullah104 that it was not possible for UK courts to adopt an interpretation

98
R (Gentle) v Prime Minister [2008] UKHL 20, [2008] 1 AC 1356.
99
Ibid, [8]. Contrast the approach of the majority of the Supreme Court in Smith v Ministry of Defence [2013] UKSC 41, [2013] 3
WLR 69. See further R Moosavian, ‘Judges and High Prerogative: The Enduring Influence of Expertise and Legal Purity’ [2012] Public
Law 724.
100
[35] Lord Mance, R. (Hallam) v Secretary of State for Justice [2019] UKSC 2, [2020] AC 279.
101
R v Lyons (n 54), per Lord Millet at [105].
102
Alconbury (n 81).
103
Ibid, [26]. See also the observations of Lady Hale in Hallam (n 111) at [76].
104
Ullah (n 67).

14
of Convention rights more generous to a claimant than that adopted by the ECtHR. In his opinion, the ECHR
was an international instrument, the correct interpretation of which could be authoritatively expounded only by
the ECtHR:

From this it follows that a national court subject to a duty such as that imposed by s 2 should not without strong reason
dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under s 6 of the 1998 Act for a public
authority, including a court, to act in a way which is incompatible with a convention right. It is of course open to
member states to provide for rights more generous than those guaranteed by the convention, but such provision should
not be the product of interpretation of the convention by national courts, since the meaning of the convention should
be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg
jurisprudence as it evolves over time: no more, but certainly no less. 105

Similarly, in her judgment in Al-Skeini,106 Lady Hale held that if Parliament wished to go further, or if the courts
wished to develop the common law further, this was possible. ‘But that is because they choose to do so, not
because the Convention requires it of them.’107
Adherence to ECtHR jurisprudence does have some advantages for the protection of human rights. Its
reception into the law of the UK has been, on the whole, a positive development and has enabled the judiciary
to take many decisions which they might not have been prepared to take without it.108 The Convention rights
would have had little meaning without the backing of the jurisprudence of the ECtHR. But following too closely
can have a downside. In some instances, a more generous interpretation of Convention rights has been prevented
by a particular judgment or series of judgments from the ECtHR. For example, in N v SSHD109 the House of
Lords had to determine whether an individual could resist deportation from the UK to Uganda on Article 3
grounds because she had advanced HIV/AIDS. All were careful to point out that they were only applying the
Strasbourg case law and would not be diverted by their sympathy for the appellant.110 Lady Hale stated that she
would prefer not to follow Strasbourg but felt compelled to do so:

[W]e would be implying far more into our obligations under article 3 than is warranted by the Strasbourg jurisprudence,
if we were to allow the appeal in this case, much though I would like to be able to do so. 111

Close adherence to Strasbourg jurisprudence can also mean that UK judges are not making a full contribution to
the interpretation and development of Convention standards. The ECtHR is not formally bound to follow its

105
Ibid, [20].
106
Al-Skeini (n 60).
107
Ibid, [90]. See also Jones v Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270; Secretary of State for the Home Department v AF
[2009] UKHL 28, [2009] 3 WLR 74; Cadder v HM Advocate [2010] UKSC 43 where the SC noted that a unanimous decision of the
Grand Chamber was a formidable reason for following it at [46]; Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC
104; and Re McCaughey (n 77).
108
See eg Ullah (n 67). See also R. (Agyarko) v SSHD [2017] UKSC 11, [2017] 1 WLR 823.
109
N v SSHD [2005] UKHL 31; [2005] 2 AC 296.
110
Ibid, Lord Nicholls at [18], Lord Hope at [25].
111
Ibid, [71]. See also the observations of Lord Brown in the Countryside Alliance case (n 45), [139] and [141]; R (Begum) v Denbigh
High School [2006] UKHL 15, [2007] 1 AC 100. However, in its judgment in McLaughlin [2018] UKSC 48, [2019] NI 66 the Supreme
Court did not follow an admissibility decision of the ECtHR in order to be more generous to a claimant.

15
previous judgments and is willing to respond to changing conditions and any emerging consensus discernible
within the domestic legal order.112

7.1.2 Problems with the ‘Ullah Approach’

Many scholars have questioned why UK courts have followed ECtHR jurisprudence so closely when there is no
strict legal basis for it in common law, statute law or international law. 113 The drafters of the HRA never intended
to make ECtHR jurisprudence binding. During parliamentary debates on the Human Rights Bill the Lord
Chancellor stated that there may be occasions when it would be right for UK courts to depart from ECtHR
decisions.114
In Ullah Lord Bingham explained that only the ECtHR could correctly interpret the ECHR and that the
meaning of the ECHR should be uniform throughout the states party to it.115 It is true that a more narrow
interpretation of Convention rights by a state may undermine the effectiveness of the ECHR system and make a
mockery of that state’s international obligations. However, it is difficult to see how a national court adopting a
more generous interpretation of Convention rights could impact on the effectiveness of the ECHR system.
Furthermore, to see the ECtHR as the only institution capable of correctly interpreting the ECHR leaves the
‘Convention rights’ as part of international law when these are clearly now a part of UK law. As Lord Hoffmann
held in McKerr116 the HRA has created domestic rights expressed in the same terms as those contained in the
Convention:

But they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available
against specific public authorities, not the United Kingdom as a state. And their meaning and application is a matter
for domestic courts, not the court in Strasbourg.117

Forty-seven states have ratified the ECHR and accepted the jurisdiction of the ECtHR. It is difficult to imagine
a German court, for example, considering itself bound by a particularly generous interpretation of Convention
rights by the UK Supreme Court although this might provide strong persuasive authority.
There are genuine concerns about what might happen if a UK court adopts an interpretation of Convention
rights which is too narrow or too generous. A narrow construction may result in a successful claim to the ECtHR.

112
See further M Amos, ‘The Dialogue between United Kingdom Courts and the European Court of Human Rights’ (2012) 61
International and Comparative Law Quarterly 557.
113
See eg R Clayton, ‘Smoke and Mirrors: The Human Rights Act and the Impact of Strasbourg Case Law’ [2012] Public Law 639;
Lord Irvine, ‘A British Interpretation of Convention Rights’ [2012] Public Law 237; P Sales, ‘Strasbourg Jurisprudence and the Human
Rights Act: A Response to Lord Irvine’ [2012] Public Law 253; A Kavanagh, ‘Strasbourg, the House of Lords or Elected Politicians:
Who Decides about Rights after Re P?’ [2009] Modern Law Review 828; J Wright, “Interpreting Section 2 of the Human Rights Act
1998: Towards an Indigenous Jurisprudence of Human Rights’ [2009] Public Law 595; H Fenwick and R Masterman, ‘The Conservative
project to break the link between British courts and Strasbourg: rhetoric or reality’ [2017] 80 Modern Law Review 1111.
114
HL Deb vol. 584, col. 1271 (19 January 1998).
115
Ullah (n 67), [20]. This was repeated by the House of Lords in its judgment in R (Gentle) v Prime Minister (n 109).
116
In re McKerr (n 56).
117
Ibid, [65] See also Lord Nicholls at [26], Lord Steyn at [50] and Lord Rodger at [77].

16
A more generous interpretation is also problematic as Contracting States have no standing to bring the matter
before the ECtHR to have the issue considered again.118 This was influential on the decision of the Supreme
Court in Flood119 where it did not express a concluded view on whether or not a judgment of the ECtHR laid
down a general rule because the UK government was not a party before it.

If we were to conclude that the Rule is part of domestic law, it would not technically bind the government, but it would
make it difficult for the government to re-open the question in this country, and it could make it more difficult for the
government to challenge the conclusion and reasoning in MGN v UK in Strasbourg.120

In his dissenting judgment in Kennedy, Lord Carnwath observed that whilst in some circumstances such concerns
would be a good reason for taking a more conservative approach, account also had to be taken of unfairness to
the claimant:

Account must also be taken of the unfairness to the claimant and the interests he represents of denying or delaying an
immediate domestic remedy to which he is apparently entitled under the most recent Strasbourg case law. In my view,
the court may also take account of how far the new approach accords with recognised principles of domestic law. The
government’s wish to challenge a new direction of travel in the Grand Chamber carries less weight if that direction is
one which has already been taken by domestic law.121

The Court determined the appeals before it without taking a concluded view.

7.1.3 The Current Approach of UK Courts to ECtHR Jurisprudence

As the criticism of the Ullah approach has grown, there has been a retreat from it. A majority of the Supreme
Court in its judgment in DSD122 held that it was not necessary for UK courts to hold back when the ECtHR had
‘not yet spoken’.123 Lord Kerr observed that the Convention rights are domestic and therefore must be given
effect according to the correct interpretation of a domestic statute.124 He noted that in more recent cases there
was a departure from the ‘mirror principle’ whereby ‘pronouncements by national courts on Convention rights
should precisely match those of Strasbourg’125 He rejected the suggestion that the courts should be inhibited by
the absence of authoritative guidance from Strasbourg.126 Lord Neuberger expressed the freedom of national
courts in even stronger terms:

118
See the observations of Lord Brown in Al-Skeini (n 60), [106].
119
Times Newspapers Ltd v Flood [2017] UKSC 33, [2017] 1 WLR 1415.
120
[29].
121
[218].
122
Commissioner of Police of the Metropolis v DSD (n 64).
123
Lord Kerr, [73]-[74].
124
[75].
125
[76]. He cited Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72; Surrey County Council v P [2014]
UKSC 19, [2014] AC 896; and Moohan v Lord Advocate [2014] UKSC 67, [2015] AC 901.
126
[79]

17
 Of course, this Court is not required to follow Strasbourg jurisprudence, even in a case such as this where there is a
clear and consistent approach adopted in a significant number of chamber decisions. Dialogue between the United
Kingdom Supreme Court (and indeed other courts in the United Kingdom) and the Strasbourg court has proved to be
beneficial to the development of human rights law in this jurisdiction - and, I hope, in Strasbourg. Accordingly, if it
appears to us that the narrower approach is even only probably correct, the fact that the Strasbourg court has
consistently taken a different view should not necessarily stand in the way of our coming to a contrary conclusion. 127

But despite these bold words, in most claims, UK courts continue to take into account and follow ECtHR
jurisprudence. Lord Wilson observed in his judgment in Hallam, the duty to take account ‘should almost always
lead our domestic courts to adopt it.128 Nevertheless, over time, clear exceptions have emerged. A judgment of
the ECtHR cannot prevail if it conflicts with primary legislation and it is not possible for the court to utilise the
interpretative power contained in section 3 of the HRA. All that a court may do in such instances is issue a
declaration of incompatibility using section 4. It is also not possible for a UK court to follow a judgment of the
ECtHR which conflicts with a binding domestic precedent.129 A court below the level of the Supreme Court
confronted with this dilemma can only express its views and give leave to appeal.130 Three additional exceptions
are considered in following paragraphs.

7.2 Exceptions to the ‘Ullah Approach’

7.2.1 Judgment of ECtHR considered to be ‘wrong’

First, a judgment of the ECtHR might not be followed if a UK court considers that it is wrong. In his judgment
in Alconbury131 Lord Hoffmann held that the House of Lords was not bound by decisions of the ECtHR which
compelled a conclusion fundamentally at odds with the distribution of powers under the British constitution.132
Similarly in R v Lyons133 he stated that if an English court considered that the ECtHR had misunderstood or been
misinformed about some aspect of English law, it may wish to give a judgment which invited the ECtHR to
reconsider the question as ‘there is room for dialogue on such matters.’134 In his dissenting judgment in Hallam,
Lord Reed referred to the importance of dialogue:

127
[91]. See also the observations of Lord Mance at [153]. See also the observations of Lord Kerr in his judgment in Keyu v Secretary
of State for Foreign & Commonwealth Affairs [2015] UKSC 69, [2016] AC 1355 at [229] and the judgment of the Court of Appeal in In
the Matter of an Application by Close [2020] NICA 20. Contrast the approach of the majority of the Supreme Court in Kennedy v
Information Commissioner [2014] UKSC 20, [2015] AC 455
128
Hallam, (n 111), [87]. See also AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, [2020] 2 WLR
1152.
129
WB v W District Council [2018] EWCA Civ 928, [2019] QB 625; Bristow v Secretary of State for Justice [2015] EWCA Civ 1170.
130
Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465, per Lord Bingham at [44] with whom the others
agreed. See also R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311 per Lord Neuberger at [59]–
[67]. A recent illustration is R. (Stott) v Secretary of State for Justice [2018] UKSC 59, [2020] AC 51.
131
Alconbury (n 81).
132
Ibid, [76].
133
R v Lyons (n 54).
134
Ibid, [46].

18
 [I]t can sometimes be inappropriate to follow Strasbourg judgments, as to do so may prevent this court from engaging
in the constructive dialogue or collaboration between the European court and national courts on which the effective
implementation of the Convention depends. In particular, dialogue has proved valuable on some occasions in relation
to chamber decisions of the European court, where this court can be confident that the European court will respond to
the reasoned and courteous expression of a diverging national viewpoint by reviewing its position. 135

However, Lord Reed held that there was unlikely to be scope for dialogue where there was a clear and constant
line of decisions, or where an issue had been authoritatively decided by the Grand Chamber.136 The majority did
not agree.
It is unusual for UK courts to question ECtHR jurisprudence and there are very few examples of this
exception in practice and almost all concern Article 6 ECHR (fair trial) where UK judges clearly feel more
comfortable than they do in relation to other Convention rights. An example is the judgment of the House of
Lords in Boyd.137 In determining whether the appointment of junior officer members to courts martial and the
role of the reviewing authority were compatible with Article 6, the House of Lords did not follow the judgment
of the ECtHR in Morris138 where the ECtHR had found a violation on the same issue. Lord Bingham explained
that there were a large number of points at issue in Morris and that, on this particular aspect, the ECtHR did not
receive all the help which was needed to form a conclusion.139
Another example is the judgment of the Supreme Court in Horncastle.140 It was argued that it was in breach
of Article 6 to place before the jury the statement of a witness who had not been called to give evidence. The
claim was based on the judgment of the ECtHR in Al-Khawaja141 where a breach of Article 6 had been found
when statements had been admitted in evidence of a witness who was not called in a criminal trial. The Supreme
Court accepted that the requirement to ‘take into account’ would normally result in the court applying the
principles that were clearly established by the ECtHR. However, it concluded that in this case, Al-Khawaja
would not be followed as this was a ‘rare occasion’ where it had concerns as to ‘whether a decision of the
Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process.’

In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting
this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision
that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg
Court. This is such a case.142

135
[172].
136
[173]. See also the comments of Lord Kerr at [205].
137
Boyd v The Army Prosecuting Authority [2002] UKHL 31, [2003] 1 AC 734.
138
Morris v UK (2002) 34 EHRR 1253.
139
Boyd (n 148), [12]–[13]. See also Brown (n 52); Al-Skeini (n 60); Doherty v Birmingham City Council [2008] UKHL 57, [2008] 3
WLR 636 per Lord Hope at [20]; R (Animal Defenders International) v Secretary of State for Culture, Media & Sport (n 62) per Lord
Bingham at [29].
140
R v Horncastle [2009] UKSC 14, [2010] 2 AC 373.
141
Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.
142
R v Horncastle (n 151), [11].

19
The final example is the judgment of the majority of the Supreme Court in Hallam.143 In the majority, Lord
Mance observed that the ‘vagueness’ about general principles in the relevant jurisprudence was indicative of the
‘uncertain and shifting ground’ onto which the ECtHR’s expansion of the meaning and application of Article
6(2) had led.144 He discussed how a particular line of authority from the ECtHR was ‘unfortunate’ and pointed
out how it caused difficulties.145 He did not regard the current state of ECtHR case law as ‘coherent or settled’
on the important points. He also questioned whether uniformity of approach was critical in this area of law.146
He confirmed that he would not depart from domestic authority on the question, or follow the case law of the
ECtHR, including a Grand Chamber judgment.147 Lord Wilson also observed that on the question, the ECtHR
had allowed its analysis to be ‘swept into hopeless and probably irretrievable confusion’.148 He stated that the
line of jurisprudence from the ECtHR was ‘not just wrong but incoherent’149 and concluded that the Supreme
Court should not adopt the meaning ascribed to Article 6(2) by the ECtHR.150
Some judges have suggested that there is less compulsion to follow a ECtHR judgment where it is only a
Chamber judgment rather than a judgment of the Grand Chamber.151 In its judgment in Poshteh152 the Supreme
Court held that a Chamber judgment of the ECtHR was not a ‘sufficient reason to depart from the fully
considered and unanimous conclusion’ of the Supreme Court. It held that it was appropriate to wait for a full
consideration by the Grand Chamber before considering modification of its own position.153 In its judgment in
McLaughlin154 a majority of the Supreme Court did not follow an ECtHR admissibility decision, Lord Mance
held that the reasoning in the decision did not address an important issue.155
But such an approach is not consistent. In its judgment in Stott156 a majority of the Supreme Court followed
a Chamber judgment notwithstanding it directly contradicted an earlier conclusion of the House of Lords.157 In
its judgment in Whiston158 the Supreme Court was influenced by two admissibility decisions on the basis that
the argument was so weak ‘it was not even worth proceeding to a decision’.159

7.2.2 An Absence of ‘Clear and Constant Jurisprudence’

143
Op cit
144
[46]
145
[49]
146
[73]. Contrast the view of Lord Neuberger on the importance of uniformity of approach regarding the question at issue in Keyu (n
138).
147
[53]
148
[85]
149
[90]
150
[93]-[94]. See also the comments of Lord Hughes at [126]-[127]. A further example is R. (Kaiyam) v Secretary of State for Justice
[2014] UKSC 66, [2015] AC 1344 although the Supreme Court later changed its mind in Brown v Parole Board [2017] UKSC 69,
[2018] AC 1 and held that the relevant judgment of the ECtHR should be followed.
151
See the comments of Lady Hale in Hallam (n 111) at [78] and the comments of Lord Mance in Kennedy (n 138) at [94].
152
Poshteh v Kensington & Chelsea Royal London Borough Council [2017] UKSC 36, [2017] AC 624.
153
[37].
154
McLaughlin (n 122).
155
[49]. Contrast the dissenting judgment of Lord Hodge, [64].
156
R. (Stott) v Secretary of State for Justice (n 141).
157
Lord Carnwath dissented on this point preferring to wait for confirmation from the Grand Chamber, [179].
158
R (Whiston) v Secretary of State for Justice [2014] UKSC 39, [2015] AC 176.
159
[44].

20
The second exception is that a court might decide that a judgment of the ECtHR need not be followed as it is not
in keeping with the ‘clear and constant jurisprudence’ requirement set out in Alconbury. For example, in Quila160
the Supreme Court declined to follow a judgment of the ECtHR given in 1985 as it was an old decision, there
was dissent from it at the time and more recent decisions of the ECtHR were inconsistent with it. It found no
‘clear and constant’ jurisprudence to follow.161
Where the ECtHR jurisprudence is not clear and constant, it is up to the national court to reach a decision
on the applicable law. For example, in its judgment in Hicks162 the Supreme Court held that the Strasbourg case
law on the interpretation and application of an aspect of Article 5 was not clear and settled, therefore it had a
‘judicial choice’ to make.163 As Lady Hale has held, judges do not have to wait until a case reaches Strasbourg
before deciding what the answer should be. ‘We have to do our best to work it out for ourselves as a matter of
principle.’164 A majority of the Supreme Court in its judgment in Kennedy165 held that the jurisprudence of the
ECtHR on the question before it was ‘neither clear nor easy to reconcile.’166 Lord Mance continued:

Whatever the reason for the present state of authority in Strasbourg, we have, without over-concentrating on individual
decisions, to do our best to understand the underlying principles, as we have done in previous cases. 167

Sometimes judges are divided as to the clarity of ECtHR jurisprudence. An example is the judgment of the
Supreme Court in Keyu.168 The majority regarded the relevant ECtHR jurisprudence as clear noting that the
ECtHR had ‘rightly imposed some pretty clear rules with a view to ensuring a degree of clarity and consistency
in this area.’169 By contrast, Lord Kerr found no ‘clear and constant line of jurisprudence’ on the relevant point170
and held that given there was no clear guidance, the Supreme Court should form its own judgment as to what
was appropriate.171 Lady Hale held that the jurisprudence did not point convincingly ‘one way or the other’.172
It is also possible for there to be no relevant ECtHR jurisprudence for a UK court to follow. In such
instances, UK courts are free to interpret and apply the Convention right for themselves. Lady Hale has described
this process as follows:

There may be other situations in which the courts of this country have to try to work out for themselves where the
answer lies, taking into account, not only the principles developed in Strasbourg, but also the legal, social and cultural

160
Quila v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621.
161
Ibid, per Lord Wilson at [46] with whom the majority agreed.
162
R. (Hicks) v Commissioner of Police of the Metropolis [2017] UKSC 9, [2017] AC 256.
163
[32].
164
Keyu (n 138) [291].
165
Kennedy (n 138).
166
[59] per Lord Mance.
167
[60]. See also Cheshire West v P (n 98).
168
Keyu (n 138).
169
[90] per Lord Neuberger.
170
[212].
171
[235].
172
[290]. See also the difference in approach between the majority and minority judgments in Kennedy (n 138).

21
 traditions of the United Kingdom.173

For example, in Austin174 the House of Lords observed that the application of Article 5(1) to measures of crowd
control was something the ECtHR had not considered. There was no direct guidance as to whether Article 5(1)
was engaged when police imposed restrictions on movement for the sole purpose of protecting people from
injury or avoiding serious damage to property.175 The House of Lords’ conclusion that the police cordon
restricting the claimant’s liberty was not the kind of arbitrary deprivation of liberty proscribed by the Convention
was eventually approved by the ECtHR itself, demonstrating the contribution which can be made by UK judges
to the jurisprudence of the Court.176 The judgment of the majority of the Supreme Court in Mohammed177 is also
an illustration of the interpretation of existing ECtHR jurisprudence to apply to a situation not previously
contemplated although it is important to note that the minority interpreted the same jurisprudence to produce the
opposite conclusion.

7.2.3 Subject Matter Engages the UK’s Margin of Appreciation

The third and final exception is that it is possible for a court to not follow a judgment of the ECtHR if it concludes
that the subject matter of the claim engages the UK’s ‘margin of appreciation’. This is the principle employed
by the ECtHR to allow a degree of latitude to states as to how they protect the rights set out in the Convention.
It is ‘especially important in areas where there is said to be an absence of consensus or common practice across
Europe’.178 A margin of appreciation is accorded to a contracting state because ‘Strasbourg acknowledges that
the issue in question can be answered in a variety of Convention-compatible ways, tailored to local
circumstances.’179
The Supreme Court in its judgment in Nicklinson180 was unanimous in its view that the subject matter of
the claim, the lawfulness of the ban on assisted suicide, engaged the UK’s margin of appreciation. From this, a
majority concluded it was therefore appropriate for UK judges to form their own view as to whether or not there
was a breach of Convention rights. Lord Neuberger commented as follows:

In a case such as this, the national courts therefore must decide the issue for themselves, with relatively unconstraining
guidance from the Strasbourg court, albeit bearing in mind the constitutional proprieties and such guidance from the
Strasbourg jurisprudence, and indeed our own jurisprudence, as seems appropriate. 181

173
[291] Keyu (n 138). See also R. (Elan-Cane) v SSHD [2020] EWCA Civ 363 at [45]
174
Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 AC 564.
175
Ibid, [23] per Lord Hope.
176
Austin v United Kingdom ECtHR Grand Chamber 15 March 2012. See also Ali v Birmingham City Council [2010] UKSC 8.
177
Mohammed v Ministry of Defence [2017] UKSC 2, [2017] AC 821.
178
T Lewis, ‘What Not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’ (2007) 56 International and
Comparative Law Quarterly 395, 397.
179
In the Matter of an Application by Gaughran for Judicial Review [2015] UKSC 29, [2016] AC 345, Lord Kerr, [101].
180
R. (Nicklinson) v Ministry of Justice [2014] UKSC 38, [2015] AC 657
181
[70]. See also the comments of Lord Mance at [162]-[163], Lady Hale at [299], Lord Kerr at [342]. See also R. (Conway) v
Secretary of State for Justice [2018] EWCA Civ 1431, [2018] 3 WLR 925

22
This exception is very rarely employed and originally was subject to doubt182 but in its judgment in In re P183
the House of Lords confirmed and applied it. The question was whether or not it was compatible with Articles 8
and 14 for a couple to be excluded from consideration as the adoptive parents of a child on the ground only that
they were not married to each other. Having considered the judgments of the ECtHR, Lord Hoffmann found
support for the conclusion that there was a violation of Article 14, although he was concerned that such a
conclusion went further than the ECtHR. He held that Lord Bingham’s observations in Ullah had no application
here as the remarks were not made in the context of a case where the ECtHR had declared a question to be within
the national margin of appreciation. In his view this meant that the question was one for the national authorities
to decide for themselves and different states may well give different answers.184 The House of Lords concluded
that the question was within the national margin of appreciation and it could reach its own judgment:

[I]t is for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-
making powers of courts and Parliament in the way which appears appropriate for the United Kingdom . . . It follows
that the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational
interpretation to the concept of discrimination on the ground of marital status. 185

A further example is Gaughran.186 Here the Supreme Court determined the lawfulness of the Police Service of
Northern Ireland retaining personal information and data obtained from a convicted person. There was a
judgment of the ECtHR relevant to the question, S and Marper v UK, and it was noted by the majority that in
its judgment, the ECtHR had left a margin of appreciation to competent national authorities.187 It was also noted
that the ECtHR was not considering in this judgment the position of convicted people.188 The majority concluded
as follows:

Taking account of all relevant factors . . . the balance struck by the Northern Irish authorities, and indeed in England
and Wales, is proportionate and justified. It is within the margin of appreciation which the ECtHR accepts is an
important factor. There is in my opinion nothing in the Strasbourg jurisprudence which leads to a different
conclusion.189

Lord Kerr, in his dissenting judgment, cautioned against a too liberal approach to a margin of appreciation
exception:

For a margin of appreciation to be accorded to the choice of the member state, however, some consideration must have
been given by that state to the issues at stake and a considered judgment must have been made on the options available.

182
See Kay v Lambeth London Borough Council (n 141) per Lord Bingham at [44]; Secretary of State for Work and Pensions v M
[2006] UKHL 11, [2006] AC 91 per Lord Nicholls at [30] and per Lord Mance at [136]; R (Countryside Alliance) v Her Majesty’s
Attorney General ( n 45) per Baroness Hale at [124]–[132] and Lord Brown at [141].
183
In re P [2008] UKHL 38, [2008] 3 WLR 76.
184
Ibid, [31].
185
See also Lord Hope at [50], Baroness Hale at [120], Lord Mance at [129].
186
In the Matter of an Application by Gaughran (n 190).
187
[27].
188
[29].
189
[38]. The ECtHR reached the opposite conclusion in Gaughran v UK, ECtHR, 13 February 2020.

23
 One cannot excuse a slack or ill-considered policy as survivable just because it can be said to be open to the member
state to make a choice which is different from that of other member states. There needs to be some form of evaluation
or judgment of the issues at stake. If the choice is the product of consideration and is designed to meet the particular
circumstances or conditions encountered in the particular member state, that is one thing. But an ill-thought out policy
which does not address the essential issues of proportionality cannot escape condemnation simply because a broad
measure of discretion is available to an individual state. 190

7.3 The Changing Jurisprudence of the ECtHR

In addition to the duty to take into account, to follow, and the exceptions to these duties, it is important to also
consider how the national legal system accommodates changing ECtHR jurisprudence. As already discussed,
the ECtHR views the ECHR as a living instrument, the meaning of which may change over time. For judges to
closely follow this jurisprudence can mean that domestic law has changed and a new avenue for redress has
opened up.191 This can lead to previously litigated issues being litigated once again. However, it is important to
note that an application to the ECtHR does not constitute an appeal. It is step taken ‘on the plane of international
law, not domestic law’. The fact that the ECtHR might eventually come to a different conclusion on the same
facts is only a finding relevant to a claim in international law.192

An example is Purdy193 where the House of Lords, following the judgment of the ECtHR in Pretty v UK,194
reversed its own conclusion in its judgment in Pretty195 and accepted that section 2(1) of the Assisted Suicide
Act 1961 constituted an interference with the right to respect for private life as protected by Article 8(1). Lord
Hope confirmed that the House was free to depart from its earlier decisions and follow that of the ECtHR:

[T]he interests of human rights law would not be well served if the House were to regard itself as bound by a previous
decision as to the meaning or effect of a Convention right which was shown to be inconsistent with a subsequent
decision in Strasbourg. Otherwise the House would be at risk of endorsing decisions which are incompatible with
Convention rights.196

In its judgment in Harkins197 the Administrative Court considered an application for judicial review of a decision
of the Secretary of State, based on a new ECtHR judgment, after a challenge to that decision had already been
rejected and the issue finally determined. It held that it was only prepared to re-open the case if the three
conditions set out in Part 52.17 of the Civil Procedure Rules were met. These were: (a) it was necessary to do so
in order to avoid injustice; (b) the circumstances were exceptional and made it appropriate to re-open the appeal;

190
[100].
191
This has been a particular problem where claimants have argued that Art 8 of the ECHR applies to an order for possession. See
Doherty v Birmingham City Council (n 150) and Manchester City Council v Pinnock (n 118).
192
Minshall v Revenue & Customs Commissioners [2015] EWCA Civ 741 at [36]. See also R (Minton Morrill Solicitors) v Lord
Chancellor [2017] EWHC 612 (Admin), [2017] HRLR 5 and R v Abdurahman [2019] EWCA Crim 2239, [2020] 4 WLR 6.
193
R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2009] 3 WLR 403.
194
Pretty v United Kingdom (2002) 35 EHRR 1.
195
R (Pretty) v Director of Public Prosecutions (n 73).
196
Ibid, [34]. See also R (GC) v Commissioner of Police for the Metropolis [2011] UKSC 21, [2011] 1 WLR 1230; R. (Stott) v
Secretary of State for Justice (n 141); and Brown v Parole Board for Scotland (n 161).
197
R. (Harkins) v SSHD [2014] EWHC 3609 (Admin), [2015] 1 WLR 2975.

24
and (c) there was no alternative remedy. Nonetheless, it was accepted ‘that if there has been a change in the law
such as fundamentally to affect the human rights of an applicant, that could, in sufficiently exceptional
circumstances, give grounds for re-opening a case that has already been determined.’198 It held that the test had
not been satisfied here.

7.4 Decisions of the Committee of Ministers

Section 2(1)(d) of the HRA also requires courts to take into account decisions of the Committee of Ministers.
This is the body of the Council of Europe which oversees the execution of judgments of the ECtHR. In its
judgment in Finucane199 the Supreme Court held that it was not necessary for it to abide by a decision of the
Committee of Ministers as the context in which the Committee took its decision was different from that in which
the Supreme Court had been asked to decide the question.200 It held that this was not a finding that the Article 2
obligations of the UK were more extensive in the domestic legal order than in Strasbourg. It was ‘no more than
a contemporaneous judgment on circumstances which differ widely from those which the Committee had to
confront.’201 Furthermore, it noted that the Committee’s decision was guided by political judgment whilst the
court’s decision ‘must be guided solely by its perception of the correct legal principles to be applied.’202 It stated
that this did not mean such a decision can or should be ignored as it must be considered. ‘But the context and
circumstances in which the decision was reached and the change in circumstances which have occurred since
that time cannot be left out of account.’203

8. Other Aids to Interpretation (deleted)

9. The Protection of Human Rights via the Common Law and EU Law (deleted)

10. Reform of the Human Rights Act (deleted)

198
[66].
199
In the Matter of a Judgment by Finucane for Judicial Review [2019] UKSC 7, [2019] NI 292.
200
[142].
201
[144].
202
[145].
203
[147].

25