This chapter examines the key mechanisms in the Human Rights Act:
the duty on courts to take into account the Strasbourg judgments (s.2)
the interpretation of legislation (s.3)
declarations of incompatibility (s.4)
the acts of public authorities and the meaning of public authority (s.6)
judicial remedies (s.8)
the power to take remedial action (s.10_
freedom of expression (s.12)
freedom of thought, conscience and religion (s.13)
reservations and derogations (s.14 & s.15)
statements of compatibility (s.19)
Whatever domestic legislation is used to incorporate the Convention rights, there will need to be a supporting machinery for regulating the relationship between the Executive, Parliament and the courts, particularly in matters of public policy, and between the UK courts and the European Court of Human Rights. Ultimately, the machinery needs to maintain the sovereignty of parliament.
These were the objectives behind the mechanisms in the Human Rights Act. Far from undermining parliamentary sovereignty, the evidence demonstrates that these mechanisms work effectively and are instrumental to an open and transparent democracy.
1. Section 2: Interpretation of Convention rights
Those familiar with the workings of the British legal system will be familiar with the doctrine of binding precedent, which is, that a decision by a superior court will be binding on inferior courts. It is a fundamental doctrine of common law jurisdictions. Steeped in this legal tradition, it is easy to understand why there is a mistaken belief that the judgments of the ECtHR ('Strasbourg judgments) - a supranational court - are binding on British courts.
However, as stated, this belief is a mistaken one, not least because it does not fit with the legal traditions of our European neighbours whose civil law systems do not usually follow the doctrine of binding precedent. However, the Human Rights Act also makes it clear that the Strasbourg judgments are not binding on British courts.
What is the duty 'to take into account'?
Section 2 of the HRA requires a court or tribunal, when determining an issue in connection with a Convention right, to ‘take into account’ any relevant judgment, decision, declaration or advisory opinion of the European Court of Human Rights as well as relevant opinions or decisions of the European Commission of Human Rights50 and the Committee of Ministers51.
How does it work?
The Convention rights are binding on the UK Government but their content inevitably needs to be interpreted by courts so that public authorities, including governments, and the public can understand them. The judgment of the European Court of Human Rights seeks to assist that understanding by interpreting the phrases used in the Convention. For example, that the right to respect for a private life conferred by article 8 means that homosexuality between consenting adults cannot be a crime.
The duty 'to take into account' the Strasbourg judgments means that when a court or tribunal in the UK is interpreting domestic law which affects a Convention right, then the court or tribunal must look at how the ECtHR has interpreted that right.
Why is there a duty?
Admittedly, section 2 places a duty on the courts and tribunals to take into account the Strasbourg judgments - there is no discretion and they are not free completely to ignore them - but it does not make binding precedents of the judgments. It is also true that courts have usually followed Strasbourg judgments, although the UK courts have consistently made it clear that they are free to depart from them and have done so on several occasions since the Human Rights Act came into force.
It is important to remember that before the enactment of the Human Rights Act, the other dominant model of incorporation of international law was the European Communities Act 1972. Section 2 of the 1972 Act makes the provisions of the various EU treaties directly effective and enforceable in UK law52 and all UK law shall have effect 'subject to' directly applicable EU law.53
The effect of the 1972 Act is to make EU law binding on UK law to the extent that it prevails over domestic law where there is any inconsistency in the latter, leaving the courts without any discretion but to follow EU treaties and caselaw. In the case of Factortame,54 section 2(4) of the 1972 Act was described as inserting an implied clause into all UK law statutes that they shall not apply where they conflict with EU law.
The HRA section 2 represents a deliberate rejection of the model created by the 1972 Act; instead, the HRA leaves it to the UK courts – and, in the case of any incompatibility, to Parliament – to determine how ECtHR rulings will be applied in UK law. Thus, the intention to maintain parliamentary sovereignty and judicial control by British judges was clearly a priority for the legislators.
Given that a provision was needed to distinguish the Human Rights Act from the European Communities Act, a duty was preferred over discretion in order to promote consistency in decision making and to avoid different results from the same set of facts.55
During the parliamentary debates, an amendment was tabled to replace the words ‘must take into account any’ with ‘shall be bound by’, something which would have forced UK judges to follow the decisions of the European Court in every case.56 Its purpose was to tease out the circumstances when a UK court could depart from the Strasbourg judgments. The shadow Lord Chancellor Lord Kingsland explained the purpose of the amendment as follows:57
The problem is that if our judges only take account of the jurisprudence of the European Court of Human Rights, we cast them adrift from their international moorings. The bill, crewed by the judges, will have no accurate charts by which to sail because the judges are obliged only to take into account the provisions of the Convention. That means that the bill is effectively a domestic Bill of Rights and not a proper incorporation of international rights. It means that the judges … are not obliged to act on it and can go in whatever direction they wish. I have great confidence in Her Majesty’s judges, but I believe that they need greater guidance than they receive from the expression ‘take into account’.
During the debates it was explained that the Convention only obliges states to comply with those judgments of the Strasbourg Court ‘to which they are parties’.58 It was argued that it would be ‘strange’, for UK courts to be bound by Strasbourg decisions to which the UK had not been a party, and ‘quite inappropriate’ to do so 'since those cases were concerned first and foremost with the laws of other countries.59 Although cases before the ECtHR involving other countries might be persuasive authority, it would be a mistake to treat them as ‘binding precedents which we necessarily should follow or even necessarily desire to follow’.60 This approach is in keeping with the general principles of international law which applied before the Human Rights Act and which continue to apply.
Importantly, it was also explained that making Strasbourg judgments binding on UK courts would put ‘the courts in some kind of straitjacket where flexibility is what is required’.61 Although it was generally expected that UK courts would apply Convention jurisprudence, the language of section 2 was nonetheless intended to allow UK courts the freedom:
to depart from existing Strasbourg decisions and upon occasion it might well be appropriate to do so and it is possible they might give a successful lead to Strasbourg.62
This should happen for example where ‘there has been no precise ruling [by the Strasbourg institutions] on the matter and a Commission decision which does so has not taken into account subsequent Strasbourg case law’. In other words, where the existing Strasbourg authority is unclear (or clear but evidently unsatisfactory) it would be better to leave the matter to the UK courts to suggest a way forward than to tie their hands. It was stated that ‘our courts must be free to try to give a lead to Europe as well as to be led’.63
The importance of a flexible approach towards Strasbourg judgments was also consistent with the Labour government’s previous manifesto commitment to incorporate the European Convention as ‘a floor, not a ceiling, for human rights’,64 as well as the arguments put forth in its 1997 White Paper, Rights Brought Home:
The effect of non-incorporation on the British people is a very practical one. The rights, originally developed with major help from the United Kingdom Government, are no longer actually seen as British rights …. 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 distinctively British contribution to the development of the jurisprudence of human rights in Europe.65
Accordingly, the white paper promised that, when considering Convention points, ‘our courts will be required to take account of relevant decisions of the European Commission and Court of Human Rights’, although it also made clear that ‘these will not be binding’.66
Thus section 2 of the HRA has given the UK courts the flexibility to decide whether or not to follow judgments of the European Court of Human Rights. At the same time, it has also enabled our courts to make a distinctive contribution to the rulings of the European Court of Human Rights, a part already being played by the UK courts.
So for example, in Osman v United Kingdom67 it was held that if an authority is immune from action in the law of negligence this may deny the victim the right of access to the courts and to a legal remedy, and thus breach article 6.
However, in Z v United Kingdom,68 the European Court rowed back from its own judgment in Osman and declared that the limits to suing public authorities allowed by substantive domestic law are not in breach of article 6. The Court held that Osman had been based on a misunderstanding of the law of negligence that cases were not automatically excluded but were struck out on their merits after applying policy factors which were part of the substantive law of negligence. Article 6 thus did not give protection from the substantive law but provided a procedural right to bring actions. The decision in Osman had also been heavily criticised by lawyers and academics.
At para 100, the ECtHR said:
The Court considers that its reasoning in Osman was based on an understanding of the law of negligence ...which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably by the House of Lords. [emphasis added]
The reference to the House of Lords is to the decision in Barrett v Enfield Borough Council where the House of Lords refused to strike out a claim against a local authority where the claimant, who had been in care for 17 years, alleged that the local authority had failed to take reasonable care in protecting him from physical abuse. The House of Lords held that cases should only be struck out for policy reasons when the action was certain to fail and the policy should not be used where the law was uncertain and developing. Here the boy was actually in care as opposed to being taken into care and there were no sound policy reasons for exempting claims in such circumstances.
Why concerns are misplaced?
Since the HRA came into force, the general approach of the UK courts has been to follow the case law of the European Court of Human Rights unless there is some ‘good reason’ not to.69 As Lord Bingham said in the 2004 case of Ullah v Special Adjudicator:70
[T]he Convention is an international instrument.. [its] correct interpretation can be authoritatively expounded only by the Strasbourg court. [I]t follows that a national court... should not without strong reason dilute or weaken the effect of the Strasbourg case law. ..The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.
This has since become known as the ‘mirror principle’ – the idea that, absent good reasons to the contrary, a person in a British court can expect to obtain the same result as he or she would in Strasbourg.71
This principle is important for two reasons. First, as Lord Bingham pointed out, the Convention is an international instrument and it would be unhelpful for each country to develop its own, wildly divergent approach. Second, the very purpose of the HRA is to enable Convention rights to be applied in British courts; that objective would be defeated if the UK courts were to rule in a manner that they knew would inevitably be reversed by the Strasbourg Court.72 For these reasons, the UK courts will be very slow to depart from a clearly reasoned ruling of the Grand Chamber of the ECtHR.73
At the same time, however, the UK courts have always made clear that the so-called ‘mirror principle’ is a general rule, and one that will not be invariably followed. As Lord Neuberger said in the case of Manchester City Council v Pinnock before the UK Supreme Court last year:74
This Court is not bound to follow every decision of the ECtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the ECtHR which is of value to the development of Convention law ….
As Lord Mance pointed out in Doherty v Birmingham …, section 2 of the HRA requires our courts to ‘take into account’ ECtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.
Indeed, since the HRA came into force in 2000, there have been no less than four cases in which the House of Lords and, more recently, the UK Supreme Court have declined to follow judgments of the Strasbourg Court:75
In a series of cases on the fairness of the courts martial system, the House of Lords in R v Spear,76 unanimously declined to follow the chamber judgment of the European Court of Human Rights in Morris v United Kingdom,77 on the basis that the Court had failed to appreciate the existence of sufficient safeguards in the courts martial system.78 In the subsequent case of Cooper v United Kingdom, the Grand Chamber of the European Court of Human Rights accepted that the House of Lords was correct.79
In the 2008 case of Doherty v Birmingham City Council,80 the House of Lords declined to follow the chamber judgment of the European Court of Human Rights in McCann v United Kingdom, largely on the basis that they thought it was impossible to derive clear guidance from the judgment.81 In the subsequent case of Manchester City Council v Pinnock in 2010, a nine member panel of the UK Supreme Court unanimously accepted that the Strasbourg case law was ‘now … unambiguous and consistent’ and that it was right for English law to fall in line with the case law of the ECtHR.82
In the 2009 case of R v Horncastle,83 the UK Supreme Court unanimously declined to follow the chamber judgment of the European Court of Human Rights in Al Khawaja v United Kingdom, concerning the use of hearsay material in criminal cases, on the basis that it was concerned that the European Court may have failed to appreciate certain aspects of English criminal procedure.84 In May 2010, the UK government’s appeal against the chamber decision in Al Khawaja was heard by the Grand Chamber of the European Court and a ruling is expected before the end of 2011.
In the October 2011 case of R (Quila) v Secretary of State for the Home Department,85 a majority of the UK Supreme Court declined to follow the plenary judgment of the European Court of Human Rights in Abdulaziz v United Kingdom,86 on the grounds that it was ‘an old decision’ and apparently inconsistent with subsequent judgments of the Strasbourg Court.87
As cases such as Dohertyand Horncastle show, the ability of the UK courts under section 2 of the HRA to decline to follow rulings of the ECtHR is essential to the process of judicial dialogue between the UK courts and Strasbourg.88 This in turn makes it less likely that the European Courts will disagree with the conclusions of the UK courts. As the Grand Chamber of the ECtHR itself noted in the 2006 case of Roche v United Kingdom:89
Where … the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law.
In most cases the judicial dialogue between UK courts and the ECtHR is one where the Strasbourg Court simply accepts the conclusions of the UK court, for example in N v United Kingdom90, the judgment of the Grand Chamber which effectively endorsed the unanimous reasoning of the House of Lords in N v Secretary of State for the Home Department91.
On occasions, however, the ECtHR has refered to judgments of the UK courts in cases not involving the UK. In Neulinger and Shuruk v Switzerland92 the Grand Chamber referred to the approach taken by the House of Lords towards the definition of a ‘child’s best interests’ under the Hague Convention and cited the judgment of Lord Hope in In re D (a child)  UKHL 51; and in Demir and Baykara v Turkey (app no 34503/97, 12 November 2008) the Grand Chamber cited the approach of the House of Lords in Pinochet.
Thus UK courts can and do give a successful lead to Strasbourg.
In November 2009, the then Shadow Lord Chancellor Michael Howard MP claimed that the Human Rights Act, ‘requires our courts to apply the European Convention on Human Rights in every decision they make’.93 Similarly, when he was shadow Justice Secretary, Dominic Grieve MP suggested that the ‘marked deference’ shown by British judges towards Strasbourg decisions under the HRA was problematic, and indicated that a Conservative government would, among other things::94 reword it to emphasise the leeway of our national courts to have regard to our own national jurisprudence and traditions and to other common law precedents while still acknowledging the relevance of Strasbourg Court decisions.
The UK courts are not bound by rulings of the Strasbourg Court and they are perfectly entitled to invite Strasbourg to clarify its reasoning and to think again, if they believe there is good reason to do so. Indeed they have already done so on a number of occasions.
For these reasons, we conclude that section 2 of the HRA has worked well, enabling the UK courts to strike an appropriate balance between consistency and flexibility. Moreover, any amendment would only reduce this flexibility, something that in our view would be deeply undesirable.