Section 2 HRA 1998: Taking ECtHR Case Law into Account

Introduction

Section 2 of the Human Rights Act 1998 (HRA) links UK courts with the European Court of Human Rights (ECtHR). When a case involves a question about a Convention right, UK courts and tribunals must take into account relevant Strasbourg judgments and decisions. The duty respects the UK’s international commitments while leaving space for domestic reasoning.

The words “must take into account” have been shaped by case law. Courts usually follow a clear and consistent line from Strasbourg but may disagree for good reasons. This guide sets out what Section 2 requires, how the duty operates in practice, and what lawyers should do when ECtHR authority points one way and domestic law points another.

What You’ll Learn

• What Section 2 HRA 1998 requires and what it does not
• The “mirror principle” and the idea of a “clear and constant” Strasbourg line
• When UK courts may depart from ECtHR case law and how they explain that
• How lower courts handle conflicts between Strasbourg cases and domestic precedent
• Key cases: Ullah, Pinnock, Horncastle, Chester, Bank Mellat (No 2)
• Practical steps for citing ECtHR material and framing arguments
• The current position post-Brexit and possible reform

Core Concepts

The statutory duty in Section 2(1)

• Section 2(1) says a court or tribunal determining a question in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the ECtHR, along with historic materials from the former European Commission of Human Rights and decisions of the Committee of Ministers.
• The duty applies whenever a Convention issue is live; it is not limited to claims brought under the HRA.
• Section 2 does not make Strasbourg rulings binding in UK law. It requires consideration, not automatic compliance.
• Section 2(2) preserves normal rules on precedent. Domestic courts remain bound by higher UK courts. Section 2 does not require a lower court to ignore a binding UK authority.

Practical point: the quality and status of the Strasbourg authority matters. Grand Chamber judgments usually carry more weight than lower formations or single-judge decisions.

The mirror principle and “clear and constant” case law

• In R (Ullah) v Special Adjudicator [2004] UKHL 26, Lord Bingham said UK courts should, in general, keep pace with the Strasbourg court as it evolves — no more but certainly no less — and should follow any clear and constant line of authority.
• Manchester City Council v Pinnock [2010] UKSC 45 reaffirmed that approach and stressed that, absent special circumstances, the Supreme Court will follow a clear and consistent Strasbourg position.
• For lower courts, Kay v Lambeth LBC [2006] UKHL 10 explained that they should follow binding domestic precedent from the House of Lords/Supreme Court even if there appears to be a later Strasbourg case pointing differently, leaving any change to the Supreme Court.

Indicators of a “clear and constant” line include repeated decisions to the same effect, especially from the Grand Chamber, and consistent application across different factual settings.

When UK courts may depart from Strasbourg

• The Supreme Court has said there may be good reasons to depart. In R v Horncastle [2009] UKSC 14 (hearsay and Article 6), the Court declined to follow a Chamber decision (Al‑Khawaja and Tahery) because it considered the ECtHR had not fully engaged with the safeguards in English criminal procedure.
• Any departure must be carefully reasoned. Common reasons include:
  • The Strasbourg authority is a single decision, fact-specific, or not part of a settled line.
  • The ECtHR overlooked important features of domestic law or practice.
  • There are strong public interest reasons, and the domestic court explains them clearly.
• Subsequent Strasbourg developments can confirm the dialogue works both ways. The Grand Chamber later adjusted its approach in Al‑Khawaja v UK (2011), reflecting some Horncastle reasoning.

The bar for disagreement is high. Courts typically explain why the Strasbourg authority is not clear or not applicable, rather than simply rejecting it.

Weight and types of Strasbourg materials

• Grand Chamber judgment: usually the most persuasive.
• Chamber judgment: weighty, but check for subsequent appeals or contrary lines.
• Committee decisions and inadmissibility decisions: limited weight for principle-setting.
• Commission opinions and Committee of Ministers decisions: relevant historically (pre‑1998 matters and execution), but less influential on interpretation.
• Advisory opinions: within the Section 2 list. The UK has not sought such an opinion, but courts should consider any that bear on the issue.

How Section 2 fits with Sections 3 and 4 HRA

• Section 2 informs the content of Convention rights by directing courts to consider Strasbourg reasoning.
• Section 3 requires courts, so far as possible, to interpret legislation compatibly with Convention rights.
• If a compatible reading is not possible, Section 4 allows a declaration of incompatibility. Whether to issue a declaration can be influenced by Strasbourg authority, but the remedy remains a matter for the UK court.

Key Examples or Case Studies

R (Ullah) v Special Adjudicator [2004] UKHL 26

• Context: Deportation and Article 9 (freedom of religion).
• Point: Lord Bingham’s “mirror principle” — follow any clear and constant Strasbourg line.
• Why it matters: Sets the baseline for how UK courts approach Section 2.

Manchester City Council v Pinnock [2010] UKSC 45

• Context: Possession proceedings and Article 8 proportionality.
• Point: The Supreme Court accepted that Article 8 proportionality can be raised as a defence in possession claims, aligning with Strasbourg case law.
• Why it matters: Confirms that, absent special reasons, the Supreme Court will follow clear Strasbourg authority.

R v Horncastle [2009] UKSC 14

• Context: Use of hearsay evidence and Article 6 fair trial rights.
• Point: The Supreme Court declined to follow a Strasbourg Chamber decision, explaining that it had not fully addressed domestic safeguards; the Grand Chamber later moved closer to the UK position.
• Why it matters: Illustrates a reasoned and successful departure that prompted Strasbourg to refine its approach.

R (Chester) v Secretary of State for Justice; McGeoch v Lord President of the Council [2013] UKSC 63

• Context: Blanket ban on prisoner voting (Article 3 of Protocol 1).
• Point: The Supreme Court recognised Strasbourg rulings (Hirst; Scoppola) but declined to grant relief beyond the court’s proper role, emphasising the separation of powers and the limits of Section 3.
• Why it matters: Shows respect for Strasbourg alongside a distinct domestic response to remedies.

Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

• Context: Financial restrictions on an Iranian bank; Articles 6 and 1 of Protocol 1.
• Point: The Court applied a structured four-stage proportionality test, drawing on Strasbourg method and domestic public law.
• Why it matters: Demonstrates how Section 2 supports the use of Strasbourg-derived analysis while remaining rooted in UK procedure.

Practical Applications

• Frame the Convention question early

  • Identify the specific right and the stage at which it is engaged.
  • State clearly whether you seek to persuade the court to follow Strasbourg or to depart (and why).

• Research with precision

  • Use HUDOC to find the most recent and relevant Strasbourg cases.
  • Check status (Grand Chamber vs Chamber), whether there are concurring/dissenting opinions, and whether the point is part of a settled line or contested.
  • Note any factual distinctions that make a material difference.

• Map domestic authority

  • Identify binding UK appellate decisions on the point.
  • If you are in a lower court and there is a conflict between a Supreme Court decision and a later Strasbourg case, Kay v Lambeth requires you to follow the UK decision and invite the Supreme Court to consider the issue.

• Argue “clear and constant” vs “good reasons to depart”

  • For alignment: show a consistent Strasbourg line, similarity of facts, and the absence of competing interests that Strasbourg treated differently.
  • For departure: explain why the Strasbourg decision is not part of a settled line, why it misapprehended domestic law, or why the domestic safeguards address the concern. Provide a careful, respectful analysis rather than broad disagreement.

• Use structured proportionality where relevant

  • For qualified rights (e.g., Articles 8–11), apply the four questions often used by UK courts:
    1. Is there a legitimate aim?
    2. Is the measure rationally connected to that aim?
    3. Could a less intrusive measure have been used?
    4. Does the measure strike a fair balance between individual rights and community interests?
  • Cite Bank Mellat (No 2) and appropriate Strasbourg cases.

• Link Section 2 to Sections 3 and 4

  • If Strasbourg authority strongly points to incompatibility and a Section 3 interpretation cannot be achieved, consider seeking a declaration under Section 4.
  • Be clear about remedies and the limits of the court’s role, especially where Parliament is considering reform.

• Presentation tips for skeleton arguments

  • Summarise the Strasbourg line in a short chronology with citations.
  • Flag any unsettled or conflicting Strasbourg authorities.
  • Set out the domestic precedent and explain why it can be reconciled with, followed alongside, or distinguished from Strasbourg.

• Keep current on reform and status

  • The UK remains a party to the ECHR and the HRA remains in force. Proposed changes (such as the former Bill of Rights Bill) have not been enacted. Watch for any future legislation that may refine Section 2’s language or effect.

Common pitfalls to avoid:

• Treating a single Chamber judgment as conclusive when the point is unsettled.
• Ignoring a binding UK appellate decision in a lower court.
• Overstating Strasbourg holdings that turned on very different facts.
• Skipping the proportionality structure when it is clearly applicable.

Summary Checklist

• Identify the Convention right and the precise legal question.
• Gather the most relevant Strasbourg authorities and check if they form a clear and constant line.
• Assess the weight of each authority (Grand Chamber vs Chamber; age; context).
• Identify any binding UK appellate authority and the Kay principle for lower courts.
• Decide whether to argue for alignment or a reasoned departure and set out clear reasons.
• Apply structured proportionality for qualified rights.
• Consider Sections 3 and 4 HRA for interpretation and declarations.
• State the remedy sought and why it follows from the analysis.
• Note any ongoing legislative or policy developments that may affect the court’s choice.

Quick Reference