Introduction
Section 2 of the Human Rights Act 1998 establishes a link between the UK legal system and the European Court of Human Rights (ECtHR). This section directs UK courts to examine decisions and judgments from the ECtHR when ruling on cases involving rights under the European Convention on Human Rights (ECHR). This requirement reflects the UK’s commitments under the Convention and seeks to ensure consistency in how human rights are interpreted and upheld across member states. The phrase “take into account” has been widely analyzed by legal scholars, shaping how UK courts engage with the ECtHR. This analysis will outline the main principles of Section 2, its core duties, and its function in UK human rights law.
The "Take Into Account" Obligation: Scope and Application
The phrase “take into account” in Section 2 does not define the level of importance UK courts must assign to ECtHR decisions. This flexibility has led to a practical approach that acknowledges the ECtHR’s authority while preserving UK courts’ autonomy. The House of Lords, now the Supreme Court, has addressed this in key judgments. In R (Ullah) v Special Adjudicator [2004] UKHL 12, Lord Bingham outlined the “mirror principle,” suggesting UK courts should generally follow clear and consistent Strasbourg rulings. However, deviations are permitted. Subsequent cases confirm UK courts may decline to follow ECtHR decisions in specific circumstances, such as shifts in domestic law or concerns about the Strasbourg Court’s reasoning.
Departing from Strasbourg Rulings: Grounds and Limits
While Section 2 encourages alignment with Strasbourg case law, it permits disagreement. The Supreme Court, in decisions like R v Horncastle [2009] UKSC 14, has stated it may reject ECtHR decisions if they contain errors or conflict with fundamental UK legal principles. Any departure must be supported by clear reasoning, demonstrating thorough evaluation of the Strasbourg Court’s analysis and the case’s unique facts. The threshold for disagreement remains strict, reflecting the need for cooperation within the Convention framework.
Section 2 in Practice: Case Examples
Section 2’s application is evident in cases concerning Convention rights. For instance, in disputes over Article 8 (right to private and family life), UK courts have examined ECtHR decisions to balance privacy against public interests like national security. In Bank Mellat v HM Treasury (No. 2) [2012] UKSC 29, the Supreme Court evaluated the fairness of anti-terrorism measures, citing ECtHR cases on property rights. Similarly, in Article 10 (free expression) cases, UK courts have used Strasbourg rulings to define limits on speech in areas such as defamation.
Ongoing Interaction: Dialogue and Legal Development
The relationship between UK courts and the ECtHR under Section 2 involves continuous exchange and adjustment. UK courts treat Strasbourg decisions as influential but not binding, enabling comparison with UK legal standards. This process contributes to the growth of human rights law in the UK and Europe, establishing common approaches to applying Convention rights across jurisdictions. The Supreme Court’s use of Section 2 encourages active communication between UK and European human rights law, safeguarding rights while respecting national legal traditions.
Section 2’s Future: Post-Brexit Implications
The UK’s departure from the European Union has raised questions about the Human Rights Act and Section 2’s role. Although the UK remains a party to the ECHR, debates about amending the Human Rights Act continue. Future legal reforms could change how UK courts interact with the ECtHR, affecting Section 2’s implementation. Understanding Section 2’s history and current function is necessary for participating in these debates and ensuring human rights protections remain strong in the UK.
Conclusion
Section 2 of the Human Rights Act 1998 represents a significant development in UK human rights law. Its “take into account” requirement has created a structured yet adaptable relationship between UK courts and the ECtHR. Principles from cases like Ullah and Horncastle guide the interaction between UK and European human rights standards. By carefully assessing Strasbourg rulings while permitting reasoned deviations, UK courts support robust human rights protections. The ongoing exchange between UK courts and the ECtHR under Section 2 remains central to the progress of human rights law in both systems. This analysis has highlighted the balanced approach of Section 2, emphasizing its importance in the UK’s treatment of ECHR rights. Future developments in this area will continue to shape legal practice and require close attention.
