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Human rights are the basic right and freedom that belong to everyone in order to flourish and
participate fully in society. They cannot be taken away from anybody. Countries such as United
States have a written constitution.1 If any laws were to infringe any of the provision in the
constitution, it can be challenged as being unconstitutional. However, United Kingdom(UK) has
neither a written constitution therefore the liberties were regarded as residual freedom before
the Human Rights Act 1998(HRA1998) came into force. 2 Although European Convention of
Human Rights(ECHR) was instituted in 1950, it was only incorporated as part of UK law in OCT
2000.3 Before ECHR incorporated into UK law, the ECHR will hear complaints from individual UK
citizens and the European Court of Human Rights(ECtHR) recognized the authority by UK to
put on trial in such matter. However, the Convention couldn’t be directly enforced in English
Court as the ECHR has not been incorporated into UK law at that time. 4 In R v Secretary of State
for the Home Department ex p Brind(1991), the Court of Appeal(COA) state that the ministerial
directives did not have to be construed in line with the ECHR since ECHR has not been
incorporated yet.5

After the HRA1998 came into force, it is easier for individual to enforce their rights as Section 1
of HRA1998 gives further rights and freedom guaranteed under ECHR and this section has the
effect of incorporating the ECHR into English Law. HRA1998 also has impact on judicial
precedent as Section 2 HRA1998 requires that all court and tribunals to take into account of any
Strasbourg’s case law.6 In Re Medicaments and Related Classes of Goods (No2); Director
General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles
Trade Association7 , the Court of Appeal refused to follow the decision of House of Lords(HOL)

1
Nick Howard, Beginning Constitution Law ( 2nd edn, Beginning the Law Ser, Taylor & Francis Group, New York
2017) 22
2
Catherine Elliott and Frances Quinn, English Legal System(16 th edn, Pearson Education Ltd, Malaysia 2015) 304
3
Ian Leigh and Roger Masterman, Making Rights Real: The Human Rights Act in Its First Decade ( 1 st edn, Human
Rights Law in Perspective Ser, Bloomsbury Publishing Plc, Oxford and Portland 2008) 55
4
Gary Slapper and David Kelly, Law: the Basics (1 st edn, Taylor & Francis Group, USA 2011)85
5
R v Secretary of State for the Home Department ex p Brind (1991) [1991] UKHL 4
6
David Bonner, Helen Fenwick and Sonia Harris-Short, ‘Judicial Approaches to the Human Rights Act’ (2003) 52
Modern Law Review. part I.B
7
Re Medicaments and Related Classes of Goods (No2); Director General of Fair Trading v Proprietary Association of
Great Britain and Proprietary Articles Trade Association [2000] EWCA Civ 350
as it does not comply with ECHR. However, the question arise, “ are the ‘Convention rights’ for
the purpose of s.2 of the 1998 Act, the rights defined by the ECtHR given effect in UK law, or are
they the rights defined by UK law within the parameters defined by the Strasbourg?” 8 What is
the impact of s.2 HRA1998 following its predecessor to the ECHR? There will be a further
discussion below.

First of all, in R (on the application of Hallam) v Secretary of State for Justice ,by a majority of
five-to-two, the UK Supreme Court(UKSC) dismisses the appeals, which the UKSC in R (Adams) v
Secretary of State for Justice rather than the more recent decision of the ECtHR in Allen v
United Kingdom which the court held that it was bound by the decision of COA in R (Adams) v
Secretary of State for Justice. 9 On appeal, the COA considered that it was bound by the
decision in in R (Adams) v Secretary of State for Justice and hold that the article 6(2) of the
Convention had no application to section 133 of HRA 1998, notwithstanding the more recent
decisions to the contrary by Grand Chamber of the ECHR in in Allen v United Kingdom. The
court state that section 133 was in any event compatible with the article 6(2), considered that
the line of Strasbourg jurisprudence including, and if not bound by Adams, it would have
followed it.10 In this case, UKSC held that declaration of incompatibility is inappropriate. 11 Lord
Hughes state that the ultimate responsibility of section 2 HRA1998 is to arrive its own decision
on those Convention rights which are given domestic legal effect by being incorporated into
that state.12 Although the court did not follow the decision of ECtHR in this case, however, the
given reasoning merely mean that the rights defined by the Strasbourg given effect in the UK
law and maybe will the follow by the court in other case. Further, in R (on the application of
Chester) v Secretary of State for Justice 13, Lord Mance delivered the principle judgement which
agreed by the rest of Court. Lord Mance considered the decisions of the Grand Chamber of the
ECtHR in Hirst v United Kingdom (No 2)14 and Scoppola v Italy (No 3)15 . The court decided to
8
Jane Wright, ‘Interpreting Section 2 of the Human Rights Act 1998: Towards an Indigenous jurisprudence of
Human Rights’(2009)595-616.Modern Law Review.1
9
R (on the application of Hallam) v Secretary of State for Justice [2019] UKSC 31-83
10
Ibid 11
11
Ibid 30
12
ibid 55
13
R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63
14
Hirst v United Kingdom (No 2) [2005] EHRR 849
15
Scoppola v Italy (No 3) [2012] EHRR 663
follow the decision of ECtHR and stated that the HRA1998 was compatible with the ECHR as the
Court did not have a further role in making a declaration relating to incompatibility. In the same
case, Lord Clarke cited the case of Anchugov and Gladkov v Russia 16 and stated that the
jurisprudence for the case can be considered settled, and the UKSC should followed it. The
principle that settle jurisprudence should be follow also can be seen in Manchester City Council
v Pinnocka.17 Additionally, in R. (on the application of Anderson) v Secretary of State for Home
Department18, the HOL stressed state the fact that the ECtHR had clearly displayed an
understanding role of the Home Secretary in tariff-fixing in English law which the court then
decide to follow the ECtHR decision.

Regard to the discussion of cases above, clearly show that ECHR given effect to the UK law,
however, if in the case English Courts is bound by its own decision, the decision of ECtHR only
persuasive, as a reference to the UK law in making decision. If in the absence of “some special
circumstance”, then the English Courts should follow any clear and constant jurisprudence. 19

However, in particular to temper the criticisms, the English Court appear to be treating s.2 as a
requirement to “mirror” the ECHR rights, so they now create a ceiling , rather than a floor of
rights. The UK law develop a genuine UK human rights jurisprudence, consistent with but
unfettered and not bound by Strasbourg as the recent HOL decision represent clear stirrings to
shake off limitation or perceived constraints of the Strasbourg. 20

When have a look into Section 2 of HRA1998, provides that a court or tribunal ‘determining a
question that has arisen in connection with Convention rights must take into account’ any
relevant Strasbourg jurisprudence. HRA 1998 dies not simply state that there is any force of law
in the provision of ECHR. This literally mean that the judges could not ignore it when deciding
case, but did not have to follow it. In the other words, it require the court to consider what
decided in ECtHR when outcome their own decision.

16
Anchugov and Gladkov v Russia [2013] ECHR
17
Manchester City Council v Pinnocka [2011] UKSC 6
18
R. (on the application of Anderson) v Secretary of State for Home Department [2002] UKHL 18
19
Helen Fenwick, ‘What’s Wrong with S.2 of Human Rights Act’ (2012).Modern Law Review.1
20
Jane Wright, (n8) part 1
The term of ‘relevant’ simply mean that the court should determine the question re the right by
other means if there is no relevant jurisprudence.21 This is important as a well-known comment
which used by the judges when they refused to follow the Strasbourg jurisprudence. The judge
will usually held that the ECHR is incompatible, that is no reason to consider it in reaching his
decision. Take an example, as stated by Lord Hughes, that the ultimate responsibility of section
2 HRA1998 is to arrive its own decision on those Convention rights which are given domestic
legal effect by being incorporated into that state. 22 When there is an incompatibility of HRA
1998 to the ECHR, the court would usually not to follow the decision of ECtHR. For example, in
R (on the application of Minto Morrill Solicitors) v Lord Chancellor 23 , the correct
interpretation of the sections of Act was questioned before the court. In this case, Lord
Chancellor, which agreed by Mr. Justice Kerr, held that the work done to prepare the
application to the ECtHR does not related to the law of England and Wales but such work is
much related to the “autonomous law of the Convention applied by the ECtHR”. The claimant
argued to this that the HRA1998 incorporated part of the ECHR, that therefore the application
is compatible to the UK law . However, this argument was rejected by the Court and stated that
HRA1998 “incorporating” the Convention rights into the domestic law was “no more than a
convenient shorthand” to described the HRA1998, HRA1998 did not straightly give force of law
to the Convention in England and Wales. Lord Chancellor also contended that the provision was
ambiguous. The intention purpose of this was to allow funding for issues of foreign law arising
in domestic proceedings as it is demonstrated in the Parliamentary history of this part of
provision. The court also agreed that such rules in Pepper v Hart was satisfied and outcome
with the decision that the ECtHR were excluded by the provision. 24 Hence, if the ECHR was not
incorporated with the UK law, then the Court would usually not take into account to the
Strasbourg case law. In the other words, when the court want to depart from ECtHR decision,
the court would commonly held that the ECHR was not incorporated and give legal effect with
the issues in the case. This argument was commonly used by those who benefit from the
21
Helen Fenwick, (n19) part 1
22
Hallam (n9) 55
23
R (on the application of Minto Morrill Solicitors) v Lord Chancellor [2017] EWHC 612
24
‘Judicial review whether can get domestic legal aid for application to the ECHR:2017’<
https://www.blackstonechambers.com/news/r-minton-morrill-solicitors-v-lord-chancellor/> accessed 14 NOV
2020
HRA1998. In R. (on the application of Anderson) v Secretary of State for Home Department 25,
Lord Bingham stated that the HOL will not without a good reason depart from the decision by
ECtHR.

Beside ,in R (on the application of Alconbury Developments Ltd) v Secretary of State for the
26
Environment, Transport and the Rigions , Lord Hoffman state that “ [he] would have
considerable doubt as to whether they should be followed if the ECHR decision compelled a
conclusion fundamentally at odds with the distribution of powers under the British
Constitution”. Lord Hoffman notice that Strasbourg jurisprudence should not compel the HOL
to reach a conclusion. 27Lord Hoffman simply suggest that the section 2(1) might be also require
an evaluation of the suitability of the relevant Strasbourg authority to be applied in the
domestic context28 of HRA1998. Speaking during the HOL’ debates on the Bill, Lord Chancellor
Irvine emphasized that: “it might well be appropriate on occasion to exercise the power to
depart from existing Strasbourg decisions, imaging that in so doing English Courts might well
give a successful lead to Strasbourg”. This connote that if the courts try to adopt a protection
for the rights that is below the “floor” of protection which is afforded by the ECHR
jurisprudence, the basic purpose of HRA1998 would be undermine as since the individual
concerned in case exhausted all the domestic remedies, would merely use the right of recourse
to Strasbourg. The flexibility to depart from ECHR jurisprudence enable the English Court to
build an extra protection above the ‘floor’. Hence, it seem there is some character of
freestanding Bill of Rights in the HRA1998, rather than simply incorporate the ECHR . In Morris
v United Kingdom29, Lord Rodger which agreed by whom all their Lordships, rejected the
argument that the House is bound by the decision of ECtHR. Furthermore ,in R. (on the
application of Animal Defenders) v Culture Secretary, HOL also clearly rejected any sense of
being bound by Strasbourg. Cases mentioned above clearly show that the Court stressed the
point, which they are not bound by the ECtHR. Even as I discussed in early (Anchugov and
25
Anderson (n18) 46
26
R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and
the Rigions [2001] UKHL 23
27
Jane Wright,(n8) part.1
28
Roger Masterman, ‘ Taking the Strasbourg jurisprudence into account : developing a “municipal law of human
rights” under the Human Rights Act’ (2005) 54.Modern Law Review. II.C
29
Morris v United Kingdom [2002] ECtHR 39
Gladkov v Russia) which principle that the court should follow the settled jurisprudence,
however, the Court reaffirmed this principle in B and another v Secretary of State for Justice.30

Furthermore, in R. (on the application of Ullah) v Special Adjudicator 31, Lord Bingham cited the
case of Alconbury and stated that: “s.2 of HRA1998 required the House to take into account of
Strasbourg case law, however, such case law is not strictly binding.” The Court can follow any
clear & constant jurisprudence of ECHR in the absence of some special circumstance. This
simply mean that if the Strasbourg jurisprudence was not clear and consistent, it would not
follow by the court. With regards to this, it is clearly defined in case R (on the application of
Quila) v SSHD32 as the Court refused to follow the previous Strasbourg case of Abdulaziz v UK.
Additionally, in R v Horncastle, the UKSC refused to follow the decision in Al- Khawaja and
Tahery v The United Kingdom, and stated that even there is a clear jurisprudence, the Court
would also able to depart from it. This show that the ECHR in an international instrument, the
correct interpretation of which can be authoritatively expounded only by the ECtHR. 33 In
addition, judgement of the ECtHR are binding only on the states parties to a case, and it “would
be strange to require courts in the UK to be bound by such cases”.34

Since there a lot of cases given the reason in reaching its own decision as the English Courts
are not bound by the ECtHR, another argument arise. Lewis argued that : “the effect of
Lord Bingham’s dictum is that municipal rights must always match the content of rights as
determined by ECtHR such that treaty obligation are ‘mirrored’ in municipal law.” Further
he had argued that the “mirror principle” in s.2 of HRA1998, and state that the Court are
bound by Strasbourg jurisprudence which is contrary to “intent and wording” of the
HRA1998. Lord Slynn in Alconbury35 considered that judges should commonly follow the
ECHR case law “in the absence of some special circumstance. If it does not do so there is at
least a possibility that the case will go to that court which likely in the ordinary case to
follow its own constant jurisprudence”. In Begum v Tower Hamlets LBC, Laws L.J.

30
Helen Fenwick, (n19) part.1
31
R. (on the application of Ullah) v Special Adjudicator [2004] UKHL 26
32
R (on the application of Quila) v SSHD [2011] UKSC 41
33
Jane Wright, (n8) part.3
34
Jane Wright, (n8) part.1
35
Alconbury (n26) 23
described that the court’s task as not simply being: "to add on the Strasbourg learning to
the corpus of English law as if it were a compulsory adjunct from an alien source, but to
develop a municipal law of human rights by the incremental method of the common law,
taking account of Strasbourg jurisprudence". 36 On the other hand, Lord Hope also lead a
judgement, state that if the Parliament did not authorize the English Courts to give more
generous scope to the ECHR, it will effect that changing them from ECHR into free-standing
rights of the court’s own decision which based on the treaty obligation.

With regards to the discussion above, showing that s.2 of HRA 1998 is ‘expected to play’. 37
There is a polarization of opinion with the s.2 of the Act, between those who advantage
from the ECHR, the ‘mirror principle’ group and in the opposing side, the “take into
account only” group. Based on the cases discussed above, it can be classify into three type,
which is ‘anti-mirror principle’, ‘semi-mirror principle’ and ‘full mirror principle’. With
regards to the ‘full mirror principle’ , they would usually consider that the English Courts
should take into account, should mirror Strasbourg jurisprudence and should not outpace
Strasbourg. This type of camp would usually use the common comment which ‘Strasbourg
has spoken, the case is closed’ as their argument as to convince the judges to follow the
mirror principle in trying to resolve the issue in a case. This include the President of the
UKSC and most of the senior judges. Secondly, the camp (‘semi-mirror principle’) would
usually follow suit. They consider the English Courts should sometime depart from
Strasbourg and sometime not. It usually depends on whether the ECHR benefit to them or
not. Lord Kerr in the recent Ambrose judgment placed in this position. Lastly, the camp
with ‘anti-mirror principle’ would usually state that the English Courts is not bound by
Strasbourg’s jurisprudence. They are not anchored to ECHR, commonly argue that the
Strasbourg has not spoken yet, its jurisprudence is not clearly. Members of this camp
include the original architect of the HRA and the supporter in the cases as mentioned
above such as Pepper v Hart. They would consider the judges need not be curtailed by the
particular point which reached by Strasbourg. 38

36
Begum v Tower Hamlets LBC [2002 EWCA Civ 239
37
Helen Fenwick, (n19) part.4
38
Helen Fenwick, (n19).part.4
As a conclusion, the HRA1998 enacted in order to ensure the effective implementation of ECHR
rights by the Executive, the legislature and the English Courts. It clearly show that the court
grappling (not always successfully or convincingly) with the ECHR. However, they also willing to
take into account of constitutional convention from a range of common law jurisdictions. 39
There is an unanswered controversy whether the English Court bound by the decision of ECtHR.
The voice of objections to depart from Strasbourg’s jurisprudence where is has not spoken is
unclear and its far less weak compare to which has spoken. 40 Helen Fenwick in ‘What’s Wrong
with S.2 of Human Rights Act’ (2012)’ stated out conclusion that “if s.2 was repealed, nothing was said in
HRA about the stance that should be taken to the Strasbourg jurisprudence, it’s quite probably that the
current interpretation of s2 would barely change: but its repeal would say to the UKSC - we want you to
sort this out, in detail in a suitable case - to enumerate the types of situation in which departure from
Strasbourg should occur.” Parliament could deal with this by amendment to s2 instead of ducking it as it
did in the first place as this would be a better solution in theory. 41

My opinion to this , I’m supporter to the “semi-mirror principle”. The decision of ECtHR
only persuasive and not binding, as a reference for the judge when deciding a case in
English Court. This clearly show in the case of R v Spear , R v Boyd and R v Saunby. 42
Section 2 of HRA1998 requires the court to take into account any previous decision of the
ECtHR , literally intentionally not binding, so the court can choose to not follow the ECHR
jurisprudence. This ensure that there is flexibility in the court system to ensure new law
development. Lord Irvine stated that the doctrine of precedent is inapplicable at
Strasbourg, where the ECHR itself is ultimate source of law. This ensure there is flexibility in
the HRA when compatible with the ECHR. However, there a need for the judge to take into
account of the Strasbourg’s jurisprudence in the absence of some special circumstance.
This to ensure fairness and the Court will outcome a decision which more comprehensive.
Discussion above show the impact that Strasbourg does not embrace a system of doctrine
of precedent, most of its decisions are highly particularistic, and that some turn on the

39
David Bonner, (n6) part II.A
40
Helen Fenwick, (n19).part.5
41
Helen Fenwick,(n19) part.5
42
R v Spear , R v Boyd and R v Saunby [2002] UKHL 31
State’s “margin of appreciation”, a doctrine which not available to the English Court. 43
Unstable nature of Strasbourg jurisprudence is well illustrated in Osman v United
Kingdom.44

Total words count :3041

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Bibliography

Textbook:

Nick Howard, Beginning Constitution Law ( 2 nd edn, Beginning the Law Ser, Taylor & Francis
Group, New York 2017)

Catherine Elliott and Frances Quinn, English Legal System(16 th edn, Pearson Education Ltd,
Malaysia 2015)

Ian Leigh and Roger Masterman, Making Rights Real: The Human Rights Act in Its First Decade ( 1 st
edn, Human Rights Law in Perspective Ser, Bloomsbury Publishing Plc, Oxford and Portland 2008)

43
David Bonner,(n6) part II.A
44
Osman v United Kingdom[1998] ECtHR 29
Gary Slapper and David Kelly, Law: the Basics (1 st edn, Taylor & Francis Group, USA 2011)

Cases:

R v Secretary of State for the Home Department ex p Brind (1991) [1991] UKHL 4

R (on the application of Hallam) v Secretary of State for Justice [2019] UKSC 31-83

R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63
Hirst v United Kingdom (No 2) [2005] EHRR 849
Anchugov and Gladkov v Russia [2013] ECHR
Manchester City Council v Pinnocka [2011] UKSC 6
R. (on the application of Anderson) v Secretary of State for Home Department [2002] UKHL 18
R (on the application of Minto Morrill Solicitors) v Lord Chancellor [2017] EWHC 612
R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment,
Transport and the Rigions [2001] UKHL 23
Morris v United Kingdom [2002] ECtHR 39
R. (on the application of Ullah) v Special Adjudicator [2004] UKHL 26
R (on the application of Quila) v SSHD [2011] UKSC 41
Begum v Tower Hamlets LBC [2002 EWCA Civ 239
R v Spear , R v Boyd and R v Saunby [2002] UKHL 31
Osman v United Kingdom[1998] ECtHR 29

Article:
David Bonner, Helen Fenwick and Sonia Harris-Short, ‘Judicial Approaches to the Human Rights Act’
(2003) 52
Modern Law Review. part I.B

Jane Wright, ‘Interpreting Section 2 of the Human Rights Act 1998: Towards an Indigenous jurisprudence
of Human Rights’(2009)595-616.Modern Law Review.1

Helen Fenwick, ‘What’s Wrong with S.2 of Human Rights Act’ (2012).Modern Law Review.1
Roger Masterman, ‘ Taking the Strasbourg jurisprudence into account : developing a “municipal law of
human rights” under the Human Rights Act’ (2005) 54.Modern Law Review. II.C

Website:
‘Judicial review whether can get domestic legal aid for application to the ECHR:2017’<
https://www.blackstonechambers.com/news/r-minton-morrill-solicitors-v-lord-chancellor/> accessed 14
NOV 2020
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