Judicial Review of Administrative Acts on Human Rights Grounds
Civil Liberties to Human Rights:
Historic Conception of ‘Negative’ Civil Liberties:
Wheeler v Leicester City Council [1985], Lord Brown-Wilkinson, ‘fundamental freedoms therefore are
not positive rights but an immunity from interference by others’. Boyle and Wells highlighted two
limitations with the pre-HRA state: ‘principle of parliamentary sovereignty… any legislation can
override rights recognised and protected by the common law’ and ‘technique and attitude’.
The residual freedom was being eroded by legislative constraints, with Dworkin stating ‘liberty is ill
in Britain,’ by 1990.
The Domestic Effect of the Convention pre-HRA:
(i) The impact of the Convention upon Domestic Law:
Judicial remedies at domestic level was rare, as the UK’s dualist system meant reliance in domestic
courts on the unincorporated provisions of the European Convention was permitted in very limited
circumstances. In 316 cases between 1973 and 1996, the Convention rights only influenced the
outcome of 16 of those decisions (K. Starmer and F. Klug, ‘Incorporation through the Back Door’
[1997] PL 223, 225.)
(ii) The Limits of the Convention’s Role:
Relying directly on the Convention pre-HRA1998 was impossible (Malone v Metropolitan Police
Commissioner (No. 2) [1979]). However, the Convention could be used as an interpretative aid.
Statute ambiguity would see courts presume Parliament legislated to be compatible with the UK’s
treaty obligations under the European Convention. Plus, this aid could be used for interpretation and
clarification of common law requirements.
R v Secretary of State for the Home Department, ex parte Brind [1991] saw the Lords maintain that to
rely upon Convention rights in domestic law would be to incorporate the European Convention
behind Parliament’s back.
(iii) Fundamental Rights at Common Law:
Pre-HRA, interpreting the ECHR also saw the development of an embryonic jurisprudence of
common law fundamental rights: including the right of access to a court, legal advice, confidential
communications with a legal adviser, and to freedom of expression.
This amounted to a presumption Parliament wouldn’t legislate to the contract of fundamental rights,
known as the ‘principle of legality’ by Lord Hoffman in ex parte Simms: ‘in the absence of express
language or necessary implication to the contrary, the courts will therefore presume that even the
most general words were intended to be subject to the basic rights of the individual’.
R (Osborn) v Parole Board [2013] stated that the Act ‘does not superseded’ common law human
rights protections. ‘Human rights continue to be protected by our domestic law, interpreted and
developed in accordance with the Act when appropriate’. Post-HRA, in Elgizouli v Secretary of State
for the Home Department [2020], Lord Kerr held a new common law principle whereby ‘it is deemed
unlawful to facilitate the trial of any individual in a foreign country where, to do so, would put that
person in peril of being executed’.
,Incorporating the Convention:
HRA incorporates a selection of rights (HRA 1998, s. 1), and requires UK courts to consider
Strasbourg jurisprudence when interpreting these rights (HRA 1998, s. 2).
Reconciling Parliamentary Sovereignty with Human Rights:
(i) Comparable Rights Protection Regimes:
Lord Scarman saw parliamentary sovereignty as an obstacle to ‘fundamental and inviolable human
rights’. He advocated for entrenched human rights protections, equivalent to the US’ Bill of Rights.
The Commonwealth approach is mid-way between parliamentary and judiciary supremacy.
(ii) The UK Model of Incorporation:
The Labour Party White Paper on ECHR incorporation did not intend to give domestic judges a
judicial review power comparable with the US Supreme Court, ‘courts should not have the power to
set aside primary legislation, past or future, on the ground of incompatibility with the Convention’.
Instead, courts could declare legislation incompatible with human rights, similar to in New Zealand.
What Elements of the ECHR were Incorporated into UK Law?
(i) The Incorporated Rights:
Articles 2 to 12, 14, Articles 1 to 3 of the First Protocol, and Article 1 of the Thirteenth Protocol are
incorporated into the UK’s legal systems (HRA1998, s. 1). Lord Reed asserted the HRA is a vehicle for
incorporating specific Convention rights, rather than a basis for ‘distinct interpretation of Convention
rights’ (R (Elan-Cane) v Secretary of State for the Home Department [2021]). The UK omitted Article
13, the right to an effective remedy. This doesn’t mean the UK is in breach of their obligations
(Greens and MT v United Kingdom (2011)).
(ii) The Status of Strasbourg Jurisprudence:
Without reference to the European Court’s jurisprudence, domestic decisions would be subject to
appeals to Strasbourg. Thus, the HRA requires courts ‘must take into account’ the European
decisions ‘so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which
that question has arisen’ (HRA 1998, s. 2(1)). The Labour Party White Paper on HRA incorporation
did state that ‘British judges will ne enabled to make a distinctively British contribution to the
development of the jurisprudence of human rights in Europe’.
Strasbourg jurisprudence obligation is less strict than the obligation towards ECJ case law. Following
Brexit, minister can issue an order specifying that domestic courts can depart form the Court of
Justice interpretations of aspects of retained EU law (European Union (Withdrawal) Act 2018, s. 6).
This is a comparison of HRA 1998 s. 2 and ECA 1972 s. 3.
R (Ullah) v Special Adjudicator [2004] exemplifies that jurisprudence of UK courts under s. 2(1), in
that the Court of Appeal rejected a deportation appeal on the basis Strasbourg had only restricted
the ability of states to deport individuals when deportation exposed them to a real risk of the violate
of the absolute prohibition of torture (Article 3 ECHR). Appealed to the Lords, Lord Bingham rejected
the appeal, arguing the HRA1998 required courts to apply ECHR rights within domestic legal systems,
but not to develop them, as providing ‘rights more generous’ is left to member states’ decisions, and
the ‘duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over
time’. Lord Hope repeated this in N v Secretary of State for the Home Department [2005] in
deporting an AIDS sufferer not constituting as inhuman and degrading treatment (contrary to Article
, 3 ECHR) as ‘it is not for us to search for a solution to her problem which is not to be found in the
Strasbourg case law’. Mirroring Strasbourg interpretations allows UK judges to deflect political
criticism of their decisions, but as Strasbourg is an international court for 47 countries, their
judgments are not generalised rulings that apply in the same way in every member state.
R v Horncastle [2009] shows divergence between the UK courts and the Strasbourg court. Due to no
cross-examination of witness statements, the right to a fair trial (Article 6 ECHR) was argued to be
breached, with Al-Khawaja and Tahery v United Kingdom (2009) the Strasbourg ruling that such
‘hearsay’ evidence should not form the basis of a prosecution. Lord Phillips held that where concerns
if Strasbourg ‘sufficiently appreciates or accommodates particular aspects of our domestic process…
it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for
adopting this course’. This case was such, as if Article 6 precluded such witness statements, it would
be impossible to prosecute some individuals where a witness, for example, has died between
making their statement and the trial.
Strasbourg jurisprudence should not necessarily be followed when:
It is ‘reasonably foreseeable’ the European Court would now come to a difference
conclusion (R (Gentle) v Prime Minister [2008]).
A margin of appreciation would be afforded, so decision is one for domestic authorities to
‘decide for themselves’ (Re G [2008]).
The area is governed by common law and the court is minded to exercise its discretion to
depart from the Strasbourg line (Rabone v Pennine Care Foundation NHS Trust [2012]).
Court attaches ‘great weight’ to a parliamentary decision which determines the balance
between rights and interests which is interpreted as inconsistent with Strasbourg authority
(R (Animal Defenders International) v Secretary of State for Culture, Media, and Sport
[2008]).
Strasbourg case law is outdated (R (Quila) v Secretary of State for the Home Department
[2011]).
Strasbourg ‘inconsistent with some fundamental substantive or procedural aspect of our
law’ (Manchester City Council v Pinnock [2010]).
Convention case law ‘appears to overlook or misunderstand some argument or point of
principle’ (Manchester City Council v Pinnock [2010]).
Strasbourg discloses no ‘clear and constant’ jurisprudence line (R (Keyu) v Secretary of State
for Foreign and Commonwealth Affairs [2015]).
Pinnock saw Lord Neuberger say following every European Court decision would be ‘impractical’ and
‘would destroy the ability of the court to engage in the constructive dialogue with the European
court which is of value to the development of Convention Law’ [48].
s. 2 also gives rise to the possibility that later Convention jurisprudence may render earlier domestic
precents outdated, and the domestic hierarchy would be disrupted, as a county court would need to
follow an intervening Strasbourg judgement over a relevant Supreme Court authority. Thus, in Kay v
Lambeth LBC [2006], Lord Bingham held that where a binding precedent conflicted with Strasbourg
authority, the first-instance court should apply the domestic precedent, giving leave to appeal as
necessary to pass the matter to a court with sufficient authority.
(iii) Human Rights and Special Interests:
Civil Liberties to Human Rights:
Historic Conception of ‘Negative’ Civil Liberties:
Wheeler v Leicester City Council [1985], Lord Brown-Wilkinson, ‘fundamental freedoms therefore are
not positive rights but an immunity from interference by others’. Boyle and Wells highlighted two
limitations with the pre-HRA state: ‘principle of parliamentary sovereignty… any legislation can
override rights recognised and protected by the common law’ and ‘technique and attitude’.
The residual freedom was being eroded by legislative constraints, with Dworkin stating ‘liberty is ill
in Britain,’ by 1990.
The Domestic Effect of the Convention pre-HRA:
(i) The impact of the Convention upon Domestic Law:
Judicial remedies at domestic level was rare, as the UK’s dualist system meant reliance in domestic
courts on the unincorporated provisions of the European Convention was permitted in very limited
circumstances. In 316 cases between 1973 and 1996, the Convention rights only influenced the
outcome of 16 of those decisions (K. Starmer and F. Klug, ‘Incorporation through the Back Door’
[1997] PL 223, 225.)
(ii) The Limits of the Convention’s Role:
Relying directly on the Convention pre-HRA1998 was impossible (Malone v Metropolitan Police
Commissioner (No. 2) [1979]). However, the Convention could be used as an interpretative aid.
Statute ambiguity would see courts presume Parliament legislated to be compatible with the UK’s
treaty obligations under the European Convention. Plus, this aid could be used for interpretation and
clarification of common law requirements.
R v Secretary of State for the Home Department, ex parte Brind [1991] saw the Lords maintain that to
rely upon Convention rights in domestic law would be to incorporate the European Convention
behind Parliament’s back.
(iii) Fundamental Rights at Common Law:
Pre-HRA, interpreting the ECHR also saw the development of an embryonic jurisprudence of
common law fundamental rights: including the right of access to a court, legal advice, confidential
communications with a legal adviser, and to freedom of expression.
This amounted to a presumption Parliament wouldn’t legislate to the contract of fundamental rights,
known as the ‘principle of legality’ by Lord Hoffman in ex parte Simms: ‘in the absence of express
language or necessary implication to the contrary, the courts will therefore presume that even the
most general words were intended to be subject to the basic rights of the individual’.
R (Osborn) v Parole Board [2013] stated that the Act ‘does not superseded’ common law human
rights protections. ‘Human rights continue to be protected by our domestic law, interpreted and
developed in accordance with the Act when appropriate’. Post-HRA, in Elgizouli v Secretary of State
for the Home Department [2020], Lord Kerr held a new common law principle whereby ‘it is deemed
unlawful to facilitate the trial of any individual in a foreign country where, to do so, would put that
person in peril of being executed’.
,Incorporating the Convention:
HRA incorporates a selection of rights (HRA 1998, s. 1), and requires UK courts to consider
Strasbourg jurisprudence when interpreting these rights (HRA 1998, s. 2).
Reconciling Parliamentary Sovereignty with Human Rights:
(i) Comparable Rights Protection Regimes:
Lord Scarman saw parliamentary sovereignty as an obstacle to ‘fundamental and inviolable human
rights’. He advocated for entrenched human rights protections, equivalent to the US’ Bill of Rights.
The Commonwealth approach is mid-way between parliamentary and judiciary supremacy.
(ii) The UK Model of Incorporation:
The Labour Party White Paper on ECHR incorporation did not intend to give domestic judges a
judicial review power comparable with the US Supreme Court, ‘courts should not have the power to
set aside primary legislation, past or future, on the ground of incompatibility with the Convention’.
Instead, courts could declare legislation incompatible with human rights, similar to in New Zealand.
What Elements of the ECHR were Incorporated into UK Law?
(i) The Incorporated Rights:
Articles 2 to 12, 14, Articles 1 to 3 of the First Protocol, and Article 1 of the Thirteenth Protocol are
incorporated into the UK’s legal systems (HRA1998, s. 1). Lord Reed asserted the HRA is a vehicle for
incorporating specific Convention rights, rather than a basis for ‘distinct interpretation of Convention
rights’ (R (Elan-Cane) v Secretary of State for the Home Department [2021]). The UK omitted Article
13, the right to an effective remedy. This doesn’t mean the UK is in breach of their obligations
(Greens and MT v United Kingdom (2011)).
(ii) The Status of Strasbourg Jurisprudence:
Without reference to the European Court’s jurisprudence, domestic decisions would be subject to
appeals to Strasbourg. Thus, the HRA requires courts ‘must take into account’ the European
decisions ‘so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which
that question has arisen’ (HRA 1998, s. 2(1)). The Labour Party White Paper on HRA incorporation
did state that ‘British judges will ne enabled to make a distinctively British contribution to the
development of the jurisprudence of human rights in Europe’.
Strasbourg jurisprudence obligation is less strict than the obligation towards ECJ case law. Following
Brexit, minister can issue an order specifying that domestic courts can depart form the Court of
Justice interpretations of aspects of retained EU law (European Union (Withdrawal) Act 2018, s. 6).
This is a comparison of HRA 1998 s. 2 and ECA 1972 s. 3.
R (Ullah) v Special Adjudicator [2004] exemplifies that jurisprudence of UK courts under s. 2(1), in
that the Court of Appeal rejected a deportation appeal on the basis Strasbourg had only restricted
the ability of states to deport individuals when deportation exposed them to a real risk of the violate
of the absolute prohibition of torture (Article 3 ECHR). Appealed to the Lords, Lord Bingham rejected
the appeal, arguing the HRA1998 required courts to apply ECHR rights within domestic legal systems,
but not to develop them, as providing ‘rights more generous’ is left to member states’ decisions, and
the ‘duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over
time’. Lord Hope repeated this in N v Secretary of State for the Home Department [2005] in
deporting an AIDS sufferer not constituting as inhuman and degrading treatment (contrary to Article
, 3 ECHR) as ‘it is not for us to search for a solution to her problem which is not to be found in the
Strasbourg case law’. Mirroring Strasbourg interpretations allows UK judges to deflect political
criticism of their decisions, but as Strasbourg is an international court for 47 countries, their
judgments are not generalised rulings that apply in the same way in every member state.
R v Horncastle [2009] shows divergence between the UK courts and the Strasbourg court. Due to no
cross-examination of witness statements, the right to a fair trial (Article 6 ECHR) was argued to be
breached, with Al-Khawaja and Tahery v United Kingdom (2009) the Strasbourg ruling that such
‘hearsay’ evidence should not form the basis of a prosecution. Lord Phillips held that where concerns
if Strasbourg ‘sufficiently appreciates or accommodates particular aspects of our domestic process…
it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for
adopting this course’. This case was such, as if Article 6 precluded such witness statements, it would
be impossible to prosecute some individuals where a witness, for example, has died between
making their statement and the trial.
Strasbourg jurisprudence should not necessarily be followed when:
It is ‘reasonably foreseeable’ the European Court would now come to a difference
conclusion (R (Gentle) v Prime Minister [2008]).
A margin of appreciation would be afforded, so decision is one for domestic authorities to
‘decide for themselves’ (Re G [2008]).
The area is governed by common law and the court is minded to exercise its discretion to
depart from the Strasbourg line (Rabone v Pennine Care Foundation NHS Trust [2012]).
Court attaches ‘great weight’ to a parliamentary decision which determines the balance
between rights and interests which is interpreted as inconsistent with Strasbourg authority
(R (Animal Defenders International) v Secretary of State for Culture, Media, and Sport
[2008]).
Strasbourg case law is outdated (R (Quila) v Secretary of State for the Home Department
[2011]).
Strasbourg ‘inconsistent with some fundamental substantive or procedural aspect of our
law’ (Manchester City Council v Pinnock [2010]).
Convention case law ‘appears to overlook or misunderstand some argument or point of
principle’ (Manchester City Council v Pinnock [2010]).
Strasbourg discloses no ‘clear and constant’ jurisprudence line (R (Keyu) v Secretary of State
for Foreign and Commonwealth Affairs [2015]).
Pinnock saw Lord Neuberger say following every European Court decision would be ‘impractical’ and
‘would destroy the ability of the court to engage in the constructive dialogue with the European
court which is of value to the development of Convention Law’ [48].
s. 2 also gives rise to the possibility that later Convention jurisprudence may render earlier domestic
precents outdated, and the domestic hierarchy would be disrupted, as a county court would need to
follow an intervening Strasbourg judgement over a relevant Supreme Court authority. Thus, in Kay v
Lambeth LBC [2006], Lord Bingham held that where a binding precedent conflicted with Strasbourg
authority, the first-instance court should apply the domestic precedent, giving leave to appeal as
necessary to pass the matter to a court with sufficient authority.
(iii) Human Rights and Special Interests:
