What are the roles of UK courts and the European Court of Human Rights?
When claims are brought in the UK courts under the Human Rights Act, section 2 requires the courts to take account of the case law of the European Court of Human Rights (European court), as it is the court that provides the authoritative interpretation of ECHR rights across all states that are party to the ECHR. Like with the ECHR itself, the European court is not affiliated with the EU – it is distinct from the EU court system.
UK courts have described section 2 as a duty to ‘keep pace’ with the European court’s case law, but not to go further by interpreting and developing ECHR rights in ways not yet affirmed by the European court.
For example, in the Friends of the Earth judicial review of the UK government’s net zero strategy in 2022, the High Court decided that Articles 2 and 8 ECHR could not be interpreted as offering protection from the future effects of climate change, because there was no confirmation of that interpretation in the European court’s case law at that time.
It is a core principle of the European court that, in general, it will only accept a case for consideration if the applicant has first gone through their national court system to seek a remedy. This means that most human rights breaches are resolved by a national court giving judgment, without the need for a case to be taken to the European court. In effect, the cases taken to the European court are a form of ‘appeal’, where the national courts have not found in the applicant’s favour.
In contrast to a claim under the Human Rights Act, a UK case taken to the European court is always a claim against the UK state as a whole, represented by the UK government, rather than any particular public body in the UK. The claim is not only about the acts of any given public body, but also about the fact that national laws and national courts did not prevent those acts.
Can national legislation be made to modify ECHR rights?
In national law, it is possible in principle for legislation to be made that modifies ECHR rights. However, such legislation may be challenged in the courts, as described above, if it is incompatible with ECHR rights.
Given that a court will, where possible, seek to interpret an Act of parliament consistently with ECHR rights (see above), an Act that modifies ECHR rights would require express wording showing a clear intention to restrict ECHR rights in order to have that effect. If that were the case, a UK court could not strike down or disapply the Act of parliament – it could only make a declaration of incompatibility under section 4 of the Human Rights Act.
Equally, as the Human Rights Act is an Act of parliament, it could be amended or repealed by another Act of parliament. In 2022, the UK government put forward a Bill of Rights Bill which would have repealed and replaced the Human Rights Act, giving effect to ECHR rights in the UK in a more restrictive and complex way. The Bill was highly controversial, and in 2023 the government announced that it would not pursue it further.
If an Act of parliament were passed that restricted ECHR rights, and UK courts were unable to strike it down, then a claim could be made against the UK in respect of that legislation in the European court. Whilst such an Act of parliament might be lawful in the UK’s national law, it would be a breach of the UK’s ECHR obligations in international law.
For example, in Hirst (No.2) in 2005, the European court found the UK in breach of the ECHR, due to the Act of parliament restricting prisoners’ voting rights. The Act had been upheld by the UK courts as lawful in national law prior to that judgment, though they subsequently followed the European court’s ruling and issued a declaration of incompatibility in respect of it (see above).