Section 2 of the Human Rights Act (HRA) requires that domestic courts “take into account” relevant Strasbourg case law when dealing with substantive claims under that Act. The classic authority on the application of this provision remains – for now – that of Lord Bingham: courts should “keep pace with the Strasbourg jurisprudence as it evolves over time: no more but certainly no less”.
Whilst the “no less” aspect of this dictum has given rise to its own controversies, the UKSC recently took up the opportunity to elaborate upon the equally contestable “no more” part of the formulation in the case of R (Elan-Cane) v Secretary of State for the Home Department (Elan-Cane). The Court was asked to determine whether the requirement that all UK passport holders must declare their gender as either male (M) or female (F), with no additional options such as an unspecified (X) gender marker, was compatible with the ECHR. The Court held that it was. In order to get there, the Court had to determine, in Lord Reed’s words (see ):
“whether an act which does not violate the international law obligations of the United Kingdom under the Convention can nevertheless be incompatible with a public authority’s obligations under the Human Rights Act.”
The Court’s answer was that it could not. An act which does not violate the ECHR could not be considered to violate the HRA. However, whilst a succinct summary of the central question, a note of caution should be entered. It is important to understand what Lord Reed means here by “an act which does not violate the ECHR”. It could be taken to mean, for example, any situation which has not yet been determined, one way or another, by the existing Strasbourg jurisprudence; an act cannot be considered to have violated the ECHR if the court with the authority to determine this question – the Strasbourg Court – has not yet done so. However, it is clear from the judgment, read as a whole, that Lord Reed is in fact referring to a situation where Strasbourg has already expressly considered the situation at hand, and has ruled that no breach arises in those circumstances. Lord Reed is therefore distinguishing, in a way which earlier cases may not have done quite so clearly, between a situation where a domestic judge is asked to “go beyond” the Strasbourg case law, and one where a domestic judge is asked to “go against” the Strasbourg case law. The proper course for the domestic courts in these two situations may not – and in the UKSC’s view, should not – be the same. The former appears to be permitted, but the latter is prohibited.
The remainder of this post explains and compares the “going beyond” and “going against” approaches, considers their surprisingly delphic exposition and application in the Elan-Cane judgment, and offers some comments on the two approaches, considered against the background of the government’s recent proposals to reform human rights law.
The “absence” approach – going beyond the Strasbourg case law
Certain dicta originating from the early case law dealing with section 2 of the HRA seems to suggest that domestic courts can never go beyond the reaches of Strasbourg, and that an absence of authoritative case law should prevent a case from succeeding at the domestic level. For example, in the case of N v Secretary of State for the Home Department Lord Nicholls stated, as a general proposition, that it “is not for us [domestic judges] to search for a solution to [the appellant’s] problem which is not to be found in the Strasbourg case law”. In R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs he stated emphatically that the HRA “was not intended to provide a domestic remedy where a remedy would not have been available in Strasbourg”. Similar ideas appear in the majority judgments in UKSC cases such as Ambrose and Al-Skeini.
Nevertheless, it has since been established that our courts can still find a violation of Convention rights, even in cases not squarely covered by a Strasbourg judgment, if such a conclusion would “flow naturally” from the existing case law (see, amongst other recent authorities, R (Maguire) v HM Senior Coroner at  and R (Crowter) v Secretary of State for Health and Social Care). Indeed, in another recent case, the UKSC stated that domestic courts
“can and should aim to anticipate, where possible, how the European court might be expected to decide the case, on the basis of the principles established in its case law.”
This exception explains, for example, cases such as DSD and Rabone, the latter of which was cited with approval in Elan-Cane. Indeed, despite the general tenor of its judgment, the Court in Elan-Cane seems to approve this position, saying that “the protection of Convention rights under the Human Rights Act can go beyond the situations previously considered by the European court, where the principles established by that court enable such a step to be taken” and elsewhere that “it is open to domestic courts to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law, on the basis of the principles established in that law”.
This confirmation falls in line with recent statements of high authority and may call into question the somewhat reticent approach adopted in cases such as Secretary of State for Justice v A Local Authority in the Court of Appeal (on local authority powers in relation to sex work) and R (Schofield) v Secretary of State for the Home Department in the High Court (on intercept evidence). As far as the UKSC is concerned, then, domestic courts may still “go beyond” the Strasbourg case law, although there are limitations as to when it can do so, and how far it can go when it does.
The “adverse” approach – going against the Strasbourg case law
The position of the case law in relation to going against existing Strasbourg rulings is more ambiguous. Generally, the dicta quoted above in Ullah, N, Quark Fishing and others would certainly prevent going against a clear judgment of the Strasbourg court which rules that a situation is compatible with the ECHR. Indeed, in Elan-Cane, whilst Lord Reed accepts that there can be some circumstances in which domestic courts can “go beyond” the Strasbourg case law, he suggests that both principle and the established case law shows that those courts should not “go against” a Strasbourg ruling. This, as with the position on “going beyond” Strasbourg, is a stance reflected consistently in the domestic case law, according to Lord Reed. Any other view, he suggested, is found “mostly in dissenting or concurring judgments… or in obiter dicta”.
With respect, this understates the prevalence of the contrary view. In fact, there are many statements of high authority which suggest that domestic courts can and should be able to determine that an act or law is incompatible with human rights even if Strasbourg has adopted a different view. In dismissing these statements as outliers, Lord Reed (rightly) chides Nicklinson as being a confusing case which can be difficult to follow. But the following passage of Lady Hale, echoing the majority judgment of Lord Neuberger, could not be clearer:
“Even if the Strasbourg court would regard the issue before us as within the margin of appreciation which it accords to member states, it is within the jurisdiction accorded to this court under the Human Rights Act 1998 to decide whether the law is or is not compatible with the Convention rights recognised by UK law”
The High Court in Conway certainly thought so:
“That a distinct claim of incompatibility with such rights can be maintained even where there is no breach of the ECHR itself was… confirmed by the Supreme Court in Nicklinson”
Further, in Re McLaughlin, a case which was mentioned only briefly in Elan-Cane, Lord Mance expressly recognised that a Strasbourg case – Shackell v UK – had determined that married and unmarried widows were not in an analogous situation for the purposes of Article 14 ECHR, and that differential benefits for these two groups could not breach the Convention. Despite this, he found that in the case before him, involving essentially the same question, the positions of a married and unmarried widow were analogous to one another, and affording differential benefits to these groups did breach Article 14; the restrictive approach in Shackell, in Lord Mance’s view, “should not be followed, at least domestically”.
This is not to say that Lord Reed was wrong about the position in law (and even if he was, the UKSC has the authority to depart from its own pronouncements). There certainly are cases to support that view, and they are cited in the judgment. The previous position was not clear. But the position in Elan-Cane – where courts should never go against a judgment of the Strasbourg court – is a clear step back from at least some recent authorities, something which was not sufficiently acknowledged in the judgment.
The distinction between “going beyond” and “going against” Strasbourg
The distinction between “going beyond” and “going against” Strasbourg as set out here was not set out quite as expressly as might have been expected in the Elan-Cane case. This is, in part, because the Court spent a lot of space answering a particular sub-question relating to the position in Re G on the margin of appreciation, and whether this widens or limits the space for domestic courts to provide their own views (the answer: when Strasbourg finds that there is no breach of the ECHR because of the presence of a significant “margin of appreciation”, this constitutes a concrete determination of Convention-compliance, therefore courts should not be “going against” it). The position in relation to “going against” sketched out above was a necessary stepping-stone to this conclusion.
Further, it is not always clear whether the Court is considering whether to “go beyond” or “go against” the Strasbourg court. As set out above, some of the more complicated aspects of previous cases were artificially swept under the rug for the sake of a more coherent precedential narrative. For example, whilst Ambrose is cited – fairly – as a case in which courts warned against going beyond Strasbourg, a closer reading of that case shows that at least some of the judges (e.g. Lord Dyson) identified cases in which Strasbourg found no breach on similar facts, potentially turning the case into a “going against” example rather than a “going beyond” one.
In fact, the applicable approach is not necessarily clear in Elan-Cane itself. Despite spilling much ink on the dangers of “going against” Strasbourg, it appears that the case at hand was actually a “going beyond” one; notably, Lord Reed remarked that “the European court does not appear to have considered the issue raised in these proceedings”. As such, under the HRA, the UKSC could have found a breach (it could “go beyond” Strasbourg), but on this occasion chose not to, because doing so would not “flow naturally” from the Strasbourg case law but “would go well beyond” it. Confusingly, however, in at least one section, the Court suggests that at least one Strasbourg case closed off the possibility of the claimant succeeding, which, despite the above, points towards a “going against” case rather than a “going further” one.
In either case, the result was the same: no breach.
Some issues and a note on HRA reform
The merits of the Court’s judgment will not be discussed in any detail here. What follows are a few short observations about the approach described above, particularly in light of the recent publication of the Independent Human Rights Act Review (IHRAR) and Ministry of Justice’s Review of the HRA.
Firstly, both the “going beyond” and “going against” rules ensure that the UKSC sticks very close to Strasbourg. They involve a close monitoring, and in some ways perhaps even a kind of reliance, on the rulings of the Strasbourg court. Indeed, in Elan-Cane, Lord Reed said this at :
“it has generally been accepted that the domestic application of Convention rights under the Human Rights Act has to be based on the principles established in the case law of the European court, rather than upon a distinct domestic interpretation of Convention rights.”
And also this at :
“Since the rights have the same content at the domestic level as at the international level, it follows that the relevant articles of the Convention should in principle receive the same interpretation in both contexts.”
The question of how distinct the ECHR and HRA ought to be is one which has received contradictory answers in the case law. As with other aspects of the judgment, Lord Reed is perhaps overstating how consistent the courts have been here. Whilst there are certainly statements supporting Reed’s view, the idea that the HRA is distinct from the ECHR has been used to justify departing from Strasbourg. It has been instrumental, for example, in developing the jurisprudence relating to “going beyond” Strasbourg (see e.g. Lord Kerr in DSD), has been used to justify departing from Strasbourg rulings in relation to issues such as the conduct of police interviews, and appears frequently throughout the domestic case law. Indeed, in McQuillan, a judgment handed down on the very same day as Elan-Cane, the UKSC said:
“Since the rights in the Convention and the HRA are distinct and the persons subject to obligations under them and the obligations themselves are different, the mirror principle can only provide general guidance; it is inherent in the nature of the legal regime produced by the HRA that Parliament could not have intended the mirroring effect of the Act to be exact and uniform.”
The MoJ Review shows clear opposition to what it considers to be a domestic over-reliance on the Strasbourg case law. In that sense, Elan-Cane may not be viewed favourably. At the same time, however, the consultation document praises the general direction of travel, of which Elan-Cane is undoubtedly a part, which resists undue “gold-plating” of human rights standards. But these positions are, of course, related. A court which sticks closely to Strasbourg will not be able to expand rights of its own accord, but may have to apply Strasbourg rulings in areas it would not otherwise have done so itself. A court freed from the shackles of Strasbourg should, surely, be able to determine the scope of rights for itself, even in directions the MoJ might not like. If our courts are to say “no” to Strasbourg, they must be allowed not only to depart from the rulings of that court, but also should be free to go further than Strasbourg has gone, regardless of whether this would mean “going beyond” or “going against” its rulings.
Unfortunately, the above disparity is reflected, at least to some extent, in the case law. In recent years, the UKSC has become increasingly willing to depart from Strasbourg case law which recognises a breach of rights (see here). As such, the current position seems to be that if the Strasbourg court finds that a given situation breaches the ECHR, the domestic courts can choose not to follow it. But if the same Court finds that a given situation does not breach the ECHR, this must, according to Lord Reed, be followed. The reasons used to justify following Strasbourg closely when it sides with the UK government as an applicant apparently do not apply when it comes to following judgments in which it sides with a claimant. In one situation, we are tied to the Court. In the other, we are free to forge our own path. Not only is this inconsistent, but it results in a lower level of rights protection. If Ullah demanded “no more, but no less” from domestic courts, the current position of the UKSC may now be that “less, but no more” is permitted. This cannot be right.
To vouch for independence from Strasbourg where it would allow domestic authorities to apply a lower standard of protection, but fealty to Strasbourg where it would limit our domestic courts from providing independent security of rights would be contradictory. Such a position would be driven not by concerns about sovereignty and dualism, but by a desire to weaken human rights protections across the board.
Thanks to Jennifer Boddy for comments on a draft version of this piece.
Lewis Graham is a Fellow at Wadham College, Oxford.
(Suggested citation: L. Graham, ‘Going beyond, and going against, the Strasbourg Court’, U.K. Const. L. Blog (11th January 2022) (available at https://ukconstitutionallaw.org/))