Sample 2:1 Undergraduate Law Essay

What are the impacts, if any, of the ECtHR judgements on the U.K legal system?

Introduction

The UK became a signatory to the European Convention on Human Rights 1950 (ECHR) in 1950 and ratified it in 1951. It became binding on the UK when it entered into force in 1953. Under Article 46 the UK must abide by final judgements of the European Court of Human Rights (ECtHR) in cases to which it is a party. Legislation is one way of giving effect to a judgement, but is not always needed. The Human Rights Act 1998 (HRA98) added to these obligations, in that UK courts and tribunals are now required to take account of decisions of the ECtHR when applying human rights obligations under the ECHR. The impacts of ECtHR on the UK legal system will be addressed in four parts. The first part considers how the human rights system under the ECHR was established and came into effect in the UK and then through the HRA98 courts in the UK was obligated to take account of decisions of the ECtHR when applying Convention rights. Second, the negative and positive obligations under the right to life will be evaluated. The third part discusses how Courts decisions have altered the rights of States to deport terrorist suspects. Fourth, the rights of prisoners to vote in UK elections will be discussed, including how the UK responded to the finding that its general ban on voting by convicted prisoners in custody was disproportionate.

Human Rights in Europe

The UK was one of the original signatories to the ECHR, which was open for signature on 4 November 1950. Scholars have suggested that the original membership had little conception of the extent of the influence that the Convention and the Court would eventually have upon their domestic legal systems.[1] In the early days of the ECHR, there existed a dual system of dispute resolution including a European Commission on Human Rights, established in 1954 and the ECtHR, established in 1959.[2] In 1998, Protocol No.11 to the ECHR abolished the Commission and established a full time Court.[3]

The UK's relationship with the Convention changed fundamentally in 2000, when the HRA98 came into force. Prior to the HRA98, judgements of the ECtHR still had a significant impact on the UK legal system.[4] The UK accepted the right of individual petition under the Harold Wilson government in 1966; which meant that individuals claiming to be victims of a breach by the UK could apply to the Commission once they had exhausted effective domestic remedies. Since Protocol No. 11, applications have been made directly to the Court.[5] The impact of the HRA98 has been that since 2 October 2000, victims of unlawful acts by public authorities have been able to rely directly on the Convention rights given effect by the Act in UK courts.[6]

Specifically in relation to the judgements of the ECtHR, section 2(1) HRA98 requires a UK court or tribunal determining a question connected with a Convention right to take account of relevant judgements, decisions, declarations and advisory opinions of the ECtHR. The duty also covers the decisions and opinions of the former European Commission of Human Rights and decisions of the Committee of Ministers specified in that section.[7] UK judges ordinarily follow a clear and consistent line of Strasbourg decisions when interpreting Convention rights, but are not bound by those decisions as precedents.[8] Section 3 requires courts to read legislation compatibly with Convention rights so far as possible. If a provision of an Act of the UK Parliament cannot be read compatibly, a court listed in section 4 may declare it incompatible. The provision remains in force.

In Price v Leeds City Council[9] the Court of Appeal was faced with a decision regarding a council's claim for possession of a recreation ground where a Traveller family had parked their caravans. The family relied on Article 8, the right to respect for their home. The Court of Appeal referred to a decision of the House of Lords in Harrow LBC v Qazi,[10] however, a more recent decision of the ECtHR in Connors v UK,[11] meant that the Qazi decision might need to be reconsidered. The Court of Appeal followed Qazi and granted permission to appeal. The House of Lords confirmed that lower courts should follow binding domestic precedent even where later Strasbourg authority calls it into question. The family lost their appeal. In Manchester City Council v Pinnock, the Supreme Court subsequently held that a person facing the loss of their home at the suit of a local authority must be able to have the proportionality of the eviction assessed by an independent tribunal.[12]

Negative and Positive Obligations to Protect Life

McCann v UK[13] laid down standards for the lethal use of force by the security services. The case concerned the fatal shooting in Gibraltar of IRA terrorist suspects by British Special Air Service (SAS) soldiers. The relatives of the three people killed brought a complaint before the ECtHR alleging a violation of Article 2 ECHR (the right to life). The ECtHR found a breach of Article 2 in this case. They held that although the SAS members had genuinely believed that the suspects were about to detonate a car bomb by remote control, the right to life had been violated because the operation had not been planned and controlled so as to minimise, to the greatest extent possible, the need for lethal force.

The UK Deputy Prime Minister, at the time, argued that the decision was encouraging terrorism and that the Government would not take action because of it.[14] However, attitudes changed over time, the standards established in the judgement for the planning and control of operations involving lethal force gained acceptance and became part of policy guidance on the management, command and deployment of armed officers.[15]

Another leading case concerned with the protection of the right to life is that of Osman v UK,[16] in which the ECtHR established criteria for authorities to uphold their obligations under Article 2. The case concerned a teacher who had developed an obsession with one of his pupils, Ahmet Osman. The family of the student experienced threats and criminal damage, culminating in an attack by the teacher in which Ahmet Osman was injured and his Father killed. The Osman judgement then established criteria for whether or not police forces are in violation of positive obligations to protect individuals under Article 2. The test as summarised asked whether the authorities were aware or ought to have been aware at the time of a real and immediate risk to the life of an identified individual from the criminal acts of a third party, and failed to take measures within their powers that could reasonably have been expected to avert it. On the facts, the Court found no violation of Article 2.[17]

The outcome of the Osman case was that the test was later adopted as part of policing policy and practice across a range of areas.[18] The Equality and Human Rights Commission reported in 2009 that the majority of police forces in England and Wales had policies on the handling of threats to life by third parties, based directly upon the test established in the Osman case.[19] An 'Osman warning' is used to let an individual know that the police perceive their life to be at risk.[20]

Deportation of Terrorist Suspects

The treatment of terrorist suspects has presented one of the greatest challenges to human rights protections in the UK.[21] Although the threat of terrorist activity may be real, governments are still required to work within a human rights framework in the treatment of terrorist suspects. However, governments wishing to assure the public that measures are being taken to minimise the threat may breach their obligations under the ECHR.[22]

Where an individual is considered to be a threat to national security, the Home Secretary may make a deportation order against a non-British citizen where deportation is conducive to the public good, subject to the statutory exceptions. In Chahal v UK[23] the applicant was a Sikh activist who had gained residence in the UK after a general amnesty for illegal immigrants in 1974. [24] In 1990 Chahal was served with notice of the intention to deport him on national security grounds. The Home Secretary signed the deportation order in July 1991. Chahal's case reached the ECtHR where it was found that there were substantial grounds for believing that he would face a real risk of treatment contrary to Article 3 (the prohibition of torture and inhuman or degrading treatment or punishment) if deported to India. Chahal invokes the principle first established in Soering v UK, that extradition can itself breach Article 3 where there are substantial grounds for believing that the person faces a real risk of such treatment in the receiving state. Chahal applied that principle to deportation and confirmed that the risk could not be weighed against the danger the individual posed to national security.[25]

The ECtHR also found a breach of Article 5(4) (the right to liberty) ECHR because Chahal could not obtain effective judicial review of the lawfulness of his detention. The domestic courts could not scrutinise the national security grounds for detaining him, and the advisory panel could not order his release. There was also a breach of Article 13 because Chahal had no effective domestic remedy for his complaint that deportation would expose him to treatment contrary to Article 3.[26] In order to adhere to their Convention obligations, the UK established a specialist tribunal for national security immigration appeals under the Special Immigration Appeals Commission Act 1997, with power to grant bail.[27]

The Chahal case proved to be controversial, particularly in the light of the terrorist attacks in the United States and the UK in 2001 and 2005 respectively.[28] After the London bombings of 2005, the British government attempted to rebalance human rights considerations in favour of national security concerns.[29] The UK saw its opportunity to attempt to reverse the Chahal case when a case with similar facts came before the ECtHR in Saadi v Italy.[30] Saadi had been sentenced in Italy to four years and six months for criminal conspiracy, forgery and receiving stolen goods. After his release, an order was made for his deportation to Tunisia. The ECtHR found that the decision to deport Saadi would breach Article 3 if enforced.[31]

As third party intervener the UK attempted to reverse the decision in Chahal, which has prevented the deportation of terrorist suspects under section 3(5) Immigration Act 1971, where substantial grounds showed a real risk of treatment contrary to Article 3. The UK made arguments based on the balancing of the rights of terrorist suspects under Article 3 with the duty under Article 2 to protect the lives of those within the state's jurisdiction. The ECtHR instead maintained an absolute stand on the protections available under Article 3, stating that the threat that the applicant would pose if not returned, does not diminish the risk of ill treatment to which he may be subjected on return. [32]

Post-Saadi the UK has relied upon diplomatic assurances. The question is whether the assurances provide sufficient protection in practice. In Othman (Abu Qatada) v UK, Jordan's assurances were sufficient to remove the real risk of ill-treatment under Article 3. Deportation would nevertheless have breached Article 6 because of the real risk that evidence obtained by torturing others would be admitted at his retrial, amounting to a flagrant denial of justice. He was deported in 2013 after a treaty with Jordan addressed that risk.[33]

Voting Rights of Prisoners

The UK's response to the ECtHR's rulings on the voting rights of prisoners took a number of years. In Hirst v UK,[34] and Greens and MT v the UK,[35] and Firth and Others v UK, [36] UK prisoners brought their case to the ECtHR protesting against the blanket ban on voting by convicted prisoners in custody. In Firth and Others v UK, ten prisoners brought a claim under Article 3 of Protocol 1 to the ECHR, complaining of a breach of their right to vote in the European Parliament Elections of 4 June 2009. [37] In 2005 the Grand Chamber held in Hirst that applying the ban to all convicted prisoners in custody, regardless of the length of sentence, nature of the offence or individual circumstances, was disproportionate. It left the UK a choice as to how to remedy the breach.[38]

In Greens and MT the Court called on the UK to bring forward legislative proposals to address the breach.[39] In December 2013, the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill published its report,[40] recommending that the Government bring forward a Bill at the start of the 2014-15 Parliamentary session. It recommended that prisoners serving sentences of 12 months or less should be able to vote in parliamentary, local and European elections, and that prisoners approaching release should be able to apply to register up to six months before their scheduled release date.[41] The UK instead changed its guidance to make clear that otherwise eligible prisoners could vote while released on temporary licence or on home detention curfew. In December 2018 the Committee of Ministers closed its supervision of the Hirst group of cases.[42] For UK parliamentary elections, convicted prisoners detained in prison in pursuance of their sentence generally remain unable to vote. In Scottish Parliament and Scottish local elections, otherwise eligible prisoners serving sentences of 12 months or less can vote while in custody.[43] In Hora v UK the ECtHR found no violation in excluding a prisoner serving an indeterminate sentence for serious sexual offences from the 2019 general election. It decided the applicant's case without ruling on every prisoner still excluded.[44]

Conclusion

There are many areas where a judgement of the ECtHR has influenced the UK legal system. For example, decisions of the Court relating to the negative obligations of the security services to refrain from taking life and the positive obligations to protect life have both been incorporated to police and security services procedural policies. The decisions of the ECtHR in Chahal and Saadi prevent deportation where a real risk of treatment contrary to Article 3 remains, however serious the threat to national security. The UK may rely on diplomatic assurances only if they are sufficient in practice to remove that risk. On prisoner voting, the UK responded to Hirst by changing the rules for prisoners on release. Scotland has gone further for its own elections, while the general restriction on voting by convicted prisoners in custody remains in place for UK parliamentary elections.

Bibliography

Cases

Hora v UK, App No 1048/20 (23 September 2025)

Manchester City Council v Pinnock [2010] UKSC 45

Othman (Abu Qatada) v UK, App No 8139/09 (17 January 2012)

Chahal v UK (1997) 23 EHRR 413

Connors v UK (2005) 40 EHRR 9

Firth and Others v United Kingdom, App No 47784/09 and nine others (12 August 2014)

Greens and MT v the United Kingdom, App Nos 60041/08 and 60054/08, Judgment of 23 November 2010

Harrow LBC v Qazi[2003] UKHL 43, [2004] 1 AC 983

Hirst v the United Kingdom (No 2), App No 74025/01, Judgment of 6 October 2005

Price v Leeds City Council [2005] EWCA Civ 289, [2005] 1 WLR 1825

Kay v Lambeth LBC; Leeds City Council v Price [2006] UKHL 10, [2006] 2 AC 465

McCann v UK No. 18984/91 [GC], 27.09.1995.

Osman v UK No. 23452/94 [GC], 28.10.1998.

Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161

Saadi v Italy (37201/06) (2009) 49 E.H.R.R. 30;

Legislation

Representation of the People Act 1983

Scottish Elections (Franchise and Representation) Act 2020

Special Immigration Appeals Commission Act 1997

Draft Voting Eligibility (Prisoners) Bill, Cm 8499 (2012)

European Convention on Human Rights 1950, and Protocols Nos. 1 and 11

Human Rights Act 1998

Immigration Act 1971

Books/Journal Articles/Reports

Committee of Ministers, Resolution CM/ResDH(2018)467 (6 December 2018)

Donald, A., Gordon, J. and Leach, P. The UK and the European Court of Human Rights, Equality and Human Rights Commission, Research report 83, (Equality and Human Rights Commission, 2012)

Donald, A., Mottershaw, E., Leach, P. and Watson, J. Evaluating the Impact of Selected Cases under the Human Rights Act on Public Services Provision (Equality and Human Rights Commission, 2009)

Report of the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, HL Paper 103, HC 924 (2013–14), 18 December 2013

Foster, S., Prisoners' rights - right to vote - European Court of Human Rights - just satisfaction (2014) 19(2) Coventry Law Journal, 78-81,

Foster, S., 'Prisoners' voting rights: still no joy for the right to vote, but a light at the end of a very long tunnel?' (2013) 18(2) Coventry Law Journal, 51-55,

Hoffman, D., and Rowe, J. Human Rights in the UK: An Introduction to the Human Rights Act 1998 (3rd Edition, Pearson, 2010)

Moeckli, D., Saadi v Italy: The Rules of the Game Have Not Changed (2008) 8(3) Human Rights Law Review, 534-548,

Mowbray, A. Cases, Materials, and Commentary on the European Convention on Human Rights (3rd Edition, Oxford University Press, 2012)

Stone, R. Textbook on Civil Liberties and Human Rights (9th Edition, Oxford University Press, 2012)

Wadham, J., Mountfield, H., Prochaska, E., and Desai, R. Blackstone's Guide to the Human rights Act 1998 (7th Edition, Oxford University Press, 2015)

Jackson, D. W. The United Kingdom Confronts the European Convention on Human Rights (University Press of Florida, 1997)

Online

Association of Chief Police Officers and National Policing Improvement Agency, Manual of Guidance on the Management, Command and Deployment of Armed Officers (2009)

Keller, H. and Stone Sweet, A. "Assessing the Impact of the ECHR on National Legal Systems" (2008). Faculty Scholarship Series. Paper 88[online].Click here to read the full article accessed 9th July 2017

Footnotes

[1] Helen Keller and Alec Stone Sweet, "Assessing the Impact of the ECHR on National Legal Systems" (2008). Faculty Scholarship Series. Paper 88[online].Click here to read the full article accessed 9th July 2017

[2] Alastair Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights (3rd Edition, Oxford University Press, 2012) p.10

[3] Ibid p.13

[4] John Wadham, Helen Mountfield, Elizabeth Prochaska and Raj Desai, Blackstone's Guide to the Human rights Act 1998 (7th Edition, Oxford University Press, 2015) p.13

[5] Mowbray (n.2) p.8. European Convention on Human Rights, former arts 25 and 46, and current arts 34, 35 and 46. See also Joint Committee on Human Rights, The Government’s Independent Review of the Human Rights Act.

[6] David Hoffman and John Rowe QC, Human Rights in the UK: An Introduction to the Human Rights Act 1998 (3rd Edition, Pearson, 2010) p.61. Human Rights Act 1998, ss 6–7.

[7] Human Rights Act 1998, s 2(1).

[8] Hoffman and Rowe (n.6) p.62. Manchester City Council v Pinnock [2010] UKSC 45 [48].

[9] Price v Leeds City Council [2005] EWCA Civ 289, [2005] 1 WLR 1825

[10] Harrow LBC v Qazi[2003] UKHL 43, [2004] 1 AC 983

[11] Connors v UK (2005) 40 EHRR 9

[12] Kay v Lambeth LBC; Leeds City Council v Price [2006] UKHL 10, [2006] 2 AC 465 [40]–[45], [116]; Manchester City Council v Pinnock [2010] UKSC 45 [45], [48]–[54].

[13] McCann and Others v UK, App No 18984/91 (27 September 1995) [200], [213]–[214].

[14] D. Wilson Jackson, The United Kingdom Confronts the European Convention on Human Rights (University Press of Florida, 1997) p.57

[15] Association of Chief Police Officers and National Policing Improvement Agency, Manual of Guidance on the Management, Command and Deployment of Armed Officers (2009) p.17. See also College of Policing, Use of force, firearms and less lethal weapons.

[16] Osman v UK No. 23452/94 [GC], 28.10.1998.

[17] Ibid at [116], [121]–[122].

[18] Alice Donald, Jane Gordon and Philip Leach, The UK and the European Court of Human Rights, Equality and Human Rights Commission, Research report 83, (Equality and Human Rights Commission, 2012)

[19] Alice Donald, Elizabeth Mottershaw, Philip Leach and Jenny Watson, Evaluating the Impact of Selected Cases under the Human Rights Act on Public Services Provision , (Equality and Human Rights Commission, 2009) pp.32–33

[20] Donald, Gordon and Leach (n.18), p.46; West Midlands Police, Osman Warnings.

[21] Richard Stone, Textbook on Civil Liberties and Human Rights (9th Edition, Oxford University Press, 2012) p.429

[22] Ibid

[23] Chahal v UK (1997) 23 EHRR 413; Immigration Act 1971, s 3(5)(a) and s 5(1).

[24] Chahal v United Kingdom, App No 22414/93 (15 November 1996) [12], [25], [33].

[25] Soering v United Kingdom (7 July 1989), Series A no. 161 [90]–[91]; Chahal (n.23) [79]–[82], [107].

[26] Stone (n.21) p.462; Chahal (n.23) [127]–[133], [150]–[155].

[27] Stone (n.21) p.488; Special Immigration Appeals Commission Act 1997, ss 1–3, as enacted.

[28] Daniel Moeckli, Saadi v Italy: The Rules of the Game Have Not Changed (2008) 8(3) Human Rights Law Review, 534-548, p.534

[29] Ibid

[30] Saadi v Italy (37201/06) (2009) 49 E.H.R.R. 30;

[31] Ibid at [14]–[15], [31]–[32], [149].

[32] Ibid at [117]–[123], [138]–[139].

[33] Ibid at [147]–[149]; Othman (Abu Qatada) v UK, App No 8139/09 (17 January 2012) [187]–[189], [205] and [285]–[287]; the Home Secretary's statement to Parliament (8 July 2013).

[34] Hirst v the United Kingdom (No 2), App No 74025/01, Judgment of 6 October 2005

[35] Greens and MT v the United Kingdom, App Nos 60041/08 and 60054/08, Judgment of 23 November 2010

[36] Firth and Others v United Kingdom, App No 47784/09 and nine others (12 August 2014)

[37] Steve Foster, Prisoners' rights - right to vote - European Court of Human Rights - just satisfaction (2014) 19(2) Coventry Law Journal, 78-81, p.78

[38] Hirst (n.34) [77]–[84].

[39] Greens and MT (n.35) [112]–[115]. See also Steve Foster, 'Prisoners' voting rights: still no joy for the right to vote, but a light at the end of a very long tunnel?' (2013) 18(2) Coventry Law Journal, 51-55, p.51.

[40] Report of the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill, HL Paper 103, HC 924 (2013–14) (18 December 2013).

[41] Ibid at [239].

[42] Committee of Ministers, Resolution CM/ResDH(2018)467 (6 December 2018); Hora v UK, App No 1048/20 (23 September 2025) [21]–[26], [68]–[71].

[43] Representation of the People Act 1983, s 3; Scottish Elections (Franchise and Representation) Act 2020, s 5.

[44] Hora v UK, App No 1048/20 (23 September 2025) [126]–[135], final 9 February 2026.