Effect of Strasbourg case law in domestic courts (HRA 1998 s.2)
In a 2026 High Court claim about the right to freedom of expression under Article 10 of the European Convention on Human Rights, counsel for the claimant, Nadia Chowdhury, relies on a recent Grand Chamber judgment of the European Court of Human Rights in a case against another Council of Europe state. Counsel tells the judge that, under the Human Rights Act 1998, the High Court is legally bound to follow that judgment.
Which of the following best describes the duty of the High Court in relation to the Strasbourg judgment?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: It must take the judgment into account so far as it considers it relevant, but is not bound by it.
THE RULE TO REMEMBER
A court deciding a question about a Convention right must take relevant Strasbourg case law into account, but is not bound to follow it.
Effect of Strasbourg case law in domestic courts (HRA 1998 s.2)
Section 2(1) of the Human Rights Act 1998 provides that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights, whenever made or given, so far as, in the opinion of the court, it is relevant to the proceedings. The duty is to take the case law into account, not to follow it. The Act draws no distinction based on which state was the respondent, so a judgment against another state may be relevant and must be considered. The High Court must therefore consider the Grand Chamber judgment and give it the weight it thinks appropriate, while remaining bound by the domestic doctrine of precedent. Counsel's statement that the court is legally bound to follow the judgment is wrong.
Why A is wrong: Section 2(1) imposes a duty to take Strasbourg judgments into account, not a duty to follow them.
Why B is wrong: Section 2(1) covers any relevant Strasbourg judgment, including one given against another state.
Why C is wrong: Section 2 does not depend on whether the UK intervened; the duty is to take relevant judgments into account.
Why D is wrong: The Human Rights Act 1998 contains no procedure for a domestic court to refer questions to the Strasbourg court.
A little more practice done.
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