Topic hub
ECHR, HRA 1998, direct effect, Marleasing — 15 EU and human rights cases
EU and Human Rights law in the UK context asks a single organising question: how do fundamental rights and supranational legal obligations interact with, and sometimes override, ordinary Acts of Parliament? Before Brexit, EU law supplied one answer through the doctrine of parliamentary sovereignty's practical displacement; the Human Rights Act 1998 supplies another, requiring courts to read legislation compatibly with the European Convention on Human Rights and to act consistently with Strasbourg jurisprudence. Together, these bodies of law define the outer limits of state power over individuals.
Four doctrines sit at the core of the subject. Parliamentary sovereignty under the EU law challenge — established definitively in Factortame — showed for the first time that a UK court could disapply an Act of Parliament. Proportionality governs whether a state interference with a Convention right is justified, demanding that any restriction be rationally connected to a legitimate aim and no more than necessary. The positive obligations doctrine, drawn from cases like Osman and Rabone, extends the state's duty beyond merely not violating rights to actively protecting them. Finally, the margin of appreciation (and its domestic cousin, the discretionary area of judgment) determines how much latitude courts give the legislature when rights and democratic choices collide, as seen in Animal Defenders International.
Three areas of live tension demand attention from any serious student. First, the relationship between domestic courts and Strasbourg remains contested: the Human Rights Act instructs courts to 'take into account' Strasbourg decisions, but cases like Hirst v UK (No 2) expose the friction when Parliament refuses to comply with a judgment. Second, the boundaries of the right to life under Article 2 are being actively redrawn, with Nicklinson pressing hard at the interface between the right to die and the state's duty to protect life. Third, post-Brexit debate about a proposed British Bill of Rights — and what would replace the Human Rights Act — means the constitutional framework itself is a live reform question, not settled background.
Where EU law and a UK Act of Parliament conflict, a domestic court must disapply the Act of Parliament for as long as the relevant EU obligation subsists. This principle fundamentally challenged the orthodox view of parliamentary sovereignty and shaped the constitutional landscape for over four decades.
A public authority may interfere with a Convention right only if the interference pursues a legitimate aim and is no greater than necessary to achieve it; a fair balance must be struck between the individual's rights and the general interest of the community. Courts assess whether a less restrictive means was available and whether the reasons given are sufficient.
The state's duty to protect the right to life is not limited to refraining from killing; it also imposes a positive operational duty to take reasonable steps to protect an individual whose life is at real and immediate risk from a known source. Breach of this duty can ground a claim against a public authority even where no state agent caused the death directly.
The traditional action for breach of confidence has been extended under the influence of Article 8 to protect private information even where no prior confidential relationship exists between the parties. Courts now ask whether the claimant had a reasonable expectation of privacy, and then balance that interest against competing rights such as freedom of expression under Article 10.
Article 6 requires that a person subject to a measure as severe as a control order must be given sufficient information about the allegations against them to enable effective instructions to be given to their legal representative, even where national security considerations apply. Closed material procedures that deny an accused the irreducible minimum of disclosure are incompatible with the right to a fair trial.
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