Article 11 in the mirror: the importance of s. 2 Human Rights Act 1998 in understanding the courts’ approach to Article 11 of the European Convention on Human Rights

Journal article

Most labour lawyers would agree that Article 11 of the European Convention on Human Rights (ECHR) has had a limited impact on collective labour law in the UK. This article argues that an important factor explaining the domestic courts’ cautious approach in Article 11 cases is their treatment of the case-law of the European Court of Human Rights (ECtHR). Section 2 HRA requires courts to ‘take into account’ ECtHR decisions, a phrase which has been interpreted in leading cases such as Ullah and Elan-Cane to mean that the Strasbourg case-law should be treated as both a floor and a ceiling in terms of the protection to be afforded to Convention rights in domestic law. It is easy to overlook the significance of this case-law because it is rarely referred to by the domestic courts when deciding Article 11 claims. However, despite the lack of explicit judicial analysis, the Article 11 case-law is wholly orthodox in its application of the general approach to s. 2. As a result, the courts have limited capacity to ‘go beyond’ the Strasbourg case-law, decide issues where Strasbourg gives the state a margin of appreciation, or engage in anything other than incremental development. Understanding the role played by s. 2 helps to explain many of the disappointing outcomes we have seen. It also has important implications for the kinds of Article 11 cases that are worth pursuing and for the way in which they should be framed.

Authors: Davies, ACL

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Oxford University Press
• Journal: Industrial Law Journal
• Article number: dwaf014
• Publication date: 2025-07-19
• Acceptance date: 2025-03-11
• DOI: 10.1093/indlaw/dwaf014
• EISSN: 1464-3669
• ISSN: 0305-9332
• Language: English