6) HRA Enforcement Flashcards
1
Q
What does Section 6(2) of the HRA 1998 state regarding public authorities?
A
A public authority will not breach the obligation imposed by s. 6(1) if its actions are required by primary legislation or acting in a way that gives effect to primary or subordinate legislation.
Thereby preserves parliamentary sovereignty.
2
Q
What is the duty of the court under Section 3(1) of the HRA 1998?
A
To read primary and subordinate legislation ‘so far as it is possible to do so’ in a Convention-compatible way.
3
Q
What power does Section 4 of the HRA 1998 grant to the courts?
A
The power to make ‘declarations of incompatibility’ where UK legislation is incompatible with Convention rights.
4
Q
What does Section 10 of the HRA 1998 provide?
A
Powers to government ministers to take expedited ‘remedial action’ where a s. 4 declaration is made.
5
Q
What does Section 8 of the HRA 1998 govern?
A
Remedies where a public authority has breached its duty in s. 6(1).
6
Q
What is the ‘statutory defence’ in relation to s. 6(2) of the HRA?
A
A public authority may claim it acted lawfully if:
1) The act was required by primary legislation, the authority could not have acted differently
2) or primary legislation that cannot be read in a way compatible with the Convention, the authority was acting to give effect to those provisions.
= Statutory defence that the public authority may be able to rely up
7
Q
In R v Secretary of State for Work and Pensions, ex parte Hooper, what did Lord Hope state about the statutory defence?
A
s6(2) was designed to ensure parliamentary sovereignty was not undermine
“Defence is provided to prevent legislation from being rendered unenforceable”
8
Q
How does the court’s duty under Section 3 affect a public authority’s reliance on the statutory defence?
A
The court must as far as possible read legislation in a way that is compatible with Convention rights
If the court interprets legislation compatibly, the public authority’s s. 6(2) defence may disappear, leading to liability under s. 6(1).
= remedy for the applicant
9
Q
Does section 3 apply to future legislation as well?
A
- Yes
s3 = duty to read compatibly
10
Q
What is the effect of Court’s use of s3 interpretation on the s6(2) defence?
A
- Effectively removes the statutory defence from the defendant. (s6(2))
11
Q
What is the significance of the case R v A (Complainant’s Sexual History)?
A
- Restricted questioning re: prior sexual history
- The House of Lords held that s. 41 of the Youth Justice and Criminal Evidence Act 1999 was incompatible with the right to a fair trial.
- Considered s3 obligations - strive to find interpretive obliations
- read an implied provision in the act - finding sexual history admissable
Section 3 - strong interpretative duty
12
Q
What did Lord Steyn advocate regarding the interpretative obligation under s. 3 of the HRA?
R v A (Complainant’s Sexual History)
A
‘It applies even if there is no ambiguity in the language… it will sometimes be necessary to adopt an interpretation which linguistically may appear strained.’
- Bold approach - striving to find compatibility.
- Read an implied provision into s42- that evidence required for a fair trial should be admissible
- Incompatibility = last resort
R v A (Complainant’s Sexual History)
13
Q
What was Lord Hope’s caution regarding the use of s. 3 interpretation?
R v A (Complainant’s Sexual History)
A
- ‘The rule is only a rule of interpretation. It does not entitle the judges to act as legislators.’
- Felt that cannot read in the implied provision, but can read down
Cautious as to over-extension
14
Q
What did the House of Lords decide in the case of Bellinger v Bellinger?
A
It was not possible to interpret ‘male and female’ to include those who had undergone gender reassignment under s. 3.
S3 - limits to interpretative duty
15
Q
Re S (Children) and Re W(Care Orders)
(Re S and Re W)
A
- Radical reinterpretation of provisions of the Children Act 1989 concerning Care Plans for children
- Reversed by HoL - outer limit
If the interpretative power of s3 would bring about a major change in the law with far reaching consequences, they are less willing to use it - Particularly when there may be practical repercussions not evaluated by the courts
Amendment of statutes is for parliaments
s3 - interpretative limits
16
Q
Bellinger v Bellinger
Case
A
- Person born male, underwent gender reassingment.
- Married to a man
- Issue was whether marriage certificate was valid?
17
Q
What were the three reasons Lord Nicholls provided for the decision in Bellinger v Bellinger?
A
Was it possible to reinterpret “male and female” in the act?
- Criteria for legal recognition of gender reassignment are unclear - court did not have medical expertise
- Recognition cannot be isolated from broader gender policy - definitions of male and female have far reaching implications
- Marriage is a culturally embedded institution that requires comprehensive review
ECtHR held in Goodwin v UK in violation of art8 and art12 for not recognising gender reassignment for purpose of marraiges
18
Q
Ghaidan v Godin-Mendoza
A
- Majority felt able to use s3 powers to read the statutory provisions in a Convention Compatible way.
- Defendant had lived stable-gay relationship with the protected tenant of a flat.
- Judge found protected tenancy could not transfer as not a spousseunder Rent Act 1977
- Using R v A HoL used s3 of the HRA to read additional words to say “as if wife or husband”
- Courts should take a broad approach to interpreting under s3
What mattered was the substance of the legislative provision, rather than phraseology
R v A as authority
19
Q
In Ghaidan v Godin-Mendoza, what was the court’s approach to using s. 3 powers?
A
The court felt able to read the statutory provision in a Convention-compatible way.
* Lived in a stable gay relationship with the tenant of a flat.
* Protected proceedings brought by the claimant on the tenant’s death
Read in the additional words
20
Q
What guidelines did the House of Lords set in Ghaidan regarding the use of s. 3?
A
- A broad approach to interpretation applies
- Courts can interpret language restrictively or expansively, can read inwords
- Should not go too far
- Courts should not change the substance of provisions completely, should not run “against the grain” of the original meaning
21
Q
What can interpretation not do?
A
- Change substance of provisions completely
- Run counter to the grain of the original legislation
- Contradicted provisions of the legisltaion
- Repealed or delete the language used in the legislation
- Make decisions for which it is not equipped
Go too far
Ghaidan
22
Q
What did Lord Hoffmann state in R (Wilkinson) v Inland Revenue Commissioners about statutory interpretation?
A
‘Statutes were construed against the background of human rights subsisting at common law.’
- Intention of Parliament has a broader meaning = interpretation that a reasonable reader would give read against its background including the assumption it was not intended to be incompatible with Convention Rights.
23
Q
What is the strong presumption arising from the Convention rights?
A
The question is still one of interpretation
This indicates that while there is a presumption, each case must still be interpreted individually.
24
Q
What does the ‘intention of Parliament’ encompass according to Lord Hoffmann?
A
The interpretation which the reasonable reader would give to the statute read against its background, this includes an assumption that the statute is compatible with Convention rights.
R(Wilkinson) v IRC
25
Which cases exemplify the Supreme Court's approach to section 3?
* Pinnock v Manchester City Council [2010] UKSC 45
* Hounslow LBC v Powell [2011] UKSC 8
## Footnote
These cases demonstrate the application of the interpretative duty under section 3.
26
What can the courts do under section 3 of the HRA?
* Interpret a provision even if the language is clear
* Adopt a ‘linguistically strained’ interpretation
* Read down language
* Read in words/imply in provisions
* Use a declaration of incompatibility as a last resort
## Footnote
This reflects the strong interpretative obligation imposed by section 3.
27
What are the limits to the courts’ power under section 3?
* Change the substance of the provision completely
* Make changes counter to a fundamental feature of the legislation
* Contradict provisions in the legislation
* Repeal or delete language used in the legislation
* Make decisions for which the court is not equipped
## Footnote
These limitations ensure that the courts do not overstep their interpretative role.
28
What does section 6(2) of the HRA state about public authorities?
A public authority will not breach the obligation imposed by s. 6(1) if it can rely on the 'statutory defence’
## Footnote
This allows for some flexibility in the application of the HRA.
29
Does reliance on the statutory defence in s. 6(2) guarantee evasion of liability?
No, it does not necessarily mean that it will evade liability under the HRA
## Footnote
The defence is subject to the courts’ duty under s. 3(1).
30
What is the duty imposed on courts by section 3 of the HRA?
To read primary and subordinate legislation in a Convention compatible way
## Footnote
This duty is viewed as strong by the courts.
31
How do courts view their interpretative duty under section 3?
As a strong one, although there are limits
## Footnote
This is supported by case law such as R v A, Re S, Re W, Bellinger, and Ghaidan.
32
Does s3 apply to future legislation?
* Yes to both future and existing legislation
33
What happens if the court is unable to use s3 power?
* Decl of Incompatibility (s4)
* No remedy
* Statutory defence remains in place (s6(2))
34
Re S and Re W
* Radical reinterpretation of provisions under CHildren Act.
* Use of interpretive power s3 would bring about major change in law which would have far reaching consequences.
35
Article 3 imposes a strong interpretative obligation, meaning that the court can...
* Interpret a provision even if the language is clear
* Adopt a linguistically strained interpretation
* Read down language (adopt a narrower maning)
* Read in words / imply provisions
* Declare incompatibility **as a measure of last resort**
| *R v A*; *Ghaidan*
36
What is the purpose of section 4 of the HRA?
To allow courts to make declarations of incompatibility with ECHR rights
= non binding, no effect on validity.
## Footnote
Courts cannot strike down primary legislation due to **parliamentary sovereignty,** but can declare incompatibility.
37
What happens if a court makes a declaration of incompatibility under section 4?
It does not affect the validity or enforcement of the provision.
The declaration is not binding on the parties to the proceedings.
38
In which case did the House of Lords make a declaration of incompatibility regarding the Matrimonial Causes Act 1973?
*Bellinger v Bellinger [2003] UKHL 21*
The Act was found incompatible with articles 8 and 12 due to lack of recognition for gender reassignment.
As there was forthcoming legislation, D argued that there should not be a declaration.
39
What was the ruling in *A and Others v Secretary of State for the Home Department* regarding the Anti-Terrorism Act?
The House of Lords made a **s4 declaration that it was incompatible**, that Anti-Terrorism, Crime and Security Act was incompatible with articles 5(1) and 14 of the ECHR.
The policy was deemed disproportionate (detaining without charge or trial) and discriminatory (nationality or immigration)
## Footnote
.
40
41
What does section 10 of the HRA allow government ministers to do?
Take expedited **remedial action** to amend legislation in response to a declaration of incompatibility, if there are **compelling reasons** for proceeding under this section.
## Footnote
This is applicable if there are compelling reasons for proceeding under this section.
42
What are the two procedures outlined in Schedule 2 of the HRA for remedial action?
* Standard procedure: draft amending order laid before Parliament for 60 days
* Urgent procedure: order laid for approval after it is made
43
What must the Minister responsible for a parliamentary bill do according to section 19?
* This statement must be made before the second reading of the bill.
* Make a statement of compatibility regarding the bill's provisions with ECHR rights.
* If unable to do so, stat that the government wishes to proceed with the bill regardless.
44
What does section 8 of the HRA cover?
Judicial remedies for unlawful acts of public authorities.
Courts may grant **"just and appropriate"** reliefs such as
* damages,
* declarations,
* injunctions,
* quashing orders,
* prohibitory orders and
* mandatory orders.
45
What was found incompatible in the case of R (Anderson) v Secretary of State for the Home Department?
Section 29 of the Crime (Sentences) Act 1997 was incompatible with article 6(1) ECHR
## Footnote
The Home Secretary's involvement in tariff decisions was challenged.
46
What is the relationship between sections 3 and 4 of the HRA?
Section 3 requires courts to interpret legislation compatibly with ECHR rights, while section 4 allows for declarations of incompatibility
Under s3 - public authority may rely on statutory defence (s6(2))
Courts may choose to issue a declaration when section 3 interpretation is deemed inappropriate, this undermines the statutory defence. Therefore public authority cannt avoid liability = remedy s6(1)
47
True or False: A declaration of incompatibility is binding on the parties involved in the proceedings.
False
## Footnote
Declarations under section 4 are not binding on the parties.
48
Fill in the blank: Section 8 provides that a court may grant such relief or remedy as it considers _______.
[just and appropriate]
49
What type of report does the Ministry of Justice produce regarding human rights judgments?
'Responding to human rights judgments' report
## Footnote
It includes details of declarations of incompatibility and governmental responses.
50
What was incorrect about the statement of compatibility made regarding the Anti-Terrorism, Crime and Security Act 2001?
It declared the Act Convention-compliant when it was not
## Footnote
This was later confirmed in the case of A and Others.
51
What is the significance of the term 'remedial action' in the context of the HRA?
It refers to the government's ability to amend legislation promptly following a declaration of incompatibility
## Footnote
This action is crucial for addressing issues of incompatibility with ECHR rights.
52
Describe the significance of the Belmarsh case in relation to the ECHR.
The Belmarsh case *(A and Others v Secretary of State for the Home Department)* highlighted that section 23 of the Anti-Terrorism, Crime and Security Act 2001 was **incompatible ** with articles 5(1) and 14 of the ECHR, emphasizing issues of detention without charge and discrimination based on nationality.
53
Explain the ruling of the House of Lords in the *Anderson* case.
In the Anderson case, the House of Lords ruled that section 29 of the Crime (Sentences) Act 1997 was **incompatible** with article 6(1) of the ECHR, as the Home Secretary's involvement in setting the tariff violated the right to a fair trial.
* Murder sentence tariff from Home Secretary higher than recommended by judiciary
* To overule Home Sec would amount to **judicial vandalism**
54
How did the House of Lords address the issue of executive power in the Anderson case?
The House of Lords found that the Home Secretary, being part of the executive rather than an independent tribunal, acted **incompatibly** with the right to a fair trial under article 6(1) of the ECHR.
Declared incompatibility but didn't read article in a convention compatible way
55
Define the term 's. 4 declaration' as used in the context of UK law.
A s. 4 declaration is a formal statement made by a court indicating that a particular piece of legislation is incompatible with the European Convention on Human Rights (ECHR).
56
Do the cases discussed illustrate the limits of section 3 of the Human Rights Act?
Yes, both cases illustrate the limits of section 3 of the Human Rights Act, as the courts recognized incompatibilities with the ECHR but declined to reinterpret the legislation to make it compatible.
57
What was the outcome of the House of Lords' consideration of the appellant's Counsel's submission in the Anderson case?
The House of Lords declined to follow the appellant's Counsel's submission to reinterpret section 29 in a Convention-compatible way, which would have excluded the Home Secretary from the decision-making process.
As would have been tantamount to **judicial activism**
58
How does the Belmarsh case relate to issues of discrimination in law?
The Belmarsh case was found to be discriminatory on the grounds of nationality or immigration status, highlighting concerns about unequal treatment under the law.
59
What does article 6(1) of the ECHR guarantee?
Article 6(1) of the ECHR guarantees the right to a fair trial, ensuring that everyone is entitled to a **fair and public hearing by an independent and impartial tribunal.**
60
Summarize the main legal conflict in the Anderson case.
The main legal conflict in the Anderson case revolved around the compatibility of the Home Secretary's role in determining the tariff for life sentences with the right to a fair trial under the ECHR.
61
What was the legal basis for the House of Lords' decision in the Belmarsh case?
The legal basis for the House of Lords' decision in the Belmarsh case was the incompatibility of section 23 of the Anti-Terrorism, Crime and Security Act 2001 with articles 5(1) and 14 of the ECHR.
62
Discuss the role of the judiciary in the context of the Anderson case.
In the Anderson case, the judiciary's role was highlighted as essential for ensuring fair trial rights, contrasting with the executive's involvement in sentencing decisions.
63
Explain the concept of 'disproportionate' as it relates to the Belmarsh case.
In the Belmarsh case, 'disproportionate' refers to the court's finding that detaining suspected terrorists without charge was **not strictly necessary** and thus violated human rights principles.
64
Explain the purpose of Section 10(2) of the HRA 1998.
Section 10(2) of the HRA 1998 allows relevant ministers to take **expedited remedial action to amend legislation in response to a declaration of incompatibility** or a decision from the ECtHR, provided there are **compelling** reasons.
65
Define the two procedures outlined in Schedule 2 of the HRA 1998.
| Schedule 2, HRA
The two procedures are:
1) the **standard** procedure, which requires a draft amending order to be laid before Parliament for 60 days before approval, and
2) the **urgent** procedure, which allows an order to be laid for approval after it is made in urgent cases.
66
How might the government respond to a Section 4 declaration of incompatibility?
The government may plan a legislative response over a longer period if the expedited process under Section 10 is not deemed necessary.
67
What recourse does a claimant have if there is no governmental response to a declaration of incompatibility?
If there is no governmental response, the claimant **may appeal to the ECtHR** after exhausting all available domestic remedies.
68
What is a declaration of incompatibility (DOI)?
A declaration of incompatibility (DOI) is a formal statement by a court indicating that a piece of legislation is incompatible with the rights protected under the Human Rights Act.
69
Describe the significance of Lord Steyn's agreement with Lord Bingham in *Anderson*
Lord Steyn's agreement with Lord Bingham reinforces the judicial perspective that certain interpretations **should not undermine the integrity of the law.**
70
How long must a draft amending order be laid before Parliament under the standard procedure?
Under the standard procedure, a draft amending order must be laid before Parliament for 60 days before it can be approved.
71
What happens if the expedited process under Section 10 is not seen as necessary?
If the expedited process is not seen as necessary, the government may choose to respond to a Section 4 declaration over a longer period.
72
Explain the DOI of the Gender Recognition Act 2004 as highlighted in the report.
The Act required trans people to demonstrate that they **suffered from a 'disorder' (gender dysphoria)** to obtain legal recognition of their gender.
Incompatible with Article 8
73
Define Section 19(1) of the Human Rights Act (HRA).
Section 19(1) requires the minister responsible for a bill to **make a written statement of compatibility** with Convention rights before the second reading in Parliament.
It mandates that the minister must either confirm compatibility with Convention rights **or state the intention to proceed with the bill despite incompatibility**.
74
How does Section 19(1) of the HRA impact the legislative process in Parliament?
It mandates that the minister must either confirm compatibility with Convention rights or state the intention to proceed with the bill despite incompatibility.
75
What was the outcome of the statement of compatibility related to the Anti-Terrorism, Crime and Security Act 2001?
The statement was later found to be incorrect, as the House of Lords ruled that the Act was not fully Convention-compliant in
*Anderson*
76
Discuss the implications of the case *A and Others* in relation to the Anti-Terrorism, Crime and Security Act 2001.
The case confirmed that the power to detain foreign nationals under the Act was not compatible with human rights obligations, in breach of Art 5 and 14
77
What does Section 8 of the HRA address?
Section 8 covers the **provision of judicial remedies** for acts of public authorities that are found to be unlawful.
78
Explain the judicial remedies provided under Section 8(1) of the HRA.
It allows the court to grant relief or remedy for any unlawful act (or proposed act) of a public authority, within it's powers as deemed **just and appropriate.**
79
What is a Declaration of Incompatibility (DOI)?
A DOI is a formal statement by a court indicating that a piece of legislation is incompatible with the rights protected by the Human Rights Act.
80
How does the HRA empower public authorities and courts?
The HRA imposes obligations on public authorities to act in accordance with human rights and grants courts the power to review the legality of their actions.
81
Explain the types of remedies that may be awarded by a court under the HRA.
The normal range of remedies includes **damages, declarations, injunctions, quashing orders, prohibitory orders, and mandatory orders.**
82
Define the purpose of Section 4 of the HRA.
Section 4 allows a court to make a declaration of incompatibility regarding legislation that does not align with the ECHR.
83
How does Section 10 of the HRA empower government ministers?
Section 10 provides powers to government ministers to take expedited remedial action when a Section 4 declaration is made.
84
What does Section 8 of the HRA stipulate regarding public bodies?
Section 8 allows a court to grant remedies **when a public body acts contrary to its duty under Section 6(1)** of the HRA, considering what is **'just and appropriate'.**
85
Explain the significance of Section 19 of the HRA.
Section 19 requires the Minister responsible for a bill to declare that the bill's provisions are compatible with the ECHR before its Second Reading.
86
Describe the relationship between Sections 3 and 4 of the HRA.
Sections 3 and 4 of the HRA relate to **domestic enforcement mechanisms**, with Section 3 focusing on interpretation and Section 4 on declarations of incompatibility.
87
Case law re: interpretative duty under s 3
* R v A
* Re s & ReW
* Bellinger
* Ghaidan
88
Case law re: Declaration of Incompatibility under s 4
* Bellinger
* Anderson
