Chapter 7: Enforcement and Remedies under the HRA 1998

Question 1

1. Introduction

Answer 1

In this chapter, we move on to examine the sections of the HRA which govern the domestic courts’
enforcement of Convention rights:

Question 2

1. Introduction

Answer 2

• Section 6(2): A public authority will not breach the obligation imposed by s 6(1) HRA 1998 if its actions are either required by primary legislation, or it is acting in a way that gives effect to primary or subordinate legislation.
• Section 3(1): There is a duty on the court to read primary and subordinate legislation ‘so far as
  it is possible to do so’ in a Convention-compatible way.
• Section 4: The court has a power to make ‘declarations of incompatibility’ where UK legislation is incompatible with Convention rights.
• Section 10: Provides powers to government ministers to take expedited ‘remedial action’ where
  a s 4 declaration is made.
• Section 8: Governs remedies where a public authority has breached its duty in s 6(1)

Question 3

2. Section 6(2) HRA

Answer 3

It is important to recall that s 6(1) HRA makes it unlawful for public authorities to act in a way that is incompatible with a Convention right. However, the potential liability in this provision is affected
by s 6(2), which provides that:

Question 4

Acts of public authorities

Answer 4

6 Acts of public authorities […]
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot
be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

Question 5

Statutory defence’ under s 6(2) HRA.

Answer 5

Therefore, in cases where a person claims that a public authority has violated one or more of their ECHR rights, it may be possible for the public authority to rely upon what is sometimes referred to as the ‘statutory defence’ under s 6(2) HRA

Question 6

2.1 ‘Statutory defence’

Answer 6

In R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29, Lord Hope provided the following guidance with respect to the defence under s 6(2). Note that s 6(2) was designed to ensure that the principle of parliamentary sovereignty was not undermined

Question 7

Paragraph (a)

Answer 7

The situation to which paragraph (a) is addressed arises where the effect of the primary legislation is that the authority has no alternative but to do what the legislation tells it to do.
[…]. The key to its application lies in the fact that the effect of this legislation, wherever it is found, is that a duty is imposed on the authority […]. As it is a duty which has been imposed on the authority by or as a result of primary legislation, Parliamentary sovereignty prevails over the Convention right. The defence is provided to prevent the legislation from being rendered unenforceable

Question 8

Paragraph (b)

Answer 8

The situation to which paragraph (b) is addressed […] arises where the authority has a discretion, which it has the power to exercise or not to exercise as it chooses, to give effect to or enforce provisions of or made under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights […].

Question 9

3 Section 3 HRA

Answer 9

A public authority’s reliance on the statutory defence in s 6(2) does not necessarily mean that it will evade liability under the HRA. The defence is itself impacted by the courts’ duty contained in s 3(1). Section 3 provides that:
3. Interpretation of legislation
(1) So far as it is possible to do so, primary and subordinate legislation must be read and given
effect in a way which is compatible with Convention rights.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever enacted; […]

Question 10

Inability to avoid liability under s 6(1)

Answer 10

If the court uses its s 3 power to read the provision compatibly, the public authority’s potential s
6(2) defence will effectively disappear, meaning that it cannot avoid liability under s 6(1). This will then provide a remedy for the applicant. (Note that s 3 applies to legislation existing at the time of the enactment of the HRA 1998, as well as to future legislation.) If the court is not able to use its s 3 power and instead makes a DOI under s 4, the claimant will not have a remedy, as the s 6(2)
defence will remain in place

Question 11

3.1 Interpretation of legislation

Answer 11

Thus, s 3(1) places the UK courts under a duty to interpret legislation in a Convention compatible
way to the extent that this is ‘possible’. Determining how ‘far’ the courts can go in any given situation is therefore a very significant consideration.

Question 12

Separation of Powers

Answer 12

You will see that this engages the same kind of considerations applying in relation to the separation of powers. This will be explored further by looking at some of the key early case law. As set out above, a court’s use of s 3 interpretation will have the effect of removing the s 6(2)
defence from the Defendant. It is important to consider how the alternative courses open to a court – using either s 3 or s 4, where appropriate – will affect the final outcome of a case.

Question 13

Key case: R v A (Complainant’s Sexual History) [2001] UKHL 25

Answer 13

The constitutional significance of the courts’ approach to the scope and limit of the s 3 duty is
exemplified by this case.

Question 14

Youth Justice and Criminal Evidence Act 1999

Answer 14

s 41 was designed to restrict the circumstances
in which evidence and questioning about a complainant’s prior sexual history could be permitted
in trials concerning sexual offences. The issue was whether this new provision prejudiced the defendant’s right to a fair trial under article 6 of the ECHR.

Question 15

The House of Lords Judgement

Answer 15

Held that s 41 of the Youth Justice and Criminal Evidence Act 1999 was
incompatible with the right to a fair trial. As a consequence of their judgment, their Lordships
went on to consider their obligations under s 3 HRA.

Question 16

Lord Steyn

Answer 16

Who gave the lead judgment, advocated for a bold approach to interpretation using
the new, s 3 power under the HRA. He reasoned that

Question 17

The interpretive obligation

Answer 17

[T]he interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if
there is no ambiguity in the language in the sense of the language being capable of two different meanings […]. Parliament specifically rejected the legislative model of requiring a
reasonable interpretation.

Question 18

Section 3

Answer 18

Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights […]. In accordance with the will of Parliament
as reflected in section 3 it will sometimes be necessary to adopt an interpretation which
linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions

Question 19

Measure of last resort

Answer 19

A declaration of
incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so.

Question 20

Lord Steyn

Answer 20

On this basis, Lord Steyn felt able to read an implied provision into s 41 of the 1999 Act that evidence or questioning which is required to ensure a fair trial under Article 6, ECHR should be treated as admissible.

Question 21

Lord Hope

Answer 21

Though not dissenting, took a more cautious approach than Lord Steyn to the use of this new court power. His concern about a possible over-extension of the judicial role can be
clearly seen in the following statement from his speech

Question 22

Statement from the speech

Answer 22

The rule of construction which section 3 lays down is quite unlike any previous rule of statutory interpretation. There is no need to identify any ambiguity or absurdity. Compatibility with
Convention rights is the sole guiding principle. That is the paramount object which the rule seeks to achieve. But the rule is only a rule of interpretation. It does not entitle the judges to act as legislators.

Question 23

s 41 could be read down to render it compatible

Answer 23

Lord Hope found it difficult to accept that it was permissible to read in the implied provision as
advocated by Lord Steyn. In his view, the entire structure of s 41 of the Youth Justice and Criminal
Evidence Act 1999 contradicted such an implied provision. He was more sympathetic to the idea that s 41 could be read down to render it compatible, although he thought that it would be
necessary to identify precisely what words were incompatible with article 6 and how those words
were to be construed to make them compatible.

Question 24

3.1.1 Re S and Re W

Answer 24

Subsequent to the case of R v A, the courts grappled further with the full extent of their powers
under s 3. In Re S (Children) and Re W (Care Orders) [2002] UKHL 10, the Court of Appeal undertook a radical reinterpretation of provisions of the Children Act 1989 concerning care plans for children. This was reversed, however, by the House of Lords, and the opinion of Lord Nicholls,
who gave the lead judgment, provides some useful early guidance on the use of this new power

Question 25

Mindful of the outer limit

Answer 25

In applying section 3, courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament […]. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes are matters for Parliament […]

It is sufficient to say that a meaning which departs substantially from a
fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important
practical repercussions which the court is not equipped to evaluate

Question 26

Major change in law

Answer 26

It seems, therefore, that where use of the interpretative power in s 3 would bring about a major
change in the law which would have far-reaching consequences, the courts will be less willing to
use it.

Question 27

3.1.2 Bellinger v Bellinger

A similar approach can be seen in the following case.

Answer 27

This case concerned a person who had been born male but had undergone gender reassignment
to become female. She had subsequently been through a marriage ceremony with a man and the issue was whether the marriage certificate was valid.

Question 28

Key Issue

Answer 28

The problem revolved around the use of the phrase ‘male and female’ in s 11(c) of the Matrimonial
Causes Act 1973 which had been interpreted by the courts on the basis of the biological sex of a person at birth

Question 29

Goodwin v United Kingdom (2002) 35 EHRR 18

Answer 29

The ECtHR had already established in Goodwin v United Kingdom (2002) 35 EHRR 18 that the failure of the UK to recognise reassignment of gender for the purpose of marriage was a violation of Articles 8 and 12, ECHR. The issue which the House of Lords had to decide in Bellinger was whether it was possible under s 3(1) to interpret the phrase ‘male and female’ in s 11(c) of the 1973
Act as extending to those who had undergone gender reassignment.

Question 30

House of Lords Judgement

Answer 30

The House of Lords held that it was not possible to use s 3 to interpret s 11(c) of the 1973 Act in this
way. Lord Nicholls provided three reasons.

Question 31

First Reason

Answer 31

First, it was far from self-evident what criteria and procedures should be satisfied before a person
can be legally recognised as having acquired their new gender. The court did not have the medical expertise and was not in a position to give guidance on this

Question 32

Second Reason

Answer 32

Second, the recognition of gender reassignment for the purposes of marriage cannot be sensibly made in isolation from other areas where a distinction is drawn between people of the basis of gender. A clear and coherent policy would be required in relation to this.

Question 33

Third Reason

Answer 33

Third, marriage is an institution deeply embedded in the culture of the UK as being between two persons of the opposite sex. It would involve a fundamental change in the traditional concept of
marriage which ought to be considered as part of an overall review of the most appropriate way to deal with the difficulties confronting transgender people.

Question 34

3.1.3 Ghaidan

Key case: Ghaidan v Godin-Mendoza [2004] UKHL 30

Answer 34

In this case the majority of the law lords felt able to use s 3 powers to read the statutory provision
in a Convention-compatible way.

Question 35

Key case: Ghaidan v Godin-Mendoza [2004] UKHL 30

Answer 35

The defendant had lived in a stable and permanent gay relationship with the protected tenant of
a flat; the claimant was the freehold owner. In possession proceedings brought by the claimant on
the tenant’s death, the judge found that the protected tenancy could not transfer to the defendant upon his partner’s death because such succession was only available to spouses or ‘common law’ spouses as per para 2, Sch. 1 of the Rent Act 1977 (as amended).

Question 36

R v A, the House of Lords used s 3 of the HRA 1998 to read

Answer 36

In the additional words ‘as if they were his wife or husband’ into para 2, Sch. 1 of the Rent Act 1977,
in order to make it compatible with articles 8 and 14, ECHR. The law lords held that the courts
should take a broad approach to interpretation under s 3. What mattered in their view was the substance of the legislative provision being interpreted rather than the particular phraseology or form of words that were used.

Question 37

3.1.4 Ghaidan - guidelines

Answer 37

In finding that a broad approach to interpretation should apply with respect to s 3, the House of Lords held in Ghaidan that a court may be required to depart from the clear and unambiguous
meaning that the provision would otherwise have borne. A court can interpret the language of provisions restrictively or expansively, and it can also read in words which change the ordinary meaning of the legislation.

Question 38

However, the law lords indicated that the use of this interpretative power would go too far if it:

Answer 38

• Changed the substance of the provisions completely
• Ran counter to a fundamental feature of the legislation or to the underlying thrust or cardinal feature of it; in other words, if it went ‘against the grain’ of the original legislation
• Contradicted provisions in the legislation
• Repealed or deleted the language used in the legislation
• Involved the court making decisions for which it is not equipped

Question 39

R (Wilkinson) v Inland Revenue Commissioners [2005] UKHL 30 (para 17-18)

Answer 39

Lord Hoffmann stated that, just as the principle of legality meant that statutes were construed against the
background of human rights subsisting at common law, so now, s 3 required them to be construed
against the background of ECHR rights. He went on to say that, whilst there was a ‘strong presumption’ arising from the Convention rights, ‘the question is still one of interpretation’.

Question 40

Lord Hoffmann

Answer 40

Also said that, whilst the interpretative exercise in that case may have been contrary to the intention of the Parliament that passed the Rent Act 1977, the
‘intention of Parliament’ has a broader meaning. It encompasses ‘the interpretation which the
reasonable reader would give to the statute read against its background, including, now, an
assumption that it was not intended to be incompatible with Convention rights.’

Question 41

Supreme Court follows same approach

Answer 41

The Supreme Court has largely continued to follow the same approach with respect to s 3. See, for example, the cases of Pinnock v Manchester City Council [2010] UKSC 45, and Hounslow LBC v Powell [2011] UKSC 8.

Question 42

3.2 Summary of the courts’ approach to s 3

Answer 42

The decision in R v A, as endorsed by the court in Ghaidan, embodies the following approach to
the scope and the limits of the courts’ interpretative duty under s 3.

Question 43

As s 3 imposes a strong interpretative obligation, the courts can:

Answer 43

• Interpret a provision even if the language is clear;
• Adopt a ‘linguistically strained’ interpretation;
• Read down language (ie adopt a narrower meaning to render the provision ECHR-compatible);
• Read in words/imply in provisions; and
• As the interpretative obligation is a strong one, a declaration of incompatibility under s 4 HRA should be a ‘measure of last resort’.

Question 44

However, there are limits to the courts’ s 3 power, and so the courts cannot:

Answer 44

• Change the substance of the provision completely;
• Make changes which run counter to a fundamental feature of the legislation or to the underlying thrust of it (going ‘against the grain’ of the legislation);
• Contradict provisions in the legislation;
• Repeal or delete the language used in the legislation;
• Make decisions for which the court is not equipped.

Question 45

4 Section 4 HRA: Declarations of incompatibility

Limitations posed by parliamentary sovereignty

Answer 45

The courts have no power to strike down primary legislation that is incompatible with ECHR rights, because of the key importance of the principle of parliamentary sovereignty

Question 46

Section 3 interpretation

Answer 46

However, in situations where the court does not consider it appropriate to adopt a ‘section 3 interpretation’ of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right. Section 4 provides as follows:

Question 47

4. Declaration of incompatibility

Answer 47

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may
make a declaration of that incompatibility.

(6) A declaration under this section […] (a) does not affect the validity, continuing operation or
enforcement of the provision in respect of which it is given; and (b) is not binding on the parties
to the proceedings in which it is made.

Question 48

4.1 Bellinger

In Bellinger v Bellinger [2003] UKHL 21

Answer 48

Discussed above, the House of Lords made a declaration
of incompatibility in respect of the Matrimonial Causes Act 1973, s 11(c), as the fact that it made no provision for the recognition of gender reassignment made it incompatible with articles 8 and 12. You will recall that the law lords felt unable to use their s3 HRA powers to read the Act compatibly.

Question 49

Bellinger, Defendant’s Council

Answer 49

In Bellinger, the defendant’s Counsel argued that the House of Lords should not make a declaration because, following the ECtHR judgment in Goodwin v UK the government had
accepted that UK law was not compatible with articles 8 and 14, and had announced forthcoming
legislation to remedy the incompatibility

Question 50

Lord Nicholls stated:

Answer 50

Nevertheless, when proceedings are already before the House, it is desirable that in a case of
such sensitivity this House, as the court of final appeal in this country, should formally record that the present state of statute law is incompatible with the Convention.

Question 51

A and Others v Secretary of State for the Home Department [2004] UKHL 56

Answer 51

The Belmarsh case – the House of Lords made a s 4 declaration that s 23 of the Anti-Terrorism, Crime and
Security Act 2001 was incompatible with articles 5(1) and 14 of the ECHR.

Question 52

Policy found to be disproportionate

Answer 52

The policy was found to be disproportionate, insofar as it was not strictly necessary to have detained suspected international terrorists without charge or trial, and it was also discriminatory
on the ground of nationality or immigration status

Question 53

R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46

Answer 53

Where the House of Lords found that s 29 of the Crime (Sentences) Act 1997 was
incompatible with article 6(1), ECHR. This case provides a further example of the courts’ approach
to the limits of s 3, as well as the making of a declaration under s 4

Question 54

Anderson

Answer 54

The claimant had been convicted of two murders for which he received mandatory life sentences. In accordance with his stated practice the Home Secretary received advice from the trial judge and the Lord Chief Justice before deciding the tariff. The tariff he imposed was longer than that recommended by the judiciary. The claimant challenged it on the grounds, inter alia, that as the Home Secretary was a member of the executive rather than a member of an
independent and impartial tribunal, he had acted incompatibly with the right to a fair trial under
article 6(1) ECHR.

Question 55

s 29 of the Act was incompatible with article 6(1)

Answer 55

Their lordships found that s 29 of the Act was incompatible with article 6(1) but declined to follow
the appellant’s Counsel’s submission that the House should use its s 3, HRA power to reads s 29 in
a Convention-compatible way, which would have involved precluding the participation of the Home Secretary from the decision-making process. Lord Bingham stated that to do so would ‘[…] not be judicial interpretation but judicial vandalism’ and he referenced the judgment in Re S Re W (refer to the previous section). Lord Steyn agreed with Lord Bingham’s decision and reasons

Question 56

4.3 Section 10: Remedial action

Compelling reasons

Answer 56

Section 10(2) HRA 1998 provides that, in response to a declaration of incompatibility made under s 4 (or to a decision of the ECtHR), the relevant ministers may take expedited ‘remedial action’ to amend the relevant legislation as necessary to remove the incompatibility, if ‘there are compelling
reasons for proceeding under this section’.

Question 57

Schedule 2 of the HRA 1998 sets out two procedures:

Answer 57

One is the standard procedure, which requires that a draft amending order be laid before Parliament for 60 days before being approved by both Houses of Parliament. The second remedial procedure concerns urgent cases, where the order may be laid before Parliament for approval after it is made.

Question 58

4.3 Section 10: Remedial action

Answer 58

Note that the government may well plan a legislative response to a s 4 declaration over a longer
period of time instead, if the expedited process under s 10 is not seen as necessary.
In the absence of a governmental response of any kind, the claimant may have recourse to the ECtHR, since all available domestic remedies will have been exhausted.

Question 59

4.4 Declarations and remedial action

Answer 59

The Ministry of Justice produces an annual report: ‘Responding to human rights judgments, Report to the Joint Committee on Human Rights on the Government’s response to human rights judgments’. This includes details of declarations of incompatibility (DOI) that have been made by
the courts in that year. It also includes a list of all of the declarations that have been made since the HRA came into force in October 2000, with details of what, if any, remedial action has been taken by the UK government and Parliament with respect to each declaration.

Question 60

The report for the year 2020-21 can be found here:

Answer 60

The report indicates that until the end of July 2021, 44 DOIs have been made by the courts since October 2000. One DOI was made in the period covered by the 2020-21 report, in the Northern Irish case of ‘JR111’ Re Application for Judicial Review [2021] NIQB 48. The court held that the
requirement in the Gender Recognition Act 2004 for trans people to show that they had suffered from a ‘disorder’ (gender dysphoria) in order to obtain a gender recognition certificate was
incompatible with article 8 of the ECHR.

Question 61

5. Section 19: Statements of compatibility

Answer 61

It is worth noting the role that the HRA plays in the formation of prospective, new law, as well as the obligations and powers that arise for public authorities and the courts with respect to existing law.

Question 62

19(1)

Answer 62

Provides that, prior to the second reading of a bill in Parliament, the minister
responsible for that bill must make a written statement that:
(a) The proposed new legislation is compatible with the Convention rights (‘a statement of
compatibility’); or
(b) Although he is unable to make a statement of compatibility, the government wishes to
proceed with the bill regardless.

Question 63

A statement of compatibility

Answer 63

Was made in relation to the Anti-Terrorism, Crime and Security Act 2001. Although a derogation was entered in respect of article 5(1), the statement declared that, in
all other respects, the Act was Convention-compliant. This statement turned out to be incorrect, as confirmed in the case of A and Others where the House of Lords held that the power to detain
foreign nationals was disproportionate and discriminatory and therefore in breach of articles 5 and 14

Question 64

6 Section 8 HRA: Remedies

Section 8 covers the provision of remedies. Section 8(1) provides that:

Answer 64

Judicial remedies
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its
powers as it considers just and appropriate

Question 65

Limitations of awarding remedies

Answer 65

The power to award a remedy is, however, limited in a number of respects (see s 8(1)–(4)). In
practice, the nature of the remedy will vary greatly according to the context of the case, including in which court or tribunal the claim is being heard. The normal range of remedies will include damages, declarations, injunctions, and quashing orders, prohibitory orders and mandatory orders.

Question 66

7 Summary on remedial outcomes: ss 3 and 4

Answer 66

We saw previously that, where a person claims that a public authority has violated one or more of
their Convention rights, the public authority may be able to rely upon a ‘statutory defence’ under
s 6(2) HRA.

Question 67

Declare decision of incompatibility

Answer 67

In this situation, where a court determines that the legislative provision relied upon by the public authority is incompatible with a Convention right, the court is under an initial duty to interpret the offending provision, insofar as it is possible to do so, in a Convention compatible way (s 3). Alternatively, if the court decides that it cannot use its power under s 3, it may consider whether
to make a declaration of incompatibility under s 4 HRA.

Question 68

Remedy for applicant

Answer 68

If the court uses its s 3 power to read the provision compatibly, the public authority’s potential s
6(2) defence will effectively disappear, meaning that it cannot avoid liability under s 6(1). This will provide a remedy for the applicant.

Question 69

s 6(2) defense

Answer 69

If the court is not able to use its s3 power and instead makes a DOI under s 4, the claimant will not
have a remedy, as the s 6(2) defence will remain in place.

Question 70

8. Summary

Answer 70

• Section 6(2): A public authority will not breach the obligation imposed by s 6(1) if it is able to rely on the ‘statutory defence’ in s 6(2).
• However, a public authority’s reliance upon the statutory defence in s 6(2) does not necessarily
  mean that it will evade liability under the HRA. The defence is impacted by the courts’ duty contained in s 3(1).

Question 71

8. Summary

Answer 71

• Section 3: There is a duty on the court to read primary and subordinate legislation ‘so far as it
  is possible to do so’ in a Convention compatible way.
• Case law demonstrates that the courts view their interpretative duty under s 3 as a strong one, although there are limits (R v A; Re S, Re W; Bellinger; Ghaidan).
• Section 4: A court may make a declaration of incompatibility (see Bellinger; Anderson)

Question 72

8. Summary

Answer 72

• Section 10: Provides powers to government ministers to take expedited ‘remedial action’ where a s 4 declaration is made.
• Section 8: Where a court finds that a public body has acted contrary to its duty under s 6(1) HRA, it may grant such remedy as it considers ‘just and appropriate’. These will vary very much according to context but can include damages, declarations, injunctions, and quashing
  orders, prohibitory orders and mandatory orders

Question 73

8. Summary

Answer 73

• Section 19: Provides that the Minister responsible for a bill must make a
  statement, before the
  Second Reading of the bill, that the provisions of the bill are compatible with the ECHR.
• The relationship between ss 3 and 4, HRA: In the context of a summary of domestic enforcement mechanisms.