ECA and HRA

Question 1

Section 2 (4) of ECA - First limb

Answer 1

This creates a rule of construction by providing that the courts must read UK leg in such a way as to make it compliant with EU law (‘shall be construed’).

This has resulted in national legislation being given a very different meaning to the literal meaning.
(Litster v Forth Dry Dock Ltd)

Question 2

Section 2 (4) of ECA - Second limb

Answer 2

This has been interpreted as meaning, if it is not possible for the courts to read UK leg in such a way as to make it compliant with EU law, then the courts must give precedence to directly effective EU law (‘shall have effect’) and set aside inconsistent nation leg. (Factortame)

Question 3

Section 3 of HRA

Answer 3

Requires primary and secondary leg to be interpreted in accordance with Convention rights ‘so far as it is possible to do so’.

It suggests that domestic courts should not interpret leg in an artificial manner or read into leg words that are not there in order to make such leg compatible with Convention rights. The courts however, adopted a broader view of their powers under this section.

(Ghaidan v Godin-Mendoza)

Question 4

Sec 4 of HRA

Answer 4

Where the courts are unable to interpret domestic leg in such a way as to make it compatible with Convention rights, they have the power to make a declaration of incompatibility.

This will not invalidate or affect the operation of the offending Act, but there will be political pressure on the government to use the section 10 fast-track procedure in response. (Anderson)