HRA enforcement and remedies Flashcards
When does the statutory defence to claims under s6(1) HRA apply?
- Due to primary legislation, authority couldn’t have acted differently or
- Legislation cannot be given effect in a way compatible with ECHR rights
What is the potential remedy where the statutory defence to s6(1) is invoked?
section 3 HRA: so far as possible legislation must be read in a way compatible with ECHR rights
What can the courts do in relation to s3 HRA?
- Interpret provision even if language is clear
- Adopt linguistically strained approach
- Read down language
- Read in words
What cant the courts do in relation to s3 HRA?
- Changed substance of provisions completely
- Counter to fundamental feature of the legislation
- Contradicted provisions in the legislation
- Repealed or deleted language in legislation
- Involves court making decisions which it is not equipped for.
Do the courts have the power to strike down legislation that is incompatible with the ECHR?
No
What can the courts do if they are unable to use the interpretive power in s3 HRA but the law is incompatible with ECHR rights?
Make a declaration of incompatibility
What does section 10 HRA provide for in the case of a declaration of incompatibility?
ministers may take remedial action to amend legislation to remove incompatibility if there are compelling reasons
What is the procedure for remedial action after a declaration of incompatibility?
- Draft amending order laid before Parliament for 60 days before approval by Parliament
- Urgent cases – laid before Parliament for approval after made
What are statements of compatibility?
Prior to second reading of a bill in Parliament, minister responsible must make written statement that:-
* Proposed legislation is compatible or
* Although unable to make statement of compatibility, government still wishes to proceed
What does section 8 HRA say about the remedies that the court can make?
may grant such relief/remedy within its powers as it considers just and appropriate
