HRA - Parliament and Courts 1+2

Question 1

What does Section 3 of the Human Rights Act 1998 require courts to do?

Answer 1

Section 3 requires courts to interpret legislation, as far as possible, in a way that is compatible with Convention rights

Question 2

Does Section 3 apply to past legislation, future legislation, or both?

Answer 2

Both past and future legislation

Question 3

What are courts not allowed to do under Section 3?

Answer 3

Courts cannot interpret legislation in a way that goes against the fundamental purpose or “grain” of the statute

Question 4

What 3 interpretative techniques can courts use under Section 3?

Answer 4

• Reading in – inserting words where there are none in a statute
• Reading out - where words are omitted from a statute
• Reading down - where a particular meaning is chosen to be in compliance

Question 5

What was the court’s decision in Ghaidan?

Answer 5

The House of Lords used Section 3 to interpret the statute as including same-sex partners to avoid discrimination (Article 14 with Article 8)

Question 6

What does Section 4 of the Human Rights Act allow courts to do?

Answer 6

It allows higher courts to make a declaration of incompatibility if a piece of legislation cannot be interpreted compatibly with the Convention rights

Question 7

What is the legal effect of a Section 4 declaration?

Answer 7

It does not invalidate the law; it simply signals to Parliament that the law is incompatible. Only Parliament can change the law

Question 8

Which courts can issue a Section 4 declaration?

Answer 8

Only higher courts such as the High Court, Court of Appeal, and Supreme Court

Question 9

What was the court’s decision in Bellinger?

Answer 9

The House of Lords held that the definition of “female” could not be interpreted under Section 3 to include a transgender woman, so they issued a Section 4 declaration

Question 10

Why is Bellinger an example of judicial restraint?

Answer 10

Because the court recognised that rewriting the definition of “female” would involve major policy issues, which are best left to Parliament

Question 11

What is judicial activism in the context of Section 3?

Answer 11

It refers to the courts taking an expansive, creative approach to interpreting legislation to ensure compatibility with human rights, potentially altering the meaning of the law

Question 12

What is judicial restraint in the context of Section 4?

Answer 12

It refers to the courts choosing not to go beyond the limits of interpretation and instead issuing a declaration of incompatibility, leaving the matter to Parliament