Human Right Act 1998

Question 1

HRA represents…

Answer 1

compromise between parliamentary sovereignty and protection of human rights - subtly crafted but robust form of constitutional protection

Question 2

Substantive domestic law

Answer 2

HRA doesn’t incorporate the convention rights into substantive domestic law since it doesn’t provide that they are to have force of law (usual form of words for incorporation of national treaties into domestic law) BUT certain of the rights are to have effect for the purposes of this act under s. 1(2)

Question 3

Relevant question…

Answer 3

whether HRA was merely intended to give domestic effect to Convention rights or whether the courts were also free to create a domestic human rights jurisprudence - potentially more generous interpretation go HR

Question 4

Re P

Answer 4

Baroness Hale: “If there is consistent Strasbourg jurisprudence we will follow its line but if it is within our margin of appreciation, we will make our own decision”

Question 5

Herring on Re P

Answer 5

Highly significant: HRA doesn’t just give citizens rights that are established by the ECHR it also gives UK courts ability to give citizens rights deriving from ECHR that the ECHR itself has not yet recognised

Question 6

On the whole…

Answer 6

development of HR jurisprudence going beyond Strasbourg has not been effected by British courts to date

Question 7

s. 3(1)

Answer 7

Convention rights have lower status than ordinary statutory provisions in that they can’t automatically override pre-existing law

Obligation on judges to ensure that all statutory provisions should be rendered if possible compatible with Convention

Question 8

s. 3(2)(b)

Answer 8

If judges can’t render statutory provisions compatible with convention, they will remain valid

Question 9

s. 4

Answer 9

Declaration of incompatibility: by imposing interpretative obligation on courts, the rights become capable of affecting subsequent enactments in a way that is normally not possible

Question 10

s. 3 vs. s. 4

Answer 10

3 = consistent interpretation
4 = declaration of incompatibility

Question 11

Leigh and Masterman - HRA

Answer 11

“A wolf in sheep’s clothing”: ss. 3 and 4 on the face of it appears to leave the ultimate decision as to rights protection to parliament BUT IN PRACTICE they led to a quite clear transfer of power to the judiciary in terms of re-shaping legislation to create ECHR compliance

Question 12

s. 10

Answer 12

If a court cannot under s. 3(1) interpret domestic provision consistent with convention and it makes a s. 4 declaration of incompatibility THEN under s. 10 a minister may by order repeal the offending provision

IF NOT: incompatible legislation must continue to be enforced (doesn’t affect validity

Question 13

LIMITATIONS to s. 4 - declaration of incompatibility

Answer 13

a) Only certain higher courts can m make declaration

b) Courts have discretion (“may”) under s. 4(2)

Question 14

Wilson v First Country Trust

Answer 14

Having found incompatibility, the court found that a declaration of incompatibility should be made

Question 15

Ex parte Alconbury Developments

Answer 15

A declaration can be overturned on appeal to a higher court

Question 16

R v A (Complainant’s Sexual History)

Answer 16

Interpretation of s. 41 Youth Justice and Criminal Evidence Act 1999 - forbidding any evidence to be given in a rape trial of a woman’s previous sexual history with the alleged rapist

Compatibility with Art. 6? everyone is entitled to a fair and public hearing and to examine witnesses against them

s. 41 interpreted to allow judge himself to exercise discretion

Question 17

Judicial debate: R v A (Complainant’s Sexual History)

Answer 17

Lord Steyn vs. Lord Hope

Question 18

Lord Steyn - R v A (Complainant’s Sexual History)

Answer 18

Interpretative obligation even if there is no ambiguity in the language!

Radical effect of s. 3: sometimes necessary to adopt an interpretation that may appear linguistically strain - reading down of sections but also implication of provisions

Declaration of incompatibility = last resort

Question 19

Lord Hope (dissenting) - R v A (Complainant’s Sexual History)

Answer 19

Parliament would have been better equipped than the judges to determine where the balance law between the demands of the general interest of the community and the protection of the individual’s fundamental rights

Question 20

Re S and Re W (Care Orders)

Answer 20

Children Act 1989: Inability of the courts to intervene once children who had been taken into care were placed under a care plan by the local authority

Compatibility with Art 8 and 6? Right to private and family life and to have civil rights obligations determined by an impartial court

s. 3(1) HRA was used to read into Children Act a number of provisions, providing an ability for the court to supervise care plan and allow intervention by guardians if it had been breached

Question 21

Lord Nicholls - Re S and Re W (Care Orders)

Answer 21

s. 3(1) = powerful tool whose use is obligatory NOT an option canon of construction and its use does NOT depend of existence of ambiguity

Question 22

Limitations of s. 3(1)

Answer 22

Confined to interpretation - not all statutory provisions can be rendered convention comment

Lord Woolf in Poplar Housing v Donoghue
Lord Hope in R v Lambert

Question 23

Parliament vs. the courts: s. 3

Answer 23

C: Interpretation
P: Enactment and amendment

=> lines might be blurred (Lord Steyn in R v A)

Question 24

Bellinger v Bellinger

Answer 24

W, a postoperative transsexual appealed against a decision under the Matrimonial Causes Act 1973 that she was not lawfully married to her husband because she was assigned male at birth
“marriage shall be void [if] the parties are not respectively male and female”

W argued the the word “female” should be interpreted as including trans women, relying on her Art 8 right to respect for family life

Held: DENIED. such a fundamental change in the law (interfering with the traditional concept of marriage) gives rise to complex and sensitive issues and should be made only by Parliament

Question 25

Ghaidan v Mendoza

Answer 25

On the death of a protected tenant of a dwelling house, their surviving spouse, if living in the property, became a statutory tenant by succession.

Mendoza had lived with his male partner fro 18 years in the relevant property, but the landlord Ggaidan sought to evict him because he and his partner were not listed as spouses

Mendoza argued: violation of Art 8 right when read together with his Art 14 right to non-discrimination

HoL (4:1 majority): living AS husband and wife could be interpreted as living AS IF they were husband and wife

Question 26

Lord Nicholls - Ghaidan v Mendoza

Answer 26

Parliament cannot have intended that the discharge of expanded interpretative function should allow the courts to adopt a meaning inconsistent with the fundamental feature of the legislation - words implied must “go with the grain of the legislation”

Question 27

Lord Steyn in R v A (para. 44)

Answer 27

It was always clear that the courts did not have to imply the word “reasonably” into s. 3 - allowed to find POSSIBLE not reasonable interpretation

(opposition amendment that would have imported “reasonably” into s. 3 was rejected by the government in 1998)

Question 28

Is the judiciary prepared to take an extremely vigorous stance when interpreting existing law in light of Convention provisions?

Answer 28

R v A’s extremely bold interpretative technique, going beyond interpretation and effectively rewriting legislation, seems to suggest so

supported by Ghaidan and Hammond

Question 29

s. 4 as last resort

Answer 29

Creative process to make provision comply with Convention - marginalisation of the democratic process?

If s. 3 is used, even if it emasculates a legislative provision as in R v A –> Parliament is not being consulted under s. 4 provision expressly provided for

Question 30

Convention itself?

Answer 30

No case at Strasbourg has ever indicated that the rape-shield law was incompatible with Art. 6 –> Convention itself did not demand the change to statute which Lord Hope held necessary

Question 31

Poplar Housing v Donoghue

Answer 31

Lord Woolf:
cautionary note - s. 3 does not entitle the court to legislate, merely to interpret in accordance with the discretion contained within

Most difficult challenge - distinguishing between interpretation and legislation

Question 32

Lord Nicholls: Re S and Re W vs. Ghaidan

Answer 32

In Re S and Re W he confirmed the difficulty of distinguishing between interpretation and legislation mentioned by Lord Woolf in Poplar Housing

HOWEVER

In Ghaidan he took a far more vigorous approach with regard to s. 3

Question 33

Clayton and Tomlinson of the legislating/interpreting divide

Answer 33

Limits remain controversial but are now becoming apparent:
Deference will be shown to Parliament EXCEPT where it concerns an area the judges regard peculiarly as their own domain –> ADMISSIBILITY OF EVIDENCE in R v A

Question 34

Anderson (supporting Clayton and Tomlinson’s notion)

Answer 34

s. 4 (declaration of incompatibility) rather than s. 3 (interpretative approach)

Incompatibility with Art 6 in the Secretary of State being involved in the sentencing of prisoners as he could not be viewed as an equivalence to an impartial tribunal

–> resembling the reasoning in Bellinger v Bellinger: SoS’s role in legislation as a whole so fundamental, any interpretative action (and not declaration) would have gone “against the grain of the legislation”

Question 35

MB (FC) v Secretary of State for the Home Department

Answer 35

Similarly to Anderson also argued that s. 3(1) should not be used where the effect would be to “fly against the intention of Parliament”

Question 36

“possible” in s. 3(1)

Answer 36

Bellinger and Ghaidan indicate that “possible” impliedly related to matters well beyond linguistic possibility - which factors will lead the courts as they did in R v A and Ghaidan to come to a more radical approach with regard to reading words into statute to avoid Art 4?

Question 37

Kavanagh: factors the courts take into account when assessing whether to avoid s. 4 declaration by radical interpretation under s. 3

Answer 37

(i) Effectively rewriting the whole statute?
(ii) Fundamental feature
(iii) Subject matter

Question 38

Kavanagh: (i) Effectively rewriting entire statute?

Answer 38

Argues that Re S and Re W showed that while courts are prepared to read words into statute, as in R v A and Ghaidan, they will not do so when the effect would be to radically re-write the whole statute, granting new powers
–> CoA in Re S and Re W had read a multitude of powers into the statute, which was EXPRESSLY REJECTED by HoL!

Question 39

Kavanagh: (ii) Fundamental Feature

Answer 39

Argues that creative interpretation under s. 3(1) will be rejected where it would run count to a pervasive feature of the statute (i.e. the objectionable provisions permeate the statute)

• -> decisive in Anderson
• -> Lord Hope in R v Lambert took a similar stance

Question 40

Kavanagh: (iii) Subject Matter

Answer 40

If the area in question is one clearly within the judicial domain (Clayton and Tomlinson: R v A and admissibility of evidence), the courts are more confident in invoking a s.3(1) reading
R v Offen
R v Hammond

Question 41

When are the courts less likely to invoke a s. 3(1) interpretation?

Answer 41

In cases that involve social policy or an allocation of resources

Question 42

Re S and Re W: courts less likely to invoke s. 3(1) interpretation

Answer 42

The Lords held that the proposed interpretation of the statute that had been accepted by the CoA would have far-ranging ramifications for local authorities who would have taken children into care (including their scarce allocation of financial resources)

Question 43

Bellinger v Bellinger: courts less likely to invoke s. 3(1) interpretation

Answer 43

At para. 467: indicated that resources and policy reasons were in play

Question 44

Ghaidan v Mendoza: policy

Answer 44

Changes brought about here were not viewed as significantly effecting resources or policy (other than Re S and Re W or Bellinger)

Lord Nicholls: Parliament would not have intended judges to make decisions for which they were not equipped under s. 3

Question 45

Leigh and Masterman: s. 3 vs. s. 4

Answer 45

Judges only apply s. 3 after applying an assessment of whether “Parliament is better placed than judges to REMEDY the incompatibility claimed”

Question 46

Issue with Leigh and Masterman’s remedy approach

Answer 46

Decisions such as Lambert and Sheldrake, where the judges are dealing with reverse burden of proof provisions in the context of terrorism - both a judicial and policy issue

In both cases, the courts invoked s. 3 to protect Art 6, reading down the reverse burden provisions in the Terrorism Act 2000

Question 47

Kavanagh’s remedial argument

Answer 47

(referring to Lord Steyn’s judgement in Ghaidan), the key to understanding the trend in the use of s. 3 is to see it as a remedial provision. Where the use of s. 3 rather than s. 4 is the ONLY means of providing a remedy in that situation, the judges tend to employ it

In Bellinger, a remedy was about to be available via planned legislation, whereas Mr Mendoza would have had no means of succeeding had s. 3 not been used.

Question 48

Feldman: s. 4

Answer 48

Innovative provision as for the first time Parliament has invited judges to tel it that it has acted wrongly by legislating incompatible with the Convention.

HOWEVER

R v A, confirmed in Ghaidan: s. 4 will only be used as last resort

Question 49

Cases of s. 4 incompatibility

Answer 49

1) Alconbury (planning case) - but revered on appeal
2) R (H) v London North and Eastern Region Mental Health System
3) A v Secretary of State for the Home Department
4) Burden v United Kingdom

Question 50

R (H) v London North and Eastern Region Mental Health System

Answer 50

The court found that s. 73 of the Mental Health Act was incompatible with Art 5 since it reversed the onus of proof in systems of appeals of prisoners detained on mental health grounds

Question 51

A v Secretary of State for the Home Department

Answer 51

Declaration accepted and the offending provisions of the Anti-Terrorism, Crime and Security Act 2001 repealed

Question 52

Burden v United Kingdom

Answer 52

Declaration = empty remedy (majority of litigants) even if it does eventually lead to a change of the law

Question 53

s. 4: binding?

Answer 53

NO. government is not legally bound to respond under s. 10

Question 54

Fenwick: statistics on s. 4

Answer 54

Since October 2000, there have been 29 declarations of incompatibility, 20 of which have been reversed on appeal and 8 out of the 9 left led to changes in the law