Human Rights Law Flashcards
Domestic Courts’ Enforcement of Convention Rights
-Section 6(2)
-Section 3(1)
-Section 4
-Section 10
-Section 8
Section 6(2)
A public authority will not breach the obligation imposed by s. 6(1), HA 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
-“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” (S 3(1))
-[This section] applies to primary legislation and subordinate legislation whenever enacted” (S 3(2)(a))
-The courts can take S3 as far as they want and judge it completely as they see fit: A balance must be struck. Lord Steyn: “Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights…it will sometimes be necessary to adopt an interpretation which linguistically may appear strained…A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so” (Crown (R) v A; here Lord Steyn felt there was incompatability)
-Where use of the interpretative power in S3 would bring about a major change in the law which would have far-reaching consequences, the courts will be less willing to use it. There is careful consideration of when to use it (Re S (Children) and Re W (Care Orders), Bellinger v Bellinger)
-Another case where S3 powers are used: Ghaidan v Godin-Mendoza. 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.
Exemptions for 6(2) HRA
The duty/restriction does not apply to an act if: “as the result of one or more provisions of primary legislation, the authority could not have acted differently” (S 6(2)(a)) or “in the case of one or more provisions of primary legislation which cannot…[act] in a way which is compatible with the Convention rights, the authority was acting…to give effect to or enforce those provisions” (S 6(2)(b)).
In cases where a person claims a public authority has violated one or more of their ECHR rights, it may be possible for the PA to rely upon…the ‘statutory defence’ under s. 6(2), HRA.
Statutory Defence (S 6(2), HRA)
Section 6(2) was designed to ensure parliamentary sovereignty is not undermined
Regarding (S6(2)(a)): “The authority has no alternative but to do what the legislation tells it to do…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 rights”
Regarding (S6(2)(b)): In certain situations, authorities can “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”
Section (3)(1) & Section (6)(2) Interacting
-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)
-S 3(2)(a) means primary legislation is not always a valid excuse
-If the court uses its S3 power to read the provision compatibly, the PA’s potential S6(2) defence will effectively disappear. It cannot avoid liability. This will then provide a remedy for the applicant
-If the court is not able to use its S3 power and instead makes a DOl under S4, the claimant will not have a remedy. The S6(2) defence will remain in place
Ghaidan Guidelines (Ghaidan v Godin-Mendoza)
-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
-Interpretative power will go too far if it: changed the substance completely, ran counter to a fundamental feature of the legislation, contradicted provisions in the legislation, repealed/deleted the language used in the legislation or the court made decisions for which it is not equipped
-The approach in Ghaidan is supported by Crown (R) (Wilkinson) v IRC, Pinnock v MCC & Hounslow LBC v Powell
Section 4
-If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility (S 4(2)) (They cannot strike down legislation)
-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 (S 4(6))
Section 8
-Where a court finds that a public authority has acted contrary to its duty under s. 6(1) HRA, it may grant such remedy as it considers ‘just and appropriate’
-The power to award a remedy is, however, limited in a number of respects (see S8(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
Section 10
-S10 allows that a declaration of incompatibility made under S4/ECtHR decision - the relevant ministers may take expedited ‘remedial action’ to amend the relevant legislation as necessary to remove the incompatibility - in response
-Schedule 2 of the HRA 1998 sets out two procedures. One is the standard procedure; a draft amending order be laid before Parliament for 60 days before being approved by both Houses. The second remedial procedure concerns urgent cases, where the order may be laid before Parliament for approval after it is made
-The government may well plan a legislative response to a S4 declaration over a longer period of time instead, if the expedited process under S10 is as necessary
-In the absence of any governmental response, the claimant may have recourse to the ECtHR, since all available domestic remedies will have been exhausted
Section 19
-Which provides that the Minister responsible for a parliamentary bill must make a statement, before the second reading, that the provisions of the bill are compatible (a) (or not but he wants to continue anyway - (b)) with the ECHR
-A statement of compatibility was made in relation to the Anti-Terrorism, Crime and Security Act 2001. It claimed A5(1) was incompatible but everything else was fine. This was wrong; both A5 & A14 were wrong.
Bellinger v Bellinger
-The House of Lords made a declaration of incompatibility in respect of the Matrimonial Causes Act 1973
-It made no provision for the recognition of gender reassignment made it incompatible with articles 8 and 12 (they did not use S3 powers)
-In Goodwin v UK, government accepted UK law was not compatible with articles 8 and 14, and had announced forthcoming legislation to remedy the incompatibility - so defendant argued no declaration of incompatibility was needed
-Lord Nicholls stated: “It is desirable that in a case of such sensitivity this House, as the final court…should formally record that the present state of statute law is incompatible with the Convention”
Crown (R) (Anderson) v Secretary of State for the Home Department
-House of Lords found that S29 of the Crime (Sentences) Act 1997 was incompatible with article 6(1) (ECHR)
-It provides a further example of the courts’ approach to the limits of S3 & the making of a declaration under S4
-Lord Bingham expressed that to use their S3 powers in this case would be judicial vandalism and Lord Steyn agreed with him; despite agreeing that S29 was incompatible with A6(1) (ECHR) (Backed up with Re S Re W)
