S. 3 and S. 4

Question 1

The Purpose of the Human Rights Act

Answer 1

To Bring the ECHR home - Pannick

Question 2

s. 3 HRA

Answer 2

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with the Convention rights.
- s. 3 is a duty imposed on all courts

Question 3

s. 4 HRA

Answer 3

If the court’s feel unable to make a compatible s. 3 interpretation, then they will make a s. 4 ‘declaration of incompatibility’
- s. 4 is a power exercisable only by the High Court, C of A and the Supreme Court

Question 4

s. 4 does not

Answer 4

• Invalidate the law
• Change the law
• Determine the Outcome of proceedings
• Require Parliament to change the law

Question 5

HRA and Lord Irvine

Answer 5

Believed the HRA would give Marleasing interpretative powers to the courts

• ability to strike down clauses
• add words to legislation to make it compatible with HRA

Question 6

R v A

Answer 6

A rape trial - D said that evidence of his sexual history was a breach of Article 6 (right to a fair trial)
Lord Steyn
- the meaning of the words could be strained, words could be added and clauses removed to make it compatible
Lord Hope disagreed

Question 7

Professor Nichol: R v A

Answer 7

Lord Steyn - outrageous and ‘far-fetched’

- subsequent judgements have moved from this position

Question 8

Aileen Kavanagh: R v A

Answer 8

Lord Steyn was completely right

- courts had simply attempted to take each case on a case by case basis

Question 9

Anderson, Re S, Bellinger

Answer 9

Radical and broad ranging reform of the law is generally not open to judges but rather to parliament.

Question 10

Anderson

Answer 10

H of L issued a s. 4 declaration of incompatibility over the HS powers to control the release of mandatory life sentence prisoners (Article 6 violation)
- Lords refused to use s. 3 as it would give the section ‘an effect quite different from what parliament intended’.

Question 11

Re S

Answer 11

H of L unable to construe the word of the Children Act 1989 in accordance with the HRA and had to issue a s. 4 declaration.
Lord Nichold
- it was not for the courts to counteract the intention of parliament in such a way.

Question 12

Aileen Kavanagh: Re S

Answer 12

whether a s. 3 HRA interpretation is possible depends much on contextual factors such as the terms of the legislation under scrutiny as well as the consequences of the proposed interpretation.

Question 13

Bellinger v Bellinger

Answer 13

‘female’ could not be reinterpreted to include tansgender males.
Lord Nichols - changing meaning could have implications for education, child care, prisons etc

Question 14

Ghaidan v Godin-Mendoza

Answer 14

‘spouse’ in the Housing Act was held to mean a ‘relationship of sexual and social intimacy’

• could be interpreted for homosexual couples
• an endorsement of Lord Steyn in R v A

Question 15

Aileen Kavanagh: overview

Answer 15

Whether it is ‘possible to adopt an interpretation under s. 3 depends of many factors’ e.g. whether reform is imminent
- if radical law reform can be achieved successfully then the courts will be reluctant to adopt an interpretation.

Question 16

Parliament’s intention that judicial interpretive powers are limited

Answer 16

1. shown by the words ‘as far as possible’
2. Existence of s. 4 so that judges can issue declaration s of incompatibility
   - if section 3 always worked there would be no need for s. 3