s.3 and s.4

Question 1

What is the purpose of the HRA s.3 and s.4?

Answer 1

to protect Convention rights in domestic law whilst retaining parliamentary sovereignty

Question 2

What is a limitation of s.3 and s.4 HRA?

Answer 2

Domestic courts cannot strike down or invalidate primary legislation incompatible with Convention rights

Question 3

althoughDomestic courts cannot strike down or invalidate primary legislation incompatible with Convention rights, there is an interpretative function under s.3 HRA what does s.3 read?

Answer 3

1) so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights
2) this section;

a) applies to primary legislation
b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation and
c) in the same way does not effect incompatible subordinate legislation if primary legislation prevents he removal of the incompatibility

Question 4

The interpretative obligation only becomes relevant if the statute is ECHR incompatible as in which case?

Answer 4

R v Metropolitan Commissioner

Question 5

The interpretative obligation only becomes relevant if the statute is ECHR incompatible as in R v Metropolitan Commissioner
discuss case

Answer 5

In a recent case, the majority found that s.64(1A) PACE 1984 was not ECHR incompatible and it was the police policy of retaining biometric data indefinitely following arrest which was alone unlawful

Question 6

In a recent case, the majority found that s.64(1A) PACE 1984 was not ECHR incompatible and it was the police policy of retaining biometric data indefinitely following arrest which was alone unlawful

Answer 6

The interpretative obligation only becomes relevant if the statute is ECHR incompatible as in R v Metropolitan Commissioner
discuss case

Question 7

If legislation cannot be rendered compatible then what will the court do?

Answer 7

make a declaration of incompatibility under s.4

Question 8

Yes s.4 is a last resort option; first judges intend to use s.3.
What are the 3 judicial approaches to s.3?

Answer 8

a) Weak Authority
- to use s.3 to resolve ambiguity

b) intermediate approach
- s.3 is used to change the meaning of legislation to create compatibility but only if the grain of the statute is not affected

c) radical approach
- this imposes a meaning on statutes to create compatibility even when this goes against the purpose of the statute

Question 9

Who commented that Article 1 (respect for human rights) compels us to give the most maximal possible reading of section 3(1) so as to keep violations of Art 1 to the absolute minimum

Answer 9

Gavin Philipson

Question 10

What does Gavin Philipson comment in regards to s.3?

Answer 10

hat Article 1 compels us to give the most maximal possible reading of section 3(1) so as to keep violations of Art 1 to the absolute minimum

Question 11

Gavin Philipson comments in regards to s.3 that Article 1 compels us to give the most maximal possible reading of section 3(1) so as to keep violations of Art 1 to the absolute minimum
However what does Aileen Kavanagh comment?

Answer 11

that one must assess the appropriateness of the judicial choice between s.3 and s.4 in light of the facts and context of the individual case

and so while s.4 is a last resort it is only a last resort where s.3 is unable to be used

Question 12

How comments that that one must assess the appropriateness of the judicial choice between s.3 and s.4 in light of the facts and context of the individual case

and so while s.4 is a last resort it is for some cases the only options

Answer 12

Aileen Kavanagh

Question 13

Aileen Kavanagh comments that one must assess theappropriateness of the judicial choice between s.3 and s.4 in light of the facts and context of the individual case

What case demonstrates this?

Answer 13

R v A (No.2)

Question 14

Aileen Kavanagh comments that one must assess theappropriateness of the judicial choice between s.3 and s.4 in light of the facts and context of the individual case

R v A (No2)
discuss this case

Answer 14

Case concerned the interpretation of s.41 of the Youth Justice and Criminal Evidence Act 1999 which forbade the defendant in a rape trial from adducing evidence of the victim’s previous sexual history except in limited circumstances
ISSUE:
Issue of incompatibility with Arts 6 (right to fair trial) to cross examine witnesses
HELD:
It was possible under s.3 to read s.41 as Convention compliant with Art 6 and would allow sometimes relevant sexual experiences to be admitted.

Question 15

Case concerned the interpretation of s.41 of the Youth Justice and Criminal Evidence Act 1999 which forbade the defendant in a rape trial from adducing evidence of the victim’s previous sexual history except in limited circumstances
ISSUE:
Issue of incompatibility with Arts 6 (right to fair trial) to cross examine witnesses
HELD:
It was possible under s.3 to read s.41 as Convention compliant with Art 6 and would allow sometimes relevant sexual experiences to be admitted.

Answer 15

Aileen Kavanagh comments that one must assess theappropriateness of the judicial choice between s.3 and s.4 in light of the facts and context of the individual case

R v A (No2)
discuss this case

Question 16

The case of R v A (No2) demonstrates the use of s.3 under a radicalist judicial approach which demonstrates that s.4 is a last resort. What did Lord Steyn say in agreement with this?

Answer 16

that a declaration of incompatibility under s.4 is a measure of last resort and avoided unless plainly impossible to do so

Question 17

How did Lord Steyn justify the use radicalist judicial approach to s.3 in R v A (No2) even though it could also be argued that this was an extremely bold interpretative technique that rewrote legislation

Answer 17

He justified that it was necessary to adopt such an interpretation which linguistically appeared strained

Question 18

What critic commented against the use of s.3 under a radicalist approach as the decision in R v A turned the will of Parliament on its head and reinstated most of the judicial discretion which the Act sought to remove

Answer 18

Klug

Question 19

What did Klug comment regarding the use of s.3 ?

Answer 19

the use of s.3 under a radicalist approach as the decision in R v A turned the will of Parliament on its head and reinstated most of the judicial discretion which the Act sought to remove

Question 20

What did Lord Hope in R v A state in regards to judicial scope under s.3?

Answer 20

that theinterpretative obligation ‘is only a rule of interpretation… and does not entitle the judges to act as legislators’

Question 21

who said that interpretative obligation ‘is only a rule of interpretation… and does not entitle the judges to act as legislators’

Answer 21

What did Lord Hope in R v A state in regards to judicial scope under s.3?

Question 22

If s.3 was not used then the applicant in R v A could have applied to Strasbourg where if a breach with Art 6 was found, the Government would be under an obligation to amend the legislation ; however what is the effect of this?

Answer 22

creates an inroad to parliamentary sovereignty

Question 23

Lord Hope offered important points of guidance as to the use of s.3 HRA in which case ?

Answer 23

R v Lambert

Question 24

In R v Lambert Lord Hope offered important points of guidance as to the use of s.3 HRA
What point in favour of s.3 did he give?

Answer 24

1) S.3(1) preserves the sovereignty of Parliament as it does not give judges the power to overrule decisions when the language of the statute is express.

Question 25

In R v Lambert Lord Hope offered important points of guidance as to the use of s.3 HRA
Which point did he give in support of s.4 being the only resort?

Answer 25

If interpretation cannot be done without making the statute unintelligible, the technique will not be possible and will require Parliament to amend the statute

Question 26

When will courts be much less likely to be bold?

Answer 26

when a case involves issues of social policy or resource allocation

Question 27

Which 2 cases involve issues social policies which demonstrates the courts likelihood of being less bold?

Answer 27

Bellinger v Bellinger and Ghaiden v Mendoza

Question 28

Bellinger v Bellinger and Ghaiden v Mendoza involve issues social policies which demonstrates the courts likelihood of being less bold

discuss the first

Answer 28

A post operative transexual appealed agains domestic law that held she was not lawfully married to her husband as she was a man, and the law states that the parties must be male and female
ISSUE;
Was this incompatible with Article 8 ECHR
HELD: 
It was not possible to interpret the word female in the Act as referring to a transsexual
A matter of such public significance should only be made by Parliament not by judges
the courts thereby used s.4 to make a declaration of incompatibility which later led to the Gender Recognition Act 2004 being enacted into the laws of the UK.

Question 29

A post operative transexual appealed agains domestic law that held she was not lawfully married to her husband as she was a man, and the law states that the parties must be male and female
ISSUE;
Was this incompatible with Article 8 ECHR
HELD: 
It was not possible to interpret the word female in the Act as referring to a transsexual
A matter of such public significance should only be made by Parliament not by judges
the courts thereby used s.4 to make a declaration of incompatibility which later led to the Gender Recognition Act 2004 being enacted into the laws of the UK.

Answer 29

Bellinger v Bellinger and Ghaiden v Mendoza involve issues social policies which demonstrates the courts likelihood of being less bold

discuss the first

Question 30

Bellinger v Bellinger and Ghaiden v Mendoza involve issues social policies which demonstrates the courts likelihood of being less bold

discuss the second

Answer 30

Mendoza lived with his gay partner for 18 years in a stable relationship when his partner died and the landlord sought to evict him on the basis that he was not entitled to succeed the tenancy since he was not a husband.
ISSUE:
Whether this violated Art 8 rights read with Art 14 (the right to non-discrimination in the exercise of Convention rights)
HELD: 
s.3(1) was invoked as the words living with the tenant as his or her husband or wife could be interpreted as meaning ‘as if they were’

Question 31

Mendoza lived with his gay partner for 18 years in a stable relationship when his partner died and the landlord sought to evict him on the basis that he was not entitled to succeed the tenancy since he was not a husband.
ISSUE:
Whether this violated Art 8 rights read with Art 14 (the right to non-discrimination in the exercise of Convention rights)
HELD: 
s.3(1) was invoked as the words living with the tenant as his or her husband or wife could be interpreted as meaning ‘as if they were’

Answer 31

Bellinger v Bellinger and Ghaiden v Mendoza involve issues social policies which demonstrates the courts likelihood of being less bold

discuss the second

Question 32

What reasoning did Lord Nicholls give when in Bellinger v Bellinger in using an intermediate approach?

Answer 32

as to use s.3 would cross the constitutional boundary of the HRA and adopt a meaning inconsistent with a fundamental feature of legislation and referred to Lord Roger who noted that the words implied must ‘go with the grain of the legislation’

Question 33

Why should s.4 rather be used than s.3 and thus should not be a last resort?

Answer 33

as the use of s.3 marginalises the idea of setting up a dialogue between courts and Parliament that underlines s.4 and rather leads to a transfer of powers to the judiciary. S.4 provides Parliament with the power to amend legislation rather than s.3 which can manipulate the intention of an act as in R v A (No2)

Question 34

Under areas of judicial domain in terms of constitutional competence, then they are more inclined to boldness as in R v A (regarding the matter of evidence) what are 3 examples which these matters include?

Answer 34

1) ordering of the criminal or civil justice system
2) matters of sentencing
3) admissibility of evidence

Question 35

Under areas of judicial domain in terms of constitutional competence, then they are more inclined to boldness as in R v A (regarding the matter of evidence), examples include

1) ordering of the criminal or civil justice system
2) matters of sentencing
3) admissibility of evidence

which cases does this include?

Answer 35

secretary of state for Home Department v MB 2007

secretary of state for home department v AF

Chester v SoS Justice

Question 36

Under areas of judicial domain in terms of constitutional competence, then they are more inclined to boldness as in R v A (regarding the matter of evidence), examples include

1) ordering of the criminal or civil justice system
2) matters of sentencing
3) admissibility of evidence

Secretary of State for Home Deparment v MB 2007

Answer 36

Under the Prevention of Terrorism Act the SoS could make non-derogating control orders against those they reasonably expected to be involved in terrorist activity
The appellants claimed that the procedure surrounding the making of the orders breached their right to a fair trial under Art 6 as the SoS could apply to withhold information relating to the nature of the case. 
HELD:
Lord Bingham: 
Did not break Art 6 as was in accordance with the Special Advocate procedure which he viewed as a sufficient safeguard
Final decision was that s.3 should be used to render the provisions Convention complaint and allow the judge to refuse to grant permission to withhold information if to do so would be incompatible with the applicants right to a fair determination of civil rights under Art 6

Question 37

Under the Prevention of Terrorism Act the SoS could make non-derogating control orders against those they reasonably expected to be involved in terrorist activity
The appellants claimed that the procedure surrounding the making of the orders breached their right to a fair trial under Art 6 as the SoS could apply to withhold information relating to the nature of the case. 
HELD:
Lord Bingham: 
Did not break Art 6 as was in accordance with the Special Advocate procedure which he viewed as a sufficient safeguard
Final decision was that s.3 should be used to render the provisions Convention complaint and allow the judge to refuse to grant permission to withhold information if to do so would be incompatible with the applicants right to a fair determination of civil rights under Art 6

Answer 37

Under areas of judicial domain in terms of constitutional competence, then they are more inclined to boldness as in R v A (regarding the matter of evidence), examples include

1) ordering of the criminal or civil justice system
2) matters of sentencing
3) admissibility of evidence

Secretary of State for Home Deparment v MB 2007

Question 38

Under areas of judicial domain in terms of constitutional competence, then they are more inclined to boldness as in R v A (regarding the matter of evidence), examples include

1) ordering of the criminal or civil justice system
2) matters of sentencing
3) admissibility of evidence

discuss Scerarty of State for Home Department v AF

Answer 38

After the ruling of the HOL in MB, the Grand Chamber handed down its ruling in A v UK
HELD:
Again as in MB the appellants argued not that the orders themselves breached the Convention but instead, that the procedure breached the right to a fair hearing under Art 6 (!1)
Relying on MB and A v UK the appellants argued that Art 6 required that they be given sufficient information in order to instruct their special advocate effectively
Lord Hoffman explained that A v UK imposed a rigid rule that the requirements of a fair hearing are never satisfied if based solely on closed material
HELD:
s.3 HRA was allowed to read into the PTA that they should be given enough information to instruct their specific advocate

Question 39

After the ruling of the HOL in MB, the Grand Chamber handed down its ruling in A v UK
HELD:
Again as in MB the appellants argued not that the orders themselves breached the Convention but instead, that the procedure breached the right to a fair hearing under Art 6 (!1)
Relying on MB and A v UK the appellants argued that Art 6 required that they be given sufficient information in order to instruct their special advocate effectively
Lord Hoffman explained that A v UK imposed a rigid rule that the requirements of a fair hearing are never satisfied if based solely on closed material
HELD:
s.3 HRA was allowed to read into the PTA that they should be given enough information to instruct their specific advocate

Answer 39

Under areas of judicial domain in terms of constitutional competence, then they are more inclined to boldness as in R v A (regarding the matter of evidence), examples include

1) ordering of the criminal or civil justice system
2) matters of sentencing
3) admissibility of evidence

discuss Scerarty of State for Home Department v AF

Question 40

What case is the most well-known and far-reaching declaration was made by the HOL.
The declaration was accepted by the Government and the offending provisions in the Anti-Terrorism act were repealed.

Answer 40

A v UK

Question 41

A v UKis the most well-known and far-reaching declaration was made by the HOL.
The declaration was accepted by the Government and the offending provisions in the Anti-Terrorism act were repealed.
how does this support that s.4 should be last resort

Answer 41

as it allows for an interpretative function in judicial remain where arguably they are most competent to rule in regards to matters of

1) ordering of the criminal or civil justice system
2) matters of sentencing
3) admissibility of evidence

Question 42

In what case did the HOL by unamnity rule against the radical approach to s.3 as Radical approaches can infringe upon the rule of law as individuals cannot guide their conduct if judges rewrite the law

Answer 42

Anderson and Re

Question 43

In Anderson and Rethe HOL by unamnity rule against the radical approach to s.3 as Radical approaches can infringe upon the rule of law as individuals cannot guide their conduct if judges rewrite the law; how does this support that s.4 should not be last resort?a

Answer 43

arguably a s.4 should be more willingly used than the radicalist approach of s.3 which seriously infringes upon parliamentary sovereignty

Question 44

Which subsection of s.4 states that lower courts such as County Courts, Crown or Magistrates cannot issue s.4 declarations

Answer 44

s.4 (5)

Question 45

When can a declaration of incompatibility under s.4 be used?

Answer 45

whenever a court is satisfied either that a provision of primary legislation is incompatible with a Convention right or that a provision of subordinate legislation is incompatible and the primary legislation prevents the removal of such incompatibility

Question 46

What does s.4(6) read?

Answer 46

that a declaration

a) does not affect the validity, continuing operation or enforcement of the provision
b) is not binding on the parties to the proceedings in which it is made

Question 47

What 3 ways can Parliament respond to a declaration of incompatibility?

Answer 47

1) Parliament may ignore it
2) Parliament may pass primary legislation to create compatibility
3) Parliament may use the s.10 fast track procedure to create compatibility
a) applies when appeal options are exhausted/ a fading by the ECHR reveals legislation incompatible

b) a Minister of the Crown considers there compelling reasons for proceedings under this section

Question 48

Why may s.3 be more appropriate than s.4 in terms of making change?

Answer 48

as Parliament is under no legal obligation to respond to a declaration of incompatibility by amending, repealing or replacing offending legislation; whereas s.3 provides immediate remedial response

Question 49

Although s.4 does not place legal obligations upon Parliament it does place political pressure on the government to do so; what demonstrates this?

Answer 49

the fact that they so far have responded to s.4 decorations promptly and effectively

Question 50

Since October 2000 how many declarations of incompatibility have there been?

Answer 50

29; 20 of which have not been reversed on appeal and all have either been remedies or are under consideration with a view to being remedied

Question 51

Since October 2000 there have been 29 declarations of incompatibility v20 of which have not been reversed on appeal and all have either been remedies or are under consideration with a view to being remedied
Which case is a major exceptions

Answer 51

Hirst and the incompatibility of the UK’s blanket ban on prisoner voting

Question 52

Since October 2000 there have been 29 declarations of incompatibility v20 of which have not been reversed on appeal and all have either been remedies or are under consideration with a view to being remedied
Hirst is a major exception
discuss this case

Answer 52

is a European Court of Human Rights case, where the court ruled that a blanket ban on British prisoners exercising the right to vote is contrary to the European Convention on Human Rights.
The British Government initially attempted to introduce legislation to give prisoners the right to vote.[4] This was rejected by the British Parliament and the Government has repeatedly stated since then that prisoners will not be given the right to vote in spite of the ruling

Question 53

is a European Court of Human Rights case, where the court ruled that a blanket ban on British prisoners exercising the right to vote is contrary to the European Convention on Human Rights.

The British Government initially attempted to introduce legislation to give prisoners the right to vote.[4] This was rejected by the British Parliament and the Government has repeatedly stated since then that prisoners will not be given the right to vote in spite of the ruling

Answer 53

Since October 2000 there have been 29 declarations of incompatibility v20 of which have not been reversed on appeal and all have either been remedies or are under consideration with a view to being remedied
Hirst is a major exception
discuss this case

Question 54

What case is an example of where the use of s.4 failed to provide a remedial response and how?

Answer 54

Hirst v UK as a backbench debate in 2011 agreed in an overwhelming majority a motion that approved the current state of the law

Question 55

In which case did Lord Steyn say that a declaration of incompatibility is a measure of last resort that must be avoided unless plainly impossible to do so

Answer 55

R v A

Question 56

In which case did the courts note that the interpretative power of s.3 is the principle remedial measure with a DOI being the last resort?

Answer 56

Ghaiden v Mendoza

Question 57

Given the ruling by Lord Steyn and R v A and the court in Ghaiden it can be suggestedthat the courts exercise their discretion in all but exceptional circumstances ; what lord and case established this?

Answer 57

as per Lord Nicholls stated in Bellinger v Bellinger that a case of such sensitivity be formally presented to Parliament to legislate upon

Question 58

What issues can arise from using s.3 where not appreciate to do so? (4)

Answer 58

• democratic legitimacy
• fostering dialogue with parliament
• rule of law
• institutional competence

Question 59

Arguably s.4 should be made more willingly in order to allow Parliament to bring in progressive legislation ; what case demonstrates this?

Answer 59

R v Secretary of State for HD ex parte D

Question 60

Arguably s.4 should be made more willingly in order to allow Parliament to bring in progressive legislation ;
R v Secretary of State for HD ex parte D
discuss case

Answer 60

This case involved a challenge to the Home Secretary’s discretion to allow a discretionary life prisoner to obtain access to a court to challenge their continued detention
ISSUE:
Whether the Mental Health Act was incompatible with Art 5
HELD: 
The law was amended by the CJA 2003

Question 61

This case involved a challenge to the Home Secretary’s discretion to allow a discretionary life prisoner to obtain access to a court to challenge their continued detention
ISSUE:
Whether the Mental Health Act was incompatible with Art 5
HELD: 
The law was amended by the CJA 2003

Answer 61

Arguably s.4 should be made more willingly in order to allow Parliament to bring in progressive legislation ;
R v Secretary of State for HD ex parte D
discuss case

Question 62

What case demonstrated a use of dialogue between the courts and Parliament through not using s.4?

Answer 62

Nicklinson; the Lords warned they they would use s.4 that way next time a suitable case arose

Question 63

In Nicklinson; the Lords warned they they would use s.4 that way next time a suitable case arose which demonstrated a use of dialogue between the courts and Parliament through not using s.4
discuss case

Answer 63

Case concerned allowing assisted suciide in some circumstances. The decision was that the common law was not allowed or unable to play any part in furthering a right of assisted suicide in the UK
HELD:
The majority declined to declare the Suicide Act incompatible with Art 8 in relation to allowing assisted suicide

Question 64

Case concerned allowing assisted suciide in some circumstances. The decision was that the common law was not allowed or unable to play any part in furthering a right of assisted suicide in the UK
HELD:
The majority declined to declare the Suicide Act incompatible with Art 8 in relation to allowing assisted suicide

Answer 64

In Nicklinson; the Lords warned they they would use s.4 that way next time a suitable case arose which demonstrated a use of dialogue between the courts and Parliament through not using s.4
discuss case