Section 3 & 4: Human Rights & Acts of Parliament Flashcards
Lecture 7
Summarise what section 3 of the HRA says.
Obligation for courts to interpret legislation that’s compatible with HR (if possible)
- Who does s3 apply to? (putting legislation into effect)
- What does it apply to?
- Courts/anyone else interpreting the Act
- Applies to primary & secondary legislation (defined in s21(1) HRA)
What are the key issues arising for S3?
- NOT a strike down power; “ONLY” an interpretive power
- “Possible” interpretations only (so far as it is possible to do so)
What can we learn from the case of R v A (Complainant’s Sexual History) (No.2) [2002]
- s 41 YJCEA 1999 (“rape shield” law)
- Controversial issue of sexual evidence (i.e., previous sexual activities of complainant)
- Rights issue: Art.6(1) = fair trial
- Parliament said no unless behaviour was similar in situation {s 41(3)(c)}
What is Lord Steyn’s reasoning for fair trial discretion in R v A?
- “interpretative obligation … is a strong one … even if there is no ambiguity in the language”
- “section 3 requires the court to subordinate the niceties of the language”
What can we learn from the case of Re S and Re W (Care Orders)
- Children’s care system under Children Act 1989
- Inability for court to intervene if they thought the care plan had been breached
- Claimed violation of Art.8 rights of child
- COA used s3(1) to read into Act an ability for courts to set targets and intervene if not met
- Courts overturned COA (went too far)
What are some of the limits of s3?
- S3 is for interpretation only (not amendment)
- Avoid inappropriate legislating
- You should not contradict “fundamental features” of an Act/scheme
What can we learn from the case of Bellinger v Bellinger [2003]?
- Nullification of marriage between a trans woman and her husband (lack of legal recognition of transitioned status at the time)
- Issue: breached Art 8, Art 12, Art 14
- Held: s3 not used to correct violation of rights [link to Lord Hope and Lord Nicholl’s judgement]
What can we learn from the case of Ghaidan v Godlin-Mendoza?
- Same-sex couple lived for many years and tenant was dead (claimant wanted to take over tenancy)
- Courts held yes: person living with original tenant “as his or her wife or husband” (can be interpreted of couples living AS IF they were married)
Summarise what section 4 of the HRA says.
- Incompatibility to put into effect of AOP
- Issuing Declaration of Incompatibility (used only if they cannot fix an issue in s3)
- S4 is optional (power not obligation)
What can a declaration be made?
- Primary: court satisfied that provision is incompatible with the Convention right
- Secondary: court satisfied a piece of subordinate legislation is incompatible, and the relevant primary legislation prevents removal of incompatibility
What is the lack of legal effect in section 4?
- No strike down power - rights violating section will stay in force and in effect
- BUT govt power under s10 HRA is triggered [remedial orders]
Summarise what the “fast track” amendment is in the section 4
Govt can use secondary legislation to change act for fixing incompatibility (doesn’t need to go through usual process)
What are some example cases that use section 4?
- Dillion & Others [2024]
- Bellinger v Bellinger [2003]
- Smith v Scott [2007]
What is democratic dialogue?
- Separates “judicial review” from judicial supremacy or judges from having the final word
- Court/legislature discuss rights and how they should apply
- “Declaration” seen as the view/opinion of the courts (open to elected representatives to legitimately disagree with)
Provide some opinions on when section 4 should be used.
- Lord Nicholls: when desirable
- Lord Steyn: as a last resort
What can we learn from the case of Nicklinson [2014]?
- Issue: argued incompatibility of criminalisation of assisted suicide with Art.8 (private life)
- Majority decided not to issue DOI
- Reasons for refusal: controversial/sensitive issue & complex issues involved (s4 can be too firm?)
What DOI was made in The Sex Offenders Register case?
- Permanent obligation for registered sexual offenders to notify police of their residence and travel with no possibility of review
Was a DOI made in The Prisoner Voting Saga?
- 2007: Ban declared incompatible with Art 3
- 2011: HOC debated and supported ban
- 2012-14: recommendations and proposals for reform (no bill introduced)
- 2013: Courts reiterate violation, refuse s3, but see further s.4 as “pointless”
