Section 3 and Section 4 HRA Flashcards
Section 4
Section 4 - Declaration of Incompatibility
(2) if the court is satisfied that the provision is incompatible with a Conservation right, it MAY make a DECLARATION OF THAT INCOMPATIBILITY
(4) if the court is satisfied:
(a) that the provision is incompatible with a Convention right,
(b) that the primary legislation concerned prevents the removal of the incompatibility
(6) 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
What happens when a declaration of incompatibility is issued?
- When a declaration of incompatibility is issued, it triggers a power (not an obligation) of the minister, if compelling reasons are found, to make changes to that legislation to remove the incompatibility under section 10 HRA 1998.
- Alternatively the the offending legislation can be changed through the ordinary legislative procedure.
- Parliamentary sovereignty is retained therefore there is not requirement to change the legislation, e.g. Representation of the People Act, including prisoner voting.
What is the alturnative to making a declaration of incompatibility via section 4?
“Reading down” the legislation via the section 3 process
Section 3
Section 3 - Interpretation of Legislation
(1) SO FAR AS 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.
(2) this section applies
(a) to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legalisation
What is an example of the Courts “reading down” legislation via s.3?
R (Middleton) v. HM [2007] is an example of how the court will read down legislation via s.3 of the HRA. In this case the courts were asked to consider if the contents of the Coroners Act was contrary to a right to life. When considering the wording of the act, the court read HOW the deceased died, to mean HOW AND IN WHAT CIRCUMSTANCES.
To what extent will the courts read down legislation under section 3?
- Lord Woolf in the case of Poplar Housing v. Donoghue [2001] stated that “if it is necessary in order to obtain compliance to radically alter the effect of the legislation this will be an indication that more than interpretation is involved”, he argues that s.3 changes the judicial role in terms of interpretation and therefore is not a limit of parliaments intention.
- Lord Nicholls in the case of Re S; Re W [2002], who states that the use of s.3 is obligatory by the court, and “it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of parliament is likely to have crossed the boundary between interpretation and amendment”.
What are some examples of the limits of s.3?
R v. A [2001] and Ghaiden v. Godin- Mendoza [2004]
R v. A [2001]
- an example of the courts interpreting legislation through s.3 is a differing way to the intention of parliament.
- the questioning of victims about their sexual history in rape trials, and its conflict with article 6 rights.
- Lord Steyn argues that it was possible to re-read legislation to be Convention complaint despite its appearance of being linguistically strained.
- Lord Hope made a strong dissenting judgement, arguing that this should not be possible.
- Stone (2016), this judgement as a complete departure from Parliament, and criticised the decision.
- Kavanagh argues that the reason for criticism of this judgement was its impact of female victims, and thereby he courts have developed no new powers of interpretation through the HRA,
- Dickson disagrees stating that this decision by the court was a direct countermand to parliament.
Ghaiden v. Godin-Mendoza [2004]
- This case concerned the interpretation of husband and wife to include same sex couples in terms of deceased tenancies.
- Lord Nicholls argues that the intention of parliament in enacting s.3 should be balance with the intention of parliament when enacting the disputed legislation.
- He argues that the underlying trust of the legislation should be considered, if the widened interpretation is goes against this, then a s.4 declaration of incompatibility should be issued.
- Lord Steyn pushes for a bold approach by the court in terms of s.3, he states that “s.3 is the principal remedial measure, and s.4 should be a measure of last resort”.
- This could be because of the ability of parliament to re-legislate over the ruling of the court.
- Lord Millett dissented in this case, he agreed with the reasoning about s.3, however disagreed with the overall trust of the legislation on the facts of the case.
What are examples of the courts recognition of the limits of s.3?
- R (Anderson) v. SofS Home Department [2002], legislation allowed the Sectary of state extensive power in realising prisoners for life, contrary to article 6. In this case the court considered that the underlying thrust of the legislation was incompatible with Article 6, therefore a declaration was made. In this case Lord Bingham noted the difference between Judaical interpretation and judicial vandalism, and that in this case it would be judicial vandalism.
- Bellinger v. Bellinger [2003], concerned the Matrimonial Clauses Act in allowing a Transgender women to marry a man. The court held in this case that it was a question for Parliament to consider, and so made a declaration.
What are the potential reforms for s.3 and s.4 of the HRA 1998?
A suggested improvement of the law in this area could be to re-word s.3 to read MAY as opposed to MUST. This would give Parliament more power, and uphold parliamentary sovereignty which is an ever-present criticism on the HRA.
Leigh and Mastermann (2015)
Masterman and Leigh (2015) highlight that s.3 and s.4 echo the separation of powers, and the dividing line reflects the separation of their powers.
Young (2011)
Judiciary is independent from political pressures therefore it better placed to rule on rights based issues - link with with the majoritarian argument made by O’Cinnade (2015)
