The HRA (L29-31)

Question 1

What are the key provisions of the HRA?

Answer 1

Section 1: The Convention Rights.
Section 2: Interpretation of Convention rights.
Section 3: Interpretation of legislation.
Section 4: Declaration of incompatibility.
Section 10: Power to take remedial action.
Section 19: Statements of compatibility.
Section 6: Acts of public authorities.
Section 8: Judicial remedies.

Question 2

What is section 1 of the HRA?

Answer 2

Section 1: The Convention Rights.
(1) In this Act “the Convention rights” means the rights and fundamental freedoms set out in –
(a) Articles 2 to 12 of the Convention,
(b) Articles 1 to 3 of the First Protocol, and
(c) Article 1 of the Thirteenth Protocol.

Question 3

What are Articles 1-3 of the First Protocol?

Answer 3

Property.
Education.
Free and fair elections.

Question 4

What is Article 1 of the Thirteenth Protocol?

Answer 4

Abolition of the death penalty.

Question 5

What is section 2 of the HRA?

Answer 5

Section 2: Interpretation of Convention rights.
2(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any –
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

Question 6

What questions are raised by s2 of the HRA?

Answer 6

How closely should UK courts follow the Strasbourg court?
When should UK courts not follow the Strasbourg court?
Should UK courts ever go further than the Strasbourg court?

Question 7

What is section 3 of the HRA?

Answer 7

Section 3: Interpretation of legislation.
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect which is compatible with the Convention rights.
(2) This section –
(a) applies to primary legislation and subordinate legislation whenever enacted.

Question 8

What questions are raised by s3 of the HRA?

Answer 8

What does “possible” mean?
Is there a stronger power of interpretation than the common law (principle of legality) presumption of statutory interpretation?

Question 9

What is section 4 of the HRA?

Answer 9

Section 4: Declaration of incompatibility.
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied –
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding and possibility of revocation) the primary legislation concerned prevents removal of incompatibility,
it may make a declaration of that incompatibility.

(6) A declaration under this section (“a declaration of incompatibility”) –
(a) does not affect the validity, continuiting operation or enforcement of this provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.

Question 10

What questions are raised by s4 of the HRA?

Answer 10

When should a court issue a declaration of incompatibility?

Note: because it does not affect the validity, parliamentary sovereignty = untouched.

Question 11

What is section 10 of the HRA?

Answer 11

Section 10: Power to take remedial action.
(1) This section applies if –
(a) incompatible under s4, if an appeal lies – (i) no intention to appeal; (ii) appeal time expired; or (iii) appeal brought but not granted;
OR…
(b) it appears to a Minister of the Crown or Her Majesty in Council that, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention.

(2) Minister may make amendments to remove incompatibility.

(3) If, in the case of subordinate legislation, a Minister of the Crown considers –
(a) necessary to amend the primary legislation under which the subordinate legislation in question was made, in order to enable the incompatibility to be removed, and
(b) that there are compelling reasons for doing so.

Question 12

What is s19 of the HRA?

Answer 12

Section 19: Statements of compatibility.
(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—
(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or
(b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.
(2)The statement must be in writing and be published in such manner as the Minister making it considers appropriate.

Question 13

What is s6 of the HRA?

Answer 13

Section 6: Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if –
(a) The authority could not have acted differently; or
(b) If cannot be read or given effect in a way which is incompatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section “public authority” includes –
(a) a court or tribunal, and (b) any person certain of whose functions are functions of public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(6) “An act” includes a failure to act but does not include a failure to –
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order.

Question 14

What is s8 of the HRA?

Answer 14

Section 8: Judicial remedies.
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) Damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) consequences of any decision in respect of that act, court is satisfied award is necessary to afford just satisfaction to the person in whose favour it is made.

(6) In this section—
“court” includes a tribunal; “damages” means damages for an unlawful act of a public authority; and “unlawful” means unlawful under section 6(1).

Question 15

What is to be noted about s8 of the HRA?

Answer 15

These remedies apply to unlawful acts of public authorities (not to Acts of Parliament).

Question 16

What does the case of R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46 concern?

Answer 16

Case concerns the statutory power of the Home Secretary to decide on the term of minimum imprisonment/early release of mandatory life sentence prisoners (i.e., convicted murderers).

The Home Secretary’s power to do so derived from section 29 of the Crime (Sentences) Act 1997

Question 17

What was decided about the Home Secretary’s power in the case of R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46?

Answer 17

This power (as it would normally be interpreted) was found to be a violation A6(1) (right to a fair trial) – sentencing is part of the right to a fair trial and should be imposed by an “independent and impartial tribunal” (a court). The Home Secretary is not an independent and impartial tribunal and therefore involvement in this decision is a violation of the A6(1) right.

Question 18

What was the issue to be decided in the case of R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46?

Answer 18

Is it possible, using s3 of HRA 1998, to interpret s29 of the Crime (Sentences) Act 1997 to exclude the Home Secretary from taking part in such a decision?

Question 19

What was the decision in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46?

Answer 19

Lord Hutton: “It is clear from the wording of section 29 of the Crime (Sentences) Act 1997 that Parliament intended that the decisions… were to be taken by the Home Secretary and not by the judiciary or by the Parole Board” [para. 80].

Lord Bingham: “To read section 29 as precluding participation by the Home Secretary, if it were possible to do so, would not be judicial interpretation but judicial vandalism” [para. 30].

Therefore, a s4 “declaration of incompatibility” is made.

Question 20

What was the background for the case of Ghaidan v Godin-Mendoza [2004] UKHL 30?

Answer 20

Schedule 1, paragraph 2, of the Rent Act 1977.

Ordinary statutory interpretation of this legislation finds that “surviving spouse” does not include surviving same-sex partner (so Godin-Mendoza would not be entitled to stay in the flat as a “statutory tenant”), per Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27.

Question 21

What is the first issue in the case of Ghaidan v Godin-Mendoza [2004] UKHL 30?

Answer 21

Does the Rent Act 1977, as interpreted, unjustifiably discriminate on the ground of sexual orientation?

Question 22

What was the decision on the first issue in Ghaidan v Godin-Mendoza [2004] UKHL 30?

Answer 22

Yes, the Law Lords all agree on this issue.

Per Lord Nichols (for the majority):
What is the rationale for the law treating the survivor of a married couple and a cohabiting opposite-sex couple the same way?

“The rationale seems to be that, for the purposes of security of tenure, the survivor of such couples should be regarded as having a special claim to be treated in much the same way as the original tenant. The two of them made their home together in the house in question, and their security of tenure in the house should not depend upon which of them dies first”.

Question 23

What was the government’s argument to justify not treating same-sex couples the same as heterosexual couples in Ghaidan v Godin-Mendoza [2004] UKHL 30?

Answer 23

The Gov argued that the rationale here was “to provide protection for the traditional family”, and that this rationale does not extend to same sex partnerships because same-sex partners are “unable to have children with each other, and there is a reduced likelihood of children being a part of such a household”.

HELD: “A homosexual couple, as much as a heterosexual couple, share each other’s life and make their home together. They have an equivalent relationship. There is no rational or fair ground for distinguishing the one couple from the other in this context.”

Question 24

What was the second issue to be decided in the case of Ghaidan v Godin-Mendoza [2004] UKHL 30?

Answer 24

If yes (discrimination), then does s3 of the HRA require that the Rent Act 1977 be reinterpreted to mean that “surviving spouse” includes a surviving same-sex partner?

Question 25

What did Lord Nicholls say re the second issue in Ghaidan v Godin-Mendoza [2004] UKHL 30?

Answer 25

Lord Nicholls says Parliament could not have intended s. 3 to depend on ambiguity.

Parliament intended that the courts might use section 3 “to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant… to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect, of primary and secondary legislation.”

Question 26

What did the court hold to be the extent of s3 application in Ghaidan v Godin-Mendoza [2004] UKHL 30?

Answer 26

“Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation… Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed”.

Question 27

How did the court apply its approach of s3 application to the case at hand in Ghaidan v Godin-Mendoza [2004] UKHL 30?

Answer 27

“Paragraph 2 of Schedule 1 to the Rent Act 1977 is unambiguous”, but s3 of the HRA requires the paragraph 2 to be read so that “cohabiting heterosexual couples and cohabiting homosexual couples would be treated alike for the purposes of succession as a statutory tenant. This would eliminate the discriminatory effect of paragraph 2 and would do so consistently with the social policy underlying paragraph 2.”

Question 28

In summary, what did Lord Millet argue in his dissent on the second issue (interpretation) in Ghaidan v Godin-Mendoza [2004] UKHL 30?

Answer 28

A man cannot have a husband; and a woman cannot have a wife. The paragraph is gender specific.

Persons of the same sex may share many of the features of a de facto marriage. May be “marriage-like”; but it is not even de facto a marriage, because it lacks the defining feature of marriage.

Persons cannot be or be treated as married to each other or live together as husband and wife unless they are of the opposite sex.

Lord Millet says the extension of these rights to same-sex couples is a matter of social policy, for Parliament not for the courts. Section 4 (not section 3) is therefore the correct provision of the HRA 1998 to deal with this case.

Question 29

What was the background to the case of R (Nicklinson) v Ministry of Justice [2014] UKSC 38?

Answer 29

Several men challenged the law prohibiting assisted suicide, claiming a violation of their rights under A8 (Right to respect for private and family life).

The ECtHR had already decided that – in general - assisted dying is an issue that falls within a wide “margin of appreciation”.

So how then should the UK courts deal with the A8 claim?

Question 30

What were the issues to be decided in the case of R (Nicklinson) v Ministry of Justice [2014] UKSC 38?

Answer 30

Does the law in question fall within this wide margin of appreciation?

If so, does the court have authority to make a s4 declaration of incompatibility?

If the court does have that authority, would it be institutionally appropriate to make a s4 declaration of incompatibility?

If it would be institutionally appropriate for a court to make such an order is this a violation of A8?

Question 31

What was decided on whether it was appropriate for the court to make a s4 declaration in the case of R (Nicklinson) v Ministry of Justice [2014] UKSC 38?

Answer 31

A majority of 7 ruled that no declaration of incompatibility (‘DOI’) should be granted under HRA s.4 (Lady Hale and Lord Kerr dissented).
But the majority is split according to two views about the use of s4.

1)  Four think no DOI should be granted because the issue is the type that ought to be left for Parliament to decide (Lord Sumption writes the lead judgment this group).

2)  And three think no DOI because the timing is wrong (Lord Neuberger writes the lead judgment for this group).

The dissent (Lady Hale and Lord Kerr) think a s4 declaration is required (Lady Hale writes the lead judgment for the dissent).

Question 32

What did Lady Hale state about whether there was a s8 violation in her dissent in R (Nicklinson) v Ministry of Justice [2014] UKSC 38?

Answer 32

“301. Why then is the present law incompatible? Not because it contains a general prohibition on assisting or encouraging suicide, but because it fails to admit of any exceptions”.

“317. To the extent that the current universal prohibition prevents those who would qualify under such a procedure from securing the help they need, I consider that it is a disproportionate interference with their right to choose the time and manner of their deaths. It goes much further than is necessary to fulfil its stated aim of protecting the vulnerable. It fails to strike a fair balance between the rights of those who have freely chosen to commit suicide but are unable to do so without some assistance and the interests of the community as a whole

Question 33

What did Lady Hale conclude in her dissent about whether a s4 declaration should be made in the case of R (Nicklinson) v Ministry of Justice [2014] UKSC 38?

Answer 33

“300… I have reached the firm conclusion that our law is not compatible with the Convention rights. Having reached that conclusion, I see little to be gained, and much to be lost, by refraining from making a declaration of incompatibility. Parliament is then free to cure that incompatibility, either by a remedial order under s10 of the Act or … by AP, or to do nothing. It may do nothing, either because it does not share our view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative”.

Question 34

What did Lord Sumption conclude in the case of R (Nicklinson) v Ministry of Justice [2014] UKSC 38?

Answer 34

“The UK may make choices within the margin of appreciation allowed to it by the Convention through whichever is its appropriate constitutional organ. That will depend on its own principles of constitutional law…
The question whether relaxing or qualifying the current absolute prohibition on assisted suicide would involve unacceptable risks to vulnerable people is in my view a classic example of the kind of issue which should be decided by Parliament”.

Question 35

What were the reasons which Lord Sumption cited for his conclusion in R (Nicklinson) v Ministry of Justice [2014] UKSC 38?

Answer 35

1. The issue involves “a choice between two fundamental but mutually inconsistent moral values, upon which there is at present no consensus in our society. Such choices are inherently legislative in nature”.
2. Parliament has made the relevant choice. “It passed the Suicide Act in 1961, and as recently as 2009 amended section 2 without altering the principle. In recent years there have been a number of bills to decriminalise assistance to suicide, at least in part, but none has been passed into law”.
3. The parliamentary process is “a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas. …Parliament can legitimately act on an instinctive judgment about what the facts are likely to be in a case where the evidence is inconclusive or slight”.

Question 36

Why did Lord Neuberger say that he thought it MIGHT be appropriate for a s4 declaration to be made in R (Nicklinson) v Ministry of Justice [2014] UKSC 38?

Answer 36

Grave interference with A8; justification and rational connection for law is unclear; prosecution policy already seems to tolerate assisted dying; no compelling reason to leave this issue entirely up to Parliament to settle.

Question 37

Why did Lord Neuberger not think that it was right for a s4 declaration to be made in the particular case of R (Nicklinson) v Ministry of Justice [2014] UKSC 38?

Answer 37

“In my opinion, before making such a declaration, we should accord Parliament the opportunity of considering whether to amend section 2 so as to enable Applicants, and, quite possibly others, to be assisted in ending their lives, subject of course to such regulations and other protective features as Parliament thinks appropriate, in the light of what may be said to be the provisional views of this Court, as set out in our judgments in these appeals”.

“Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made.”

Question 38

What was the issue in the case of R (Ullah) v Special Adjudicator [2004] UKHL 26?

Answer 38

Is it a violation of A3 to deport someone to another country where there is a risk that some other right (in this case, A9 “freedom of religion”) might be violated?

Question 39

What did Lord Bingham state about following Strasbourg jurisprudence in the case of R (Ullah) v Special Adjudicator [2004] UKHL 26?

Answer 39

“While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court.”

“Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law.”

“The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.” [para. 20]

Question 40

Applying the ‘mirror principle’, what did Lord Bingham conclude in the case of R (Ullah) v Special Adjudicator [2004] UKHL 26?

Answer 40

Lord Bingham finds that “Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion” but “it makes it quite clear that successful reliance demands presentation of a very strong case”.
These cases were not strong enough.

Question 41

What was the issue in the case of R v Horncastle [2009] UKSC 14?

Answer 41

Notwithstanding the ECtHR judgements, does a conviction based “solely or to a decisive extent” on the statement of a witness - whom the defendant has had no chance of cross-examining - necessarily infringe the defendant’s right to a fair trial under articles 6(1) and 6(3)(d)?

Question 42

What did Lord Phillips conclude (for unanimous UKSC) in R v Horncastle [2009] UKSC 14?

Answer 42

“The requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case” [para. 11]

Question 43

Why did the UKSC decide not to follow the ECtHR judgement in the case of R v Horncastle [2009] UKSC 14?

Answer 43

ECtHR did not fully appreciate the safeguards under UK law.

Parliament had enacted exceptions to the hearsay rule against background of common law safeguards that rendered the ‘sole or decisive’ rule unnecessary;

The Strasbourg court had recognised that exceptions to A6(3)(d) were required in the interests of justice but its jurisprudence about when or what exceptions were justified lacked clarity and did not take account of differences between common law and continental jurisdictions;

The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure.
In almost all cases English law would reach the same result any way.

Question 44

What was the issue in the case of R (on the application of AB (Appellant) v Secretary of State for Justice (Respondent) [2021] UKSC 28?

Answer 44

Should the UK courts go further than ECtHR and find that the solitary confinement a person under 18 is always a violation of A3 or will be unless “exceptional circumstances” make such treatment “strictly necessary”.?

Question 45

What was the decision in R (on the application of AB (Appellant) v Secretary of State for Justice (Respondent) [2021] UKSC 28?

Answer 45

UKSC says no. It is not the task of domestic courts, under the HRA 1998, to introduce innovations in Convention rights that are not already available at the European Court of Human Rights.

Nor should UK courts try to anticipate what new principles the ECtHR might adopt response to other developments (e.g., UN Convention on Rights of the Child).

Question 46

What did Lord Nichols say on the matter of proportionality analysis in Ghaidan v Godin-Mendoza?

Answer 46

“Such a difference in treatment can be justified only if it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. …Here, the difference in treatment falls at the first hurdle: the absence of a legitimate aim” [para. 18].

Question 47

What did Lady Hale say on the matter of proportionality analysis in Nicklinson?

Answer 47

“As is well known, to be justified, such interference has to be (i) for a legitimate aim which is important enough to justify interfering with a fundamental right, (ii) rationally connected to achieving that aim, (iii) no more than reasonably necessary to achieve it, and (iv) in the light of this, striking a fair balance between the rights of the individual and the interests of the community.

“Is it then reasonably necessary to prohibit helping everyone who might want to end their own lives in order to protect those whom we regard as vulnerable to undue pressures to do so?

…it is difficult to accept that it is sufficient to justify a universal ban, a ban which forces people like Mr Nicklinson, Mr Lamb and Martin to stay alive, not for the sake of protecting themselves, but for the sake of protecting other people” [paras 312-313].

NOTE: much more structured and rational than Lord Nichols in G v GM.

Question 48

What are some UK cases developing the law of proportionality analysis?

Answer 48

De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69.

Huang v Secretary of State for the Home Department [2007] 2 AC 167.

Quila & Anor, R (on the application of) v Secretary of State for the Home Department [2011] UKSC 45.

Question 49

What was the issue in the case of Bank Mellat v Her Majesty’s Treasury (No.2) [2013] UKSC 39?

Answer 49

Restrictions placed on Bank in the interest of counter-terrorism.

Bank Mellat claimed that the Treasury’s order had violated Art 1 of the First Protocol to the Convention (right to property), as incorporated by the HRA 1998, and was therefore unlawful pursuant to HRA s6.

Is the interference with Bank Mellat’s right’s a proportionate interference for the sake of a legitimate objective?

Question 50

What is the 4-part test adopted for proportionality analysis in the case of Bank Mellat?

Answer 50

1. Whether the measure’s objective is sufficiently important to justify the limitation of a fundamental right;
2. Whether it is rationally connected to the objective;
3. Whether a less intrusive measure could have been used; and
4. Whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.

Question 51

How was the 4-part test applied in Bank Mellat?

Answer 51

1. Is there a sufficiently important objective (a legitimate aim)?
   - Yes. Restricting nuclear proliferation is sufficiently important.
2. Is the measure rationally connected to the objective?
   - Yes. It is not irrational to think restricting this bank’s business might help further the objective.
3. Is this the least intrusive measure that could have been used?
   - No. How can it be “necessary to eliminate Bank Mellat’s business in London in order to achieve the objective of the statute, if the same objective can be sufficiently achieved in the case of comparable banks by requiring them to observe financial sanctions and relevant risk warnings?”.
4. Whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.
   - No. The limitation on Bank Mellat’s rights are “disproportionate to any contribution which it could rationally be expected to make to its objective”.

Question 52

How has the HRA 1998 changed the way rights are protected in the UK?

Answer 52

Incorporation of Convention Rights into domestic law.
s3, HRA (changes how courts interpret legislation).
s4, HRA (allows declarations of incompatibility).
s6, HRA (introduces new Convention rights ground of judicial review of acts of public authorities).
s10, HRA (remedial orders fix legislation incompatible with ECHR).
s19, HRA (compatibility must be considered in legislative process).
s2, HRA (requires UK courts to take account of Strasbourg case law).
Proportionality analysis may – in some cases at least – be a more a demanding standard than common law judicial review.

Question 53

Comparing the common law “Principle of Legality” with s3, HRA 1998.

Answer 53

Common law “principle of legality” (see Leech, Pierson, and Simms).
- “Principle of legality” requires courts to presume that Parliament intends that its legislation respects certain fundamental (constitutional) rights. Parliament can still make laws that violate those rights, but to do so it must make that intention crystal clear, by express words (or maybe by necessary implication).

Section 3 of the HRA 1998 (see Ghaidan v Godin-Mendoza).
- s3 requires courts interpret legislation as compatible with Convention rights, where possible. Parliament can still make laws incompatible with Convention rights, but courts only follow that intention where this incompatibility is a fundamental feature or purpose of legislation.