The Human Rights Act 1998

Question 1

Briefly describe section 2.

Answer 1

Interpretation of Convention Rights - “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 …”

Question 2

Briefly describe section 3.

Answer 2

Interpretation of Domestic Legislation - “(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”

Question 3

Briefly describe section 4.

Answer 3

Application to Primary Legislation: 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.

Question 4

Briefly describe section 6.

Answer 4

Application of the Human Rights Act to Acts of Public Authorities - “(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Question 5

Briefly describe section 10.

Answer 5

Power to take Remedial Action after Declaration of Incompatibility (Fast Track legislation) - “(1) This section applies if—
(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right (…), or
(…)
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”

Question 6

Briefly describe section 19.

Answer 6

Ministerial Statements of Incompatibility - “(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.” – this is rare.

Question 7

Section 2: Why are UK courts and tribunals (“domestic”) required to take these judgments, decisions, declarations and opinions into account?

Answer 7

They are all potentially relevantto the correct interpretation of the Convention rights.

Question 8

Section 2: Explain the words ‘into account’.

Answer 8

It suggests ambiguity and flexibility, it left the Courts able to decide how far they will follow the jurisprudence.

Question 9

Section 2: How has the Supreme Court followed this section? What problems have arose?

Answer 9

Although courts and tribunals are not boundto follow the Strasbourg judgments and other decisions, the House of Lords/Supreme Court has repeatedly held that in the absence of special circumstances domestic courts should follow any ‘clear and constant jurisprudence’ of the ECtHR. However, the meaning of ‘clear and constant’ and ‘special circumstances’ needs clarifying. When considering whether the ‘clear and constant jurisprudence’ criterion is met, in an evolving area, a domestic court may also have to consider whether relatively elderly jurisprudence reflects the result that the ECtHR would still reach. This makes sense due to the living instrument doctrine.

Question 10

Section 2: When might it be appropriate for the UK to depart from the jurisprudence of the ECtHR?

Answer 10

It may be appropriate for the UK courts to depart from a decision of the ECtHR if the reasoning is unpersuasive or is based on a misunderstanding of domestic law or procedure, however the meaning of this is unclear.

Question 11

Section 2: What happens when the ECtHR declares a question to be within the national margin of appreciation?

Answer 11

Where the ECtHR has declared a question to be within the national margin of appreciation, the question falls to be decided by the national authorities, including the national courts, which may result in those courts appearing to go further than the ECtHR in their interpretation of the reach of a particular Convention right.

Question 12

Section 2: What is controversial about the section?

Answer 12

Some judges have suggested that the domestic courts should be more willing to depart from Strasbourg jurisprudence and give a lead to Europe as well as to be led. This is more controversial, they are willing to depart from clear jurisprudence if they thought it would encourage a dialogue with the ECtHR – would make them rethink their decision if domestic courts did not agree.

Question 13

Section 2: can the UK consider other jurisdiction judgments?

Answer 13

Domestic courts and tribunals may also be assisted by the judgments of the domestic courts of other jurisdictions, whether in relation to provisions of the Convention or in relation to other human rights instruments. Not only bound to consider ECtHR, they are also enabled to consider other jurisdiction, if the ECtHR’s jurisprudence is not clear or fully developed.

Question 14

State the development of the case law for Section 2.

Answer 14

1. R (Ullah) v Special Adjudicator (2004) - First decision of the UKHL interpreting S2. Lord Bingham comes out with the Ullah doctrine – starting point. In Ullah Lord Bingham takes the view that unless there are really special circumstances the should follow any clear and constant jurisprudence of Strasbourg.
2. R (Animal Defenders) v Culture Secretary (2008) - Lord Scott: ECtHR judgments must be taken into account, but the UK is not bound by them. Lord Bingham: Says we are incorporating international law into our domestic law, therefore we should follow Strasbourg.
   Lord Hale: agrees with Lord Bingham ‘I do not believe that, when Parliament gave us those novel and important powers, it was giving us the power to leap ahead of Strasbourg in our interpretation of the Convention rights. Nor do I believe that it was expecting us to lag behind.’
3. Re G (Adoption: Unmarried Couple) (2008) - Lord Hoffman suggests the human rights act and the ECHR just happen to coincide. However states there are good reasons for following the ECtHR’s jurisprudence. He also states section 2(1) of the 1998 Act allows for the possibility of a dialogue between Strasbourg and the courts of the United Kingdom over the meaning of an article of the Convention but makes this likely to be a rare occurrence.
4. R v Horncastle (2009) - Lord Phillips of Worth Matravers PSC: In some cases the ECtHR just gets it wrong in terms of what British law means. The Courts can then interpret the legislation differently and open a dialogue with Europe.
5. Rabone v Pennine Care NHS Trust (2012) - Lord Brown: when the ECtHR hasn’t spoken the British Courts have flexibility. If the Court hasn’t spoken then the domestic court has to decide – they cannot simply wait. In these case the domestic court should be trying to understand the trend of the case law of the European Court of Human Rights, and try and follow it.

Question 15

How has section 3 changed since the Human Rights Act?

Answer 15

Before the HRA you used the convention only when there was an ambiguity in the law, the legislature would be taken to have acted in accordance with the convention. After the HRA this was not the case, the legislature is taken to have acted in accordance with the convention all the time.

Question 16

State the key case law for Section 3.

Answer 16

1. R v A (2002) - Lord Steyn: interpretative obligation under section 3of the 1998 Act is a strong one. It applies even if there is no ambiguity. it will sometimes be necessary to adopt an interpretation which linguistically may appear strained.
2. Ghaidan v Godin-Mendoza (2004)
3. R (Wilkinson) v IRC (2005) - Sets some limits. The distinction between interpretation and legislation. The reasonable reader is the Court – it is not what Parliament really meant, it is what a reasonable reader believes they might have meant.

Question 17

Under what two conditions does section 6 not apply?

Answer 17

(2) (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

Question 18

What is classed a public authority for the purposes of section 6?

Answer 18

(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
The definition of ‘functions of a public nature’ is not given in statute – it is up for interpretation.
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

Question 19

Define ‘an act’ for purposes of section 6.

Answer 19

(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 20

What does Re G (Adoption: Unmarried Couple) (2008) say which is useful for section 6?

Answer 20

“The courts are free simply to disregard subordinate legislation which cannot be interpreted or given effect in a way which is compatible with the Convention rights. “ This creates a clear distinction between primary and secondary legislation.

Question 21

Is section 4 commonly used?

Answer 21

No it is often a last resort because a Convention-compliant interpretation undersection 3 HRA is the primary approach favoured..

Question 22

What are the consequences of section 4?

Answer 22

The declaration has no legal consequences, purely political consequences – the legislation can be amended by Parliament quicker and it signals to the ECtHR that something is going wrong. This will help the argument if it goes to the ECtHR, whose remedies do have legal consequences.

Question 23

What is the point of Section 19?

Answer 23

The purpose is to alert Parliament to whether the minister has received civil service advice that means that the Minister cannot make a statement of compatibility. The second purpose is that highlights the convention into the legislation before it is passed. This is political, not legal. - the Courts recognised its importance in R (Animal Defenders) v Culture Secretary (2008), however it is not binding.

Question 24

What is the constitutional balance struck by the Human Rights Act 1998?

Answer 24

The Human Rights Act 1998 is a constitutional statute which means that it is enacted by the UK Parliament, and therefore can also be repealed by them. This upholds the fundamental principle of parliamentary sovereignty as it leaves parliament in control.
The ability for the courts to interpret legislation also helps to maintain the constitutional balance. By Parliament enacting the Human Rights Act they have agreed to abide by most of the provisions in the ECHR. Therefore, if a piece of legislation is vague and has the potential to breach the Human Rights Act, the courts can interpret it differently so that it doesn’t. This helps to maintain the separation of powers as the courts are reviewing Parliament’s legislation and ensuring they are abiding to what they have agreed to abide by. However, it could be argued that the judiciary are going too far and are legislating as the interpretation could be very different from Parliament’s initial intention.
Finally, the ability of the courts to issue a declaration of incompatibility helps maintain the balance. If a piece of legislation is contrary to the Act the Courts have the ability to send the provision back to Parliament to allow them to debate on whether the legislation breaches the act and whether it should be changed. This once again upholds parliamentary sovereignty as it does not allow for the courts to change or strike down a piece of legislation which is explicitly in conflict with the Human Rights Act, but gives Parliament the power to make the changes itself.

Question 25

What is section 7 of the HRA?

Answer 25

They must be a victim to bring proceedings.

Question 26

What is section 8 of the HRA?

Answer 26

Quashing and Damages are the judicial remedies for success.

Question 27

What is ‘primary legislation’ for the purposes of the Human Rights Act 1998, and what is ‘subordinate’ legislation?

Answer 27

Section 21: Primary legislation – acts of Parliament, Secondary legislation – Acts of the devolved and legislation made by Ministers.

Question 28

Summarise Ghaidan v Godin-Mendoza (2004)

Answer 28

From 1983, the defendant, Juan Godin-Mendoza (JGM) and his homosexual partner Hugh Wallwyn-James (HWJ) shared a flat which was subject to a statutory tenancy granted upon HWJ under theRent Act 1977 (RA).On HWJ's death in 2001, the landlord, Ahmad Ghaidan brought proceedings against JGM in the County Court, claiming possession of the flat. 
The meaning of spouse under Schedule 1, para 2 of the1977 Rent Act(primary legislation) is a person living with the original tenant as his or her wife or husband, regardless of marriage (the common law definition of husband and wife). The spouse of the deceased could succeed in a statutory tenancy if living in the property with the deceased previous to his death. The defendant, JGM claimed that the meaning of spouse in the1977 Actapplied to a homosexual couple and that interpreting the1977 Actto apply only to heterosexual couples was discriminatory within the meaning of theHuman Rights Act 1998, Schedule 1, Part I, Articles 8 and 14.
In Fitzpatrick it was held that the Rent Act does not include same sex couples. However, since this case the Human Rights Act had come into force.
Para 2(2) of theRA 1977had to be construed as including persons in a same-sex relationship. The words 'as his or her wife of husband' were to be read to mean 'as if they were his or her wife or husband' in order to comply with Article 8, and protect the degree of security of tenure enjoyed by a person. Article 8 aims to protect the family household, which was the purpose of the Rent Act. This is a broad interpretation. Under Article 14ECHR, discrimination because of sexual orientation was impermissible. It was the positive obligation of the state to promote the values protected by Article 8 affecting the home by bringing national legislation within its ambit.
Millet, in his dissenting judgment, said that the Court is not interpreting, they are legislating and giving the Act a different meaning to what Parliament intended.

Question 29

Summarise Northern Ireland Human Rights Commission’s Application (2015).

Answer 29

The applicant is the Human Rights Commission which is a quango (statutory body).
Abortion is illegal in Northern Ireland, those have abortions in Northern Ireland can be subject to criminal prosecution. S 58 and 59 OAPA 1861 (NI) and S 25 Criminal Justice Act 1945 (NI).
The High Court of Northern Ireland found that the Northern Irish law regulating abortion was incompatible with Article 8 of the ECHR. Was the incompatibility justified? The Court held it was definitely disproportionate for foetus fatal abnormality (cannot live outside the womb) and victims of sexual crime or rape.
Judge Horner found that the foetus does not have a right to life under Article 2 ECHR; that there is no domestic consensus on issues relating to abortion in Northern Ireland; and that permitting a woman to travel to England to receive an abortion does not mitigate against the harshness of the regulations in place.
The remedy granted was that there was no compatible interpretation and therefore, a declaration of incompatibility was declared.
However, this was overturned on appeal, and the case is currently waiting to be heard by the Supreme Court.