The Human Rights Act Mechanism

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The Human Rights Act Mechanism

• Section 4 of the Human Rights Act 1998

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Section 4 of the HRA 1998

• The meaning and content of Section 4
• The role of domestic courts
• Case Law
• Interplay between Section 3 and Section 4 of the
  Human Rights Act 1998

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1. The meaning and content of Section 4

• Section 4 declaration of incompatibility
• Section 5 right of the Crown to intervene in the
  proceedings
• Section 10 Power to take remedial action (see
  also Schedule 2 on remedial orders).

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• Section 4 (6) (a) of the HRA 1998 a declaration
  of incompatibility does not affect the validity,
  continuing operation or enforcement of the
  provision in respect of which it is given.
• The offending Act still remains operative.
  Professor Gearty a declaration of
  incompatibility is politically potent but
  legally irrelevant.

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• R v A (No 2) (2001), Lord Steyn a declaration
  of incompatibility is a measure of last resort
  which must be avoided unless it is plainly
  impossible to do so.

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2. The role of domestic courts

• Wilson v Secretary of State for Trade and
  Industry (2003). Lord Nicholls This new role is
  fundamentally different from interpreting and
  applying legislation. The courts are now required
  to evaluate the effect of primary legislation in
  terms of Convention rights and, where
  appropriate, make a formal declaration of
  incompatibility. In carrying out this evaluation
  the court has to compare the effect of the
  legislation with the Convention right. If the
  legislation impinges upon a Convention right the
  court must then compare the policy objective of
  the legislation with the policy objective which
  under the Convention may justify a prima facie
  infringement of the Convention right.

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• Resort to Hansard courts must be careful not to
  treat the ministerial or other statement as
  indicative of the objective intention of
  Parliament. Nor should the courts give a
  ministerial statement, whether made inside or
  outside Parliament, determinative weight. It
  should not be supposed that members necessarily
  agreed with the ministers reasoning or his
  conclusions. Wilson v Secretary of State for
  Trade and Industry (2003).

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• The proportionality of a statutory measure is
  not to be judged by the quality of the reasons
  advanced in support of it in the course of
  parliamentary debate, or by the subjective state
  of mind of individual ministers or other members
  The court is called upon to evaluate the
  proportionality of the legislation, not the
  adequacy of the ministers exploration of the
  policy options or his explanations to
  Parliament. House of Lords, Wilson v Secretary
  of State for Trade and Industry (2003).

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3. Case Law

• R v Secretary of State for the Home Department,
  ex parte Anderson (2002), on sentencing and on
  the reference of cases to the parole board.
  Section 29 of the Crime (sentences) Act 1997) was
  declared incompatible with Article 6 of the ECHR.
  
• Bellinger v Bellinger (2003), on marriage of
  transsexuals. Section 11 (c ) of the Matrimonial
  Causes Act 1973 was declared incompatible with
  Articles 8 and 12 of the ECHR.

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• A v Secretary of State for the Home Department
  (2004), on the detention of suspected
  international terrorists that discriminated on
  the ground of nationality or immigration status.
  Section 23 of the Anti-Terrorism Crime and
  Security Act 2001 was declared incompatible with
  Articles 5 and 14 of the ECHR.

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• R (on the application of H) v Mental Health
  Review Tribunal, North East London Region
  (2001), on the burden of proof placed on the
  patient. Section 73 of the Mental Health Act 1983
  was incompatible with Article 5 (1) and Article 5
  (4) of the ECHR.
• D v Secretary of State for the Home Department
  (2002), on the right to apply to the Parole
  Board. Section 74 of the Mental Health Act 1983
  was declared incompatible with Article 8 of the
  ECHR.

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• International Transport Roth GmbH v Secretary of
  State for the Home Department (2002) on
  clandestine entrants. Section 32 of the
  Immigration and Asylum Act 1999 was declared
  incompatible with Article 6 and Article 1 of
  Protocol 1.

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• R (on the application of Morris) v Westminster
  City Council (2004). The Administrative Court
  found that Section 185 (4) of the Housing Act
  1996 could not be read compatibly with Article 14
  of the ECHR and thus made a declaration of
  incompatibility.

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4. Interplay between Section 3 and Section 4 of
the HRA 1998

• Priority is given to the use of Section 3
  Ghaidan v Godin-Mendoza (2002), the Court of
  Appeal used section 3 to interpret the words
  living together as husband and wife to mean as
  if they were living together as husband and wife
  thus allowing the Rent Act 1977 to cover all
  non-marital stable relationships. This avoided
  the need to declare the Rent Act 1977
  incompatible with Article 14 of the ECHR.

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• The limits of section 3 The use of section 4 R
  (Hooper) v Secretary of State for Work and
  Pensions (2002), the provisions of the Social
  Security (Contributions and Benefits) Act 1992
  relating to widows could not be interpreted
  under section 3 so as to include widowers. They
  were thus declared incompatible with Articles 8
  and 14 of the ECHR.

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• R (on the application of Rusbridger) v Attorney
  General (2003), Lord Walker Sections 3 and 4 of
  the HRA 1998 are intended to promote and protect
  human rights in a practical way, not to be an
  instrument by which the courts can chivvy
  Parliament into spring-cleaning the statute book,
  perhaps to the detriment of more important
  legislation. Such a spring-cleaning process might
  have some symbolic significance but I can see no
  other practical purpose which this litigation
  would achieve.

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5. Section 10 of the HRA 1998Power to take
remedial orders

• Section 10 Fast-track procedure
• Schedule 2 Emergency procedure