Critically assess how sections 3 and 4 of the Human Rights Act 1998 have been interpreted and applied by UK courts. Consider, in particular, whether the Human Rights Act 1998 has changed the nature and limits of the interpretative process.

1. Critically assess how sections 3 and 4 of the Human Rights Act 1998 have been interpreted and applied by UK courts. Consider, in particular, whether the Human Rights Act 1998 has changed the nature and limits of the interpretative process.

How Section 3 has been interpreted and applied by UK Courts

How Section 4 has been interpreted and applied by UK Courts

Has the HRA changed the nature and limits of the interpretative process of the ECHR

consider international authority?

consider rule of law?

with each point about s.3/s.4 consider how this has changed interpretative process of ECHR

courts now seen to be too reluctant in giving s.4 DoI - is this because of s.3 requiring them to read and give effect to make it compatible?

Other sections of HRA

s.8 enables court to make further remedies if they see fit

s.10 - fast track remedial order to quickly amend statutory breach

Mental Health Act 1983

Sexual Offences Act 2003

What would courts do without s.3 + s.4?

assume mirror principle?

assume ECHR is floor or ceiling?

would there be no method for courts to declare legislation incompatible?

lead to potentially more UK cases? embarrassing?

s.2 - 'take into account'

Mirror principle

margin of appreciation

Resisted giving DoI's

court's discretion in giving DoI

Dialogue with Parliament

Parliament's discretion in responding - s.4(6): a DoI doesn't effect validity, operation or enforcement

Why?

s.19 - statement of compatibility by the Minister

UK courts unclear on how to read 'take into account'

probably the biggest contributor to changing the interpretative process

define primary and subordinate legislation

Lord Bingham, para 20, Ullah, 'no more, but certainly no less

Hale 'Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?*

no reason to think UK cannot go forward beyond European Courts in its interpretative scope, only reasons to think we should

Lord Neuberger, para 48, Manchester v Pinnock, wrong for SC not to follow Strasbourg where theres a clear and constant line of decisions and whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law

s.6 + s.7 is so the UK courts can provide appropriate remedies to people who have their rights under ECHR violated without them having to go to Strasbourg

from Lord Nicholls, R (Quark Fishing)

Donaoghue v Poplar Housing, paras 75-76, [2001] page 10 - 4 facts arising from s.3

unless breach of ECHR, s.3 is ignored.

only use 3.s to limited extent required to achieve compatibility

s.3 doesn't entitle Court to legislate - if radically change effect of legislation then indication more than interpretation required

where not possible to achieve compatibility, not required to grant declaration

R v A (no. 2) [2002], page 10

breach of art 6 for blanket rule on prior consent being relevant as evidence, s.3 used to interpret legislation differently

q now for test for admissibility is whether the evidence is nevertheless so relevant to the issue of consent to exclude it would endanger the fairness of trial - is test satisfied evidence not to be excluded

R (on the application of Anderson) [2003]

Lord Steyn, para 59, page 11: 'would not be interpretation but interpolation inconsistent with the plain legislative intent to ...' 'section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute'

declaration of incompatibility made

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'

murdered 2 vulnerable victims, trial judge said 15 years Home Secretary sad 20 years. from s.29 of the Crime (Sentences) Act 1997. defendant argued not place of politician to decide, should be judge

Lord Rodger, para 111 later in Ghaidan explained not just a linguistic change but to remove 'explicit power' 'would be as drastic as changing black into white'

international transport roth GmbH [2003]

fixed penalties on lorry drivers for people jumping on the back of the lorry inconsistent with art 6, no procedural requirements whilst involving criminal charge

not possible to interpret with s.3, had to use s.4 DoI

Parliament changed the legislation

also breached EC law not just ECHR - had effect of restricting free movement of goods

Ghaidan v Godgin-Mendoza [2004] - leading case, page 14

Rent Act 1977 - survivorship rights of 'spouses' and those who 'lived together' as 'his or her wife or husband' - under HRA can this be interpreted to allow for same sex couples?

Ftzpatrick - pre HRA, no cannot reinterpret the law, need to be opposite sex couples

Lord Nicholls

para 16: 'no reason for believing these factual differences between heterosexual and homosexual couples have any bearing on why succession rights have been conferred on heterosexual couples but no homosexual couples.

said sometimes traditional family needs different treatment (Karner v Austria) but need to identify the element of traditional family that its seeking to protect

para 27: 'section 3 is open to more than one interpretation. the difficulty lies in the word 'possible'. section 3(1) , read in conjunction with section 3(2) and section 4, makes one matter clear: Parliament expressly envisaged that not all legislation would be capable of being made Convention -compliant by application of section 3... what is the standard, or the criterion, by which 'possibility' is to be judged? ... the courts, including your Lordships' House, are still cautiously feeling their way forward as experience in the application of section 3 gradually accumulates.'

How has this changed the nature and limits of interpretative process?

interpretations of 'possible'

resolve ambiguities - Convention -compliant meaning will prevail

R v A - was no ambiguity in statute yet court reinterpreted it . so this cannot be the meaning of possible

Lord Steyn

para 38: 'it became clear during oral argument, and from a subsequent study or the case law and academic discussion on the correct interpretation of s.3(1), that the role of that provision in the remedial scheme of the 1998 Act is not always correctly understood

para 49: study of cases shows tendency to be too literal and technical in applying 3(1) - should take broader approach

argues obvious when clear cannot read or give effect to legislation and need to grant DoI

Anderson, Bellinger

R (Anderson) v S of S for the Home Dept [2003]

Bellinger v Bellinger, page 34

s.3 not possible where 'parliament regards gender as tied and immutable' - Lord Rodger

para 50: 'not disposed to try to formulate precise rules about where section 3 may not be used... what is necessary however, is to emphasise that interpretation under section 3(1) is the prime remedy and that resort to section 4 must always be an exceptional course. in practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with the Convention rights'

Lord Rodger

'read and give effect' = two obligations imposed by s.3(1)

para 123 - shouldn't think about exact wording chosen by the draftsmen too much: 'what matters is not so much the particular phraseology chosen by the draftsmen as the substance of the measure which Parliament has enacted in those words'

Baroness Hale

para 144: 'I see no difficulty in applying the term 'as husband and wife' to persons of the same sex living together in such a relationship... 'this is not even a marginal case. it is well within the bounds of what is possible under section 3(1) of the Human Rights Act 1998.'

'reading' legislation

R (MH) v S of S for Health and Others [2004] page 27

R (Hammond) v S of S for the Home Dept [2004]

'reading down' technique

R v Offen [2001]

Arts 3, 5, 7 breached by imposition of an automatic life sentence required by s.2 Crime (Sentences) Act 1997 - disproportionate if D poses no risk to the public. 'exceptional circumstances' was to be given a less restrictive interpretation.

R v Lambert [2002]

Art 6 breached in s.28 Misuse of Drugs Act 1971 - legal burden of proof read was 'if he proves's incompatible and should be read as 'to give sufficient evidence'

R v Carass [2002]

Art 6(2) breached in s.206 Insolvency Act 1986 imposing a legal burden of proof without justification. 'prove' to be read as 'adduce sufficient evidence'

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important argument - use this to consider how HRA has changed nature and limits of interpretative process

are judges getting too caught up in the exact terminology used in s.3 (and maybe s.4) ? without s.3 would courts have done the same anyway, taken ECHR and Strasbourg rulings as guidance?

perhaps without s.3 courts would have followed Strasbourg exactly like EU law

the wording lead to doubt as to whether ECHR is a floor or ceiling

without s.3 the courts would never seriously have thought that the standard required in Strasbourg is a maximum rather than a minimum?

approach taken

Davies v Johnson

Pepper v Hart [1993]

can't refer to Hansard (debate/discussion, parliamentary aid to the legislation)

purposive approach

can refer to Hansard to take it as context where legislation is ambiguous or obscure

Lord Griffiths: "The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted."

means with s.19 (statement of compatibility), should be little difficulty in reading legislation from the courts now

s.4 is a power not a duty

male to female operation then married a man

s.11(c) MCA 1973 held to be incompatible - required parties to be male and female

to recognise B as female would be to extend meaning and would represent a major change in the law relating to gender reassignment

so breach of Art 8 and Art 12

technical reasons

Reference to CA in Northern Ireland... - abortion in N. Ireland case

No standing so no DoI even though majority of SC said would have made one if did have standing and court had no jurisdiction to make a declaration of incompatibility to reflections views the compatibility issues

Chester v McGeoch [2013]

already dealt with by Scottish Registration Court / Scottish Parliament- no need to grant DoI, already being considered by Parliament

s.10 for non-controversial minor changes in law according to s.4

if so then why not use s.3?

EU law supreme - if UK law contradicts EU law, then disapply UK law

without s.4?

would UK courts presume ECHR law supreme like EU law supreme?

Under EU law, where EU law and UK law clash, disapply UK law

so instead of making declaration of incompatibility would just disapply relevant provisions / even statutes

Benkharbouche & Anor v Embassy of the Republic of Sudan

page 36 - court disapplied relevant provisions that clashed with Art 47 of the Charter

under HRA just granted a DoI as it clashed with Art 6 ECHR

S and K, page 38

argued discrimination (art14 injunction with art 8) and breach of rights to not allow opposite sex civil partnerships

SC ruled yes discrimination created by the gov, they had other options

but advised to not make DoI

decision relating to sensitive social policy, wanted democratically-elected legislature to make this decision

S and K

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made one anyway

Chster v McGeogh

is this interpreting under s.3 or legislating?

added a new paragraph and a new exception

was early in HRA so didn't know if Parliament would amend if DoI was made

maybe now a DoI would be made?

how does the court's interpretation of s.3 in this case compare to re S (minors) case?

re S (minors)(care order: implementation of care plan)

Case about local authorities and care plans for children. Tried to introduce a starring system – where if they failed, could go to court and force them to do it.

Problem = when reached HL, cannot reinvent a new system – has to be local authorities.

went other way to R v A

court t said statute written one way to give powers to local authorities, not courts

to create starring system would be legislating not interpreting

what Ghaidan tells us about proper approach to s.3 and s.4

argued if went to Europe would be found to be violation of convention

then asked if it can be reinterpreted to what the standard should be

can interpret it broadly, should only declare incompatible rarely and where have to

what made them comfortable in deciding moral / social issues in this case?

keen on avoiding discrimination

courts want to be constitutional guardian

is that a convincing reason to not grant DoI?

was only a minor court that made it

should that make a difference? its still a declaration so shouldn't do

Where margin of appreciation, UK legislation can vary from ECtHR

DoI granted where Crime (Sentences) Act 1997 s.29 violated art 6, requiring a sentence imposed by an independent and impartial tribunal instead of the S of S imposing a minimum period

result - repealed in the Criminal Justice Act 2004

result - Gender Recognition Act 2004 amended

R (Hooper) V S of S for Work and Pensions

page 2 - Social Security Contributions and Benefits Act 1992 ss36-37 breached art 14 and art 8 and article 1 protocol , where providing benefits to widows but not widowers

result - already changed by Welfare Reform and Pensions Act 1999, s54(1)

why grant DoI and not use s.3?

DoI's overturned on appeal

R (Laconbury developments Ltd) v S of S for the Environment, Transport and the Regions

Town and Country Planning Act 1990 ss. 77-79

Wilson v First Country Trust Ltd (No. 2 )

Consumer Credit Act 1964, s.127(3)

Northern Ireland Human Rights Commission's Application

Offences of the Person Act 1861 ss 57-58, and Criminal Justice Act (NI) 1945 s25, banning abortion in N. Ireland, incompatible with Art 3, 8 and 14

Reversed by N. Ireland Court of Appeal

Smith v Scott [2007] CSIH 9 DoI granted for s.3 of the Representation of the People Act 1983

declaration is a discretionary remedy, no point in making any further declaration

criticism - surely human rights should be to protect the vulnerable before they become victims and actually have the rights violated? shouldn't court have jurisdiction to make a declaration in order to protect people?

link to Lady Hale - the purpose of HR is to protect the minority and the vulnerable and HRA is to be able to protect them domestically without having to go all the wa to Strasourg

Nicklinson

5:4 SC thought the matter was within margin of appreciation and there was a violation of art 8 in not allowing to assist suicide in law but 3/5 majority wouldn't grant DoI despite violation

held to be inappropriate to UK court to create domestic rights directly exceeding protection by ECtHR decision in Pretty even where margin of appreciation

no violation of art 8 to have blanket ban on assisted suicide

DPP couldn't be forced to identify types of people that would be prosecuted or initiate prosecution proceedings

minority 4 judges held that the matter is of sensitive social policy and best left for Parliament who are inherently better to assess

R v. G

DoI not granted where applicant said law incompatible with art 6 relating to rape of child under 13 even with consent - he thought she was 15

3:2 held not incompatible, what he did was accurately described by the law

minority - held would still have criminal conviction for what he had done, but he thought she was 15

in criminal law, there are v few offences that do not include MR - strict liability offences, shouldn't this include MR?

surely that's not the point - still violation of HR not fair trial? e.g. Huges, strict liability offence but made exception where out of his control, same here no?

I think a DoI should've been granted or at least s.3 used to interpret?

R (on the application of F) v S of S for the Home Department

law incompatible where sex offenders sentenced to 30 months have notifications requirements for life without opportunity for review

breach of art 8 , engaged and not justified, disproportionate to the legitimate aims they sought to pursue

can set a high threshold test to stop them being on notification requirements

SC made unanimous decision - not a hard case for them to decide

problem was UK gov had actually created the discrimination unnecessarily

In the matter of an applicaiotn by Siobhan McLaughlin for Judicial Review [2018]

page 13 part 2 - widowed parent allowance only for spouse or CP of deceased partner

together 23 years, 4 children, argued discrimination not to allow her to have allowance

fairnes - partner had paid into the system for all of the years, so she should be able to benefit from it

Assisted dying

Pretty

Purdy

argued DPP's policy was insufficiently clear as to who DPP would prosecute

Purdy won, DPP had to publish guidelines, law was incompatible

but did SC grant a DoI? Looks like they didn't, but should they have?

UK courts said art 8 not engaged or breached

ECtHR said art 8 engaged but justified so no breach

N Ferreira

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R (G) (Adoption: Unmarried Couple, Horncaste, Sugar v BBC)

all cases of courts 'going beyond' Strasbourg and departing from mirror principle

N. Ferreira, page 23 part 3: although P has stronger democratic credentials, courts are in a much better position to effectively address individual human rights violations in a timely fashion

Nicklinson

or could they not grant one because DPP's policy was only a policy not domestic law?

result: if review and think there's still a real risk, then 15 years of notification requirements before next review again

case often cited as courts doing their job well to protect the unpopular minority. - no one would protect them on the streets

difficult to get this change in P as no one politically wanted to be seen as supporting serious sex offenders

new case, should include

4:1 majority - strong majority, showing less reluctance to make DoI?

Process words

critically assess

section 3

section 4

Human Rights Act

nature and limits of the interpretative process

notes on this in s.3 branch