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1. Critically assess how sections 3 and 4 of the Human Rights Act 1998…

- - - - 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?
  - - - 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
    - - 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
      - 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'
    - - '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'
        
        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
        
        EU law supreme - if UK law contradicts EU law, then disapply UK 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?
    - - 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.'
    - - 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
  - - - 'reading down' technique
    - - 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.
    - - 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'
    - - 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'
    - - Davies v Johnson
        
        can't refer to Hansard (debate/discussion, parliamentary aid to the legislation)
        
        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."
      - Pepper v Hart [1993]
        
        purposive approach
        
        can refer to Hansard to take it as context where legislation is ambiguous or obscure
        
        means with s.19 (statement of compatibility), should be little difficulty in reading legislation from the courts now
- - - - Parliament's discretion in responding - s.4(6): a DoI doesn't effect validity, operation or enforcement
    - - Why?
        
        Where margin of appreciation, UK legislation can vary from ECtHR
    - - 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
        
        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
      - Chester v McGeoch [2013]
        
        already dealt with by Scottish Registration Court / Scottish Parliament- no need to grant DoI, already being considered by Parliament
        
        Smith v Scott [2007] CSIH 9 DoI granted for s.3 of the Representation of the People Act 1983
        
        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
        
        declaration is a discretionary remedy, no point in making any further declaration
      - S and K
      - 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
        
        N Ferreira
      - Assisted dying
        
        Pretty
        
        UK courts said art 8 not engaged or breached
        
        ECtHR said art 8 engaged but justified so no breach
        
        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?
        
        or could they not grant one because DPP's policy was only a policy not domestic law?
        
        Nicklinson
  - - - 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
  - - - Town and Country Planning Act 1990 ss. 77-79
    - - Consumer Credit Act 1964, s.127(3)
    - - 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
  - - - 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?
  - - - difficult to get this change in P as no one politically wanted to be seen as supporting serious sex offenders
- - - - Mental Health Act 1983
      - Sexual Offences Act 2003
      - s.10 for non-controversial minor changes in law according to s.4
        
        if so then why not use s.3?
    - - Mirror principle
        
        margin of appreciation
        
        UK courts unclear on how to read 'take into account'
        
        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
      - probably the biggest contributor to changing the interpretative process
      - Chster v McGeogh
      - 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
    - - from Lord Nicholls, R (Quark Fishing)
  - - - lead to potentially more UK cases? embarrassing?