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HRA Sections 3 and 4 - Coggle Diagram
HRA Sections 3 and 4
Section 3
S3: There is a duty on the court to read primary and subordinate legislation 'so far as it is possible to do so' in a Convention-compatible way.
As S3 imposes a strong interpretive obligation, the courts CAN:
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As the interpretative obligation is a strong one, a declaration of incompatibility under S4 HRA should be a 'measure of last resort'.
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However, there are limits to the courts' S3 duty and powers, and so the courts CANNOT:
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Make changes which run counter to a fundamental feature of the legislation of to the underlying thrust or cardinal feature of it (going 'against the grain' of the legislation).
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Section 4
S4: The court has a power to make 'declarations of incompatibility' where UK legislation is incompatible with Convention rights.
In situations where the court does not consider it appropriate to adopt a S3 interpretation of relevant law, it may make a declaration that a particular provision is incompatible with an ECHR right.
S4(2): If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
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s4(6): A declaration under this section… (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.
Consequences of S4
The s4 power is a discretionary one - it provides that the court ‘may make a declaration of incompatibility’.
Once a declaration of incompatibility has been made under s4, ministers are not legally required to arrange for a change in the relevant legislation.
The declaration of incompatibility does not ‘strike down’ or invalidate the sections of the legislation found to be incompatible. Instead, it acts as a signal to the government and to Parliament that the legislation is not compliant with the ECHR. It therefore has a political and moral force but not a legal one.