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Workshop 10.2 - Impact of the HRA 1998 - Coggle Diagram
Workshop 10.2 - Impact of the HRA 1998
Incorporation of the ECHR and context
The HRA incorporated the ECHR into UK domestic law.
This caused some tension.
Key sections of the HRA
Section 2 - interpretation of ECHR rights.
Section 3 - interpretation of legislation
Section 4 - declarations of incompatibility (and s 19 - statements)
Section 6 - enforcement of rights (and statutory defence)
Section 2 HRA
This section requires that ay court ot tribunal determining a question which has arisen in connection with a convention must take into account the jurisprudence of the ECtHR so far as it is relevant to the proceedings.
The UK courts took this as a strong direction and Lord Bingham developed a line known as the mirror principle in R (Ullah) v Special Adjudicatory [2004] UKHL 26.
"The duty of national courts is to keep pace with Strasbourg as it evolves over time"
Dialogue
In recent years, jurisprudence from Strasbourg has become less relevant to the culture of the common law system.
The ideas is that there should be a dialogue between Uk courts and the ECHR.
Section 3 HRA
This section states that so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with convention rights.
It applies a strong obligation on UK courts to strive to interpret existing legislation in an ECHR compatible way.
The issue is whether this gives the judiciary the interpretive power to over-ride the apparent intention of Parliament when it passed the original legislation.
R v A (Complainant's Sexual History) [2002] 1 AC 45
The defendant claimed that his Art 6 rights to a fair trial were compromised by very restrictive provisions that had been introduced in s 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA).
These had the effect of preventing him from bringing in any evidence about the complainant's past sexual history which he needed to do to put forward his defence of consent.
Lord Steyn emphasised that the interpretative obligation of s 3 of the HRA was a strong one. He gave effect to this by reading a new provision in s 41 of the 1999 Act that evidence required for a fair trial should not be treated as inadmissible.
The courts have confirmed that in some circumstances it may be necessary for a s 3 interpretation to be made that appears to conflict with parliamentary intention but this is only appropriate where the interpretation does not go against the grain of the underlying policy of the original legislation.
The HRA in effect has a higher status that ordinary statute.
Section 4
This provides that if the court is satisfied that a provision is incompatible with a Convention right, it may make a declaration of incompatibility.
A declaration of incompatibility has a political rather than a legal effect. It doesn't invalidate the law but merely flags up the fact that it is incompatible.
Some have categorized s 4 as a mechanism which achieves an indirect form of constitutional review of legislation.
s 19
Before legislation is passed, the sponsoring minister in Parliament has a duty under s 19 to make a statement in relation to the compatibility of the bill's provisions with Convention rights.
The minister can state if it is compatible or not. This emphasises the fact that this is more of a political statement rather than a legal one.
Ultimately however, its for the courts to decide on compatibility.
HRA as accommodation with sovereignty
It is possible to see the HRA as an accommodation between stronger rights to protection and the need not to undermine the doctrine of parliamentary sovereignty.
The basic duty falling on public authorities under s 6(1) HRA is that they must act in a way that is compatible with ECHR rights.