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((Section 4 HRA, If a UK court is faced with conflicting UK Act of…
Section 4 HRA
Allows UK courts to make a declaration of incompatibility when a UK Act of parliament is not compatible with the ECHR
If a UK court is faced with conflicting UK Act of Parliament & an article of the ECHR, it should follow UK law and make a declaration under section 4.
Only Parliament can overrule UK legislation – courts cannot do this.
K. V. Lambeth (2006)
Where the court of appeal is faced with a house of lords prescendent which is inconsistent with a decision of the ECtHR the court here said should follow domestic precedent.
A and Others v Secretary of State for the Home Dept (2004)
After 9/11 uk enacted indefinate legislation that allowed them to detain foreign. Nationals suspected of terroism who coulodnt be deported/ went to court and this was argued it violated article 5 and 14 house of lords ruled that this scheme was incompatible with ECHR
So if a UK court is faced with conflicting domestic UK precedent & a decision of the ECtHR, it should follow domestic precedent and refer a case for appeal.
R v (Anderson) v Secretary of State for the Home Dept (2002)
Man had life sentence that was on tarrif set by home secretary, went to court arguing infringed on his article 6 human right. Hiuse of lords ruled that home secretarys power was incompatible with article 6 and shouldn’t be executive figure who does this.
Section 19
• However when promoting a Bill through Parliament, a government minister can state it will be necessary to depart from (ignore) ECHR.
• This power has mostly been used to relax or suspend Articles 5 & 6
This must be approved by parliamentary resolution
In 1997 Labour’s manifesto promised to pass the ECHR into UK law.
The Human Rights Act received royal assent in 1998 and came into force two years later in 2000 to allow time for training for judges and public bodies.
Section 2 HRA
Any court/tribunal deciding a case under HRA must take into account all past judgements, decisions, declarations and opinions of the ECtHR
Bellinger v Bellinger (2003)
Transgender denied right to marriage as it was under matrimonal causes act 1973 that a marriage is between man and women and to do this wouldve meant that a person can be born one sex and change to another
Section 3 HRA
UK law should be wherever possible, be intepreted so it is compatible with ECHR rights
However there has been conflict in how these sections of the HRA have been interpreted by the courts in England and Wales: