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Enforcement and remedies - Coggle Diagram
Enforcement and remedies
S6(2) a public authority will not breach the obligation imposed by S6(1) if it's actions are either required by primary legislation or it is acting in a way that gives effect to primary or subordinate legislation
S6(1) makes it unlawful for public authorities to act in a way that is incompatible with a convention right
S6(2)(a) subsection (1) does not apply if as a result of one or more provisions of primary legislation, the authority could not have acted differently or
R v Secretary of State for Work and Pensions, ex parte- (a) is addressed arises where the effect of the primary legislation is that the authority has no alternative but to do what the legislation tells it to do’. The provisions must have had an affect of imposing a duty on the authority
S6(2)(b) in case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way that is compatible with Convention rights, and party was acting to give effect those provisions
(b) is addressed where the authority has a discretion to exercise a power under a statute and this statute is impossible to follow in a way that is compatible with convention rights
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S3(1) 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
statutory defence s6(2) being available does not necessarily mean it will work. the court still has a duty to read legislation in a way that gives effect to the convention. if the court uses S3 powers then the statutory defence is gone
R v A (complainant's sexual history)- S3 powers can be used even if no ambiguous language. ’ The will of P is to adopt interpretations even if they are linguistically strained and may involve reading down of express provisions and implication of provisions. A declaration of incompatibility is last resort
in this case they read an implied provision into the Act that evidence or questioning which is required to ensure a fair trial under Article 6, ECHR should be treated as admissible
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Bellinger v Bellinger: re if a male who underwent gender reassignment surgery could be interpreted as a ‘female’ for marriage certificate purposes
statute description was 'biological sex of a person at birth' and UK courts found it was not possible to use S3 powers to re-interpret due to:
- it was far from self-evident what criteria and procedures should be satisfied before a person can be legally recognised as having acquired their new gender. The court did not have the medical expertise and was not in a position to give guidance
- the recognition of gender reassignment for the purposes of marriage cannot be sensibly made in isolation from other areas where a distinction is drawn between people on the basis of gender. A clear and coherent policy would be required
- marriage is an institution deeply embedded in the culture of the UK as being between two persons of the opposite sex. It would involve a fundamental change in the traditional concept of marriage which ought to be considered as part of an overall review of the most appropriate way to deal with the difficulties confronting transgender people
Ghaidan v Godin-Mendoza- Interpreted statute to mean living ‘as if they were his wife or husband’ instead of ‘spouses’ so they could get around a rule for the property transfer.
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S4 the court has a power to make 'declarations of incompatibility' where UK legislation is incompatible with Convention rights
Section 10(2) provides that, in response to a declaration of incompatibility made under s 4 (or to a decision of the ECtHR), the relevant ministers may take expedited 'remedial action' to amend the relevant legislation as necessary to remove the incompatibility, if 'there are compelling reasons for proceeding under this section.'
Schedule 2 of the HRA 1998 sets out two procedures. One is the standard procedure, which requires that a draft amending order be laid before Parliament for 60 days before being approved by both Houses of Parliament. The second remedial procedure concerns urgent cases, where the order may be laid before Parliament for approval after it is made.
In the absence of a governmental response of any kind, the claimant may have recourse to the ECtHR, since all available domestic remedies will have been exhausted
The Ministry of Justice produces an annual report: 'Responding to human rights judgments, Report to the Joint Committee on Human Rights on the Government's response to human rights judgments.' This includes details of declarations of incompatibility (DOI) that have been made by the courts in that year. It also includes a list of all of the declarations that have been made since the HRA came into force in October 2000, with details of what, if any, remedial action has been taken by the UK Government and Parliament with respect to each declaration
if this is used, the statutory defence stands
S4(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of incompatibility
S4(6)(a) A declaration does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given and
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Bellinger v Bellinger- in this case the provision were already going to be looked at after a European court of human rights case stating it was incompatible, they still made a declaration as there would be a formal record of it being incompatible
The Belmarsh Case: HoL made a s4 declaration that s 23 of the Anti-Terrorism, Crime and Security Act 2001 was incompatible with Articles 5(1) and 14 of the ECHR. The policy was found to be disproportionate, insofar as it was not strictly necessary to have detained suspected international terrorists without charge or trial, and it was also discriminatory on the ground of nationality or immigration status
R (Anderson) v Secretary of State for the Home Department- shows a statute which allows a government minister to set a minimum tariff. S4 declaration was made as using S3 powers would be ‘judicial vandalism’
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