Answer - Sec 3 Sec 4 HRA PDF

Preview

Summary

Essay Answer for Sec 3 & Sec 4 HRA...

Description

Question No 8 Zone B 2015: Structure/purpose & core provisions of HRA 1998. Question No 8 Zone A 2016: Explain and evaluate how the domestic court have given effect to section 3 and 4 of HRA 1998 Question 7 Zone A & Zone B 2018: Discuss how the courts have developed Section 3 and section 4 of the Human Rights Act 1998. My Answer: This essay will discuss the impact of section 3 Human Rights Act 1998 (HRA) and the declaration of incompatibility under Section 4 of HRA 1998. HRA 1998 incorporated the European Convention of Human Rights (except for Article 13) in to English law on October 2, 2000 under mechanism prescribed in the Act. It appears to provide a better safeguard than the previous reliance placed upon executive and represents a minimum guarantee of freedom. The Section 19 HRA 1998, requires a Minister to make a statement to Parliament, before the second reading of a bill for which he is responsible, on the proposed legislation’s compatibility with Convention rights. If, despite the statement compatibility under Section 19 HRA 1998, statutory provisions are passed that conflict with some fundamental Convention guarantee, courts now have to interpret such provisions in order to bring them into compliance with all the possible under Section 3 HRA 1998 (See R v A (No 2 )2001). Section 3 HRA 1998 states so that as far as possible, primary legislation and subordinate legislation must be read and given in a way which is compatible with Convention Rights. In satisfying the obligation under Section 3 HRA, Court must take account European Court of Human Rights (ECtHR) jurisprudence under Section 2 HRA 1998, which provides that when a court or tribunal is determining a question connection with a Convention right it “must take into account” judgements, decisions or declarations of ECtHR. Under Section 4 HRA 1998 court may make a decision of incompatibility where courts cannot interpret a piece of legislation as compatible. However, the declaration of incompatibility does not affect validity and is not binding. Section 6 HRA 1998 makes it unlawful for any public authority including any court or tribunal to act in a way incompatible with a Convention Right. The main focus is whether the court the limit to which Section 3 HRA can be invoked and when Section 4 HRA kicks in. R v A (No 2) (2001) is the high water mark case in relation to Section 3 HRA. In this case, the defendant (D) was charged with rape. In his defence he claimed that the complainant had consented to the sexual intercourse which formed the basis of the charge. D sought leave under s.41 of the Youth Justice and Criminal Evidence Act 1999 to adduce evidence and to ask questions relating to an alleged consensual sexual relationship between himself and the complainant over the preceding three weeks. D asserted on appeal that Section 3 HRA 1998 required the court to construe s.41 in accordance with Art.6 of the European Convention of Human Rights and, if this could not be done, that a declaration of incompatibility must be issued. Lord Steyn stated Section 3 HRA’s obligation went far beyond the rule which enable courts to take into Convention into account in resolving any ambiguity in a legislative provision. Furthermore, in accordance with the will of Parliament, in enacting the HRA, it would be necessary to adopt an interpretation which linguistically might appear strained. The technique to be used would not only involve the reading down of express language in a statute but also the implication of provisions. Interpreting the Section 4 of the HRA 1998, he stated that a declaration of incompatibility was a measure of last resort. Lope Hope was not in agreement with his views and was committed to the principle that Section 3 HRA did not change the traditional approaches to statutory interpretation and in the view that HRA preserves the principle of Parliamentary Sovereignty. This is also the view of Lord Hoffman in R v Secretary of State for Home Department Ex parte Simms (2000), in which he stated that Parliamentary sovereignty means

that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. Section 3 HRA 1998 goes well beyond resolving ambiguity in legislation in favour Convention-compliant interpretation and has received fairly bold interpretation. This approached was also adopted by court in the Ghaidan v Godin – Mendoza (2001). In this case, the homosexual partner of the deceased tenant of a flat, appealed from a decision that he could not be awarded a statutory tenancy under Rent Act 1977. Lord Nicholls stated that section 3 of HRA may require the court to depart from the unambiguous meaning of the legislation and may require court to depart from this legislative intent, that is, depart from the intention of parliament which enacted the legislation. The Court of Appeal held that the words defining ‘spouse’ as ‘his or her wife or husband’ should be read to mean ‘as if his or her wife or husband’. Under Section 3 HRA 1998, words can even be read into a statute in order to achieve Convention-compliance (Ghaidan and R v A), so long as the changes do not oppose a pervasive feature of the statute (R (on the application of Anderson) v Secretary of State for the Home Department (2002)). On side note, in the case of Ghaidan v Godin – Mendoza (2001) the House of Lords did not follow Fitzpatrick v Sterling Housing Association which was the House of Lords precedent decided before HRA, which stated that same sex partner could not qualify under the Rent Act 1977 as amended. The same generous approach can be found in the land law case of Beauline Properties v Palmer (2005), where High Court departed from the earlier court decision in Buckinghamshire BC v Moran and the House of Lords precedent of Pye v Graham and gave a radically different meaning to section 75 of the Land Registration Act 1925. Hence, it is submitted that interpretation of Section 3 HRA 1998 brings about the radical changes in the traditional role of Parliamentary intention by statute interpretation. This is departed from Kay v Lambeth BC which it was held that in interpreting a statute, if a previous precedent in UK was inconsistent with a Strasbourg precedent, then the courts must adhere to the domestic precedent. Section 2 HRA 1998 plays a paramount role when courts have to consider convention rights under Section 3 HRA, which court may take into account Strasbourg precedents on convention rights. In R (Ullah) v Secretary of State for the Home Department (2004), it was stated that the case law of the European Court was not strictly binding but must followed unless special circumstances dictated otherwise. In R v Homcastle v Ors, Lord Phillips stated that the domestic courts were not obliged to follow the jurisprudence of ECtHR where court insufficiently appreciated domestic law. This was supported by Pinnock v Manchester City Co (2010). This can be seen from R (Chester) v Secretary of State for Justice and another (2011), the claimant sought judicial review of the failure of the Secretary of State for Justice and the local authority to allow him to vote in parliamentary and European Unions, seeking a declaration that Section 3 of 1983 Representation of the People Act was incompatible with Article 3 of the first protocol to the Convention. Laws LJ stated that “I should decline together to seek to interpret or ‘read down’ section 3 of 1983 Act so as to incorporate within it a judicial discretion as to the disenfranchisement of prisoners. That would be confer a new constitutional power of judges, and it requires no authority to conclude that such a measure cannot be effected under the guise of interpretation, however superchanged by Section 3 Human Rights Act 1998 It would be legislative act and nothing else.” Furthermore, in relation to the government’s failure to introduce legislation on this matter, Law LJ’s (paragraph 27) stated : “… the court has no role to sanction government for such failures. Under the Human Rights Act 1998 the Minister has no obligation to act on a declaration of incompatibility…”. This case seems to have watered down the judicial activism in relation of Section 3 HRA 1998.

If, have striven to achieve compatibility under Section 3 HRA, court can make declaration of incompatibility under Section 4 HRA 1998. If courts does issue a declaration of incompatibility, the government has so far accepted that it should act promptly to take remedial action – although it does not have to do so. Section 10 HRA 1998 provides for a fast track legislative procedure designed to remove the incompatibility. A minister can use a statutory instrument to amend offending primary legislation. In the most recent case of R (Steinfield) v Secretary of State for International Development (2018), the Supreme Court ruled that there was a breach of Article 14 (the right of non-discrimination) taken in conjunction with Article 8 (right to private and family life). The Civil Partnership Act 2004 provided for same-sex couples to enter into a civil partnership. In 2013 Parliament enacted the Marriage (Same Sex Couples) Act. The claimants were a different-sex couple with a conscientious objection to marriage. They wanted to have a civil partnership with each other but this was only available to same-sex couples. This was discriminatory. The Supreme Court had to decide whether the interference with their right to nondiscrimination was justified. The government argued that it was undertaking research to decide the best way forward. For the Court, this was not good enough: the government had to eliminate the inequality immediately. A Declaration of Incompatibility was issued under s.4 of the Human Rights Act. The Jugdes have shown themselves willing to take an activist stance in protecting the right to liberty: key provisions of the Anti-Terrorism, Crime and Security Act 2001 Pt 4 were declared incompatible with Article 5 (protecting the rights to liberty) and Article 14 (protecting the right to freedom from discrimination) of the ECHR under Section 4 HRA in the landmark case of A (FC) and others v SS for the Home Dept (2004) (“The Belmarsh case”). In this case the appellants argued their detentions under Anti-Terrorism, Crime and Security Act 2001 Pt 4 which enabled the internment without trial of only foreign nationals whom the Home Secretary suspected were terrorists was inconsistent with the obligations of the United Kingdom under ECHR. This has created political pressure which led to Parliament passing the Prevention of Terroism Act 2005 to replace the 2001 Act. Nonetheless, in Re MB (2006), Mr Justice Sullivan ruled that control orders, under the Prevention of Terrorism Act 2005 breach Article 5 and were unlawful. A step further approach were expressed by House of Lords in Secretary of State for the Home Department v AF and Anor (2009) where AF, who had the UK and Libyan nationality, challenged the control order (A control order, confining him to his flat for 18 hours a day. It was reduced to 14 hours following the Court of Appeal’s decision in JJ) was an unlawful infringement of his liberty and close material procedure adopted by SIAC. He argued this was fundamentally unfair and contrary to Fair Hearing as required in Article 6 and Art 5 (4). Following the judgement of Grand Chamber of the ECtHR in A and Ors v UK, Lord Phillips stated: “ …Where, however, the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied..”. As a result, Home Secretary decided to free AF rather than disclose the secret intelligence case against AF. In R (Animal Defenders International) v Secretary of State for Culture Media and Sport (2008), Baroness Hale stated that in essence, declarations of incompatibility serve a useful purpose which is to warn the Government and Parliament that in the view of the courts the United Kingdom is in breach of its international obligations and it is for them to do something about it. ECtHR in the case of Burden v UK stated that applicants may not be required to pursue their claim in domestic courts if the only possible remedy is a declaration of incompatibility as such is not an effective remedy. The ECtHR went on to state that if Government can demonstrate to Parliament’s satisfaction that it responds promptly and adequately to such declarations, the ECtHR may in future regard a declaration

of incompatibility as an ineffective remedy which must be first be exhausted before an individual can apply to Strasbourg. In conclusion, it is arguable that the HRA has created a far more active judicial role in protecting basic rights and freedoms, citizens may obtain redress for human rights breaches without needing, except as a last resort, to apply to ECtHR. British judges are already making a contribution to the development of a domestic Convention rights jurisprudence by using Section 3 and Section 4 of HRA 1998, for example A (FC) and others v SS for the Home Dept (2004) , Re MB and Secretary of State for the Home Department v AF and Anor (2009). The undesirable effect of this would be partial dent on parliamentary sovereignty. It is argued, a reasonable compromise between the protection of Human Rights and parliament sovereignty.

Prepared by SMTW Feb 2019...