1. The Human Rights Act Mechanism
Section 4 of the Human Rights Act 1998

2. Section 4 of the HRA 1998 The meaning and content of Section 4
The role of domestic courts
Case Law
Interplay between Section 3 and Section 4 of the Human Rights Act 1998

3. 1. The meaning and content of Section 4
Section 4: declaration of incompatibility
Section 5: right of the Crown to intervene in the proceedings
Section 10: Power to take remedial action (see also Schedule 2 on remedial orders).

4. Section 4 (6) (a) of the HRA 1998: a declaration of incompatibility “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”.
The offending Act still remains operative. Professor Gearty: a declaration of incompatibility is “politically potent but legally irrelevant”.

5. R v A (No 2) (2001), Lord Steyn: a “declaration of incompatibility is a measure of last resort” which must be avoided unless it is plainly impossible to do so”.

6. 2. The role of domestic courts
Wilson v Secretary of State for Trade and Industry (2003). Lord Nicholls: “This new role is fundamentally different from interpreting and applying legislation. The courts are now required to evaluate the effect of primary legislation in terms of Convention rights and, where appropriate, make a formal declaration of incompatibility. In carrying out this evaluation the court has to compare the effect of the legislation with the Convention right. If the legislation impinges upon a Convention right the court must then compare the policy objective of the legislation with the policy objective which under the Convention may justify a prima facie infringement of the Convention right.”

7. Resort to Hansard: courts must be careful “not to treat the ministerial or other statement as indicative of the objective intention of Parliament. Nor should the courts give a ministerial statement, whether made inside or outside Parliament, determinative weight. It should not be supposed that members necessarily agreed with the minister’s reasoning or his conclusions”. [Wilson v Secretary of State for Trade and Industry (2003)].

8. “The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members … The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister’s exploration of the policy options or his explanations to Parliament.” [House of Lords, Wilson v Secretary of State for Trade and Industry (2003)].

9. 3. Case Law
R v Secretary of State for the Home Department, ex parte Anderson (2002), on sentencing and on the reference of cases to the parole board. Section 29 of the Crime (sentences) Act 1997) was declared incompatible with Article 6 of the ECHR.
Bellinger v Bellinger (2003), on marriage of transsexuals. Section 11 (c ) of the Matrimonial Causes Act 1973 was declared incompatible with Articles 8 and 12 of the ECHR.

10. A v Secretary of State for the Home Department (2004), on the detention of suspected international terrorists that discriminated on the ground of nationality or immigration status. Section 23 of the Anti-Terrorism Crime and Security Act 2001 was declared incompatible with Articles 5 and 14 of the ECHR.

11. R (on the application of H) v Mental Health Review Tribunal, North & East London Region (2001), on the burden of proof placed on the patient. Section 73 of the Mental Health Act 1983 was incompatible with Article 5 (1) and Article 5 (4) of the ECHR.
D v Secretary of State for the Home Department (2002), on the right to apply to the Parole Board. Section 74 of the Mental Health Act 1983 was declared incompatible with Article 8 of the ECHR.

12. International Transport Roth GmbH v Secretary of State for the Home Department (2002): on clandestine entrants. Section 32 of the Immigration and Asylum Act 1999 was declared incompatible with Article 6 and Article 1 of Protocol 1.

13. R (on the application of Morris) v Westminster City Council (2004)
R (on the application of Morris) v Westminster City Council (2004). The Administrative Court found that Section 185 (4) of the Housing Act 1996 could not be read compatibly with Article 14 of the ECHR and thus made a declaration of incompatibility.

14. 4. Interplay between Section 3 and Section 4 of the HRA 1998
Priority is given to the use of Section 3: Ghaidan v Godin-Mendoza (2002), the Court of Appeal used section 3 to interpret the words ‘living together as husband and wife’ to mean ‘as if they were living together as husband and wife’ thus allowing the Rent Act 1977 to cover all non-marital stable relationships. This avoided the need to declare the Rent Act 1977 incompatible with Article 14 of the ECHR.

15. The limits of section 3: The use of section 4: R (Hooper) v Secretary of State for Work and Pensions (2002), the provisions of the Social Security (Contributions and Benefits) Act 1992 relating to ‘widows’ could not be interpreted under section 3 so as to include ‘widowers’. They were thus declared incompatible with Articles 8 and 14 of the ECHR.

16. R (on the application of Rusbridger) v Attorney General (2003), Lord Walker: Sections 3 and 4 of the HRA 1998 are “intended to promote and protect human rights in a practical way, not to be an instrument by which the courts can chivvy Parliament into spring-cleaning the statute book, perhaps to the detriment of more important legislation. Such a spring-cleaning process might have some symbolic significance but I can see no other practical purpose which this litigation would achieve.”

17. 5. Section 10 of the HRA 1998 Power to take remedial orders
Section 10: Fast-track procedure
Schedule 2: Emergency procedure