Section 4 of the Human Rights Act
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

• 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).

• 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”.

•
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”.

•
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.”

• 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)].

• “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)].

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.

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.

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.

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.

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.

• 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.

• 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.

• 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.”

• Section 10: Fast-track procedure
• Schedule 2: Emergency procedure