Sections 4 and 10 of the Human Rights Act 1998

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Sections 4 and 10 of the Human Rights Act 1998 are provisions that enable the

legislative intent. It is considered a measure of last resort. A range of superior courts
can issue a declaration of incompatibility.

A declaration of incompatibility is not binding on the parties to the proceedings in which it is made, nor can a declaration invalidate legislation. Section 4 therefore achieves its aim through political rather than legal means, including through Section 10 which allows the government to amend legislation without full legislative approval. A remedial order can only be made after a declaration of incompatibility or a similar finding of a European court with all appeals must have been complete or expressly renounced. Parliament has used Section 10 to make small adjustments where possible to bring legislation into line with Convention rights although entirely new pieces of legislation are sometimes necessary.

Context

Second World War to uphold such rights.[2] The United Kingdom ratified the European Convention on Human Rights in 1951, and accepted the right of individual petition to the European Court of Human Rights, Strasbourg, in 1966.[2] The Human Rights Act 1998 made most Convention rights directly enforceable in a British court for the first time.[3] Excluded are Articles 1 and 13, which the government argued were fulfilled by the Act itself, and therefore were not relevant to rights enforced under it.[4] The Human Rights Act has had a considerable effect on British law, and remains an Act of "fundamental constitutional importance".[2]

Provisions

Section 4 allows a court to make a "declaration of incompatibility" if it is "satisfied that the provision is incompatible with a Convention right".

remedy.[10]

The United Kingdom recognises parliamentary sovereignty.[11] The legislature is above the courts, and the courts cannot therefore declare legislation invalid. Section 4 reflects this, and states that courts must continue to apply legislation, even if incompatible with Convention rights.[12] Section 4(6)(a) notes that a declaration of incompatibility "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given",[5] which is similar to Section 3(2)(b).[6] R v Lyons confirmed that evidence could be used, even where incompatible with Convention rights, if it was expressly allowed under statute.[13] A declaration of incompatibility is merely a flag that alerts Parliament that people's human rights are being infringed.[12] Accordingly, it has no more legal effect than the fact of incompatible.[14]

Section 4(4) allows the court to issue a declaration of incompatibility if altering secondary legislation is impossible because it would necessarily conflict with a statute. Following amendment by the

Scotland) and Court of Protection in particular roles.[5]

Application and section 10

In A v Home Secretary, the detention of

Article 6 of the Convention – however, he was explicitly given it under the statute, and it could not be removed merely by interpretation.[10][14]

Under Section 4(6)(b), a declaration of incompatibility is not even "binding on the parties to the proceedings in which it is made".[5] Since a declaration cannot invalidate or disapply legislation, it achieves its aim through political rather than legal means – it is for Parliament to correct the law, or continue to be in contravention of the convention.[14] Section 10 provides one route for correction: "If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility" (section 10(2)).[17] It is designed to be a quick method; although it must be put before parliament, a remedial order does not require full legislative approval. This summary process was controversial, as it ignored the possibility for debate. However, the time required for this could not be provided in reality.[14] In any case, approval is still required before the order comes into force, or, in the case of urgent legislation, within 120 days of it coming into force.[18][19] A remedial order can only be made after a declaration of incompatibility or a similar finding of a European court, which will have been justified and discussed before being made. Under Section 10(1), all appeals must have been complete or expressly renounced.[20]

Parliament has used Section 10 to make small adjustments where possible to bring legislation into line with Convention rights. In the Anderson and Bellinger cases, entirely new pieces of legislation were drafted and passed in the normal process, since they changed the law more considerably than the Section 10 process would allow.[20]

References

Citations

  1. ^ a b Hoffman, Rowe (2006). P. 10.
  2. ^ a b c Lester, Beattie in Jowell, Oliver (eds. [clarification needed]) (2007). P. 59.
  3. ^ Bradley, Ewing (2007). P. 432.
  4. ^ Bradley, Ewing (2007). Pp. 433–434.
  5. ^ a b c d "Human Rights Act 1998: Section 4". www.legislation.gov.uk. Retrieved 11 January 2011.
  6. ^ a b "Human Rights Act 1998: Section 3". www.legislation.gov.uk. Retrieved 11 January 2011.
  7. ^ Ghaidan v Godin-Mendoza [2004] UKHL 30. Available at the UK Parliament Web site. Accessed 11 January 2012.
  8. ^ In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10. Available at the UK Parliament Web site. Accessed 11 January 2012.
  9. ^ Hoffman, Rowe (2006). P. 60.
  10. ^ a b R (Anderson) v Secretary of State for the Home Department [2003] 1 A.C. 837. Available at the UK Parliament Web site. Accessed 11 January 2012.
  11. ^ Hoffman, Rowe (2006). P. 42.
  12. ^ a b c Hoffman, Rowe (2006). P. 64.
  13. ^ R v Lyons (and others) [2002] UKHL 44. Available at the UK Parliament Web site. Accessed 12 January 2012.
  14. ^ a b c d e Hoffman, Rowe (2006). P. 65.
  15. ^ A (and others) v Secretary of State for the Home Department [2004] UKHL 56. Available at the UK Parliament Web site. Accessed 12 January 2012.
  16. ^ Bellinger v Bellinger [2003] UKHL 21. Available at the UK Parliament Web site. Accessed 12 January 2012.
  17. ^ "Human Rights Act 1998: Section 10". www.legislation.gov.uk. Retrieved 12 January 2011.
  18. ^ "Human Rights Act 1998: Schedule 2". www.legislation.gov.uk. Retrieved 12 January 2011.
  19. ^ Hoffman, Rowe (2006). Pp. 65–66.
  20. ^ a b Hoffman, Rowe (2006). P. 66.

Bibliography

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