Human Rights Act 1998 (UK) section 4 by ramhood17

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									             Human Rights Act 1998 (UK) section 4
Section 4.

Subsection (2) applies in any proceedings in which a court determines whether a
     provision of primary legislation is compatible with a Convention right.

(1)   If the court is satisfied that the provision is incompatible with a Convention right, it
      may make a declaration of that incompatibility.

(2)   Subsection (4) applies in any proceedings in which a court determines whether a
      provision of subordinate legislation, made in the exercise of a power conferred by
      primary legislation, is compatible with a Convention right.

(4)   If the court is satisfied-
      (a) that the provision is incompatible with a Convention right, and
      (b) that (disregarding any possibility of revocation) the primary legislation
            concerned prevents removal of the incompatibility,
      it may make a declaration of that incompatibility.

(5)   In this section "court" means-
      (a) the House of Lords;
      (b) the Judicial Committee of the Privy Council;
      (c) the Courts-Martial Appeal Court;
      (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial
            court or the Court of Session;
      (e) in England and Wales or Northern Ireland, the High Court or the Court of

(6)   A declaration under this section ("a declaration of incompatibility")-
      (a) does not affect the validity, continuing operation or enforcement of the
           provision in respect of which it is given; and
      (b) is not binding on the parties to the proceedings in which it is made.
 The following tables are extracted from
   Declarations of Incompatibility made under s4 of Human Rights Act

                          Sections declared
Case            Date                               Comments
R (o.t.a. H) v
Mental Health                                    Amended by Mental Health Act
                         Section 73 of the
Tribunal North 04/04/01                          (Remedial) Order 2001 (made
                         Mental Health Act 1983
and East London                                  18/11/01, in force 26/11/01)
                                                 By Sullivan J. The declarations were
International                                    upheld by the Court of Appeal 22
Transport Roth                                   February 2002. Amended by
                         Penalty Scheme
GmbH v                                           Nationality, Immigration and Asylum
                         contained in Part II of
Secretary of    05/12/01                         Act 2002, section 125, and Schedule
                         the Immigration and
State for the                                    8(Amendments to the Bill tabled on
                         Asylum Act 1999
Home                                             Report in the House of Commons, 12
Department                                       June 2002. In force 14 November
                                                 2002/ 8 December 2002)..
                                                 Criminal Justice (Northern Ireland)
                                                 order 2002 (2003 No 1247 (N.I. 13),
                         Section 62 of the
                                                 Article 19 and Schedule 1. Made 8
R v McR         15/1/02 Offences Against the
                                                 May 2003. (No prosecutions have
                         Person Act 1861
                                                 been brought under section 62 since
                                                 the declaration of incompatibility).
R (o.t.a.
Wilkinson) v             Section 262 of the      By Moses J (upheld by the Court of
Commissioners 14/2/02 Income and Corporation Appeal). The sections declared
of Inland                Taxes Act 1988          incompatible are no longer in force.
                                                 Declaration made by the House of
                                                 Lords. Amended by Clauses 254 – 262
R (Anderson) v           s.29 of the Crime       and Schedule 17 to the Criminal
SSHD                     (Sentences) Act 1997 Justice Bill (amendments introduced at
                                                 Report stage in the House of
                                                 Commons, 2 April 2003)
                                                 The declaration declared the absence
                                                 of any power in s.74 or any other
                                                 statutory provision for the release of a
                         Section.74 of the
D v SSHD        19/12/02                         prisoner in the circumstances of the
                         Mental Health Act 1983
                                                 applicant to be incompatible with the
                                                 Art. 5(4). The declaration is not being
                                                 appealed – it is intended to remedy
                                                  matters in the Criminal Justice Bill,
                                                  and the amendments to do so are being
                                                  The declaration was given by consent
                                                  (incompatibility with Art 8, and/or
                                                  Art.8 with Art 14). Amended by
Blood and                                         Human Fertilisation and Embryology
                         Section 28(6)(b) Human
Tarbuck v                                         (Deceased Fathers) Act (which
                 Apr-03 Fertilisation and
Secretary of                                      received royal assent 18 September
                         Embryology Act 1990
State for Health                                  2003 (the Bill, a private member’s
                                                  Bill, received its 1st reading on 11
                                                  December 2002, and was assisted by
                                                  the government).
                                                  Incompatible with Art 8, and Art 12.
                         Section 11(c)            The Gender Recognition Bill was
Bellinger v
                 10/4/03 Matrimonial Causes Act published on 10 July 2003. It will be
                         1973                     introduced in Parliament in the next
                                                  Incompatible with Article 8, in that the
                                                  Claimant has no choice over the
R (on the
                                                  appointment or legal means of
application of
                         Section 26(1) and 29     changing the appointment of her
FM) v Secretary May-03
                         Mental Health Act 1983 nearest relative. (The wording of the
of State for
                                                  Order has been agreed between the
                                                  parties, but the judge’s final approval
                                                  is awaited).
                                                  Incompatible with claimants rights
R (Uttley) v
                         Sections 33(2), 37(4)(a) under Article 7, insofar as it provides
Secretary of
                         and section 39 of the    that he will be released at the two-
State for the    30/7/03
                         Criminal Justice Act     thirds point of his sentence on licence
                         1991                     with conditions and be liable to be
                                                  recalled to prison.
      Declarations of Incompatibility made but overturned on appeal
Alconbury     13-Dec-00    The Town and Country          The declarations were
                           Planning Act 1990,            overturned by the House of
                           (a) s 77; 78 and 79           Lords, 9 May 2001
                           (excluding the words
                           inserted into sub section
                           79(4) by paragraph 19 of
                           Schedule 7 to the Planning
                           and Compensation Act
                           (b) paragraphs 3 and 4 of
                           Schedule 6 (insofar as it
                           applied to section 79);
                           The Transport and Works
                           Act 1992 sections 1, 3 and
                           The Highways Act 1980
                           sections 14(3)(a), 16(5)(a),
                           18(3)(a) and 125 and
                           paragraphs 1, 7 and 8 of Part
                           1 of Schedule 1;
                           The Acquisition of Land Act
                           1981 section 2 (3) and
                           paragraph 4 of Schedule 1.
                           Section 127(3) of the
Wilson v First
               02-May-01   Consumer Credit Act 1974 On appeal to HL
County Trust
                           declared incompatible by CA
                                                         The Court of Appeal
                                                         overturned the judgment of
Matthews v
                           Section 10 Crown              Keith J declaring the section
Ministry of   22-Jan-02
                           Proceedings Act 1947          incompatible on 29 May 2002.
                                                         The case is being appealed to
                                                         the HL.
R (o.t.a.
Hooper and                                              The Court of Appeal
                           ss 36 and 37 of the Social
others) v                                               overturned the judgment of
               14-Feb-02   Security Contributions and
Secretary of                                            Moses J declaring the section
                           Benefit Act 1992
State for Work                                          incompatible on 18/06/03.
and Pensions
                                                       The Court of Appeal
A,X and Y v                Section 23, Anti-Terrorism, overturned the judgment of the
SSHD                       Crime and Security Act 2001 Special Immigration Appeals
                                                       Tribunal on 25 October 2002.
Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 (10 July

The relevant events took place after the Human Rights Act 1998 had been enacted but
before the Act had come into force (2 October 2000). The Court held that the Act could
not have retrospective effect and hence overturned the declaration of incompatibility
made by the Court of Appeal.

Lord Nicholls of Birkenhead

14. … I turn to sections 3 and 4 [of the Human Rights Act 1998]. It can be noted at once
that section 4 rides in harness with section 3. Section 4 contains two prerequisites to the
court's jurisdiction to make a declaration of incompatibility. First, subsections (2) and (4)
of section 4 apply to proceedings in which the court 'determines' whether a legislative
provision is compatible with a Convention right. So section 4 does not apply unless the
court, in the proceedings in question, actually decides whether the relevant legislation is
Convention-compliant. The second prerequisite is that the court must be satisfied the
relevant legislative provision is incompatible with a Convention right: section 4(2) and
(4). This presupposes that, despite application of the principle of interpretation stated in
section 3, the legislation is non-compliant. In other words, interpretation of the legislation
in accordance with section 3 is an essential preliminary step to making a declaration of
incompatibility. It is an essential preliminary step because the court cannot be satisfied
the legislation is incompatible until effect has been given to the interpretative obligation
set out in section 3.
15. This interpretation of section 4 accords with the consequence flowing from a
declaration of incompatibility. A declaration of incompatibility triggers the 'fast track'
legislative procedures set out in section 10. It would make no sense for these procedures
to be set in motion if it remains uncertain whether it is possible to interpret the legislation
in a Convention-compliant way.

16. In the ordinary course this sequential approach goes without saying. Courts will
interpret legislation, as they are required to do, in accordance with section 3. Only when
they have done this will any question of a declaration of incompatibility arise. But the
present case is exceptional because of its transitional nature: the agreement was made
pre-Act, and the Court of Appeal was interpreting the legislation post-Act. Hence the all-
important question: is section 3 applicable in such a case?

17. On its face section 3 is of general application. So far as possible legislation must be
read and given effect in a way compatible with the Convention rights. Section 3 is
retrospective in the sense that, expressly, it applies to legislation whenever enacted. Thus
section 3 may have the effect of changing the interpretation and effect of legislation
already in force. An interpretation appropriate before the Act came into force may have
to be reconsidered and revised in post-Act proceedings. This effect of section 3(1) is
implicit in section 3(2)(a). So much is clear.
61. The Human Rights Act 1998 requires the court to exercise a new role in respect of
primary legislation. 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. When making these two comparisons the court will look
primarily at the legislation, but not exclusively so. Convention rights are concerned with
practicalities. When identifying the practical effect of an impugned statutory provision
the court may need to look outside the statute in order to see the complete picture, as
already instanced in the present case regarding the possible availability of a restitutionary

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