Student led workshop 8

NOTE THAT THIS WEEK WE WILL LOOK AT AND COMPLETE THE

MODULE EVALUATION SURVEY

Questions to test your knowledge:

1. Why is HRA s2 important?

Section 2(1) of the HRA 1998 asserted that a UK court or tribunal must
take into account, “any relevant judgment, decision declaration or
advisory opinion of the European Court of Human Rights as well as
relevant opinions or decisions of the European Commission of Human
Rights and the Committee of Ministers.
2. What does HRA s3 do
Section 3 gives courts the ability to adopt statutory interpretations that
comply with Convention rights (as defined in Schedule 1 to the HRA),
even where the ordinary, unambiguous meaning of a statute would
result in a breach of Convention rights, as long as it is “possible” and
not against the thrust of the
3. What does HRA s4 do?
Under section 4 HRA, where in the course of any legal proceedings a
senior court determines that a provision of primary legislation is
incompatible with the Convention (even after considering the s3
obligation to interpret legislation compatibly) the court may, not must,
make a 'declaration of incompatibility'.
4. What are the exceptions to s6(1) and why are they important in a
constitutional sense?

Section 6 of the Human Rights Act 1998 places a duty on public authorities
not to act incompatibly with certain rights and freedoms drawn from the
European Convention on Human Rights (ECHR). The Act does not define
absolutely the words “public authority”

Third, section 6 of the Act makes it unlawful for a public authority to act in a
way which is incompatible with a Convention right; an exception to this is if
the public authority is giving effect to incompatible primary legislation,
or if primary legislation does not allow the public authority to act
differently.

 Discussion: Look at the case Ghaidan v Godin-Mendoza [2004] UKHL

30
A was in a homosexual relationship with B who had a protected
tenancy. B died and under the Rent Acts a partner acting as a husband
or spouse who was living with him was entitled to an assured tenancy.
HL ruled that in order to make the act compatible with convention
rights, they would make a s.3 interpretation so as to say that
homosexual couples can also count as “spouses”.

Lord Nicholls: He said that to exclude homosexuals would be to make

the act incompatible with article 14 (non-discrimination). He says there
is difficulty in deciding what s.3 HRA means by “as far as possible”. He
accepts Steyn’s view in R v A (no.2) and says S.3 is unusually far-
reaching: Parliament, in passing the HRA 1998, is consenting to the
courts modifying an act’s meaning as far as possible so as to make it
compatible with convention rights, even if this goes against the clearly
intent of parliament.
 Is the decision an example of judges making decisions which would be
more appropriate for Parliament to make?

Lord Steyn says that the aim of HRA 1998 was to “bring rights home”, which
only s.3 interpretation can do: the declaration cannot. He reaffirms the need
for s.4 to be treated as a last resort (it is NOT remedial). Though it can lead to
a change in the law which has the benefits of keeping clarity in the law,
avoiding linguistic strain and allows an amendment to happen quickly by
remedial order under s.10.
Lord Millett (dissenting) denied that s.3 could be used. The statute could not
feasibly be given the meaning that the majority considered it to have. He says
that S.3 is NOT really conferring a “quasi-legislative” function rather than
purely an interpretative one.

 Discussion: What are human rights and why are they important?

Discussion:

 Philosopher Alasdair MacIntyre once suggested that belief in human

rights was akin to belief in witches and unicorns – by which he meant
that the whole concept was illusionary and fundamentally flawed. As he
put it: “There are no such rights, and belief in them is one with belief in
witches and unicorns.”
 Philosopher Jeremy Bentham described natural rights (human Rights)
as “simple nonsense: natural and imprescriptible rights, rhetorical
nonsense, — nonsense upon stilts”

Is it not the case that there are only legal rights and states decide
whether you have these or not?

Human rights are norms that aspire to protect all people everywhere from
severe political, legal, and social abuses. Examples of human rights are the
right to freedom of religion, the right to a fair trial when charged with a crime,
the right not to be tortured, and the right to education.

In groups, argue for / against

human rights having a legal
claim rather than a moral claim
to authority.

Human rights are those that

emphasize the universal rights
any person can enjoy and, legal
rights refer to the rights a
particular person is entitled to
enjoy legally as enforced by the state/government whereas moral rights
emphasize the universal ethical rights /guidelines the people can follow.