Remedies and remedial powers Flashcards
(10 cards)
Q: What is the function of Section 3 HRA and what are its limits?
A: Section 3 requires courts to interpret all legislation “so far as it is possible to do so” in a way that is compatible with Convention rights. It does not allow courts to:
Repeal or amend legislation.
Adopt interpretations contrary to the fundamental feature of a statute.
Section 3 HRA key case
Key case: Ghaidan v Godin-Mendoza [2004] – The House of Lords interpreted the Rent Act to include same-sex couples using s.3.
Q: What happens if legislation cannot be read compatibly under Section 3 HRA?
A: Courts may issue a Section 4 Declaration of Incompatibility, stating that the legislation is incompatible with Convention rights.
This does not invalidate the law.
It places pressure on Parliament to amend the law.
S4 key case
Key case: Bellinger v Bellinger [2003] – A declaration of incompatibility was issued regarding marriage law and gender recognition.
Q: What is the role of Section 6 HRA and who does it apply to?
A: Section 6 makes it unlawful for a public authority to act in a way that is incompatible with a Convention right, unless required by primary legislation.
It applies to central and local government, police, prisons, courts, etc.
Case example for s6 era
Key case: A v Secretary of State for the Home Department [2004] – The detention of foreign nationals under the Anti-terrorism Act was incompatible with Article 5 ECHR.
Q: What does Section 7 HRA provide regarding who can bring a claim?
A: Section 7 allows any person who is a “victim” of an unlawful act under s.6 to bring a claim in UK courts or rely on a Convention right in existing legal proceedings.
The term “victim” mirrors that in Article 34 of the ECHR.
Q: What kinds of remedies can be granted under Section 8 HRA?
A: Courts may grant “just and appropriate” remedies, including:
Damages
Injunctions
Declarations
Quashing of decisions
Remedies are discretionary and must consider:
The principles of judicial review
Whether damages are necessary to afford “just satisfaction” (as under Article 41 ECHR)
Key case for S8 HRA
Key case: R (Greenfield) v Secretary of State for the Home Department [2005] – Emphasised that the primary goal of HRA remedies is vindication of rights, not compensation.
