The power to strike down Acts of Parliament is defined as the power to declare legislation invalid because it is unconstitutional. This paper will critically assess sections 3 and 4 of the HRA 1998 by defining them, reviewing case law surrounding their use, and by evaluating the powers that they give to the judiciary. By doing so, it will demonstrate that section 3 gives judges powers that are not significantly different from the power to strike down Acts of Parliament, whereas section 4 does not.
Section 3 of the Human Rights Act (HRA) 1998 provides that primary and subordinate legislation “must be read and given effect in a way which is compatible with Convention rights”. This provides judges the power to interpret and amend legislation so far as it is possible so that it is in accordance with Convention rights. There is no need for ambiguity in wording of the act to use section 3 and it does not affect the validity of the Act notwithstanding the Act being incompatible with Convention rights. There are limits on judges’ ability to use section 3 which restrict cases in which it can be used. First, section 3 cannot go against the grain of the fundamental purpose of the legislation in question. Second, judges can only go “so far as possible” when interpreting legislation. The means that judges are restrained by the plain words of the provision and cannot stray from it’s meaning so far as to completely amend it.
Next, section 4 of the HRA 1998 provides that if the court is satisfied that the provision is incompatible with convention rights, a higher court may issue a ‘declaration of incompatibility’ (DOI). A DOI does not strike down legislation or remove it from the statute book. It defers the issue of incompatibility to the government and Parliament, giving it the option to take remedial action. Parliament and the government have three options after a DOI has been issued. First, they can use the fast-track remedial procedure under section 10 of the HRA 1998. This allows ministers, where there is ‘compelling reasons’, to amend legislation without having to go through the lengthy parliamentary process. Second, Parliament can take remedial action by using the ordinary legislative process. This method is the most frequently used of the three, seeing that the first options requires ‘compelling reasons’ in order to use it. Finally, they can decide to take no action because Parliament is not bound by a DOI to amend legislation. According to Lord Irvine, “the [DOI] is very likely to prompt the government and Parliament to respond”. Also, complainants can take their case the ECHR after they exhaust domestic remedies; therefore providing an incentive to act once a DOI has been issued.
Section 3 Case Law
In R v A, section 41 of the Youth Justice & Criminal Evidence Act 1999 was found to violate Article 6 of the European Convention of Human Rights (ECHR) because it denied the Defendant’s right to a fair trial. Section 41 prohibited...