9. Human Rights Act 1998: Remedies & Remedial Powers

What power does HRA Section 8(1) grant courts regarding remedies?

Courts may grant just and appropriate relief, remedy, or order within their powers

When can courts award damages under HRA Section 8(3)?

Only when damages are necessary to afford just satisfaction to the victim

How do damages in Convention breach cases compare to private law actions?

Damages generally play a less prominent role in Convention breach actions.

What is the core interpretative duty under HRA Section 3?

Legislation must be read and given effect "so far as is possible" compatibly with Convention rights

Did the government intend for courts to set aside primary legislation under the HRA?

No, due to the importance attached to parliamentary sovereignty

What did Lord Steyn state about linguistic ambiguity for Section 3 in R v A (No 2)?

The interpretative principle is strong, applying even if language is unambiguous, potentially appearing "strained".

What was Lord Hope's contrasting view on Section 3 in R v A (No 2)?

Reinterpretation should not "turn the will of parliament on its head", suggesting it amounted to rewriting

What did the Court of Appeal try to do in Re W and B using Section 3?

They attempted to "adjust" the Children Act 1989 to allow continued judicial intervention in care plans

What was the House of Lords' decision in Re S regarding the CA's Section 3 adjustments?

Section 3 cannot be used to fundamentally alter an Act's features, limiting its reach

What issue arose in Ghaidan v Godin-Mendoza concerning Section 3 and the Rent Act 1977?

Whether "living as his or her wife or husband" could be interpreted to include same-sex relationship

What was the House of Lords' ruling on Section 3 in Ghaidan v Godin-Mendoza?

It was possible to read in words to include same-sex partners, despite original intent

What limit did Lord Nicholls place on Section 3 interpretation in Ghaidan

Cannot adopt a meaning inconsistent with a fundamental feature or underlying thrust of the legislation

How can HRA Section 3 influence private relationships in practice?

Where legislation governing relationships must be interpreted compatibly with Convention rights

What is a Declaration of Incompatibility (DOI) under HRA Section 4?

A judicial statement that legislation cannot be interpreted compatibly with Convention Rights

Does a DOI invalidate or "strike down" the incompatible legislation?

No, it "does not affect the validity, continuing operation or enforcement" of the legislation

Which courts are authorised to make a Declaration of Incompatibility?

The Supreme Court, Court of Appeal, High Court, and certain others

Why did Parliament establish DOIs instead of giving courts a "strike down" power?

To preserve parliamentary sovereignty while inviting judges to identify incompatible legislation

What was the Convention violation identified in R (Anderson) v SSHD?

The Home Secretary's power to set punitive terms for life prisoners violated the right to an independent tribunal (Art 6)

Why was a DOI issued in R (Anderson) v SSHD rather than using Section 3?

The proposed interpretation would have been "judicial vandalism" or an impermissible amendment

What was the Convention violation identified in Bellinger v Bellinger?

Section 11(c) of the Matrimonial Causes Act 1973 was incompatible with Articles 8 and 12 ECHR (transsexual marriage)

Why did the House of Lords issue a DOI in Bellinger v Bellinger?

The issues were ill-suited for judicial determination and Parliament was already committed to action

What was the Supreme Court's majority decision in R (Nicklinson) v Ministry of Justice?

The issue of assisted suicide was for Parliament, despite engaging Article 8, and no DOI was made

What was Lady Hale's dissenting view on issuing a DOI in Nicklinson?

She believed the blanket ban was disproportionate and a DOI should be issued to prompt Parliament

What does a DOI typically prompt from the government and Parliament?

It is "very likely to prompt" a response, usually legislative change

When might a court refuse to issue a DOI, according to Secretary of State for Business and Trade v Mercer?

If new legislation was already pending or envisaged to address the incompatibility

What is the purpose of Section 10 HRA?

It allows a Minister to make remedial orders to correct incompatible legislation following a DOI

When can a Minister use Section 10 powers?

When there are "compelling reasons" to do so

What is the significance of the "compelling reasons" requirement in Section 10?

It ensures a remedial order is not a routine response in preference to new primary legislation