Introduction
Section 4 of the Human Rights Act 1998 (HRA) creates a specific process in the UK legal system: the declaration of incompatibility. This process allows higher courts to formally state when an Act of Parliament conflicts with rights protected under the European Convention on Human Rights (ECHR), as brought into UK law by the HRA. The main idea behind Section 4 is that Parliament keeps final authority. While a declaration points out a conflict between legislation and Convention rights, it does not change the law’s legal effect. Requirements for making a declaration include showing a direct conflict between the law and Convention rights and assessing whether the law can be understood differently under Section 3 of the HRA. This article explains the legal framework of Section 4, its application, and its place in the UK’s constitutional structure.
The Scope of Section 4 Declarations
Section 4 declarations apply only to Acts of Parliament. Other rules, such as those created by public bodies or secondary legislation, cannot be subject to Section 4 declarations but may be challenged through other legal means. The declaration is a formal court ruling stating that the law violates a Convention right. This process establishes a clear way for courts to inform Parliament about areas where legal changes may be required to meet ECHR standards.
The Process of Issuing a Declaration
Courts must first try to interpret the law in line with Convention rights under Section 3 of the HRA before making a declaration. Section 3 requires courts to read laws in a way that matches Convention rights where possible. Only when this cannot be done may a court issue a declaration of incompatibility. This step-by-step method respects the UK’s principle of parliamentary sovereignty and the courts’ duty to apply, not overturn, laws made by Parliament.
The Effects of a Declaration of Incompatibility
A declaration of incompatibility does not cancel or change the law. The legislation stays in force. This contrasts with other legal challenges where laws might be struck down. However, a declaration carries significant political weight. It marks a failure to meet human rights duties and pressures the government to update the law.
Case Law and Section 4: Key Examples
Major cases show how Section 4 works. Bellinger v Bellinger [2003] UKHL 21 addressed marriage laws conflicting with the right to private and family life (Article 8 ECHR). The House of Lords recognized the conflict but could not reinterpret the law to cover transgender individuals. This declaration led to the Gender Recognition Act 2004. In R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, the House of Lords ruled that the Home Secretary’s role in setting murderers’ minimum sentences violated the right to a fair trial (Article 6 ECHR), resulting in changes giving this power to judges. These cases illustrate how Section 4 declarations, while keeping laws valid, often lead to legal updates.
The Constitutional Role of Section 4
Section 4 balances judicial review with respect for parliamentary authority. It allows courts to identify human rights issues without overturning laws passed by elected lawmakers. This method maintains democratic accountability while ensuring UK laws follow international human rights standards. Government actions following declarations show how this process helps align UK law with ECHR requirements within the constitutional system.
Conclusion
Section 4 of the Human Rights Act 1998 provides a key tool for addressing conflicts between UK laws and Convention rights. Though it cannot cancel incompatible laws, a declaration identifies rights violations and usually leads to legislative adjustments. Cases like Bellinger v Bellinger and R (Anderson) prove Section 4’s role in driving legal changes. The process offers a clear way for courts to inform Parliament of problems, supporting human rights protection in the UK. By balancing judicial duty and parliamentary sovereignty, Section 4 remains important for maintaining ECHR standards in UK law.
