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Human Rights Act 1998 — SQE1 Public law question

A worked single-best-answer question on human rights act 1998, with why each wrong option is wrong — the way SQE1 traps candidates.

Human Rights Act 1998

A housing statute gives a right to succeed to a tenancy to 'a person who was living with the original tenant as the tenant's husband or wife'. Jonah lived with his male partner, the tenant, in a long-term relationship for 15 years until the tenant died. They were not married. The landlord argues that the plain words cover only opposite-sex couples and that Jonah therefore has no right to succeed. Jonah relies on Articles 8 and 14 of the Convention.

Which of the following best describes how the court should approach the statute?

  1. AThe court may apply the Human Rights Act only if the words are ambiguous; as they are clear, it must give them their ordinary meaning.
  2. BThe court must disapply the provision, because it is incompatible with Convention rights.
  3. CThe court's only option is to make a declaration of incompatibility, because it cannot change the words Parliament used.
  4. DThe court must, so far as possible, read the provision compatibly with Convention rights, which may include reading it as 'as if they were husband or wife', provided this does not go against a fundamental feature of the legislation.
  5. EThe court must ask the minister to make a remedial order before deciding the case.
Show answer and reasoning
D is the best answer. Section 3 of the Human Rights Act 1998 requires legislation to be read and given effect compatibly with Convention rights 'so far as it is possible to do so'. In Ghaidan v Godin-Mendoza, the House of Lords read the phrase 'as his or her wife or husband' as 'as if they were his wife or husband', so that a surviving same-sex partner could succeed. The duty applies even where there is no ambiguity, but cannot be used to go against the grain or a fundamental feature of the legislation.

Rule: Courts must, so far as possible, read and give effect to legislation compatibly with Convention rights, even reading in words, unless contrary to a fundamental feature of the Act.

  • A The s 3 duty applies even where the words are clear and unambiguous. (wrong rule)
  • B The Human Rights Act does not permit courts to disapply primary legislation. (wrong rule)
  • C A declaration of incompatibility is a last resort, available only if a compatible reading under s 3 is not possible. (wrong rule)
  • E Remedial orders follow a declaration of incompatibility; they are not a precondition to the court interpreting a statute. (wrong rule)

Source: Human Rights Act 1998, s 3; Ghaidan v Godin-Mendoza [2004] UKHL 30

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