Public law Essay Example | Topics and Well Written Essays - 1250 words

Public law - Essay Example When a public authority acts in an incompatible manner with the Convention rights, it has to demonstrate that the primary legislation’s provisions had prevented it from doing so (Crone, 2013, p. 271). As such, Sections 3 and 4 of the HRA provide a better and more inclusive class of judicial responses to statutory infringements of the Convention, in comparison to what Section 6, in isolation, provides in common law cases. A declaration of incompatibility is not feasible in common law cases. On the other hand, when such infringements cannot be rectified under Section 3 of the HRA, the courts can pronounce a declaration of incompatibility under Section 4 of the HRA (Kavanagh, 2009, p. 71). Section 3 of the Human Rights Act 1998 (HRA) enjoins that primary and subordinate legislation have to be interpreted and implemented, to the extent feasible, in a manner that is compatible with the rights provided under the European Convention on Human Rights (ECHR). The interpretation of this Section is principally on the basis of the ruling in Ghaidan v Godin – Mendoza. During the pronouncement of their judgment, in this case, their Lordships employed the provisions of this Section to annul an interpretation provided by them to the Rent Act 1977. This decision had been given in Fitzpatrick v Sterling Housing Association (Smit, 2007, p. 294). Moreover, the employment of Section 3 of the HRA could compromise legal certainty for private individuals engaged in a legal relationship that is totally or partially subject to a statutory framework. For instance, in Ghaidan, the landlord, subsequent to their Lordships’ decision had been compelled to grant tenancy to the same gender partner of his deceased tenant. As pointed out by some critics, this decision had served to dilute the consensual aspect of the original relationship (Smit, 2011, p. 81). However, in the absence of explicit statutory preclusion, the courts will adopt a purposive approach and rule on the basis of