Chapter 17 Guidance on answering the exam questions

Under section 3 of the Human Rights Act, ‘Judges must perform a quasi-statute-writing function’. (Lord Neuberger, ‘“Judge not, that ye be not judged”: Judging Judicial Decision - making’, FA Mann Lecture 2015 [47]).

Discuss.

  • Explain the purpose of the Human Rights Act, the role it gives to judges and how the courts give effect to Convention rights.
  • Explain the interpretative obligation on judges under section 3 Human Rights Act.
  • Use judicial dicta and academic comment to discuss the importance of section 3 and what judges are required to do, compared with the traditional approach to statutory interpretation.
  • Use cases to illustrate how the courts have approached their section 3 duty.
  • Are the courts carrying out a semi-statute-writing function? How far can they go? What are the limits on their duty? Again, use dicta to explain.
  • How does section 3 relate to section 4 Human Rights Act? When is a declaration of incompatibility used? Provide case examples. Why are the courts issuing a declaration of incompatibility in those cases?
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