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A Question of Law.

Re: A Question of Law.

Postby triken3 » Wed Feb 08, 2017 7:04 am

The House of Lords does not agree with your interpretation:

Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent) [2004] UKHL 30; LORD MILLETT
at Para 59.“....First, the requirement in Section 3 is obligatory. In R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 373 Lord Cooke of Thorndon described the section as "a strong adjuration" by Parliament to read and give effect to legislation in a way which is compatible with Convention rights. With respect, it is more than this. It is a command. Legislation "must" be read and given effect to in a way which is compatible with Convention rights. There is no residual discretion to disobey the obligation which the section imposes.”
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Re: A Question of Law.

Postby dls » Wed Feb 08, 2017 8:48 am

There is no residual discretion to disobey the obligation which the section imposes.


but very often the exact extent of the duty imposed is unclear.
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Re: A Question of Law.

Postby triken3 » Wed Feb 08, 2017 9:23 am

But the House of Lords, in that ruling, has made both the existance and the extent of the obligation perfectly clear;

It is the law of the United Kingdom that the Secretary of State 'must' read all legislation and having done so, ensure that he interprets any legislation enacted subsequent to the ECA 1972 in light of the command contained within the ECA 1972 to give effect to, in the instant case, Ms. Miller's Constitutional Right to the peaceful enjoyment of the Rights conferred by the Constituition, without hindrance or interferance by an Officer of the Crown.

What is the point of writing down a law in statute form, if a person can choose not to read it?

Ignorance of the law is no defence in law, and cannot be pleaded as a defence for an act in violation of the law.

Of course, it must be remembered that the House of Lords ruling is merely an affirmation of what the law is and was, not the creation of a 'new' law that exists only from the date of the ruling.

Further, Section 3 of the HRA 1998 is an injunction requiring specific performance.

And you know the consequences for breaching the terms of an injunction.
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Re: A Question of Law.

Postby atticus » Wed Feb 08, 2017 10:06 am

Whatever it is, s3 of the Human Rights Act 1998 is not an injunction, using that word to mean an order of the court.
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Re: A Question of Law.

Postby dls » Wed Feb 08, 2017 10:10 am

Ms. Miller's Constitutional Right to the peaceful enjoyment of the Rights conferred by the Constituition,


you say it is quite clear, but it clearly was not. peaceful enjoyment refers to property rights. The extent of property rights has been regularly doubted and litigated. I may be wrong, but constituional rights are not property rights requiring peaceful enjoyment.
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Re: A Question of Law.

Postby triken3 » Wed Feb 08, 2017 11:21 am

Atticus; "Whatever it is, s3 of the Human Rights Act 1998 is not an injunction, using that word to mean an order of the court."

I refer you to - Wood v Secretary of State for Work and Pensions 2003:
Lord Rix at para 78: 'Bearing in mind Article 6 of the ECHR and the injunction contained in section 3 of the Human Rights Act 1998, I would add that it seems to me that it is perhaps better to give a strained interpretation to the provision which deals directly and explicitly with the right of appeal, than to the other provisions which do not.'

Dis; 'constitutional rights are not property rights requiring peaceful enjoyment'

So, a person may not interfere with your right to the peaceful enjoyment of, say, a Right of Way, but is allowed to interfere with your peaceful enjoyment of your Article 2; Right to Life?
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Re: A Question of Law.

Postby atticus » Wed Feb 08, 2017 11:34 am

Thank you for that reference. The use of the word "injunction" in that sense does not make s3 an order of the court, and so your reference to the consequences of failure to comply is misplaced. You show a readiness to conflate one thing with another.
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Re: A Question of Law.

Postby dls » Wed Feb 08, 2017 1:38 pm

So, a person may not interfere with your right to the peaceful enjoyment of, say, a Right of Way, but is allowed to interfere with your peaceful enjoyment of your Article 2; Right to Life?


There you go again. You continually use words and phrases which have precise technical meanings in a context which suggests that use, but without any regard to the actual technical meanings.

It makes your posts sound pompous and empty.

Yes, the convention gives a right to life.

Article 2 – Right to life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a riot or insurrection.


the term 'enjoyment' has particular technical use and meaning as regards property rights, but that is not a meaning which applies sensibly to the right to life.

you were talking about constitutional rights, but have jumped across. Rights under a constitution are not by virtue of being such Human rights under the convention. we might enjoy our constitutional rights a la AP Herbert, but that is not 'enjoyment' as it applies to property rights under the Convention.

You may have a good point, but if you have it is being lost in the overblown and misused verbiage.
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Re: A Question of Law.

Postby triken3 » Thu Feb 09, 2017 6:29 am

Dis;
"the term 'enjoyment' has particular technical use and meaning as regards property rights, but that is not a meaning which applies sensibly to the right to life."

Please explain to a 'man on the Clapham omnibus' the technical meaning you mention, and how it is not sensible to apply the same meaning to Convention Rights?
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Re: A Question of Law.

Postby dls » Thu Feb 09, 2017 8:22 am

apply the same meaning to Convention Rights?


it does apply to some convention rights - the enjoyment of property.
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