Purpose and Effects of Section 4 of Human Rights Act Assignment

Purpose and Effects of Section 4 of Human Rights Act - Assignment Example In the case of primary laws, the right simply accrues upon a finding of incompatibility but in the case of secondary laws, there must be a determination of incompatibility in addition to the requirement that the primary legislation relevant to it prevents its removal. Instances, when the courts used this prerogative, is in the cases of International Transport Roth GMBH and others v Secretary of State for the Home Department and the R (H) v Mental Health Review Tribunal N&E London Region.  In Roth, a group of lorry drivers and haulage companies challenged Part II of the Immigration and Asylum Act for being incompatible with convention rights. The said legislation was passed to answer the flagrant clandestine illegal entry by penalizing, among others, the owner, driver, operator, and hirer with a fine of  £2000. The lower court declared the said provisions of law incompatible with Art 6 of the HRA because it penalizes, in effect, a criminal act despite its claim to the contrary and therefore violates Art 6 because the determination of guilt, among others, is single left to the Secretary of State and Art 1 because of the penalty of vehicle detention involved infringement on property rights. On the other hand, in the R(H) case, the court made a determination of incompatibility against s 73 of the Mental Health Act of 1983 on the ground that it violates Art 5 on the Right to Life and Liberty by placing the burden of proof on the applicant rather than the hospital in showing basis for detention of patient in a mental hospital.  As stated, only certain courts enumerated by s 4 can exercise this prerogative. However, the preceding section of the HRA which requires that both primary and secondary legislation â€Å"must be read and given effect in a way which is compatible with Convention rights† does not distinguish which courts are obliged or not. The implication is that although not all courts are given the prerogative to declare incompatibility with conv ention rights, all courts must nevertheless take into consideration the issue of compatibility but apply the national law just the same. The remedy in such cases is an appeal to a higher court with the power to declare such incompatibility.