The Situation before the Human Rights Act

In the traditional doctrine of statutory interpretation, the courts looked at the ordinary meaning of the words in a statute as well as the Parliamentary intent behind it.   Before the advent of the Human Rights Act (“HRA”) under the Common Law the courts applied two main principles to protect rights. The first was the doctrine of “anxious scrutiny” which requires that “The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.” (R v Ministry of Defence, ex p Smith)  The second principle was the “principle of legality” which holds that “the right in question cannot be abrogated by the state save by specific provision by an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate.”  (R v Lord Chancellor, ex p Witham) This principle does not prevent Parliament from specifically legislating to abrogate a right, but as Lord Hoffman explained in ex parte Simms ” the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words.” (R v Secretary of State for The Home Department Ex Parte Simms)

Changes to Judicial Interpretation Brought about by the HRA

In regards to the HRA, Professor Gearty stated that ‘In the breadth of its ambition and in the potential reach of its terms, British Law has never seen anything like this piece of legislations’.  The way in which the Human Rights Act 1998 changed the legal landscape was by inserting a new method of interpretation into British Law which required the courts to read and give effect to legislation in a way which is compatible with the Convention rights ‘so far as it is possible to do so’(s3) ; requiring that the courts take into account decisions of the Strasbourg Court when determining a question concerning a Convention right (s2); allowing the Court to make a declarations of incompatibility (s4); making it unlawful for public authorities to act incompatibly with the Convention (s6);  and by creating a cause of action for breaches by a public authorities and providing for remedial damages for breaches. (s7 and s8)

The Application of s3 Interpretation

At first It was unclear how s3 would change the traditional model of statutory interpretation in the. The first two cases to make it to the House of Lords (“HOL”) showed that the Courts would take a ‘extremely vigorous stance’ when it came to trying to find a Convention compatible interpretation of a provision.

In R v A , s41 of the Youth Justice and Criminal Evidence Act restricted questions regarding the sexual history of a complainant except on evidence or questions about complainant’s sexual history where it rebuts evidence led by the prosecution, relates to a relevant issue at trial and that issue is not one of consent, If the issue is one of consent, the behaviour is either alleged to have taken place at or about the same time as the alleged offence or is so similar to the complainant’s behaviour at that time that it cannot reasonably be explained as coincidence. In this case the proposed use of the Complainant’s sexual history fell outside these exceptions. The HOL agreed that if ordinary statutory interpretation was used then it would not be allowed. They held that interpreting the Act was a ‘blanket exclusion of potentially relevant evidence’, was simply too restrictive, and amounted to ‘legislative overkill’ (Lord Steyn). Under the special rule of construction under s3 HRA the Court held that it was possible to read the section subject to an implied provision that evidence or questioning which is required to ensure fair trial under Art 6 European Convention on Human Rights could be admitted by the trial judge: ‘The test of admissibility is whether the evidence is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under Art 6.’ In this case the Court developed a linguistically strained interpretation of the provisions so as to make it Convention compatible. Lord Steyn stated that the ‘Will of Parliament as reflected in s3 will sometimes [make it necessary] to adopt an interpretation which linguistically may be strained. The technique to be used will not only involve the reading down of express language in a statue but also the implication of provisions.’ Similarly, to this case was the case of R v Lambert where the Court held that reading the requirement in the Misuse of Drugs Act 1971 would create a legal burden on the Defendant to prove that he did not know he was in possession of drugs, did not know the quality of the item of which he was in possession, took possession of the drug in order to destroy it, or thought that the drug was a legal controlled drug. The Lords read ‘prove’ to mean ‘provide evidence’ using s3 of the HRA in order to do so.

The operation of s3 to read in words to a statute can also be seen R v Offen a case which is described by Professor Gearty as containing ‘a particularly savage legislative intervention’. In this case the Crime (Sentences Act) 1997 provided that if Defendants committed two serious offences they would receive a mandatory life sentence unless there were undefined exceptional circumstances. The Court of Appeal interpreted exceptional circumstances in light of the Parliamentary intention and s3 HRA and stated that the underlying purpose of the Act was to protect the public. Therefore, they held that only those shown to be a danger to the public should be given a life sentence. The Lord Chief Justice stated that the interpretation would ‘still give effect to the intention of Parliament’ but in a ‘more just, less arbitrary and more proportionate manner.’

Radical Approach/Cautious Approach (Lord Steyn v Lord Hope)

In Re A Lord Steyn stated that the ‘interpretative obligation [under s3] is a strong one which applies even where there is no ambiguity’. Some commentators preferred the approach of Lord Hope which they termed the cautious approach rather than what they thought was Lord Steyn’s radical approach. However, what they failed to appreciate was that Lord Hope had voted for the majority in this case and read in a judicial discretion. Lord Hope’s agreed that s3 went beyond traditional methods of interpretation but had reservation about departing from express terms and legislative intention.

Fundamental Feature : A Limitation to s3 Interpretation

A limitation was placed upon the use of s3 interpretation in the case of Re S. In this case the Court of Appeal read into the Children Act 1989 new powers and procedures for courts to supervise and monitor the implementation of care orders by local authorities so as to protect children against violations of their Article 8 rights. This decision was reversed by the HOL which stated that s3 could not be used in this instance, as to do this would be to have the effect of undermining a fundamental Nicholls stated that this was likely to ‘have crossed the boundary between interpretation and amendment… the departure has practical repercussions which the court is not equipped to evaluate.’

There is no bright line as to what will be regarded as a fundamental feature as this will depend on the context of a case. What would be required here would be the re-writing of the statutory scheme and this was a form of legislative law making. Lord Irvine stated taht ‘ Re S does not preclude s3 from producing unexpected, but acceptable results that clarify and improve the law and achieve compliance with the Convention….. Parliament has invited the Courts to use the Convention creatively to find the right answer…’ but in this case to attempt to change the law by way of the necessarily piecemeal tool of the judicial rectification would be inappropriate.

The Role of Parliamentary Intent: Judicial Vandalism not Judicial Interpretation

As well as the fundamental feature restriction on the use of s3, questions still remained about the possible constraining role of Parliamentary intent in the ability of the Court to read in or down statutes under s3 HRA. In R v Anderson, the Appellant had been convicted of two murders for which he was given a life sentence. s29 of the Crime (Sentence) Act 1997 provided that ‘if recommended to do so by the parole board, the Secretary of State may, after consultation with the LCJ together with the trial judge if available, release on license a life prisoner.’ The Sec of State disagreed with the assessment of the judge and imposed a longer period of imprisonment than what he had recommended. Mr Anderson argued that the provision was contrary to his right to a fair trial under Art 6 ECHR as matter about sentence length should be dealt with by a Court of law. The HOL agreed that this was in breach following recent Strasbourg jurisprudence but they did not agree with his argument that this section could be read to mean that the maximum period could not exceed that recommended by the judge. Instead of reading the statute to be in compliance under s3, they made a s4 declaration of incompatibility. Lord Bingham stated that what ‘emerges clearly’ form the section is that the power to release a convicted murderer is conferred on the Home Secretary, that this decision was ‘plainly deliberate’, and to read the section in the way argued would not be ‘judicial interpretation but judicial vandalism… giving the section an effect quite different from that which Parliament intended and would go well beyond any interpretative process sanctioned by s3. Lord Steyn argued similarly that it would not be ‘interpretation but interpolation inconsistent with the plain legislative intent.

Was the Decision in R v Anderson Contrary to that in R v A?

In Anderson, Lord Steyn stated that s3 is not available when ‘The suggested interpretation is contrary to express statutory words or by implication is necessarily contradicted by statute’ this seemed contrary to what he said in R v A that ‘a declaration of incompatibility must be avoided unless it is plainly impossible to do so’ and this impossibility will only arise where ‘a clear limitation on Convention rights is stated in terms.’ Some commentators argued that Lord Steyn had recanted and was falling back into line on interpretation but this is not the case as in Ghaidan v Mendoza he noted that Anderson would require a radical rather than piece-meal reform of the legislation in question ‘interpretation could not provide a substitute scheme’. He had been limited by the fundamental feature requirement rather than by express terms or statutory intent.

The fact that the vigorous approach of the Courts in attempting to find a compatible interpretation under s3 remains can be seen in the case of Ghaidan v Mendoza. In this case the Rent Act 1977 had been expanded so that a person living with the original tenant as his or her wife or husband would be treated as a spouse and entitled to a secure tenancy upon there partner’s death. The Court held that they could expand the understanding of the word spouse to include a homosexual partner despite the fact that the words husband and wife are gender specific and the fact that parliament never intended this expansion to same sex couples. The judges of the HOL were modest about their ability to establish clear rules about when s3 could be applied. Lord Nicholls reiterated that that s3 does not depend on ambiguity for it to operate. He understood the affect that this had on the doctrine of Parliamentary intention stating that ‘s3 may require the Court to depart from this legislative intention…. The intention of the Parliament which enacted the legislation.’ This means that the language of a particular provision does not determine whether a s3 interpretation is and the mere fact that the language is incompatible with a Convention compliant meaning does not of itself make the convention complying interpretation impossible.’ This case seems to put out of doubt the fact that creating a different effect than the one Parliament intends would not prevent the application of s3. The fundamental feature requirement was still in place but not breached as interpreting spouse to include gay couples would be a ‘modest development’ and it would not entail far-reaching practical repercussions.

The General Rules

Based upon Lord Steyn’s statement that s3 has a remedial effect ‘where the rights violation in substantial and a remedy is required’ there will be strong presumption in favour of a strained interpretation under s3 where a s4 declaration of incompatibility will not provide an adequate remedy for an applicant. In deciding whether a strained interpretation is possible the Courts will of course take into account factors such as:

      1. How strained the interpretation has to be;
      2. Whether it would be inconsistent with core features of the legislation;
      3. Whether it would have wide ranging implications for the broader legislative context; and
      4. Whether it would involve judges making decisions which would be more appropriate for legislative decision makers.

Conclusion: S3 A New Understanding of Statutory Interpretation

The author argues that judicial law-making whereby judges make law by determining what is just on a case by case basis is more restrictive than legislative law making where a whole area of law can be changed but that judicial law-making is an entirely legitimate judicial exercise which is give a further imperative by s3 to attempt to apply law in a way which is Convention compatible if possible. Clayton and Tomlinson submit that this new application of judicial interpretation can be understood with reference to Parliamentary intention in that as ‘the conventional rule is that when interpreting a statute, the courts are seeking to determine the ‘intention of the legislature’’ this intention can still be applied in cases in which Convention rights are in play with the effect of s3 being ‘equivalent to requiring the Court to act on a presumption that the intention of the legislature was to enact a provision compatible with Convention Rights.’ As there is s4 declaration of incompatibility, this cannot be an irrebutable presumption. Kavanagh concludes that the rebuttal of the presumption in favour of Convention compatibility by express terms will be rare and ‘unusual’ and it would be difficult for Parliament to deliberately prevent a s3 interpretation as it is unclear under which circumstances the fundamental features limitation or the legislative deliberately as would come into play. Therefore, the Courts have found that judges have the power to rectify legislative language even when it was quite clear giving them a wide discretion to ensure that legislation is human rights compliant.

Michael Polak is a member of Chambers who practises in criminal law, extradition, and human rights. He is currently instructed in a human rights case against the Ministry of Justice as well as an international human rights case concerning the disappearance of a person.