An undisputed role of the UK courts and tribunals is that of statutory interpretation. The meaning of statutes is not always clear and explicit and may lead to litigation before the courts. The courts have developed a number of rules to assist with the interpretation of statutes. This is not controversial.
Since Convention rights are binding, the HRA requires that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with ‘Convention rights’. Section 3(2) provides, however, that this power does not apply to legislation that is incompatible with Convention rights. Where it is not possible to interpret legislation compatibly with Convention rights, then it is open to the courts to make a declaration of incompatibility under section 4 (see below).
How section 3 works
Case study: Ghaidan v Godin-Mendoza95 Section 3: interpreting legislation consistently with Convention rights
In this case section 3 of the HRA was effectively used to interpret legislation to prevent a breach of same sex couples’ right to family life and non-discrimination in their living arrangements.
Mr Wallwyn-James was living in a flat in London as a tenant from 1983 until he died in 2001. He was living with Mr Godin-Mendoza at the flat in a long term same-sex couple relationship at the time of Mr Wallwyn-James death. The claimant Mr Ghaidan who was the owner of the flat applied to a court for the possession of the flat after Mr Wallwyn-James died.
The key issue in the case was whether Mr Godin-Mendoza's human rights to family life (article 8) and non-discrimination in the enjoyment of that right (article 14) would be breached if he was not entitled to a ‘statutory’ tenancy to live in the flat.
There are a number of benefits of a statutory tenancy as opposed to an ‘assured’ tenancy. the rent payable under an assured tenancy is the contractual or market rent, which may be more than the fair rent payable under a statutory tenancy, and an assured tenant may be evicted for non-payment of rent without the court needing to be satisfied, as is essential in the case of a statutory tenancy, that it is reasonable to make a possession order.
The Rent Act 1977 provided only that a ‘person who was living with the original tenant as his or her husband or wife’ would be eligible to succeed to the tenancy.
The House of Lords used section 3 of the HRA to interpret the provision ‘as his or her wife or husband’ in the Rent Act to mean ‘as if they were his wife or husband’. As a result the court decided Mr Godin-Mendoza should have the right to a statutory tenancy in the same way as the survivor of a married couple. This also avoids the court having to make any declaration of incompatibility under section 4 of the HRA which should only be used by the courts as a last resort.
The reasons for the duty?
This power to ‘read down’ legislation in a manner consistent with Convention rights is, in many ways, simply a statutory extension of the long-standing principle of our common law constitution that fundamental rights can only be overridden by express statutory language.96As Lord Hoffmann said in Ex Parte Simms in 1999:97
Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
The power in section 3 is, moreover, consistent with the approach taken by other common law countries, for example, the approach of the Canadian Supreme Court under the Canadian Charter of Rights and Freedoms 198298 or section 6 of the New Zealand Bill of Rights Act 1990:
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
It is clear from the parliamentary debates that this power to ‘read down’ legislation consistently with Convention rights was intended to be the primary remedy of the courts under the HRA. It was predicted in the Third Reading debate in the House of Lords, that ‘in 99 per cent of the cases that will arise, there will be no need for judicial declarations of incompatibility’.99 Similarly, the Home Secretary told the House of Commons during the Second Reading debate that the government expected that ‘in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention’.100 Since the Act came into force, the UK courts have used section 3 to give effect to the Convention rights of individuals in a wide variety of cases.
Why concerns are misplaced
It is also worth remembering that by ratifying the Convention the UK government signalled its clear intent to honour its obligations; the interpretation of legislation in a way which is compatible with the Convention is part of that commitment.
In Ghaidan the Law Lords made it clear that ‘a judicial reading down, or reading in, under section 3 did not flout the will of Parliament as expressed in the statute under examination’.101 As Lord Nicholls said in that case, the obligation on the courts to interpret legislation consistently with Convention rights was one that entrusted to them by Parliament:102
Section 3 is a key section in the Human Rights Act 1998. It is one of the primary means by which Convention rights are brought into the law of this country. Parliament has decreed that all legislation, existing and future, shall be interpreted in a particular way. All legislation must be read and given effect to in a way which is compatible with the Convention rights 'so far as it is possible to do so'. This is the intention of Parliament, expressed in section 3, and the courts must give effect to this intention.
Moreover, as Lord Steyn made clear, if Parliament disagreed with an interpretation by the courts under section 3, ‘it is free to override it by amending the legislation and expressly reinstating the incompatibility’.103
Lord Steyn also stressed that the use of the interpretative power under section 3 was intended to be ‘the principal remedial measure’ under the HRA, and that the making of a declaration of incompatibility under section 4 was ‘a measure of last resort’.104
There are nonetheless limits to the interpretative obligation under section 3. An example of these limits was the 2002 case of Anderson,105 which concerned the power of the Home Secretary under section 29 of the Crime (Sentences) Act 1997 to release a prisoner serving a mandatory life sentence on licence. Anderson is a very good example of the court respecting the will of Parliament.
The House of Lords rejected the argument that it could ‘read down’ section 29 to exclude the role of the Home Secretary: as Lord Bingham put it:106
To read section 29 as precluding participation by the Home Secretary, if it were possible to do so, would not be judicial interpretation but judicial vandalism: it would give the section an effect quite different from that which Parliament intended and would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act
More recently, the UK Supreme Court considered its duty under section 3 in the case of R(GC) v Commissioner of Police for the Metropolis,107 concerning the retention of DNA samples by police under section 64(1A) of the Police and Criminal Evidence Act 1984 in the wake of the ruling of the Grand Chamber of the European Court of Human Rights in S and Marper v United Kingdom in 2009 that it was a breach of article 8 to retain indefinitely the DNA samples of people who had not been convicted of a criminal offence.
Although replacement legislation had been enacted (the Crime and Security Act 2010), it had not yet been brought into effect. The Association of Chief Police Officers had for practical reasons kept operational its pre-2009 guidelines to local police forces directing continued indefinite retention. Ruling that the guidelines were unlawful, the Supreme Court did not compel the police service to obey the Strasbourg jurisprudence, in the absence of a change made by Parliament.
In conjunction with the reciprocal power to make a declaration of incompatibility under section 4, the interpretative obligation under section 3 has been widely acclaimed as a sensitive and proportionate means of giving effect to Convention rights in a way that is compatible with Parliamentary sovereignty. As the President of the UK Supreme Court Lord Phillips noted in a recent lecture:108
Provided that the main thrust of their legislation is not impaired they have been happy that the courts should revise it to make it Convention compliant, rather than declare it incompatible. In my experience, counsel for the Secretary of State usually invites the court to read down, however difficult it may be to do so...
In April 2011, the think tank Civitas published a pamphlet which among other things called for the amendment of section 3 in order to:109
prevent the courts from re-writing the express terms of legislation in order to pre-emptively avoid any inconsistency with the ECHR, where doing so would undermine the 'object and purpose' of the legislation according to the intentions of Parliament at the time of enactment.
The courts have repeatedly made clear in cases such as Ghaidan, that the obligation to interpret legislation consistently with Convention rights is one that has been placed upon them by Parliament itself in enacting the HRA. In other words, when interpreting legislation under section 3, the courts are not only giving effect to Parliament’s intention behind that particular statute but also Parliament’s intention when it passed the Human Rights Act. As Lord Steyn pointed out, if Parliament considers that the courts have misunderstood or frustrated their intention, ‘it is free to override it by amending the legislation and expressly reinstating the incompatibility’.110
More generally, there is nothing particularly unusual about Parliament legislating in this manner, nor are the effects of judicial interpretation limited to cases under the Human Rights Act. In HM Treasury v Ahmed, for instance, the UK Supreme Court held that the Treasury had exceeded its power to establish a scheme for freezing the assets of suspected terrorists under the United Nations Act 1946, and used its inherent power to quash the orders as ultra vires. In a case that was nothing to do with the Human Rights Act, Parliament acted quickly to enact emergency legislation: the Terrorist Asset Freezing (Temporary Provisions) Act 2010.
Similarly in another case that did not involve the Human Rights Act – R (Chief Constable of Greater Manchester Police) v Salfords Magistrates’ Court and Paul Hookway111 –in which a High Court judge interpreted the time limits under section 41 of the Police and Criminal Evidence Act 1984 in a restrictive manner, Parliament again was able to act swiftly to introduce emergency legislation to correct it: the Police (Detention and Bail) Act 2011.112
The possibility of the courts misapprehending Parliament’s legislative intent is, therefore, not something which arises only in relation to the HRA. On the contrary, it is a general feature of our legal system. This is why it always remains open to Parliament to legislate in order to correct what it sees as mistakes by the courts or anomalies uncovered by judicial scrutiny.
Section 3 of the Act gives the courts the responsibility to interpret legislation in order to give effect to Convention rights. Although this interpretative obligation is stronger than the traditional common law principle of legality, the use of section 3 by the courts has been proportionate and effective in protecting Convention rights in a manner consistent with Parliament’s intent.
As the parliamentary record makes clear, it was always Parliament’s intention that most issues under the HRA should be resolved by reference to section 3 rather than section 4. As Lord Phillips points out, this is the solution that has generally found favour with government ministers as well. As with any court decision concerning the interpretation of legislation, it is always open to Parliament to legislate to correct any mistakes that may arise. Section 3 works well to protect Convention rights and consider criticisms of it to be misplaced.