University of London Common Law Reasoning and Institutions

Essay Title: The Human Rights Act has revolutionised the way in which judges interpret statutes. by SIM BEE YING

The question is concerned with the impact of section 3 Human Rights Act 1998(HRA) on judicial interpretation of statutes and whether this has somewhat created a salient threat to the intention of Parliament in enacting a statute. On the other hand declarations of incompatibility under section 4 of HRA, seem to have only persuasive effect and do not change the existing law in any way; the only pressure being political. The balance between the applicability of the two sections has to be dealt with as too much of judicial activism under section 3 may have an undesirable effect of creating yet another exception to parliamentary sovereignty.

There is no doubt that the mechanisms in which the HRA incorporated the European Convention of Human Rights (ECHR) bring a fundamental impact on the practice of statutory interpretation. As it can be seen on the article of Statutory Interpretation and Human Right1 which Rt. Hon. Lady Justice Arden2 concluded that,

the United Kingdom is a relative newcomer in the field of statutory interpretation and human rights. But it is clear, even from domestic law developments thus far, that human rights require a fresh approach to some of the established ideas and concepts of statutory interpretation. Moreover, there is plenty of scope for the courts to develop further the approach to the interpretation of legislation where human rights are involved.3

However the question is always concern about to what extent the passing of the HRA has altered the way in which judges interpret statutes. Francis Bennion says that the HRA has revolutionised our constitution and also revolutionised statutory interpretation where there is a challenge on human rights grounds4. However, Adam Gearey opines that it could hesitatingly be suggested that the judicial practice is changing to such an extent that judges now have an acknowledged legislative power, as compared to the legislative power of Parliament, is limited. Though it may be
1 2

Paper presented to the Commonwealth Association of Legislative Counsel, 9 September 2005. Member of the Court of Appeal of England and Wales 3 http://www.opc.gov.au/calc/docs/Loophole_papers/Arden_Jul2007.pdf accessed 5 April 2013 4 http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lja_261107.pdf accessed 28 April 2013

effectively makes judges the legislators of human rights. In other words, parliamentary sovereignty is preserved. It is therefore to be concerned with the realignment of a judicial practice rather than its complete redefinition5.

In 1997, the New Labour Government published a white paper, Rights Brought Home6. The HRA gives further effect in the UK to the fundamental rights and freedoms in the ECHR. ECHR is the most important international treaties created by the Council of Europe after the Second World War to stop such atrocities and acts of cruelty happening again.7 In 1966, the UK granted its citizen the right to petition by taking the long road to Strasbourg since Britain enshrined our basic liberties into the ECHR more than fifty years ago. However after the HRA coming into force in 2000, a person may still do the same but only after having exhausted all domestic remedies.

While the statutes are a fundamental source of law, it becoming much important because of the sheer volume of enacting each year. It is the means by which the legislature imposes its will on the citizen and judges simply ascertain Parliamentary intention through the language that Parliament has used. This is called the Agency Model by Lady Justice Arden. In that event, judges are not going to consider any constitutional issues other than interpreting what is written in front of him. It is so to accomplish as faithfully as he can the will of the Parliament. While in practice due to the imperfect tool of communication there are situations where the meaning of a statute is uncertain. Then, the job of the courts is to discover how Parliament intended the law to apply and put that into practice. Therefore in determining the intention of Parliament from the language used, the court used to read the statute as a whole and that all the words must be given a meaning. However, the legislative history is now can be used as an aid to the interpretation of the statute8. Provided that the legislation is ambiguous and if a government minister, or other promoter of the Bill, made a statement which to be relied upon is clear--5

Adam Gearey, Wayne Morrison and Robert Jago, The Politics of the Common Law (Routledge, London 2009) 6 Rights Brought Home (Cm. 3782, London, 1997) 7 http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/documents/digitalasset/d g_070456.pdf accessed 5 April 2013 8 Pepper v Hart [1993] AC 593

Hansard, an official daily report of parliamentary debates which therefore record of what was said during the introduction of legislation was concerned. However, this model is based on the doctrine of Parliamentary Sovereignty and so inconsistent with the direction in the HRA.

S.2 of the HRA provides that when a court or tribunal is determining a question in connection with a Convention right it must take into account judgments, decisions or declarations of the European Court of Human Rights (EctHR). Thus judges are now expected by the Parliament to interpret Acts in a way which ensures that it is compatible with the Human Rights Convention, as S. 3 of the Act provides: "So far as possible to do so, primary legislation and secondary legislation should be read and given effect in a way which is compatible with Convention rights." However if the court cannot construe the statute in a way that is compatible, it can issue a declaration of incompatibility under S.4 of HRA. This novel approach applies to both pre HRA and post HRA legislations has indicated that in fact it is no longer a matter of looking at Parliamentary intention. Hence the judge is no longer an agent of ascertaining Parliamentary intention but generally he is now acting as the guardian of human rights and constitutional rights. This is the alternative model, called Dynamic Model. However, a declaration of incompatibility does not mean that the legislation is held to be void. In the landmark House of Lords case of R v A9 the apex court was prepared to interpret and apply its own duty under S.3 of the HRA. The House had to construe S.41 of the Youth Justice and Criminal Evidence Act 1999, restricting evidence and questioning about the victims sexual history. The Law Lords applie d their interpretive duty under S.3 of the HRA and gave proper regard to the protection of the complainant but effectively read into the statute protection for the accused under Art.6. According to Lord Steyn in that case, two processes if interpretation had to be distinguished, the ordinary method of purposive and contextual interpretation and the interpretive obligation of HRA, S.3(1). In interpreting S.3 of the HRA he

R v A [2001] UKHL 25

stated the HRA S.3 obligation went far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision. Parliament placed on a court a duty to strive to find a possible interpretation compatible with Convention rights. It was much more radical than the ordinary method of interpretation which permitted a departure from language of an Act to avoid absurd consequences. In accordance with the will of Parliament, in enacting the HRA, it would sometimes be necessary to adopt an interpretation which linguistically might appear strained. The techniques to be used would not only involve the reading down of express language in a statute but also the implication of provisions. Interpreting S.4 of the HRA he stated that a declaration of incompatibility was a measure of last resort.

However, Lord Hope was not in agreement with his views and was committed to the principle that S.3 of the HRA does not change the traditional approaches to statutory interpretation and neither does it radically create any new exception as stated by Lord Steyn. When a judge enters into the S.3 phrase of interpretation, there is an expansion in their tasks but as cautioned by Lord Hope in R v Lambert10, the change is not without limits as it is not for judges to legislate. Therefore, Lord Hope found it difficult to assess that it was permissible under S.3(1) to read into the statutes, a requirement that evidence of questioning which was required to ensure a fair trial under S.6 should not be treated as admissible. Lord Steyn on the other hand believed that in applying S.3 the court may depart from or adjust the language of the statute to achieve convention compatibility. Besides that, Law LJ11 in the Court of Appeal (COA) was adamant that if the law needed to be changed it would be a legislative act and nothing else. He opines that all judges could do is to make a declaration of incompatibility. In relation to the governments failure to introduce legislation on the matter, he stated that the court has no role to sanction government for such failures. Under the HRA the minister has no obligation to act on a declaration of incompatibility.

10 11

R v Lambert [2009] EWCA Crim 2860 R (Chester) v Secretary of State for Justice and another [2009] EWHC 2923

However there is another case called Ghaidan v Godin-Mendoza12 which represents a powerful statement of the courts preparedness to interpret legislation so that it is compatible with human rights. It stated as long as it did not go against the grain of the legislation measure, there was no limit to the words that could be read in or out of a legislative measure. Lord Nicholls emphasised that S.3 has an unusual and far-reaching character. He said that the intention of Parliament in enacting S3 was, to the extent bounded only by what is possible, a court can modify the meaning and hence the effect of primary and secondary13. As a result of this recent decision, it seems that a more radical approach is appropriate.

Thus, it can be seen that the nature of the S3 interpretative duty has been ferociously debated. While some have argued that S.3 interpretation is a radically different exercise from engaging conventional construction, others suggest it should only be applied to ambiguous statutory provisions and be carefully tailored to the textual language of the statutory provision being examined. According to Lord Steyn dicta in R v A, S.3 has endowed a new power to the judges to exercise greater judicial activism in construing statutes. The same is suggested by Michael Pinto-Duschinsky in his article of Bringing Rights Back Home: Making human rights compatible with parliamentary democracy in the UK (2002). It can be submitted that the undesirable effect of this would be a partial dent on parliamentary sovereignty though judges camouflage their decisions with statements that hypothetically parliament would not have objected to such strained meaning on legislation.

In conclusion, there is no denying that interpretation under S.3 brings about significant changes in the traditional role of discovering Parliamentary intention in statutory interpretation. In shift, the interpretive focus away from what Parliament originally intended towards fulfilling the overriding role of achieving compatibility with the Convention. Lady Justice Arden has suggested that future generations will not regard this as a strained interpretation, as it is sometimes described. Instead they will recognize that the basis in this context is that the judge is no longer an
12 13

Ghaidan v Godin- Mendoza [2004] 1 WLR 113 ibid, para 33

agent of ascertaining Parliamentary intention and that his function is as guardian of constitutional norms, including human rights. Aileen Kavanagh also offers an impressive statement that she agrees that the HRA give judges strong power of constitutional review although she prefers to call it a partnership between Parliament and the courts rather than judicial supremacy. Finally, the essay is to end with the belief of Keith Ewing, a professor at Kings College London, that the HRA represented the most significant formal redistribution of political power involving a transfer of political power from the executive and legislature to the judiciary. Lord Steyn is not being too extreme; in fact the undesirable effect of judicial activism under S.3 creates another exception to parliamentary sovereignty.

Bibliography
Books
James Holland and Julian Webb, Learning Legal Rules (7th edn OUP, Oxford 2010) Adam Gearey, Wayne Morrison and Robert Jago, The Politics of the Common Law (Routledge, London 2009) Hilaire Barnett, Constitutional & Administrative Law (9th edn Routledge, London 2011)

Articles
Aileen Kavanagh, The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998 (2006) 26 OJLS 179 Michael Pinto-Duschinsky, Bringing Rights Back Home: Making human rights compatible with parliamentary democracy in the UK (2002)

Official Published Sources

Rights Brought Home (Cm. 3782, London, 1997)

Electronic Sources
http://www.opc.gov.au/calc/docs/Loophole_papers/Arden_Jul2007.pdf accessed 5 April 2013 http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/documen ts/digitalasset/dg_070456.pdf accessed 5 April 2013 http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lja_261107.pdf accessed 28 April 2013 http://www.peterjepson.com/law/Human%20rights%20-%20stat%20interp.pdf accessed 5 April 2013

Table of Statutes
Human Rights Act 1998, c.42 Youth Justice and Criminal Evidence Act 1999, s.41

Table of Cases
R v A [2001] UKHL 25 R v Lambert [2009] EWCA Crim 2860 R (Chester) v Secretary of State for Justice and another [2009] EWHC 2923 Ghaidan v Godin- Mendoza [2004] 1 WLR 113 Pepper v Hart [1993] AC 593