Prior to theHuman Rights Act 1998, the British legal order was that of Constitutional sovereignty

balanced by the shifting rules of law by the courts that helped, to a degree, safeguard certain
constitutional freedoms. One such norm was the assumption that Parliament did not wish to
legislate in order to violate its European Convention of Human Rights responsibilities to the
United Kingdom. Where law was vague or contradictory, such that one meaning of the language
used would agree with the European Convention of Human Rights but another would not, the
former should be accepted by the court. Where the language was plain, however, the courts had
to enforce it, irrespective of the infringement of the ECHR. Although the ECHR could
reasonably be used to shape common law, it did not encourage the courts to request that its
exercise conform to the ECHR when examining the exercise of a discretionary power that would
have been to introduce the 'by the back door' ECHR, an unconstitutional exercise in judicial law-
making. Nor could judges create good flaws in the legislation that required institutions and
processes to be established. All the judge involved could do was to make a plea to be legislated
by another (the executive / legislature partnership) to correct the deficiency. Effective use of the
right of independent petition provided by its machinery by the ECHR bodies in Strasbourg was a
strong way of securing constitutional reform.

” Bringing rights home” was a central goal of the Human Rights Act 1998, allowing United
Kingdom courts to do what had previously only been possible in Strasbourg. It gave further
effect, domestically, to some of the rights and freedoms ('Convention rights') covered by the
ECHR, when the Human Rights Act came into full force. With the preservation of parliamentary
sovereignty, the Human Rights Act integrates positive legal security and regulation of human
rights. Their interpretative responsibilities have been enhanced, and through reference to human
rights principles, the courts remain powerless to invalidate a statute. However, the political,
moral and social pressure created by incompatible legislation-issuing a Declaration of
Incompatibility-is likely to have an effect on that executive/legislature companionship likely to
ship in much the same manner as (and potentially more powerfully than) the European Court of
Human Rights' adverse decision. The Human Rights Act introduces a fast-track mechanism to
allow a remedial order to amend the primary legislation-a form of secondary legislation (on the
model allowed by the 1972 Act of the European Communities-ECA)-if it is deemed necessary to
act more rapidly than possible by the use of the primary legislative method. Laws LJ summarized
the impact of the Human Rights Act in International Transport Roth Gmbh ('lorry drivers' case)
as one building on innovations in common law so as to now provide' a democratic basis for the
recognition of constitutional rights by the common law, and essential new procedural steps for
their defense. As has been noted more than once, its framework shows an elegant balance
between reverence for the constitutional authority of Parliament and the legal protection of the
rights of the Convention.

In the face of primary legislative provisions potentially conflicting with the law(s) of the
Convention, many interlocking provisions of the Human Rights Act must be interpreted and
enforced by the courts, in dialogue with the executive and legislative branches. Section 2 of
Human Rights Act 1998 directs them to take into account the jurisprudence of the ECHR.
Section 3 mandates that an explanation of the allegedly offending clause should be sought, if at
all practicable, in the legislation that makes it consistent with the law(s) of the Convention. If
they are unable to do so, they are allowed by section 4 to declare the offending clause
incompatible with the legislation. Under section 6, courts, as public bodies, must comply with
the rights of the Convention. Since that section also specifies that courts may not violate that
obligation if an incompatible law determines the manner in which they may behave, it is
arguable that, as a whole, section 6 allows them to issue a declaration of incompatibility.

Section 2 is purposely not binding: the courts which depart from the jurisprudence of the ECHR.
This reflects the lack of a strict system of precedent in Strasbourg, acknowledges that many of its
rulings are extremely particularistic, and that some turn to the 'margin of appreciation' of the
State, a doctrine not available to a national court as such, because it derives from the status as an
international tribunal of the European Court of Human Rights. Lord Hoffman claimed in
Alconbury that if ECHR decisions" compelled a presumption profoundly at odds with the
division of powers under the British Constitution, [he] would have great doubt as to whether they
should be enforced”

Section 3 allows, as far as practicable, primary legislation to be interpreted and given effect
whenever enacted in a way that is consistent with Convention rights S.3(1) of the HRA 1998 is
also known as the interpretative obligation states that “So far as it is possible to do so,primary
legislation and subordinate legislation must be read and given effect in a way which is
compatible with the convention rights”.The section can be described idiomatically as a 'bend
me, form me' clause, treating legislation as a highly ductile product that can be moulded . But
the metaphor may be reversed: the interpretation of rights still has versatility, which could mean
that stage three is never reached, as compatibility has instead been accomplished by a degree of
reshaping of the right at problem. S.3(2) provides that s.3(1) does not affect the validity of any
incompatible primary or delegated law, its ongoing implementation or compliance. Lord Lester
and Lord Pannick the two admirers of HRA 1998,stating the responsibilty of courts under
Section 3 said that “the role of the court is not as in traditional statutory interpretation to find
the true meanings of the provisions but to find if possible the meaning which best accords with
the convention rights” The correct implementation of section 3 allows a court to define the
relevant legislative requirements that are said to result in incompatibility with usual
interpretation. Doing so would help prevent it from straying too far from its legitimate
interpretive role.

In accordance with section 4, if a court of sufficient seniority is satisfied that a provision of

primary legislation is incompatible with a right under the Convention, it may make a declaration
of such incompatibility. Section 4(2) of the HRA 1998 states that if the court is convinced that
the provision is incompatible with the law of the Convention, the incompatibility can be
declared. A court must give notice to the Crown, deciding whether to make one, so that the
Crown may become a party to the proceedings and have, as a result, the right of appeal. Section
4, rather than imposing an obligation, is framed as granting the court discretion in the matter. In
Poplar Housing, Lord Woolf CJ claimed that the court would be guided by the ordinary factors
relevant to the grant of declarations, while in Re S, Re W, Lord Nicholls emphasized that a
declaration of incompatibility would usually only be issued to a survivor of a real or proposed
violation of a convention right, and he did not consider the claimant to raise the point as a
constituting victim. However, if a court, having found that a legislative provision infringes a
convention right-an infringement not reversible by inventive interpretation using section 3-has to
rely on that provision to dismiss the claimant's argument, the court would be obliged to comply
with the rights of the Convention in breach of its section 6, unless it invokes the security of
section 6(2) by declaring profits. Anything akin to an obligation to make such a statement exists
in that case.

The judiciary can use one of the traditional approaches for interpretation in interpreting
legislation. But if the interpretation is incompatible with the ECHR, then only a new method can
be followed by the court. The general strategies for legislative interpretation where convention
rights are at issue have been established.These including Reading in, Reading out and Reading
down. Reading down includes the restriction of the interpretation of terms in the law in order to
obtain a result consistent with the rights of the convention. As it was seen in the case of Ghaidan
v Mendoza (2004) where the reading down approach was adapted by the courts to read down the
1997 Rent Act under the HRA 1998 S.3 so it was in compliance with the rights in
Convention.Reading in permits the judges to introduce new words to protect the compatibility. In
R v A (No 2) [2001] it was held that if necessary the courts will read in the words into the statute
to ensure conformity within the Convention Rights. Reading down incorporate that the court
must strike or fail to implement clauses that would otherwise render the statute incompatible
with the law.

In R v (1)Mental Health Review Tribunal,North and East London Region (2) Secretary of State
for Health ex p H (2001) the amendments were made in the sections of legislation which were
incompaible with the articles of ECHR. In the cases Bellinger v Bellinger (2003), Goodwin v UK
(2002,)Fitzpartrick v Sterling Housing Authority Ltd (2001) judges were seen adopting different
techniques to bring compliance between the laws. In the famous case of R v Secretary of State
for the Home Department (2004) the declaration of incompatability was issued for the first time
and Supreme Court was also seen declaraing the issue of incompatability in the case of R(on the
application of Steinfeld and Keidan) v Secretary of State for International Development (2018).

The literal and purpsive approach to interpretation continues to be embraced by juries. In trying
to offer effect to Parliment 's purpose, they also use conventional aids. The HRA 1998 does not
change it drastically, but there are aspects in which the ECHR shifts the approach and balance
between the judiciary and the legislature. Although this does not bring about a radical change in
the rules of statutory interpretation, the emphasis on seeking a way to read provisions that are
consistent with the ECHR has contributed to a disparity in approach and has been seen in the
case of Feldman (2005) and a subtle shift in the relationship between judicial, legislative and
executive relations.