Q: Explain using examples from recent cases, what interpretative obligation Section 3 of HRA 1998

places on judges and what is the effect of DOL under Sec 4 of the Act? (19)

The question deals with the legal principles of Statutory Interpretation, alongside its operation after the
accession of ECHR into domestic law through HRA 1998. In seeking to be able to critically examine it, in
the first part we shall acquire knowledge about what is SI? Why is it one of the cardinal features of
English Law System (ELS). The second climax of the question will discuss the traditional approach to
interpretation of statutes prior to HRA and then go onto discuss impact of HRA on SI after 1998 through
it’s main provisions under Section 3 and Section 4. In the final part by analyzing key cases and citations
Goodwin v UK, Anderson 2002, I would evaluate whether HRA do revolutionize the way in which judges
interpret statutes.

The of role judiciary is to construe the meaning of the legislation enacted by parliament in a way which
is consistent with the intention of the parliament , Tindal CJ in Sussex Peerage Claim. This gives rise to
various complexities. However, despite that it possesses a fundamental position in the English Legal
System. A.V Dicey excellently explain it’s important as: ‘statutes themselves though manifestly obtain
more than half of their meanings from judicial decisions.’ This is supplemented by Lord Templeman,
saying that; ‘interpreting any document is more of an art than a science.’

The judges overcome to the most important issue of SI, they followed an approach namely the
traditional approach. This complex mechanism is generally reflected by crude labels; Literal, Golden and
Mischief Rule. Under the literal rule the words of the statues are given a plain meaning, Lord Esher in R
JCLC. If this lead to absurdity the worlds will be modified to some extent to avoid this inconsistency
through Golden rule, Lord Wensleydale in Grey v Pearson. Then comes the mischief rule as set out in
Heydon’s case which direct the judge to look at the mischief and defect for which the common law
before enactment of statute did not provide.
Prior to the enactment of HRA 1998, ECHR was directly effective relevant to SI because it could not be a
source of rights and unless a statute was ambiguous, it could not be used for SI according to, R v
Secretary of State for Home Department.

Now we discuss the main area of the question, in order to provide a positive protection of rights HRA
was enacted. The key measure are Section 3 used by judges in SI. It stated that ‘primary and sub
ordinate legislation must be read and given effect in a way which is compatible with Convention Rights
so far as it is possible to do so.’ (The International and Comparative Law Quarterly). This is supported
by section 4, and says “declaration of incompatibility” which means that if the court cannot construe the
meaning compatibly with ECHR they make such a declaration, Bellinger v Bellinger. The court mention
in R v Coroner the rule applies to past as well as future legislation . To the extent that it effects the
legislative provision, the courts will not be bound by previous interpretations. They will be able to find a
new body of case law taking into account the ECHR material, Section 2.

The interpretative obligation imposed by Sec 3 is that with the introduction of HRA , judges in UK will
have now an overriding obligation imposed upon them when they interpret and apply domestic
legislation. However the special interpretative duty imposed by sec 3 arises only where the legislation, if
read and given effect according to ordinary principles, would result in a breach of the Convention rights”

(Judicial Review, 2016, Vol 21, issue 2).

Nevertheless under HRA although judges are still allowed to use three rules of canons, they must still
fulfill Sec 3 meaning that judicial attitude cannot be passive anymore, limiting the power of the courts.
(The Cambridge Law Journal, 2002, Vol 61, issue 1)

The secondary aim of interpretative process under this Sec is what articulated by Lord Hope as; ‘… Sec
3(1) requirement is to search for a "possible" reading. This may lead to conclusions which depart from
the ordinary meaning of the words used, and would not be produced by the application of any of the
other usual canons of construction…’ For this Francis Bennion stated that ‘Parliament's original
intention is no longer the sole deciding factor.’ This means that when interpreting under S.3, judges can
detach legislative meaning from its original contextual setting. Lord Cooke suggested that ‘S.3(1) would
require an approach to SI very different from that to which United Kingdom courts are accustomed.
Traditionally the search has been for the true meaning; now it will be for a possible meaning…’ This view
was supplemented by Lord Pannick and Lord Lester the two strong promoters of HRA.

Now cases demonstrating how Section 3 changes the way in which judges interpret statutes will be
discussed.
In R v A, the House of Lords considered whether S.41 of the Youth Justice and Criminal Evidence Act
1999 (YJCEA) was breaching the defendant’s Article 6 right to a fair trial. The courts were aware that
S.41 might be contrary to Article 6 if an accused was not permitted to put evidence before the court
about consensual sexual relations. Depriving the accused of this right could be a breach of a right to a
fair trial, HOL made use of S.3 HRA to allow S.41 YJCEA to be read as allowing the admission of evidence
or questioning related to a relevant issue in the case where it was considered necessary by the trial
judge to make the trial fair.

In Ghaidan v Godin-Mendoza, the defendant argued that the Rent Act 1977 was discriminating against
him as a homosexual by depriving him of rights over the flat of his deceased partner. In Fitzpatrick v
Sterling House Association Ltd (2001), the HOL had recognized the rights of such individuals to claim as
a member of the family but declined to allow them to in her it statutory tenancies on the grounds that
they could not be considered to be the wife or husband of the deceased as the Act required. The COA
held that the Act had infringed the defendant’s rights under Articles 8 and 14. The Court of Appeal then
used S.3 HRA to read the Act in a broad way, allowing the defendant to take over the tenancy of the flat.
And this ruling was affirmed by the HOL.

It is noteworthy that If this gets impossible, parliament has given the judiciary carte blanche to
determine when it is impossible to interpret statutes in a manner compatible with Convention rights to
issue a Declaration of Incompatibility (Section 4) , Bellinger v Bellinger. These are intended to be used
as a last resort but with no effect on the outcome of the case illustrated by R (Carson) v. Secretary of
State for Work & Pensions [2005]. This reflects that English courts have no power to declare AOP
invalid. There is no legal obligation to take action against the incompatibility, nevertheless this may lead
to provision being amended or repealed by parliament. The first DOI was issued in R v Mental Health
Review where it was held that Sec 72 and 73 of Mental Health Act 1983 was incompatible with Art 5
and 4 of ECHR. This is further encapsulated in recent case of Re Northern Ireland HR Commission
Application for Judicial Review 2015. The leading case of DOI is A v Secretary of State for Home
Department concerning the detention of foreign nationals suspected as international terrorists under
Anti Terrorism Crime and Security Act 2001.

In conclusion, my notion after examination of key cases is that statutory interpretation has been greatly
modified by the Sec 3 and 4. Its impact on statutory interpretation appears at first glance to be relatively
straightforward. These changes are so significant that it could be described as revolutionary. The
rationale behind this is that the courts are fleshing out their constitutional role by developing new
techniques of SI in order to give effect to Convention rights, and by delineating the circumstances in
which they will issue a declaration of incompatibility. These new techniques have brought far-reaching
changes which are of interest to common law system. Sir Jack Beatson has observed extracurially that
section 3 ‘makes statutory provision more like common law doctrine’, due to the relative decline in
importance of the statutory text and the increased importance of Convention case law in determining
the interpretation that a court ultimately adopts.