….The special interpretative duty imposed by s.

3 arises only where

the legislation, if read and given effect according to ordinary
principles, would result in a breach of the Convention rights ... That
conclusion also follows on constitutional grounds: the courts endeavour
to ascertain and give effect to the intention of Parliament as expressed
in legislation.

It is only if that intention cannot be given effect, compatibly with

the Convention rights, that the courts are authorized by Parliament,
in terms of s.3 , to read and give effect to legislation in a manner
other than the one which Parliament had intended.
 • The defendant (D) was charged with rape. In his defence he claimed that the
complainant had consented to the sexual intercourse which formed the basis
of the charge. D sought leave under s.41 of the Youth Justice and Criminal
Evidence Act 1999 to adduce evidence and to ask questions relating to an
alleged consensual sexual relationship between himself and the complainant
over the preceding three weeks.

• D asserted on appeal that s.3 of the Human Rights Act 1998 required the
court to construe s.41 in accordance with Art.6 of the European Convention
of Human Rights and, if this could not be done, that a declaration of
incompatibility must be issued.The defendant was charged with rape and
wanted to bring forth evidence of previous consensual sexual relations with
the plaintiff.

• He was precluded from doing this by the Youth Justice and Criminal Act 1999
section 41.This was a kind of rape shield defense, which prohibited a
defendant from bringing evidence or asking questions of prior sexual behavior
of the complainant without leave of court.

There were also concerns that this law had gone too far in protecting the plaintiff.
(Therefore a balance had to be struck between the two opposing rights)

The House of Lords accepted that section 41 had gone too far and had denied the
defendant his due process under Article 6 ECHR.
In order to address the issue the HOL’s had to decide whether the Act made ‘an
excessive inroad into the right to a fair trial’. How then was the court to assess
where this particular provision fell?

Reference was made to an important piece of extrajudicial writing by Lord Lester.

This suggested a two-tier approach to the assessment of legislation in the light of
the HRA.

1) The court had to ask whether or not the provision in question ‘interfered’ with
a Convention right?
2) The court must then move to consider the issue of proportionality.

What is proportionality?

In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands

and Housing [1999] 1 AC 69 Lord Clyde adopted a precise and concrete analysis
of the criteria.

In determining whether a limitation is arbitrary or excessive a court should ask itself:

"Whether:

(i) the legislative objective ( for s.41) is sufficiently important to justify limiting
a fundamental right;

Reasons for this were that too often plaintiffs had brought forth evidence and used it
unfairly against plaintiffs to undermine their case, perpetuate stereotypes and
provide irrelevant evidence.

R v Dica

(ii) the measures designed to meet the legislative objective are rationally
connected to it;

Measure: Disallowing prior evidence of sexual encounter is connected to the

limitation in s.41

(iii) the means used to impair the right or freedom are no more than is
necessary to accomplish the objective."

The limitation on freedom of adducing evidence in the form of previous Sexual

Conduct is necessary and needs to be blocked to protect the real victims of sexual
crimes.
Therefore it must be understood that determining “proportionality” is an act of
interpretation. Leading judgment was given by Lord Steyn:He looked into why
the Act had come about, its history and the scope of the legislation.His
conclusion was that section 41 is too loosely worded and therefore makes
excessive inroads (attacks/invasions) into the right of fair trial

He tries to make use of statutory exceptions built into the Act

41 (3) (b): Where behavior defendant is trying to bring forth is relevant to the issue
of consent and the relevant behavior either took place at or about the same time as
the event out of which the complaint came.

This could not be used as too much time had lapsed between the issue of consent
and the event complained of (3 weeks).

41(3) (c): It was so strikingly similar to any sexual behaviour of the complainant
which (according to evidence adduced or to be adduced by or on behalf of the
accused) took place as part of the event which is the subject matter of the charge
against the accused. (S 41 (3) (c) is a narrow gateway, available only in rare cases.
A High probative value of evidence is required)

The court focused on this section.

Lord Steyn:
It is up to the trial judge to determine whether evidence is probative or
irrelevant or insulting to victim. Words can thus be read into statute:
an ‘implied provision’ that evidence which is probative and is
necessary to a fair trial cannot be excluded. Following this line of
approach it would not be necessary to resort to issue a declaration of
incompatibility.

Lord Steyn argued that, although the subsection was not sufficient under ordinary
methods of statutory interpretation to cure the problem, it was possible by
using the HRA, section 3(1) `to subordinate the niceties of language’ to
interpret the provision to take account of ‘modern considerations of relevance
judged by logical and common sense criteria of time and circumstances’.

(A very strong purposive approach under Sec. 3)

Thus the HOL’s argued that the test of admissibility under section 41(3) (c) becomes
where:

‘due regard always being paid to the importance of seeking to protect the
complainant from indignity and humiliating questions…the evidence… is
nevertheless so relevant to the issues of consent that to exclude it would endanger
the fairness of the trial under article 6 of the Convention’

No matter what justification is given, this is clear and complete distortion of what
Parliament had set out to do. They have completely altered statutory language.

Lord Steyn found S 41 not proportionate in its goals, it was denying fair trial to
the victim and therefore it was justified to read words in the legislation to make
it convention compliant.

Lord Hope disagreed, in his opinion too much freedom was given to judges and
thus public confidence may be lost. According to him the Act itself protects
defendant’s right to ask qs.

Lord Hope was in partial agreement with Lord Steyn he stated sec 3 does not entitle
court to perform role of legislature. Compatibility is to be achieved only as far as
possible to do so, by necessary implication. If Act provides for solution in itself no
need to go into sec 3, he did not disagree with the proportionality test though.
However, He was more in favor for giving a declaration of incompatibility.

Lord Hope wanted to preserve Parliament’s sovereignty; he did not

want to imply words which would be in contradiction to
Parliament’s intent. He stated s 3(1) preserves P’s sovereignty and
does not give legislative powers to judges. Words may be read in to give
effect to Parliaments intention. This must be distinguished from
amendment.

Lord Hope was of the opinion in R v A the legislation cannot be made

compatible with the ECHR if it contains provisions which either expressly or
by necessary implication, contradict Convention rights.

Lord Steyns approach was followed in Goode v Martin.

In this case the COA used s 3 and interpreted Children’s Act 1989 in a way to make
it convention compliant.

HOL:
The COA overstepped its powers, HRA preserves Parliamentary sovereignty.
There is a distinction between interpretation and enactment of statutes.
Courts must be mindful of this limitation; interpretation is for courts
enactment and amendment for Parliament.

If convention compliant interpretation is contrary to express statutory words or

is by implication necessarily contradicted by statute s 3 cannot be invoked.

Lord Nicholls proposes rule of thumb test:

A meaning which departs from a substantially fundamental feature of an

act of Parliament is likely to have crossed the boundary btw interpretation
and amendment.

Law Lords declined to read into Section 29 of the Criminal Sentences Act 1977 a
rule. To do so would amount to judicial vandalism… It would go well beyond what
Parliament intended. Lord Hutton said it would amount to amendment of the statute
which is the Parliaments duty alone.

This case concerned rights of succession to a statutory tenancy under the Rent Act
1977. The respondent had lived in a stable homosexual r/s with the deceased
tenant. But the Rent Act only gave a right of succession to a person living with
the original tenant as his wife or husband, the respondent argued this
interfered with his right under art 8 and 14 ECHR. The homosexual could only
inherit an assured tenancy which did not provide him with equivalent benefits
such as rent protection and prevention from eviction in certain situations.

The HOL agreed and construed the Act in a way to give respondent his rights
making the requirement to be only that the person in question had been living
with the statutory tenant in a stable relationship.
The words “as his or her wife or husband” were read “ as if they were his or
her husband”

HOL stated the Act could be read in a way to make it convention compliant the new
meaning of Act must be consistent with fundamental features of the legislative
scheme.

The approach in Ghaidan was legitimate because the interpretation proposed by the
HOL was consistent with fundamental policy objectives of the legislation. This was to
provide security of tenure.

The judge will interpret UK legislation relying on purposive interpretation and aiming
to incorporate rights provided under the HRA. Clearly where a judicial interpretation
went beyond the policy, court could not legislate in Parliaments place.
The first declaration of incompatibility was issued in R v (1) Mental Health Review
Tribunal
In that case, the Court of Appeal held that ss.72 and 73 of the Mental Health Act
1983 were incompatible with Articles 5(1) and (4) of the ECHRbecause they
reversed the normal burden of proof, by requiring a detained person to show that
they should not be detained rather than the authorities to show that they should be
detained. The legislation was amended by the Mental Health Act 1983 (Remedial)
Order 2001 (SI 2001/3712), which came into force on 26 November 2001.
Article 4 – Prohibition of slavery and forced labour
Article 5 – Right to liberty and security

Bellinger v Bellinger
A transsexual female married a man and sought a declaration from the court
confirming their lawful marriage. The Matrimonial Causes Act 1973 states that a
marriage may be entered into as between a “male” and “female” only – something
which could not take into account gender reassignment, as is the case here. The
court therefore refused to issue the declaration: since the transsexual female was, at
birth, classified male, there could be no lawful recognition of the marriage.
S 11 (c) of the Matrimonial Causes Act 1973 was declared incompatible with Article
8 and 12 in so far as it made no provision for the recognition of gender
reassignment.

Article 8 – Right to respect for private and family life

Art 12- the right to marry and the right to found a family

This case indicates a move towards a more restricted use of sec 3 and a greater
willingness to issue a declaration of incompatibility under sec 4.

Law Lords refused to apply Art 8 and 12 of the ECHR so as to hold a transsexual to
marry. Such an act of interpretation would constitute a legislative exercise of law
reform that should be undertaken if at all by Parliament so a declaration of
incompatibility was made.

These cases show a restrictive interpretation of s 3.

Goodwin v UK

The ECHTR had already identified the absence of any system for legal recognition of
gender change as a breach of Article 8 and 12. This was remedied by the Gender
Recognition Act 2004, which came into force on 4th April 2005.
A v Secretary of State for the Home Department [2004] concerned the
detention under the Anti-terrorism, Crime and Security Act 2001 of foreign nationals
who had been certified by the Secretary of State as suspected international
terrorists, and who could not be deported (as this would breach their rights under
Article 3 ECHR).

Article 3 – Prohibition of torture No one shall be subjected to torture or to

inhuman or degrading treatment or punishment.

Instead, the foreign nationals were detained without charge or trial under s.23 of the
Anti-terrorism, Crime and Security Act 2001. This was in accordance with a
derogation from Article 5 ECHR, which allowed their right to liberty under Article 5 to
be suspended. The House of Lords quashed the Derogation Order because it was
not a proportionate means of achieving the aim sought (the House of Lords was able
to quash the Order because it was secondary rather than primary legislation; you will
recall that the Human Rights Act does not give the courts the power to quash
primary legislation).

Section 23 of the Anti- terrorism, Crime and Security Act 2001 was declared
incompatible with Articles 5 and 14 ECHR, as it was disproportionate and permitted
the detention of suspected international terrorists in a way that discriminated on the
ground of nationality or immigration status. The provisions of the Anti-terrorism,
Crime and Security Act 2001 were repealed by the Prevention of Terrorism Act 2005,
which put in place a new regime of control orders; it came into force on 11 March
2005.

R (Steinfeld and Keidan) v Secretary of State for International

Development [2018] where the the Civil Partnerships Act 2004 was declared
incompatible with Convention rights. The Court found that the fact that different-sex
couples could not enter into civil partnerships breached their rights under

Article 14 (non- discrimination) when read with Article 8 (respect

for private life).
The Supreme Court was clear that the Court should not be reluctant in this case to
make a declaration of incompatibility. It had been argued that the Court should
refrain from doing so, as it was for Parliament, not the courts, to change the law in
this area of sensitive social policy. Lord Kerr, giving the court’s judgment,
acknowledged that the courts do not have to make a declaration where they find an
incompatibility, and that there may be circumstances where it is not appropriate to do
so, but in this case there was no need for reticence, and in the final analysis a
declaration of incompatibility does not require Parliament or the government to take
any action to change the law.
In the matter of an application by the Northern Ireland Human
Rights Commission for Judicial Review [2018] UKSC 27.
The Northern Ireland Human Rights Commission had challenged the compatibility of
the very strict abortion law in Northern Ireland with the ECHR.

In the vast majority of circumstances, it was a criminal offence in Northern Ireland to

have or perform an abortion.
The 1967 Abortion Act made terminations legal in Great Britain up to 24 weeks in
most circumstances - but was never extended to Northern Ireland.
For decades in NI, abortions were allowed only if:
• A woman's life was at risk
• There was a risk of permanent and serious damage to her mental or physical
health

It meant that in many cases, women from NI seeking access to abortion services had
to travel to England.

The ECtHR Grand Chamber most explicitly stated its position on the foetus’ right to
life in its famous Vo v. France judgment. Precisely, it highlighted that the unborn is
not regarded as a “person” directly protected under the European Convention on
Human Rights (‘ECHR’) Article 2 and that ‘if the unborn do have a “right” to “life”, it is
implicitly limited by the mother’s rights and interests’

The Supreme Court held by a majority that a legal technicality meant they could not
make a declaration of incompatibility. Nonetheless, some Supreme Court Justices
did make it clear in their judgments that they considered the abortion law to be
incompatible with human rights and strongly urged the legislature to change the law.
This is an interesting case, as it shows the courts attempting to persuade the
legislature to amend the law because of its incompatibility with human rights, without
actually issuing a declaration of incompatibility under s.4.