Sections 3-4 of the Human Rights Act 1998: The Interpretative Obligation Reconsidered

Author: 201201863 2013 Lord Rodger Essay Prize

Research Question:

Has the right balance between judicial interpretation of legislation under the Human Rights Act 1998 to ensure compatibility with the ECHR and continued respect for parliamentary sovereignty been struck?

Abstract:

The interpretative obligation of the UK courts pursuant to s.3(1) of the HRA 1998 has greatly expanded the ambit of statutory interpretation as a method of protecting human rights in this jurisdiction. The framers of the Act, fully cognisant of the difficulty of reconciling the seemingly competing aims of domestic legal protection of human rights and continued parliamentary sovereignty, introduced a delicatemechanism in sections 3 and 4 to achieve both objectives.

It will be argued that the House of Lords’ seminal decision inGhaidan v Godin-Mendoza has served to rather clearly demarcate theouter boundary of what is ‘possible’ under s.3(1), after cleardifferences in judicial opinion had emerged. Bearing that in mind, notable human rights cases concerning sentencing and terrorism law will be used to demonstrate that there are situations in which a section 4 declaration of incompatibilityis the only appropriate option.

Overall, s.3(1) has significantly enhanced judicial protectionof human rights without the courts having usurped the role of Parliament. Whether this balance can be maintained as the senior judiciary change depends on the extent to which the precedents that have been set will be followed, which is likely as the HRA jurisprudence matures further.

Word Count: 199 words

1. Introduction: Sections 3 and 4 of the HRA 1998

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The Human Rights Act (HRA) 1998 is a unique statute for the United Kingdom. On the face of it, it is merely an ordinary Act of Parliament passed in order to allow for the enforcementof human rights enshrined in the European Convention on Human Rights (ECHR) 1950 before the domestic UK courts. However, upon closer examination, the Act may be viewed as an ingeniousattempt by the legislature to offer meaningful human rights protection in this jurisdiction, whilst maintaining the legislative supremacy of Parliament.

Sections 3 and 4 of the HRA are at the centre of this novel mechanism. As is well known, the HRA does not allow UK courts to strike down primary legislation that is found to be incompatible with one or more of the Convention rights scheduled to the Act. That said, these provisions have compelled the judiciary to closely scrutinise both pre- and post-HRA legislation for human rights compatibility and this has resulted in the interpretation of such legislation in a manner that goes far beyond the traditional literal or purposive approaches combined with the well-known common law conventions and presumptions. An important presumption worth noting, en passant, is the resort to international law instruments such as the ECHR as an aid in the construction of ambiguous provisions in domestic legislation.1 Section 3(1) of the HRA, which obligates the courts to read and give effect to“primary legislation and subordinate legislation... in a way which is compatible with the Convention rights” so “far as it is possible to do so”, goes far beyond this old common law practice, clearly having had a monumental impact on UK statutory interpretation where human rights have been in issue.

It is stressed that s.3(1) is the only legal remedy in the Act, yet declarations of incompatibility made under s.4 have 1 Geoffrey Marshall, ‘Two Kinds of Compatibility: more about section 3 of the Human Rights Act 1998’ [1999] PL 377, 378

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been a surprisingly effective albeit non-legal remedy. On one count, 15 out of 18 s.4 declarations had been acted upon by the Government and the remaining ones were pending review.2 Forthe purposes of this essay, s.3(1) is undoubtedly of the utmost interest, for it is the proper ambit of the interpretative obligation thereunder that has given rise to a wealth of divergent judicial and academic opinions at the highest level. It can be safely said that s.3(1) allows courtsto read words in, out or down with respect to statutory provisions, in order to make them compatible with the ECHR where ‘possible’. Moreover, it may be said that s.3 “introduces a new qualifying rule” to the effect that legislation is not to be applied in a manner that violates theConvention rights.3 In respect of post-HRA legislation it follows that Parliament legislates in the light of this rule that qualifies its supposedly unbridled legislative powers4, but the same cannot be said of pre-HRA legislation, which is in effect being reinterpreted retrospectively owing to human rights law.

2. The Development of Section 3 Jurisprudence-Strained Interpretation?

In the early days of the HRA, the proper ambit of the interpretative obligation under s.3(1) was first authoritatively assessed by the House of Lords in the case of R v A (No.2)5. The appeal turned on the issue of whether section 41(3)(b) of the Youth Justice and CriminalEvidence Act 1999 pertaining to the admissibility of sexual history evidence in rape cases was in breach of the Art. 6 right to a fair trial. Their Lordships held that s.3(1) of theHRA could be used to interpret the said section in a manner

2 Mark Elliott and Robert Thomas, Public Law (1st edn, OUP 2011) 7523 Philip Sales and Richard Ekins, ‘Rights-consistent interpretation and theHuman Rights Act 1998’ (2011) 127 LQR 217, 2334 Ibid5 [2001] UKHL 25; [2002] 1 AC 45 (HL)

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compatible with Art. 6. For present purposes, the differences in opinion between Lords Steyn and Hope in the case are of considerable interest.

Lord Steyn referred to the view expressed by the Lord Chancellor, Lord Irvine, in respect of section 4 of the HRA prior to its enactment, that “in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility”6, with apparent approval.7 In a similar vein, his Lordship accordingly appeared to favour a wide ambit for s.3(1), stating that “it will sometimes be necessary to adopt an interpretation which linguistically may appear strained” and that a “declaration of incompatibility is a measure of last resort”.8 Lord Steyn’s dictum is based on a reading of s.3(1) to the effect that Parliament had intended for the interpretative powers of the courts under that section to be far-reaching ones, seemingly relying on the strong wording of the provision which employs the imperative ‘must’ and deliberately uses the term ‘possible’ rather than the weaker ‘reasonable’9 in tandem with remarks such as those made by theLord Chancellor in Parliament.

By contrast, Lord Hope was more hesitant, with his Lordship stating that he “would find it very difficult to accept that it was permissible under section 3 of the Human Rights Act 1998 to read in to section 41(3)(c) a provision to the effect that evidence or questioning which was required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible.”10 Nonetheless, Lord Hope chose not todissent in R v A (No.2) and his position with respect to s.3(1) atthe time seems to be accurately represented in his statement 6 Hansard HL vol 585 col 840 (5 February 1998)7 n 5, 68 8 Ibid9 This term is used in the New Zealand Bill of Rights Act 1990 and clearly limits the courts’ power more than the term ‘possible’ used by the framers of the UK Human Rights Act 1998.10 n 5, 86-87

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that s.3 is “only a rule of interpretation. It does not entitle the judges to act as legislators.”11 It will be shortlyseen that his Lordship’s attempted ‘interpretation/legislation’ dichotomy has commanded both judicial and academic support, but the exact dividing line between what are commonly viewed as the respective domains of the judiciary and of Parliament is far more difficult to ascertain. It seems the judiciary in subsequent cases have adopted a position in between those of Lords Steyn and Hope which appeared to be at opposite ends of the spectrum of the ‘possible’ under s.3(1).

A decision that may be viewed as disregarding the supposed boundary between legitimate interpretation under s.3(1) and illegitimate judicial legislation was that of the Court of Appeal majority in In re S (Minors) (Care Order: Implementation of Care Plan)12 overturned by the House of Lords on appeal. The case concerned the compatibility of the child care order system under the Children Act 1989, which vests more powers in local authorities than in the courts. The Court of Appeal’s decisionto introduce a system in which essential milestones in care plans were to be identified and starred, in order to make the Act compatible with Arts. 6(1) and 8 of the ECHR, was reversedby the Law Lords, who were of the opinion that “this judicial innovation passes well beyond the boundary of interpretation”13. Lord Nicholls gave the leading opinion in the House, seeking to reinterpret the opinion of Lord Steyn inR v A (No.2) as not necessarily requiring a limitation on ECHR rights to be stated in express terms by Parliament in legislation.14

It is submitted that In re S (Minors) is a particularly important case in HRA jurisprudence, because it showed the limits of

11 n 5, 8712 [2002] UKHL 10; [2002] 2 AC 291 (HL)13 Ibid, [43] (Lord Nicholls) 14 n 12, [40] (Lord Nicholls)

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permissible interpretation in a much clearer light than earlier appellate rulings. In particular, the following dictumof Lord Nicholls has been oft-cited and is therefore arguably one of the best indications of the boundary of the ‘possible’:

“...a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate.”15 (Emphasis added.) A so-called “fundamental feature” of an Act will be ascertained using the usual methods of statutory interpretation and it will be seen from the discussion below that this has been read to refer to both express language and necessary implications of a statute. That said, this “doctrineof fundamental features is at present too unsettled to secure legal certainty”16, because, especially in the case of necessary implications, much is left to the judiciary’s evaluative judgments that will surely be influenced by normative views on the check on judicial power that parliamentary sovereignty imposes. The reference to “practicalrepercussions” is also significant, for this reflects traditional judicial reluctance to make policy decisions, viewed as being the responsibility of the democratic legislature and not of the unelected judiciary. What is however quite striking about the House of Lords’ decision in this case is that their Lordships recognised the validity of the “serious practical and legal problems identified by the Court of Appeal”17, yet refrained from abusing their powers under s.3(1) of the HRA as the court below, in my submission, had done. This is a fine example of restraint in statutory interpretation owing to legitimate concerns for the separationof powers and parliamentary sovereignty in the UK.

15 Ibid16 Jan van Zyl Smit, ‘The New Purposive Interpretation of Statutes: HRA Section 3 after Ghaidan v Godin-Mendoza’ (2007) 70(2) MLR 294, 30317 n 12, [106] (Lord Nicholls)

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3. Beyond the ‘Possible’-The Use of s.4 Declarations of

Incompatibility

Before turning to Ghaidan v Godin-Mendoza18, it is useful to assess leading cases in which s.4 declarations were handed out. R (Anderson) v Secretary of State for the Home Department19 is considered to be of particular importance, because Lord Steyn seemed to moderate his stance in respect of s.3(1) of the HRA.It was claimed that the Secretary of State’s power to set the tariff for convicted murderers pursuant to s.29 of the Crime (Sentences) Act 1997 contravened the claimant's right to a fair hearing by an independent and impartial tribunal under Art.6(1) of the Convention. The Law Lords unanimously reversedthe decision of the Court of Appeal, holding that the Home Secretary was performing a sentencing function, which may not be performed by a member of the executive owing to the inherent lack of impartiality and independence.

Their Lordships issued a s.4 declaration, refraining from a highly strained compatible reading under s.3(1), since readings.29 “as precluding participation by the Home Secretary, if itwere possible to do so, would not be judicial interpretation but judicial vandalism”20 per Lord Bingham. Equally unequivocalwords were employed by Lord Steyn to highlight the inability of using s.3(1) in this instance, stating that it “would not be interpretation but interpolation inconsistent with the plain legislative intent to entrust the decision to the Home Secretary, who was intended to be free to follow or reject judicial advice”21 (emphasis added). For good measure, Lord Hutton reiterated the impermissibility of the House engaging

18 [2004] UKHL 30; [2004] 2 AC 557 (HL)19 [2002] UKHL 46; [2003] 1 AC 837 (HL)20 n 19, [30] 21 n 19, [59]

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“in the amendment of legislation”22 using its special s.3(1) interpretative powers.

Prima facie this decision may be viewed as a large step back fromthe propensity to adopt a strained interpretation under s.3(1)in order to achieve compatibility with the Convention rights in R v A (No.2). Aileen Kavanagh correctly notes that Lord Steyn’sposition in Anderson appears consistent with that of Lord Hope in R v A (No.2), after the serious incompatibility of their Lordships’ respective views in that case.23 In particular, LordSteyn agreed that “[s]ection 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute”24, approving the dictum of Lord Nicholls in In re S (Minors) to that effect. Nonetheless, the precise impact of the decision in Anderson, notwithstanding Lord Steyn’s rather dramatic change of view, is a matter of opinion. Per Marshall,Anderson demonstrated judicial willingness to “hold fast to the lynchpin of Parliamentary intention”.25 This view must be takenwith a pinch of salt, for Marshall appears to suggest that this decision amounted to a strong narrowing of the courts’ s.3 powers, although he is right in noting that the earlier practice of straining words to breaking point was abandoned. The alternative view of Kavanagh may be preferable, emphasising that a possible reason for the use of s.4 rather than s.3 “was evidence in Anderson that Parliament was going to reform the law in any case”, unlike in R v A (No.2).26 Such an approach may be objectionable on the ground that the courts should decide whether a s.3(1) interpretation is possible or not regardless of the legislative agenda, yet similar 22 n 19, [81]23 Aileen Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998’ (2004) 24(2) OJLS 259, 27724 n 19, [59]25 Geoffrey Marshall, ‘The lynchpin of parliamentary intention: lost, stolen or strained?’ [2003] PL 236, 24526 Aileen Kavanagh, ‘The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998’ (2006) 26(1) OJLS 179, 203

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considerations were expressly voiced in Bellinger v Bellinger27 as a factor in favour of s.4 declaration, supporting Kavanagh’s submission.

Implicitly, the decision in Anderson also serves to strengthen the ‘interpretation/amendment’ dichotomy advocated by Lord Nicholls in In re S (Minors). Allan’s criticism of this approach todeciphering the appropriate ambits of ss.3 and 4 respectively must be taken on board. He submits that “repeated declarationsthat permissible ‘interpretation’ must be distinguished from unauthorized ‘legislation’ [or ‘amendment’] are little more than empty rhetoric”.28 Allan may be correct in submitting thatthese are merely “labels to be attached to interpretative conclusions”29, instead of truly guiding judges in this respect, yet it does not follow that these labels are unhelpful. Rather, they serve to underline the necessity of a proper separation of powers, notwithstanding the importance ofhuman rights and, in my submission, this is sufficient to warrant the judicial pronouncements made to this effect.

Turning to the cases of A and Others v Secretary of State for the Home Department30 (the Belmarsh Case) and Secretary of State for the Home Department v AF, AN and AE (No. 3)31, these are of especial interest because they dealt with the sensitive issue of terrorism law and its relationship with human rights law. In the Belmarsh Case, the question of whether s.23 of the Anti-terrorism, Crime and Security Act 2001, which allowed for the indefinite detention of suspected foreign terrorists who could neither bedeported nor prosecuted, was in contravention of the Art.5 right to liberty and the Art.14 prohibition of discrimination arose. The rationale for the House of Lords majority’s

27 [2003] UKHL 21; [2003] 2 AC 467 (HL) [37] (Lord Nicholls)28 Trevor Allan, ‘Parliament's Will and the Justice of the Common Law: The Human Rights Act in Constitutional Perspective’ (2006) 59 CLP 27, 3729 Ibid30 [2004] UKHL 56; [2005] 2 AC 68 (HL)31 [2009] UKHL 28; [2010] 2 AC 269 (HL)

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decision to issue a s.4 declaration was that “the indefinite detention without trial of foreign nationals cannot be said tobe strictly required ... [if it] is not thought to be requiredin the case of British nationals.”32 It is worth stressing thatnone of their Lordships were of the opinion that a s.3 interpretation was even a remote possibility, with Lord Bingham endorsing the view of Prof Jowell that the “courts arecharged by Parliament with delineating the boundaries of a rights-based democracy”33. It is submitted that this case is a clear example of a situation in which only s.4 may be considered appropriate, especially given the difficulty of formulating effective national security policy.

The more recent case of AF (No.3) is arguably even more significant in terms of adding to HRA jurisprudence, since it did not present the Law Lords with a clear choice between a s.3 interpretation and a s.4 declaration. Instead, the appeal turned on the meaning of the Art.6(1) right to a fair trial inthe light of the Strasbourg Court’s decision in A v United Kingdom34. It is noted that AF (No.3) concerned the non-derogatingcontrol orders made by the Home Secretary under s.2(1) of the Prevention of Terrorism Act 2005, which replaced the system ofindefinite detention objected to in the Belmarsh Case. The LawLords upheld the earlier reading down (using s.3(1)) of the PTA 2005 in Secretary of State for the Home Department v MB35. It is noteworthy that Lord Phillips questioned whether “the House would have been prepared to read down the statute”36 had the ECtHR’s decision, requiring that a controlee be “given sufficient information about the allegations against him to enable him to give effective instructions in relation to thoseallegations”37, been anticipated. In particular, Lord Scott wassceptical about the reading down of the statutory power to 32 n 30, [129] (Lord Hope)33 n 30, [42]34 (2009) 49 EHRR 625 35 [2007] UKHL 46; [2008] AC 440 (HL)36 n 31, [67]37 n 31, [59] (Lord Phillips)

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make control orders, which led to compliance with the Convention fair trial right in addition to the more basic express statutory requirements being necessary.38 However, his Lordship was ultimately appeased by the Home Secretary’s acceptance of this reading.39 It must be said that such considerations should have no place in a judicial appraisal ofwhether s.3 or s.4 is the appropriate remedy when ECHR rights are being violated, for the Home Secretary does not speak for Parliament or even the entire Government, making this different from the consideration of forthcoming legislative change with general legislative and executive support identified as a pertinent one in this respect when discussing Anderson and Bellinger v Bellinger above.

Still for all, not too much should be made of this recent decision, since their Lordships were charged with adjusting the ratio of an earlier ruling of the House to ensure conformitywith the Strasbourg jurisprudence, having regard to the duty to take that Court’s decisions into account under s.2 of the HRA, thereby making the decision to uphold the s.3(1) interpretation less controversial in my submission.

4. The Middle Ground-Dream or Reality?

It is arguable that the ruling of the House of Lords in Ghaidanv Godin-Mendoza served to quite clearly demarcate the boundaries of the ‘possible’ under s.3(1), striking a middle ground between the two opposing positions of Lords Steyn and Hope in R v A (No.2)40 that follows quite naturally from the gradual evolution of this aspect of HRA jurisprudence.

The case concerned a defendant who had lived with the deceasedtenant of the claimant’s premises in a long-standing and

38 n 31, [95]39 Ibid40 Alison Young, ‘Ghaidan v Godin-Mendoza: avoiding the deference trap’ [2005] PL 23, 23

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stable homosexual relationship. Under Paragraph 2(2) of Schedule 1 of the Rent Act 1977, survivors of tenants who werein a relationship akin to that of husband and wife would be given statutory tenancy under the Act, whereas other family members would only get assured tenancy under Paragraph 3(1) thereof. The defendant claimed that his Art. 8 right to private and family life read in conjunction with the Art. 14 prohibition of discrimination, in this case on the basis of homosexuality, were breached by the Act. The majority led by Lord Nicholls held that it was possible to read the provision in the Act in a way that prevented the breach of the defendant’s ECHR rights without contradicting any cardinal principle of that Act, or as Lord Rodger put it, while going “with the grain of the legislation”41. Section 3(1) of the HRA was used to read the provision in question as extending to persons living with the original tenant “as if they were his or her wife or husband”42. It should be noted that the said Acthad been reinterpreted before the HRA applied so as to enable homosexual cohabitees to secure assured tenancy as family members in Fitzpatrick v Sterling Housing Association Ltd43, which is testament to a steady acceptance of social changes by the senior judiciary.

Lord Nicholls observed that homosexual and heterosexual couples both “share each other's life and make their home together” and therefore “have an equivalent relationship”.44 Moreover, his Lordship opted to downplay the importance of thespecific wording used by Parliament in the provision45 and alsoof the “precise form of words read in”46 for the purpose of achieving Convention compatibility. It is worth noting that Lord Steyn stated, obiter, that “interpretation under section 3(1) is the prime remedial remedy and that resort to section 441 n 18, [121]42 n 18, 55743 [2001] 1 AC 27 (HL)44 n 18, [17]45 n 18, [31] (Lord Nicholls)46 n 18, [35]

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must always be an exceptional course”47 (emphasis added). This dictum appears consistent with his relatively strong view regarding the proper scope of s.3 interpretation, yet is stilla moderation of his earlier propensity for straining words where deemed necessary.

The powerful dissent of Lord Millett in Ghaidan v Godin-Mendoza deserves attention, with his Lordship being of the opinion that the interpretation adopted by the majority was tantamountto “judicial activism” (emphasis added) that violated “the doctrine of Parliamentary supremacy” and was therefore illegitimate, notwithstanding its having been well meant.48 Lord Millett went on to state that the majority’s interpretation suggested that homosexual couples could for certain purposes be viewed “as if they were lawfully married”;a consequence that his Lordship found highly objectionable, for the courts “would be usurping the function of Parliament” in his opinion.49 As will be seen shortly, the view of the majority seems to espouse a more liberal conception of the role of the courts, whereas the dissenting view of Lord Millett is undoubtedly of a more conservative breed, particularly in terms of the conception of matrimony.

It is submitted that Alison Young is correct in submitting that this decision clarified the “need for the courts activelyto seek Convention-compatible interpretations.”50 What is more controversial is the ease with which the judiciary should be allowed to depart from the words used in statutory provisions.She submits that it is to be welcomed that the majority in Ghaidan departed “from an overly linguistic analysis” for two reasons. First, Convention rights should not become the “dictate of semantics”. Second, this supposedly enhances the

47 n 18, [50]48 n 18, [57]49 n 18, [99]50 n 40, 28

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ability of the courts to “fulfil their constitutional role”.51 In my submission, the first reason accords with the general trend in favour of purposive interpretation in the UK and can therefore not be easily faulted, although there may well be some force in Lord Millett’s opinion that an “intellectually defensible”52 meaning must be given to words. Of course, the meaning of the latter term floated by his Lordship is far fromcertain and will invariably be a matter of judgement.

The second reason may however be too abstract, for what is theconstitutional role of the courts? Are they only charged with the protection of human rights due to the will of Parliament expressed in the Human Rights Act 1998, or is this role inherent in the judicial function and part of a more sophisticated unwritten constitution in Britain? This is ultimately the crux of the matter, since one’s opinion as to the proper ambit of interpretation under s.3(1) will most likely be determined thereby. As Trevor Allan aptly puts it: “The Constitution of Will confronts the Constitution of Reason.”53 (Emphasis added.)

Allan may be viewed as the premier advocate of the so-called ‘Constitution of Reason’, according to which the UK courts have far greater powers stemming from the unwritten constitution than those expressly vested in them by Parliamentand other inherent but limited powers of judicial review that have evolved over time per the Common Law theory. Allan asserts that “the nature and scope of executive powers will depend on the statute’s correct constitutional construction” and that “no statute, however precise its instructions or recent its enactment, exists in a constitutional vacuum” (emphasis added).54 This view appears to discount the force of parliamentary sovereignty as the main constitutional principle

51 n 40, 3452 n 18, [67]53 n 28, 3154 n 28, 45

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in the UK and instead espouses a highly liberal and substantive conception of the Rule of Law, which serves to make the judiciary the bastion of human rights. Accordingly, Allan is in favour of a very wide ambit for the s.3 interpretative powers of the courts55 that far exceeds the boundary apparently set in Ghaidan v Godin-Mendoza. In my submission, his position is too radical and would require a wholesale revision of British constitutional law that is at present entirely unthinkable, unless Parliament and the peopleof this country were to decide that a written constitution vesting such immense powers in the courts is desirable. That said, Allan submits that our view on the “nature and limits” of the s.3 interpretative obligation will be determined by “reflection on the nature of statutory interpretation within the Constitution of Reason”.56 As stated above, there has been a clear general shift from literalism to purposivism in this jurisdiction, yet that by no means grounds as liberal a view as that of Allan on the ability of the courts to confront the other branches of the State through statutory interpretation strongly influenced by a human rights protection agenda.

An eminent view that comes close to that of Allan but, it is submitted, is more realistic in the present constitutional system that obtains in the UK, is that of Sir Stephen Sedley writing extra-judicially. Sedley submits that the HRA has not only reduced the long-established importance of the “drafter’swords” as the main representation of the legislature’s will but has also given rise to a new variant of purposive statutory interpretation buoyed by the need to protect the Convention rights.57 An illustration of what is precisely meantis Sedley’s reading of the Law Lords’ decision in In re S (Minors) as “an indicator of an arguably restrictive approach”58 to the

55 See n 28 generally56 n 28, 4657 Sir Stephen Sedley, ‘The Rocks or the Open Sea: Where is the Human Rights Act Heading?’ (2005) 32(1) Journal of Law and Society 3, 1758 Ibid, 12

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courts’ s.3 powers. For sake of clarity, reference is to Lord Nicholls’ so-called doctrine of fundamental features. It may be inferred that Sedley’s view is closely aligned with the opinions of the majority in Ghaidan.

The conservative view of the late Geoffrey Marshall is the polar opposite of Allan’s liberal view. Marshall’s outright rejection of the “supposition” that human rights law requires a “new or special approach” to statutory interpretation is quite telling.59 He viewed any change in the status quo with respect to statutory interpretation in consequence of the HRA’s enactment as solely attributable to the will of Parliament; a view in line with what Allan terms the barren ‘Constitution of Will’ informed by a crude conception of parliamentary sovereignty as the backbone of the unwritten constitution. For example, Marshall derided such a ‘new’ approach as involving a “confusion similar to that which leadsto calls for constitutional interpretation that is “large” or “liberal””.60 In even plainer language, Marshall attacked proponents of a wide ambit for s.3(1) that may require departure from or reconstruction of the will of Parliament to achieve that end for supporting a thesis that “has defied coherent exposition”.61 Regrettably, Marshall did not live to comment on the landmark ruling in Ghaidan, but one can safely assume that he would have objected to the boundary set by their Lordships, which seems to accord more with the expansive‘Constitution of Reason’ than the constrained ‘Constitution ofWill’.

This captivating debate has been commented upon by scholars with more neutral opinions. Young accurately summarises it by emphasising the head-on collision between the model of “parliamentary sovereignty” as a restraint on the courts and anewer (at least in Britain) model of “constitutional

59 n 1, 38260 Ibid61 n 25, 241

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sovereignty” that allows for “greater judicial activism in theprotection of human rights”.62 An obvious issue with a model ofconstitutional sovereignty in this country is the undisputed legal power of Parliament to expressly repeal legislation likethe HRA 1998, notwithstanding the constitutional significance that has been accorded to it. Furthermore, an expansive use ofs.3(1) may well be “accused of anti-democratic tendencies”63 though arguably supported by the ‘Constitution of Reason’ and one must carefully reflect upon the desirability of replacing the ‘tyranny of the majority’ by the ‘tyranny of the minority’. In fairness to both the legislature and the judiciary in the UK, such tyranny by either branch of the State has not truly been experienced in recent times. A closing remark that can be made about Ghaidan before moving on to consider Bellinger v Bellinger is that the key provisions of the HRA are likely to be indeterminate on many of the difficult issues that human rights law raises and that “evaluative reasoning”, which is in part subjective, is unavoidable despite the precedent set in Ghaidan.64

Bellinger v Bellinger65 may be viewed as a case that is difficult to square with Ghaidan, for the House of Lords refused to use its s.3(1) powers to read s.11(c) of the Matrimonial Causes Act 1973 in a way that safeguarded the appellant’s Art. 8 right toprivate and family life and Art.12 right to marriage. The appellant was a transsexual female who had been correctly classified and registered at birth as male, had undergone gender reassignment surgery and treatment, and then entered into a marriage as a woman, which was later held not to have been valid for the reason that same-sex marriages had not beenallowed at the time. Given their Lordships’ willingness to usetheir s.3 powers to ensure equal treatment of homosexuals and

62 Alison Young, ‘A Peculiarly British Protection of Human Rights’ (2005) 65 MLR 858, 85863 Ibid, 87064 n 23, 26665 [2003] UKHL 21; [2003] 2 AC 467 (HL)

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heterosexuals in Ghaidan, it may come as a surprise that only as.4 declaration was issued. Importantly, Ghaidan was decided a year after Bellinger, yet this fact alone is not conclusive in explaining the difference between these two key decisions in HRA jurisprudence. Lord Nicholls emphasised that recognising Mrs Bellinger as female would amount to “giving the expressions “male” and “female” in the [Matrimonial Causes Act 1973] a novel, extended meaning”66, which his Lordship viewed as “pre-eminently a matter for Parliament” (emphasis added), especially given the Government’s announcement that it was considering law reform. 67 This view was shared by the other Law Lords, with Lord Hope stressing that such recognition under s.3(1) of the HRA would involve “problems of great complexity” that “must be left to Parliament”.68 It is submitted that there is some force in this reasoning, because questions of gender change and sexuality are highly sensitive and therefore better decided by democratically elected representatives, where straining of words to achieve Convention compatibility would otherwise be required. Moreover, judicial knowledge of forthcoming parliamentary action to correct human rights incompatibility appears to be alegitimate reason for showing restraint in respect of the s.3 interpretative obligation, as noted when discussing Anderson above.

This reasoning may however be seen as inconsistent with the more liberal position taken in Ghaidan. Nevertheless, their Lordships in that case arguably ventured less far in using s.3than would have been the case in Bellinger, since Ghaidan was preceded by a string of cases that had led to a gradual evolution of the statutory position with respect to tenancy

66 Ibid, [36]67 n 65, [37]68 n 65, [69]

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rights. In Dyson Holdings Ltd v Fox69 the harsh position as to heterosexual cohabitees not being entitled to statutory tenancy upon the death of their partner in Gammans v Ekins70 was departed from, and in Fitzpatrick v Sterling Housing Association the relevant provisions of the Rent Act 1977 were read to enable homosexual cohabitees to receive assured tenancy. Accordingly,there was a solid foundation for the decision in Ghaidan, whereas in Bellinger there was only the precedent set by the ECtHR in Goodwin v United Kingdom71, which was however not prescriptive as regards the manner in which gender assessment ought to be undertaken in order to protect the Convention rights. In my submission, the case history in addition to the reasons given by their Lordships in Bellinger suffices to distinguish the two cases without undermining the development of s.3 HRA jurisprudence.

5. Conclusion: The HRA 1998 as a Dynamic Instrument-Preserving the Balance

It is time to consider whether the balance that has been struck in the s.3 HRA jurisprudence to date can be maintained.It is submitted that as the case-law has matured, certain principles can now be stated with considerable clarity and with the reasonable belief that these will continue to be abided by. One such principle is that “[g]oing against the express words of the statute would go beyond judicial interpretation and enter the realm of judicial legislation.”72 Furthermore, it is agreed that s.3(1) cannot be used to reinterpret elements of a statutory scheme or provision that are ‘necessary implications’ thereof. Kavanagh’s definition ofthis term as referring to “those implications which are so integral to a legislative provision or series of provisions,

69 [1976] QB 503 (CA)70 [1950] 2 KB 328 (CA)71 (2002) 35 EHRR 44772 n 23, 276

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that they could bear no other meaning”73 may now be viewed as being beyond reproach. Moreover, it hardly needs to be said that some degree of judicial law-making has come to be accepted in this jurisdiction and that the pejorative term judicial ‘legislation’ or ‘amendment’ observed in the HRA jurisprudence in fact refers to what exceeds “an extreme outerlimit”74, namely that set in Ghaidan v Godin-Mendoza.

Another trite proposition of law is that only a s.4 declaration of incompatibility “will be the appropriate judicial response”75 in some instances, although there is arguably less certainty in respect of the use of s.4 than of s.3(1), for the courts must first decide whether or not their s.3(1) interpretative powers can be used and not vice versa. That said, one discernible feature in cases in which s.4 declarations were issued is that judges “claim to do so because they do not wish to go against the legislative intent”76. Ascertaining what this intent precisely is and whether another interpretation would still fulfil it, whilst concurrently seeking to protect the ECHR rights, is challenging to say the least.

This is also the place to provide a brief summary of how statutory interpretation in cases with a human rights angle isnow approached under the HRA 1998. There are two stages in this process. First, the courts inquire whether the legislation in question interferes with one or more of the Convention rights. Second, if the courts find there to be an interference with such a right or rights, legislative intent is assessed and the choice between using s.3(1) or s.4(2) is made.77 Having regard to the differences between these two stages, one can safely adopt the typology of Young, who 73 n 23, 27774 n 23, 28575 n 28, 40-4176 n 26, 20177 Lord Lester, ‘Opinion: The Act of the Possible—Interpreting Statutes under the Human Rights Act’ [1998] EHRLR 665

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submits that the courts often exercise judicial restraint at the former stage and judicial deference at the latter. This isin itself a vast topic in HRA jurisprudence, but it may be simply said that restraint amounts to judicial recognition of a lack of competence to assess a particular human rights issue, whilst deference relates to the issue that has been central to this essay, namely the proper boundary between interpretation and legislation with adequate respect for parliamentary sovereignty.78

Admittedly, this concluding section has only presented the settled aspects of s.3 HRA jurisprudence in a broad brush manner. However, in my submission, it is perhaps only at this level of abstraction that we can all agree on the state of thelaw in this sensitive area and therefore leave aside the differences of opinion on the finer aspects evaluated above. Bearing this in mind, it may be said that the jurisprudence has indeed matured and one can accordingly submit, albeit withsome hesitation, that the cardinal principles identified in this section that flow from the case-law and academic discussion will remain intact, notwithstanding inevitable changes in the senior judiciary. The only event that could potentially threaten the foundation of all this is the repeal of the Human Rights Act 1998, which cannot be ruled out. For now though, the outer boundary of the ‘possible’ under s.3(1) has been drawn and is likely to be maintained, with minimal damage done to parliamentary sovereignty thus far.

Word Count: 6177 words

78 n 40, 30

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Bibliography:

Books:

Elliott, M and Thomas, R, Public Law (1st edn OUP, Oxford 2011)

Journal Articles:

Allan, TRS, ‘Parliament's Will and the Justice of the Common Law: The Human Rights Act in Constitutional Perspective’ (2006) 59 CLP 27-50

Kavanagh, A, ‘The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998’ (2004) 24(2) OJLS259-285

Kavanagh, A, ‘The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998’, (2006) 26(1) OJLS 179-206

Lester, A, ‘Opinion: The Act of the Possible—Interpreting Statutes under the Human Rights Act’ [1998] EHRLR 665

Marshall, G, ‘Two Kinds of Compatibility: more about section 3of the Human Rights Act 1998’ [1999] PL 377-383

Marshall, G, ‘The lynchpin of parliamentary intention: lost, stolen or strained?’ [2003] PL 236

Sales, P and Ekins, R, ‘Rights-consistent interpretation and the Human Rights Act 1998’ (2011) 127 LQR 217-238

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Sedley, S, ‘The Rocks or the Open Sea: Where is the Human Rights Act Heading?’ (2005) 32(1) Journal of Law and Society 3-17

Van Zyl Smit, J, ‘The New Purposive Interpretation of Statutes: HRA Section 3 after Ghaidan v Godin-Mendoza’ (2007) 70(2) MLR 294-317

Young, AL, ‘Ghaidan v Godin-Mendoza: avoiding the deference trap’ [2005] PL 23-34

Young, AL, ‘A Peculiarly British Protection of Human Rights’ (2005) 65 MLR 858-872

Official Published Sources:

Hansard HL vol 585 col 840 (5 February 1998)

Table of Cases:

ECHR Cases:

A v United Kingdom (2009) 49 EHRR 625

Goodwin v United Kingdom (2002) 35 EHRR 447

United Kingdom Cases:

A and others v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 (HL)

Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467 (HL)

Dyson Holdings Ltd v Fox [1976] QB 503 (CA)

Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 (HL)

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Gammans v Ekins [1950] 2 KB 328 (CA)

Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 (HL)

In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10; [2002] 2 AC 291 (HL)

R v A (No.2) [2001] UKHL 25; [2002] 1 AC 45 (HL)

R. (on the application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2003] 1 AC 837 (HL)

Secretary of State for the Home Department v AF, AN and AE (No. 3) [2009] UKHL 28; [2010] 2 AC 269 (HL)

Secretary of State for the Home Department v MB [2007] UKHL 46; [2008] AC440 (HL)

Table of Statutes:

Anti-terrorism, Crime and Security Act 2001, c.24

Children Act 1989, c.41

Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 1950

Crime (Sentences) Act 1997, c.43

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Human Rights Act 1998, c.42

Matrimonial Causes Act 1973, c.18

Prevention of Terrorism Act 2005, c.2

Rent Act 1977, c.42

Youth Justice and Criminal Evidence Act 1999, c.23

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Sections 3-4 of the Human Rights Act 1998: The Interpretative Obligation Reconsidered

Documents

Transcript of Sections 3-4 of the Human Rights Act 1998: The Interpretative Obligation Reconsidered