The introduction of the HRA in 1998 saw the development of a then unique model for incorporating the European Convention on Human Rights (ECHR) into UK law. Reflecting international debate on the legitimacy of unelected judges taking sole responsibility for interpreting the broad values which characterize Bills of Rights, the distinguishing feature of this model was that it worked with the grain of British constitutional traditions in envisaging a significant role for Parliament. The most unique and widely commented upon aspect of the HRA is that whilst it is intended to operate as a higher law, to which all other laws and policies must conform where possible, the Act does not allow courts to strike down statutes in the manner of judicially entrenched Bills of Rights. In so far as the HRA allows courts to review and declare incompatible Acts of Parliament, it refines the British constitutional doctrine of parliamentary sovereignty, but it clearly does not overturn it. Unlike many Bills of Rights or equivalent, therefore, the scheme of the HRA directly engages Parliament. This intention was stated in terms from the outset. Bringing Rights Home, the consultation paper produced by the Labor Party in 1996 to foreshadow the HRA, stated that “Parliament itself should play a leading role in protecting the rights which are at the heart of parliamentary democracy”.[1] Former Lord Chancellor, Lord Irvine, remarked in 2002, two years after the HRA came into force, that the Act represents a “new and dynamic co-operative endeavor … between the Executive, the Judiciary and Parliament; one in which each works in its respective constitutional sphere ”. Lord Steyn maintained in R. v A that unless a clear limitation on Convention rights is stated in terms it should be possible to interpret an Act compatibly with the ECHR. Lord Hope disagreed. He argued that you have to look at the meaning and purpose of an Act as a whole, not just any express intention on behalf of Parliament as to whether it is possible to interpret a statute compatibly with Convention rights or not. On this basis, he thought the reinterpretation his fellow judges made to the post-HRA rape shield provisions in the case of A turned the will of Parliament on its head. It reinstated most of the judicial discretion which the new Act sought to remove on when to admit evidence of a woman's sexual history with the defendant.
Hart provides a more refined positivist account which, for analytical purposes, is salient to section 3(1). Both sections 3(1) and 4 can be said to eradicate the positive and, to a lesser extent, the negative, limbs; the ECHR principles supersede Parliamentary Acts as the highest form of law, section 3(1) interpretation is a limit on parliamentary enactments, and the courts, though unable to challenge the legality per se of Acts of Parliament, are enabled to challenge their legitimacy. The rule of law is thus now much wider than under Dicey's construct, and incorporates both procedural and substantive elements by resort to a higher body of law. Section 3(1) therefore changes the previously prevailing situation that in Britain
The distinction between interpretation and legislation also precludes the use of section 3(1) if it would undermine a fundamental feature of an Act. In Re S, use of section 3(1) by the Court of Appeal led to the creation of a new procedure which allowed the court to retain a supervisory role over children who are the subject of care orders, even though Parliament's intention was clearly to entrust this responsibility to the local authorities. Here it is clear that the self-created supervisory role of the courts was inconsistent with a crucial aspect of the Act, and a range of rights and liabilities not sanctioned by Parliament[3] had been introduced.
According to Sir Rupert Cross's classic work on statutory interpretation, the fundamental rule of statutory interpretation is that ‘words should generally be given the meaning which the normal speaker of the English language would understand them to bear in the context in which they are used’. Moreover, judges will interpret statutory provisions by reference to the sense which an informed legal interpreter would give to them in the context in which they are used. Thus, courts give effect to the (enacted) intention of Parliament by giving the statutory text its ordinary or technical meaning of the statutory words. However, we are well aware that when judges interpret statutes, they rely on at least two other notions which is labeled ‘the intention of Parliament’. The first is the ‘general legislative purpose underlying the statutory provision’. The second is Parliament's ‘presumed intentions. The purpose in question can be manifest in the language of the statute itself as a matter of logic. However, the legislative purpose will not always be manifest in this way and must then be elicited from a consideration of the statute as a whole and the context in which it was enacted. So, for example, when enacting the HRA, Parliament intended to make Convention rights directly enforceable as part of domestic law. This is part of Parliament's enacted intention. But Parliament may have also intended the HRA to satisfy a further legislative purpose, such as minimizing the number of British cases coming before the ECtHR.
What appears to be a sharply contrasting approach was taken in R. v Secretary of State for the Home Department Ex p. Anderson.[4] There a declaration of incompatibility was made on the ground that a power conferred on the Home Secretary by s.29 of the Crime (Sentencing) Act 1997 to control the release of mandatory life sentence prisoners was inconsistent with the right to have a sentence imposed by an independent and impartial tribunal. Their Lordships refused to interpret s.29 so as to modify its impact. Lord Bingham said that it could not be doubted that Parliament intended to do what it had enacted in s.29 and to read the section as precluding the Home Secretary's action would not be judicial interpretation but judicial vandalism. It would give the section an effect quite different from that which Parliament intended.
Lord Steyn here seemed equally determined to hold fast to the lynchpin of parliamentary intention. He declined to read what he described as “alleged convention rights” into s.29. It would, he said, be interpolation, not interpretation and would be inconsistent with the plain intention of the legislature. Section 3(1) of the Human Rights Act was not available when the suggested interpretation was contrary to express statutory words. Nothing here (unlike R. v A ) about a strong interpretative adjuration to read down the text or to imply provisions into it, or to stretch or strain it in the pursuit of convention conformability. The interpretative route could no doubt have been followed by some such stratagem as inserting “not”, or some suitable modificatory phrase into s.29 of the 1997 Act. This might seem to involve interpolation or reading in of words that were not there, because Parliament did not use the word “not”. But then, in Mendoza v Ghaidan Parliament did not use the words “as if they were” which, whether vandalistically or not, the court was willing to insert into the rent legislation. Of course, if the lynchpin of parliamentary intention has been removed it cannot be a decisive consideration what words Parliament has used or what the most plausible interpretation of their intention was. What should matter is what possible meaning the words might have conveyed that would conform their intentions to the requirements of Convention rights. However, it seems that the parliamentary lynchpin, if loosened, has only been loosened so far. As to reading and interpretation, it is noticeable that where, as in Canada, legislation may be invalidated and treated as having no legal effect by reason of its incompatibility (“characterization incompatibility”, that is) with constitutional rights, it has not been found necessary to reconstruct the rules of statutory interpretation as a consequence of the introduction of the Charter of Rights and Freedoms. What a statute means is properly seen as a separate issue from its constitutionality vis-à-vis the Charter. Courts may in some cases read down a statutory provision to preserve its legality. But this is a limited expedient that is applied only where the language of the statute will bear the wider and narrower meanings. It is not a general recipe and license for straining meaning where no ambiguity exists.[5]
For now, it is clear that the HRA is a hybrid. It is the nearest thing to a Bill of rights that we have in this country and has served us well, as a recent report by Justice notes,[6] but the interpretation of the substantive rights set out in it is now firmly anchored to what Lord Kingsland called the ‘international moorings’ of the jurisprudence of the European Court of Human Rights. Some have concluded from this development that this should lead this country now to proceed to enact its own British Bill of rights. But, tempting though it would be to embark on that debate now, that is a matter for another day.
Bibliography
Primary Sources:
· R. v Secretary of State for the Home Department Ex p. Anderson[2002] UKHL 46.
· Ghaidan v Mendoza[2004] UKHL 30
· R v A[2001] All ER (D) 215
Secondary Sources:
· H. Finer, The Road to Reaction, (London: Dennis Dobson, 1946) , p.38..
· cf. G. Marshall, “Two kinds of compatibility: more about s.3 of the Human Rights Act 1998” [1999] P.L 377
· Report of the Justice constitution committee, ‘A British Bill of Rights: Informing the Debate’ (2007) 15.
· Francesca Klug, “The Klug Report: Report on the Working Practices of the JCHR”, published in The Committee's Future Working Practices, Twenty-Third Report, Session 2005-06.
· Geoffrey Marshall, The lynchpin of parliamentary intention: lost, stolen or strained?, 2003, P.L., Sum, 236-248
· Rabinder Singh, Interpreting bills of rights, Stat. L.R. 2008, 29(2), 82-99.
· Sandra Fredman, ‘From deference to democracy: the role of equality under the Human Rights Act 1998,’ [2006] 122 L.Q.R. 53-81
· Joanna Miles, ‘Standing under the Human Rights Act 1988: theories of rights enforcement and the nature of public law adjudication’ [2000] 59(1) C.L.J. 133-167
[1] Francesca Klug, “The Klug Report: Report on the Working Practices of the JCHR”, published in The Committee's Future Working Practices, Twenty-Third Report, Session 2005-06.
[2] H. Finer, The Road to Reaction, (London: Dennis Dobson, 1946) , p.38..
[3] Wilkinson ( n 38) Ibid. , at 35..
[4] [2002] UKHL 46.
[5] cf. G. Marshall, “Two kinds of compatibility: more about s.3 of the Human Rights Act 1998” [1999] P.L 377.
[6] Report of the Justice constitution committee, ‘A British Bill of Rights: Informing the Debate’ (2007) 15.
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