Statutory Interpretation and the Human Rights Act 1998

Nevertheless, it has been made clear that the enactment of section 3(1) does involve the addition of an extra dimension to the ordinary methods of interpretation:

• R v A (2001) HL: The House of Lords held that section 41 of the Youth and Criminal Justice Act 1999 should be so construed that it is compatible with Article 6(1) of the ECHR even though a literal interpretation would entail that the complainant not be subjected to the rigour of having to reveal their sexual history. Lord Steyn emphasized that the courts should look for a contextual and purposive approach to interpretation and the declaration of incompatibility should be made only as a measure of last resort.
• Judges are not allowed to strike down legislation that is incompatible as it would usurp the legislative function which is the exclusive privilege of parliament and would indeed be in violation of the separation of powers. However, the approach taken in R v A clearly blurs the distinction between interpretation and amendment and may be looked upon as an instance where judges performed a legislative function.
• In contrast, in Re S, the Court of Appeal used s 3 of the HRA in such a way as to create new guidelines for the operation of the Children Act 1989, which increased the court’s powers to intervene in the interests of the children taken into care under the Act. The House of Lords, however, although sympathetic to the aims of the Court of Appeal, felt that it had exceeded its powers of interpretation and ‘crossed the boundary between interpretation and amendment.’(per Lord Nicholls)
• The strength of the interpretative obligation under section 3(1) is confirmed by the point that it may require a court below the level of the House of Lords to disregard a decision of the House as in Mendoza v Ghaidan (2002), in which the Court of Appeal avoided the binding precedent in Fitzpatrick v Sterling Housing Society.

In conclusion:

First, it would seem that the practical effects of a particular modification of statutory language by virtue of section 3(1) interpretation may properly be relevant in determining whether the boundary has been crossed. Nevertheless, it is submitted that it would be wrong to confine section 3(1) in all cases to the making of small changes.

Secondly, it is also submitted that it would be wrong for section 3(1) to be confined to securing what would be effectively textual modifications to specified provisions. Such an approach would fail to take account of the powers of the courts to read statutes as modified (in the absence of clear words to the contrary) by fundamental, albeit broadly stated, principles.