Section 3 of the Human Rights Act 1998 has imposed a new method of statutory interpretation on UK courts and tribunals in the UK. Explain what the position was before the HRA came into effect and how section 3 has changed that position.

As pointed out in the White Paper, section 3 should not be limited to “ambiguity” and it should be applied as “read down”, namely a word can have more than one meaning. Before this Act, the courts were permitted but did not have to use the convention as an interpretative tool where an Act was ambiguous. Now the courts are under duty to interpret legislation in compliant with the convention. The first House of Lords judgement on the convention was illustrated in R v DPP, ex parte Kebilene [1999]. It was argued that Article 6 of the HRA should have been applied in their prosecution. It was ruled that this was not open to judicial review and can only be challenged if the HRA was in force. So it shows that prior to S3 of the HRA, the courts did not have jurisdiction to incorporate the convention. They would interpret legislation in the natural meaning of the word.

Undoubtly the introduction of section 3 will have inevitable effects on the law. As Lord Cooke of Thornton stated: “section 3 will require a very different approach to interpretation of that to which English Courts are accustomed. Traditionally the search has been for the true meaning that would prevent the making of a declaration of incompatibility.”

By contrast, the new interpretative obligation provides one of the most important elements in human rights. It kicks in every time anyone reads statutory material (S3), It applies to both primary and secondary legislation and to legislation “whenever enacted” i.e. before or after the advent of the HRA or the convention. It can be employed on a client’s behalf in public and private sectors and is relied upon in any court or tribunal at whatever level.

The most difficult issue associated with section 3 is the actual or appropriate distance of “as far as possible”. In contrast with the predictions of some commentators before the implementation of the Act, the courts have not taken the view that anything is possible or that all legislation is compatible subject to the requisite amount of re interpretation or distortion. Case Law shows the line between interpretation and legislation to be a fine and often obscure one and given the vast legislative reach of section 3, it is difficult to achieve consistency as to the extent to which traditional readings of statutes can be strained so as to read in Convention principal and read out offending aspects of the domestic scheme.

R v A [2001] is now often referred to as a “high water” mark for section 3 and it certainly involved considerable interpretation in a difficult context. Here the defendant was accused of rape. He wanted to tell the jury that there was a previous consenting sexual relationship between them. However section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits such evidence being adduced so as to protect the complainant’s private life. The HL held that the judge had a power under section 3 of the 1998 Act to allow such evidence to be adduced if its exclusion would result in an unfair trial for the accused. The question was whether such a bold and positive interpretation was consistent with section 41 as seems to be the requirement of section 3 of the 1998 Act. Lord Steyn giving judgement held that on “ ordinary methods of interpretation”, section 41 did stop the trial judge from allowing the accused to use past evidence in the rape trial. However Lord Steyn went on to add that section 3 of the 1998 Act “applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings”. The Court had a duty to interpret section 41 in a way, which protects the accused human rights. This intensifies the importance of section 3 and reinforces its powerfulness in interpreting legislation.

The section 3 rule applies to legislation in both the past and future legislation and in interpreting legislation. Another recent case in which section 3 has been applied is in the case of R v Lambert [2001]. Here the House of Lords found that the defence of lack of knowledge that items in ones procession contained a controlled drug in section 28 of the Misuse of Drugs Act 1971, effectively required the defendant to disprove a significant element of the offence of a controlled drug with intent to supply. This would breach the presumption of innocence contained in Article 6(2) but for the availability of section 3 of the HRA so that the word “prove” in the context of such a statutory criminal defence be interpreted as “give sufficient evidence”. This places an evidential rather than a legal burden upon the accused.

This muscular use of section 3 is to be contrasted with the approach of the Court of Appeal in R (H) v Mental Health Review Tribunal, North and East London Region [2001], which also concerned a reverse burden of proof. In that case, a declaration was employed in the face of language arguably more capable of re-interpretation than that in Lamberts case. However Lord Hopes speeches in both R v A and R v Lambert have been contrasted with those of Lord Steyn. Lord Hopes apparent emphasis is on the limits of section 3 and these have been recited in the subsequent cases of Re S (Care Order: Implementation Plan) [2002] and R v Anderson [2002] where the possible use of section 3 to require a Home secretary to set tariffs for mandatory life prisoners in conformity with judicial advice was dismissed as “judicial vandalism”

The interpretative obligation can have quite far reaching effects. There may be instances where the wording of an Act is so clear that there is no room for interpretation incompliant with convention rights and under S3 (2)(b) and (c) of the Human Rights act, it does not give the courts the power to declare an Act ineffective, this is when section 4 of the 1998 Act kicks in. S4 (2) states that if the provision is incompatible with the convention, then the Court can make a declaration of that incompatibility. Such is the case of R v Secretary of State for Environment Trade and Industry [2001]. (Alconbury Case)

One reason why the change is considered not to be so great is that, at least since Lord Goffs lead in the House of Lords in AG v Guardian Newspapers (No.2) [1990] judges have been exhorted to interpret English Law in accordance with the convention, when free to do so. On the whole this lead has not been followed. There may have been issues of reluctance in lower courts but the problem lay in interpretation. The statutory obligation now placed on judges under S3 to produce compatible interpretation “as far as it is possible to do so” is reinforced by Article 1 of the Convention itself, which via the 1998 Act obliges the judges to secure rights and freedoms under the Convention.

It can be seen that the introduction of the Human rights Act 1998 has had a great impact on statutory interpretation. Section 3 has allowed for any incompatibilities arising to be rooted out. The method of statutory interpretation brings justice into UK Courts as it equals out inequalities.

With everything, section 3 of the Act is limited to an extent. Whether legislation is primary or subordinate, section 3 fails to act upon controlling the validity of that legislation. Dr Marshall, who argues that section 3 is not clear and it shows confusion of the intended meaning of section 3, makes the main criticism.

Although the Courts are given power under the Convention to interpret legislation compatibly with convention rights, they are not given the power to dismiss legislation when it is incompatible; instead they have to declare incompatibility under section 4 of the Act. The case of R v Offen [2000] illustrates another problem encountered by section 3 in that it places a huge burden on the power of interpretation and the discretion of individual judges. This makes conflicting decisions as inevitable.

In conclusion section 3 of the Human Rights Act 1998 creates a very strong interpretative obligation, it gives statutory interpretation a new meaning. Prior to this act the courts had no jurisdiction to enforce convention rights. The cases were ambiguous and very costly as the procedure often had to be dealt with in Strasbourg. Section 3 of the act, allows the courts to use the convention as an interpretative” tool.

R v A [2001] and R v Lambert [2001] are two examples where section 3 of the act has been applied. These cases illustrate the power of section 3 and infer that legislation should be compatible with the rights instituted in the convention. As the UK has incorporated the HRA the courts are obliged to take regards to cases taken place at Strasbourg, in order to recognise the principals required in deciding a case.

However section 3 has its limitations. It states “so far as possible” that legislation should be interpreted in deciding a case. However the case of Dianne Pretty [2001] is a harsh example of Article 3, which states, “ no one should be subject to inhuman or degrading treatment”. In this case the Ms Pretty suffered from motor neurone disease and was in a lot of pain, she only had a short time to live. She wanted her husband to help her commit suicide as she was unable to do so herself. She wanted DPP to give her consent to ensure that her husband will not be prosecuted under the Suicide Act 1961. She claimed that the refusal by DPP would breach her right under Article 3. The court held that there was no breach as the obligation on the state was not absolute and unqualified and that there was nothing in Article 3 that affected a persons right to live or die. This shows that no matter how much she suffered she was not entitled to her convention right.

Also if legislation is incompatible with convention rights, the courts still do not have power to dismiss an Act invalid but have to declare its incompatibility under section 4. So the main purpose of section 3 is to interpret legislation to each case individually.

 

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