6 Development in English case law also demonstrated a move from over-reliance on the literal approach to statutory interpretation to a more purposive one.[6] According to Lord Griffiths in Pepper v Hart (1993) [7]
“The days have long passed when the court adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the purpose of the legislation...”
Following this, in the words of Lord Steyn in R (Quintavalle) v Secretary of State for Health (2003) [8]:
“The pendulum has swung towards purposive methods of construction ...”
Thus, for the HRA 1998 to “revolutionise” the methods of statutory interpretation, it must have effected a “radical change” in interpretation methods. Did it do so?
Impact of the Human Rights Act 1998 on Statutory Interpretation
7 Section 3 of the HRA 1998 states that as far as it is possible to do so, “primary and subordinate legislation must be interpreted in a way which is compatible with Convention rights”.
7 The leading case on interpretation of legislation under Section 3 is Ghaidan v Mendoza (2004) [9]. Its predecessor Fitzpatrick v Sterling Housing Association [10] shared the same set of facts with regard to the legal question concerning rights of the surviving same-sex partner of a tenant who held a statutory tenancy under the Rent Act 1977. Under the Rent Act, the ‘surviving spouse’ defined in Section 2(2) of the Rent Act 1977 extended in 1988 was ‘the person who was living with the original tenant as his or her wife or husband’ shall be treated as the spouse of the original tenant and is entitled to right of succession. The legal question posed was whether same-sex partnership qualified for this provision.
8 In Fitzpatrick, which was decided before the HRA 1998 came into force; the House of Lords answered the question in the negative. It held that the statute was not ambiguous in requiring the relationship between the tenant and his or her spouse to be a heterosexual one. No arguments on legal rights against discrimination were put forward till four years later in Ghaidan.
9 Ghaidan, decided after the HRA 1998 came into force on the same set of facts, held that by denying a surviving same-sex partner rights to tenancy under s2(2) of the Rent Act was a breach of Articles 14 and 8 of the HRA 1998 which prohibited discrimination and the right for respect of private and family life. In the leading speech given by Lord Nicholls, he held that the effect of s3 of the HRA 1998 may require a court to depart even when the meaning of a statute was unambiguous. The question was how far and in what circumstances should the court do so. [11]
(31)But once it is accepted that s 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of s 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration. That would make the application of s 3 something of a semantic lottery.
Lord Rodger assisted in answering this question by further stating that when interpreting a legislation to be compatible with Convention rights as per s3 of the HRA 1998, the courts should not produce a meaning which departed substantially from the “cardinal principle” or substantial meaning of the legislation.
Thus in contrasting the decisions in Ghaidan and Fitzpatrick, the effect of the force of interpretative obligation on the courts as a result of Section 3 was seen and the courts' willingness to interpret legislation in a way which is compatible with Convention rights where they previously refused to do so.
10 In R v A (2001) [12], the defendant was accused of rape. He appealed on the grounds of his right to a fair trial under the HRA 1998 that the complainants’ previous sexual relationship with him should be allowed to be put forward as evidence during the trial. Under Section 41 of the Youth Justice and Criminal Evidence Act 1999, adducement of such evidence was prohibited so as to protect the complainant's private life. The House of Lords held that the court had authority under s3 of the HRA 1998 to adduce such evidence if not doing so would not result in a fair trial for the defendant. Lord Steyn held that this had to be so even if legislation was unambiguous:
The interpretative obligation under s 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings.
and stated that the effect of s3 is “radical”:
Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: s 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: s 3 is more radical in its effect.
11 In R v Lambert (2001) [13], two questions were put forward for consideration by the House of Lords. The first was whether a defendant is entitled to rely on convention rights when the court is hearing an appeal from a decision which was taken before the Human Rights Act 1998 came into effect and the second, whether a reverse burden provision in the Misuse of Drugs Act 1971(MDA 1971) is compatible with the presumption of innocence article in the HRA 1998. The retrospective effect of the Act was witnessed when the House answered the first question in the affirmative and held that requiring the defendant to disprove a significant element of the offence under Section 28 of the MDA 1971 would breach the presumption of innocence under Article 6 of the HRA 1998. The House invoked Section 3 of the HRA 1998 when it interpreted “prove” in the context as to “give sufficient evidence”, placing an evidential, instead of a legal burden on the defendant as was originally required when a defence is invoked under Section 28 of the MDA 1971.
12 The obligation to interpret legislation in a way which is compatible with Convention rights can have quite far-reaching effects [14]. Although instances may arise where the wording of legislation leave no room for interpretation in a way which is compatible with Convention rights, the courts do not have the power to strike down that particular legislation; instead they may invoke Section 4 of the HRA 1998 to make a “declaration of incompatibility”. This was witnessed in the cases of R (on the application of Anderson) v Secretary of State for the Home Department (2002) [15] and Bellinger v Bellinger (2003) [16].Declaring legislation “incompatible” does not render it ineffective, but a strong message is sent to Parliament to consider making the necessary revisions.
13 Nonetheless, the limitations of Section 3 place a huge burden on interpretation and discretion on individual judges. This makes conflicting decisions inevitable as seen in the case of R v Offen (2001) [17]. Section 3 also states that legislation should be interpreted with Convention rights “so far as possible”. However, in the case of R v Director of Public Prosecutions (DPP), Ex-Parte Dianne Pretty (2001) [18], the claimant who wanted her husband to help her commit suicide to end her suffering resulting from an illness, requested that the DPP give his obligation not to prosecute her husband under the Suicide Act as doing so would breach her right under Article 3 of the HRA 1998. The court held that there was no breach as there was absolute obligation on the state to do so, since nothing in the Article affected a person's right to live or die. The claimant was not entitled to her Convention right under Article 3 despite the suffering she had to endure.
14 Did the Human Rights Act 1998 revolutionise the way judges interpreted statutes? To a certain extent, yes. Section 3 of the HRA 1998 makes a very strong interpretative obligation on the UK courts to interpret legislation in a way which is compatible with Convention rights. The HRA 1998 and in particular Section 3, gave justice a new breath of life when it enabled human rights cases to be decided in the UK courts. Section 3 also opened the way for Convention rights to be used as a new “interpretative tool” when interpreting legislation. However, where legislation previously had to be interpreted in accordance with the intention of Parliament, the HRA 1998 only added an extra dimension that legislation must now also be interpreted in accordance with the intention of the European Convention of Human Rights. In concluding, we submit that the effect of the Act has only served to strengthen the use of the purposive method of interpretation instead of effecting a completely “radical” change.
Bibliography
[1] http://www.legislation.gov.uk/ukpga/1998/42/introduction
[2] http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights
[3] Malone v Metropolitan Police Commissioner [1979] Ch. 344 [Chancery Division]
[4] Rt Hon. Lady Justice Arden DBE, Statutory Interpretation and Human Rights, 2005
[5] Cross, Rupert, Sir, Statutory Interpretation, 3rd Edition, London : Butterworths, 1995
[6] Slapper, Gary and Kelly, David, The English Legal System (12th Ed 2011-2012), Routledge,
2012
[7] Pepper v Hart [1993] 1 All ER 42
[8] R (Quintavalle) v Secretary of State for Health [2003] 71 BMLR 209
[9] Ghaidan v Mendoza [2004] 3 All ER 411
[10] Fitzpatrick v Sterling Housing Association Ltd [1999] 4 All ER 705
[11] Ibid 6
[12] R v A [2001] 3 All ER 1
[13] R v Lambert [2001] 3 All ER 577
[14] Wadham, John, Mountfield, Helen and Edmunson, Anna, Blackstone’s Guide to the Human
Rights Act 1998, OUP Oxford 2003
[15] R (on the application of Anderson) v Secretary of State for the Home Department [2002] 4
All ER 1089
[16] Bellinger v Bellinger [2003] 2 All ER 593
[17] R v Offen [2001] 2 All ER 154
[18] (on the application of Pretty) v [2001] 1 All ER 1
Other References
Gearey, Adam, Morrison, Wayne, Jago, Robert, The Politics of the Common Law, Perspectives, Rights, Processes, Institutions, Routledge-Cavendish, 2009