The Human Rights Act 1998Mechanism

Section 3

Section 3 of the HRA 1998

• The content and meaning of section 3

• The limits to section 3

• Case Law

• Interplay of Section 2 and Section 3

1.The content and meaning of Section 3

• Section 3 (1):

• so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a away which is compatible with the Convention rights.

• R v DPP ex parte Kebilene (2000)• Poplar Housing v Donoghue (2001), Lord Woolf CJ:• “the courts have to adjust their traditional role in

relation to interpretation so as to give effect to the direction contained in section 3. It is as though legislation which predates the Human Rights Act 1998 and conflicts with the Convention has to be treated as being subsequently amended to incorporate the language of section 3.”

2. The limits to section 3

• R v DPP ex parte Kebilene (2000), Lord Steyn:“It is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of parliamentary sovereignty. In a case of incompatibility, which cannot be avoided by interpretation under section 3(1), the courts may not disapply the legislation. The court may merely issue a declaration of incompatibility which then gives rise to a power to take remedial action: see section 10.”

• Lord Nicholls in Ghaidan v Godin-Mendoza (2004):“The difficulty lies in the word ‘possible’. Section 3 (1), read in conjunction with ss. 3 (2) and 4, makes one matter clear: Parliament expressly envisaged that not all legislation would be capable of being made Convention-compliant by application of s. 3. Sometimes it would be possible, sometimes not. What is not clear is the test to be applied in separating the sheep from the goats.”

• Lord Nicholls in Re S (2002): “Section 3 is concerned with interpretation … In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes and the amendments of statutes, are matters for Parliament.”

3. Case Law

• R v A (No. 2) (2002) on section 41 of the Youth Justice and Criminal Evidence Act 1999.

• Lord Steyn: “In accordance with the will of Parliament as reflected in s 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions.”

–“In my view s 3 of the HRA 1998 requires the court to subordinate the niceties of the language of s 41(3)(c) of the 1999 Act (…) to broader considerations of relevance judged by logical and common sense criteria of time and circumstances”.

• Lord Hope: although section 3 of the Human Rights Act 1998 was ‘quite unlike any previous rule of statutory interpretation’, it was “only a rule of interpretation. It does not entitle the judges to act as legislators. As Lord Woolf CJ said in Poplar Housing Association v Donoghue [2001] QB 48, s. 3 does not entitle the court to legislate; its task is still one of interpretation. The compatibility is to be achieved only so far as this is possible. Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible.”

• R v Lambert (2001) on section 28 of the Misuse of Drugs Act 1971.

• Re S (Care Order: Implementation of Care Plan ) (2002) on the Children Act 1989

• R v Offen (2001) on section 2 of the Crime (Sentences) Act 1997.

• Lord Woolf CJ:“The objective of the legislature (…) will be achieved, because it will be mandatory to impose a life sentence in situations where the offender constitutes a significant risk to the public. Section 2 of the 1997 Act therefore provides a good example of how the HRA 1998 can have a beneficial effect on the administration of justice, without defeating the policy which Parliament was seeking to implement.”

• Poplar Housing and Regeneration Community Association Ltd v Donoghue (2001): Lord Woolf: “The most difficult task which courts face is distinguishing between legislation and interpretation. Here practical experience of seeking to apply s 3 will provide the best guide. However, if it is necessary in order to obtain compliance to radically alter the effect of legislation this will be an indication that more than interpretation is involved.”

– “When the court interprets legislation usually its primary task is to identify the intention of Parliament. Now, when s 3 applies, the courts have to adjust their traditional role in relation to interpretation so as to give effect to the direction contained in s 3. It is as though legislation which predates the HRA 1998 and conflicts with the convention has to be treated as being subsequently amended to incorporate the language of s 3.”

• Ghaidan v Godin-Mendoza (2004), Lord Rodger section 3 is “crucial to the working of the 1998 Act. It is the means by which Parliament intends that people should be afforded the benefit of their Convention rights – ‘so far as it is possible’, without the need for any further intervention by Parliament.”

• Lord Rodger “If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention rights, the implication is a legitimate exercise of the powers conferred by s. 3 (1).”

– Lord Nicholls:“That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the under-lying thrust of the legislation being construed. Words implied must … ‘go with the grain of the legislation’.”

• Lord Steyn: “Once the 1998 Act came into force, whenever, by virtue of s.3 (1), a provision could be read in a way which was compatible with Convention rights, that was the meaning which Parliament intended that it should bear. For all purposes, that meaning, and no other, is the ‘true’ meaning of the provision in our law.”

4. Interplay of section 2 and section 3

• Strasbourg method of judicial reasoning; see Aston Cantlow Parochial Church Council v Wallbank (2001).

• Abrogation of the doctrine of precedent, see Tyrer v United Kingdom (1978)

• R (Williamson) v Secretary of State for Education and Employment (2002)