An analysis of how the Human Rights Act changed UK Judges’ approach

The Traditional practice of Statutory Interpretation by English Judges has seen radical alteration in recent years especially due to the enactment of Human Rights Act 1998. Statutory Interpretation, being one of the core principles of the English legal system is a simple procedure of giving words or provisions that is contained in a statute, its clear meaning so that any ambiguity that had arisen would be removed and the statute would be clear to the mass people. The English Legal System has been the witness to a milestone of a drastic change in its history with the enactment of Human Rights Act 1998. The interpretative provisions such as section 3 of the Human Rights Act have had a major impact in judicial interpretative practices.  As I shall discuss further, the Human Rights Act have had a significant impact on the Law Lord’s roles and approach towards Judicial Interpretation and how far did they manage to safeguard the sovereign Parliament’s intentions.

The judges used to depend on the so-called rules such as literal, golden and mischief rules to interpret what the Parliament really intended. This was when the courts actually wanted to safeguard the actual intentions of the Parliament and showed respect towards these long established interpretative methods.

A Purposive Approach toward statutes before HRA

The case of Garland v British Engineering[1] shows how the European Communities Act had changed all those. The ECA 1972 has enabled judges to interpret the statutes in a purposive manner, allowing them to somewhat come out of their limitations. One of the most important cases defining contemporary practice is Pepper v Hart[2] before the incorporation of Human Rights Act. This case shows that defining the parameters of judicial interpretative practice involves questions of constitutional propriety and the very function of the forensic process. Here, it has been argued that:


“ The courts have departed from the old literal approach of statutory construction and now adopt a purposive approach, seeking to discover the Parliamentary intention lying behind the words used and construing the legislation so as to give effect to rather than, thwart, the intentions of the Parliament.” The speech stresses that there is a historical shift in judicial interpretation.[3]

The enactment of Human Rights Act 1998 and the Law Lords’ Approach

The most significant development has been the Human Rights Act (s.3 of which requires domestic legislation to be read and given effect to in a way which is compatible with ECHR rights). In times when the domestic court might have concerns that the court of human rights had not ‘sufficiently appreciated or accommodated particular aspects of the domestic process, the domestic court could decline to follow the Strasbourg decision, giving reasons for doing so[4] Our Consideration of the new practices has to begin with s 3 of the Act. While this clearly articulates a rule of interpretation, it leaves a great deal of discretion in the hands of the interpreter to determine whether or not it is impossible to interpret legislation as compatible with the convention[5]. The provision of s.3 read as follows:

“SEC 3. Interpretation of legislation

(1)  So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

In R v A (No 2) [2002] 1 AC 45, The House of Lords considered whether s.41 of the Youth Justice and Criminal Evidence Act 1999 amounted to breach of the defendant’s right to a fair trial. Lord Steyn argued that the starting point for the interpretation of the Act was the ‘mischief’ that Parliament had ‘decided’ to address Lord Lester in this case had provided an important piece of extrajudicial writing which suggested a two-tier approach to the assessment of legislation in the light of HRA. According to Lord Denning, the English courts should generally adopt a broad purposive approach, akin to the European Style, in all cases.[6]

In Re S [2002] UKHL 10, the court overrode overrode a reading in by the Court of Appeal on the grounds that it went against a “fundamental feature” of the legislation, in this case the implementation of care orders by local authorities under Children Act 1989. Here the Court of Appeal’s interpretation can be viewed as going beyond both the judicial sphere as well as the law’s scope by essentially proposing a wholly new procedure for dealing with care orders in contrast with that proposed by Parliament. The court’s reading in could be neither catered for within the existing terms of the Act nor related to its underlying purpose.[7]

In Ghaidan v Godin-Mendoza [2004] UKHL 30, which Lord Phillips described as the “definitive” case on s.3 HRA 1998, the House of Lords held that s.3 could permit a Court to depart from a provision whose meaning was unambiguous, if that provision was not ECHR compatible, with the dramatic implication that s.3 could oblige a Court to disregard the legislative purpose of subsequent Parliaments.[8] Lord Nicholls or Birkenhead stated that Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3[9]

S 4 of the HRA 1998 enables the judges to indirectly challenge the Parliament, although they cannot strike down any statutes. The Provision stated:

SEC 4. Declaration of incompatibility

(1)  Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2)  If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

Wilson v First County Trust Ltd (No.2)[10]:  Section 127(3) of the Consumer Credit Act 1974 was declared incompatible with the Article 6 and Article 1 of the First Protocol by the Court of Appeal to the extent that it caused an unjustified restriction to be placed on a creditor’s enjoyment of contractual rights. It can be seen from Lord Nicholls’ argument in Wilson v First County Trust[11] that the courts are public bodies and are bound by the HRA. He tried to say that if the Courts are bound by HRA then there is a possibility that the courts might be compelled to disregard the Parliament when inconsistency arises. Therefore, this might lead to supremacy of the Human Rights Act over the Parliament in UK which is actually not the intended effect of the Act. The readiness of the court to depart from the views of the legislature depended on the circumstances, one of which was the subject matter of the legislation. The more the legislation concerned matters of broad social policy, the less ready a court would be to intervene.[12] The decision in Pepper v Hart was an important step in legal procedure, the judges in English courts have gone ahead, unbounded, to make their own extrapolations to this precedent and cause to be reported in English case decisions. This was when the courts have went beyond their powers.[13]

In the Scottish case of Jackson (2005), it was observed that the judges themselves are supporting the view that courts should consider if there is a breach of individual rights and even the Parliament cannot interfere. The obiter dictum in this case raises the possibility of a conflict between the doctrine of parliamentary sovereignty and the doctrine of the rule of law. In the case, Lord Steyn declared in his obiter that: “In exceptional circumstances involving an attempt to abolish judicial review of the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”. Lady Hale remarked, obiter, ‘The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial powers’. Even Lord Bingham stated ‘Jackson may then be a useful precedent … Jackson may also be viewed as a shot across the government’s bows’ in the obiter of the case.[14]

Arguments Advanced

The Human Rights Act, alternatively had brought appreciable changes to the conventional methods of interpretation. Lord Irvine[15] argues that the domestic courts have misinterpreted s.2 of the HRA by treating themselves as bound by Strasbourg case law, whereas it only provides that: “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any … judgment … of the European Court of Human Rights.”[16] However, it must also be disregarded that the court is now an equal partner with the Parliament when it comes to legislation. The unwritten constitution of the UK has an accepted convention of Separation of Powers and it should be maintained.  Moreover the Parliamentary Sovereignty comes first in UK and the court has the responsibility to safeguard it.[17]

Conclusion

It is obvious that too much independence can create such freedom which can distract the regular running of an institution. ­Therefore depending on this statement, I would drag my essay towards a conclusion that the Human Rights, especially sec.3 and 4, had completely redefined the interpretation and traditional running of the judiciary making judges more flexible and free in enacting the acts of parliament. This flexibility had made the judges prone to exercise their free will, legislate by themselves making the Human rights act a potential excuse. The Doctrine of Parliamentary sovereignty laid by A.V Dicey has also been proved ineffective due to the recent change brought by the HRA. Being most on the negative side, I would like to state that the traditional balance that the unwritten constitution had set is being hampered as the judiciary is somewhat trying to be independent and not maintaining the respect towards the parliament. This is due to the reason that HRA had given them enough freedom while interpreting the statutes and thus made the Judges apply slight activism in it.


[1] [1982] 2 WLR 918

[2] Pepper v Hart [1993] A.C. 593 (HL).

[3] GEAREY A, MORRISON W AND JAGO R, 2009,  The Judicial Practice of Statutory Interpretation, The Politics of the Common Law

[4] Barnett, H. (2011). Constitutional and Administrative Law, Ninth Edition. London and New York: Routledge

[5] GEAREY A, MORRISON W AND JAGO R, 2009,  The Judicial Practice of Statutory Interpretation, The Politics of the Common Law

[6] GEAREY A, MORRISON W AND JAGO R, 2009, The Politics of the Common Law

[7] Richard Bellamy (2011) ‘Political constitutionalism and the Human Rights Act’ International Journal of Constitutional Law.

[8] Lord Phillips’ inaugural Alexander lecture on public law “The art of the possible: statutory interpretation and human rights”, 2010 (Source: www.ukscblog.com)

[9] Judgments – Ghaidan (Appellant) v. Godin-Mendoza (FC) (Respondent),  House of Lords, www.parliament.uk

[10] Court of Appeal; [2001] EWCA Civ 633; 2 May 2001

[11] [2003] UKHL 40

[12] GEAREY A, MORRISON W AND JAGO R, 2009,  The Judicial Practice of Statutory Interpretation, The Politics of the Common Law

[13] Sally Ramage (2011)  ‘Statutory interpretation in English law today’  Criminal Lawyer.

[14] Vernon Bogdanor (2012) ‘Imprisoned by a doctrine: the modern defence of parliamentary sovereignty’,  Oxford Journal of Legal Studies.

[15] Ambrose v Harris (2011) UKSC 43 (SC)

[16] Phillip Sales (2012) “Strasbourg jurisprudence and the Human Rights Act: a response to Lord Irvine”, Public Law.

[17] Holland J, Webb J, 2010, Learning Legal Rules

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