Section 3 of Human Rights Act

The presupposition when reading the Human Rights Act 1998 (HRA) s.3 is that the courts have been given the remit to interpret statutory legislation to comply with the European Convention of Human Rights (ECHR) ‘so far as it is possible to do so’. This has led to academics referring to s.3 as a ‘radical tool’ [1] . Certainly the pragmatic approach the courts have taken to the powers granted under this section would represent ‘a special constitutional role’ [2]. In reality the practice of constructive statutory interpretation has been occurring before the inception of the HRA; therefore at the most s.3 just extends the scope of the application, and more likely makes the practice explicit. Whilst other powers granted to the courts by the HRA under s.4 and s.6 have not had the same prolific practical difference to legislation in regards to being radical [3] , the possible implications of these other sections of the HRA could be just as revolutionary, if not more so, to Parliamentary sovereignty and the Judiciary than section 3.

When reading s.3 it appears to be regarded as a remedy prior to s.4 [4] which the courts seem to be reluctant to resort to [5] . In R v A (No. 2) [6] Lord Steyn [7] took a laissez-faire interpretation of s.3 (1) holding that it would sometimes be appropriate to use interpretation which was “linguistically … strained” [8] . This was with regards to the Youth Justice and Criminal Evidence Act 1999 s.41 which contravened the defendant’s right to a fair trial having been charged with rape, after the judge ruled that the complainant could not be cross-examined and evidence could not be relied on about her alleged sexual relationship with the defendant. The House of Lords held that s.41 of the 1999 Act should be read in accordance with the HRA s.3 and given an effect that was compatible with Article 6 [9] of the Convention. It was the dissenting statement of Lord Hope which appeared to hold greater sway with subsequent decisions, in that the courts do not have the power to deviate away from the fundamental issue by which legislators intended to address.

The possible broad-application of s.3 was further curtailed by the courts in Re S (Minors) [10] when the House of Lords held that the Court of Appeal had acted ultra vires in its “judicial innovation” in construing and applying s.3 of the HRA. Lord Nicholls stated the “cardinal principle” of Parliaments intention had been substantially deviated from when the Court of Appeal arrived at their reasoning. This led to the House of Lords in Mendoza [11] adopting a purposive approach to the interpretation of legislation, where by the word “spouse” in the Rent Act 1977 was interpreted to include homosexual partners. Thus it can be seen that although the initial assumption of an infinitely broad approach could be applied, in practice the courts are limiting themselves to a purposive approach. [12]

The purposive approach the courts have been demonstrating in their use of the HRA s.3 does not originate from the HRA, but rather the common law and an approach the courts have been willing to adopt in cases where all the possible meanings of the statute seem ‘unfair’ or ‘absurd’. In R (Quintavalle) v Secretary of State [13] the issue was whether cell nuclear replacement (CNR) came under the definition of ‘embryo’ in the Human Embryo and Fertilisation Act 1990. It was clear that the literal definition did not include CNR as it was not possible in 1990. Lord Bingham however stated ‘[T]he court’s task, within permissible bounds of interpretation is to give effect to Parliament’s purpose … Parliament could not have intended to distinguish between embryos produced by, or without fertilisation since it was unaware of the latter possibility.’ Although there is now an imposed obligation on the courts to interpret legislation in such a way, it is clear that the courts have used the purposive approach in areas not pertaining to and prior to HRA.

In previous years the purposive approach was established with greater application in Inco Europe v First Choice Distribution [14] . Lord Nicholls “freely” recognised the need to ‘read in’ words to a statute to resolve legislative problems, even where there is no ‘ambiguity’. It is clear that the specific approach to s.3 powers that the courts have adopted was in use before the HRA, even though it appears to have been a recent development within the courts. [15]

A further principle that casts doubt on how ‘radical’ s.3 really is comes from the fact that European Union (EU) members should adhere to the ECHR, since the inception of the Maastricht Treaty 1992. It states in Article F2 that the ‘Union’ shall respect the fundamental rights as ‘general principles’ of community law. This was seen in P v S and Cornwall County Council [16] in which P was a transsexual. P was given a three month notice of dismissal whilst on sick leave for initial surgical treatment, the tribunal disregarded the employer’s claim that the dismissal was due to redundancy. The Sex Discrimination Act 1975 was held not to apply to these circumstances, in that within the provisions a woman means a female and a man means a male. The tribunal referred to the European Court of Justice (ECJ) for a broader approach taken in the Equal Treatment Directive [17] in that equal treatment for men and women for access to employment does not preclude transsexuals when interpreting the purpose of the directive. Even though this was before the adoption of the HRA, the ECJ referred to case law from the European Court of Human Rights (ECtHR) on the protection of transsexuals before reaching a decision. [18]

It is apparent that s.3 is not the only section within the HRA to confer powers to the courts; the most notable on first glance is s.4 [19] which looks to bring AV Dicey’s idea of Parliamentary sovereignty [20] into disrepute. The greatest application of s.4 has been with the introduction of the multitude of Terrorism Acts, conducting a balancing act between civil liberties and national security. This was evident in A v Secretary of State for the Home Department [21] where under the Anti-Terrorism, Crime and Security Act 2001 s.23 foreign nationals suspected of terrorism could be imprisoned indefinitely without trial. It was held that such a discriminatory provision was contrary to Article 5 [22] and for the justification of national security it would require close scrutiny. Moreover, the fact that it could be applied to persons who did not pose an actual terrorist threat meant that it did not ‘rationally’ address the threat to security. Therefore the House of Lords decided that s.23 was incompatible with Articles 5 and 14 of the ECHR.

Section 4 declarations of incompatibility are in reality reserved for a ‘last resort’ [23] , when the courts are looking for a more preferred s.3 remedy and only when this is ‘impossible’ to apply, the courts would issue a s.4 declaration. For example in International Transport Roth GmbH v Secretary of State for the Home Department [24] the High Court found that even though it had a “strong obligation” to “turn the statutory language … inside out” the present case was outside the scope of s.3 and thus a s.4 declaration was to be issued. [25] There are many examples where due to the lack of legal consequence of s.4 the courts appear reluctant to use such a provision, as it does not deal with the case before them. [26]

It was shown by the effect of the declaration of incompatibility made in A v Secretary of State for the Home Department [27] that such a declaration does lead to changes in legislation. For example, the Prevention of Terrorism Act 2005 was to amend the Anti-Terrorism, Crime and Security Act 2001 much to the dismay of Parliament. A possible reason for this reluctance to make a s.4 declaration is that such declarations can not be made by lower courts, this would mean that no remedy would be available in the case before them whereas the use of s.3 would allow for an immediate resolution to the case.

More imposing is the important effect of s.6 and s.7 of the HRA which makes it unlawful for a public authority to “act in a way that is incompatible” [28] with the convention rights. What is interesting is the broad definition of public authority to include any organisation that shall carry out public (governmental) functions. The definition of public authority includes the Scottish Parliament, Welsh Assembly, and Northern Ireland Assembly; but excludes the Houses of Parliament in relation to proceedings in Parliament. This grants the courts the power to strike down legislation from any of these bodies that it deems incompatible with the convention.

The scope of the definition of public authority has left a lot of uncertainty. In Donoghue v Poplar Housing and Regeneration Community Association Ltd [29] the Court of Appeal held that the transfer of housing stock by the local authority to Poplar did not transfer their public duties but only the means by which to enact them, providing houses for rent was not on its own a public duty. Moreover in the case of R (A) v Partnership in Care Ltd, it was found that the decisions of the managers of a limited company which was performing a task of a public nature conferred by statute related to a public interest. The potential difference in deciding what constitutes a public authority by reference to function or formation of the organisation further allows the courts to give greater scope to s.6.

Another ‘radical’ change created by the HRA s.6 is that it includes in the definition of public authorities the courts, which has been open to much debate as to the possibility of a “horizontal effect” [30] where the courts are bound to act judicially in accordance with the ECHR. It has been suggested that this could lead to changes in already determined common law, and disputes between private parties. It is clear as per s.7 [31] the direct application of a “horizontal effect” is neither intended nor possible within the HRA, however it is assumed to be possible to occur indirectly as although no ‘public actors’ may be involved in the dispute the court would be bound to comply with the ECHR leading to a possible discrepancy with the common law, or a ‘hard case’ of deciding whose right prevails over the other to ensure the court complies with its own obligation. This appeared to be feasible in Douglas v Hello! [32] where two Hollywood stars gave publication rights to OK! magazine for photographs of their wedding. Despite precautions to prevent any other photographs from being taken, Hello! magazine obtained unauthorised photographs and planned to publish them. The claimants obtained an injunction to prevent Hello! magazine from publishing the photographs. The Court of Appeal discharged the injunction stating the judge who had granted the injunction failed to give reasons. This case can be regarded as a dispute between the ‘right to privacy’ and ‘right to freedom of expression’ it was decided that restricting the right to freedom of expression “for the protection of the reputation or rights of others” is to be regarded on an equal standing as the substantive right being claimed to be in contention.

The possibility of a “horizontal effect” was further established in Venables v News Group Newspapers Ltd [33] , regarding the killers of two-year old James Bulger, who were at the age of 18 years old eligible for parole. Several newspapers wanted to publish up to date photographs of the boys and their present whereabouts. Venables and Thompson sought a continuing injunction to prevent the newspapers from publishing the material. The Family Division of the Court of Appeal held that although the ECHR did not give rise to an independent cause of action, the court as a public authority was obliged to act compatibly with the convention rights when adjudicating on common law matters. This shows the ambit of s.6 and the implications it could have if the exercising of this power by the courts is not controlled.

By looking at the way the courts have exercised statutory interpretation before and after s.3, it becomes apparent that far from being radical but merely a process of interpretation that is well developed and regularly used. Rather than referring to intention of Parliament which had been the case prior to the HRA, the courts are now obliged to confer to the ECHR and case law from the ECtHR when considering contraventions from Parliament. By contrast, s.6 gives the power to the courts to adhere to the Convention when reaching decisions in private disputes, whilst also ensuring that other public authorities do not act incompatibly with the ECHR. This is a power that is fundamentally new. When considered in the scope of devolved governmental bodies and the possibility of a “horizontal effect” the only possible function that could appear more ‘radical’ would be granting the courts the power to ‘strike down’ legislation. Therefore when attempting to term one of the sections of the HRA as ‘most radical’ it is found that s.6 would be more appropriate than s.3.