Statutory Interpretation under the Human Rights Act.
How we’re going to understand the dynamics of judicial practice in this
area. Let’s begin with the Human Rights Act
itself. The interpreted provisions of the human
rights act have had a major impact on judicial interpretive practices.
On consideration of the new practices has to begin as suggested by looking at the
act at section three of the Human Rights Act.
The range of this provision is worth noting.
It applies to primary and secondary legislation whenever enacted before or
after the Human Rights Act. The effect of section 32, 32B however, is
that the incompatibility of a piece of primary legislation with the Human Rights
Act. Does not mean that the legislation is to
be held void. The duty of the court is to interpret
legislation as far as possible as consistent with convention.
However if it’s not consistent with convention, the courts do not have the
power to hold that that piece of legislation is void.
In other words as I’ve pointed out before, Parliamentary Sovereignty is left
in place. The pressing question is, how will the
courts interpret legislation in the light of Section Three?
The Government White Paper writes about how a document we’ve already looked at.
Stated that Section Three would go far beyond the rules prior to the Human
Rights Act which allowed the courts to take into account.
The rulings of the European Courts of Human Rights, and interpreting
legislation and clarifying ambiguity. The White Paper stated that the courts
will be required to interpret legislation so as to uphold convention rights.
Unless the legislation itself is so clearly incompatible with the Convention
that it is impossible to do so. This white paper then clearly articulated
rule of interpretation, it does, however, leave a great deal of discretion.
In the hands of the interpreter, in the hands of the judge.
To determine whether or not it is impossible to interpret legislation as
compatible with the convention. Or indeed as possible to interpret as
compatible with the convention. Once again, we’re concerned with what I
think is the pressing question, this whole area of law.
And that is, where the constitutional boundaries of judicial practice lie.
The only way of really resolving this question would be to look in detail at a
great number of cases. We can’t do this, so once again, what I’m
going to try and do is use a single case, a case that’s called Ghaidan and
Godin-Mendoza. To try and illustrate some of these
broader themes. The case saw the House of Lords dealing
with a question of Property Law that related to a succession of a tenancy.
Under paragraph two of schedule one, to the Rent Act of 1977.
The defendant in this case was contending that the Rent Act discriminated against
him as a homosexual. And depriving him of rights over the flat
of the deceased partner. The apartment of his deceased partner.
What precisely was the issue in Ghaidan? Paragraph 2 2, ma, makes a distinction
between a heterosexual and a homosexual couple who are living together.
For the former the survivor can take over the tenancy if the property was in the
name of deceased, where as the latter the survivor cannot.
The survivor in a gay relationship is not deprived of all rights over the property.
He or she is entitled to a short tenancy. However, in terms of both rent protection
and rights against eviction. The survivor off the homosexual
relationship is clearly not as beneficial a situation as the survivor of the
heterosexual relationship. The Court of Appeal when it heard this
case had held that act in question, the UK act the Rent Act of 77.
Amounted to an infringement of the defendants rights under article 8 and 14
of the convention. The Court of Appeal had used section
three of the Human Rights Act, to read the act in a broad way.
Thus allowing the defendant to take over the tenancy of the flat.
The House of Lords dismissed the appeal against its ruling and confirmed the
approach of the Court of Appeal. What the Court left would then have to do
was issue a Declaration of Incompatibility.
As the act could be read in such a way as to make the UK Act Convention Compliant.
The house of laws did note, however, that the new meaning of the act, the new way
that we’d read it. New way that it is read by the judges,
must be consistent with the fundamental features of the legislative scheme.
And I want to investigate this argument in a more detail.
In Ghaidan in the House of Lords, Lord Nickel pointed out that there are number
of ways of reading Section three. Because it a ambiguity in the Human
Rights Act itself, an ambiguity in the world possible construed UK legislation
such a way is to make it possible. A narrow reading would hold that Section
three only allowed the courts to resolve ambiguities in statutory language, in
favor of convention-compliant interpretations.
A much broader interpretation of the section has been preferred.
This allows the courts to give a different meaning to the language in the
statute. In order to make its meaning consistent
with the convention, this could involve reading words in.
As in an earlier case called the R and A, crown and a.
There is no need for the language of the act to be ambiguous for the court to take
this course of action. This means that the court can depart from
the ambiguous, sorry. This means that the court can depart from
the unambigous meaning. The legislation would otherwise bar.
Normally, the court would have to determine the intention of Parliament by
using the language in the act. However, Section three means that the
court may have to depart from the intention of the enacting parliament.
So we can begin to appreciate how the Human Rights Act makes for a potentially
radical departure from conventional methods of interpretation.
However, this does not extend the idea that the court is now an unequal partner
with the parliament when it comes to legislation.
The fundamental requirement is that the court should follow the parliaments
intention in interpreting the act. The question becomes: how would a court
know that it is legitimate to depart from parliamentary intention.
The answer to this question depends on the degree to which parliament intended
that the actual words of the statute. As opposed to the concept that those
words express is to be determinitively of the [INAUDIBLE] meaning.
What does this mean? Lord Nichols argues that the
determinitive factor cannot be the word or the words of the act.
Since the Human Rights Act allows them to be interpreted against that obvious
sense. It would be possible therefore, for the
court to read words into an act. This would be consistent with the fact
that Section three requires that the court read in words to make an act
compliant with a convention. There is however a limit to this process.
Although the court can read words into an act.
Parliament could never have intended that the court should adopt a meaning
inconsistent with the fundamental feature of the legislation.
This would cross the line and show the courts interfering with the sovereign
rights of parliament. So, where does this lead us?
As I suggested I think the Human Rights Act and the methods of interpretation
that have followed in its wake. Suggest that whilst Parliamentary
Sovereignty has not come to an end it clearly hasn’t.
That the judges are reading words Into an act in order to make the act convention
compliant. However, there is a limit to this
practice the words read in must be consistent with the fundamental
principles of that act that is in question.
This in other words allows us to say that while the judges have this if you like
subordinate. Law making power, they cannot trespass
upon the ultimate lawmaking power of parliament.
We’ve come a long way in other words, from the idea of the literal rule.
And those earlier myths that grew up around the constitutional position of the
judiciary. What I think indicates these broader
issues, these broader concerns, in the contemporary constitution, in these
contemporary judicial practices. And, is the following statement from Jack
Straw, former minister of New Labor government.
who in a parliamentary debate argued that, quote.
Parliament and the judiciary must engage in a serious dialog about the operation
and development of the rights in the bill.
That was when it, the Human Rights Act was still a bill.
This dialog is the only way in which we can assure, ensure that legislation is a
living development that assists our citizens.
We could then perhaps speak of a dialogue over rights, over human rights.
Developing between the courts and parliament, and if we follow Jack Straw
here. This dialogue is the only way in which we
can ensure that legislation itself is a living development [UNKNOWN], in other
words. From Jack Straw’s perspective or at least
Jack Straw’s perspective in 2000 and cited in 2003.
I think he saying this in a somewhat earlier period and if we can follow the
argument. That what is necessary is enhanced Human
Rights Protection for citizens within the United Kingdom.