2.2.FB's writings on Human Rights Law

2.2.2. FB's articles on Human Rights Law

1999.025 ‘Section 3(1) of the Human Rights Act 1998’ 163 JP 164

The Government has announced that the main provisions of the Human Rights Act 1998 are to be brought into force on October 2 2000. They include the crucial s. 3(1) of the Act, which states: “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”. Not surprisingly, since it is not yet in force, there is no judicial authority on the legal meaning of s. 3(1) though it is significant that in a recent case Lord Cooke of Thornden said that it is “a key element in the Act” and “a strong adjuration”.1

Section 3(1) resembles s. 6 of the New Zealand Bill of Rights Act 1960, which says that “wherever an enactment can be given a meaning that is consistent with [the Bill of Rights] that meaning shall be preferred to any other meaning”. In both cases the test is what is “possible”, what “can” be done. But those familiar with the way courts have handled statutory interpretation over the years know that almost anything is possible. Where can we find firm ground here? Pointing to that is the object of this article.

We must begin with the current rules of statutory interpretation as they apply to ordinary British legislation with no European connection. I have recently described these in a series of twelve articles in this journal entitled “Threading the Legislative Maze”2. They are more fully described in my book STATUTORY INTERPRETATION3. They are largely based on the common law and comprise rules of interpretation, presumptions derived from the nature of legislation, principles of legal policy, and linguistic canons of construction. There are a large number of them, though only a few are likely to be relevant in any one case. Because these interpretative criteria are so numerous I decided in the 1999 Supplement to the book to christen the method of interpretation by which they are deployed the Global method, from the definition of global given in the OED, namely ‘pertaining to or embracing the totality of a number of items, categories, etc; comprehensive, all-inclusive, unified; total’.4 Under the Global method what the court does (or should do) is consider the opposing constructions put forward by either side in the case, take an overall view of the interpretative criteria, weigh all the interpretative factors that are relevant to the enactment in question and arrive at a balanced conclusion.

The Developmental method

A European Community law may have direct effect in the United Kingdom or be transposed into specifically British legislation. Either way, it must be construed by our courts as it would be by the Court of Justice of the European Communities (CJEC). This court uses a method of construction which follows the Global method in some ways but differs from it in others. It differs in making very little use of the doctrine of precedent and in applying a much broader version of purposive construction. On the latter aspect, it applies teleological rather than historical methods and seeks to give effect to what it conceives to be the spirit rather than the letter of the relevant treaties, directives etc. It views the European Union as a living and expanding organism and the interpretation of Community law as changing to match its growth.5 “The interpretation of Community instruments involves very often not the process familiar to common lawyers of laboriously extracting the meaning from words used but the more creative process of supplying flesh to a spare and loosely constructed skeleton. The choice between alternative submissions may turn not on purely legal considerations, but on a broader view of what the orderly development of the Community requires.”6

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1. R v Director of Public Prosecutions, ex p Kebilene [1999] 4 All ER 801 at 837.
2. See volume 162 (1998) at pages 356, 436, 516, 596, 696, 856 and 995 and volume 163 (1999) at pages 264, 364, 484, 624 and 683. The articles are shortly to be republished in book form.
3. Third edition 1997, supplement 1999 (collectively referred to as ‘S.I.’ in following footnotes).
4. Oxford English Dictionary, second edition (1992).
5. See Henn and Darby v. D.P.P. [1981] A.C. 850, per Lord Diplock at 905.
6. Customs and Excise Comrs v ApS Samex [1983] 1 All E.R. 1042, per Bingham J. at 1056.