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 - continued

The British doctrine of purposive construction, comprised within the Global method, is markedly more literalist than the European variety, but is increasingly obliged to give way to the European system. “The adoption of a construction which departs boldly from the ordinary meaning of the language of the statute is . . . particularly appropriate where the validity of legislation has to be tested against the provisions of European law. In that context it is proper to give effect to the design and purpose behind the legislation, and to give weight to the spirit rather than the letter”.7

I call the CJEC method Developmental construction because in advancing the “spirit” of a legislative text at the expense of the text it is always aiming to develop the effectiveness of the EU.8 Thus we now have operating, in relation to different items of legislation having effect within the United Kingdom, two distinct methods of statutory interpretation: the Global method and the Developmental method. Does s. 3(1) of the Human Rights Act 1998 provide us with a third method?

Strained construction

In my series of articles “Threading the Legislative Maze” I showed that where, on the facts of the instant case and taken by itself, an enactment has a clear grammatical meaning, it is a strained construction to give it a different meaning. Where an enactment has two or more grammatical meanings (or in other words is ambiguous) it is a strained construction to give it a meaning other than one of the grammatical meanings. Where an enactment is semantically obscure, it is a strained construction to give it a meaning other than the grammatical meaning, or (in case of ambiguity) one of the grammatical meanings, of the corrected version. This can be summed up by saying that a strained meaning of an enactment is any meaning other than its literal meaning.9

It may be found necessary on balance to apply a strained construction where the interpretative factors favouring the opposing constructions in a particular case have been ascertained and weighed. Judges do not like to admit they are doing this because it may appear that they are trespassing on the legislator’s function. Yet in a wide variety of cases such stretching of the legislative language is found to be necessary in order to give effect to the intention of Parliament. Strained construction plays an important part in the Global method of statutory interpretation. As pointed out above, it is even more widely applied in the Developmental method. It is also required by s. 3(1) of the Human Rights Act 1998.

What s. 3(1) requires

Section 3(1) contemplates two kinds of interpretation: a construction of the Convention right in question and a construction of the enactment being tested by reference to that Convention right. In determining the ambit of a Convention right a court must take into account relevant decisions of the European Court of Human Rights and the European Commission of Human Rights.10 It is also necessary to bear in mind the margin of appreciation afforded to individual countries.11 Subject to this, it would for obvious reasons be incorrect for a UK court to arrive at a legal meaning of a Convention right other than that likely to be found by the European Court of Human Rights. The right of petition to the European Court will remain fully operative after October 2 2000. It would be highly undesirable if litigants who had failed before the UK court felt it worth while to try their luck with a second bite of the cherry at Strasbourg.

Continued..............

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7. Cutter v. Eagle Star Insurance Co Ltd [1998] 4 All E.R. 417, per Lord Clyde at 426.
8. Similarly the term ‘dynamic or evolutive interpretation’ has been used in relation to the Convention: see D. J. Harris, M. O’Boyle and C. Warbrick, Law of the European Convention on Human Rights (Butterworths, 1995) p.7.
9. See the third article (volume 162 (1998) at page 516). Strained construction is also fully explained in S.I. s. 157.
10. Human Rights Act 1998 s. 2.
11. This allows a state “a certain measure of discretion, subject to European supervision, when it takes legislative, administrative or judicial action in the area of a Convention right”: see the work cited in n. 8 above at p. 12 and the detailed exposition at pp. 12-15. See also R v Director of Public Prosecutions, ex p. Kebilene and others [1999] 4 All ER 801, per Lord Hope of Graighead at 843-844 and David Pannick, “Principles of Interpretation of Convention rights under the Human Rights Act and the discretionary area of judgment” [1998] Public Law, p. 545 at pp. 548-551.