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

When you do start to “construe the Act”, the basic rule of statutory construction must be applied. This is that it is taken to be the legislator’s intention that it shall be construed in accordance with the various general guides to legislative intention laid down by law; and that where these conflict the problem shall be resolved by weighing and balancing the interpretative factors concerned21. Section 3(1) now provides an addition to these general guides. What its drafter should have done was to say that the general guides are in future to be taken to include the strong principle that it is highly desirable that legislation should be taken to conform to the Convention (while Parliament of course reserves the right expressly to provide in a special case that it intends to depart from it).

I suggest that that is what Parliament must be taken as really intending by s. 3(1). I also submit that the provision should be applied using the Developmental method. The CJEC uses that method when taking notice of the Convention, and consistency here is essential. This means that in applying s. 3(1) the machinery of the Global method should in general be used, except that where it differs from the Developmental method the latter should be followed. To this a further factor must be added, namely that our courts may be expected to apply the principle, hitherto only used by the Judicial Committee of the Privy Council in relation to Commonwealth bill of rights provisions, that a generous and purposive construction is to be given to that part of a constitution which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled22.

This new interpretative principle cancels all previous authority. No pre-1998 Act precedent on the legal meaning of an enactment to which a Convention right is relevant can now stand. Even though it truly reflected the intention Parliament had when passing the enactment, the decision needs to be looked at again in the light of s. 3(1). Parliament’s original intention is no longer the sole deciding factor. While it retains its importance, it must now be reassessed in the light of the new rule. For pre-1998 Act enactments the interpretative criteria can therefore be ultimately reduced to “legislative intention plus s. 3(1)”. This reopening will not apply to post-1998 Act enactments, for here Parliament in forming its intention must be taken to have s. 3(1) in mind and wish it to be taken into account (unless of course Parliament expresses a contrary intention).

1999(25) 163 JP 984

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21. See S.I. s. 193.
22. R v Director of Public Prosecutions, ex p. Kebilene and others [1999] 4 All ER 801, per Lord Hope of Craighead at 838-839.