affiliated to the International Association of Constitutional Law
Discussion about s 3 of the Human Rights Act 1998 (HRA) tends to focus on the scope of s 3(1). My interest in this post is in 3(2)’s direction that the section “applies to primary and subordinate legislation whenever enacted”. I suggest that this decision to extend s 3 to statutes whenever enacted amounted to an uncertain and reckless amendment to the statute book (that is, to all statutes in force at the time the HRA came into effect in October 2000).
What “it is possible to do” under s 3(1) may be quite different in respect of pre and post-HRA statutes. For statutes enacted after the HRA, the section grounds a strong presumption that Parliament intends to legislate consistently with the ECHR. For statutes enacted before the HRA, at the time the enacting legislature acted there was no such (strong) presumption; indeed, the legislative act might well predate the ECHR, perhaps by several centuries.
If one presumes that Parliament does not intend to change the law in an unclear fashion, one might reason that in respect of pre-HRA statutes, s 3 directs judges to resolve any open interpretive question in favour of a rights-consistent interpretation, but not otherwise to overturn or change any settled interpretive judgment. This would be all that it was “possible to do” when the enacting legislature had not acted in light of a strong presumption of conformity to the ECHR. On this view, enacting s 3 would not change the statute book as it stood at October 2000. However, the courts have never questioned that Parliament intended s 3 to change the meaning of pre-HRA statutes. What argument there has been about the temporal scope of s 3 has concerned whether the new meanings its application warrants apply to actions and events taking place before the HRA’s commencement. The judicial answer, in due course, was that they do not. It has been common ground throughout the case law that the enactment of s 3 overturns or changes what were otherwise clear, unambiguous meanings prior to the HRA’s commencement.
There were reasons for this strong conclusion. The section extends to statutes whenever enacted, without any qualification such as “unless the context otherwise demands”. Qualifications of this kind are common to Interpretation Acts, which apply to statutes whenever enacted but which do not purport to amend them. An Interpretation Act sets out a partial interpretive regime relevant to every statute, which may overturn unsound interpretive methods (say, literalism) and settle otherwise open questions, but does not purport to change the object of statutory interpretation or to change what statutes have always meant. Having said this, one might think that in respect of s 3 any such qualification would have been redundant because the section already refers to what may be “possible”, plainly implying that not everything is possible. Nonetheless, there are strong reasons to conclude that s 3 was intended to change the meaning of pre-HRA statutes. The point of the HRA was to help bring the United Kingdom into line with the ECHR, understood as a body of international law authoritatively interpreted by Strasbourg, and hence to avoid the embarrassment of Strasbourg challenge. The legislature may well have intended to change the meanings of pre-HRA statutes by extending the application of s 3 to statutes whenever enacted. Thus, Parliament acted to amend the statute book to this extent.
It was of course open to Parliament to amend the statute book in this way. But it was a reckless use of legislative authority. Parliament in 1998 amended every statute to the extent of its inconsistency with the ECHR, as authoritatively interpreted by Strasbourg, subject to the limits of what was ‘possible’ under s 3(1). It did not promulgate the law as amended. Indeed, it did not consider the reasons for each amendment that it made and it did not choose each amendment. Instead, it chose an indistinct set of amendments, the content of which was not open to it, considered by it, or chosen by it. The legislators may have assumed that the United Kingdom was largely in conformity to the ECHR, so that very few legal changes would be required. Any such assumption was irresponsible. The legislature should grasp the content of the legal changes that it makes before it makes them. To do otherwise is to fail to exercise its authority in response to reasons. It is hard to imagine a less responsible legal act then to amend every statute by means of an opaque formula (the obscure s 3(1) taken together with the vague ECHR and often unstable Strasbourg jurisprudence) when one has no way of knowing, and has shown no inclination to discover, precisely how one is changing the law.
This analysis is relevant to the question of how Parliament should go about amending or repealing s 3. If Parliament were to decide that s 3 (as interpreted) is unsound – because inimical to the rule of law say – it might choose to repeal the provision outright or to replace it with an alternative formulation. The repeal of s 3 would revive the interpretation of pre-HRA statutes, which the enactment of s 3 had otherwise displaced. This would be a relatively clear change and it would be open to Parliament to consider the law it would be acting to make by such an action and to choose it responsibly. Still, for the choice to be responsible it would have to be preceded by careful deliberation about the substance of the relevant changes, for there might be good reason, in some or many cases, to preserve the post-2000 interpretation, notwithstanding the abrogation of s 3. If such were the choice then that lawmaking choice ought to be given clear statutory effect, which would require detailed textual amendment on point. Thus, repealing s 3 would be no simple legislative act: the rule of law would call for careful, extended thought and then precise, comprehensive action.
The repeal might be taken also to change the meaning of post-HRA statutes, removing the interpretive direction that grounds the (often surprising) interpretations of those statutes. Alternatively, one might reason that those interpretations were grounded in inference about the intent of the enacting legislature, such that repeal of s 3 ought not to undermine that inference in respect of statutes already enacted (plainly it would remove the grounds of the inference for subsequent statutes). Any repeal ought to settle this point clearly.
Amending s 3 to introduce some new formulation (say the choice of words in s 32 of the Charter of Rights and Responsiblities Act 2006 (Vic)) might have the same effect as outright repeal (it would depend on the terms of the new formulation) or it might substitute for s 3 some intermediary, alternative rule. In the latter case, the amendment would change the existing statute book in ways that would be difficult to predict. This would go the wisdom of amendment rather than repeal, for it may be that the legal consequences of the former are too opaque to undertake responsibly. Also, at the very least and in sharp contrast to the enactment of the HRA itself, in making any such change Parliament ought to enact a detailed transitional scheme to avoid (or at least minimise) confusion.
Interestingly, s 6 of the New Zealand Bill of Rights Act 1990 (NZBORA), which was in some ways the precursor to s 3 of the HRA, is silent on the question of whether it applies to statutes enacted before the NZBORA. Yet the courts have never questioned that it does so apply and indeed in some cases, notwithstanding their rejection of the relevant HRA jurisprudence, have been open to understanding the NZBORA’s enactment to amend those past statutes – an amendment which is, as I say, imprecise, unclear and irresponsible. Contrast s 4 of the Interpretation Act 1999 (NZ), which provides explicitly that the Act applies to enactments whenever enacted unless the enactment provides otherwise or its context requires a different interpretation – a formulation which is intended to disavow any intention to change the law by changing (rather: restating) some interpretive “rules”. The Interpretation Act acknowledges what the NZBORA and HRA do not, namely that acting to change the meaning of a statute is to amend it, and amendment should not be haphazard.
Richard Ekins is a Fellow of St John’s College, Oxford.
Suggested citation: R. Ekins ‘Rights-consistent interpretation and (reckless) amendment’ UK Const. L. Blog (24th January 2013) (available at http://ukconstitutionallaw.org)