The operation of the Human Rights Act 1998 (the “HRA”) is currently being reviewed by the Government’s Independent Human Rights Act Review (the “Review”).  One of the Review’s key themes is “the impact of the HRA on the relationship between the judiciary, the executive and the legislature”. In respect of this theme, the Terms of Reference ask how s.3 has operated and whether it should be amended or repealed.

Section 3 gives courts the ability to adopt statutory interpretations that comply with Convention rights (as defined in Schedule 1 to the HRA), even where the ordinary, unambiguous meaning of a statute would result in a breach of Convention rights, as long as it is “possible” and not against the thrust of the legislation. It has been criticised as being a “radical instrument” that “authorises judicial lawmaking” by Professor Richard Ekins and Professor Graham Gee. Professor Ekins has suggested that “section 3 should be amended to specify that it does not authorise courts, or anyone else, to read and give effect to legislation in ways that depart from the intention of the enacting Parliament”.

To test these assertions, we used the ‘All Cases Citing’ function on Westlaw to review the cases where s.3 was mentioned in decisions handed down between 1 January 2013 and 31 December 2020; in total 593 cases. We identified cases where s.3 had been used in the interpretation of legislation, seeking to take an over-inclusive approach. We excluded cases where (i) the decision of the court in relation to s.3 and / or the Convention had been subsequently overturned; and (ii) the court was following precedent in applying an earlier decision regarding the interpretation of the same legislative provision. This research was used as part of JUSTICE’s response to the Review. (The numbers of cases set out below that we identified are a slight increase to the figures included in JUSTICE’s response the Review, as upon a further review a number of additional relevant cases were identified.)

We are conscious that there are various possible parameters of identification and categorisation of cases, and s.3’s role in a decision is not always clear; different findings to those set out below could therefore be reached. We also identified a handful of cases where s.3 was referred to when interpreting ambiguous terms that necessarily engaged Convention rights. However, since there was no question of the legislation in question (most frequently the Equality Act 2010) giving rise to a prima facie breach of Convention rights we have not included these.

Overall, we found relatively few cases in which s.3 was decisive to a case’s outcome. However, when it was, its use, although important, was not radical with the courts being vigilant to not undermine Parliament’s intention.

Infrequently used

Our primary observation is that s.3 is used infrequently. Over eight years we found only 25 cases where courts or tribunals had used s.3 to interpret legislation that would otherwise have been incompatible with Convention rights. In the majority of cases which mentioned s.3, it was not used for a variety of reasons including: (i) the court refused to use s.3 because to do so would go beyond its institutional competence (and therefore a declaration of incompatibility was issued or the subordinate legislation was disapplied instead); (ii) the legislation did not breach Convention rights; (iii) a Convention compliant interpretation could be reached using ordinary principles of statutory interpretation; or (iv) the court applied s.6 HRA instead (either where one party was a public body or to disapply subordinate legislation).

No contradiction of the will of Parliament

Second, when the courts have relied upon s.3, its use is generally neither radical nor contrary to Parliament’s intention. In practice s.3 is not regularly being used by the courts to “unsettle the legal meaning and effect of legislation” as Professor Ekins suggests, rather we found that s.3 was often used to address unforeseen drafting issues or factual situations that clearly fell within the overall intention of the legislative scheme. This is not the same as interpreting statutes in a manner inconsistent with Parliament’s intention and can in fact ensure that Parliament’s overarching intention is realised. In some instances the courts felt compelled to use s.3 to give effect to Parliament’s intention, since not doing so would “be contrary to the “grain of the legislation” in a much more fundamental way” (Fessal v Revenue and Customs, [56]).

Section 3 is often used to bring certain factual circumstances within the ambit of a statute when they might otherwise not have been provided for. In Re X (Parental Order: Death of Intended Parent Prior to Birth) a parental order in respect of a child born following a surrogacy agreement was overwhelmingly in the child’s best interests. However, the biological father had died unexpectedly meaning that the criteria for the making of the parental order as set out in the Human Fertilisation and Embryology Act 2008 (“HFEA”), s.54 would not have been met without the use of s.3. The reading down met the policy and legislative aims of the HFEA which “sought to provide a comprehensive legal framework for those undertaking assisted conception, with the aim of securing the rights of any child born as a result” [95]. Likewise in Warren v Care Fertility s.3 meant that an error in documentation provided by a clinic was not fatal to a consenting deceased man’s sperm being stored and used by his widow, which was the purpose of the relevant regulations. Section 3 has also been used to extend legislation’s protective provisions to groups whom Parliament would likely have intended to have been protected, for instance in Gilham v Ministry of Justice district judges were afforded whistleblowing protections.

Similarly, s.3 has been used to address technicalities with legislative wording. In O’Kane v Revenue and Customs Commissioners a “reasonable excuse” for not paying tax was held to include not having any tax liability, whilst in Westfoot Investments Ltd v European Property Holdings Inc the phrase “in personal occupation” was read down to “in occupation”, so that the Heritable Securities (Scotland) Act 1894, s.5(1) could be used to evict legal persons as well as natural persons.

Section 3 has also been used to interpret legislation in accordance with other equivalent legislative provisions (such as the Equality Act 2010 and EU-derived law in Gilham). Further, in two cases the Northern Irish courts sought to bring legislation in line with the equivalent provisions for England & Wales (Re HM’s Application for Judicial Review and R. v McGreechan (Ryan)). Similarly, there are instances of the courts applying previous decisions on s.3 to a similar legislative provision, including where the application of the previous jurisprudence was accepted by both parties (Stevenson v General Optical Council) or in the authoritative practitioners’ texts (Re JC Druce Settlement).

Section 3 has, however, often been crucial in protecting Convention rights and realising Parliament’s overarching intention. The cases identified above, although not radical, arguably depended on s.3 to protect important rights. Under the common law principle of legality a rights-compatible interpretation is not possible in the face of clear unambiguous language (see Duport Steels Ltd v Sirs [1980] 1 WLR 142, [157] (Lord Diplock)). However, s.3 has allowed courts to interpret such language, the Convention-breaching consequences of which Parliament could not have intended, in a rights-compatible manner.

Supporting ordinary statutory interpretation

Third, we identified 34 cases where s.3 was used to support an interpretation that was reached using normal principles of statutory interpretation. In about two-thirds of these cases the court reached a conclusion using a common law method, and then either considered how the application of s.3 and the Convention to the legislation would reach the same result (see for example Re X (A Child) (Parental Order: Time Limit)), or recognised that their conclusion was also Convention-compliant. For instance, in R. (on the application of Stern) v Horsham DC the court’s conclusion was “powerfully reinforced” by Article 6, [52]. In other cases, the court considered s.3 and Convention rights as a supporting factor in their reasoning. These cases further demonstrate how often s.3 is no more radical than the common law rules and presumptions which govern statutory interpretation. In addition, they reflect how s.3 has become engrained in the courts’ reasoning when interpreting legislation, including when applying common law interpretative principles. For example, by giving courts confidence in conclusions they have reached without recourse to s.3, but which protect fundamental rights.

Entrenched in judicial decision-making

Fourth, the above demonstrates how s.3 is entrenched in judicial decision-making. If it were to be repealed or weakened there would be a highly complex task of reversing its impact. Unwinding the effect of s.3 as it has been used until now would likely create considerable uncertainty – both as to the impact of prior decisions and how courts would approach statutory interpretation going forward. In the cases outlined above it is often difficult to distinguish exactly what role s.3 played in the court’s reasoning, as opposed to ordinary common law principles. It is also clear that in many cases the same result can be reached under s.3 or ordinary statutory interpretation. Further, in a number of cases the court noted that s.3 supported their use of a common law method of statutory interpretation (for example, the use of a “broad and purposeful interpretation”, A v C,[43]; or an interpretation to correct an “obvious drafting error”, NA (Pakistan) v Secretary of State for the Home Department, [25]-[26]), demonstrating the influence that s.3 may have had on the common law approach to statutory interpretation and which would presumably continue absent s.3.

Conclusion

To conclude, the cases we identified where s.3 has been used demonstrate that it is not a radical judicial law-making tool that poses a threat to the rule of law. Instead, s.3 is a well-crafted interpretative tool that is rarely relied on by the courts, but when it is used, the courts have done so to protect Convention rights in way which maintains the constitutional separation of power. Were it to be repealed or weakened, this delicately balanced and important protection would be lost.

We are very grateful to Aislinn Kelly-Leith and Thomas Wright for their research assistance on the section 3 case law.

Florence Powell, Sir Henry Brooke Fellow, JUSTICE and Stephanie Needleman, Senior Lawyer, JUSTICE.

(Suggested citation: F. Powell and S. Needleman, ‘How radical an instrument is Section 3 of the Human Rights Act 1998?’, U.K. Const. L. Blog (24th. Mar. 2021) (available at https://ukconstitutionallaw.org/))