Section 3 of the Human Rights Act 1998 (“HRA”) is one of the central features of our current human rights law. It is an instruction that, ‘[s]o 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’.
The strength with which this provision has been applied by courts is well known. It has at times led them to take what would otherwise be strained interpretations of legislation – reading words in, out, or else departing from the unambiguous meaning of the provision (subject to broadly defined limits surrounding the appropriate constitutional role of the courts, and the line between interpretation and amendment).
It is of little surprise, then, that s3 has long been the focus of critics of the HRA, seeing tension with the ordinary principle of parliamentary sovereignty. Notably, it has been at the centre of the Conservative Party’s longstanding reform goals, which have finally taken shape in the Bill of Rights Bill (“BoRB”), given its first reading on 22 June.
This post considers the effect the BoR reform (as currently drafted) will have on rights-enhanced interpretations developed under the HRA.
With the lack of any interpretive provision equivalent to, or even weaker than s3 in the BoRB, it is clear that most legislation will need to be interpreted in the ordinary way. But what happens to the expansive, rights-enhanced meanings already given to legislation under s3? Do these readings continue to operate when applying that legislation to matters arising after the HRA’s replacement, or do they fall away?
1. Alternative views: Clause 40 BoRB, legislative intention, and judicial precedent
This question quickly became the subject of a lengthy Twitter exchange between a number of public law academics, taking place in real time as we began to digest the Bill.
In a recent blogpost, Robert Craig summarised the broad lines in this debate. His conclusion is that s3 interpretations will be preserved only retroactively – for disputes arising under the old HRA law. This is the straightforward operation of s16, Interpretation Act 1978, which, unless a contrary intention is shown, ensures that repeals do not have retrospective effects. Going forward, however, these enhanced interpretations fall away, or are “killed”.
Craig’s conclusion relies on the idea that Cl 40 BoRB implies an intention for s3 interpretations to fall away unlesssaved through the powers it gives to the Secretary of State to ‘preserve or restore’ the effect of a s3 judgment in legislation. If passed, he argues, this will be the legislative intent of Parliament.
To some, however, that such a far-reaching practical effect on rights-based law could depend on an indirect implication of the intention behind a transitional provision such as this seems unsatisfactory. Stefan Theil has recently made this argument on this blog. As he puts it, ‘[t]here is no obvious “smoking gun” in clause 40 or the wider Bill that unequivocally requires’ the outcome that existing s3 interpretations are ‘purged’ without a specific saving.
Indeed, Craig is also a little tentative about his conclusion on the implication of Cl 40, noting alternative ways of looking at the matter which would still leave a plausible role for those saving powers.
One view is that the meaning given to the legislation under s3 becomes, from that point on, its “true” meaning. A similar possibility was noted by Ekins in a UKCLA blogpost from 2013, for legislation enacted post-HRA (as an inference about the intent of the enacting legislature legislating against the background of the HRA provisions).
To this, we can add the view that the enhanced readings of legislation under s3 in case law continue to apply as a binding precedent on the interpretation of that legislation. This view was suggested early on by Gavin Phillipson (although I took it as an invitation for discussion rather than his settled view). It seems to be the view taken by the Joint Committee on Human Rights (JCHR). In a recent letter to Justice Secretary Raab, the JCHR criticised the government’s apparent assumption that Cl 40 is needed to save the effects of s3 judgments as running ‘counter to the usual approach of binding precedent’ (p9).
In this post, I add to the argument that the new BoR will kill the prospective effect of s3 interpretations. Contrary to the debate so far, my argument does not depend on the implicit intent behind Cl 40, or the Bill generally, however: I argue that it is the result of the ordinary application of precedent, once we remind ourselves how these interpretations operate(d) in the HRA system. Once we do, we will see that the above arguments fall short, and that there is no way a s3 interpretation can survive post-HRA, unless it is by specific legislative amendment. (Because its purpose is very much retroactive, I would add that considering the effects of s16 Interpretation Act for legal issues arising post-HRA – a possibility both Craig and Theil very briefly allude to – is a red herring to be avoided in this debate).
With this clarity, we can see the true extent of the powers given in Cl 40, and they are indeed cause for concern as a matter of democracy.
2. The limited scope of s3 precedents: s3 as a gateway
The issues with the applicability of a s3 interpretation post-HRA can be seen once it is clarified precisely what the effects of those interpretations are.
It is important to remember that s3 is not an amendment power: it is an instruction about how to give effect to a provision where its ordinary meaning would give rise to an incompatibility with the Convention rights. Another way of saying this is that it is – as often viewed by the courts – a remedial provision (see e.g. Lord Steyn in Ghaidan v Godin-Mendoza  2 AC 557, ).
So, rather than a map to the “true” meaning of the legislation, s3 is a practical tool to modify its effect to fix an incompatibility arising in a particular case, where it is necessary to do so.
As a matter of precedent, the construction given under s3 is not then a declaration of the abstract meaning the legislation should take effect with from that point on: it is an instruction as to what its meaning should be taken to be through the application of s3. s3 remains central throughout.
This was clearly put in an early decision making a radical use of s3: R v A (No2)  1 AC 45. As is well known, the House of Lords used s3 on the Youth Justice and Criminal Evidence Act 1999’s restrictive provisions concerning the admissibility of sexual history evidence on the issue of consent. They read in a discretionary exception for where this evidence would be necessary for a fair trial under Art.6.
Noting that it was ‘of supreme importance’ that the effect of this decision should be made clear to those putting it into practice, Lord Steyn directed future judges that ‘under s41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under section 3’ the discretionary admissibility test set out by the court should be used (, emphasis added).
The other Law Lords agreed with this summary. As Lord Hope more succinctly put it: ‘If he [the trial judge] finds it necessary to apply the interpretative obligation under s3…to the words used in s41(3)(c) of the 1999 Act’, then they should do so by applying the test set out in the court’s interpretation (, emphasis added).
As an early case applying this interpretation to sexual history evidence put it, s3 is the ‘gateway’ to this more flexible rights-based test, where its use is necessary to achieve a fair trial under Art.6. See (R v R  EWCA Crim 2754, ).
Thus, s3 does not act as a ladder to the construction of the legislation which can then be kicked away once used: it is the very foundation on which those constructions continue to be built in future applications and cases. But with s3 removed through the repeal of the HRA, this foundation is removed – the gateway is closed – and the precedents setting out these enhanced interpretations are inapplicable.
To be clear, then, s3 is inextricable from these cases and their precedential value. A s3 precedent is not a precedent on the freestanding interpretation of the legislation full stop: it is an instruction on the use future courts (and others interpreting the legislation) should make of s3 to fix the incompatibility identified by the judgment. Under the BoR, such instructions would be meaningless because s3 is no longer an option to future courts. The s3 precedent – including its interpretative instruction – no longer applies.
3. s3, “Convention rights”, and legal certainty
To some, this is a startling situation. If s3 interpretations are “purged”, then it seems that a whole range of law will be unsettled. For this reason, the JCHR propose that ‘all s3 interpretations be retained’ in order to ‘ensure legal clarity’ (p9).
It is true that there would be some unsettling, insofar as there may be different outcomes when applying the legislation under its “ordinary meaning”. But we would often have a good guide in those cases which made explicit use s3 to modify the effect of the legislation: the result the court was concerned to avoid would apply.
As others have pointed out, however, the courts have unfortunately not always spelled out the extent to which s3 was essential to the interpretation taken. So there may be some debate over precisely which judgments, and which parts, no longer apply.
Notwithstanding these issues, we should be careful not to overstate the legal uncertainty caused purely by the removal of s3. Even if s3 cases were applicable under the new BoR, it would still not be clear how the interpretations based on the rights under the HRA would apply to this new system.
For while the BoR would incorporate the same wording of the broad “Convention rights” (Sch.1 is identical to Sch.1 HRA), they would, strictly speaking, be different creatures in domestic law. It has been clarified under the HRA case law that the “Convention rights” found in in s3 and elsewhere, refers specifically to domestic rights ‘created by the [HRA] by reference to the Convention,’ interpreted and applied in accordance with the HRA framework (see, e.g, Re McKerr  UKHL 12, ; Hurst  UKHL 13 AC 189, , ).
The BoR’s “Convention rights” will therefore be new rights, and in practice, their content may differ. Indeed, it is a key purpose of the BoR reform that they should differ. It is for this reason that the BoR makes a number of changes to how the “Convention rights” are to be given effect: most significantly, on how to treat Strasbourg jurisprudence (Cl 3); balancing free speech (Cl 4); and complicated restrictions on imposing positive obligations on public authorities (Cl 5)).
Under the BoR’s Convention rights, then, it may be that there is no longer an incompatibility for the existing interpretation to cure. Or, if there is, it may be that any specific wordings set out in the enhanced HRA case law would not be sufficient to correct that incompatibility. Those interpretations applying a more general instruction to import the content of a Convention right into an existing legal test (say Art.6 into the tests for the admissibility of sexual history evidence, as in R v A, above) may well find themselves faced with a rather different looking right to use, leading to different outcomes.
My point is that this is not simply an issue of the repeal of s3. A broader uncertainty comes from the general recalibration of the Convention rights in the BoR, and this unsettling would still exist even if the Bill contained a full-strength equivalent of s3. Even then, the above issues would need to be litigated based on the application of the Convention rights under the BoR before we could establish the effects of any existing rights-enhanced interpretations.
4. Clause 40, executive discretion, and democratic accountability
By recalling the precise way in which s3 works, and thereby the precise scope of the existing precedents making use of this power, we have seen that there is no hope for the idea that these interpretations remain applicable for matters arising after the repeal of the HRA.
On my argument, there is no need for the “smoking gun” of an express legislative intent in Cl 40 for this killing to happen: it is simply the result of the repeal of s3, and indeed the HRA as whole, along with the background operation of ordinary legal principles.
This is important clarity to have, for it allows us to see the true scale of the powers given in Cl 40. These are, as Theil and others have feared, intended to be far more than mere safety net or clarifying powers. Not only is this the intention, however, we can see that it will be their legal effect.
Clause 40 BoRB allows the Secretary of State to make transitional or saving provisions through regulations. This includes a power to ‘amend or modify any primary or subordinate legislation so as to preserve or restore (to any extent) the effect of a relevant judgment of a court’ (Cl 40(2)) – meaning any judgment taking an interpretation of legislation which ‘appears to the Secretary of State to have been made in reliance on section 3’ HRA (Cl 40(3)). With existing s3 interpretations presumptively killed, these powers give the executive a broad discretion over the content of various areas of law those interpretations have affected.
Obviously, there is discretion over whether to preserve or restore a s3 interpretation at all. By what criteria this decision would be made is not clear. More fundamentally, there is scope over what to count as a “relevant judgment” in the first place – worsened by the ambiguity on the use of s3 in some cases. Cl 40(3) wants this call to be made by the Secretary of State as it appears to them.
These are issues with what it would mean to preserve a s3 interpretation fully. They are exacerbated by the fact that Cl 40 allows the Secretary of State to preserve such a judgment to any extent. This would seem to a give the Secretary of State a very wide power to amend or qualify as they see fit – although it may well become a legally contentious issue what level of constraint the terms “preserve or restore” might place on these edits.
The various levels of executive discretion at play here already make this clause worthy of Theil’s label of ‘Henry VIII on steroids’.
But it is worse than that. The discretion goes beyond what to do with the extinguished case law. As drafted, power will be given to the executive over whole categories of legislation in which Parliament has already interacted with s3 interpretations. Most obviously, this includes legislative enshrinements of s3 constructions (see, for an infamous example, Sch 4, para 5 of the Terrorism Prevention and Investigation Measures Act 2011, codifying the effects of an Art.6-centred interpretation in MB  UKHL 46 on the withholding of information in hearings involving restrictive anti-terrorism orders).
These legislative codifications would seem to be included within the scope of the “restore” power in Cl 40 because the judgments they are based on would be a “relevant judgment” relying on s3. Because of the “to any extent” content of the power, technically, the Secretary of State may be able to unpick a whole range of existing legislation which has been amended in light of s3 interpretations (including any legislative overrides), by revisiting and reworking the case law behind them. This is a somewhat surprising side-effect given the Conservatives’ purported concern for parliamentary sovereignty in this area. We might find that the courts are asked to interpret these transitional powers to exclude such results – taking a narrow interpretation of “preserve or restore” – but, as drafted, the “to any extent” makes this more difficult.
These powers are more concerning in light of the rudimentary levels of democratic oversight provided in the Bill – the usual procedures for delegated legislation (affirmative resolution for amending primary legislation, or negative resolution for all other changes – Cl 40(4) and (5)). Even this relatively low level of democratic involvement only kicks in if the Secretary of State decides to make regulations to preserve or restore a judgment in the first place, after they have already made the decision as to what that means, and to what “extent”.
The oversight provided in the clause, then, is nothing more than a cursory post-hoc confirmation, after the most significant judgements have already been made by the Secretary of State.
If the Bill is to proceed, a higher level of scrutiny would be desirable, to say the least. Some clarity could be achieved by amending to require the Secretary of State to produce a full list of judgments that will be preserved or restored in a Schedule to the Bill. This solution has been suggested by the JCHR in the letter discussed.
A heightened scrutiny could be achieved by requiring it also to be set out exactly how the judgments would be preserved or restored, and to what extent. These matters could then be debated and amended as the Bill progresses.
However, given the complexity of the task, this kind of pre-enactment solution may stall the Bill considerably. The powers in Cl 40 themselves are envisaged as lasting for 2 years, presumably because of the difficulties in assessing exactly what is needed and where. Perhaps, then, an ongoing mechanism for parliamentary involvement over the course of these 2 years – before the rest of the Bill is brought into force – would be preferable.
Other solutions may be available, and they ought to be considered carefully and creatively when debating the Bill.
The author would like to thank Gavin Phillipson, Alison Young, and Mike Gordon for comments on previous drafts, and everyone on the initial Twitter thread for a fascinating discussion of these issues.
(Suggested citation: K. Murray, ‘The future of rights-enhanced interpretations under the Bill of Rights’, U.K. Const. L. Blog (12th July 2022) (available at https://ukconstitutionallaw.org/))