Michael Foran: Interpretation after the Human Rights Act? The Principle of Legality and the Rule of Law

Last week Liz Truss’s cabinet decided to shelve the proposed British Bill of Rights. Quite a lot has been said about the Bill since it was announced and many have welcomed the quiet demise of what was perceived by some to be a dangerous inroad into our human rights protection. Others have suggested that the Bill would never have been able to make good on the hopes of those who wish to see the U.K. unshackled from the jurisdiction of the Strasbourg Court. Rajiv Shah, a former special advisor in the Ministry of Justice and the No 10 Policy Unit, argues that the Bill was presented as containing a lot of red meat – to encourage ECHR sceptics and dismay ECHR advocates – while in reality being little more than a vegan steak. On reflection this is a fairly accurate description. One area of concern, however, was the potential repeal of s. 3 of the Human Rights Act which provides:

So 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.

This obligation on courts to interpret legislation in a rights compatible way raises some interesting questions relating to how courts would or ought to interpret legislation when this statutory obligation is not present. To be sure, the introduction of s. 3 altered the courts’ approach to statutory interpretation, supercharging an existing common law principle of legality by removing any perceived democratic challenge to an interpretative method which might sometimes depart from a strictly literalist approach. But it is far from clear what would happen should s. 3 be removed. Indeed, it is by no means certain that the future application of s. 3 will remain as robust as it has been, given recent trends within the Supreme Court towards a more restrained approach to their role within the constitutional separation of powers. Ultimately the interpretative approach adopted by the Court will depend as much upon its own conception of the proper role of the Court within a constitutional democracy as it will upon any given statutory provision or common law principle.

The Principle of Legality

I’ve argued elsewhere that the common law has a long tradition of making presumptions about the nature of legislative intent, indeed the nature of legislation itself, which views statutes as a contribution to an existing body of law, including fundamental constitutional principles and rights. One way that this manifests is the principle of legality. Alison Young correctly notes that this principle is not simply a canon of statutory interpretation (it is also a fundamental constitutional principle setting limits on executive power). Still, its primary function is as the label courts can attach to describe the kind of constitutional interpretation which makes these presumptions about legislative intent; that Parliament intends to make a reasonable and proportionate contribution to our existing law, respecting the rule of law and the fundamental rights of subjects in so doing. As Lord Hoffmann concluded in Simms, the principle of legality empowers courts to “apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document” (at [131]). In practice, the principle of legality operates to read down broad statutory provisions which, if read literally, might permit the breach of fundamental constitutional principles or rights. In cases such as UNISON or Privacy International, the strict semantic meaning of statutory provisions is not taken to reflect the legal meaning of the provisions. Legal meaning is constructed by reference to an existing body of law, including fundamental principles of the rule of law. As Dicey puts it:

Powers, however extraordinary, which are conferred or sanctioned by statute, are never really unlimited, for they are confined by the words of the Act itself, and, what is more, by the interpretation put upon the statute by the judges … from the moment Parliament has uttered its will as lawgiver, that will becomes subject to the interpretation put upon it by the judges of the land, and the judges, who are influenced by the feelings of magistrates no less than by the general spirit of the common law, are disposed to construe statutory exceptions to common law principles in a mode which would not commend itself either to a body of officials, or to the Houses of Parliament, if the Houses were called upon to interpret their own enactments … the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in the spirit of legality.

(Law of the Constitution, 273)

An important point to make here is that the principle of legality can be read narrowly or broadly, reflecting a judge’s understanding of the constitutional limitations and duties of their role. The same is true for provisions within written constitutional documents and for s. 3 of the Human Rights Act. In some cases, such as Privacy International, courts have strongly emphasised constitutional presumptions to the extent that even very clear semantic meaning cannot overcome them. In others, the Court may be more deferential to what they take to be the unambiguous intention of Parliament. Yet even here, the principle of legality operates to ensure that courts will allow express wording to restrict fundamental rights or principles in the most limited manner possible. The principle, as understood from cases such as UNISON, is one which requires courts to interpret statute as far as possible to be compatible with fundamental rights and the rule of law.

Section 3 HRA

Section 3 provided courts with the ability to engage in constitutional interpretation without needing to defend against charges of democratic illegitimacy. An approach to statutory construction which departed from what some might call the plain meaning of the words is open to democratic challenge in that it does not reflect the intention of a democratic legislature. Of course, it could just as easily be argued that a strictly literalist approach to interpretation is likely to be even more anti-democratic, if used to breach fundamental principles or rights that the legislature had no intention of infringing upon.

Nevertheless, the express wording of s. 3 HRA served to elevate Convention rights to the same constitutional status as common law constitutional rights or other fundamental principles such as the rule of law. Indeed, it arguably went further, by requiring a stronger presumption than the principle of legality had done up until this point. This was the understanding of Lord Phillips in Ahmed when he concluded that

I do not consider that the principle of legality permits a court to disregard an unambiguous expression of Parliament’s intention. To this extent its reach is less than that of section 3 of the HRA.

HM Treasury v Ahmed [2010] UKSC 2 [117]

Yet, even here it is unclear why s. 3 should be read to permit interpretations which disregard an unambiguous expression of Parliament’s intention. One could easily have concluded that this would not be allowed by s. 3, precisely because it would require courts to go beyond what it was possible to do without rewriting the statute itself.

The courts have thus far chosen to use s. 3 as the mechanism through which constitutional interpretation occurs when Convention rights are concerned, and for good reason. But this does not mean that the common law principle of legality is dramatically different. The difference here is in how courts have used each principle when both options are available to them. In cases where there is no Convention right at play but constitutional considerations still arise, courts have relied on an extremely robust version of the principle of legality. There is no way to make sense of Privacy International except by concluding that the court did disregard an unambiguous provision, at least with regard to its semantic meaning. The legal meaning of the statute was taken to flatly contradict the semantic meaning, and the former was preferred as the true expression of Parliamentary intent, given the constitutional presumptions the court made. It is hard to see how the operation of the principle of legality was weaker than what would be required under s. 3 here.

Having said this, the removal of s. 3 would not be insignificant. But it is a mistake to presume that the wording of s. 3 is what is doing the work here. The underlying potency of s. 3 is in how it has been used by courts, who could have taken and might yet take a more semantic approach to statutory construction in cases where Convention rights are in issue, privileging literalist readings and concluding more often that it was simply not possible to read a given statute in a manner which was compatible with the rule of law or fundamental rights.

The application of s. 3, just as is the case with the principle of legality, depends upon the interpretative community of the judiciary and the different approaches judges will take to their constitutional limitations. Prior to the enactment of the Human Rights Act, there was a burgeoning development of common law rights via the principle of legality. That began to wane when the Human Rights Act came into force and litigants as well as officials took full advantage of these new causes of action.

We cannot know how the principle of legality would have developed had s. 3 not been enacted, nor what rights might have been more explicitly recognised. What we do know is that part of the fizzling out of the doctrine of common law constitutional rights is directly attributable to the rise of Convention rights within domestic judicial review. Equally, the threat of repeal of the Human Rights Act saw the courts signalling that this was overly hasty, and encouraging the revival of a robust doctrine of common law constitutional rights.

Ultimately it is a mistake to presume that the principle of legality would continue to operate exactly as it has for the last twenty years should s. 3 be repealed. When placed into a new context where the courts can no longer rely on s. 3 to ground constitutional interpretation relating to human rights protection, there is every chance that older principles will re-emerge in the foreground of judicial reasoning. This could occur by reference to a more robust development of common law constitutional rights or a stronger presumption that Parliament does not intend to breach international obligations when legislating. There is also the distinct possibility that a more cautious court will begin to adopt a more literalist approach to statutory construction, even if s. 3 is not repealed. Even here, however, it is very unlikely that this will result in a complete abandonment of the rule of law presumptions which underpin the principle of legality. Even if there is a possibility that the principle might be more narrowly applied, this does not mean that it will be robbed of all content whatsoever.

The removal of s. 3 would clearly have an impact upon domestic human rights law but it would almost certainly not result in the courts’ embracing a strictly literalist approach to statutory construction where constitutional principles and rights are involved. Whether it would result in the courts’ reviving and centring the common law constitutional rights tradition is unclear but not at all unlikely in my view.

Thanks to Mike Gordon for his comments on a draft text of this post.

Michael Foran is a Lecturer in Public Law at the University of Glasgow

(Suggested citation: M. Foran, ‘Interpretation after the Human Rights Act? The Principle of Legality and the Rule of Law’, U.K. Const. L. Blog (12th September 2022) (available at https://ukconstitutionallaw.org/))