#14669 - Ss 3 4 In The Court - GDL Constitutional and Administrative Law

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S.3 interpretive requirement: primary legislation must be read in line with Convention rights

S.4 incompatibility declarations

Ordinary Domestic Statutory Interpretation

Look at existing statutory interpretation tools

• F. A. R Bennion: acknowledges the grey areas of statutory interpretation – it evinces a flexible, creative power in the courts

Interpretation Act 1978: Parliament’s guidance to courts about interpretation & since 1999 all bills have been accompanied by explanatory explanations

• The literal rule: all words given literal or natural meaning

  • Respectful of parliamentary sovereignty

    • Lord Esher, R v City of London Court Judge 1892: “If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity.”

  • Clouding of their intention

    • Fisher v Bell: finding of invitation to treat where knives on display - literal rule precluding purposive interpretationoweHowelkjh

  • No room for human error

    • Law Commission 1969 - literal rule “assumes unattainable perfection in draftsmanship”

• The golden rule: if the literal rule gives an absurd result and the outcome is clearly not what parliament intended, only then can the judge substitute a reasonable meaning

  • Respectful of parliamentary sovereignty

    • R (on the application of Haw) v Secretary of State for the Home Department interpreted the literal meaning of ‘starts’ to give effect to PI

  • Reduces the injustice/absurdity of the literal rule

    • Lord Wensleydale in Grey v Pearson 1857, “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument…”

    • Applied in R v Allen 1872: bigamy wording of ‘marry’ to mean ‘go through a marriage ceremony’

  • Law Commission points out no definition of ‘absurdity’

• The mischief rule: judge must ask what problem or 'mischief' the statute was trying to remedy & interpret in such a way that carries out parliament's wishes

  • Reduces the injustice/absurdity of literal rule

    • Royal College of Nursing v DHSS 1981 interpretation of ‘registered medical practitioner’ to include nurses for abortions because the mischief the Act was trying to remedy was the use of backstreet abortionists

  • Enables too much freedom to the courts?

    • Heydon’s Case was decided when statute was a minor source of law & parliamentary supremacy were not yet secure

• Purposive approach: relatively new trend influenced by European approach - opposite of literal rule; focus on giving effect to the purpose of the legislation

  • Heralds the intention of legislation

    • Lord Denning at forefront of enacting 'spirit of the law' rather than literal words. In Magor and St Mellons Rural District Council v Newport Corporation 1952, “we sit here to find out the intention of Parliament and carry it out”

• Rectification: words can be added to a statute by a judge to give effect to Parliament's intention where an obvious error has been made

  • Restricted to plain cases of drafting mistake

    • Inco Europe Ltd v First Choice Distribution 2000

ECHR & HRA 1998

• S.3 & S.4 HRA

• ECHR has not been included as a Bill of Rights, like in other European countries, so it does not overrule domestic laws

• However wide interpretative powers may give it practical ascendency

EU law:

• S.2(4) European Communities Act 1972: source of EU supremacy over the laws of member states

  • Factortame: directly enforceable EU rights must overrule any element of national law

  • Marleasing principle: interpretation of domestic law which is to any degree open to interpretation ‘as far as possible’ in accordance with EU directives

Aids to interpretation:

• Internal aids:

  • Other provisions in the statute

  • Explanatory notes (post-1999)

  • Rules of language developed by lawyers:

    • Ejusdem generis: general words which follow specific ones include only things of that kind eg 'dogs, cats and other animals', 'other animals' means domestic animals

    • Expressio unius est exclusio alterius - mention of one thing implies exclusion of another

    • Noscitur a sociis - a word draws meaning from the other words around it eg 'cat baskets, cat flap and food', 'food' means cat food

  • Presumptions (though Parliament can go against these if they are explicit in the statute):

    • Statutes do not change the common law

    • Legislature does not intend to remove any matters from the jurisdiction of the courts

    • Existing rights are not to be interfered with

    • Laws which create crimes should be interpreted in favour of the citizen where there is ambiguity

    • Statutes are not retroactive

      • European Communities Act 1972 is an example of a statute in which some provisions were explicitly made retroactive

    • Statutes do not affect the monarch

    • Statutes are ‘always speaking’ i.e. fluid modern legal context – they are not fixed in their point of time

• External aids (mischief rule directs judges to use external aids)

  • Historical setting

  • Dictionaries & textbooks

  • Reports

  • Treaties

  • Previous practice i.e. general practice/commercial usage in the relevant field

  • Hansard (daily report of parliamentary debates – includes the intro to legislation only)

    • Wilson v Secretary of State for Trade and Industry: restrictive use

• HRA 1998

• Dworkin: statute should be interpreted according to the most consistent possible reading within the law as a unified whole

• John Willis: premise that the three rules are conflicting as they each produce a different interpretation; he would give the court discretion to apply the rule which ensures the just result

• Griffith: the subjectivity of statutory interpretation leaves it open for judges to input political bias, which is not the place for the judicial arm of powers

Rule of Construction

S.3 HRA – duty to interpret legislation in a compatible way with Convention rights

Meaning of ‘possible’ – what is the intensity of the duty?

• ‘Possible’ means after having recourse to all domestic statutory interpretation tools - including Magor and St Mellons purposive approach per Lord Denning

• Marleasing purposive approach? This approach supplants Parliamentary intention with that of the later directive. The case also involved creative rectification

  • HOWEVER this principle has been the subject of criticism -

• White Paper (Rights Brought Home): rule of construction “goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so”

Note pre-1998 fundamental rights interpretation:

R v Sec of State for the Home Department

Prison rules provided for reading letters between prisoners and their legal advisers.

Held: ultra vires – the statute would not be construed to infringe the fundamental right of the common law to legal professional privilege. The rule was disproportionate to its objective of security

R v Sec of State for the Home Department ex parte Simms

• Lord Diplock: the principle of common law fundamental freedoms overridden only by clear & express language - “fundamental principles of human rights”

Rantzen v Mirror Group

Defamation proceedings about childline covering up an abusive teacher – liberal damages award

Held: historically unrestrained damages awards for libel must be read alongside Art 10(2) ECHR freedom of speech – proportionality mentioned

Declaration of Incompatibility

S.4 HRA – declaration of incompatibility

• Designed as a coercive measure to:

  • Notify the government of a mistake

  • Apply political pressure to a government willing to condone an express breach of Convention rights

• However it is DISCRETIONARY – “may”

• Its presence signifies that there must be circumstances where S.3 will not be able to reconcile

• Ian Loveland: this does not seem to invite the court to make a moral judgment of legislation

• David Feldman: “when a court makes a declaration of incompatibility in relation to an Act of Parliament, it itself is a form of JR of the Act, albeit one that leaves the Act fully effective and so it cannot be said to represent a worthwhile remedy”

If a Marleasing purposive approach were taken, S.4 only comes into play where there is an intentional breach

• Lord Irvine, then LC: “we want the courts to strive to find an interpretation of legislation that is compatible with convention rights, so far as the plain words of the legislation allow, and only in the last resort to conclude that the legislation is incompatible” – though this should work “without trespassing on parliamentary sovereignty”

HOWEVER the question remains as to the intensity afforded to interpretation:

• Sedley J: at the time “one major imponderable is the measure of the courts’ receptivity to human rights issues”

Court’s Role

Liberalism (tends to be exceptions to the norm):

R v A

Statute provided rape victims would not have to disclose sexual history in upholding D’s Art 6 right

Held: refusal to allow disclosure could amount to denial of a fair trial – where necessary for Art 6 the section excluding such admission should be read so as to allow admission of such evidence. Acknowledged the mischief the statute was trying to remedy – however Art 6 took precedence.

• Lord Steyn:

  • “the interpretative obligation under S.3 of the 1998 Act is a strong one” – in realising Parliament’s intention “as reflected in S.3 it will sometimes be...