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4.4.2 The duty to interpret legislation for compatibility with scheduled Convention rights (section 3 HRA)
Using the section 3 formulation in non-Convention contexts
This update notices how the famous formulation in the HRA of the duty to interpret legislation ‘so far as it is possible’ to achieve compatibility with Convention rights has been attempted in other contexts where legislators wish to give legal effects to international law.
The Scottish Parliament wished to give legal effect in Scottish courts to two instruments of international law which have not been given statutory force in the law of the UK: the UN Convention on the Rights of the Child (UNCRC); and the European Charter of Local Self-Government (ECLS-G). Both these instruments have been signed and ratified by the UK but neither has been given full legal force in the law of the UK (even though ratification places an international obligation on the UK to provides certain legal rights in the law of the UK). You may remember from section 3.2 (page 52) that international treaties signed and ratified by the UK may have a ‘persuasive’ influence on the courts but cannot be directly enforced.
The Supreme Court held that what the Scottish Parliament proposed could not be done because an effect of the proposed legislation would be to limit the power of the UK Parliament to legislate for Scotland. This would involve an implicit amendment to the Scotland Act 1998, which is outside the power of the Scottish Parliament to do.
But it is interesting to note how the Scottish Parliament intended to proceed. In direct reference to section 3 HRA, the idea was that legislation applying in Scotland should be interpreted ‘as far as it is possible to do so’ so that the legislation would be compatible with the UNCRC and the ECLS-G. Furthermore, there were to be remedies similar to (and, for earlier legislation, even more powerful than) a declaration of incompatibility if such an interpretation was not possible (see Chapter 4, 4.4.3, page 78), and a duty on public authorities to act, unless compelled otherwise, compatibly with the two instruments – similar to the duty on public authorities under section 6 HRA (see Chapter 4, 4.5, page 81).
Under devolution law, the UKSC held these provisions to be invalid. It uses the case law on section 3 HRA to develop its argument (see Chapter 4, 4.4.5 – 4.4.7, pages 81-88). In particular it refers to Ghaidan v Godin Mendoza (see Chapter 4, 4.4.7, case close-up, page 84, and other references in the text) to make the point that section 3 HRA permits statutory readings that go much further than is permissible under normal principles of statutory interpretation such as the ‘mischief’ or the ‘golden’ rule. In particular, the idea that section 3 may require courts to ‘depart from the intention of the Parliament which enacted the legislation’. In effect, s 3 HRA can work so as to give legislation a meaning the Parliament did not intend (see paragraphs 25 and 26). Of course, there are limits – i.e. the courts must not so extend their power to interpret that it becomes a power to legislate (Chapter 4, 4.4.6) – but within those limits the courts may provide a meaning and scope to legislation not intended by Parliament. The problem in the Scottish case is that this method of interpretation would apply to legislation by the UK Parliament, applying in Scotland, and the UK Parliament (unlike the Scottish Parliament regarding its own legislation) could not be said to have endorsed this method of interpretation. And so the legislation, in that form, was invalid.
References
- Attorney General and the Advocate General for Scotland, United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill
- Attorney General and the Advocate General for Scotland, European Charter of Local Self-Government (Incorporation) (Scotland) Bill [2021] UKSC 42
4.12 The future
This is a brief update on the future of human rights law in the UK; brief because, at the time of writing (October 2021), expected plans and proposals have not yet materialised.
As noted (page 110), the Conservative government which followed the 2019 General Election had promised, in their election manifesto, to ‘update’ the HRA with reference to the recommendations of a Commission. The referenced review of the workings of the Act by Sir Peter Gross has still not been reported. One development worth noting, however, is that, following a government re-shuffle of September 2021, there is new Secretary of State for Justice, Dominic Raab. He may have firmer views on the need for changes to the Act than his predecessor (Robert Buckland). His book The Assault on Liberty, published in 2010, is a fierce, polemical (and partly party political) attack on the protection of liberty under New Labour. Broadly speaking, traditional core liberties, developed over the centuries in Britain, have been undermined from two directions. Firstly, from the government passing liberty-restricting legislation in contexts such as counter-terrorism and surveillance. Secondly, from replacing liberty with human rights as an ever-expanding body of law going way beyond the protection of core liberties and thereby interfering with the democratic process by which laws are made in Parliament and enforced by ministers responsible to Parliament. The main culprit is the Human Rights Act because, mainly through section 2 (see Chapter 4, 4.3, page 70 passim), it pulls in to British law not just the substance of Convention rights but also the European approach to human rights which, in Raab’s view, is one of an ever-expanding introduction of new rights in new areas. His solution is a ‘British Bill of Rights’ based on core rights, developed by British traditions, applied by British judges, with stronger powers (getting close to invalidation of an Act of Parliament) than they have under the HRA. Such a British Bill of Rights was proposed in the Conservative manifesto of 2010, which gave birth to a Commission which failed to come up with unanimous proposals and which died under the pressure of coalition politics between 2010 and 2015. On Raab’s account, a British Bill of Rights would involve a considerable degree of independence from the Strasbourg Court, and an end to the ‘mirror principle’. But, significantly, Raab does not propose any form of denunciation of the ECHR, and accepts that the obligation to follow Strasbourg decisions in cases where the UK is a party (as distinct from the general Strasbourg case law developed in cases involving the other countries of the Council of Europe) will remain.
On this evidence, therefore, reform led by Dominic Raab is likely to be in the direction of loosening the ties of UK law to Strasbourg, perhaps on the basis of a statement of core rights with a more limited scope than at the moment, but not involving leaving the ECHR or the Council of Europe.
But this is all speculation based on a book written before the last eleven years of Conservative governments and before Brexit. Reform of human rights law in the UK remains firmly on the agenda but we must await developments before we know its nature.