Statutory interpretation and human rights1
Rt. Hon. Lady Justice Arden, DBE2
Introduction I am greatly privileged to be asked to give this address to such a distinguished gathering of legislative counsel from around the world. I have been asked to speak about human rights and I will treat my title as extending to constitutional rights. I will concentrate my remarks on the statutory interpretation of human or constitutional rights. I do not simply mean the interpretation of statutes which legislate for human rights. I also mean those situations where it is said that a statute dealing with some other subject-matter violates a constitutional or human right. For a judge to address this subject in this forum might be said to be like looking down the wrong end of a microscope and seeing the clinician or microbiologist or whomever is using the telescope. But that metaphor must not be taken too far. Specimens seen under a microscope are usually put on a slide and extracted from all other matter. In statutory interpretation words have to be examined in their context. To find the meaning of even such simple words as “the cat sat on the mat” requires some basic common understanding of the laws of gravity. The determination of a question of statutory interpretation is in general an exercise in attributing a meaning where it is not obvious and has become a source of dispute between two or more parties. (I should explain that in the UK we do not have any system whereby the courts can give purely advisory opinions.) Yesterday you discussed the intention of Parliament. Speaking entirely for myself, I would be very cautious about describing the task for the judge as one of ascertaining the intention of Parliament, since I am not clear whose intention I would then be seeking or where I would find it if not in the words used. The evidence that is available to the judge is not in general that of the intention of Parliament but that of the Government or the promoters of the Bill or of law reform agencies and it does not follow that the intention of Parliament was their intention at all. What then is the role of judges? Is their task the purely mechanical task of reading the words legislative counsel have drafted and Parliament has passed? The answer to that question is no, for many reasons. I could of course devote all my time to discussing that question. However, there is so much else that I want to cover so it is sufficient for the purposes of this address if I quote to you what is said about the role of judges in the Commonwealth Principles on the Accountability of and the Relationship between the Three Branches of Government. These Principles were agreed by the Law Ministers of the Commonwealth and endorsed by the Commonwealth Heads of Government Meeting in Abuja, Nigeria, in December 2003. These Principles state: Independence of the Judiciary An honest, impartial and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country… (c) Judicial Review Best democratic principles require that the actions of government are open to scrutiny by the courts, to ensure that decisions taken comply with the Constitution, with relevant statutes and other law, including the law relating to the principles of natural justice. 1
Paper presented to the Commonwealth Association of Legislative Counsel, 9 September 2005. Member of the Court of Appeal of England & Wales.
Statutory interpretation and human rights
So the time when judges come into contact with human rights and statute law together is when they are being asked to interpret a constitutional provision or human right or when they are being...