The introduction of the Human Rights Act (1998) (HRA) into the English legal system imposed new requirements as to the interpretation of statutes. In particular in situations where conflicts arise between statutes and the HRA, judges are required to interpret legislation in a way which is compatible with Convention Rights. This presents a marked change from the traditional approach to statutory interpretation which is based on a much more literal approach. Here we assess the degree of this change in interpretation. We first review the traditional approach to statutory interpretation. We then turn our attention to the changes in interpretation which arise from the application of the Human Rights Act and the European Convention on Human Rights and show how judges can be said to be legislating human rights through their interpretation of Acts of Parliament. We then assess the degree to which this change can be considered to be radical. We indicate by case illustrations that in practice the interpretations used have not been radical since they appear to be consistent with the intentions of the legislation even though a literal approach to interpretation would have led to different decisions.
Traditional statutory interpretation attached a particular importance to a literal interpretation of statutes. More precisely, 4 techniques of interpretation have been adopted: the literal rule, the golden rule, the purposive rule and the mischief rule (Holland & Webb, 2010). The literal rule as its name implies, requires words to be interpreted as their literal meaning within the statute. The extent to which this literal interpretation applies is seen in the words of Lord Esher MR who stated: “If the words of an Act are clear, then you must follow them, even though they lead to a manifest absurdity” R v Judge of the City of London Court  1 QB 273. An example of a judgement which can rightfully be characterised as absurd occurred in Whiteley v. Chappell  LR4 QB 147 where the accused was acquitted because he impersonated a dead person, while the statute made it an offence to impersonate “any person entitled to vote”. From a literal viewpoint, clearly a dead person is not entitled to vote.
The golden rule allows a more flexible approach to statutory interpretation. In the case where a direct approach leads to an absurdity, the judge may depart from the literal meaning of the word. In this case the notion of absurdity may even reach outside the context of the statute and into public policy considerations as in the case of Re Sigsworth  1 Ch 98 where Clauson stated “The principle of public policy which precludes a murderer from claiming a benefit conferred on him by his victim's will precludes him from claiming a benefit conferred on him, in case of his victim's intestacy, by statute.” This case is of particular importance to this analysis as it demonstrates that even prior to the Human Rights Act a radical departure from a direct interpretation of a statute (here s. 46 of the Administration of Estates Act, 1925) was possible in favour of following public policy.
The aim of the mischief rule is to suppress the mischief the Act is directed at. Following Re Sussex Peerage , it only applies in cases where there is an ambiguity in the statue. Driedger argues that the modern use of the mischief rule ought to be understood as one of the components of what he characterized as the "modern" method of statutory construction, wherein an understanding of the mischief is used as an aid to rather than a stand-alone rule serving as an alternative to the methods of construction proposed by the plain meaning rule and the golden rule. (Driedger, 1983). The closely related purposive rule allows the interpreter of the statute to assess the purpose of the section of the act. In ascertaining this purpose, it has recently been established in Pepper v Hart  UKHL 3 that the examination of Hansard was...
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