The Approach of the Law Lords to Statutory Interpretation Has Been Radically Changed by the Human Rights Act. Judges Now See Themselves as Legislating Human Rights Through Their Interpretation of Acts of Parliament. Assess the Validity.

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 [1892] 1 QB 273. An example of a judgement which can rightfully be characterised as absurd occurred in Whiteley v. Chappell [1868] 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 [1935] 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 [1844], 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 [1992] UKHL 3 that the examination of Hansard was possible to aid in statutory interpretation. We see from our review of pre Human Rights Act statutory interpretation that the focus for the literal and golden rules is on the actual meaning of the words and the words within the context of the statue. The purposive and mischief rules allow for a broader interpretation which may go as far as public policy considerations and the examination of sources such as Hansard. Having examined statutory interpretation prior to the 1998 Human Rights Act, we now turn our attention to the effects of the Human Rights Act. The Human Rights Act 1998 s3(1) states that “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.” We note that in cases where such an interpretation is not possible, s4 allow a “declaration of incompatibility” to be made, but Lord Bingham in Sheldrake v. DPP (2005) 1 AC 264, para 28. clearly stated, “Convention-compliant interpretation under section 3 is the primary remedial measure, and a declaration of incompatibility is exceptional”. Here we must consider the the words “so far as it is possible” and examine if this has led to a “radically changed” approach to statutory interpretation. We immediately see the marked changed in that statutory interpretation must now be made so as to be “compatible with Convention rights” which in itself can be considered a radical change since unlike considerations of public policy or Hansard, judges are now required to look outside the scope of the United Kingdom and consider the European Convention Rights as a reference point against which statutes must be interpreted. Samuels (Stat. L.R. 2008, 29(2)) , identifies the general approach to statutory interpretation by reference to the case of R (Wilkinson) v. IRC (2005). In Wilkinson, Lord Hoffman states, “the important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted ... now section 3 requires them to be construed against the background of Convention rights ... The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation.” Lord Hoffman goes on to assert that there remains a degree of interpretation in deciding what Parliament intended by the words of the statute. We see that Lord Hoffman 's comments clarify the limitations of post HRA statutory interpretation, by suggesting in some respect that the effect of the HRA is to add Convention Rights as an additional primary background to the existing sources for statutory interpretation, limited by the words of the statue itself. The leading case on statutory interpretation after the Human Rights Act is Ghaidan v Mendoza [2003] 2 W.L.R. 478 (CA) in which the Rent Act 1977 was reinterpreted so that the words “living with the original tenant as his or her wife or husband” which clearly apply only to heterosexual couples, were extended to include homosexual couples in order to be compatible with Article 8 (privacy) and 14 (discrimination) of the ECHR. In this particular context we see that although the words did not allow for homosexual couples, in practice, it seems reasonable that this would have been within the scope of the original intention of Parliament. In particular it is hard to believe that it was Parliament 's intention at the time to explicitly deny this right to homosexuals. Brady (Stat. L.R. 2012, 33(1) ) summarizes the position of the court in Ghaidan by indicating that the key point is that when amending legislation, the courts should not go against “something fundamental or important or cardinal in the legislation”. In the more recent case of R v. A (No 2) [2002] 1 A.C. 45, the issue was whether specific evidence related to the sexual history of the complainant could be heard. Section 41 of the Youth Justice and Criminal Evidence Act of 1999 (YJCEA) does not allow such evidence except in some very specific cases. The question here was whether this was against article 6 of the ECHR which provides for a right to a fair trial. Indeed, in this case the House of Lords allowed the evidence on the basis that it was incumbent on them “in accordance with the will of Parliament”--to employ section 3 (1) HRA to read section 41 (3) (c) YJCEA in such a way as to include an “implied provision” that evidence necessary to make the trial compatible with article 6 ECHR was admissible. Bellamy ( I.J.C.L. 2011, 9(1) ) states that this interpretation “appears to trespass on the scope of the legislation, given that there can be no doubt that Parliament had wished to block the use of the very kind of evidence the Court now sought to allow”. We see from Bellamy 's analysis that while there has been a marked departure from a literal interpretation, the interpretation and justification adopted by the House of Lords suggests that the departure can once again not be said to be radical since we see that the House of Lords ' justified its decision by indicating their desire to realize the legislature 's intent within the scope of the trial procedures where it had jurisdiction. In this context, the justification was based on the fact that the YCJEA was passed in order to restrict the scope of evidence under the Sexual Offences Act 2003, which was under the discretion of the judge. The motivation of the YCJEA was to limit intimate evidence which in the past deterred women from bringing rape cases to justice. The difficulty here is to achieve the correct and delicate balance between the rights of the plaintiff with respect to rights of a private life and the defendant 's right to a fair trial. In R v. A [2002] The courts clearly did infringe on Parliament 's legislation. However, in light of the approach taken by the court, which strikes balance between affirming rights under EHCR article 6, and the limitations imposed by the conflicting YJCEA statute, we do not conclude that the approach taken can be seen as a radical departure from traditional statutory interpretation. Indeed, while in some sense, the House of Lords was able to “legislate” human rights by interpreting the YJCEA, clearly the approach taken demonstrates respect for the the principle of Parliamentary Supremacy in that the requisite care was taken to seek the intent of Parliament in reaching the final decision. The approach adopted uses the purposive rule of statutory interpretation but goes one step further by adding an “implied provision” in order to ensure compatibility with the ECHR, but the implied provision in this case was also inserted in line with the intent of Parliament. Samuels (Stat. L.R. 2008, 29(2)) analyses several other cases with respect to the Human Rights Act and statutory interpretation, and points out that in practice it is difficult to provide general working principles. In his words, “The interpretation of the language of the statute may be stretched, even stretched to the limit. The risk of incompatibility must always be borne in mind. ... Parliament must be presumed to have wished and intended to comply with and not to breach the Convention.” The constraint with respect to Parliament intent is central to our assessment, as in examining the cases of Ghaidan and R v. A more closely, we reached the conclusion that although there are marked differenced between statutory interpretation before and after the Human Rights Act 1998, we cannot conclude that these are “radically” different. Indeed, Lord Hoffman 's statement that the statutes now need to be “construed against the background of Convention rights” seems more accurate. In addition, although it is an exception, the declaration of incompatibility has been exercised as in Kay v. Lambeth (2006) 2 AC 465., which further indicates that judges are prepared to limit their “legislative” powers in situations which exceed the scope of interpretation. CASES CITED

R v Judge of the City of London Court [1892] 1 QB 273

Whiteley v. Chappell (1868) LR4 QB 147

Re Sigsworth [1934] All ER Rep 113

The Sussex Peerage - (1844) 8 ER 1034

Pepper v Hart [1992] UKHL 3

Ghaidan v Mendoza [2003] 2 W.L.R. 478 (CA)

R v. A (No 2) [2002] 1 A.C. 45.

R (Wilkinson) v. IRC (2005) UKHL 30; (2005) 1 WLR 1718 para 17.

Sheldrake v. DPP (2004) UKHL 43; (2005) 1 AC 264, para 28.

Kay v. Lambeth (2006) UKHL 10, (2006) 2 AC 465.

BIBLIOGRAPHY

Dicey, A.V. Introduction to the Study of the Law of the Constitution , 10th edition, Macmillan & Co Ltd., London, 1959.

Driedger, Elmer . The Construction of Statutes, Second Edition. Toronto: Butterworths, 1983.

Holland & Webb, Learning Legal Rules, 5th ed ,Oxford University Press 2010.

Brady, Paul. Convention compatible statutory interpretation: a comparison of British and Irish approaches, Statute Law Review Stat. L.R. 2012, 33(1), 24-38.

Bellamy, Richard. Political Constitutionalism and the Human Rights Act, International Journal of Constitutional Law,( I.J.C.L. 2011, 9(1) ) .

Samuels, Alec. Human Rights Act 1998 section 3: a new dimension to statutory interpretation? Statute Law Review, (Stat. L.R. 2008, 29(2).

Bibliography: Dicey, A.V. Introduction to the Study of the Law of the Constitution , 10th edition, Macmillan & Co Ltd., London, 1959. Driedger, Elmer . The Construction of Statutes, Second Edition. Toronto: Butterworths, 1983. Holland & Webb, Learning Legal Rules, 5th ed ,Oxford University Press 2010. Brady, Paul. Convention compatible statutory interpretation: a comparison of British and Irish approaches, Statute Law Review Stat. L.R. 2012, 33(1), 24-38. Bellamy, Richard. Political Constitutionalism and the Human Rights Act, International Journal of Constitutional Law,( I.J.C.L. 2011, 9(1) ) . Samuels, Alec. Human Rights Act 1998 section 3: a new dimension to statutory interpretation? Statute Law Review, (Stat. L.R. 2008, 29(2).