The European Convention On Human Rights Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Introduction

The Human Rights Act (HRA) enacted in 1998 which incorporates the European Convention on Human Rights (ECHR) into UK domestic law and so the domestic courts could give effect to Convention rights. According to the HRA, particularly in section 3, Judges are requested by law explicitly to "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". This unprecedented right for judges would inevitably change the landscape of the statutory interpretation. In the following, we will examine if the HRA has revolutionized the way in which judges interpret statutes.

Statutory interpretation

To evaluate if there was a revolutionized way in interpreting the laws after HRA, we must first understand the meaning statutory interpretation.

There were many statutes passed by UK parliament each year and draftsmen tried to make these statutes clear and explicit, but it is not always the case. Therefore, judges in practice need to interpret the law made by Parliament and apply it. This process is called statutory interpretation.

Over the years, there are three rules gradually developed for interpreting laws. They are Literal rule, Golden rule and Mischief rule.

Under Literal Rule of statutory interpretation, the surface and apparent meaning of words stated in the legislation is considered to be the final one. The case Cheeseman v DPP (1990) would be a good example of literal interpretation adopted by the court. The case concerning Cheeseman indecently exposed himself in some public toilets, and officers were stationed at the site to arrest him according to Section 28 of the Town & Country Planning Act 1847 provided an offence of "wilfully and indecently exposing his person in a street to the annoyance of passengers" [1] after receiving complaints. The judge took the ordinary and natural meaning of the word "passengers", where those officers were not considered as passers-by as they were stationed there and Cheeseman was not found guilty. Although the result may be sometimes absurdity, some judges believe this has to be handled by Parliament instead of the court. This view can be reflected from Lord Esher statement "The court has nothing to do with the question of whether the legislature has committed an absurdity" [2] .

In case of applying Golden Rule, it means that the judges alter the natural meaning of the words presented in the law to avoid absurd result which is obviously not what Parliament wanted. For example, in the Adler v George (1964) case concerning an offence to obstruct HM Forces "in the vicinity of" [3] a prohibited place. The defendants had obstructed HM Forces in a prohibited place and argued that they were not liable. The court found them guilty as "in the vicinity of" meant near or in the place.

For the Mischief Rule application, judges intend to address and seek the attention of Parliament regarding the loopholes or shortcomings of the law by interpreting the law in the most flexible way. For instance, in the Smith v Hughes (1960) [4] case, the defendants were charged with "soliciting in a street or public place for the purposes of prostitution" contrary to the Street Offences Act 1959. There were soliciting from upstairs windows. Lord Parker adapted the mischief rule to convict, as the lord believed that Parliament had intended to stop people in the street being bothered by prostitutes.

Different approaches to statutory interpretation have different advantages and disadvantages. For Literal approach, the courts give close attention to the words in the statutes enabling certainty and allowing people to plan for their actions, but absurdity may be existed as referred above. On the other hand, if courts give more attention to the rationale and purpose behind the legislation by adapting Golden or Mischief Rules, it is arguably more likely that the rights which Parliament intended to confer on people will be recognized and enforced by courts.

Although judges may use different approaches in interpreting the laws, all the approaches stick to either the literal or purpose of law made by Parliament. However, the situation has been changed after legislating of HRA where courts and judges had been granted power to interpret law in a way compatible with ECHR and even declare the law is incompatible with ECHR.

Human Rights Act 1998

To understand how the HRA impacts on the statutory interpretation, we will have to know the background of HRA.

UK in 1950 signed an international convention ECHR, which specify the basic human rights the member countries’ citizen should enjoy or should be protected. These rights include the right to life, the right to anti-torture, the right to liberty, the right to a fair trial, the right to anti-discrimination, the right to freedom of expression and so on. UK did not incorporate all these rights stated in the Convention into local law until enactment of HRA in 1998. Prior to HRA, UK citizen could only petition to European Court of Human Rights (Strasbourg court) if their rights had been infringed. The passing of HRA in 1998 enables local courts in UK to give effect to these Convention rights.

Under the HRA, particularly in Section 3, courts and judges are allowed and even obliged to "read" and "give effect" to the legislation, both primary and subordinate, to be compatible with ECHR. In section 4, courts can go further to declare the law is incompatible with ECHR if the courts cannot interpret the law to be compatible with ECHR. However, one should note that the declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision of the "incompatible" law and the declaration has no binding effect to any other parties.

With the HRA, judges are now having an enhanced power to interpret legislation, where, according to Lord Nicholls, it is not interpretation in the usual sense of the term. In fact, the judges are now empowered to adopt a strained meaning if this is required to make the laws compatible with human rights [5] . In addition, this enhanced power not only applies to statutes passed after HRA, but all the existing statutes. In this connection, the courts may no longer concerns the purpose or meaning of the words used in law by Parliament if it is touching on human right issue.

Human Rights Act and Statutory Interpretation

This change can be demonstrated in two cases. The first case is R v A (2002). This case was an appeal by a defendant to a rape criminal charge and concerns whether certain evidence of the sexual behaviour of the complainant would be admissible by the court. The defendant wanted to present the evidence of the complainant's sexual behaviour three weeks before the alleged rape. Nevertheless, according to section 41 of the Youth Justice and Criminal Evidence Act 1999, sexual history or behaviour cannot be accepted as evidence unless certain conditions were fulfilled. The conditions are, for examples, if the prior sexual behaviour was so similar to sexual behaviour of the complainant that the similarity cannot be explained as a coincidence and the behaviour should have taken place as part of the event or at or about the same time as the alleged rape. The aim of this section is to protect the complainant from indignity and from humiliating questions. In this case, these conditions were not fully fulfilled and sexual history/ behaviour could not be presented according to the Act.

The House of Lords held that the Article 6 of Convention right to a fair trial might be violated if relevant sexual history or behaviour cannot be accepted as evidence. In this connection, section 41 of the Youth Justice and Criminal Evidence Act might have to be construed to prevent a violation of the Convention and defendant's rights by the rule laid down by section 3 of HRA. One may argue that it can be construed through the ordinary methods of purposive construction such as Golden Rule and Mischief Rule as explained above. However, construction rule under section 3 is a strong one and can be applied even there is no ambiguity or absurdity. This view can be found in Lord Steyn's observations about HRA Section 3 in the case that "the interpretative obligation of section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings" [6] . Although Lord Steyn's view was not fully concurred by other Lords in the case, Lord Hope of Craighead also agreed the HRA's effect on statutory interpretation is different from the ordinary rules by saying "The rule of construction which section 3 lays down is quite unlike any previous rule of statutory interpretation. There is no need to identify any ambiguity or absurdity " [7] .

In another case of Ghaidan v Godin-Mendoza, which was concerned with the Rent Act 1977 interpretation. The Rent Act creates protected tenancies which give tenants favourable rights. According to the Act, the protected tenancy passes on the death of the protected tenant to the surviving spouse or person living in the house "as his or her wife or husband". The issue was whether this Act applied to homosexual relationships. If it is not included, it would be in violation of article 14 of ECHR read in conjunction with article 8. Given the plain and clear of the statutory wordings and the contradiction with ECHR in nature, Lord Nicholls in the case suggested that "Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation so as to make it Convention compliant" [8] .

Conclusion

Both of the above-mentioned cases showing that the courts are now have the choice on how to interpret the statutes and laws to achieve the objective in section 3, where the methods and approaches are clearly go far beyond the ordinary statutory interpretations rules, namely Literal, Golden and Mischief. This can be regarded as a revolutionized way for judges to interpret statutes in related to ECHR.