The Human Rights Act Has Revolutionized Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Common Law Reasoning and Institutions

Essay Title : "The Human Rights Act has revolutionized the way in which judges interpret statutes"

Student Number : 120444148

Candidate Number : 150186

Statutory interpretation is a judicial practice. Statutory interpretation is a process by which judges interpret and apply legislation. By this method judges interpret the relevant statutes and apply them. Human rights disputes are different from those, what courts traditionally deal by certain rules which are in legislation or precedent. Though the Parliament has passed the Interpretation Act 1978, it hardly plays a role in the courts except for giving some common guidelines. However, cases of human rights demand the judges to place a value on the validity of Government decisions or legal rule against an ambiguous concept.

In 1953 European Convention on Human Rights (ECHR) was drafted and approved by the member states but was not a part of the English legal system till 1998 when it was incorporated by the Human Rights Act. Before the HRA there were criticisms that the procedure of European Court of Human Rights (ECtHR) was time consuming and not cost effective. However, an individual can submit a petition to the ECtHR after having exhausted domestic remedies but as an international court its decisions were not binding upon the English courts.

The scenario of post HRA is different. Most of the difficulties had been removed after the enactment. There are so-called rules of statutory interpretation namely the Literal rule, the Golden rule and the Mischief rule. Nowadays the judiciary has witnessed a gradual shift from its traditional English canons (literal, mischief and golden rule) towards the purposive or the teleological approach.

The literal rule demands taking only the literal, plain, natural, ordinary meaning of the statute and applies without the judge seeking to put a gloss on the words or seeks to make sense of the statute. Because those are the words the draftsman chose for. It restricts the role of the judges and provides no scope for them to use their own prejudices or opinions and upholds the separation of powers as well as recognises the Parliament as the supreme law making body. But sometimes because of the ambiguity of the words it leads to an injustice, absurdity and creates loopholes; R v Harris, Fisher v Bell, and awkward precedent which requires the Parliamentary correction; London and North Eastern Railway v Berriman.

The golden rule can be said to be an adaptation of the literal rule which requires taking the whole statute together and placing the words in its context and giving them their natural meaning unless this leads to an absolute absurdity or incompatibility. If it happens, the courts may apply a secondary meaning. Through this rule errors in drafting can be corrected immediately; R v Allen. Decisions are usually more in line with Parliament's intention which removes loopholes and gives more just result. But the problem is that judges can add or change the meaning of statutes and thus act as law makers which cause imbalance in the separation of powers, and judges have no power to interfere with pure injustice where there is no absurdity; London and North Eastern Railway v Berriman.

The oldest of these is the mischief rule which requires checking the previous common law and the history of the Act and points out the mischief and grants the remedy. The mischief rule was established in Heydon's Case. This rule should only be applied where there is an ambiguity in the statute and then the court’s role is to remove the mischief the Act aimed at and advance the remedy; Re Sussex Peerage. It also closes loopholes and allows the law to develop and adapt to change; Royal College of Nursing v DHSS, like the golden rule. But this rule creates a misconduct after the event (Smith v Hughes, Elliot v Grey) thus breaking the rule of law. It also enables the judges to bring their sense of morality, opinions and views on a case; DPP v Bull.

English law has been always unwilling to accept the teleological approach. But post HRA the courts moved from their traditional canons and considering all the contexts interpret the legislation. A teleological approach is a grandiose name for interpretation which is based on the purpose or object of the text challenging the judge. This approach has developed in more recent times. Now the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament intended to achieve. The champion of this approach in English legal system was Lord Denning. His attitude towards statutory interpretation is shown when he stated in the Court of Appeal in Magor and St. Mellons Rural District Council v Newport Corporation, ‘we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis’. However his attitude was criticized on appeal by the House of Lords. Lord Simmons called this approach ‘a naked usurpation of the legislative function under the thin disguise of interpretation’. Another judge Lord Scarman said ‘if a gap is disclosed, the remedy lies in an amending Act’. These comments highlight one issue with the purposive approach how Parliament's intentions can be determined and whether judges should really be refusing to follow the clear words of Parliament. The purposive approach is one used by most continental European countries when interpreting their own statute. It is also the approach which is taken by the European Court of Justice (ECJ) in interpreting EU laws. However, Denning’s approach was widely accepted after the UK joined the European communities in 1972.

Since the UK became a member of the European Economic Community in 1973, the effect of the European preference for the purposive approach has affected the English courts in many ways. First, the courts have been required to accept that from 1973 when deciding on EU matters, the purposive approach has to be used. Second, as they use the purposive approach for EU law they are becoming familiar with using it and more likely to use it to interpret national law. In Bulmer v Bollinger, Lord Denning asked English courts to follow the purposive approach. Pickstone v Freemans plc is an example where women warehouse operatives were paid the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the warehouse operatives was of equal value to that done by male warehouse checkers who were not paid more than they were. The employers argued that a woman warehouse operative was employed on like work to the male warehouse operatives, so she could not bring a claim under section 1(2) (C) of the 1970 statute for work of equal value. This was a literal interpretation of that statute. The House of Lords decided that the literal approach would have left the UK in breach of its treaty obligations to give effect to an EU directive. It then used the purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of equal value even though there was a male employee doing the same work as her.

Though the rights brought home after the HRA 1998 but even before, the UK courts showed revolutionary departure in case of interpreting EU laws. They had emphasized on vital rights such as in relation to access the courts, press freedom and prisoners; DCC v Times Newspaper, ex parte Brind, ex parte Pierson. But this was not sufficient to protect the citizens’ rights so the HRA 1998 came into force in the UK on 2nd October of 2000. By this Act, the UK courts are now adopting teleological approach. Section 2 of the HRA 1998 demands that the domestic court should take into account all the Strasburg jurisprudence as far as it is relevant and section 3 of the said Act is binding the English courts to interpret all the laws in a compatible way with the convention rights. In R v A, the House of Lords applied the section 3 requirement where the issue of compatibility was raised in relation to section 42 of the Youth Justice and Criminal Evidence Act 1999. Except in narrow circumstances the Act barred any evidence to be given in a rape trial of the woman’s previous sexual history including previous sexual history with the suspected rapist. This approach only allows providing the necessary evidence to achieve a fair trial. In Re W and B the House of Lords said not to step over the borderline of statutory interpretation to statutory amendment but in Ghaidan v Mendoza it was observed that the steps of the court was a statutory amendment rather than statutory interpretation.

However, the decision in Bellinger v Bellinger indicates that if a situation arises where a statutory interpretation is not possible and it leads to a statutory amendment, the courts will declare an issue of incompatibility under section 4 of the said Act and require the attention of Parliament. This is all judiciary can do by following the provisions of the Act. Thus the section 10 of the said Act allows the relevant Minister to amend the legislation if there are strong reasons to do so. But if there is a high policy matter of the state then the section 19 of the said Act binds the relevant Minister to make a statement in the Parliament if the provisions of the bill are incompatible with the convention rights. The declaration of incompatibility is a last resort; R v A, and should not be used in order to avoid the task of interpreting the statute to comply with the convention. Nevertheless, the declaration of incompatibility was first issued in H v Mental Health Review where the Government responded to the declaration with its first remedial order.

Day by day the UK courts are leaning more and more towards teleological approach. In Wilson v FCT, the House of Lords stated that the judges are free to decide whether the legislation is complying with the convention or not and in Mendoza it was held that the judges can twist the words of the statute to give the right intention of the Parliament. Additionally the courts can interpret legislation under section 3 by "reading in" adding words in a statute; R v Offen, and by "reading down" skipping words in a statute; R v Lambert. Here Lord Hope emphasized that great care must be taken while tailoring the words in to the statute. But in Anderson, Lord Bingham stated that where the construction conflicts with express words then interpretation would not apply under section 3 of HRA and warned to restrain from judicial vandalism.

The crucial matter is that section 6 of the said Act allows the courts to take action against any public bodies including the courts and tribunals if they do not act in a complying manner with the convention rights. But again there are judges who do not want to move from their traditional canons, and interpret the statutes with the age-old rules, such as in Popular Housing V Donoghue strict literal interpretation was given compared to the wider teleological approach in R v A.

Finally, the House of Lords determined that statutory interpretation remains stretchy. Interpretation is a dual process which sometimes allows interpreting the convention "down" to fit the existing English law and thus avoid the struggle with interpreting the statute. Courts have to interpret laws but logically and justifiably. It is unfair to just use the statutes’ literal meanings; the judgment should be consistent with the Parliament’s original purpose and intention, said Lord Reid, Griffiths and Browne-Wilkinson in Pepper v Hart. Besides, Parliament is left to say the final words while the courts are authorized to put pressure on the Parliament in accordance with the separation of power. Hence considering the pre and post HRA effects it can be said that interpretation of the statute with teleological approach revolutionized the interpretive style of the judges.