A post by Jason Lin
A. Introduction
The Human Rights Act 1998 (the “HRA”) has fundamentally altered the human rights adjudication landscape of the United Kingdom. Two observations must be made at the outset. First, prior to the HRA, courts had their hands tied in judicial review. When confronted with statutes purporting to limit the right to access courts, judges have deployed tools of statutory interpretation to narrow the meaning of an offending provision. [1] The HRA enables courts to review primary legislations’ compliance with European Convention on Human Rights (“ECHR”) with the proportionality test. Second, courts are given important remedial powers under the HRA. Under section 3, courts are obliged to, “as far as possible”, read and give effect to primary and subordinate legislations in a way compatible with ECHR. Under section 4, courts may declare a primary or subordinate legislation incompatible with convention rights.
This article concerns courts’ choice between section 3 and section 4 remedies. The difficulty of choosing a remedial order comes largely from an ambiguous phrase in section 3: “as far as possible”. In Ghaidan, Lord Steyn stated the limits of section, “like the proverbial elephant” [1], should be self-evident. Kavanagh also thought there is no “formulaic answer” to the limits of section 3. [3] While this article does not seek to introduce an infallible test, it makes the daring attempt at proposing a framework which rationalises courts’ choice between the two remedial orders. First, it argues that the overriding principle is a strong preference for interpretive obligation under section 3. Second, it introduces the idea of a spectrum of legitimate interpretation, arguing that cases can fall into one of three categories: (1) clear section 3 cases; (2) hard cases, which prima facie fall under section 3; and (3) clear section 4 cases. Lastly, it argues where section 3 is not an appropriate response, courts should be prepared to make a declaration of incompatibility.
B. Justifiable preference for interpretive obligation
If one thing is clear, courts prioritise section 3 over section 4 as primary remedy. In Ghaidan [4], the defendant was living with his same sex partner for many years before the partner passed away. Under the Rent Act 1977, “a person who was living with the original tenant as his or her wife or husband” can succeed to a statutory tenancy. The question was whether same sex partners can succeed to a statutory tenancy under the 1977 Act. The House of Lords unanimously held that denying the defendant’s statutory right would infringe his Article 14 (right against discrimination) and Article 8 (right to private and family life) rights. The majority interpreted the offending provision to mean “as if they were his or her wife or husband”. Lord Nicholls opined Parliament intended the courts to read and give effect to legislation in way compatible with ECHR, even if such interpretation departs from the “intention of the parliament which enacted the legislation” [5]. Lord Steyn agreed that section 3 should be the primary remedial and section 4 should be an “exceptional course” [6]. Lord Nicholls repeated his opinion in Re S, stating that section 3 “is a powerful tool whose use is obligatory. It is not an optional canon of construction”. [7] Courts’ attitude is reflected in the outcome of rights cases. The Human Rights Joint Committee reported that “a strikingly small number” of declarations were made. [8]
There are normative reasons for embracing section 3 as the primary remedy. Most importantly, section 4 declaration is not an effective remedy. This is confirmed by the Grand Chamber in Burden [9]. A section 4 declaration does not bind the government nor Parliament. Even if amendments are introduced, they may not benefit the ‘successful’ applicant. First, amendments may not take retrospective effect. Second, some damages to rights are permanent. An extreme example would be prisoners voting rights cases. In 2005, the European Court of Human Rights decided that a blanket ban on prisoners from voting breached Hirst’s convention rights. [10] 12 years later, the government finally decided to extend voting rights to a limited number of prisoners. Prisoners who had their franchise stripped cannot vote retrospectively in the many elections they were barred from. Thus, ‘successful’ applicants under section 4 could effectively be left in a state of helpless legal oxymoron.
Furthermore, supremacy of Parliament is respected where section 3 is adopted as the primary remedy. However, Lord Millett thinks section 3 is capable of “usurping the function of parliament”. [11] There are three reasons why Lord Millett’s concern is perhaps overstated. Firstly, Parliament, by enacting the HRA, intended, indeed, imposed an obligation on courts to interpret all statues against the backdrop of ECHR. If anything, courts giving statutes Convention compliant meaning is respecting the supremacy of Parliament. Secondly, courts are not given carte blanche by section 3. While the meaning of ‘as far as possible’ is up to interpretation, courts have tied their own hands. This point will be developed further in the next part. It is sufficient to say that judges are conscious of the limits of section 3. Thirdly, if Parliament is dissatisfied with the court’s interpretation, it is free to re-enact an offending statute. It has done so in a slightly different context. The court in Anisminic [12] held an ouster clause did not preclude courts from reviewing ‘purported determination’ under the Foreign Compensation Act 1950. Under Regulation of Investigatory Powers Act 2000, Parliament enacted a similar, but more strongly worded ouster clause. The Court of Appeal in Privacy International [13] upheld the ouster clause. [14] Given these reasons, supremacy of Parliament is not usurped by courts exercising its jurisdiction under section 3.
C. Spectrum of legitimate interpretation
With courts’ justifiable preference for section 3 obligation in mind, it falls to be considered how cases concerning section 3 and section 4 can be rationalised. Courts have given limited, but useful guidance on the proper limits of section 3 (and by extension the scope of section 4). Firstly, section 3 cannot be used to, in Lord Rodger’s words, go against the “grain of the legislation”. [15] The House of Lords confirmed this view in Re S where Lord Nicholls warned that an interpretation under section 3 cannot depart from a “fundamental feature of an Act” [16]. Secondly, courts will not use section 3 in cases “calling for legislative deliberation” [17] or involving “far-reaching legal change” [18]. Thirdly, courts are not bound by the exact words of a statute. The last one remains controversial.
It is therefore necessary to pause here and defend the third guidance. Lord Nicholls, as with the majority, opined that it cannot be that “the operation of s.3 should depend critically upon the particular form of words adopted by” by the statute under consideration. [19] This view is confirmed in Re S. [20] Lord Hoffmann, while buttressing the importance of “the actual language” [21], nonetheless accepted Lord Nicholl’s approach in Ghaidan. [22]
The principal reason why Lord Nicholls’ view is sound is that Parliament, in the words of Lord Steyn, “does not legislate in a vacuum” [23]. Parliament legislates against the backdrop of well-established common law principles. One of these principles is what may be called the golden rule. Common law accepted that even if the statutory language is unambiguous, courts may nevertheless depart from the plain meaning to give effect to the intention of Parliament. In Alder [24], to give effect to the intention of protecting military premises, the court read “in the vicinity of’ to mean ‘on or in the vicinity of’ a military base. Similarly, in Quintavalle [25], the Court held “fertilized egg” included cloned eggs to bring cloning technology under the regulation of the Human Fertilisation and Embryology Act 1990. In these cases, intention of Parliament had to be ascertained with reference to extrinsic evidence. Whereas in HRA cases, Parliament has enacted its intention, albeit retrospectively, that statutes should be read in a convention compliant way. Thus, without expressly excluding the operation of common law principles from HRA cases, Parliament is taken to have accepted hat courts could depart from unambiguous words of a statute to give effect to ECHR.
What does the guidance discussed above tell us? The three factors demonstrate that the limit of section 3 is not so much a question of statutory interpretation but a question of legitimate judicial power. The constitutional starting point is trite: Parliament makes the law and judges interpret them. When an interpretation goes against the grain or policy advanced by a legislation, judges would be effectively repealing the statute. Where an interpretation makes a far reaching legal/social change, judges would be legislating. Repealing and legislating are nowhere to be found in the repertoire of legitimate judicial power. However, judges are not bound by the words of a statute because Parliament recognised, when passing the HRA, that it is impractical for Parliament to revise all legislations to ensure ECHR infringements are eradicated. The same absurd impracticality would surface if judges refer every unambiguous provision incompatible with ECHR back to Parliament. Therefore, the only way section 3 would make sense is if one admits that, in some cases, Parliament intended judges to engage in a quasi-amendment function under the disguise of interpretation, subject to parliament oversight. The scope of section three can therefore be rationalised using a spectrum of legitimate interpretation. [26]
Clear section 3 cases: On the one end of the spectrum, it is perfectly legitimate and likely uncontroversial for judges to come up with interpretations of statutes to give effect to ECHR. The reason for this is that cases typically involve statutes that are ambiguous and open to multiple interpretation. Hence judges cannot be said to have usurped the supremacy of Parliament when they give effect to an interpretation that is convention complaint.
Hard cases: these cases fall in between the two ends of the spectrum. Typically, the provisions under review have unambiguous meaning. However, it may be arguable that courts are not asked to depart from “grain” of the statute and make far reaching policy decision. Courts are therefore prepared to accept depart from the plain meaning of the provision. Ghaidan [27] falls under this category. The statutory language is unambiguous. The court is not departing from the grain of the statute and the underlying policy as the provision is intended to ensure the survivor of couple living together can succeed statutory tenancy.
Clear section 4 cases: on the other end of the spectrum, judges cannot legitimately, under current constitutional arrangement, rely on section 3. The only appropriate response is issuing a section 4 declaration. The reason for this, as explained above, is such statute unambiguously offends the ECHR. To give effect to such provision in a Convention complaint way would either require the court to depart from the “grain of the legislation” (repealing) or to make a decision in area “calling for “legislative deliberation” (legislating). A good example of a case in this side of the spectrum is Re S, where the House of Lords overturned a Court of Appeal ruling for making “major…innovation” in the application of the Children Act 1989, which went against the “fundamental feature” of the Act. [28] Another example would be Wilkinson [29], in which the House of Lords refused to extend tax benefit of widows to widowers. While on the facts it seems similar to Ghaidhan [30], the two cases are not conflicting. In Wilkinson [31], the statute in question explicitly distinguished two opposite sex in its provisions. Thus, the tax benefit is deliberately granted only to widows. Thus, extending benefits of widows to widowers would be going against the grain of the statute. To reiterate the caveat, the spectrum of cases is not meant to be an infallible test on which remedial order to make. It is instead intended to provide a framework which allows better conceptualising and rationalising of courts choice between section 3 and section 4 remedies.
D. Section 4 discretion?
One may observe that the above framework does not take into account the fact that courts have discretion in issuing a section 4 declaration. However, it is argued that the framework stands despite courts’ discretion.
Firstly, cases where declaration of incompatibly is not issued despite findings of incompatibility are rare. One notable example is Nicklinson. [32] The case concerned whether s.2 of the Suicide Act 1961 is incompatible with Article 8 right to private life by criminalising assisted suicide. The court unanimously held that a blanket ban on assisted suicide is incompatible with Convention rights. However, having decided that the offending provision cannot be remedied by section 3, the majority of the court curiously refused to issue a declaration. A more recent example is Human Rights Commission. [33] The majority of the court decided that, since the applicant lacks standing for judicial review, section 4 declaration cannot be issued despite the majority finding of incompatibility. However, it is at least arguable that the court may have issued a declaration if the applicant had sufficient standing.
Secondly, the discretion granted by section 4 should rarely, if at all, be used. As explained in the previous section, there are cases where using section 3 interpretive obligation would be blatantly inappropriate. There is therefore a class of cases, albeit small, that does not receive effective remedy. This is a problem inherent in the constitution of the United Kingdom. Courts did not have, does not have, and arguably will not have the power to unilaterally strike down an Act of Parliament. However, if courts strongly prefer section 3 because it offers an effective remedy, there is no reason why some form of remedy should not be extended to cases falling outside section 3. Since under the HRA, courts only have two remedies available with regards to primary legislation, it follows that courts should, in principle, issue a declaration in all cases falling outside the scope of section 3.
This controversial position will arguably give rise to many criticisms coming from all sides. Those who put effective remedy at the heart of human rights adjudication may argue that section 4 is not remedy at all. This is misguided. While section 4 falls short of an effective remedy, it does promote better protection of human rights. One commentator argued that government is unlikely to ignore a declaration of incompatibility. [34] This is because declarations increase the political cost of ignoring a human rights breach. Media and press attention to a court declaration incentivise the government to confront the issue. This argument is backed by empirical evidence. Most of the declarations have been responded to. So while a claimant in a case may not directly benefit from a declaration, the society at large benefits from a culture of human rights dialogue between the courts and the executive.
Some might criticise section 4 as potentially intrusive of supremacy of parliament. The court in Nicklinson [35] may have been troubled by this concern. Lord Sumption, for instance, opined that the court is not equipped to decide the case as it involved two competing moral values. [36] This argument falls upon closer analysis. First and foremost, incommensurability of competing values is a reason to not use section 3, but not a convincing reason to not issue a declaration. While the executive may be under political pressure to introduce legislative change, the ultimate acceptance of such change lies in the hands of Parliament. It is entirely up to Parliament to reject any amendment introduced. Second, having accepted jurisdiction over the case and decided that the blanket ban on assisted suicide was incompatible, the court in Nicklinson [37] has de facto made a declaration of incompatibility given the wide publicity of the case.
Perhaps recognising the inconsistency in deciding but not declaring a provision incompatible, courts have arguably moved away from Lord Sumption’s position since Nicklinson [38]. In Human Rights Commission [39], the majority would arguably have issued a declaration if the applicant had standing. In the Lorraine Gallagher [40] case decided in January 2019, Lord Sumption seems to have departed from his position in Nicklinson [41]. His Lordship recognised interests involved in that case “are not only competing but incommensurate. In the nature of things, wherever the line is drawn, it will not be satisfactory from every point of view. The whole issue raises classic policy dilemmas.” [42] Despite this, Lord Sumption, as with the majority, declared the blanket disclosure of certain criminal records incompatible with convention rights.
The corollary of this is that the correctness of decision in Nicklinson [43] must be questioned. And section 4 should be used in cases falling outside of section 3.
E. Conclusion
In a liberal and democratic society that embraces human rights, it may not be surprising that courts are given greater power under the HRA to ensure past, present and future legislations are Convention compliant. This article attempted to provide a framework for rationalising courts’ choice between section 3 and section 4 remedies. In doing so, it has explored the role of courts in a new era of human rights adjudication under the HRA. At the crux is the recognition that limits imposed by section 3 cannot be understood solely by statutory interpretation. Instead, it calls for a nuanced understanding of legitimate judicial power in the 21st century. The benefits of this framework are manifold. It provides a skeleton for making sense of case laws where no useful statutory guidance is provided. Further, it permits assessment of consistency between future decisions and a clearly defined group of precedents. Consistency is especially desirable where questions of fundamental rights are raised. Crucially perhaps, in this relatively young area of case law, some sort of anchor is needed to ensure that courts do not drift away from its mandate under the Human Rights Act: to give effective protection of human rights while respecting contemporary constitutional principles of the United Kingdom.
References
[1] As in Anisminic v Foreign Compensation Commission [1969] 2 AC 147.
[2] Ghaidan v Godin-Mendoza [2004] UKHL 30, [50].
[3] A. Kavanagh, ‘The role of parliamentary intention in adjudication under the Human Rights Act 1998’ (2006) 26 OJLS 179.
[4] (n 2).
[5] Ibid [30]. [6] Ibid, [50].
[7] Re S; Re W [2002] 1 FLR 815.
[8] 20 as of 2015; Joint Committee on Human Rights, Human Rights Judgments (seventh report) (2014-2015, HL 130, HC 1088), 17.
[9] Burden v UK App no 11378/05 (ECtHR 28 April 2008).
[10] Hirst v UK (no 2) (2006) 42 EHRR 41.
[11] (n 2) [99].
[12] Anisminic v Foreign Compensation Commission [1969] 2 AC 147.
[13] Privacy International v Investigatory Powers Tribunal [2017] EWCA Civ 1868.
[14] Note: The UK Supreme Court has heard the appeal, judgment has not been given
[15] (n 2) [121].
[16] (n 7) [40].
[17] (n 2) [33] (Lord Nicholls).
[18] Kavanagh (n 3).
[19] (n 2) [31].
[20] (n 7) [37].
[21] R (Wilkinson) v IRC [2005] UKHL 30, [17].
[22] Ibid [18].
[23] R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539.
[24] Adler v George [1964] 2 QB 7.
[25] R v Secretary of State for Health, ex parte Quintavalle [2003] UKHL 13.
[26] This phrase, to my understanding, has not been used in literature in the HRA jurisprudence.
[27] (n 2).
[28] (n 7) [1], [40] (Lord Nicholls).
[29] (n 21).
[30] (n 2).
[31] (n 21). [32] R (Nicklinson and anor) v Ministry of Justice [2015] UKSC 38.
[33] In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27.
[34] Chintan Chandrachud, “Reconfiguring the discourse on political responses to declarations of incompatibility” [2014] PL 624.
[35] (n 32). [36] Ibid.
[37] Ibid.
[38] Ibid.
[39] (n 33).
[40] In the Matter of an Application by Lorraine Gallagher for Judicial Review (NI); R (P,G&W) v Secretary of State for the Home Department and anor; R (P) v Secretary of State for the Home Department and ors [2019] UKSC 3.
[41] (n 32).
[42] Ibid [10].
[43] Ibid.