The purpose of this article is to examine the nature and potential impact of s 3 of the Human Rights Act 1998. The article draws upon the experience of courts in other Commonwealth jurisdictions which operate a similar provisions. The author analyses the nature of the interpretative technique, reading down, that s 3 requires and illustrates its potential by reference to a number of situations involving statutory imperfections such as ambiguity and overbreadth. The author also outlines the impact that s 3 may have on the exercise of statutory discretion. The author further argues that reading down should not be confused with more intrusive remedies, such as reading in, which are not available under the Human Rights Act.
Type Research Article Information Legal Studies , Volume 20 , Issue 3 , September 2000 , pp. 353 - 371 Copyright © Society of Legal Scholars 2000Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
1. Lord Irvine ‘The Development of Human Rights in Britain under an Incorporated Convention on Human Rights’ (1998) PL 221 at 228. Sir William Wade ‘Human Rights and the Judiciary’ (1998) EHRLR 520 at 529.
2. Section 3(1) of the Human Rights Act 1998. Similar provisions are included in the Acts establishing devolved government. However, the wording of these sections is, rather confusingly, different. Section 101 of the Scotland Act (1998) provides that Scottish legislation ‘is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.’ While s 83 of the Northern Ireland Act (1998) states that an Act of the Northern Ireland Assembly ‘shall be read in the way which makes it within that competence or, as the case may be, does not make it invalid by reason of that section, and shall have effect accordingly’ . These provisions, Lord Cooke has observed, ‘may come to much the same thing… Nonetheless it seems odd that apparently different rules of interpretation are enacted to apply in different parts of the United Kingdom’ . See further Lord Cooke ‘The British Embracement of Human Rights’ (1999) EHRLR 243 at 255.
3. Lord Irvine, above n 1, at 228. Lord Lester ‘The Art of the Possible’ (1999) EHRLR 664, passim.
4. G Marshall ‘Interpreting Interpretation in the Human Rights Bill’ (1998) PL 167 at 167.
5. In one sense it is unique. This provision has created far more debate over its nature than either its South African or New Zealand equivalents.
6. Sir Robin Cooke ‘A Sketch from the Blue Train’ (1994) NZLJ 10 at 11. Lord Cooke has made similar remarks about the Human Rights Act. See Lord Cooke of Thorndon, above n 2, at 249.
7. The availability of the declaration of incompatibility (s 4) means that in practice judicial scrutiny under the Human Rights Act will be closer to the full constitutional review experienced in South Africa and Canada. British courts will not be burdened by the jurisprudential difficulty (the so-called s 4-5-6 conundrum) that the courts of New Zealand face in applying their Act. Sections 4 and 5 read as follows:
Other Enactments Not Affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), (a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or (b) decline to apply any provision of this enactment by reason only that the provision is inconsistent with any provision of this Bill of Rights.
Subject to Section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Read together ss 4 to 6 reveal an inherent tension. Section 5, which was clearly influenced by the constitutional Canadian Charter, sits uneasily in a statutory bill of rights lacking an equivalent of s 4 of the Human Rights Act. How and when does it apply? And what is its relationship with ss 4 and 6 which command the judiciary to uphold legislation’? Once an inconsistency with the Bill is identified, does s 5 require a limitations analysis? Indeed, does s 5 have any use given that in the end the conflicting statue must always be upheld under s 4? There are no easy answers to this problem as, for example, the various conflicting judgments in Ministry of Transport v Noort (1992) NZLR 260 reveal. Commenting on the interrelationship between these sections, Butler concludes that it ‘is so uncertain as to render the interpretation and application of the Bill a daunting and confusing exercise’ . See A Butler ‘The Bill of Rights Debate: Why the New Zealand Bill of Rights Act 1990 is a Bad Model for Britain’ (1997) 17 OJLS 323, 326, 325-336, and P Joseph ‘The New Zealand Bill of Rights’ (1996) 7 PLR 162, 167 for a review of the problems which the New Zealand Act has posed.
8. Chapter 3 of the Interim Constitution is entitled ‘Fundamental Rights’, but is usually referred to as the Bill of Rights.