18.4.2 The interpretative obligation

The Act does not affect the validity of any incompatible primary legis-

lation thus preserving parliamentary supremacy (s. 3 (2) (b)). However,

‘So far as is possible to do so, primary legislation and subordinate

legislation must be read and given effect in a way which is compatible

with Convention rights’ (s. 3 (1)).

For this purpose the traditional method of seeking the purpose of the

legislative does not apply. According to Lord Woolf CJ in Donoghue v.

Poplar Housing and Regeneration Community Trust (2001), the effect

of s. 3 is as if conflicting legislation is amended to comply with Con-

vention Rights. If, of course, the statute can be interpreted on ordinary

principles as permitting a ‘fair balance’ to be struck between the right

in question and the public interest (below 18.5.2), then the special s. 3

interpretative obligation is not triggered at all. It is therefore a last

resort. In the case of legislation passed after the Human Rights Act,

the interpretative obligation is a strong one because if such legislation

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conflicted with the Act it would normally impliedly repeal the Human

Rights Act (above ch. 6). Under the Human Rights Act this applies

only if it is impossible to reconcile the two. However, in the case of

earlier statutes the Human Rights Act is relatively weak in that s. 3

prevents the Act impliedly repeating the earlier legislation.

Primary legislation includes not only statutes but also Prerogative

Orders in Council, Measures of the Church Assembly and the General

Synod of the Church of England, and delegated legislation which

brings into force or amends primary legislation. Subordinate legisla-

tion includes other delegated legislation and Acts of the Scottish

Parliament and Northern Ireland Assembly (s. 21). The court can set

aside subordinate legislation that is incompatible with the Convention

just as it can on ordinary judicial review grounds.

The obligation to interpret in conformity with Convention rights is

weaker than, for example the European Community Act 1972, which

appears to make EC law overriding (see Chapter 9). Nevertheless s. 3 (1)

was apparently intended to be a strong provision (see Cmd. 3782, 2.7,

8). However, it is not clear how far, if at all, it goes beyond the existing

law. For example in R. v. Radio Authority ex parte Bull [1997] 2 All ER

at 578 Brooke LJ said that a statute must be construed in accordance

with the ECHR if it is ‘reasonably capable of bearing such a meaning’.

How far does the phrase ‘so far as it is possible to do so’ justify dis-

torting the language of a statute? A strong view is that a Convention

right should prevail unless the statute expressly or by necessary impli-

cation excludes the possibility. On the other hand the White Paper

specifically rejected a ‘notwithstanding’ clause of the kind used in

Canada under which a statute must expressly state that it overrides

the Bill of Rights (Cmnd. 3782, 2.10). Indeed, the phrase echoes the

language of the Marleasing case (above p. 202) in the context of EC

law. In Webb v. EMO Cargo Ltd [1992] 4 All ER at 939 Lord Keith

took the view that the Marleasing obligation did not extend to dis-

torting the language of the statute.

In R. v. Lambert (2001) the question was whether a person arrested

with a bag containing cocaine in his possession had to prove that he

did not know that the bag contained cocaine. Under s. 28 of the

Misuse of Drugs Act 1971 it is ‘a defence for the accused to prove that

he neither knew of nor suspected nor had reason to suspect some fact

alleged by the prosecution’. This conflicts with the presumption of

innocence (Art. 6 (2)). The House of Lords read s. 28 as referring to an

‘evidential’ burden rather than to a legal burden of proof. In order to

do so the House had to give the phrase ‘to prove’ the unusual but not

distorted meaning of ‘to give sufficient evidence’.

436 General Principles of Constitutional and Administrative Law

Lambert can be compared with R.(H.) v. Mental Health Review

Tribunal (2001). Sections 72 and 73 of the Mental Health Act 1983

provide that a tribunal must release a patient if the requirements

according to which the patient was detained no longer apply. This

places the burden of proof on the patient contrary to Art. 5. The Court

of Appeal held that ss. 72 and 73 were incompatible with the Con-

vention. While the Human Rights Act entitles the court to limit the

meaning of a statute, the court could not read the statute in a way that

contradicts its natural meaning. Similarly, in Wilson v. First County

Trust Ltd (2001) s. 127 (3) of the Consumer Credit Act 1974 provided

that the court ‘shall not’ make an order enforcing a regulated credit

agreement unless a document containing all the prescribed terms had

been signed by the debtor. The Court of Appeal held that this was

contrary to Art. 6 (fair trial) and Protocol 1 (protection of property).

However, it was held that s. 127 (3) could not be interpreted as Con-

vention compatible. The court took the view that it could not give

words a meaning they cannot bear nor imply a qualification, such as

‘if reasonable’, into clear language. Similarly in Donoghue v. Poplar

Housing and Community Regeneration Association (2001), the Court of

Appeal refused to read a limitation into a provision that required the

court automatically to evict certain categories of social tenant on the

ground that such a limitation would radically change the purpose of

the Act and defeat Parliament’s objective. According to Lord Woolf

CJ, this would be legislation, rather than interpretation. This was

followed in Adam v. Newham BC (2002) where a majority of the Court

of Appeal refused to qualify a right of appeal on a point of law to

include questions of fact where justice required. Hale LJ, however, was

pepared to do so.

These cases can be contrasted with the more radical approach of

Lord Steyn in R. v. A (2001). He stated that the interpretative obli-

gation is not confined to cases where the legislation is ambiguous

nor does it require the court to look for the intention of Parliament.

He indicated that the court might be required to distort language or

imply exceptions and qualifications. Indeed he came near to suggesting

that nothing short of clear and express limitation on a Convention

right would give rise to impossibility. In the particular case, a statutory

ban on the giving of certain kinds of evidence in a rape trial, although

linguistically absolute was held not to apply where the right to a fair

trial would be seriously infringed.

The Act seems to take the meaning of Convention rights as a given,

providing a template against which UK law is interpreted. How-

ever, interpretation is a two-way process and it might be possible to

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interpret the Convention down to fit a narrow reading of existing

English law as opposed to reading English law up to fit a more expan-

sive view of the Convention. Decisions and opinions of the European

Court of Human Rights are not binding on the court although they

must be taken into account (s. 2 (1)).

As regards the courts’ general approach to the Human Rights Act,

it is too early to make a firm analysis. There are considerable differ-

ences of emphasis between individual judges. The most liberal but

rejected approach (see e.g. R. (Pretty) v. DPP (2002)) is that the deci-

sions of the European Court provide an international lowest common

denominator but that UK courts should strive for a higher standard.

A narrower but still liberal approach is that the courts should interpret

the Convention generously without preconceptions as to the existing

law. For example in R. v. DPP ex parte Kebilene (1999), Lord Hope

emphasised that a generous approach should be taken to the scope of

fundamental rights and freedoms. In R. v. Lambert [2001] 3 All ER