Human Rights Law
‘Section 3(1) of
the Human Rights Act 1998’
163 JPN (1999) 164
||Doc. No. 1999.025
The Government has announced that
the main provisions of the Human Rights Act 1998 are to be brought
into force on October 2 2000. They include the crucial s. 3(1)
of the Act, which states: “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”. Not surprisingly, since it is not yet in force,
there is no judicial authority on the legal meaning of s. 3(1)
though it is significant that in a recent case Lord Cooke of Thornden
said that it is “a key element in the Act” and “a
Section 3(1) resembles s. 6 of the
New Zealand Bill of Rights Act 1960, which says that “wherever
an enactment can be given a meaning that is consistent with [the
Bill of Rights] that meaning shall be preferred to any other meaning”.
In both cases the test is what is “possible”, what
“can” be done. But those familiar with the way courts
have handled statutory interpretation over the years know that
almost anything is possible. Where can we find firm ground here?
Pointing to that is the object of this article.
We must begin with the current rules
of statutory interpretation as they apply to ordinary British
legislation with no European connection. I have recently described
these in a series of twelve articles in this journal entitled
“Threading the Legislative Maze”.
They are more fully described in my book STATUTORY INTERPRETATION.
They are largely based on the common law and comprise rules of
interpretation, presumptions derived from the nature of legislation,
principles of legal policy, and linguistic canons of construction.
There are a large number of them, though only a few are likely
to be relevant in any one case. Because these interpretative criteria
are so numerous I decided in the 1999 Supplement to the book to
christen the method of interpretation by which they are deployed
the Global method, from the definition of global given in the
OED, namely ‘pertaining to or embracing the totality of
a number of items, categories, etc; comprehensive, all-inclusive,
Under the Global method what the court does (or should do) is
consider the opposing constructions put forward by either side
in the case, take an overall view of the interpretative criteria,
weigh all the interpretative factors that are relevant to the
enactment in question and arrive at a balanced conclusion.
The Developmental method
A European Community law may have
direct effect in the United Kingdom or be transposed into specifically
British legislation. Either way, it must be construed by our courts
as it would be by the Court of Justice of the European Communities
(CJEC). This court uses a method of construction which follows
the Global method in some ways but differs from it in others.
It differs in making very little use of the doctrine of precedent
and in applying a much broader version of purposive construction.
On the latter aspect, it applies teleological rather than historical
methods and seeks to give effect to what it conceives to be the
spirit rather than the letter of the relevant treaties, directives
etc. It views the European Union as a living and expanding organism
and the interpretation of Community law as changing to match its
“The interpretation of Community instruments involves very
often not the process familiar to common lawyers of laboriously
extracting the meaning from words used but the more creative process
of supplying flesh to a spare and loosely constructed skeleton.
The choice between alternative submissions may turn not on purely
legal considerations, but on a broader view of what the orderly
development of the Community requires.”
R v Director of Public Prosecutions, ex p Kebilene  4 All
ER 801 at 837.
volume 162 (1998) at pages 356, 436, 516, 596, 696, 856 and 995
and volume 163 (1999) at pages 264, 364, 484, 624 and 683. The
articles are shortly to be republished in book form.
edition 1997, supplement 1999 (collectively referred to as ‘S.I.’
in following footnotes).
English Dictionary, second edition (1992).
Henn and Darby v. D.P.P.  A.C. 850, per Lord Diplock at
and Excise Comrs v ApS Samex  1 All E.R. 1042, per Bingham
J. at 1056.