Call for clarity on scope of convention rights

In our regular series, a group of experts from Liberty and the Public Law Project answer your questions

Q A client complains that a public authority is failing to give effect to her rights under the European Convention on Human Rights.

The primary legislation seems to be a problem.

Is there anything I can do for her?

A Section 3 of the Human Rights Act 1998 (HRA) 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.'

The Act was intended to be a delicate balance between the preservation of parliamentary sovereignty, on the one hand, and the delivery of rights on the other.

Yet it is easy to forget that it is not the dramatic 'declaration of incompatibility' (section 4), but the rule of construction that is both the claimant's friend and the quiet revolution of the HRA scheme.

A declaration might be a colourful highlight in a lawyer's career but in preserving the continuing operation of incompatible primary legislation, it achieves neither a substantive remedy for the client nor a guaranteed and speedy change in the law more generally.

Furthermore, the declaration is only available in the higher courts, and constitutes a public statement of such overt significance that over-emphasis on such a potential outcome in any litigation might even serve to make a nervous court less likely to find for a claimant on the substantive convention issues.

By contrast, the interpretative obligation provides one of the most important weapons in the human rights' tool-kit.

Most importantly, it has the following characteristics:

- It bites every time anyone reads statutory material;

- It applies to both primary and secondary legislation;

- It applies to legislation whenever enacted, that is to say, before or after the advent of the HRA or indeed the convention;

- It can be employed on clients' behalf in every police station, housing department and benefits office in the country.

It is not merely a tool for litigation;

- It can be relied on in any court or tribunal at whatever level;

- It applies to private and public bodies alike and is vital when considering the statutory rights and obligations of anyone (for example, a landlord under the Rent Acts).

So, it applies in private litigation as well as the terrain of public and criminal law;

- It goes further than merely resolving ambiguous legislation in a compatible way (as was the case under the pre-HRA common law);

- During the passage of what became the HRA, ministers - the Lord Chancellor in particular - referred to section 3's ability to deal with potential incompatibility in 99% of cases.

It is also worth remembering that when a statutory discretionary power - for example, a power to search a person or grant him a benefit - is on its face capable of being used either compatibly or incompatibly depending on the circumstances of the case, the duty placed on public authorities by section 6 of the HRA prohibits incompatible action.

There is no instant need for linguistic creativity by way of section 3.

The most difficult issue associated with section 3 is the actual or appropriate distance of 'as far as possible'.

In contrast with the predictions of some commentators before the implementation of the Act, the courts have not taken the view that anything is possible or that all legislation is compatible subject to the requisite amount of re-interpretation or distortion.

Several declarations of incompatibility have been made.

This is perhaps understandable given the explicit parliamentary intention that primary legislation should not be 'struck down' and consequent concern not to cross the line between interpretation and legislation.

However, case law shows the line between interpretation and legislation to be a fine and often obscure one.

And given the vast legislative reach of section 3, it is difficult to achieve consistency as to the extent to which traditional readings of statutes can be strained, so as to read in convention principle and read out offending aspects of the domestic scheme.

R v A [2001] HRLR 48, is now often referred to as a high-water mark for section 3 and it involved much interpretative alchemy in a difficult context.

The House of Lords was grappling with a clear and comprehensive statutory regime designed to rein in judicial discretion and the admission of a complainant's sexual history in a rape trial.

The public policy and fairness arguments had been raised at much length during parliamentary debates which post-dated the HRA.

The Youth Justice and Criminal Evidence Act 1999 had been one of the first Bills to bear a ministerial statement of compatibility under section 19 of the HRA.

Parliamentary intention was clear and the draftsman had left few hostages to judicial creativity.

The House of Lords feared violations of article 6 and miscarriages of justice on account of the 'blanket exclusion of potentially relevant evidence'.

Fearing the 'spectre of the possible need for a declaration of incompatibility', Lord Steyn employed a statutory gateway designed for the admission of evidence of striking similar fact (based on narrow common law principles) to include evidence where to do otherwise would 'endanger the fairness of the trial under article 6'.

In doing so, he emphasised the potency of section 3 and the fact that this powerful judicial tool was the creation of an Act of Parliament.

In R v Lambert [2001] HRLR 55, the House of Lords found that the defence of lack of knowledge that items in one's possession contained a controlled drug under section 28 of the Misuse of Drugs Act 1971, effectively required a defendant to disprove a significant element of the offence of possession of a controlled drug with intent to supply.

This would breach the presumption of innocence contained in article 6(2) but for the availability of section 3 of the HRA, so that the word 'prove' in the context of such a statutory criminal defence be interpreted as 'give sufficient evidence'.

This places an evidential rather than a legal burden on the accused.

This use of section 3 is to be contrasted with the approach of the Court of Appeal in R (H) v Mental Health Review Tribunal, North and East London Region [2001] 3 WLR 512, which also concerned a reverse burden of proof, for continuing detention under mental health legislation.

In that case, a declaration was employed in the face of language arguably more capable of re-interpretation than that in Lambert.

However, Lord Hope's speeches in both A and Lambert have been contrasted with those of Lord Steyn.

Lord Hope's apparent emphasis is on the limits of section 3 and these have been recited in the subsequent cases of Re S (Care Order: Implementation of Care Plan) [2002] 2 WLR 720 and R v Anderson [2002] EWCA Crim 2914, where the possible use of section 3 to require a home secretary to set tariffs for mandatory life prisoners in conformity with judicial advice was dismissed as 'judicial vandalism' (Lord Bingham).

To use section 3:

- Point out the potentially incompatible provision;

- Demonstrate how the client's convention rights would be violated on the ordinary construction of the statute;

- Offer alternative compatible constructions (broader or narrower than the original), reminding the court that the search is for compatibility not for impossibility.

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