Learning Outcomes
This article explains the interpretation of legislation under the Human Rights Act 1998 in the context of the European Convention on Human Rights, including:
- the incorporation of Convention rights into UK law through the HRA and the constitutional significance of this framework;
- the scope, mechanics and limits of the section 3 duty requiring courts to read primary and secondary legislation compatibly with Convention rights wherever possible;
- the nature, procedure and legal effect of declarations of incompatibility under section 4, and their interaction with parliamentary sovereignty;
- the use of proportionality as a structured test in judicial review and its relationship with traditional grounds such as Wednesbury unreasonableness;
- the distinction between legitimate interpretation and impermissible judicial law‑making when applying the HRA to clear statutory wording;
- the relationship between the HRA, retained EU law and the post‑Brexit constitutional settlement;
- methods for analysing statutes and problem questions that raise human rights issues, including how to organise answers, prioritise relevant authorities and avoid common SQE1 pitfalls;
- the key terminology, leading cases and doctrinal debates that inform modern human rights adjudication in domestic courts.
SQE1 Syllabus
For SQE1, you are required to understand the interpretative framework of the Human Rights Act 1998 and its relationship with the European Convention on Human Rights, with a focus on the following syllabus points:
- the requirement for courts to interpret legislation compatibly with Convention rights (HRA s 3)
- the process and effect of declarations of incompatibility (HRA s 4)
- the role of proportionality in judicial review of public authority decisions involving human rights
- traditional and modern approaches to statutory interpretation and their relationship to the HRA
- the limits of statutory interpretation under the HRA and the boundary with judicial law-making
- the effect of parliamentary sovereignty on human rights protection
- the place and effect of the HRA and retained EU law in the post-Brexit UK legal order
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the duty of UK courts under section 3 of the Human Rights Act 1998 when interpreting legislation?
- What is a declaration of incompatibility under the HRA, and what is its legal effect?
- When is the proportionality test applied in judicial review under the HRA?
- Can a court rewrite legislation to make it compatible with the ECHR if the wording is clear and Parliament’s intention is explicit?
Introduction
The Human Rights Act 1998 gives effect to the rights and freedoms guaranteed under the European Convention on Human Rights (ECHR) in UK law. The HRA applies a framework obliging all public authorities, including courts and tribunals, to act compatibly with Convention rights. One of the Act's defining features is the interpretative obligation imposed on courts: section 3 directs that all legislation—primary and secondary—must be read and given effect in a way which is compatible with Convention rights 'so far as it is possible to do so.' This interpretive mandate represents a significant evolution in statutory interpretation, requiring courts not merely to apply standard tools such as the literal, golden, or mischief rules, but actively to prefer readings that accommodate Convention rights, subject to the clear intent and express wording of Parliament.
Key Term: Human Rights Act 1998 (HRA)
The UK statute that incorporates the rights and freedoms set out in the European Convention on Human Rights into UK law, setting obligations for courts and public bodies.Key Term: European Convention on Human Rights (ECHR)
An international treaty, separate from the European Union, establishing fundamental rights and freedoms which are enforceable in the courts of member states and the European Court of Human Rights.
Courts have, therefore, adopted purposive and sometimes linguistically creative interpretations to ensure compatibility with Convention rights. However, this obligation is not unlimited; where the statutory language is unambiguous and Parliament's intent is clear, compliance may not be possible through interpretation alone. In those cases, higher courts have the power to issue a declaration of incompatibility—signaling to Parliament that domestic law conflicts with the Convention, but without invalidating the primary legislation itself.
This article examines in detail the mechanisms of statutory interpretation under the HRA, the boundaries of judicial power, the process and effects of declarations of incompatibility, the role of proportionality in human rights cases, and how these interact with key constitutional doctrines such as parliamentary sovereignty, especially in the post-Brexit legal position.
Statutory Interpretation under the Human Rights Act
The Section 3 Duty: Interpreting Legislation Compatibly with Convention Rights
Section 3 of the HRA radically transforms statutory interpretation in human rights matters. It directs that:
“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.”
This duty applies to all legislation, regardless of when it was enacted, unless a later statute explicitly overrides the HRA. Courts must go beyond strict literal construction and may even read down, read in, or otherwise creatively construe statutory language to achieve compatibility, provided this does not contradict a fundamental feature of the legislation or the intention of Parliament as expressed in the statute.
Key Term: Section 3 Duty
The obligation on UK courts to interpret legislation, so far as possible, in a manner that is compatible with ECHR Convention rights.
Courts are encouraged to use all available interpretive tools—including the purposive approach, the mischief rule, and reference to legislative history (such as Hansard, in line with the rule in Pepper v Hart)—in the service of compatibility. This approach is doctrinally distinct from the traditional ‘literal rule’ and may involve significant judicial change of language, provided it does not amount to judicial amendment or rewriting of the statute.
The courts have confirmed that ambiguity in the statutory wording is not required to trigger the section 3 duty. Even clear statutory language may be overridden where possible to secure compliance, subject only to the ultimate limits of Parliament’s intent.
A practical illustration of section 3 is found in cases such as Ghaidan v Godin-Mendoza: the House of Lords ‘read in’ the words required so the surviving partner in a same-sex relationship could benefit from a statutory tenancy, holding that excluding such a partner would breach Article 8 and Article 14 ECHR on respect for private life and non-discrimination.
Limits of the Section 3 Duty
Despite the transformative power of section 3, the courts recognise firm boundaries. While they must strive to achieve compatibility 'so far as it is possible,' they cannot adopt an interpretation fundamentally inconsistent with the legislation’s basic scheme or which is repugnant to a core aspect of Parliament’s intent. If a compatible reading would mean departing so far from the words as to alter their substance, or create a judicially constructed law rather than merely interpreting Parliament’s words, this would overstep into judicial law-making—contravening the constitutional boundary preserved by the HRA to respect parliamentary sovereignty.
Section 3 is not a form of ‘strike down’ power; laws remain on the statute book even if incompatible with the ECHR. Where the language, read as a whole, or the legislative history shows a clear intention to legislate incompatibly, section 3 interpretation cannot be used to ignore or override that intention.
Worked Example 1.1
A statute prohibits the admission of certain evidence in criminal trials. The defendant claims that excluding this evidence would breach their right to a fair trial under Article 6 ECHR. Can the court interpret the statute to allow the evidence?
Answer:
The court must first apply section 3 and consider whether a compatible interpretation can be adopted, using a purposive approach if necessary. If it is possible, without violating the clear core intention of the legislation, to read the statute as permitting admission of the evidence to secure a fair trial, the court should do so. However, if Parliament’s intention is explicit and the exclusion absolute, and the statutory language cannot sensibly bear a compatible meaning, the court must apply the law as it stands, notwithstanding the incompatibility.
Declarations of Incompatibility
Section 4: When Interpretation Is Not Possible
Where interpretation cannot secure compatibility (for instance, because it would require a judicially impermissible rewriting of the statute, or because clear and express language precludes an alternative reading), section 4 of the HRA empowers UK higher courts—specifically the High Court, Court of Appeal, or Supreme Court—to make a ‘declaration of incompatibility’.
Key Term: Declaration of Incompatibility
A formal statement by a higher court that a provision of domestic legislation is incompatible with a Convention right under the HRA.
Such a declaration does not invalidate or suspend the law in question. The law remains binding and must be applied by all courts unless and until Parliament amends or repeals it. As a result, Parliament retains ultimate legislative authority—consistently with the UK’s doctrine of parliamentary sovereignty. Crucially, a declaration does have significant political and practical force, generally prompting review and likely amendment of the offending legislation. However, Parliament is under no legal obligation to respond, and there have been instances—such as with prisoners’ voting rights—where declared inconsistencies remain unresolved in UK law.
Declarations of incompatibility may be followed by the fast-track ‘remedial order’ process under section 10 HRA, allowing government ministers to amend offending legislation through secondary legislation, subject to certain procedural safeguards.
Worked Example 1.2
A statute defines marriage as between a man and a woman. A court is asked to interpret this provision compatibly with Article 8 (private life) and Article 12 (right to marry) ECHR. Can the court reinterpret the statute to include same-sex couples?
Answer:
The court must consider whether, applying section 3, an inclusive interpretation can sensibly be adopted. If Parliament’s intent and statutory language explicitly limit marriage to opposite-sex couples, such that a contrary reading would distort the clear scheme of the Act, the court cannot use section 3 to override Parliamentary intent. The appropriate remedy is to make a declaration of incompatibility under section 4, notifying Parliament of the incompatibility but leaving amendment to the legislature.
Judicial Review and the Human Rights Act
Human Rights as a Ground for Judicial Review
Alongside the established grounds of judicial review (illegality, irrationality, and procedural impropriety), the HRA introduces breach of a Convention right as an additional and prominent basis for reviewing public body decisions. Section 6 of the HRA makes it unlawful for a public authority to act in a way incompatible with a Convention right, unless required to do so by primary legislation which cannot be construed compatibly.
Key Term: Proportionality
A test that requires any interference with a Convention right to be no more than necessary to achieve a legitimate aim, and ensures a fair balance is struck between the individual’s rights and those of the community.
Public bodies must justify interferences with qualified rights (such as under Articles 8, 9, 10, and 11 ECHR) on the basis that such action pursues a legitimate aim, is necessary in a democratic society, and is proportionate. The proportionality test replaces traditional concepts such as Wednesbury unreasonableness in this area.
The Proportionality Test
UK courts, influenced by the ECHR and HRA, apply a structured proportionality test when reviewing action that restricts qualified rights:
- Is the objective sufficiently important to justify limiting the right?
- Is the measure rationally connected to the objective?
- Could a less intrusive measure have been used?
- Has a fair balance been struck between the individual’s rights and the interests of the community?
For qualified ECHR rights, proportionality is now the required standard, meaning that public authorities must demonstrate “necessity and proportionality” in any interference with those rights.
Worked Example 1.3
A local authority bans all protests in a public square to prevent disruption. Protesters claim this breaches their Article 11 right to freedom of assembly. How will the court assess this?
Answer:
The court will apply proportionality analysis: Is the ban prescribed by law? Is it in pursuit of a legitimate aim (e.g., public order or safety)? Is the measure rationally connected to that aim? Could less restrictive measures have been employed to protect public order while allowing some assembly? Has a fair balance been struck between rights and community interests? If the blanket ban is more restrictive than necessary, the court may find the measure disproportionate and, accordingly, unlawful under Article 11.
Relationship with Parliamentary Sovereignty
One of the defining features of the HRA is that it preserves the principle of parliamentary sovereignty. Courts are not given the power to strike down or disapply Acts of Parliament—even when those Acts are incompatible with Convention rights. Accordingly, where a statute cannot be interpreted compatibly with the ECHR, a declaration of incompatibility is the only available judicial remedy, and the statute remains operative until and unless Parliament chooses to amend it. This constitutional design reflects the “weak-form” model of rights protection as contrasted with the more powerful forms seen in written constitutions elsewhere.
At the same time, the duty under section 3 leads to a close, dynamic interaction between the courts and Parliament, with judicial declarations of incompatibility often serving as a prompt for legislative reform. Although the courts cannot compel legislative change, the political pressure arising from a declaration is typically significant.
Statutory Interpretation: Traditional and Modern Approaches
The approach to interpreting legislation in the UK has traditionally involved four principal tools: the literal rule, golden rule, mischief rule, and the purposive approach. The HRA has explicitly reinforced the purposive tradition, especially in the human rights context.
- The literal rule requires words to be given their plain, ordinary meaning.
- The golden rule allows for modification of literal meaning to avoid absurd or repugnant outcomes.
- The mischief rule seeks to interpret a statute according to the problem or "mischief" it was intended to address.
- The purposive approach looks at the broader purpose of the statute, including reference to legislative history and context, and has been particularly influential in interpretation post-HRA and is required when reading legislation compatibly with Convention rights.
Section 3 of the HRA requires courts to favour the purposive approach, further extending interpretation so far as possible to achieve compatibility with Convention rights—even if the result is not the most linguistically natural.
Courts may also use internal aids (e.g., long and short titles, preambles, interpretation sections) and external aids (e.g., Hansard, the Explanatory Notes to Acts, reports from law commissions) in support of a compatible interpretation. Under Pepper v Hart, Hansard may be consulted where a statute is ambiguous or obscure or a literal reading would lead to an absurdity, and the statements made by ministers or the Bill's promoters are clear.
Declarations of Incompatibility and Parliamentary Response
A declaration of incompatibility is not binding and does not compel Parliament to act. Nevertheless, it is an authoritative judicial statement and brings political and persuasive power to bear, often leading to review of the impugned legislation and, in many cases, amendment or repeal.
The HRA establishes a fast-track remedial procedure under section 10, enabling the government to use subordinate legislation (a 'remedial order') to amend or repeal legislation the courts have declared incompatible, where there are 'compelling reasons'—subject to parliamentary scrutiny.
Worked Example 1.4
The Supreme Court makes a declaration of incompatibility regarding a section of the Immigration Act. The Home Secretary does not immediately bring forward amending legislation. What is the effect of the declaration, and what options are available to Parliament and government?
Answer:
The declaration does not invalidate or alter the effect of the provision, which remains in force. Parliament may amend or repeal the provision in response to the declaration, or the government may use the section 10 fast-track remedial powers. However, there is no legal obligation to change the law, and—until action is taken—the incompatible provision must be applied by the courts.
The HRA after Brexit
Following the UK's withdrawal from the European Union, the HRA remains fully in force. The ECHR itself is unrelated to EU law and continues to bind the UK by international treaty and domestic law (via the HRA). The notion of retained EU law—the body of directly applicable EU law preserved in UK law—interacts with human rights law to the extent that compatibility questions may arise, but the domestic mechanism for enforcing Convention rights remains unchanged. Post-Brexit, the UK courts no longer refer questions of law to the Court of Justice of the European Union, and EU law no longer takes primacy over Acts of Parliament other than for retained provisions enacted pre-Brexit.
Key Term: Retained EU law
The body of EU-derived rules and rights that continue to have effect in UK law following Brexit, as provided for by the European Union (Withdrawal) Act 2018 and subsequent legislation.
The domestic legal order thus places renewed weight on the operation of the HRA and ECHR standards, both in the area of statutory interpretation and in the protection of rights more broadly.
The ECHR and Qualified Rights: Proportionality and Margin of Appreciation
Under the ECHR, rights are classified as absolute (e.g., prohibition of torture, right to life), limited (e.g., liberty and security, fair trial), or qualified (e.g., right to respect for private and family life, freedom of expression, freedom of assembly and association). Qualified rights may be lawfully restricted where the limitation is prescribed by law and necessary in a democratic society for a legitimate aim. The court’s assessment of whether a particular limitation is justified hinges on the proportionality test, ensuring restrictions are not excessive in relation to the legitimate objective pursued.
For certain types of cases, especially those involving freedom of expression, association, or privacy, courts may defer in part to Parliament or the executive where complex policy choices are involved, under the ‘margin of appreciation’ doctrine. However, this does not dilute the obligation to apply section 3 and the proportionality test robustly.
The HRA and Enforcement Against Public and Private Bodies
Section 6 HRA makes it unlawful for public authorities—including courts, government departments, and local authorities—to act in a way incompatible with Convention rights, subject to the terms of primary legislation. In practice, courts act as a public authority in this context and are obliged to ensure that ordinary law is applied compatibly, wherever possible, with Convention rights. Section 7 provides that a victim of an unlawful act may bring proceedings against the authority or rely on the right in any legal proceedings, allowing for direct enforcement in domestic courts, and remedies (including damages) under section 8 where appropriate to afford just satisfaction.
Key Term: Victim
A person who is personally and directly affected by an alleged breach of a Convention right and is accordingly entitled to bring proceedings under the HRA.
When an individual claims that a provision of primary legislation is incompatible with a Convention right and the court cannot read it compatibly, the individual must either seek a declaration of incompatibility or, where possible, challenge the action of a public body as an unlawful administrative act.
When two private parties are in dispute, the Convention rights are applied by courts as public authorities, shaping the development of the common law and informing the interpretation of statutes, even though the HRA’s prohibition on unlawful acts applies only to public bodies.
The HRA and Judicial Precedent
Although the HRA directs courts to give effect to Convention rights wherever possible, it does not abrogate the system of judicial precedent. UK courts are required under section 2 HRA to take into account, but are not strictly bound by, decisions of the European Court of Human Rights (ECtHR). The Supreme Court retains discretion to follow, change, or depart from ECtHR jurisprudence when justified.
Key Point Checklist
This article has covered the following key knowledge points:
- The Human Rights Act 1998 incorporates the ECHR into UK law and obliges all public authorities—including courts—to act compatibly with Convention rights wherever possible.
- Section 3 HRA imposes a robust interpretive duty, requiring courts to interpret legislation compatibly with Convention rights wherever possible, even if this means departing from traditional rules of statutory interpretation.
- Courts cannot use section 3 to rewrite statutes or subvert clear, fundamental features of a legislative scheme; where incompatibility cannot be remedied by interpretation, a higher court may issue a declaration of incompatibility under section 4 HRA.
- Declarations of incompatibility do not invalidate legislation but represent judicial statements that often prompt, though do not compel, legislative review or amendment.
- The proportionality test is used by courts to assess restrictions on qualified Convention rights, ensuring respect for individual rights and that limitations are no more than necessary to meet legitimate aims.
- The HRA preserves parliamentary sovereignty: courts cannot override or disapply Acts of Parliament, even if they breach Convention rights.
- The HRA continues to govern human rights in the UK after Brexit; the ECHR is distinct from EU law, and retained EU law does not displace the application of the HRA unless specifically legislated otherwise.
- Judicial review of administrative action now includes compatibility with Convention rights as a ground of challenge, requiring public authorities to justify any interference with rights by reference to legitimacy and proportionality.
- The distinction between absolute, limited, and qualified rights in the ECHR is central to the operation of the HRA and the application of the proportionality principle.
Key Terms and Concepts
- Section 3 Duty
- Declaration of Incompatibility
- Proportionality
- European Convention on Human Rights (ECHR)
- Human Rights Act 1998 (HRA)
- Retained EU law
- Victim