Human Rights Act 1998 Section 3: Compatible Interpretation E...

Introduction

Section 3 of the Human Rights Act 1998 (HRA) requires every court and tribunal in the United Kingdom to read and give effect to legislation in a way that is compatible with the European Convention on Human Rights (ECHR), so far as it is possible to do so. The duty applies to both primary and secondary legislation, including older statutes made long before the HRA.

Section 3 is powerful but not a licence to rewrite Acts of Parliament. Where a compatible reading cannot reasonably be reached, the court may make a declaration of incompatibility under section 4, leaving it to Parliament to decide what to do next. This guide sets out what section 3 does, where it stops, and how to use it in practice, with leading cases to anchor the key points.

What You'll Learn

• What section 3 requires and when it applies
• How it operates across primary, secondary, and pre-HRA legislation
• The meaning of “so far as it is possible to do so”
• Where the line is drawn between interpretation and legislation
• The link between sections 3, 4 and parliamentary sovereignty
• Leading authorities: R v A (No 2), Ghaidan v Godin-Mendoza, Bellinger v Bellinger, Re S, and R v Lambert
• Practical steps for making, defending, and judging section 3 arguments

Core Concepts

The duty and its scope

• Section 3(1) HRA: Primary and subordinate legislation “must be read and given effect” in a way that is compatible with Convention rights “so far as it is possible to do so”.
• The duty applies to:
  • Acts of Parliament and statutory instruments
  • Pre-1998 and post-1998 legislation
  • All courts and tribunals in the United Kingdom
• It operates whenever legislation is engaged, even if the case is not framed as a “human rights case”. In R v A (No 2) [2001] UKHL 25, the House of Lords applied section 3 to provisions on evidence to protect the Article 6 fair trial right.
• The duty is strong. It is not confined to situations where the statutory text is ambiguous. If a compatible reading is realistically open and does not contradict the scheme of the legislation, the court should adopt it.

Key points to keep in mind:

• A “compatible reading” can involve reading words in, reading words down, or choosing between available meanings.
• Subordinate legislation can be interpreted compatibly under section 3, and in some cases quashed under section 6 if it cannot be read compatibly and the parent Act permits or requires compatibility.
• Courts remain bound by precedent and statutory context; section 3 does not override clear constraints built into an Act.

Methods and limits: “So far as it is possible to do so”

The phrase sets both a duty and a limit. The court must go as far as a fair exercise of interpretation allows, but must not cross into judicial legislation.

• What is permitted:

  • Reading in additional words to avoid discrimination or to protect a fair trial, where this does not cut across the “grain” or “thrust” of the statute.
  • Departing from literal or ordinary meaning if another meaning fits the statutory scheme and secures compatibility.
  • Choosing a narrower reading that avoids a breach.

• Where the line is drawn:

  • The court should not adopt a meaning that contradicts a fundamental feature of the legislation or creates a new code. In Re S (Minors) [2002] UKHL 10, proposed changes to care order procedures went too far.
  • Large policy choices are for Parliament. In Bellinger v Bellinger [2003] UKHL 21, recognising a new legal concept of marriage was a step for legislation, not interpretation.
  • A compatible reading should respect grammar and syntax so far as possible and be consistent with the overall scheme and purpose of the Act.

Leading illustration:

• Ghaidan v Godin-Mendoza [2004] UKHL 30: The House of Lords read the Rent Act 1977 to allow a same-sex partner to succeed to a statutory tenancy. The adjustment removed discrimination without undermining the statutory scheme.

Section 3, section 4, and Parliament’s role

• Section 3 is about interpretation. It preserves the text of the statute while steering its effect towards compatibility.
• If compatibility cannot be achieved by interpretation, section 4 allows a declaration of incompatibility. This:
  • Does not strike down the legislation
  • Signals Parliament to consider amending the law
  • Can be followed by a remedial order under section 10 HRA or primary legislation
• Parliamentary sovereignty is preserved. Courts interpret; Parliament decides whether and how to change the law after a declaration.

Key Examples or Case Studies

R v A (No 2) [2001] UKHL 25

• Context: The Youth Justice and Criminal Evidence Act 1999 restricted evidence of a complainant’s sexual history.
• What the court did: Read the restriction compatibly with Article 6, allowing necessary evidence where exclusion would make the trial unfair.
• Why it matters: Section 3 supports fair trial rights even where the statute’s literal reading is restrictive.

Ghaidan v Godin-Mendoza [2004] UKHL 30

• Context: The Rent Act 1977 allowed succession by a spouse or a person “living with the original tenant as his or her wife or husband”.
• What the court did: Interpreted the words to include same-sex partners to avoid discrimination contrary to Article 14 with A1P1.
• Why it matters: A clear example of reading in words to achieve compatibility without changing the scheme of the Act.

Bellinger v Bellinger [2003] UKHL 21

• Context: A transgender woman sought a declaration that her marriage was valid under the Matrimonial Causes Act 1973.
• What the court did: Declined to reinterpret the Act to redefine legal gender for marriage; issued a declaration under section 4 instead.
• Why it matters: Shows the limit of section 3 when change would amount to creating a new legal status—something for Parliament, which later legislated.

Re S (Minors) [2002] UKHL 10

• Context: Proposals to adjust the Children Act 1989 to provide new court powers and procedures for care orders.
• What the court did: Refused to remodel the statutory scheme through interpretation.
• Why it matters: Courts cannot redesign complex systems; section 3 cannot be used to draft a new code.

R v Lambert [2001] UKHL 37

• Context: Reverse burden of proof in drugs legislation potentially conflicted with Article 6.
• What the court did: Read the legal burden as an evidential burden where possible, reducing the risk of unfairness.
• Why it matters: Section 3 can be used to safeguard fair trial rights by narrowing burdens on defendants, within the statute’s scheme.

Practical Applications

For litigators

• Always test whether a statutory provision can be read compatibly before seeking a declaration under section 4.
• Structure your section 3 argument:
  1. Identify the Convention right and the specific words causing the problem.
  2. Propose a precise compatible reading (show the actual words to be read in, read down, or chosen).
  3. Explain why your reading fits the scheme and purpose of the Act and does not contradict a fundamental feature.
  4. Address grammar and practicality: the court must be able to apply the text as interpreted.
  5. Offer an alternative route (section 4) if the court considers your proposal goes too far.
• Cite key authorities: R v A (No 2), Ghaidan, Bellinger, Re S, and Lambert. Use them to show both the reach and limits of the power.

For public authorities and tribunals

• Apply legislation in a Convention-compatible way as the default, documenting the reasoning.
• If you conclude a compatible reading is not possible, record why. This helps if the matter goes to court.

For judges

• Ask first: can a rights-compliant construction be achieved without rewriting the statute? If yes, adopt it.
• If not, consider section 4 and explain why interpretation cannot fairly deliver compatibility.
• Where relevant, consider whether subordinate legislation can be quashed (section 6) if it cannot be read compatibly and the parent Act allows for a compatible approach.

For drafters and advisers

• Flag provisions likely to trigger section 3 arguments and consider clarifying text to reduce litigation risk.
• Be aware that Explanatory Notes and statements of compatibility may be cited, but section 3 does not depend on ambiguity.

Common pitfalls

• Treating section 3 as optional: it is a duty, not a tie-breaker.
• Proposing an interpretation that creates a new administrative or judicial scheme.
• Ignoring the statute’s structure and purpose when suggesting words to read in.

Summary Checklist

• Section 3 applies to all legislation and all courts in the United Kingdom.
• Use it whenever legislation engages a Convention right, even if the text seems clear.
• A compatible reading may involve reading words in or down, but must not contradict the statute’s scheme.
• Ghaidan shows what is possible; Bellinger and Re S show the limits.
• In criminal cases, consider whether a narrower reading protects Article 6 without defeating the statute’s aim.
• If a compatible reading is not realistically open, consider a declaration under section 4.
• Section 3 does not invalidate Acts; Parliament retains the final say on reform.
• Record clear reasons whether compatibility is reached by interpretation or not.

Quick Reference