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Oxford Journal of Legal Studies (GB)/2004, Volume 24/Issue 2, June/Articles/The Elusive Divide between
Interpretation and Legislation under the Human Rights Act 1998 - Oxford J Legal Studies (2004) 24 (2): 259
Oxford Journal of Legal Studies
Oxford J Legal Studies (2004) 24 (2): 259
1 June 2004

The Elusive Divide between Interpretation and Legislation under the


Human Rights Act 1998
Aileen Kavanagh
University of Leicester. I would like to thank David Bonner, Margit Cohn and Richard Stone for extremely
helpful comments on an earlier draft of this paper
Oxford University Press 2004
Abstract In recent case-law under the Human Rights Act 1998, the senior judiciary have reiterated the view
that their task under section 3(1) of the Act is one of 'interpretation rather than legislation'. This article has
two main aims. The first is to provide a general, theoretical analysis of the extent to which it is possible (if at
all) to distinguish between interpretation and legislation. The second is to examine the judicial understanding
of this distinction, as revealed through judgements in the HRA case-law.
CONSTITUTIONAL LAW

1. Introduction
In the emerging case-law under the Human Rights Act 1998, 1 we are beginning to see how the senior judges
conceive of their role under the Act and how far they are willing to go in interpreting legislation claimed to be
incompatible with it. To a large extent, this is determined by their interpretative powers under section 3(1) of
the Act which provides 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 section is crucially important for a number of reasons. First, there is its democratic pedigree.2 As Laws
L.J. put it in Roth: 'The HRA 1998 now provides a democratic underpinning to the common law's acceptance
of constitutional rights, and important new procedural measures for their protection'. 3 Section 3(1) contains
'an emphatic adjuration from the legislature'4 as to how judges should carry out their adjudicative tasks under
the Act.5 The second reason for the
Oxford J Legal Studies (2004) 24 (2): 259 at 260

importance of the section is its legal pervasiveness. It applies to all legislation, whenever enacted, on any
subject-matter. The tentacular influence of the HRA is such that few areas of law have been left unaffected
by it.6 The third reason is its interpretative novelty within the British legal tradition, at least with regard to
human rights adjudication.7 It is well-established that section 3's 'far reaching new approach to the
construction of statutes'8 does not require any ambiguity or uncertainty in the statutory provision under

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scrutiny in order to come into operation.9 Moreover, the courts are required to 'take account of' the case law
of an international court--the ECtHR--in order to carry out this task. 10
Although a degree of consensus exists on the importance and novelty of section 3, judicial development of its
meaning and import is still ongoing. This is only to be expected given the new judicial tasks required by the
Act. Fully fledged doctrines of interpretation to flesh out the bones of section 3 will take more than two years
to become established. However, there are already signs that the judiciary are relying on a cluster of guiding
principles. Central amongst these is the idea that the proper role of the courts under section 3 is one of
interpretation rather than legislation.11 This principle is stated succinctly by Simon Brown L.J. in Roth: 'the
Court's task [under s 3] is to distinguish between legislation and interpretation, and confine itself to the
latter'.12 Similarly, in R v A Lord Hope warned that 'the rule [in section 3] is only a rule of interpretation. It does
not entitle the judges to act as legislators'.13 So, according to the senior judiciary, legitimate adjudication
under the Act is confined to the task of interpretation--if judges stray beyond this task and attempt to
legislate, they have adjudicated in an illegitimate way.
Reliance on the interpretation/legislation divide as a way of distinguishing legitimate from illegitimate
adjudication has received widespread judicial endorsement in the emerging case law under the HRA. 14 It is a
central plank of
Oxford J Legal Studies (2004) 24 (2): 259 at 261

the judicial account of their interpretative obligations under section 3. However, the usefulness of the
distinction as a 'litmus test'15 of legitimate judicial decision-making under the Human Rights Act depends on
where and how (if at all) one can draw a boundary between interpretation and legislation--a matter which has
received remarkably little academic analysis. The aim of this article is to fill in that analytical gap by
addressing two related issues. The first is to examine, as a general theoretical matter, the extent to which it is
possible to distinguish between 'interpretation' on the one hand and 'legislation' on the other. In this paper, I
argue that the activity of interpretation involves, rather than eschews, judicial law-making. However, this lawmaking ability is distinguished from legislative law-making because it is much more limited in scope and
effect than the latter. Whilst judicial law-making is accepted here as an inevitable part of the judicial function,
the limits of this function are nonetheless key to its legitimate exercise, as well as being key to understanding
the true import of the distinction between interpretation and legislation. Following on from this theoretical
analysis, I will examine the peculiarities of the interpretative obligation under section 3 of the HRA, with
particular focus on where the senior judiciary has located the boundary between (legitimate) interpretation
and (illegitimate) legislation under the Act.
Before approaching these tasks, one distinctive aspect of judicial interpretation under the Human Rights Act
needs to be mentioned at the outset. This is the fact that the HRA requires judges to answer not one but
three different interpretative questions. The first is 'how should they interpret the "section 3 imperative"?', 16
i.e. how should the courts understand the guidelines for interpretation provided by Parliament in section 3?
Second, 'how should the courts use section 3 to interpret other (primary and secondary) legislation?'. Finally,
'how should the judges interpret the Convention rights themselves?'. 17 Of course, in practice these three
questions will be closely related and interlinked. The way in which judges interpret section 3 determines, in
part, how they will use that section to interpret other legislation. Similarly, whether it is 'possible' under
section 3 to 'read and give effect' to ordinary legislation in a way which is compatible with Convention rights,
depends on how judges interpret those substantive rights and the relevant Strasbourg case law.
The theoretical characterisation of legal interpretation provided in this paper is general enough to capture
some core features of 'legal interpretation', regardless of whether the interpretative inquiry is focused on
section 3, ordinary legislation
Oxford J Legal Studies (2004) 24 (2): 259 at 262

or the Convention rights themselves. Indeed, this characterisation will be general enough to apply to all
statutory interpretation and is not exclusive to the HRA. However, it has particular relevance to the HRA
because of the importance attached to the distinction by the judiciary in elaborating on their role. Moreover,

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since the primary focus of the recent case-law has been on interpreting section 3 and how it applies to the
interpretation of other legislation, it is that line of interpretative inquiry which will be the primary focus here.

2. Interpretation: A Preliminary Analysis


If the interpretation/legislation distinction is to provide genuine guidance to judges in future cases, or equip us
to assess the legitimacy of judicial decisions arising under the Act, we need to get a clearer sense of what is
involved in the activity of 'interpretation' in order to distinguish it from 'legislation'. So, the task here is to
provide a general characterisation of some of the core features of legal interpretation. 18
We can begin by noting the following commonplace and uncontroversial claims about the interpretative
activity. First, when judges 'interpret' a legislative provision, their aim is to establish the meaning of that legal
provision.19 Second, judges cannot simply present their conclusion about what the provision means as their
interpretation of the legislation. Their conclusion is simply the outcome or upshot of an interpretation rather
than an interpretation itself. To constitute an interpretation, judges must provide reasons supporting that
outcome which show why they believe it to be correct. We may call the reasons supporting the interpretive
conclusion 'justifying reasons'.20 These are the reasons which help us understand the interpretation a judge
has adopted and his/her justification for it. Third, judicial interpretation generates the outcome of a case
litigated before them. Judges do not interpret laws purely out of intellectual interest. Their task is to find out
what is legally required, in order to decide the fate of the litigants who have brought a case to court. Thus,
judicial interpretations are instrumental to, and provide reasons for, the outcome of the case. So, there is an
important relationship between the justifying reasons and the meaning of the legislation: the reasons which
constitute the interpretation must depend on the content of the legislative provision under consideration. In
other words, the reasons for an interpretation must be generated by the terms of the legislation being
interpreted.
The question which now arises is 'what does it mean to say that a legislative provision generates or requires
a particular interpretation?'. In order to answer this
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question, it may help to look at some of the provisions of the Human Rights Act itself and the typical legal
questions arising under them. For example, Article 6(1) of the attached Schedule to the HRA provides that
'everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law'. A question then arose in a rape trial whether legislation barring the admissibility
of evidence as to a prior consensual sexual relationship with the defendant violated his right to a fair trial. 21
Similarly, Article 2(1) provides that 'Everyone's right to life shall be protected by law.' Judges were then asked
to decide whether this right to life included a right to self-determination, entitling a terminally ill patient to
commit suicide with assistance.22 Moreover, in many of the cases under the HRA, judges have had to decide
whether reading words or obligations into legislation falls within the task of 'reading and giving effect to'
legislation in a Convention-compatible way under section 3.
These examples illustrate the following general points. First, there is inevitable disagreement about what
these provisions mean and how judges should interpret them, regardless of whether the object of
interpretation is the Convention rights, domestic legislation or section 3 itself. This is due to another important
general feature of interpretation not yet mentioned, which is that there can be multiple plausible or valid
interpretations of the same legal provision.23 This is what many people mean when they say that something
is 'open to interpretation', i.e. that it is open to different understandings and different meanings. Interpretation
and interpretative pluralism go hand in hand.
The second general point is that the interpretative disagreements to which the provisions of the HRA give
rise, are linguistically irresolvable. We do not envisage judges who disagree about whether the Article 2 of
the Convention embodies a right to determine one's death, solving the issue by looking up the meaning of
'life' in the dictionary. Nor can any disagreement about what Article 2 provides be solved by reflecting
exclusively on the meaning of this word. The reason for this is that when judges disagree about the

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requirements of Article 2, they do not differ in their view about the literal meanings of 'life'--rather, they differ
in their moral views24 about what the right to life entails. Similarly, when judges disagree about whether it is
'possible' to render a legislative provision Convention-compatible under section 3, this will hinge on
evaluative judgements about the ambit and limits of the judicial role, the need to deliver a just result in the
instant case and the impact of their interpretation on other cases etc. Rather than looking to the conventions
of language, the judges will typically rely on various 'justifying reasons' in order to explain why their view
provides the best understanding of the legislative provision. These reasons will show why a particular
understanding of the provision is right or important. So, the level of meaning relevant in statutory
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interpretation is not literal meaning but what we might call 'deep meaning', 25 namely, that which cannot be
attained by purely linguistic means.
This leads on to a further point about interpretation, namely, that the deep meaning of a legislative provision
is typically not obvious.26 In other words, it is unclear, on the basis of the words of the legislative provisions
alone, what those provisions entail for the legal dispute at hand. The task of the interpreting judge is to
redress this, i.e. to make clear something which is not clear on the face of the legislation. Many legal
theorists have suggested that in such cases, the legislation is 'indeterminate'. 27 That is to say, the legislative
provision provides no particular solution or no single right answer to the question of how the court should
decide. The legislative terms themselves do not determine the answer to the legal question whether a right to
self-determination is entailed by the right to life. This view seems to be supported by Lord Bingham of
Cornhill when he stated in Brown v Stott28 that 'the language of the Convention is so general that some
implication of terms is necessary, and the case law of the European Court shows that the court has been
willing to imply terms into the Convention when it has judged necessary or plainly right to do so'. 29 It follows
that the meaning of legislative provisions is not contained within the text of those provisions, waiting to be
'discovered' by the interpreting judge. The justifying reasons, which constitute the interpretation, will
necessarily be drawn (in part) from evaluations not contained within the legislation. As Ronald Dworkin puts
it, the justification for the decision cannot be found 'within the four corners' of the legislation itself and 'must
be defended as principles of political morality'. 30
This point sheds light on a common objection to judicial activism. This is the claim that it is illegitimate for
judges to supplement or add content to legislation enacted by Parliament. We are told that the duty of the
judge is to declare the law as enacted by Parliament, rather than add new doctrines to its provisions. This
exhortation to judges to 'declare' the law, rather than add to it resonates with the classical picture of the
judicial function whereby the judge's task to apply the law to the facts, rather than create new law.
While the classical image has a considerable hold on our intuitions about the proper function of judges and
contains some truth, as a general characterisation of what judges do when they adjudicate legal disputes, it
is severely misleading. In the context of our discussion here, it cannot be reconciled with the legal
indeterminacy evident in the Human Rights Act. In some cases presented for resolution under the Act, the
only legal answer a judge could simply 'declare' is that the Act
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is indeterminate on the matter. So, for example, the court could simply declare that it is unclear on the face of
Article 2, whether it includes the claimed right to self-determination or not. Article 2 does not yield a
conclusive answer one way or the other. However, assuming that the parties have locus standi, judges are
obliged to resolve the case31 and cannot therefore arrest their inquiry at this point of 'declaration'. They are
obliged to go further and engage in the enterprise of interpreting that article, and the relevant legislation
alleged to be in violation of it. The reasons constituting this enterprise will be drawn from evaluative
considerations which must be added to the text by the interpreting judge in order to elucidate its meaning.

3. Interpretation and Evaluation

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If the meaning of the provision is not contained in the Act, waiting to be 'discovered' and 'declared' by judges,
then we need to know what sort of evaluations judges rely on in making their decisions. There are two
senses in which interpretations under the Human Rights Act largely consist in, and are driven by, evaluative
judgements. The first is what we might call an interpretative evaluation, the second is a substantive
evaluation. Interpretative evaluation engages the judge's views about the extent and limits of interpretation
itself. Under the Human Rights Act, this is largely a matter of understanding section 3(1) and, in particular,
the question of the limits of the 'possible' in obtaining a Convention-compatible interpretation. Substantive
evaluation refers to the kind of evaluation pertinent to the interpretation of human rights guarantees, such as
the Convention rights attached to the Human Rights Act. 32 Such guarantees typically guarantee certain rights
and proscribe certain conduct through the employment of broad evaluative terms, such as 'fairness', 'legality',
'privacy' or 'freedom'. The terms of these guarantees either directly incorporate moral precepts 33 or endorse
their application by reference to them through the enactment of very general standards. When the Human
Rights Act refers to those terms, the courts must decide by reference to an understanding of their moral
import and meaning. Judges who have to establish what is required by the legal guarantee of a fair trial
necessarily engage in moral reasoning about what is fair. So, when applying Article 6, judges must consider
the moral requirements of treating people fairly in a legal trial and how this can be achieved. 34 Judges cannot
avoid relying on moral argument in trying to elicit what this provision means. 35
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Under the Human Rights Act, judges are required to engage in both types of evaluation. The must resolve
the interpretative issue, by deciding how far they should go in trying to achieve Convention-compatible
interpretations. They are also duty-bound to consider the substantive issues to which the Convention refers.
Since the Convention rights are formulated in broad terms, the courts are given discretion to give these rights
concrete content in light of evaluative considerations, taking into account existing Strasbourg jurisprudence.
In other words, the Human Rights Act directs the courts to use their interpretative power in light of the
general instruction on interpretative method in section 3, as well as the broad terms of the rights-guarantees
contained in the Schedule.

4. Interpretation and Judicial Law-making


Having laid out some of the general characteristics of legal interpretation, we are now better placed to assess
what judges do when they interpret laws, and whether this involves judicial law-making. Clearly, the idea of
judge-made law is familiar to those who live in a common law system, where judges are legally entitled to
develop, modify, change and update the common law, through the techniques of distinguishing, extending
and overruling rules established in previous caselaw. There is now open recognition that 'law-making--within
certain limits--is an inevitable and legitimate element of the judge's role'. 36 But what about when they interpret
a law laid down by Parliament or indeed when they interpret legislation in light of the 'section 3 imperative'?
Are they also entitled to develop, modify and change the law in this situation? If so, is this type of legal
change part of the interpretive task or separate from it?
As characterised here, interpretation is an evaluative activity which goes well beyond the mechanical task of
'discovering' and then 'declaring' legal meaning. Since many of the provisions of the HRA will be
indeterminate on the issue to be decided in the instant case, judges will be obliged to engage in evaluative
reasoning both as to the proper extent of their interpretative power as well as the substantive meaning of the
human rights clause.
We can now add to this statement the fact that interpretation combines the activities of applying and making
the law. The judge applies the law because he/she strives to elicit the meaning of the provision laid down by
Parliament. Moreover, if there is a relevant precedent in point, the judge can apply the law by following that
precedent. But clearly, application of the law as it exists does not exhaust the possibilities open to the judge
interpreting the provisions of the HRA. Judges are legally entitled to depart from precedents when it is
inappropriate to follow them, or when it would lead to an injustice to the parties to the current dispute, or
where the established line of precedent is outmoded or irrelevant to current

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circumstances. Moreover, many of the cases arising under the Act will present a novel legal problem. 37 If
there has not been a case in point and the judge has to decide on the basis of legal provisions which may be
indeterminate on the issue, then the judge cannot decide the case without making new law. Of course, they
will search for analogous cases, or look for obiter dicta of previous judges which support their conclusion.
However, whatever material of this kind they adduce, there is no denying that judges who interpret legislation
drafted in broad, evaluative terms are inevitably drawn into the task of making new law.
This yields three important points about interpretation under the HRA. First: although the law which develops
under the HRA will be informed, shaped and limited by the terms of the Act itself, it will nonetheless be judgemade law.38 This is because Parliament has formulated the Act in broad terms, which inevitably require
elaboration by the courts in order to apply it to the circumstances of each new case. Second, even in cases
where judges apply existing law, they cannot avoid facing the question of whether to change and improve it. 39
They will always have to evaluate whether to conserve existing law or innovate it, weighing up the competing
considerations which pull in favour of each option.
Finally, the suggestion that interpretation involves a combination of applying existing law and developing new
law emphasises what has been referred to as 'the Janus-like aspect of interpretation'. 40 Interpretation faces
both backward, aiming to elucidate the law as it is, and forward, aiming to develop and improve it. So the
judge engaging in the interpretative enterprise must interpret the words of the legal provisions (and also any
relevant or analogous case law), but will also have to decide whether or how to develop the law in further
directions in order to decide the case at hand. Interpretation has an applicative and creative aspect.

5. Conservative and Innovative Interpretations


The question which now arises concerns the factors or considerations a judge should employ when deciding
whether to apply the law as it exists or develop it in order to improve it or do justice to the parties. 41 Clearly,
the outcome of the evaluation will vary from case to case. In some cases, there will be stronger reasons in
favour of preserving an existing line of authority or deferring to the current legal position as expressed in an
Act of Parliament. In others, there will be stronger reasons to innovate and change the law.
Oxford J Legal Studies (2004) 24 (2): 259 at 268

Among the reasons in favour of conservation will be the values of legal continuity and stability.42 When
adjudicating, the courts should ensure coherence of purpose in the law and should integrate ongoing
legislation with underlying legal doctrine. They have a role in providing stability and continuity in the legal
structures and the basic principles which guide those structures, and this is especially important in relation to
constitutional matters. Another reason in favour of conservation concerns the importance of legal authority. In
other words, judges are interpreting and applying the law laid down by the supreme law-making body i.e.
Parliament, and they must respect that law.
In the HRA, Parliament has chosen to enact a human rights document in broad, general terms which
sanctions judicial discretion to flesh out its content in individual cases. This means that, through the HRA,
Parliament has given the courts 'directed powers':43 i.e. powers to develop the law within the framework set
out by the Act, subject to duties prescribing the ends which must be served by the exercise of the powers, i.e.
ends prescribed in the statute itself. However, since these 'ends' are also described in general terms and do
not set out a conclusive answer to many of the cases arising for decision before the higher courts, then
respect for the legal authority of Parliament will not necessarily lean in favour of conservation of established
principles. When the terms of a statute laid down by Parliament are indeterminate, there will be continuity
between application and development of the law and the borderline between the two will be difficult if not
impossible to ascertain in particular cases.44

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However, considerations of continuity, stability and authority of law are not the only relevant ones in legal
interpretation. Judges are also under a duty to arrive at a just decision for the parties in the instant case. This
is why equity has an inescapable role in the interpretation of laws: the application of general rules or
principles to specific cases should be mediated by equity, in order to ensure that no injustice results from
their application.45 Parliament sometimes enacts statutes in broad, evaluative terms for precisely this reason,
namely, in order to allow the courts to apply it in particular cases. This provides a (stable) legal framework,
but allows the courts to ensure that it is justly applied in the circumstances of different cases.
The values of equitable application of the law and legal development are evident in those cases under the
HRA which have gone down the innovative rather than conservative road. Thus, in R v A the courts were
asked to consider whether the exclusion of evidence of previous (consensual) sexual relations between the
defendant and complainant under section 41 of the Youth Justice and Criminal Evidence Act 1999
contravened the defendant's right to a fair trial.
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Although it was agreed that allowing such evidence to be admitted would require some straining of the
ordinary meaning of the words, Lord Clyde commented that
If a case occurred where the evidence of the complainant's sexual behaviour was relevant and important for the
defence to make good a case of consent, then it seems to me that the language would have to be strained in order to
avoid the injustice to the accused of excluding from a full and proper presentation of his defence.46

So, while Lord Clyde was aware of the disadvantages of 'straining the language', he considered the reasons
in favour of innovating the law (namely, the requirement of doing justice to the parties to the dispute) to have
a stronger force in the circumstances of that case. The judicial dilemma in R v A exemplifies the tension
between the values underlying legal conservatism (namely authority, continuity and stability) on the one
hand, and legal innovation on the other (just application of the law and legal development). Judges have a
duty to consider and balance these two sets of values (which may sometimes be in tension with each other),
and give them appropriate weight in accordance with the circumstances of every case.
It is perhaps worth noting that many judges who opt for an innovative rather than conservative interpretation
do so whilst simultaneously emphasising the fact that the resulting interpretation comports with the values of
legal authority and continuity to some degree.47 Thus, in the same case, Lord Steyn came to the same
conclusion as Lord Clyde on the facts, but emphasised that his conclusion was fully endorsed by the words
of the HRA and the intention of Parliament:
in accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an
interpretation which linguistically may appear strained ... After all, it is realistic to proceed on the basis that the
legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and
complete defence by advancing truly probative material.48

Examples of judicial reliance on this type of counterfactual suggestion (i.e. that Parliament would have
intended the Convention-compatible outcome if they had directed their minds to it, or been aware of the
circumstances of this case etc.) are not difficult to find in the HRA case-law.49 They show that even when
judges engage in innovative decision-making, they are still concerned to preserve the values of continuity,
authority and stability to the greatest degree possible.50
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Where a degree of reconciliation between the values underlying conservation and innovation is possible, or
where it is possible to favour one whilst causing no substantial incursion on the other, it is legitimate for
judges to point to this and use it in support of their decision.

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6. The Distinction between Judicial Law-making and Legislation


So far, it has been argued that legal interpretation under the Human Rights Act typically involves a mixture of
law-applying and law-creating. The question now is how this analysis bears on the motivating question of the
article, namely, 'what does it mean to say that judges adjudicating under the Human Rights Act should
interpret rather than legislate?'. It has two important consequences.
First, it implies that if what is meant by this statement is that judges should simply apply existing law, rather
than create new law, it is an impossible recommendation. The terms of the Human Rights Act are
indeterminate and thus require the exercise of judicial discretion to flesh out the framework set out by
Parliament in those provisions. Judicial creativity is a necessary part of that discretionary power. However,
not only is the avoidance of this type of creativity impossible, it is also undesirable. An attempt to apply
existing law as it is in every case would lead to profoundly unjust results. One cannot have general rules the
application of which will not occasionally lead to injustice, if not mitigated by equitable considerations.
Moreover, it would undermine the purpose of framing human rights guarantees in broad, general terms,
namely, to provide a stable framework for the protection of human rights whilst simultaneously facilitating the
gradual legal development of the law and its equitable application in different and sometimes unforeseeable
circumstances. So, whatever it means to say that judges should 'interpret rather than legislate', it cannot
mean that judges should avoid legal creativity altogether. This is neither possible nor desirable.
Second, if the dichotomy between interpretation and legislation depends on being able to distinguish
between law-applying and law-making in particular cases, its usefulness is doubtful. Due to the
indeterminacy of the provisions of the Human Rights Act with regard to many of the disputes arising under it,
the line between application of the law and its development will be difficult if not impossible to discern in most
cases.51 While the two activities are conceptually distinct, in practice they are closely interwoven in judicial
interpretations, especially in cases where the terms under interpretation are indeterminate. In most cases,
the line between applying the law and creating new law will be imperceptible or blurred.
The key to a better understanding of the principle that judges should 'interpret not legislate' is the fact that the
'interpretation/legislation' slogan does not
Oxford J Legal Studies (2004) 24 (2): 259 at 271

refer to judicial law-making but to legislation. So although the judicial law-making function is fully
acknowledged here, it is nonetheless a more limited activity than legislation, i.e. the legislative ability of
elected representatives.52 These limitations are the key to understanding the interpretation/legislation
dichotomy.
As it has been presented thus far, interpretation is an evaluative and creative activity which involves the
balancing of values such as continuity and stability on the one hand, and equity and legal development on
the other. From this, it seems plausible to suggest that many of the considerations in judicial decisions are
exactly those which a legislator must consider when enacting new legislation. However, one crucial
difference between legislation and judicial law-making under the HRA is that when judges make law, they
must do so by way of interpretive reasoning. This means that they cannot approach a legal question in a
purely forward-looking way. They are also obliged to look back at and take account of the pre-existing legal
frameworks and standards set out by Parliament and previous judges. The interpretative task must take
place within those boundaries. As Lord Bingham of Cornhill put it in Brown v Stott with reference to
interpretation of the text of the Convention53:
In interpreting the Convention, it is generally to be assumed that the parties [who signed the Convention] have included
the terms which they wished to include and on which they were able to agree, omitting other terms which they did not
wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the
express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken
to secure

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Legislators, on the other hand, are entitled to make law simply on the basis that they think it to be desirable
or beneficial and are entitled to create new frameworks or radically alter existing ones. Judges are
constrained by the wording and principles as laid down by Parliament and should make their decisions within
the framework set out by them. While judges can look forward towards possible reform, they are nonetheless
obliged to also look backward at the terms of the legislation under scrutiny, as well as the existence and
import of existing precedents. Much of judicial law-making occurs by way of filling in gaps in the existing
legislative framework, resolving legal disputes through the application of general legislative provisions to
particular circumstances. The ambit of legislative lawmaking is not so circumscribed.
Moreover, legislators can decide to reform a whole area of the law in a root-and-branch fashion. Such radical
and broad-ranging reform is generally not open to judges. This is partly due to the way in which they come to
make their decisions, and partly due to limits of their expertise. In contrast to legislators, who have almost
unrestricted choice in the areas of the law they can change or
Oxford J Legal Studies (2004) 24 (2): 259 at 272

improve, it is not open to judges to tackle any legal area they wish: they are limited in the decisions they can
make by the vagaries of litigation. Even when a case comes before them, the issues are presented in the
form of a bivalent dispute on a particular aspect of the law. They are confined to resolving that particular
issue. If they stray beyond those confines, their pronouncements may be obiter and therefore not binding on
future courts. Rarely does a case encompass an entire area of law, or allow for possible radical reform of that
area.54 The fact that judges must operate within existing legal structures and can only make law on a caseby-case basis in response to the accidents of litigation makes it difficult for them to provide a blueprint of
reform for an entire area of the law. So judges possess the power to engage in partial and piecemeal reform,
if at all, i.e. reform in one aspect of the application of the law.55 They do this by extending existing doctrines,
adjusting them to changing circumstances or introducing small alterations to avoid an injustice in their
application which may not have been envisaged by the legislator.
The fact that the judicial law-making power is an incremental rather than radical one, places limits on the
ability and willingness of judges to reform the law. This is due, in part, to the shortcomings of partial or
piecemeal legal change, namely, that it might cause discordance or confusion in the area of law concerned.
This worry formed the basis of the House of Lords decision in Bellinger v Bellinger56 where the court declined
to interpret section 11 (c) of the Matrimonial Causes Act 1973 to include single-sex marriages when one of
the parties has undergone a gender reassignment. Giving the leading judgement in the case, Lord Nicholls
explained that
The recognition of gender reassignment for the purposes of marriage is part of a wider problem which should be
considered as a whole and not dealt with in a piecemeal fashion. There should be a clear, coherent policy. The decision
regarding recognition of gender reassignment for the purpose of marriage cannot sensibly be made in isolation from a
decision on the like problem in other areas where a distinction is drawn between people on the basis of gender. These
areas include education, child care, occupational qualifications, criminal law.57

Therefore, it was preferable to leave the issue to be reformed by Parliament so that it can be done in a
comprehensive fashion, rather than by means of piecemeal, incremental steps.
Another constraint on judicial law-making is contained in the precedents of the higher courts. Of course, even
in a system that operates the practice of stare
Oxford J Legal Studies (2004) 24 (2): 259 at 273

decisis, judges will be allowed to overrule or depart from or modify (distinguish) a previous decision.
However, it is nonetheless clear that relevant precedent is one of the key considerations which judges (but
not legislators) must take into account when making a judicial decision. They are obliged to give serious
consideration to a relevant precedent, even if they wish to ultimately overrule it. If they choose the option of
overruling, this must be supported by good reason and strong justification.

Page 11

Clearly, these limitations on judicial power to make law are reasonable given the qualifications and training
that judges possess, together with the way they receive and assess the information on which they base their
judgements.58 Judges are neither well-placed nor qualified to have an overview of an area of law that may
require a radical policy change and has various economic and social implications. Nor are they in a position
to assess or gain access to the disparate views amongst relevant parties and interest groups about the
perceived consequences of a particular policy initiative. Judges are trained to resolve legal problems that
arise within the narrow confines of a bivalent dispute about how the law applies to particular facts. They are
ill-equipped to make decisions of general policy that may require the reconciliation and balancing of a broad
range of conflicting interests and viewpoints.
Judicial awareness of their limitations in this regard, as well as fear of the consequences of making incorrect
decisions have tended to operate as a constraint on the judicial creativity under the Human Rights Act. The
senior judiciary have been keen to stress that there is some subject-matter (sometimes referred to as issues
involving 'legislative policy decision'59) where 'the courts must treat the decisions of Parliament as to what is
in the public interest with particular deference'.60 So, if a decision includes policy considerations about which
the judges have limited knowledge or expertise, or if they have multi-faceted social and economic
implications, they will tend to defer to the superior wisdom of Parliament. 61
In light of this analysis, we can now see that the instruction to judges that they should 'interpret rather then
legislate' refers to the fact the judicial task is not one of radical reform in a large area of the law, carried out
with reference only to forward-looking concerns about the desirability of reform. When making law, judges
must also look backwards at, and be constrained by, the terms of the legal provisions set out by Parliament
as well as general legal standards. So, the proper clarification of the interpretation/legislation distinction is
made by demarcating the province of judicial creativity, while not denying that judges make law. Rather than
concentrating on the difference between applying and
Oxford J Legal Studies (2004) 24 (2): 259 at 274

making law, the key to this demarcation lies in the distinction between judicial and legislative law-making.
In order to get a clearer idea of where the boundary lies in the UK under the Human Rights Act, we now need
to examine its provisions, as well as the judicial understanding of them.

7. The Stages of Interpretation under Section 3(1) HRA


With the enactment of the Human Rights Act, judicial powers to protect human rights have been substantially
increased.62 The key provision setting out their terms of reference for scrutinising primary and secondary
legislation is section 3(1). Written in 'forthright and uncompromising language', 63 it provides that:
So far as it is possible to do so, primary legislation and secondary legislation must be read and given effect in a way
which is compatible with the Convention rights.

This is supplemented by section 2 which provides that, in interpreting Convention rights, they must 'take
account of' (though are not bound by) Strasbourg jurisprudence and also section 4 which provides that if a
Convention-compatible reading of legislation is impossible, then the courts can issue a 'declaration of
incompatibility', which has political rather than legal force.
Under the Human Rights Act 1998, the judge's interpretative task can be broken down into two main stages.
First, judges must establish whether legislation is prima facie compatible with Convention rights, i.e. 'whether
on its face the provision under scrutiny is compatible or incompatible with the Convention rights'. 64 We can
call this stage the natural interpretation, i.e. the legal interpretation of the legislative meaning which conforms
with its ordinary and natural meaning, including the legal meaning which would normally be attributed to it. At
this stage, if the legislation (as ordinarily understood) is compatible, then no further issue arises under the
HRA.

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However, if apparent incompatibility exists, then a further interpretative duty under section 3 is engaged.
Judges are then instructed to see if it is 'possible', despite appearances, to read and give effect to the
legislation in a way which is nonetheless compatible with Convention rights. We can call this the
transformative interpretation, namely an interpretation which has as its goal the achievement of Conventioncompatibility. As Lord Hope put it in R v A: 'Compatibility with Convention rights is the sole guiding principle
[of section 3(1)]. This is the paramount object which the rule seeks to achieve'. 65
Oxford J Legal Studies (2004) 24 (2): 259 at 275

So, judges have both a negative and a positive task under section 3(1). They have the negative task of
identifying a possible infringement of Convention rights, but also the positive task of seeking to find ways of
removing that infringement. In traditional constitutional theory, the task of judges carrying out constitutional
judicial review of human rights guarantees is thought to be negative, with Parliament performing the positive
task of laying down policies to regulate the rights-guarantees and removing any infringements. 66 However,
under the Human Rights Act, judges are asked to carry out both negative and positive functions. They have
to identify whether an infringement of Convention rights may have occurred, but they are then empowered to
rectify the situation by removing the infringement through the interpretative process. They are asked to
render a seemingly incompatible piece of legislation compatible with Convention rights, if this is 'possible'.
Since there is no elaboration in the Act as to the bounds of the possible, judges have come up with various
suggestions as where the 'outer limits'67 of this broad instruction lie. We will now turn to examine these
suggestions, analysing in particular where these limits coincide with, or exceed the boundary between
interpretation and legislation.

8. Judicial Interpretations: Express and Implied Limits of the 'Possible'


We can begin with a point of judicial consensus. This is that a 'possible' meaning of legislation is not
necessarily its ordinary meaning. So, in Kebilene, Lord Cooke of Thorndon was prepared to accept an
interpretation as a possible meaning,68 even though he agreed that 'such is not the natural and ordinary
meaning of [the relevant section]'.69 Similarly, the majority in Lambert were prepared to give the legislative
provision under scrutiny a meaning which was 'not the most obvious way to read [the section]'. 70 Although 'on
its ordinary and natural meaning' the section violated Article 6(2) of the Convention, this did not prevent the
judges from finding a possible Convention-compatible meaning. 71
A second uncontroversial point is that the search for a 'possible' meaning is not unlimited. 72 In determining
the limits of the 'possible', the judiciary have stressed repeatedly that compatibility cannot be achieved by
judicial creativity if to do so
Oxford J Legal Studies (2004) 24 (2): 259 at 276

would contradict the express meaning of the impugned legislation. In R v A, Lord Hope encapsulated this
outer limit in the following way:
Compatibility can only be achieved as far as this is possible. Plainly this will not be possible if the legislation contains
provisions which expressly contradict the meaning which the enactment would have to be given to make it
compatible.73

So, where there is an outright contradiction between the words enacted by Parliament and the terms of the
Convention rights, then judges cannot 'read or give effect' to those terms in a way which resolves that
contradiction. Going against the express words of the statute would go beyond judicial interpretation and
enter the realm of judicial legislation.
This position is endorsed by all judges without exception. More controversial however is whether express
contradiction in the terms of the legislation is the only limit on a 'possible' interpretation under section 3. In

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particular, the question arises whether it would be possible where the Convention was not contravened in
express terms, but rather by the legislation's necessary implications. Could such an incompatibility with the
Convention be rescued by the novel interpretative device of section 3?
Lord Steyn's comments in R v A seem to provide a positive answer to this question, since they support the
view that the only limit on judicial creativity under section 3 is clear incompatibility in terms. In that case, he
began his analysis of section 3 by pointing out that, when drafting the HRA, Parliament specifically rejected
the New Zealand legislative model whereby judges must find a 'reasonable interpretation' and decided in
favour of the much broader category of 'possible interpretation'. 74 Furthermore, he noted the statements of
the Lord Chancellor in Hansard that it should be 'possible' for the courts to find a Convention-compatible
interpretation 'in 99 per cent of the cases that will arise', 75 and that the declaration of incompatibility under
section 4 is a measure of last resort. It followed, according to Lord Steyn, that section 3 allows judges to
occasionally 'adopt an interpretation which linguistically may appear strained' 76:
[A declaration of incompatibility] must be avoided unless it is plainly impossible to do so. If a clear limitation on
Convention rights is stated in terms, such an impossibility will arise.77

This seems to suggest (indeed seems to emphasise) that section 3 can and should be used to find a
Convention-compatible reading, unless the express terms of the legislation are incompatible with it. 78
Oxford J Legal Studies (2004) 24 (2): 259 at 277

This position seems to be in tension with Lord Steyn's more recent comments in R v Secretary of State, ex
parte Anderson.79 In that case, Lord Steyn stated that 'Section 3(1) is not available where the suggested
interpretation is contrary to express statutory words or is by implication necessarily contradicted by the
statute'.80 In support of this proposition, he cited Lord Nicholls in Re S who asserted that 'Lord Steyn's
observations in R v A (para 44) should not be read as meaning that a clear limitation on Convention rights in
terms is the only circumstance in which an interpretation incompatible with Convention rights may arise.' 81
So it now seems that Lord Steyn accepts a more limited reading of his comments in R v A than he seemed to
endorse at that time. Whether this constitutes a shift in general position, or a pragmatic shift due to the
different circumstances of R v A and Anderson, is difficult to say. As stated in Anderson, Lord Steyn's position
now appears to be in line with that of Lord Hope who is plainly of the view (which he stated clearly both in R
v A and Lambert) that a section 3 interpretation of primary legislation would be impossible, not only in the
case of express incompatibility, but also where it exists by 'necessary implication'. 82
Neither Lord Hope nor Lord Steyn have given any indication what they mean by this phrase in the context of
section 3. It seems that 'necessary implication' must mean something different from the ordinary or general
implications of legislation. Section 3 clearly allows judges to go against the 'ordinary meaning' or 'natural
meaning' of a legislative provision and transform it into a Convention-compatible one. Although they cannot
contradict the express words or change them to suit a Convention-compatible result, they are allowed to
change the implication of those terms. So, if it is implied (though not expressly stated in the legislative
provision) that 'burden of proof' refers to a legal rather than evidentiary burden of proof, then judges are
entitled under section 3 to specify that it should be interpreted to refer to an evidentiary burden in order to
achieve compatibility with Convention rights, as was in fact supported both by Lord Hope and Lord Steyn
when that issue arose in the Lambert case. The ability to change what is implied by the express terms is due
to the fact that to engage section 3 in the first place, there has to be a prima facie or apparent incompatibility.
This will normally be the case where the implications of general legislative provisions are such that they
violate the Convention. To deny the judicial ability to change implied meaning would undermine the whole
point of section 3.
Given this fact, the most plausible way of reading Lord Hope's comments and Lord Steyn's recent support of
them, is to understand 'necessary implications' as referring to those implications which are so integral to a
legislative provision or series of provisions, that they could bear no other meaning. In other words, its implied
meaning is necessarily incompatible with the Convention even if this is
Oxford J Legal Studies (2004) 24 (2): 259 at 278

Page 14

not stated in terms. The circumstances of the Anderson case might provide an example of a provision whose
'necessary implications' violated the Convention, and was not subjected to the transformative interpretation
under section 3. In that case, it was alleged that section 29 of the Crime (Sentences) Act 1997 violated Article
6 of the Convention because it allowed the Home Secretary to decide how long convicted murderers should
spend in prison for purposes of punishment. It was decided that since the Home Secretary is not
independent of the Executive and is not a tribunal, his decision-making power was not that of 'an
independent tribunal' within the meaning of Article 6. Such matters should be dealt with by a court of law.
It was argued that section 29 could be read subject to a condition that the Home Secretary should always
defer to the judicially recommended tariff. Although this was not precluded by the express words of the
section, this transformative interpretation was rejected by the judges because 'it would give the section an
effect quite different from that which Parliament intended and would go well beyond any interpretative
process sanctioned by section 3'.83 The point of the section was to entrust the decision to the Home
Secretary, who was free to follow or reject judicial advice. Although one could remain within the express
terms of this section and effectively eradicate any real decision-making power by the Home Secretary, such
an 'interpretation' would go against the necessary implications of the section because it entails that the Home
Secretary is not obliged to accept the recommendation of the judiciary as to tariff. 84 A better solution in that
case was to simply declare it incompatible with the Convention, with the hope that the legislature would
respond by an appropriate legislative amendment.
This understanding of 'necessary implications' seems to accord with Lord Steyn's other comments in
previous cases, as well as his practice of employing section 3 in a creative way. He considers the narrowing
down or addition by extension of the express terms of legislation (contrary to implied meaning) to be part and
parcel of the interpretative obligation under section 3. As he emphasised in R v A, the techniques endorsed
by that section 'will not only involve the reading down of express language in a statute but also the
implication of provisions'.85 It should be noted that even when the application of a broad provision is narrowed
so that it has a more limited range of application, this may itself involve implication of phrases into legislative
provisions.86
While this view of 'necessary implications' can also be attributed to Lord Hope, he is clearly unsettled by the
'reading in' and 'reading down' which has been adopted more wholeheartedly by some of his colleagues on
the bench. He plainly favours a more cautious approach which would bring about as little alteration or
modification of primary legislation as possible. In this vein, he has suggested that
Oxford J Legal Studies (2004) 24 (2): 259 at 279

in many cases, it may be sufficient 'simply to say what the effect of the provision is without altering the
meaning of the words used'.87 In other cases, 'the words used will require to be expressed in different
language in order to explain how they are to be read in a way that is compatible. The exercise in these cases
is one of translation into compatible language from language that is incompatible'. 88
While it is certainly true that some cases will require relatively little judicial creativity in order to establish
Convention-compatibility, this will not apply across the board. Moreover, it is difficult to see how the
seemingly tame techniques described by Lord Hope, do not in fact involve some implication of new meaning
that the words, as ordinarily understood, would not otherwise have. Recall that section 3 is only engaged
when the ordinary meaning of the legislative provision is apparently or prima facie incompatible with the
Convention. Whatever the metaphorical appeal of referring to the judicial task under section 3 as one of
'different expression' or 'translation', it is still the case that judges are required to attribute to the provisions a
meaning which is different from its ordinary and natural one. In other words, judges under the Human Rights
Act are legally entitled to alter the meaning and effect of legislation because they are instructed by section 3
to render a seemingly incompatible provision, compatible with Convention rights. So much is in fact
acknowledged by Lord Hope when he concedes that in a case like Lambert, it may indeed be necessary for
words to be 'read in' to arrive at a compatible provision. 89
To summarise the preliminary judicial position on section 3 outlined here, we may draw the following

Page 15

conclusions, which seem to be endorsed by the senior judiciary. Contradicting the express words of the
provision or re-writing them so that they state the opposite of what they originally stated involves legislation.
Changing its implied meaning, and adopting a meaning which is different from its 'ordinary and natural
meaning' is part of the interpretative task under section 3. This latter activity may include narrowing down the
ordinary meaning, or changing/extending it through additional words or phrases. The meaning can be
contracted or enlarged (thus necessarily changing the 'effect' of the legislation) but it cannot contradict the
express wording of the section. If an incompatibility with the Convention is not contained in the express terms
of the legislation, but is rather inherent in its necessary implications, then it may be impossible to use section
3 to eradicate this incompatibility. Resort to section 4 may be the only option in such a case.

9. Partial versus Radical Reform: The Limits of Judicial Law-making


There may be other considerations which will have an impact on judges in deciding whether a section 3
interpretation of legislation is possible. In exploring
Oxford J Legal Studies (2004) 24 (2): 259 at 280

the further limits on judicial innovation, we can take as a starting-point the statement of Lord Hope in
Shayler90:
The techniques of judicial interpretation on the one hand and of legislation on the other are different, and this fact must
be respected. If incompatibility ... would make the statute unintelligible or unworkable, it will be necessary to leave it to
Parliament to amend the statute.

We can elaborate on this terse statement in light of the theoretical analysis provided in the first part of this
article. We noted there that while legislation can be purely forward-looking, judicial interpretation is also
informed and constrained by existing legal frameworks, either legislative or case-based. These factors give
rise to the difference of technique between judicial interpretation and legislation adverted to by Lord Hope. As
we have seen, judges lack the opportunity (and occasionally the expertise) to engage in widespread, radical
reform of an entire area of law. The judicial choice is often between conservation of the existing legal position
or innovation in some small, partial aspect of it. The problem is that partial reform can create too much
discordance in the law as a whole, or may thwart the whole purpose of the legislation.
In this statement from Shayler, Lord Hope shows an awareness of these dangers, as well as the way in
which they place limits on the ability of judges to reform the law in the human rights area. While judges may
be entitled to 'read in' certain phrases to render a statutory provision Convention-compatible, they cannot do
so if this will upset the fundamental workings of the Act as a whole, or render it unintelligible. As we saw
earlier, judges have an obligation to maintain continuity in the law and ensure that judicial doctrine binds
disparate legislation together.
Similarly, Lord Justice Simon Brown decided that the particular transformative interpretation advanced by the
claimants in Roth was not possible under section 3, for the reason that:
the troubling features of the scheme are all interlinked: to achieve fairness would require a radically different approach.
We cannot 'turn the scheme inside out'. As the authorities clearly indicate, the Court's task is to distinguish between
legislation and interpretation, and confine itself to the latter. We cannot create a wholly different scheme so as to
provide an acceptable alternative means of immigration control. That must be for Parliament itself. 91

So, while it is possible for judges to 'read in' a word or phrase which could give a particular provision a
Convention-compatible meaning, they cannot effectively 're-write' 92 the whole statute. In Roth, the
interpretation sought by the claimants would so subvert the interlinked terms and purpose of the statute that
the judge could not rescue the incompatibility by the insertion of a word or
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Page 16

phrase in one particular provision. To 'recreate' the scheme anew would involve the technique of legislation
rather than that of interpretation and therefore should be left to the legislative domain.
The dangers inherent in partial judicial reform were also raised in Re S, Re W,93 where Lord Nicholls made
some general statements about the boundary between interpretation and legislation 94:
a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the
boundary between interpretation and amendment. This is especially so where the departure has important practical
repercussions which the court is not equipped to evaluate. In such a case, the overall contextual setting may leave no
scope for rendering the statutory provision Convention compliant by legitimate use of the process of interpretation. The
boundary line may be crossed even though a limitation on Convention rights is not stated in express terms. 95

In that case, he refused to follow the transformative interpretation proposed by the claimants, since it went
against the 'cardinal principle' of the impugned Act. Even though he thought there was a 'pressing need for
the Government to attend to the serious practical and legal problems identified by the Court of Appeal', 96 he
felt that this reform could not be brought about by judicial interpretation under section 3. The technique of
legislation was a more appropriate forum for law reform. So if the rationale of the Act rests on a 'fundamental
feature' or fundamental principle, and this principle is expressed in various provisions throughout the Act,
then the courts will be unable to rescue an incompatibility resting on this feature without re-writing the
legislation.
This sheds light on Lord Woolf's comments in Poplar Housing that 'if it is necessary in order to obtain
compliance to radically alter the effect of the legislation this will be an indication that more than interpretation
is involved'.97 The key word here is 'radical'. If the transformative interpretation brings about a radical change
in the legislative framework, such that it undermines the fundamental rationale of the Act as expressed
throughout its various provisions, then it may not be possible to rectify through the interpretative power under
section 3. It will be a matter for Parliament.
Finally, a further limit acknowledged by Lord Nicholls concerns the issue of judicial expertise and its proper
limits. As he pointed out, even if the court could engage in partial reform of a particular provision, this may
have important practical repercussions which may be difficult for the court to evaluate. In such cases, where
judicial access to all the relevant information is limited, or where their
Oxford J Legal Studies (2004) 24 (2): 259 at 282

traditional expertise runs out, there is good reason for judicial caution, in order to avoid doing more harm
than good through their interpretative powers.

10. Amendment: An Exclusively Legislative Act?


In tandem with the suggestion that judges should 'interpret rather than legislate', is the related claim that
judges should interpret existing legal provisions, rather than amend them. 98 The following statement of Lord
Hope in Lambert typifies such claims:
the interpretation of a statute by reading words in to give effect to the presumed intention must always be distinguished
carefully from amendment. Amendment is a legislative act. It is an exercise which must be reserved to Parliament. 99

However, other comments made by him in the same judgement seem to be in tension with this claim, and
call for some reconciliation. Referring to the technique of 'reading in' words to a statute, or adopting a
meaning other than the ordinary and natural one he stated:
Great care should be taken when a different meaning is selected from the ordinary meaning, to identify precisely the

Page 17

word or phrase which, if given its ordinary meaning would otherwise be incompatible.100

He added that judges should be as careful as parliamentary draftsmen:


It ought to be possible for any words that need to be substituted to be fitted in to the statute as if they had been inserted
there by amendment. If this cannot be done without doing such violence to the statute as to make it unintelligible or
unworkable, the use of this technique will not be possible. It will then be necessary to leave it to Parliament to amend
the statute and to resort instead to the making of the declaration of incompatibility.101

Clearly, his first statement that judges should be careful and precise about which part of a legislative
provision is incompatible with the Convention is sound advice to judges operating under the Human Rights,
in order to minimise any legal uncertainty which may arise as a result of a transformative interpretation.102 His
second statement on the technique of 'reading in' words or phrases to legislation makes it seem remarkably
like the process of legislative amendment. After all, these words should be read in 'as if they had been
inserted there by amendment', and they should do so with the precision and clarity of a parliamentary
draftsman.
Oxford J Legal Studies (2004) 24 (2): 259 at 283

We are presented here with two seemingly contradictory statements. On the one hand, we are told that
judges should not amend legislation--that is the exclusive domain of Parliament. On the other, we are told
that judges should act like parliamentary draftsmen who should insert words 'as if they had been inserted
there by amendment'. How (if at all) are the two to be reconciled?
The first point to bear in mind when attempting this reconciliation follows from the theoretical analysis offered
in the first part of this article. Just as judges make law, they also necessarily change law, improving some of
its aspects, correcting its flaws or shortcomings, updating it so that it can be applied in a just manner to
contemporary problems and issues. Judicial law-making involves judicial change of the law and this applies
as much to law made through the interpretation of statutes, as it does to the common law. 103 However, when
judges interpret statutes, they are not entitled to change the wording of the legislation and substitute their
own. Any change, improvement or development they wish to carry out must be done within the framework of
the existing legislation and they cannot change the terms of the legislation itself. The word 'amendment' is
normally reserved for the latter activity, i.e. change in the wording of the provision in order to improve it or
rectify some shortcoming. So, the traditional boundary between judicial development of the law and
legislative amendment, is that the former involves legal change (often change in legal doctrine) within the
boundaries of the legislative provisions, whereas the latter involves legal change of the legislative provisions
themselves.
The question which now arises is whether this traditional boundary is crossed in the course of some of the
transformative interpretations under section 3 of the HRA. We have seen that judges cannot carry out their
duty under section 3 without changing the ordinary meaning of legislation to a Convention-compatible
meaning. To this end, the judiciary have deemed it 'possible' to read down clauses so that they have a
narrower application, or to 'read in' words or clarifications to make the provision Convention-compatible. This
latter activity is the same as those types of legislative amendment which change a statute by inserting a word
or phrase. So it seems that section 3 authorises a form of judicial amendment of statutory material. At the
very least, we can say that the line between judicial development of the law and 'amendment' in the
traditional legislative sense, is blurred under the Act.
It is worth noting however that when such 'amendments' are carried out by judges, they do not have the
same status as a legislative amendment. In other words, the legal change is not thereby 'enacted' into the
legislation never to be changed again until Parliament decrees. Rather, it is part of the judicial elaboration of
the law, and as such is subject to revision and change in future cases. Clearly, such revision could only be
carried out if there were strong reasons to
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Page 18

do so in the circumstances of a new case.104 However, the revisability of the transformative interpretation
under section 3 is a significant difference between it and the process of legislative amendment. 105 The
difference pertains to the status of the legal change rather than the activity itself.
As it is now understood by the judiciary, section 3 authorises a limited form of judicial amendment of
legislation. This fact seems to be acknowledged in the judgement of Lord Hope in Lambert, where he
emphasises that judges must carry out that task with due caution and precision, ever mindful of judicial
limitations. If the legislation can be rendered Convention-compatible by the insertion of a word or phrase in a
discrete legislative provision, then this is legitimate under section 3. If on the other hand, the insertion upsets
the whole balance and framework of the statute or subjects it to internal inconsistencies such that it is
unworkable, judges must refrain from acting and leave the matter to legislative amendment.
In light of these points, a degree of reconciliation between the two statements by Lord Hope in Lambert can
be achieved. The initial statement that the interpretation of a statute by reading words into it is
distinguishable from amendment, is due to the fact that the legislative power of amendment is more broadranging than the judicial power. When judges 'read in' words or phrases to legislation, they must always be
mindful of the existing legislative framework and the limits of their ability to carry out law reform. Words must
only be 'read in' to enacted legislation if it is done in the spirit of judicial caution advocated by Lord Hope.

11. Conclusion
Parliament has given judges immense and weighty responsibility under the HRA since they are the primary
arbiters of what is 'possible' under section 3(1). Moreover, they have the unenviable task of rendering primary
legislation Convention-compatible, whilst simultaneously respecting the traditional limits of their law-making
ability. The idea that judges should 'interpret rather than legislate' has been a prominent and recurrent
feature of the judicial explanation of what section 3 requires, and is sometimes used to suggest the limited
nature of the former in contrast to the latter.106 It was argued here that although the act of interpreting was
indeed more limited than the legislative task, the distinction between them should not be taken to deny the
necessarily creative and evaluative aspects of judicial interpretation. Moreover, this slogan should not be
taken to mean that judges should never make law, since such an instruction would be both futile and
undesirable. Rather, the distinction between interpretation and
Oxford J Legal Studies (2004) 24 (2): 259 at 285

legislation should be understood as an instruction to make law in a cautious manner, within the limits placed
upon judges. In other words, it is a warning about the dangers of engaging in a type of law-reform to which
judges are ill-suited. However, it should not underplay the creative possibilities of interpretation which are, if
anything, enhanced rather than diminished by the introduction of the Human Rights Act.
The analysis of interpretation presented here has one further consequence for the emerging jurisprudence
under the HRA. This is that the familiar judicial declaration that their task is to 'interpret not legislate' gives us
no indication of how they will or should interpret. The task of 'interpreting' legislation under section 3 requires
judges to engage in interpretative and substantive evaluations, including the need to balance the values of
stability and continuity on the one hand, and the values of equity and legal development on the other. Where
this balance is to be struck in any individual case is neither determined nor illuminated by the simple
declaration that judges are interpreting. In order to address the further question of legitimacy, more judicial
explanation is required. As is evident from the existing case-law under the HRA, 'interpretation' encompasses
a broad range of judicial approaches to the task, which range from the highly cautious and deferential, to the
highly innovative and activist. It is only if the innovation is so radical and wide-ranging, so beyond the typical
expertise of the judicial body, that it deserves the label of 'legislation'. This is an extreme outer limit which
leaves a broad range of judicial law-making within its expansive territory.

Page 19

Hereafter referred to as 'the Act' or 'HRA'.

Conor Gearty 'Reconciling Parliamentary Democracy and Human Rights' (2002) LQR 248 at 251: 'We should note that the
courts have been invited by Parliament to exercise this new constitutional power. They have neither assumed it nor smuggled it
into the law camouflaged as a long-standing principle of interpretation'.
3

International Transport Roth GmbH v Secretary of State for Home Department [2002] HRLR 31 para 71 (hereafter referred
to as Roth).
4

R v A [2002] 1 AC 45, para 44 (per Lord Steyn).

Though note that s 3(1) also applies to non-judicial bodies who seek to interpret statutory material.

Lord Lester has claimed that the HRA will 'exercise a magnetic force over the entire political and legal system', see Lester,
'Human Rights and the British Constitution' in J. Jowell & D. Oliver (eds), The Changing Constitution (4th edn, 2000) 89 at 109.
7

Although s 3 gives rise to a new interpretative obligation with regard to Convention rights, it is worth noting that the courts
have developed the common law and rules of statutory construction in order to protect fundamental rights, see generally Murray
Hunt, Using Human Rights Law in English Courts (1998). Moreover there is a degree of similarity between interpretation under
s 3 and the Marleasing interpretative obligation under EU law, see R. Clayton and H. Tomlinson, The Law of Human Rights
(2000) at 159.
8

Lord Hope in R v Lambert [2002] 2 AC 545, para 78.

This point is affirmed in R v A at para 44 (Lord Steyn); R v Lambert, para 42 (Lord Steyn); R v Lambert, para 78 (Lord
Hope); Poplar Housing & Regeneration Community Association Ltd v Donoghue [2002] QB 48, para 59 (Lord Woolf); Re S, Re
W [2002] 2 AC 291, para 37 (Lord Nicholls).
10

HRA, s 2.

11

Other significant principles of interpretation relied on by the judiciary in HRA case-law are (a) the doctrine of proportionality,
(b) the principle of deference to the legislature, (c) the need to balance the rights of individuals with the general or common
interest, and (d) the need to respect the intention or will of Parliament. [Though note: Lord Woolf reminds us that the
enunciation of these principles is 'strictly obiter', see Poplar Housing, para 72.]
12

Roth, para 66.

13

R v A, para 108.

14

R v Lambert, per Lord Hope, para 81; Roth, per Simon Brown LJ, para 66; Poplar Housing, per Lord Woolf, para 59; Re S,
Re W, per Lord Nicholls, para 38; R v Shayler [2003] 1 AC 247, Lord Hope, para 52; R v Anderson [2003] HRLR 7, para 30 per
Lord Bingham, para 59 per Lord Steyn; Bellinger v Bellinger [2003] 2 AC 467, para 67 per Lord Hope.
15

This expression is borrowed from a US presidential candidate who declared that his 'litmus test for judges is that ... their
passion is not to amend but to interpret the Constitution', quoted in Ronald Dworkin 'The Ardous Virtue of Fidelity: Originalism,
Scalia, Tribe and Nerve' (1997) 65 Fordham L Rev 1249 at 1249.
16

17

Per Sedley LJ, in R v Feggetter and Mental Health Act Commission [2002] WLR 591 (CA) at para 48.

The only instruction contained in the Act as to how judges should approach this task is that under s 2 they should 'take
account of' the jurisprudence of the ECtHR. Although this jurisprudence is not strictly binding, there is some judicial indication
that UK courts 'will not without good reason depart from the principles laid down in a carefully considered judgement of the
Court', per Lord Bingham of Cornhill, in Anderson v Secretary of State for the Home Department [2003] HRLR 7 at para 18.

Page 20

18

For the more detailed account of interpretation on which this article draws, see Joseph Raz, 'Authority and Interpretation in
Constitutional Law' in L. Alexander (ed.), Constitutionalism: Philosophical Foundations (1998) and J. Raz, 'Why Interpret?'
(1996) 9 Ratio Juris 349-63.
19

This is not an empirical claim about how judges embark upon the task of legal interpretation as a matter of fact. It is a
philosophical claim about the nature of interpretation, and the aim of judges who attempt (sincerely) to interpret a legal text.
Therefore, it is not refuted or weakened by showing that judges sometimes have (or seem to have) a different aim when they
purport to interpret a legal provision. The use of interpretative devices to cloak other activities does not mean that 'interpretation'
can be characterised as those activities as a general matter.
20

Neil MacCormick 'Argumentation and Interpretation in Law' (1993) 5 Ratio Juris 16.

21

This issue arose in R v A, with reference to s 41 of the Youth Justice and Criminal Evidence Act 1999.

22

R (Pretty) v DPP [2002] AC 800.

23

See generally J. Raz, 'Why Interpret?' above n 16 at 351.

24

I use the term 'moral' here to refer generally to what ought to be done, what is right and wrong.

25

For the distinction between 'basic' and 'deep' meaning, see Raz 'Interpretation Without Retrieval' in A. Marmor (ed.), Law
and Interpretation (1995) at 156.
26

In fact, it has been suggested that interpretation is possible only when the meaning of what is interpreted is not obvious,
see Raz, above n 16 at 350.
27

This characterisation of indeterminacy reflects the understanding of legal indeterminacy that is found in the work of many
legal theorists, e.g. Hart, The Concept of Law (2nd edn, 1994) at 252, 272-3; Raz, The Authority of Law (1979) at 70-72, 181-2;
Timothy Endicott, 'Linguistic Indeterminacy' (1996) 16 OJ LS 667 at 669.
28

[2001] HRLR 9.

29

Ibid at para 40.

30

Dworkin, A Matter of Principle (1985) at 36.

31

In fact, the responsibility of judges to impose resolution in cases before them is often thought to be an aspect of the rule of
law, see e.g. Timothy Endicott, 'The Impossibility of the Rule of Law' (1999) 19 OJ LS 1 at 14.
32

See A. Kavanagh 'The Idea of a Living Constitution' (2003) Canadian J of Law and Jurisprudence 55 at 65-6.

33

In this context, 'moral' is used in the very wide sense in which it refers to the array of evaluative considerations that enter
into the judicial decision about what ought to be done in the case before them.
34

In carrying out this task, judges are required under s 2 of the HRA to 'take account of' Strasbourg jurisprudence. This does
not undermine the point made above that they will have to engage in a substantive evaluation of the meaning of moral terms
contained in the Convention. It simply shows that in so doing, they should consider previous evaluations made by the ECtHR for
guidance.
35

36

Ronald Dworkin, A Matter of Principle (1985) at 32.

Lord Irvine 'Activism and Restraint: Human Rights and the Interpretative Process' (1999) 4 EHRLR 350 at 352; see also
Lord Reid 'The Judge as Lawmaker' (1972) 12 J of Pub Teachers of Law 22. However, it is sometimes suggested that this

Page 21

judicial law-making power is often underplayed, see e.g. Conor Gearty, 'Tort Law and the HRA' in T. Campbell, K. Ewing and A.
Tomkins (eds), Sceptical Essays on Human Rights (2001) at 243.
37

There is judicial support for the view that pre-HRA precedents on the interpretation of a statutory provision are not binding
post-HRA, see e.g. R v Lambert, para 81 (Lord Hope); Lord Phillips MR in Ashworth Hospital Authority v MGN [2001] 1 All ER
991 (CA) at 1008 (para 79).
38

This point is not meant to deny the fact that the HRA will have an impact on governmental policy-making and the decisionmaking of public bodies more generally, see Richard Clayton 'Developing Principles for Human Rights' [2002] EHRLR 175 at
176.
39

Raz, The Authority of Law (1979) at 182.

40

'The Authority and Interpretation of Constitutions', above n 18 at 177.

41

Lord Irvine has referred to this as the challenge for the courts to 'work out where the correct balance lies between these
competing imperatives of activism and restraint', above n 35 at 354.
42

'Why Interpret?', above n 16 at 357ff.

43

Raz, Ethics in the Public Domain (1994) at 249.

44

Raz, The Authority of the Law (1979) at 206-09.

45

This should not be taken as meaning that issues of 'justice' only arise when the judge decides to innovate or reform existing
law. The values of having a stable framework of laws and continuity in legal doctrine are also aspects of what justice requires.
The point is simply that they are not the only values.
46

R v A [2002] 1 AC 45, para 97 (emphasis added).

47

In fact, judges will often choose to resolve a case in the way which involves least legal change (for the reasons of continuity
and authority outlined above), see e.g. Webb v EMO Air Cargo (UK) Ltd (No 2) [1995] ICR 1021 and commentary by Murray
Hunt, above n 7 at 120. Hunt also notes that it is a 'classic common lawyers' technique' to stress 'the essential continuity
between what has gone before and what is being proposed', ibid at 167.
48

R v A, para 67.

49

See, e.g. R v Offen [2001] 2 All ER 154, para 99 (per Lord Woolf); R v Secretary of State for the Home Department, ex
parte Simms [2000] 2 AC 115 at 129 (per Lord Steyn).
50

Another reason for such statements is that judges use them to underplay or even disclaim their creative, lawmaking
powers, see Hart, The Concept of Law (2nd edn, 1994) at 135-6.
51

See Raz, The Authority of Law at 208; Richard Clayton 'Developing Principles for Human Rights' [2002] EHRLR 176 at

181.
52

For an outline of some of the limits on judicial freedom to make new law, see Lord Irvine, above n 33 at 354ff; for an
examination of the differences between judicial and legislative law-making, see Hart, The Concept of Law, 204-5; Raz, ibid at
194-201.
53

Para 41.

54

This is not meant to deny that there can occasionally be landmark decisions which cause widespread legal reform, or

Page 22

cause wider societal change. However, such decisions tend to take place against the general backdrop of incremental judicial
law-making. For more detailed consideration of the role of such landmark decisions in the account of incremental judicial lawmaking advanced here, see A. Kavanagh 'The Idea of a Living Constitution' (2003) 16 Canadian J of Law & Juris 55 at 74-7.
55

The limited judicial ability to reform the law can pose a dilemma for judges since partial reform may not be successful or it
may have other unforeseen bad consequences, see Raz, above n 43 at 200-01.
56

[2003] 2 AC 467.

57

Ibid, para 45.

58

Lillian BeVier 'Judicial Restraint: An Argument from Institutional Design', 17 Harvard J Law & Public Policy at 58 (1984).

59

Poplar Housing, para 70 (Lord Woolf CJ).

60

Ibid, see also R v A, para 72 (per Lord Hope); R (Alconbury) v Secretary of State for the Environment, Transport and the
Regions [2001] HRLR 45 at 69 (per Lord Hoffman); Roth per Simon Brown LJ, 10; for academic analysis of this idea, see
Francesca Klug 'Judicial Deference under the Human Rights Act 1998' (2003) 2 EHRLR 126; see also Edwards 'Judicial
Deference under the Human Rights Act' (2002) 65 MLR 859.
61

Para 70-71.

62

This point that their powers under the Human Rights Act exceed the powers prior to its enactment is a point of widespread
consensus, see e.g. Lord Nicholls, in Re S, Re W, para 45; Lord Steyn in R v A, para 44; Brooke L.J. in Goode v Martin [2001]
1 AER 620, para 35.
63

Re S, Re W, per Lord Nicholls, para 37.

64

Gearty, above n 2 at 252; see Lord Steyn, in R v A who looked at ways of solving the 'problem of the prima facie excessive
inroad on the right to a fair trial', para 43 (emphasis added).
65

Ibid at para 108.

66

For the point that judicial decision-making should consist in the negative task of establishing an incompatibility rather than
the positive task of changing the law or filling in a legal gap, see Robert Dahl, Democracy and its Critics (1989) at 189.
67

Lord Nicholls, Re S, Re W, para 38, 40.

68

The relevant legislation in that case was section 16A of the Prevention of Terrorism (Temporary Provisions) Act 1989.

69

R v DPP ex parte Kebilene [2000] 2 AC 326 at 373.

70

R v Lambert, para 17 (per Lord Slynn).

71

Per Lord Steyn, para 42; Similarly, in R v A Lord Steyn acknowledged that s 41(3) c of the Youth Justice and Criminal
Evidence Act 1999 could not cover the facts of that case if it was read in accordance with 'ordinary methods of interpretation',
see para 43.
72

e.g. Lord Hope in Lambert, para 79; see also Lord Hope in Bellinger v Bellinger, para 67. In fact, s 4 of the Act
presupposes that a Convention-compatible interpretation will not always be possible, since it provides the judiciary with an
alternative option (namely, the declaration of incompatibility) in such a situation: per Lord Nicholls in Re S, Re W, para 38.

Page 23

73

R v A, para 108; see also Lord Hope in Lambert, para 79; Lord Phillips of Worth Matravers in R(H) v London North and
East Region Mental Health Review Tribunal [2000] QB 1 at 10.
74

R v A, para 44.

75

Cited in para 44.

76

Ibid.

77

Ibid (his own emphasis).

78

This reading of Lord Steyn is bolstered by the fact that in making this point, he cited Lord Hoffmann in ex parte Simms that
the courts could resort to a s 4 declaration of incompatibility 'in those unusual cases in which legislative infringement of
fundamental human rights is so clearly expressed as not to yield to the principle of legality' at 132 A-B.
79

[2002] UKHL 46.

80

Para 59.

81

Lord Nicholls, para 40.

82

Lambert, para 79 (Lord Hope); R v A, para 108 (Lord Hope).

83

R (Anderson) v Secretary of State for the Home Department [2003] HRLR 7 at para 30 (per Lord Bingham).

84

Ibid para 80 (per Lord Hutton).

85

R v A, para 67.

86

Thus, in the Lambert decision, legislation providing that the 'burden of proof is on the defendant' involved the implication of
the adjective 'evidentiary' before 'proof' in order to remove a Convention-incompatibility.
87

Lambert, para 81 (following Lord Rodger in Brown v Stott).

88

Ibid.

89

Ibid para 84.

90

R v Shayler [2003] 1 AC 247 at para 52.

91

Para 18.

92

Roth, para 37 (per Jonathan Parker LJ); see also Lord Irvine, above n 35 at 367.

93

[2002] 2 AC 291.

94

Para 40.

95

This reasoning is now supported by the whole court in Anderson, above n 17 at para 59 (Lord Steyn); Lord Bingham, para

Page 24

30; Lord Hutton, para 80 (Lord Scott, Lord Rodger, Lord Hobhouse concurring with this reasoning).
96

Re S, Re W, above n 8 at 106.

97

Poplar Housing [2002] QB 48 at 73.

98

See, e.g. Lord Nicholls in Re S, Re H, para 39: 'Interpretation of statutes is a matter for the courts; the enactment of
statutes, and the amendment of statutes, are matters for Parliament'; see also Lord Hutton in Anderson, para 81.
99

Lambert, para 81.

100

Lambert, para 80 (per Lord Hope).

101

Ibid.

102

As he points out in para 80, one of the purposes of regulating an area by statute rather than judicial decision, is to 'achieve
certainty by the use of clear and precise language'. Judge-made law, on the other hand, is less well able to satisfy the
requirement of legal certainty due to its constant and gradual development and revisability on a case-to-case basis.
103

For an examination of the possibilities of legal change through the interpretive process, see Kavanagh, ibid at 67-9.

104

Such reasons would include some of the equitable considerations outlined above, as well as the need for legal
development.
105

In fact, situations may arise where Parliament would be well-advised to replace transformative interpretations with
legislative amendments in order to satisfy the values of legal certainty and predictability which Lord Hope rightly attributes to
enacted legislation.
106

See, e.g. Lord Hope who declared in R v A, para 108, that s 3 is 'only a rule of interpretation. It does not entitle the judges
to act as legislators'[emphasis added].

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