Section 3

section 3 interpretation of Legislation

1) 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.

2) This section

a) applies to primary legislation and subordinate legislation whenever enacted;

b) does not affect the validity, continuing operation or enforcement of any incompatible primary
legislation; and

c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate
legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the
incompatibility.

Section 3 of the HRA instructs the courts to interpret legislation in such a way that it conforms with the
Convention rights. There are three important things to note about this provision.

a) It applies to legislation whenever enacted. This means that it applies to legislation enacted both
before and after the HRA.

b) If legislation cannot be interpreted so as to conform to the Convention rights, this does not affect the
validity of

1) primary legislation or

2) secondary legislation where primary legislation prevents the courts removing the incompatibility.

c) The courts may only interpret legislation to conform to the Convention rights so far as it is possible to
do so.

The following two cases give some indication of the approaches being adopted by the courts.

R v A [2002]

Facts: Section 41 of the Youth Justice and Criminal Evidence Act 1999 restricted the right of a defendant
in a rape trial from raising evidence, and questioning the complainant, about her sexual history. The
defendant in this case argued that this was a breach of his Article 6 right to a fair trial. The question for
the court was whether s 41 should be interpreted so as to comply with Article 6.

Held: Section 41 should be construed in the light of Article 6 but what was permissible in each case was a
question for the trial judge who should bear in mind the need to protect a complainant from indignity
and humiliating questions.

The following speeches from the case seem to illustrate slightly different approaches:
Lord Hope seems to advocate a more cautious approach than Lord Steyn.

Lord Steyn: the interpretative obligation under section 3 of the 1998 Act is a strong one . . . [i]t will
sometimes be necessary to adopt an interpretation which linguistically may appear strained. The
techniques to be used will not only involve the reading down of express language in a statute but also
the implication of provisions.

Lord Hope: The rule of construction which section 3 lays down is quite unlike any previous rule of
statutory interpretation .But the rule is only a rule of interpretation. it does not entitle the judges to act
as legislators.

Ghaidan v Godin-Memdoza [2004]

Facts: The claimant landlord wanted to evict the defendant tenant from his property. The defendant had
lived at the property with his partner, the original tenant, in a same- sex relationship for 18 years. The
question for the court was whether the defendant was a statutory tenant under the Rent Act 1977. A
statutory tenant was the spouse of the original tenant, which included living with the original tenant as
their husband or wife. At issue was whether the court could interpret the Rent Act protection given to
couples living as husband and wife to couples in same- sex relationships. If it could not, then there may
be a breach of Article 14, which prohibits discrimination with regard to the Convention rights, in this case
the Article 8 right of respect for ones home. This is because a same- sex partner would be treated
differently than the partner in a heterosexual relationship.

Held: (By a majority) The Rent Act 1977 should be construed as giving statutory tenant status to the
partner of a stable same- sex couple. Section 3 of the HRA may require a court to give a meaning to
legislation other than that which it would normally have, and perhaps contrary to what Parliament
intended. However, s 3 does not permit the courts to go against the general, underlying rationale of the
legislation.