Skip to main content Accessibility help
×
×
Home
  • Get access
    Check if you have access via personal or institutional login
  • Cited by 2
  • Cited by
    This chapter has been cited by the following publications. This list is generated based on data provided by CrossRef.

    du Bois, François 2017. The Constitutional Dimension of Contract Law. p. 1.

    Hutchison, Andrew 2017. The Constitutional Dimension of Contract Law. p. 151.

    ×
  • Print publication year: 2011
  • Online publication date: November 2011

4 - Statute law: interpretation and declarations of incompatibility

Summary

The impact of the HRA on statute law appears at first glance to be relatively straightforward compared with its impact on the common law. In relation to statutes the HRA provides specific mechanisms for giving effect to Convention rights, so courts have not had to fashion their own methods under section 6 as they have done in common law cases. There are two mechanisms provided: courts have a duty to render statutes compatible with the Convention by interpretation ‘so far as it is possible to do so’ (section 3), and where interpretation fails they have the power to issue a declaration of incompatibility (section 4). Although declarations of incompatibility do not affect the validity of legislation, Parliament has generally responded by repealing or amending the statute in question. The HRA thus provides a relatively clear grounding for the constitutional role of the courts when Convention rights are invoked in cases involving statutes, unlike common law cases in which the courts have had to resolve this role for themselves to a greater extent.

Important questions of judicial technique remain, however. The courts are fleshing out their constitutional role by developing new techniques of statutory interpretation in order to give effect to Convention rights, and by delineating the circumstances in which they will issue a declaration of incompatibility. These new techniques have brought far-reaching changes which are of interest to both public and private lawyers. Sir Jack Beatson has observed extracurially that section 3 ‘makes statutory provision more like common law doctrine’, due to the relative decline in importance of the statutory text and the increased importance of Convention case law in determining the interpretation that a court ultimately adopts. Beatson argues that this development may render statutes more ‘opaque’ to the ordinary litigant. These remarks raise important themes for this chapter, as they draw attention to the need for courts to strike a balance between the protection of Convention rights and the value of legal certainty when private legal relationships are conducted within a statutory framework. Parliament shares responsibility with the courts for maintaining this balance, as the legislature is expected to respond to declarations of incompatibility by enacting a new or revised statutory framework to provide for the Convention rights that have been affected; indeed, Parliament may also respond to section 3 interpretations by revising the statute. Dialogue of this kind between the courts and the legislature is an important aspect of the impact of the HRA on statute law. This chapter aims to provide an overview of the impact on statutes in private law cases. The chapter is in three parts: the first deals with questions of mapping and situates statute law in relation to other forms of private law affected by the HRA; the second considers the judicial approach to issuing declarations of incompatibility and the legislative response thereto; and the third examines the extent to which the courts have modified existing doctrines of statutory interpretation in order to give effect to Convention rights in cases between private parties.

Recommend this book

Email your librarian or administrator to recommend adding this book to your organisation's collection.

The Impact of the UK Human Rights Act on Private Law
  • Online ISBN: 9780511920844
  • Book DOI: https://doi.org/10.1017/CBO9780511920844
Please enter your name
Please enter a valid email address
Who would you like to send this to *
×
2004
Phillipson, G.Clarity Postponed: Horizontal Effect after ’Fenwick, H.Masterman, R.Phillipson, GJudicial Reasoning under the UK Human Rights ActCambridgeUniversity Press 2007
2008
Hickman, T.Public Law after the Human Rights ActOxfordHart 2010
Schauer, F. 1995
Leigh, I.Masterman, R.Making Rights Real: the Human Rights Act in its First DecadeOxfordHart 2008 256
Mead, D.Rights, Relationships and Retrospectivity: the Impact of Convention Rights on Pre-existing Private Relationships following and Public Law 2005
Sales, P.A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998Law Quarterly Review 125 2009
Young, A.Parliamentary Sovereignty and the Human Rights ActOxfordHart 2009
Kavanagh, A.Constitutional Review under the Human Rights ActCambridge University Press 2009
Elliott, M.Parliamentary Sovereignty and the New Constitutional Order: Legislative Freedom, Political Reality and ConventionLegal Studies 22 2002
Klug, F. 2007
Elliott, Fenwick, H.Human Rights and Civil LibertiesOxford: Routledge-Cavendish 2007
2009
2006
Amos, M. 2007
Davis, F. 2010
Campbell, T.Campbell, T.Ewing, K.Tomkins, A.Sceptical Essays on Human RightsOxford University Press 2002
Nicol, D.Statutory Interpretation and Human Rights after Public Law 2004
Kavanagh, A. 2005
Marshall, G.The Lynchpin of Parliamentary Intention: Lost, Stolen or StrainedPublic Law 2003
Ekins, R.A Critique of Radical Approaches to Rights-consistent Statutory InterpretationEuropean Human Rights Law Review 6 2003
Bell, J.Engle, G.Cross on Statutory InterpretationLondonButterworths 1995
Ekins, R. 2005
Bennion, F.Statutory Interpretation: A CodeLondonButterworths 2002
Greenberg, D.The Nature of Legislative Intention and its Implications for Legislative DraftingStatute Law Review 27 2006
Endicott, T.Getzler, J.Peel, E.Properties of Law: Essays in Honour of Jim HarrisOxford University Press 2006
Fenwick, H.Masterman, R.Phillipson, G.Judicial Reasoning under the UK Human Rights ActCambridge University Press 2007
Sawyer, K. 2007
2006
Raz, J.Intention in InterpretationGeorge, RThe Autonomy of LawOxfordClarendon Press 1996
Raz, J.The Authority of LawOxford University Press 1983
De Burca, G.Giving Effect to European Community DirectivesModern Law Review 55 1992
2004
2008
Sales, P.Hooper, B.Proportionality and the Form of LawLaw Quarterly Review 119 2003
Smit, J. van Zyl 2007