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  • Print publication year: 2018
  • Online publication date: January 2019

Chapter 3 - Rights-Consistent Interpretation

Summary

Chapter 3 compares the interpretative obligation under s. 3(1) Human Rights Act 1998 in England and the duty of German courts to interpret national legislation in conformity with the fundamental rights enshrined in the German Basic Law (grundrechtskonforme Interpretation). The term rights-consistent interpretation will be used in this book to cover both interpretative obligations. Interpretation in conformity with the fundamental rights enshrined in the German Basic Law is a significant subgroup of constitution-consistent interpretation (verfassungskonforme Interpretation) in Germany. I will argue in this chapter that rights-consistent interpretation in English and German courts exhibits striking similarities. Lord Rodger opined in Watkins that the Convention rights protected under the HRA “ form part of our law and provide a rough equivalent of a written code of constitutional rights ”. Lord Steyn has remarked extrajudicially that since 2001 the ECHR has “ effectively [been] our constitutional Bill of Rights ”. Despite existing similarities, the HRA is not the UK equivalent of the German Basic Law even though the HRA has been characterised as a “ constitutional statute ” in English courts. Nevertheless, the HRA has aptly been described as a “ Bill of Rights ”, incorporating ” constitutional rights “. Therefore, interpretation of legislation in conformity with the fundamental rights enshrined in the German Basic Law appears to be the best German comparator to Convention-compatible interpretation under s. 3(1) HRA.

Another possible comparator to s. 3(1) HRA would be the principle of interpretation in harmony with public international law (v ö lkerrechtskonforme Interpretation) in the shape of interpretation in harmony with the ECHR. The BVerfG has recognised that statutes must be interpreted in accordance with the obligations of international law under the ECHR. That is because it cannot be assumed that the German legislature would deviate from Germany‘s obligations under international law or would allow the violation of such obligations unless it had clearly expressed its contrary intention. The practical significance of this obligation to construe legislation in conformity with the ECHR is, however, lower compared to the interpretation of legislation in conformity with the fundamental rights enshrined in the German Basic Law. The reason for this is that the ECHR has the status of a federal statute in Germany.