Prior to the enactment of the Human Rights Act 1998, the European Convention was directly relevant to statutory interpretation because it could not be a source of rights and, unless a statute was ambiguous, it could not be used for statutory interpretation, according to R v. Secretary of State for the Home Department ex p. Brind [1991] AC 696 – see also R (Khail) v. Home Secretary [2006] EWHC 2139.
Therefore, with this in mind, the Human Rights Act 1998 has given effect to the rights contained in the European Convention to be enforced in our domestic courts so they can consider the decisions of the Strasbourg court, but are not bound to follow it under section 2.
On this basis – (a) section 3 of the Human Rights Act 1998 has imposed on the courts an obligation to interpret domestic legislation in a manner compatible with European Convention rights, supported by the declaration of incompatibility means if the courts cannot construe a statute compatibly with the European Convention they may make such a declaration, illustrated by R (Carson) v. Secretary of State for Work & Pensions [2005] UKHL 37.
However, it is still to be appreciated that, ostensibly, the Human Rights Act 1998 still leaves it open for Parliament to enact legislation violating European Convention rights if it wishes to do so and, for added clarity, Parliament might specifically state legislation applies – notwithstanding any violation of the European Convention, according to the decision in Ghaidan v. Godin-Mendoza [2004] UKHL 30.
But, whilst the interpretation of European Convention rights is dynamic, supported by Soering v. UK [1989] 11 EHRR 439, and changes from time to time, special problems may arise for the statute law of member states, illustrated by X Council v. B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), because jurisprudence may then have moved on, in keeping with Beaulane Properties Limited v. Palmer [2005] EWHC 1460 (Ch).
Therefore, with this in mind, section 3 of the Human Rights Act 1998 requires the UK’s domestic courts to construe legislation in the context of European Convention rights as they stand at the time of the judgement, so the meaning of statutes may change as interpretations of European Convention rights change over time.
Moreover, it is also to be appreciated that the ‘retrospectivity’ of section 3 of the Human Rights Act 1998 was further clarified by the decision in R (Hurst) v. HM Coroner for Northern District Council [2005] EWCA Civ. 890.
