In regards to the Human Rights Act 1998, this is used to ensure compatibility with the ECHR and they are to do so as far as it is possible (s.3(1)) which applies to legislation that already exists and legislation to come in the future. When a provision is unclear and ambiguous, the court must choose the meaning that is most compatible with the Convention rights. Although, this does not always have to be the case, for example in R v A 20021 where the words of the Youth Justice and Criminal Evidence Act 1999 were looked into secure compliance with D’s right to a fair trial under Article 6 of the ECHR. This was a departure from the traditional approach to statutory interpretation used by the courts which would usually be to find the real meaning of the legislation used by parliament. In Aileen Kavanagh’s article on statutory interpretation2, it is stated that the key issue in question is the extent of the power given to the judiciary when interpreting legislation under s.3(1). Danny Nicol claims that cases such as Anderson3, Re S4 and Bellinger5 are departure from the approach which was maintained by the House of Lords in R v A which he describes as amounting to ‘judicial overkill’. When comparing Re S to R v A, the decision made in Re S is not based on a rejection of the reasoning or interpretation used in R v A, it is due to the immense amount of differences in the legislative context between these two cases and there will sometimes be contextual factors that may limit the power given to the judiciary to appoint in reform through s.3(1) of the Human Rights Act. Re S shows that s.3(1) should not be used when radically reforming a statute but this does not mean that the decision should not include the style of reading in which was used in R v A.
1 2002 1 AC 45
2 Aileen Kavanagh| Statutory interpretation and human rights after Anderson: a more contextual approach| 2004| PL| westlaw.co.uk|
3 R. (on the application of Anderson) v Secretary of State for the Home Department 2002 UKHL 46
4 2002 2 A.C. 291.
5 Bellinger v Bellinger 2003 UKHL 21; 2003 2 A.C. 437.