Statutory Interpretation in the UK - Essay Example

Sta y interpretation in the U.K. The United Kingdom is a Constitutional monarchy with a bicameral Parliament1 and there is an unwritten set of rules comprised of the Acts of Parliament, judicial decisions as well as political practices that form the basis of Constitutional practice within the U.K2. As stated by Oxford Professor A.V. Dicey “in theory, Parliament has total power, it is sovereign” thereby it is the source of all valid authority3 and this is the principle of Parliamentary Sovereignty. Prior to the inclusion of the Human Rights Act into the framework of domestic law, the provisions of the European Convention of Human Rights could not be used for purposes of statutory interpretation.4Parliamentary sovereignty means that UK law can override international law7, however, the Communities Act of 1972 and the Human Rights Act have raised the question of supremacy of EU law over national law and its application within the country. In the case of FitzPatrick v Sterling8, the Courts had denied statutory rights to a same sex surviving spouse. In the case of Ghaidan v Mendoza9 Mr. Mendoza’s application for statutory tenancy on grounds of discriminatory violation of his Convention Rights under Article 14 and Article 8 on the basis of his sexual orientation, were allowed, in order to protect his freedom to choose his own sexual lifestyle. The case of Bellinger v Bellinger10 deals with the issue of the freedom of a transsexual man-to-woman to his private life and the right to marry, and the Parliament in UK is legislating on the issue of making national law compatible with that laid down by the ECHR in the case of Goodwin v UK11 in which a transsexual’s right to marry was upheld by the Court, thereby upholding the individual’s right to privacy and a normal life. In the Ghaidan case, Mr. Mendoza contended that the House of Lords should exercise its interpretative power to read and give effect to Para 2(2) on statutory rights to make it compatible with Convention rights that guarantee fundamental human rights, including succession rights, which prohibit discrimination on grounds of sexual orientation. The grounds that were offered in support were the provisions of Section 3 of the Human Rights Act, which states that Parliament legislation must be read and given effect to in a way that will be compatible with Convention rights “so far as it is possible to do so.”12 Further more the Human Rights Act of 1988 incorporated the goals of the European Convention of Human Rights13 within the framework of national law, by including a provision that Parliament legislation is to be interpreted and read in such a manner as to give effect to the goals of the Convention14, while the judiciary has also been given the power under the Act to declare Parliament legislation incompatible with Convention rights15. The Court upheld the decision on Mr. Mendoza’s statutory rights of tenancy, since Article 14 of the European Convention on Human Rights mandates that “the enjoyment of the rights and freedoms” in the Convention be secured “without discrimination.”16 In the case of In re S Minors17 the Court highlighted the distinction between amendment of legislation vis a vis its interpretation, whereby the Human Rights Act places amendment of legislation at Parliamentary discretion and it is only the function of interpretation of legislation that is left to the Courts. The exclusionary role previously prohibited the Courts from consulting the reports of Parliamentary debates when seeking guidance about the meaning of specific legislation. However, subsequent to the case of Pepper v Hart18, this exclusionary rule that dictated statutory interpretation has now been replaced with the inclusionary rule, that under certain circumstances, the Courts may use Hansard in aiding the construction of a statute. It must be noted that the declaration of incompatibility19 within the Human Rights Act is a limited judicial function, it does not override the supremacy of UK parliament legislation, judicial prerogative extends only up to a declaration of incompatibility and it is up to Parliament to reform or modify the incompatible national law to conform to the European Convention. Moreover, no Parliament can bind its successors, therefore, a future UK Parliament could repeal or amend the Human Rights Act20. The current existence of the Human Rights Act has resulted in significant changes within the UK, with the individual supremacy mandated by the European Convention often rising in conflict with established principles of UK law and statutes21. However, as pointed out by Justice Arden, Parliamentary sovereignty is still preserved and the Courts “are not given any power to strike down statues which infringe Convention rights.”22 As pointed out by Lord Derry Irvine, the Human Rights Act expressly protects parliamentary sovereignty, since incompatible statutes will nevertheless continue to be enforceable.23 Therefore, in conclusion it may be stated that the introduction of European Community regulations and the Human Rights Act have resulted in the creation of a judicial imperative to give effect to the objectives specified in the European Convention of Human Rights. Moreover, the exclusionary rule that dictated statutory interpretation has been changed to an inclusionary rule that allows judges to refer to Hansard in constructing statutes. Bibliography Legislation: * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm * Section 3 of the Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#3 Cases: * Bellinger v Bellinger (2003) 2 A.C. 467 (HL) * Cheney v Conn [1958] 1 WLR 242 * Ellen Street Estates Ltd v Minister of Health [1934] AC 526 * Fitzpatrick v Sterling Housing Association Ltd (2001) 1 AC 27 * Ghaidan v Godin Mendoza (2004) UKHL 30 * Goodwin v U.K. (2002)- VI Eur Crt 3, H.R. 3-9 to 10 * In re S (Minors) (Care order: Implementation of care plan) (2002) 2 AC 291, 313 at para 39 * Pepper v Hart * R v Secretary of the State for the Home Department ex parte Brind (1991) AC 696. * R v Secretary of State for Transport ex p FactortameLtd. [1989] 2 WLR 997 No2 [1990] 3 WLR 818 and No3 3 All ER 769 Books: * Bradley, A.W. & Ewing, K. D. 2003. Constitutional and Administrative Law. (13th ed.), Harlow, Longman, pp 233. * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press, pp 470-471. * Irvine, Derry, 2004. “The Human Rights Act: Principle and Practice” Parliamentary Affairs, 57(4): 744-753. * Justice Arden, 2004. The interpretation of UK domestic legislation in the light of European Convention on Human Rights jurisprudence Statute Law Review, 25(3):166 Read More