Introduction
The Human Rights Act 1998 (HRA) represents a cornerstone of UK constitutional law, incorporating the European Convention on Human Rights (ECHR) into domestic legislation. Among its pivotal provisions, sections 3 and 4 delineate the judiciary’s role in ensuring compatibility between UK legislation and ECHR rights. Section 3 mandates that legislation must be interpreted and given effect in a way that is compatible with Convention rights “so far as it is possible to do so.” Conversely, section 4 empowers courts to issue a declaration of incompatibility if such interpretation proves impossible, thereby alerting Parliament to breaches of human rights without affecting the validity of the legislation. Lord Steyn’s assertion in R v A [2001] UKHL 25, para 44, that a declaration of incompatibility is a “measure of last resort” to be avoided unless plainly impossible, encapsulates the judiciary’s cautious approach under the HRA. This essay critically analyses the relationship between sections 3 and 4, exploring why Lord Steyn views declarations of incompatibility as a final option. Through an examination of relevant case law and secondary sources, it argues that this perspective stems from the judiciary’s deference to parliamentary sovereignty, the pragmatic design of the HRA, and the intention to foster dialogue between the branches of government.
The Primacy of Section 3: Judicial Interpretation as the Preferred Tool
Section 3 of the HRA imposes a strong interpretative obligation on courts to read and give effect to legislation in a manner compatible with ECHR rights, so far as possible. This provision reflects a deliberate design to prioritise judicial creativity over formal declarations of incompatibility. In R v A [2001] UKHL 25, the House of Lords grappled with statutory provisions under the Youth Justice and Criminal Evidence Act 1999, which restricted the admissibility of evidence regarding a complainant’s sexual history in rape trials. Lord Steyn emphasised that courts must strive to interpret legislation compatibly, even if it requires a departure from traditional statutory interpretation principles, provided the interpretation does not contravene the legislation’s fundamental purpose (R v A [2001] UKHL 25, para 44). This approach underscores a judicial preference for resolving inconsistencies through interpretation rather than resorting to section 4 declarations.
Furthermore, the interpretative duty under section 3 serves to balance human rights protection with respect for parliamentary sovereignty—a core principle of the UK constitution. As Kavanagh (2004) argues, section 3 enables courts to uphold rights without directly challenging Parliament’s authority, maintaining a delicate equilibrium between judicial and legislative powers. By employing section 3, courts can effectively protect Convention rights while avoiding the political ramifications of a declaration of incompatibility. Therefore, Lord Steyn’s view of section 4 as a last resort aligns with the HRA’s overarching aim to encourage judicial innovation over confrontation, ensuring that compatibility issues are addressed discreetly wherever feasible.
Section 4 as a Last Resort: Preserving Parliamentary Sovereignty
A declaration of incompatibility under section 4, unlike section 3 interpretation, does not alter the legal effect of the incompatible legislation. Instead, it serves as a formal acknowledgment of conflict between domestic law and Convention rights, leaving remedial action to Parliament. Lord Steyn’s characterisation of such declarations as a measure of last resort in R v A [2001] UKHL 25 reflects the judiciary’s reluctance to encroach upon parliamentary sovereignty. Issuing a declaration signals a failure of judicial interpretation to reconcile legislation with human rights, thereby placing political pressure on Parliament to amend the law. This was evident in Bellinger v Bellinger [2003] UKHL 21, where the House of Lords issued a declaration of incompatibility regarding the non-recognition of gender reassignment under the Matrimonial Causes Act 1973. The court explicitly deferred to Parliament to address the issue, illustrating the judiciary’s awareness of its constitutional limits (Bellinger v Bellinger [2003] UKHL 21, para 37).
Moreover, secondary sources such as Gearty (2002) highlight that declarations of incompatibility are politically charged, often attracting significant media and public scrutiny. This potential for political tension further explains why Lord Steyn and the judiciary approach section 4 cautiously. By treating declarations as a final measure, courts avoid unnecessary friction with the legislature, preserving the cooperative framework intended by the HRA. Indeed, the preference for section 3 over section 4 reflects a pragmatic acknowledgment that judicial declarations, while symbolically significant, do not guarantee immediate legislative change, as Parliament retains discretion to ignore or delay responses.
The Dialogic Model: Encouraging Cooperation Between Judiciary and Legislature
The relationship between sections 3 and 4 also embodies the HRA’s dialogic model, whereby courts and Parliament engage in a constructive exchange over human rights standards. Lord Steyn’s emphasis on avoiding declarations of incompatibility unless “plainly impossible” suggests a judicial commitment to fostering dialogue rather than confrontation. In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords used section 3 to interpret the Rent Act 1977 in a manner that extended succession rights to same-sex partners, thereby avoiding a declaration under section 4. This case exemplifies how section 3 serves as a tool for dialogue, enabling courts to signal compatibility issues through interpretation while leaving Parliament’s ultimate authority intact (Ghaidan v Godin-Mendoza [2004] UKHL 30, para 33).
Secondary literature, such as that by Young (2009), supports the view that the HRA encourages a collaborative approach, with section 4 acting as a formal mechanism to initiate legislative review only when judicial solutions are exhausted. Declarations of incompatibility, therefore, are not merely judicial pronouncements but invitations for parliamentary engagement. However, this dialogic intent risks being undermined if declarations are overused, as frequent recourse to section 4 could be perceived as judicial overreach. Lord Steyn’s caution in R v A [2001] UKHL 25 arguably reflects an awareness of this risk, advocating restraint to maintain the HRA’s intended balance of powers. Generally, the judiciary’s preference for section 3 reinforces the cooperative spirit of the Act, ensuring that human rights protection evolves through mutual understanding rather than conflict.
Practical Implications and Limitations of Declarations
Finally, Lord Steyn’s perspective on declarations of incompatibility as a last resort can be attributed to their limited practical impact. Unlike section 3 interpretations, which directly influence legal outcomes, section 4 declarations lack binding effect, often resulting in delayed or no legislative response. This limitation was evident in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, where a declaration regarding mandatory life sentencing provisions did not prompt immediate reform, highlighting the discretionary nature of Parliament’s response (R (Anderson) [2002] UKHL 46, para 59). Secondary sources, such as Hickman (2008), argue that this practical ineffectiveness reinforces the judiciary’s preference for section 3, as it offers a more immediate remedy for rights violations.
Additionally, issuing a declaration can place individuals in a legal limbo, as their rights remain unprotected pending parliamentary action. This concern likely informs Lord Steyn’s view, as over-reliance on section 4 could undermine the HRA’s purpose of providing effective human rights protection. Thus, the judicial hesitation to resort to declarations, as articulated in R v A [2001] UKHL 25, stems from both constitutional deference and a pragmatic recognition of their limited utility in achieving swift justice.
Conclusion
In conclusion, Lord Steyn’s assertion in R v A [2001] UKHL 25 that a declaration of incompatibility is a measure of last resort encapsulates the nuanced relationship between sections 3 and 4 of the Human Rights Act 1998. The primacy of section 3 reflects a judicial commitment to interpretative solutions that uphold human rights while respecting parliamentary sovereignty. Conversely, section 4 serves as a formal but limited mechanism, employed only when compatibility cannot be achieved through interpretation. This cautious approach preserves the dialogic model envisaged by the HRA, fostering cooperation between judiciary and legislature, and acknowledges the practical constraints of declarations in effecting immediate change. The analysis of cases such as Ghaidan v Godin-Mendoza [2004] UKHL 30 and Bellinger v Bellinger [2003] UKHL 21, alongside scholarly insights, underscores why declarations remain a final option. Ultimately, this balance ensures that the HRA functions as a dynamic framework for rights protection within the UK’s unique constitutional landscape, though it raises ongoing questions about the effectiveness of section 4 in prompting timely legislative reform.
References
- Gearty, C. (2002) Reconciling Parliamentary Democracy and Human Rights. Law Quarterly Review, 118, pp. 248-269.
- Hickman, T. (2008) The Courts and Politics after the Human Rights Act: A Comment. Public Law, pp. 84-100.
- Kavanagh, A. (2004) Statutory Interpretation and Human Rights after Anderson: A More Contextual Approach. Public Law, pp. 537-545.
- Young, A. L. (2009) Parliamentary Sovereignty and the Human Rights Act. Hart Publishing.
