CASE LAW AFTER GHAIDAN AND MENDOZA

Case Law after Ghaidan and Mendoza

Case Law after Ghaidan and Mendoza

In section 3(1) of the Human Rights Act 1998 Parliament laid down that so far as 'possible' United Kingdom legislation (whenever enacted) must be read and given effect in a way which is compatible with rights ('the Convention rights') under the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe on 4 November 1950 as amended ('the Convention'). Why did Parliament lay down this rule (which I shall call the compatible construction rule) since it was already the law - at least on one view of the meaning of 'possible'? What is 'possible' supposed to mean here? Does it mean corresponding to the literal meaning, or does it allow for a strained meaning - and if so to what extent? The question has been discussed before in this journal, in passages to which I shall refer. It is likely to give courts, officials and legal advisers some headaches before the ultimate House of Lords ruling sets us all straight. The present article analyses the difficulties in some depth, and will at the end suggest fairly precise answers. It approaches the problem obliquely.

The Global method of statutory interpretation

All these powerful influences need to be and are reflected in the method our courts adopt for construing legislation and arriving at the meaning it is found to have in law, which I have called its legal meaning. This interpretative method is still securely based in the common law, but there is increasing osmosis between common law and civil law. That adds, in ways not yet fully worked out, to the already large number of different interpretative criteria or guides to legislative intention that are available to British judges and others seeking to arrive at the legal meaning of an enactment. Under the British system it is taken to be the legislator's intention that a particular enactment shall be construed according to such of these available criteria as are relevant; and that where they conflict (as they often do) the problem shall be resolved by weighing and balancing the interpretative factors concerned. The task normally is to choose between two opposing constructions of the enactment, one put forward by either side. I have been criticised for writing in Statutory Interpretation-

The natural and reasonable desire that statutes should be easily understood is doomed to disappointment. Thwarted, it shifts to an equally natural and reasonable desire for efficient tools of interpretation. If statutes must be obscure, let us at least have simple devices to elucidate them. A golden rule would be best, to unlock all mysteries. Alas, as this book demonstrates, there is no golden rule. Nor is there a mischief rule, or a literal rule, or any other cure-all rule of thumb. Instead there are a thousand and one interpretative criteria.

As I have said, there is increasing osmosis between common law and civil law. For this and other reasons there is a growing need ...