2.1 The HRA and the ECHR
Section 3 of the HRA states that UK courts and tribunals must interpret all legislation (including secondary legislation such as Statutory Instruments) in a way that is compatible with the rights outlined in the ECHR. It is assumed that this is what Parliament intended, and applies regardless of when the legislation was enacted.
3 Interpretation of legislation.
- So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
- This section—
- a.applies to primary legislation and subordinate legislation whenever enacted;
- b.does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
- c.does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
One of the effects of this is that the courts and tribunals can disregard previous rulings on the interpretation of legislation from higher courts that are inconsistent with the Convention. Section 3 has had the greatest practical impact because it gives individuals the ability to ensure that the domestic law complies with the rights created by the ECHR and to rely on this in the courts and tribunals. This avoids a long and costly route to the ECtHR.
However, the obligation in Section 3 is not absolute: it must be interpreted ‘so far as is possible to do so’, and it may be that it is not possible for court or tribunals to construe legislation in a compatible way. The key point is that both primary and secondary legislation must ‘be read and given effect in a way that is compatible with Convention rights … so far as it is possible to do so’.