Abstract:
In this article we examine the concept of the intention of the legislature as expressed in statutes, when they are read in light of the rights set out in the European Convention on Human Rights (ECHR) as adopted into domestic law as Convention rights by the Human Rights Act 1998 (HRA). We address the tension between the operation of s.3(1) of the HRA and values inherent in the rule of law ideal and democratic principle. In the light of this discussion we attempt to articulate the proper approach for defining the boundary between the operation of s.3 of the HRA (which creates a mandatory obligation requiring an interpretation of statutory provisions which is compatible with Convention rights to be adopted “so far as it is possible to do so”) and s.4 of the HRA (which provides for the making of declarations of incompatibility by the courts where such an interpretation is not “possible”). In English law, it is this boundary which brings most acutely into focus the issue of the proper respective functions of the legislature and the courts, and the associated division between politics and law.