The New Purposive Interpretation of Statutes: HRA Section 3 after Ghaidan v Godin‐Mendoza
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00638.x |
| Author | Jan Van Zyl Smit |
| Published date | 01 March 2007 |
| Date | 01 March 2007 |
CASES
The New Purposive Interpretation of Statutes:
HRA Section 3 after Ghaidan vGodin-Mendoza
Jan van Zyl Smit
n
INTRODUCTION
Ghaidan vGodin-Mendoza
1
has become the leading case on the interpretation of
statutes under section 3 of the Human Rights Act 1998 (HRA). Lord Bingham
has described the decision as an ‘illuminating discussion’
2
of the interpretative
obligation imposed by thatprovision.This commentexamines the di¡erencethat
section 3 has made to statutory interpretation. Ghaidan is a key decision, not only
for its discussion of section 3 principles, but also because the House of Lords used
those principles to overturn an interpretationwhich it had given tothe Rent Act
1977 in an almost identical case when the HRAwas not yet applicable.That was
the case of Fitzpatrick.
3
The most signi¢cant di¡erence between these cases, it
is submitted, is that section 3 has led judges to employ a heightened degree of
purposive interpretation.
The comment begins by situating section 3 against a backgroundof competing
interpretative methods, including various degrees of purposive interpretation.The
common factual matrixof Fitzpatrick and Ghaidan is then reviewed, and the mod-
erately purposive approach in the former case is contrasted with the bold approach
laid down by Lord Nicholls on behalf of the Ghaidan majority. The approach of
Lord Nicholls may fairly be described as ‘abstract purposive interpretation’. This
method gives rise to concerns both about the constitutional legitimacy of judges
determining and enforcing the abstract purpose of a statute and about the e¡ects
this may have on legal certainty.To some extent these concerns were addressed in
Ghaidan by dicta about the need forcourts to respect the ‘fundamental features’ of a
statute and to avoid deciding ‘issues calling for legislative deliberation’.
4
The
exchanges on these points betweenthe majorityand Lord Millett,dissenting,yield
some important insights. A further contribution was made by Lord Ho¡mann in
the more recent case of R (Wilkinson) vIRC.
5
Lord Ho¡mann provided a revised
rationale for the decision in Ghaidan, and this comment concludes by arguing that
n
D Phil candidate,Magdalen College, Oxford.The author would like to thankTariq Baloch,Richard
Ekins, Timothy Endicott, Brian Flanagan, Je¡ King, Gre
Łgoire Webber and Al ison Young for their
helpful comments on earlier drafts of this comment.
2Sheldrake vDPP, A-G’sReference(No 4 of 2000) [2004] UKHL 43;[2005] 1 AC264 at [28].
3Fitzpatrick vSterlingHousing Association[20 01]1 AC 27.
4Ghaidan n1above at[33].
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(2) MLR294^317
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