Section 3 of the Human Rights Act 1998
[7] The Human Rights Act therefore built upon a small number of previously recognised absolute freedoms which could only be expressly subjugated to another aim.
In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
"[13] He further noted that it may be necessary under section 3 to "adopt an interpretation which linguistically may appear strained" and that a declaration of incomparability was a "measure of last resort".
[13] In Poplar Housing v Donaghue, the Court of Appeal rejected the possibility of reading in a provision, because it would have altered the method of remedying the problem to that laid down by Parliament, amounting to starting afresh on how best to approach the issue.
[22] For example, placing a persuasive burden of proof on a defendant raising a defence – that he need persuade the jury that it is the case, was judged to be incompatible with Article 6(2) of the convention, which related to the presumption of innocence, which had long been a part of English law in R v Lambert.
[23] However, in Sheldrake v DPP, the court instead requiring a persuasive burden, because it believed in the context of the motoring offence in the case, this was not disproportionate and did not conflict with Article 6(2).
Opponents of this criticism has questioned both its factual accuracy and its suggestion that the weakening of parliamentary sovereignty should be avoided.
Whilst the scope of section 3 has been criticised for being vague and there have been warnings about the imposition of the judiciary on parliament's domain, these have also been challenged.
Before the Human Rights Act was brought before parliament, the government's white paper considered that it was necessary to prevent courts from setting aside legislation on the basis of incompatibility (reflecting a strong need to respect parliamentary sovereignty).
Section 3 has been defended, however, by reference to the enhanced morality and constitutionalism of the new system, prompted by an "incoming tide" of human rights.
[27] She considers the political and legislative pressure on government after section 3 or 4 overwhelming to the extent that the concept of parliamentary sovereignty should be "eliminated".
[27] The result of this debate has been to label section 3 either a "radical tool" to implement human rights, or a "significant limitation" of Parliament's will.
She puts forward three possible limits: firstly, where the text of a statute is not ambiguous; secondly, where reading in words is inappropriate; and, thirdly, where any interpretation is restricted to cases where it does not involve implied repeal.
The decision of Pepper v Hart provides a method for the legislative history of a bill to play a role in its interpretation.
[30] Philip Sales and Richard Ekins are among those that believe that section 3 has not displaced the purpose of interpretation – to discern parliamentary intention.
They also criticise the "judicial lawmaking" because it applies to the case in hand, concluding that this breaks the non-retroactivity commonly considered part of the rule of law, although it is sometimes necessary.
[31] Another view is that Section 3 provides a much strengthened basis for the sort of "weak review" – the scope of which carefully determined between courts on one hand and parliament on the other – in a statutory form.
