The Prospective (Ir)Relevance of Section 3 of the Human Rights Act: A Comparative Perspective

This article suggests that the power conferred on United Kingdom courts by section 3(1) of the Human Rights Act 1998 (UKHRA) is legitimate as a matter of the interpretation of that provision. It sets out a contextual approach to the interpretation of section 3(1) consistent with general principles of statutory interpretation. This differs from most analyses of this provision, whether comparative or jurisdiction-specific, which tend to use constitutional theory as the framework for analysis. The article adopts a comparative perspective, applying the same approach to section 6 of the New Zealand Bill of Rights Act 1990 (NZBORA). It concludes that the approach of New Zealand courts to section 6 is also correct as a matter of the interpretation of that provision. The different approaches of United Kingdom and New Zealand courts to these equivalent provisions is explained by a number of important differences between the UKHRA and NZBORA; including especially the context in which each statute falls to be interpreted. Some implications of this analysis for the development of the principle of legality in the United Kingdom in the event of repeal of section 3(1) of the UKHRA are briefly identified.