New Section: EUROPEAN INTERPRETATION To what extent has the courts interpretation of European law influenced the forms

s that judicial practice is taking? Lord Denning, Buhner v. Bollinger provides a starting point No longer must the! "the judges# examine the words in meticulous detail. $o longer must the! argue a%out the precise grammatical sense. They must loo intent. to !ur!ose or

To &uote the words of the European 'ourt in the Da 'oasta

case the! must deduce from the wording and the spirit of the Treat! the meaning of the 'ommunit! rules . . . They must di"ine the s!irit o# the Treaty and gain inspiration from it. I# they #ill a ga!$ they must #ill it as %est they can& The! must do what the framers of the instrument would have done if the! had thought a%out it. So we must do the same&

Interpretation of the statement The impact of European methods of interpretation is undou%tedly ha"ing an im!ortant im!act on the practice of statutor! interpretation. (ut think a%out what Lord Denning is sa!ing. The claim a%out 'no longer( needing to examine words in meticulous detail are somewhat misleading& )e have seen a%ove that common law )udges always made use o# a #orm o# !ur!osi"e inter!retation. The need to interpret European law lifts this into a new context*

 it ma! even %e that this means that the courts ha"e to #ollow Euro!ean law rather than English law if there is a conflict. )e will deal with this matter presentl!. +or the moment, let us focus on one of our ke! concerns how do Euro!ean methods of interpretation shape or resha!e the constitutional !arameters of interpretative practice.

Follow Community Law as our Parliament intend to do so )e need to return to the !rinci!le o# the su!remacy o# Euro!ean law. Lord Denning outlined this doctrine in *acarthys "& Smith ,t is important now to declare and it must %e made plain that the provisions of .rticle //0 of the Treat! of 1ome take priorit! over an!thing in our English statute on e&ual pa! which is inconsistent with .rticle //0. That priorit! is given %! our own law. ,t is gi"en %y the Euro!ean +ommunities Act ,-./ itself. +ommunity law is now !art o# our law and, whenever there

is an! inconsistenc!, +ommunity law has !riority&

 It is not su!!lanting English law. It is !art o# our law which overrides an! other part which is inconsistent with it. European law takes priorit! over English statutes %ecause Parliament has so !ro"ided. 2ow does the doctrine of sovereignt! relate to judicial interpretation?

Problems: 3ur concern could %e phrased as follows in understanding the judicial interpretation of communit! law the extent to which it allows a distortion o# the literal meaning of statute, to what extent is judicial creativit! limited %y their !erce!tion o# constitutional %oundaries?

0IRST STEPS: 1AR2AN3 4& BRITIS5 RAI2 EN1INEERIN1 2T3 6 u!held +ommunity 2aw 2ouse of Lords held that s.4 567 of the 8exual Discrimination .ct should %e inter!reted in such a way as to ma e it consistent with Article ,,- of the EE' Treat!. The pro%lem was that the words o# the rele"ant section were ca!a%le o# two di##erent and o!!osed inter!retations one that suited the applicants and one that suited the respondents. Lord Diplock argued, and the rest of the 2ouse concurred, that the meaning o# the section which was consistent with Article ,,had to %e !re#erred.

 Lord Diplock also made use of a principle of interpretation 9too well esta%lished to call #or citation o# authority( that a statute !assed a#ter an international treaty had to %e inter!reted as consistent with the o%ligations that the countr! had undertaken. :ro%lem ,nterestingl!, he a"oided the 7uestion of whether or not a !ro"ision ex!ressly intended %y Parliament to contra"ene Euro!ean o%ligations would %e so interpreted %! the court. ,n this case there is no express provision against 'L, %ut if there is, will the court upheld 'L as well?

T5E 0OR8IN1 PAT5: 3U8E 4& 1E+ RE2IAN+E 9,-::; 6 Not a!!lica%le to EU '3irecti"e( The parameters of this mode of interpretation can %e seen in the later case Duke v. ;E' 1eliance. ,n this case the 2ouse of Lords interpreted sections <567 and <547 of the 8exual Discrimination .ct. 5same .ct as a%ove7 ,t was asserted that the /0=> .ct was not meant to gi"e e##ect to the 3irecti"e on E7ual Treatment issued in ,-.<. .s s.< 567 of the E' .ct did not allow a court to 9distort the meaning of the statute, Euro!ean em!loyment rights should not %e a"aila%le in English law.

 3ne would expect that the court would have to construe the (ritish statute in such a wa! as to make it harmonise with 'ommunit! law. 2owever, the court followed an earlier precedent. Marshall (EU case) promoted a much narrower approach to the interpretation of statute* stressing that if the domestic statute had not %een 'intended( to gi"e e##ect to Euro!ean o%ligations, then the court was limited %y the words o# the Act. 3n the facts of the present case, as the provisions of the /0=4 .ct could not carr! the interpretation urged %! the appellants, the court had to give effect to the literal meaning of the .ct.

'ommentar! )hat conclusions can we draw from these two cases? .lthough the issues raised are similar, and the same sections of the /0=> .ct are interpreted in %oth cases, it would seem that the central di##erence relates to the courts understanding o# the ,-.< directi"e and its effect in English law. 8ome commentators have argued that Duke was wrongl! decided. ?ead ?arshall had held that a directi"e could not create o%ligations %etween indi"iduals&

.nother case to against Duke decision ,n *arleasing 9,--/; =another E@ case>, the European 'ourt of Austice 5E'A7 had relied on an earlier authorit!, Ban 'olson, to assert that a court had to inter!ret national law as consistent with Euro!ean o%ligations whether or not the national law !re? or !ost?dated a directi"e& The E'A argued that the o%ligation to en#orce directi"es was a duty under Article @ and Article ,:- o# the Treaty o# Rome& The issue in these cases is also the extent to which Euro!ean law is en#orcea%le against !ri"ate !arties as well as the state&

 ?arleasing went %e!ond ?arshall, and extended European law rights to private parties. +rom this perspective, it would appear that the courts have a much %older role to pla! in the interpretation of national legislation, and that )udicial !ractice could ma e use o# the 4an +olson doctrine to assert$ against 3u e, that there was an o"erriding o%)ecti"e to ensure )udicial !rotection o# Euro!ean rights.

T2E :.T2 1E;.,$ED- PI+8STONE " 0REE*ANS? PA e en in pre EC Act ,n this case, the 2ouse of Lords had to interpret s./5<7 of the E7ual Pay Act ,-.A& 5pre-E' .ct7 The .ct had %een amended to make it coherent with o%ligations arising under .rticle //0 of the Treat! of 1ome. The ke! &uestion was whether the amendment of the .ct actuall! did give effect to the o%ligations under the treat!. ,n approaching the interpretation of the .ct, their lordships %egan from a purposive position.

 Lord $icholls, for instance, determined that the !ur!ose o# the Article was two#old to ensure consistency in the legal s!stems of mem%er states across the community, to improve working conditions. These o%jectives are furthered %! a directive, and %! E'A cases that clarif! the precise terms of communit! law.

:ro%lem . pro%lem arose %ecause on at least one interpretation of the rele"ant sections o# the U8 Act$ it did not accord with Euro!ean law& +urthermore, the 9%road( inter!retation of the section that would have made the law coherent was di##icult to s7uare with the wording of the .ct.

,nconsistenc! with previous reasoning )hat, then, should %e the correct approach? 2ord 3i!loc (s argument in !arland provided a point of reference. 3nl! ex!ress wording in an Act !assed !rior to the date that the @C had joined the 'ommunit! would allow a court to conclude that it was not intended to %e consistent with European law. The court was thus justified in particularl! 9wide departures from the wording of the .ct 9in order to achieve consistenc!. .rgument focused on whether 9exclusionar! words in the .ct

had the effect of limiting the section in such a wa! as to not give full effect to 'onvention 1ights. )hat are the conse&uences of this argument? The literal inter!retation would compel the conclusion that the .ct was in %reach o# Euro!ean law* +urthermore, it would not %e consistent with the !rinci!le articulated %y 2ord 3i!loc &

:. %e taken ,n 2ord Oli"er(s o!inion, the Act was reasona%ly ca!a%le o# %earing the inter!retation that would make it consistent with European law. @ltimatel!, it was held that a purposive interpretation allowed the appellants case to succeed. Their argument was helped %! the fact that the court took into account the E7ual Pay Regulations o# ,-:B that had %rought the statute in line with +ommunity law.

 .lthough these draft regulations had not %een su%jected to the same :arliamentar! process as a %ill, %ut they had %een !assed to gi"e e##ect to a decision o# the E+C. That mean the .ct still intended %! :arliament give effect to 'L It was thus legitimate to ta e into account Parliament(s !ur!ose in interpreting the draft regulations.

,mpact on ,nterpretative Techni&ues Lord Ceith argued that it was '!lain( that Parliament could not ha"e 'intended( to de!art from its European law o%ligations. @nder the circumstances of the case, he felt it was entirely legitimate that the court should consider the dra#t regulations. Lord 3liver was concerned that the case did indeed raise issues that made for a 9de!arture( #rom the normal rules of statutor! interpretation. ,t would not normally %e o!en to a court to de!art #rom a literal inter!retation of an .ct sim!ly %ecause the Act was !assed to

gi"e e##ect to an international treat!. +urthermore, !arliamentary materials cannot normally %e relied upon as aids to construction. 5owe"er, European law was different. :arliament had in s./ =,> o# the E+ Act$ incor!orated Euro!ean law into domestic law&

3$ T2E 13.D: 2ITSTER 4& 0ORT5 3RD 3O+8 E EN1INEERIN1 +O& 2T3 6 PA in English Act to give effect to EU law 2ouse of Lords went even further than :ickstone. The court ga"e a !ur!osi"e inter!retation to a statutory instrument that concerned rules relating to the transfer of emplo!ees rights in the event of the sale of a %usiness. The court 'im!lied( words into the terms o# the regulation so as to ma e it com!ati%le with o%ligations under Euro!ean law.

 Lord 3liver provided a useful summar! of the courts approach in Litster. The court must first of all determine the precise nature of the o%ligations concerned %! construing the wording of %oth the relevant directive, and the interpretation given to that directive %! the E'A. ,f it can %e 9reasona%l! construed in such a manner, U8 legislation must then %e !ur!osi"ely inter!reted so as to give effect to European law. This a!!roach can allow the courts to de!art #rom the literal meaning of the words used.

FEBB " E*O AIR +AR1O and 1RANT " SOUT5 FESTERN TRAINS- case where no inconsistent with EU law :ickstone v. +reemans and Litster certainl! seem to show the de"elo!ment o# a new )udicial !ractice that moves %e!ond the restraints on statutor! interpretation prior to /0=<. 2owever, it would %e wrong to assume that literal inter!retation is 'dead(& The starting point remains a literal reading of the statute.

Literal rule still work +arole 2ouise Fe%% "& E*O Air +argo 5@C7 Limited $o.<, the /0=> 8ex Discrimination .ct was again su%ject to interpretation. .s the 2ouse of Lords could interpret the relevant sections of the .ct in such a wa!, there was no need to distort the language o# the statute or to otherwise alter the literal sense& "ebb was followed in Ala%aster "& Foolwich "<DD># %! the 'ourt of .ppeal, when the! disapplied the re&uirement for a male comparator under the E&ual :a! .ct /0=D to allow an increase in maternity pa!ments under the relevant E' law. That mean it does not inconsistent with E@ law when

male failed to claim the 9maternit! pa!ment

Limit of E@s purposive approachsexual moralit! ,t is also worth remem%ering that the law o# the EU itsel# limits the !ur!osi"e a!!roach& This can %e seen in 1rant "& South Festern Trains& The E+C re#used to !rohi%it discrimination %ased on sexual orientation. In theory, they might ha"e %een a%le to %roaden the terms of .rticle //0 and the relevant directives. 2owever, the court felt that as community law did not recognise homosexual marriages, this issue could onl! %e dealt with at a national level.

 ;rant indicates one extreme constitutional line that +ommunity law will not cross. ,t is interesting that this raises a &uestion of sexual morality. The conse&uence of this means that while issues of sexual discrimination have fre&uentl! formed the context for tensions %etween @C and 'ommunit! law that have occasioned de%ates on the accepta%le %oundaries of judicial discretion, %ut the resistance to e7ual rights #or gays and les%ians =sexual morality> means that it is unli ely to gi"e rise to acts o# %old inter!retation&

 .nother issue which no inconsistent is that E@ law did not applied to non?+ommunity national R& "& Immigration A!!eal Tri%unal Ex !& Bernstein "/0EE# ' 5female7 sought was 9modestl! paid and 9did not justif! recourse to a #oreign wor er(. applicant argued E@ law re&uired the 8ex Discrimination .ct /0=> to %e interpreted in such a wa! as to a!!ly to immigration !roceedings& 3irecti"e did not 'o%lige mem%er-8tates to o%serve the principle of e&ual treatment in granting !ermits to non? +ommunity nationals outside the 'ommunit! seeking leave to

enter and work in a mem%erstate ".# 5FF7.

8, definition- Do whatever lies within jurisdiction to conform 1ecent cases have further clarified the terms of the interpretative powers of the court. P#ei##er "& 3eutsches Rotes 8reuG "<DD># stressed this point 9the principle of interpretation in conformit! with 'ommunit! law re7uires the re#erring court to do whate"er lies within its )urisdiction, having regard to the whole %od! of rules of national law, to ensure that "a Directive# is full! effective.

 .n ela%oration of this principle can %e seen in Re"enue and +ustoms "& I3T +ard Ser"ices Ireland 2td& "<DD4# ,n interpreting a tax directive, the +ourt o# A!!eal a!!lied 1haidan 5see %elow7 even though the case did not raise a human rights !oint& ,n interpreting European @nion law, the court asserted that the correct approach was to ensure that the court e!t within the #undamental terms o# the legislation in &uestion. ,n so doing, a wide !ower o# inter!retation did not %reach the principle of legal certainty.

T5E PO2ITI+S O0 INTERPRETATION UN3ER T5E 5U*AN RI15TS A+T The interpretative provisions of the 2uman 1ights .ct have had a major impact in judicial interpretative practices. 3ur consideration of the new practices has to %egin %! looking at section F of the .ct. $ote first of all that the range of this provision - it applies to primar! and secondar! legislation 9whenever enacted - %efore or after the .ct. The effect of s.F 5<7 %, however, is that the incompati%ilit! of a piece of primar! legislation with the 21. does not mean that this legislation is held to %e void. ,n other words, parliamentar! sovereignt! is left in place. )e are thus concerned with

the realignment of a judicial practice rather than its complete redefinition. The pressing &uestion is how will the courts interpret legislation in the light of s.F? The government )hite :aper, 91ights (rought 2ome stated that s.F would go 9far %e!ond the rules prior to the 21. which had allowed the court to take into account the E'21 in interGpreting legislation and clarif!ing am%iguit! 9The courts will %e re&uired to interpret legislation so as to uphold convention rights unless the legislation itself is so clearl! incompati%le with the 'onvention that it is impossi%le to do so. )hile this clearl! articulates a rule of interpretation, it leaves a great deal of discretion in the hands of the interpreter to determine whether or not it is impossi%le to

interpret legislation as compati%le with the 'onvention. )e are concerned once again with the constitutional %oundaries of the judicial practice. 3ne of the first ke! authorities is )ilson v. +irst 'ount! Trust. Let us consider Lord $icholls argument. 2e addressed the idea that the courts are themselves pu%lic authorities, and therefore %ound %! the 21.. )ould this mean that as the courts are %ound %! the .ct, the! would %e compelled to discount an .ct of :arliament that was inconsistent with the .ct? This would clearl! %e a ver! %road interpretation of the 2uman 1ights .ct. ,ndeed, it would effectivel! make the 2uman 1ights .ct itself sovereign, and %ring to an end the sovereignt! of :arliament. .s this was never the intended effect of

the .ct, it could not %e a valid interpretation. ,n interpreting a statute in the light of the 21., it was necessar! to a%ide %! constitutional principles and give effect to the will of :arliament* however, the court could consider the 9proporGtionalit! of legislation. ,n approaching the issue of proportionalit!, the court was fulfilling a reviewing role. :arliament retained the primar! responsi%ilit! for deciding the appropriate form of legislation. The court would reach a different conclusion from the legislature onl! when it was apparent that the legislature had attached insufficient importance to a persons 'onvention right. The readiness of the court to depart from the views of the legislature depended on the circumstances,

one of which was the su%ject matter of the legislation. The more the legislation concerned matters of %road social polic!, the less read! a court would %e to intervene. The interpretation of sections F and 6 has shown itself to %e one of the sites where the scope of the .ct has %een fought out. .s $icol has o%served, those judges 9who wish the 21. to ensure that the 'onvention rights as interpreted %! the European 'ourt of 2uman 1ights %ecome the supreme law of the land take a %road approach to section F that ena%les the court to strain the literal meaning of an .ct to find a 'onvention compliant interpretation. $icol opposes this interpretative faction to those who understand the .ct as 9a uni&ue participator! instrument, which

must involve the courts and :arliament in a dialogue over the extent of human rights in common law. This tendenc! prefers narrower interpretations of section F, with the concomitant reliance on declarations under section 6. Thus, underl!ing the disagreeGments over the scope of the .ct are different understandings of 9constitutional fundaGmentals. 2as this argument %een resolved in the wake of .nderson in favour of the narrow interpretation of section F? )e will examine this claim, and Cavanaghs counter argument in the following section. 3:E$,$; T2E +,ELDH /I.. ,n 1. v. .., the 2ouse of Lords interpreted 8ection 6/ of the 'riminal Evidence .ct /000 in the light of .rticle 4. 8ection 6/ prevented evidence %eing given

a%out the complainants sexual histor! without the leave of the court. The instances where the court could allow this kind of evidence were narrowl! drawn. Despite the clarit! of the wording of the section, the 2ouse of Lords interpreted the .ct so as to make it compati%le with .rticle 4. ,n Lord 8te!ns judgment, the interpretative powers given to the court under section F were %road enough to allow a 9linguisticall! strained inter-pretation, even when there was no am%iguit! in the .ct. 'an 1e 8. %e seen as a reacGtion to the 9judicial overkill of 1. v. .. ? The 'ourt of .ppeal interpreted the 'hildrens .ct /0E0 in such a wa! as to make it compati%le with .rticles E and 4. The 2ouse of Lords disagreed with this approach, asserting that

section F did not allow a court to read a statute in such a wa! as to depart from 9a fundamental feature of the .ct ".# meaning which departs su%stantiall! from a fundamental feature of an .ct of :arliament is likel! to have crossed the %oundar! %etween interpretation and amendment. This is especiall! so where the departure has practical repercussions which the court is not e&uipped to evaluate.>= This argument rests on the distinction %etween the functions of the executive and the courts. The former are far more a%le to create polic! and assess its impact, as the court is fundamentall! passive and limited to responding to the evidence given %! parties to a dispute. Audges must therefore restrain the uses that the! make of

section F. Lord $icholls was especiall! critical of Lord 8te!ns position. ,t was not the case that the courts interpretative dut! would onl! %e limited %! express words indicating that :arliament intended that an .ct was incompati%le with the 'onvention. There thus appears to %e a departure from 1. v. . in 1e 8. - a line of reasoning that was confirmed in .nderson.>H :L3@;2,$; . $E) +@113)? 1. 53$ T2E .::L,'.T,3$ 3+ .$DE183$7 B. 8E'1ET.1I 3+ 8T.TE +31 T2E 23?E DE:.1T?E$T The argument pressed upon the 2ouse of Lords in .nderson was that as the sentencing powers of the 2ome 8ecretar! in section <0 of the 'riminal 58entences7 .ct /00= were incompati%le with

.rticle 4, their Lordships should read into this section a re&uireGment for the 2ome 8ecretar!s power to %e limited %! the recommendation of the trial judge and the Lord 'hief Austice. The 2ouse of Lords refused to accept this position, and were unanimous in their agreement that reading section <0 in this wa! would exceed the interpretative powers of section F. Lords (ingham, 8te!n and 2utton agreed with Lord $icholls speech in 1e 8. $icol o%serves that even Lord 8te!n performed a 9volte face and appeared to retreat from the arguments made in 1. v. .. :recisel! %ecause a panel of seven Law Lords decided .nderson, it represents a resolution of the argument a%out the scope of the courts interpretative powers in the

understanding of the position of the court articulated %! Lord $icholls. Later cases, such as (ellinger v. (ellinger>0 are coherent with .nderson. ,n the former, Lord 8te!n referred to Lord $icholls speech and, in the latter, a certificate of incompati%ilit! was issued, rather than su%ject the ?atrimonial 'auses .ct /0=F to a strained reading. .re we therefore to accept that 1e 8. and .nderson represent the correct statement of the limits of section F? Cavanagh argues that the significant differences of fact %etween 1. v. .. and 1e 8. mean that 1e 8. cannot %e given the status accorded to it %! $icol. 1. v. .. concerned judicial interpretation of a specific section of the /000 J= 1e 8. "<DD<# @C2L /D, at 6/.

 >E 1. 5on the applicatiort of .nderson7 v. 8ecretar! of 8tate for the 2ome Department "<DD<# @C2L 64. >0 (ellinger v. (ellinger "<DD<# / .ll E1 F//. .ct. ,n 1e 8., there were no sections of the 'hildrens .ct /0E0 that could %e singled out. The 'ourt of .ppeal was thus forced to consider 5in 2ale LAs words7, not so much what the .ct said, %ut what it did not sa!. 1e 8. cannot, therefore, %e seen as dealing with the same issue as 1. v. .. +urthermore, whereas the conse&uences of t he 'ourt of .ppeals decision in 1e 8. would have had significant cost implications for local authorities, 1. v. .. concerned an area in which the courts have much greater competence the regulation of the

forensic process. 1e 8. cannot %e read as a more general statement of a correct judicial attitude to section F. .s Cavanagh puts it 8ection F5/7 should not %e used as a wa! of radicall! reforming a whole statute or writing a &uasi legislative code granting new powers and setting out new procedures to replace that statute. 2owever, that does not necessaril! mean that the decision rules out the t!pe of 9reading in which was adopted in 1. v. .. ,f this argument is correct, then cases such as .nderson must %e seen as specific responses to statutes, rather than as evidence of a coherent judicial attitude adopted to section F. The refusal of the 2ouse of Lords in .nderson to read limitations into the power of the 2ome 8ecretar! under section <0

of the /00= .ct can %e explained %! reference to the context in which the case was heard. The E't21 had just issued two rulings against the @C holding that section <0 was in %reach of .rticle 4. .s the government was thus 9legall! o%liged to change the law, there would have %een no point in making a strained interpretation of section <0 and, thus, the %etter course of action was to issue a certificate of incompati%ilit!. (ellinger shows that the 9case %! case or 9limited law making powers of the court were not suita%le to interpret the ?atrimonial 'auses .ct in a radical wa!* it was correct to issue a declaration of incompati%ilit! so that :arliament could assess the polic! implications of changes in the law.

 )hat do we make of these two positions? :erhaps the precise scope of section F is still open and that 5for the most part7 the Law Lords are seeking a working relation, rather than a confrontation with :arliament. Clug has specificall! taken the notion of dialogue as the ke! to understanding the operation of the .ct (ehind the construction of ss.F and 6 was a carefull! thought-out constitutional arrangement that sought to inject principles of parliamentar! accounta%ilit! and trans-parenc! into judicial proceedings without removing whole polic! areas to judicial determination. ,n other words it sought to create a new d!namic %etween the two %ranches of the 8tate.46

 Clug argues that Lord 2opes approach in 1. v. . is much closer to the spirit of the .ct than that of Lord 8te!n. The 9dialogic relationship envisaged %! the .ct re&uires the judges to have the 9courage to issue declarations, and to activel! engage the dialogue with the executive, rather than to see them as a last ditch measure. Declarations cannot therefore %e seen as a distortion of the judges relation to :arliament* rather, the! are part of a vision of the legislature, the executive and the judiciar! 9influencing each other. )hether or not this means that .nderson correctl! states their position is open to &uestion. 2owever, evidence on declarations of incompati%ilit! also suggests that the .ct is opening up a

dialogue %etween the courts and the executive. ?E$D,$; +E$'E8? ;2.,D.$ BK ;3D?-?E$D3L. . good example of a %road interpretation of an .ct under the 21. is ;haidan v. ;odin- ?endoMa. The case saw the 2ouse of Lords dealing with a &uestion of propert! law that related to succession to a tenanc! under paragraph < of schedule / to the 1ent .ct /0==. The defendant was contending that the 1ent .ct discriminated against him as a homosexual in depriving him of rights over the flat of his deceased partner. )hat precisel! was the issue in ;haidan? :aragraph <5<7 makes a distinction %etween a heteroGsexual and a homosexual couple who are living together. +or the former, the survivor can take over the tenanc!

if the propert! was in the name of the deceased, whereas for the latter, the survivor cannot. The survivor in a ga! relationship is not deprived of all rights over the propert!. 2eNshe is entitled to an assured tenanc!. 2owever, in terms of %oth rent protection and rights against eviction, the survivor of the homosexual relaGtionship is clearl! not in as %eneficial a situation as the survivor of the heterosexual relationship. The 'ourt of .ppeal had held that the .ct amounted to an infringement of the defendants rights under .rticles E and /6 of the 'onvention. The 'ourt of .ppeal had used s.F of the 21. to read the .ct in a %road wa!, thus allowing the defendant to take over the tenanc! of the flat. The 2ouse of Lords dismissed the appeal

against this ruling, and confirmed the approach of the 'ourt of .ppeal. ,t was thus not necessar! to issue a declaration of incompati%ilit!, as the .ct could %e read in such a wa! as to make it 'onvention compliant. The 2ouse of Lords did note, however, that the new meaning of the .ct must %e 9consistent with the fundamental features of the legislative scheme. )e need to investigate this argument in a little more detail. Lord $icholls pointed out that there are a num%er of wa!s of reading s.F as there is a certain degree of am%iguit! in the word 9possi%le. . narrow reading would hold that s.F onl! allowed courts to resolve am%iguities in statutor! language in favour of 'onvention-compliant interpretations. . much %roader

interpretation of the section has %een preferred, which allows the courts to give a different meaning to the language of the statute in order to make its meaning consistent with the 'onvention. This could involve reading in words, as in 1. v. .. There is no need for the language of the .ct to %e am%iguous for the 'ourt to take this course of action. This means that the court can 9depart from the unam%iguous meaning the legislation would otherwise %ear. $ormall!, the court would have to determine the intention of :arliament %! using the language in the .ct. 2owever, s.F means that the court ma! have to 9depart from the intention of the enacting :arliament. )e can %egin to appreciate how the 2uman 1ights .ct makes for a

potentiall! radical departure from conventional methods of interpretation. 2owever, this does nor extend to the idea that the court is now an e&ual partner with :arliament when it comes to legislation. The fundamental re&uirement is that the courts should follow :arliamentar! intention in interpreting an .ct. The &uestion %ecomes how would a court know that it is legitimate to depart from :arliamentar! intention? The answer to this &uestion depends on the degree to which :arliament intended that the 9actual words of a statute, as opposed to the concept that those words express, is to %e 9determinative of the .cts meaning. )hat does this mean? Lord $icholls argues that the determinative factor cannot %e the word of the

.ct, since the 21. allows them to %e interpreted against their o%vious sense. ,t would %e possi%le, therefore, for a court to read words into an .ct. This would %e consistent with the fact that s.F 9re&uires that courts read in words to make an .ct compliant with the 'onvention. There is a limit to this process. .lthough the court can read in words, :arliament could never have intended that 9the courts should adopt a meaning inconsistent with a fundamental feature of legislation 5i%id.7. This would cross the line, and show the courts interfering with the sovereign rights of :arliament. f DE+,$,$; T2E :.1.?ETE18 3+ T2E $E) :1.'T,'E The sample of cases that we have %een examining suggests that we

are at the cutting edge of a new kind of judicial practice. :erhaps we can think of the practice of statutor! interpretation as the judges entering into some form of dialogue with :arliament. This would certainl! have the authorit! of Aack 8traw, who, in a :arliamentar! de%ate, argued that :arliament and the judiciar! must engage in a serious dialogue a%out the operation and development of the rights in the (ill . . . this dialogue is the onl! wa! in which we can ensure the legislation is a living development that assists our citiMens.=/ ,f we accept that the idea of dialogue is useful then it is necessar! to determine the precise terms in which it operates. ,f this is a democratic dialogue, then it cannot simpl! %e a judicial

usurpation of legislative power in the name of human rights. .s Lord ,rvines words &uoted in the introduction suggest, the dialogue must take place within a constitutional settlement that stresses separation of powers. 2owever, it is necessar! to accept that the dialogue does open up a new judicial voca%ular!. Does this take us %ack to the proportionalit! test? The proportionalit! test is a powerful mechaGnism that can allow either the %road interpretation of statutor! language or the reading i n of words in order to make legislation 'onvention compliant. 2owever, the test, as shown %! ;haidan v. ;odin-?endoMa, must itself %e su%ject to some constraints, otherwise the courts would %e moving far %e!ond the powers

given to them %! the 2uman 1ights .ct, as the intention of the .ct was to preserve parliamentar! soverGeignt!. The approach in ;haidan was legitimate %ecause the interpretation proposed %! the 2ouse of Lords was consistent with the fundamental polic! o%jectives of the legislation, which were to provide securit! of tenure. 'learl!, where a judicial interpreGtation moved %e!ond the polic! of legislation, the courts could not effectivel! legislate in :arliaments place. ,t could thus hesitatingl! %e suggested that after the 2uman 1ights .ct judicial practice is changing to such an extent that judges now have an acknowledged legislative power. This allows them to make legislation 'onvention compliant. 'ompared to the legislative power of :arliament it is

limited, %ut the interGpretative provisions of the /00E .ct effectivel! makes judges the legislators of human rights. This is perhaps coherent in some wa! with Clugs interpretation of the .ct.=< 8he argues that sections F and 6 %ring an end to 9judicial deference to the legislature* in particular, judges need to appreciate that s.6 allows them to enter into a dialogue with :arliament. ,t would %e a mistake to see s.6 as mandating a change of law, rather the .ct 9was specificall! structured to allow the courts to uphold rights while also retaining parliamentar! authorit!. Clug suggests that the 21. was intended to 9inject princiGples of parliamentar! accounta%ilit! and transparenc! into judicial proceedings without removing

whole polic! areas to judicial determination. 'hanges in judicial practice would have to %e seen as driven %! the 9new d!namic that the .ct attempts to create.=F This would suggest that the precise terms of the practice or dialogue of statutor! interpretation in the wake of the 21. are focused on sections F and 6. Cavanagh has O/ Aack 8traw, F/6 2' //6/, Aune <6. 'ited in Clug 5<DDF /F/7. =< Clug 5<DDF7. =F ,%id., /FD. made similar points. )e can consider her response to the criticisms of 1. v. ..J@n-critical issue is of the nature of the o%ligation under s.F5l7, and whether it allows or re&uires the court to depart from the intention of :arliament expressed in the

words of the statute. :lacing 1. v. .. in the context of Lam%ert, Cavanagh asks wh! this authorit! has %een singled out for criticism, when in Lam%ert the court went against the clear intention of :arliament. This %egs the &uestion a%out how parliamentar! intention is understood. 1ecent authorities on s.F5/7 suggest that there are two legisGlative intentions at pla!, namel! that which is underl!ing the statute in &uestion, and that which is 9expressed in s.F5l7. 8ection F5/7 onl! %ecomes relevant when there is a 9conflict %etween these two intentions. 2ow should this conflict %e resolved? ,f one applies the doctrine of implied repeal, the later .ct would repeal the earlier, %ut as the 21. applies to legislation 9whenever enacted, then it would appl! to legislation

after /00E. The 9effect of s.F5l7 is thus &uite specific 3rdinaril!, :arliament intends its legislation to %e understood in accordance with its ordinar! meaning. (! empowering judges to go %e!ond the ordinar! meaning, s.F5l7 instructs judges to go against that legislative intention. This is supported %! the .; reference 6 of <DD< which descri%es s.F5l7 as 9ver! strong and far reaching and can re&uire a departure from the 9intention of :arliament. This would justif! the approach of Lord 8te!n in 1. v. .., %ut also in his wider reflec-tions on the justification for a more expanded role for the judiciar!. Ela%orating these arguments is %est left for 'hapters /D and // %ut we need to move awa! from

static understandings of the court somehow mechanicall! tr!ing to discover the intention of :arliament through a literal reading of an .ct. )e also need to understand the practiceO of statutor! interpretation as a dialogue. ,n this dialogue the courts do not usurp die legislative power of :arliament, %ut on a mandate given to them %! :arliament itself, engage in articulating legislation that is compliant with human rights. '3$'L@8,3$ 8tatutor! interpretation is a pragmatic practice within constitutional limits. ,n attempting to define the parameters of the contemporar! practice of statutor! interpre-tation we have avoided an! approach that stressed the centralit! of the rules of interpretation and have attempted

instead to see how, in important cases, judges actuall! interpret the statutor! language with which the! have %een presented. )e have haMarded a general thesis. .longside the presumptions of interpretations, which descri%e the concern with the general structure of the law as meaningful language, there is a structuring concern with the parameters of the practice. This can onl! %e descri%ed in constitutional terms. )here does the %oundar! lie %etween interpreting a statute and creating new law? This raises the issue of institutional legitimac!. +or us the development of the practice is itself %ound up with three important recent develop-ments the ruling in :epper v. 2art, the impact of European interpretative methods, and the powers of

interpretation created %! the 2uman 1ights .ct. .s a general point, descri%ing judicial practice re&uires an engagement with specific legal issues, the tensions in approach that show an interaction %etween different judicial understand-ings of practice, and the spaces in the law that allow these arguments to %e made. (uilding on the previous chapter, we could sa! that practices alwa!s allow for a degree of dispute over their central terms and suppositions. 3ver time, these disputes ma! %ecome resolved, or at least less 9hot, and the practice assumes a conventional form. ;iven the impact of so man! recent legal developments in statutor! interpreta-tion, it would not %e surprising to find some degree of dispute over the precise

consti-tution of legitimate techni&ues. 2owever, this can exist alongside a more or less settled understanding of the fundamental orientation of the practice. )hat we find in recent statutor! interpretation is just this mixture of coherence and dispute. Thus a central strand in the emerging practice of statutor! interpretation can %e seen as an ongoing dialogue with :arliament over the relationship %etween domestic legislation and human rights.