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Section 3 HRA 1998 – Limits of Interpretative Duty

In a ruling with broad implications (WB v W Council [2018] EWCA Civ 928), the Court of Appeal has decided that the interpretative duty imposed on courts and tribunals by section 3 of the Human Rights Act (HRA) 1998 can have to yield to other principles of statutory construction such as the Barras principle.

The Barras principle is shorthand for the rule of statutory construction that where the courts have interpreted a term in an enactment and Parliament makes further legislative provision using the same term, it is presumed to have chosen that the same meaning should apply in re-enacting the provision or similar legislation.

In 1993, the House of Lords held that a homeless person with mental disabilities, who could not understand the choices she had to make when offered accommodation, could not be treated as an applicant for the purposes of Part VII of the Housing Act 1996 (R v Oldham Metropolitan Council ex parte Garlick [1993] AC 509).

The Appellant, in this case, sought to argue that Garlick was no longer good law in light of the interpretative duty arising under s.3 HRA 1998.

The Court of Appeal dismissed the Appellant's appeal. Arden and Asplin LJ agreed, and Lewison LJ gave a judgment concurring in the result, but for narrower reasons. The majority held that it is not the function of s.3 to require the courts to apply a Convention compliant interpretation if other principles of statutory interpretation prevented it from doing so.

Barras might be one of those. The weight to be given to the Barras principle might vary from case to case, but in the instant case, the legislative history and treatment of the relevant provisions was so clear that changing their meaning would be going beyond the duty to interpret legislation in a Convention compliant manner. Accordingly, the argument based on s.3 failed. To interpret the provisions differently would be to "go against the grain" of the legislation.

All 3 judges agreed that s.3 applies regardless of whether a local authority or court would otherwise be bound by the normal rules of precedent.

Wayne Beglan acted for W Council.