Reading down and the art of the possible

Family Law|September 9th 2015

OK, for those who recognise the second half of the above title I will immediately put your mind at rest: this post has nothing to do with politics (at least not directly)!

On Monday, President of the Family Division Sir James Munby handed down his judgment in Re Z, in which he decided that a parental order cannot be made on the application of a single parent. The judgment was interesting to me, as it was the first time I can recall reading a discussion of the concept of ‘reading down’ in the context of the Human Rights Act 1998 (I clearly did not read the previous cases on the subject!). For the uninitiated, reading down here refers to section 3(1) of the Act, which says:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

In other words, any legislation that is not compatible with the European Convention on Human Rights (in particular legislation that predates the Human Rights Act) will, if possible, be interpreted in such a way as to make it compatible. It seems, on the face of it, a fairly straightforward concept, and as most of our legislation must surely be compatible anyway, I had not previously considered that there might be instances when legislation cannot be ‘read down’ in accordance with section 3(1).

However, Re Z shows that such situations can and do exist. In the course of his judgment the President helpfully set out the law on what is and is not permissible when it comes to reading down in accordance with section 3(1). In particular, he referred to the key authority on the subject, the decision of the House of Lords in Ghaidan v Godin-Mendoza, in which Lord Nicholls said:

“Section 3 is open to more than one interpretation. The difficulty lies in the word “possible”. Section 3(1), read in conjunction with section 3(2) and section 4, makes one matter clear: Parliament expressly envisaged that not all legislation would be capable of being made Convention-compliant by application of section 3. Sometimes it would be possible, sometimes not.”

So how does a court decide what is possible? Lord Nicholls again:

“Parliament … cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation … Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed.”

So section 3(1) does not entitle the court when interpreting legislation to adopt a meaning inconsistent with a ‘fundamental feature of the legislation’. As Lord Rodger put it:

“If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.”

Returning to Re Z, the question was whether section 54(1) of the Human Fertilisation and Embryology Act 2008 (which provides that in certain circumstances the court may make a parental order on the application of “two people”) could be ‘read down’ to make it compatible (in particular) with the right to family life under Article 8 of the Convention, and thereby enable the court to accept an application by one parent.

The President held that it could not:

“Given that a parental order is a creature of statute, given that this part of the statutory scheme goes to the core question, the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, in my judgment, a “fundamental feature”, a “cardinal” or “essential” principle of the legislation…”

Hence the applicant father, as a single parent, could not bring himself within section 54(1) of the 2008 Act, and his application therefore failed.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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