The role of parliamentary intention in adjudication under the Human Rights Act 1998

Oxford Journal of Legal Studies

Volumn 26, Issue 1, 2006, Pages 179-206

  Kavanagh, Aileen ^a  

^a UNIVERSITY OF LEICESTER   (United Kingdom)

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EID: 33645637134     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqi049     Document Type: Article

References (229)

1. 'An Overview' in J.Beatson (ed.), The Human Rights Act and the Criminal Justice and Regulatory Process (Oxford: Hart Publishing, 1999) xiv.
2. Laws LJ reiterates this view in 'The Impact of the Human Rights Act 1998 on the Interpretation of Enactments in the UK' in R. Bigwood, The Statute: Making and Meaning (Wellington: LexisNexis, 2004) at 248.
3. See also Sir Stephen Sedley, 'The Rocks or the Open Sea: Where is the Human Rights Act Heading?' (2005) 32 J Law & Society 3, at 17.
4. [2004] 2 AC 557.
5. Ibid para 30.
6. See also Lord Woolf in Poplar Housing v Donaghue [2002] QB 48, para 72: 'when the courts interpret legislation, normally their primary task is to ascertain the intention of Parliament. Now the traditional role is adjusted so as to give effect to the direction contained in section 3'.
7. F. Bennion, 'What is "possible" under section 3(1) of the Human Rights Act 1998' (2000) PL 77, 91
8. R. Edwards, 'Reading down legislation under the Human Rights Act' (2000) LS 353, 356
9. D. Feldman, 'The Human Rights Act and Constitutional Principles' (1999) LS 165, 185-6
10. Lord Lester, 'Human Rights and the British Constitution' in J. Jowell & D. Oliver (eds) The Changing Constitution (Oxford: OUP, 4th edn, 2000), 103.
11. Bennion, ibid at 91.
12. See, e.g. R (Anderson) v Secretary of State for the Home Department [2002] 3 WLR 1800, para 59 per Lord Steyn; para 30 per Lord Bingham.
13. R v A (No. 2) [2002] 1 AC 45.
14. See, e.g. F. Klug, 'Judicial Deference under the Human Rights Act 1998' (2003) EHRLR 125 at 128-9.
15. For an assessment of, and response to this critique, see Kavanagh, 'Unlocking the Human Rights Act: The Radical Approach to Section 3(1) Revisited' (2005) EHRLR 259, at 267-70.
16. G. Marshall, 'The Lynchpin of Parliamentary Intention: Lost, stolen, or strained?' (2003) PL 236, 237-8.
17. Ibid at 237.
18. Lord Nicholls, n 2 above, para 30.
19. This distinction is also outlined in Kavanagh, 'Pepper v Hart and Matters of Constitutional Principle' (2005) 121 LQR 98, 100.
20. This has been described as the distinction between application intentions and further purposes, see A. Marmor, Interpretation and Legal Theory (Oxford: Clarendon Press, 1992) 165ff;
21. see also G. MacCallum, 'Legislative Intent' in R. Summers (ed.) Essays in Legal Philosophy (Oxford: Blackwell, 1968) 237.
22. See further A. Kavanagh, 'Original Intent, Enacted Text and Constitutional Interpretation' (2002) 47 American J of Jurisprudence 255, 265.
23. MacCallum, above n 13 at 261
24. see also Marmor, above n 13 at 161.
25. J. Steyn, 'Pepper v Hart; A Re-examination' (2001) 21 OJLS 59, 66.
26. Jeremy Waldron thus refers to the statutory text as 'canonical', see 'Legislators' Intentions and Unintentional Legislation' in A. Marmor (ed.), Law and Interpretation (Oxford: Clarendon Press, 1995) 355
27. Law and Disagreement (Oxford: Clarendon, 1999) 145
28. see also Dworkin, Law's Empire (Cambridge, Mass.: HUP) 343.
29. As Waldron puts it: 'Beyond the meanings embodied conventionally in the text of the statute, there is no state or condition corresponding to "the intention of the legislature" to which anything else - such as what particular individuals or groups of legislators said, wrote, or did - could possibly provide a clue...There simply is no fact of the matter concerning a legislature's intentions apart from the formal specification of the act it has performed', Law and Disagreement,
30. ibid, 142
31. see also Marmor, above n 13 at 159ff.
32. See Marmor, above n 13 at 159-63
33. see also Raz, 'Intention in Interpretation' in R. George (ed.) The Autonomy of Law (Oxford: Clarendon Press, 1996) 263-268.
34. Arguably, the decision of Pepper v Hart [1993] AC 593 is an exception to this general rule.
35. However, the House of Lords now seems to have retreated substantially from this decision in Wilson v First County Trust (2003) 3 WLR 568:
36. see further Kavanagh, above n 12 at 98-122.
37. This was famously described by Lord Radcliffe as the 'paramount rule' of statutory interpretation: A-G for Canada v Hallett & Carey Ltd [1952] AC 427, 449.
38. It has been endorsed recently by the House of Lords in Wilson v First County Trust, ibid, para 56 per Lord Nicholls.
39. R. Cross, Statutory Interpretation, J. Bell & G. Engle (eds) (London: Butterworths, 3rd edn, 1995) 14.
40. Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613.
41. This is borne out by the fact that only a very small proportion of the statute book ever comes before the courts for interpretation, see Cross, above n 22, 1.
42. Cross, above n 22, 1, 22
43. see also Z. Bankowski & N. MacCormick, 'Statutory Interpretation in the United Kingdom' in N. MacCormick & R. Summers (eds) Interpreting Statutes (Aldershot: Dartmouth, 1991) 382.
44. MacCallum, above n 13, 242.
45. Ibid 50ff.
46. The Law Commission in 1969 described the purposive approach to interpretation as the 'construction that would promote the general legislative purpose underlying the provision in question, quoted in Cross, above n 22, 17.
47. Ibid 49.
48. For further discussions of the relationship between the enacted law-making intention and legislative purpose, see Marmor, above n 13 at 166-8
49. see also J. Raz, 'Intention in Interpretation' in R. George (ed.) The Autonomy of Law (Oxford: Clarendon Press, 1996) 274-77
50. R. Dworkin, Life's Dominion (New York: Vintage, 1993) 133-35.
51. R. Dworkin, A Matter of Principle (Cambridge, Mass: HUP, 1986) 15.
52. Ibid, at 39
53. Cross, above n 22, 33.
54. See generally Cross, ibid, ch 7
55. F. Bennion, Statutory Interpretation: A Code (London: Butterworths, 4th edn, 2002) 739ff.
56. This presumption was stated in broad terms by Lord Browne Wilkinson in the recent case of R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539, 575
57. followed in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 [12] per Lord Bingham of Cornhill.
58. Parliament is presumed not to enact legislation which interferes with the liberty of the subject, unless it makes it clear that this was its intention: Cross, above n 22, 175.
59. This is known as the principle of 'legality', see R v Secretary Of State for the Home Department, ex parte Simms [2000] 2 AC 115, 132 per Lord Hoffmann.
60. The only exception to this is if Parliament makes its intentions clear in the words of the statute. However, in some cases, even a clearly expressed enacted intention has been insufficient to rebut the application of certain presumptions, see, e.g. Anisminic v Foreign Compensation Commissioners [1969] AC 147.
61. See Lord Woolf 'Droit Public-English Style' 1995 PL 57, 66-67
62. see also T. Endicott, 'Constitutional Logic' (2003) 53 UTLJ 206-8.
63. A. Bradley & K. Ewing, Constitutional and Administrative Law (Essex: Pearson Education, 13th edn, 2003) 18
64. Cross, above n 22, 166
65. see also Bankowski & MacCormick, above n 25, 391.
66. J. Willis, 'Statute Interpretation in a Nutshell' (1938) 16 Canadian Bar Review 1, 17
67. D. Keir & F. Lawson, Cases in Constitutional Law (Oxford: Clarendon Press, 6th edn, 1979) 3
68. see also M. Hunt, Using Human Rights Law in English Courts (Oxford: Hart Publishing, 1998) who argues that judicial use of the common law presumptions of statutory interpretation is 'one of the various means by which English courts have asserted an indigenous human rights jurisdiction', 174.
69. Though Trevor Allan rightly points out that since these presumptions reflect principles of constitutional importance, it may be doubted whether even express rebuttal is sufficient to outweigh them in some cases, see Allan, 'Legislative Supremacy and Legislative Intention: Interpretation, Meaning and Authority' (2004) 63 CLJ 685 at 689.
70. The presumptions of statutory interpretation then form part of the 'shared interpretive conventions that permit meaningful communication between legislators and executors (agencies and courts)': J. Manning, 'Textualism as a Non-Delegation Doctrine' (1997) 97 Columbia L Rev 673, 696.
71. See Cross, above n 22, 167; for the view that the law-maker's knowledge of the conventions of interpretation is a way of giving Parliament control over the law it enacts,
72. see Raz, above n 30, 267.
73. For helpful discussion of the issues surrounding counterfactual attributions of intention, see Dworkin, Law's Empire (Cambridge, Mass: HUP, 1986) 325-6
74. see also Marmor, above n 13, 169.
75. [2000] 1 AC 115.
76. Ibid, at 129
77. see also R v A, 67 (per Lord Steyn).
78. Cross, above n 22, 17.
79. C. Gearty, 'Reconciling Parliamentary Democracy and Human Rights' (2003) 119 LQR 248, 255
80. see also D. Rose & C. Weir, 'Interpretation and Incompatibility: Striking the Balance' in J. Jowell & J. Cooper (eds), Delivering Rights (Oxford: Hart Publishing, 2003) 49.
81. s 3(1) HRA.
82. Lester, above n 4, 103
83. see also Lord Irvine of Lairg, HL Deb vol 583 col 508 18 November 1997.
84. It follows that although the Convention does not impliedly repeal other (later) statutes in a formal sense, the interpretive obligation under s 3 entails that the judiciary are obliged to render that legislation compatible with the Convention, if possible, through the interpretive process, see H. Fenwick, Civil Rights - New Labour, Freedom and the Human Rights Act (Essex: Longman, 2000) 42-3.
85. This view about the priority of the s 3(1) intention over the legislative intention of the impugned legislation where the courts finds an incompatibility is also supported by Laws LJ, above n 1 at 248.
86. R v A, above n 7.
87. Ibid, 67 (emphasis added)
88. see also Kebilene [2000] 2 AC 326, 345 per Lord Bingham;
89. R (Anderson) v Secretary of State for the Home Department, para 18, per Lord Bingham;
90. see also Lord Lester, 'The Art of the Possible - Interpreting Statutes under the Human Rights Act' (1998) EHRLR 665, 671. This line of reasoning has also been used in relation to section 4 HRA in Anderson where Lord Hutton pointed out that 'if the courts declare that Parliament acted incompatibly with the Convention there is no question of the courts being in conflict with Parliament or of seeking or purporting to override the will of Parliament. The court is doing what Parliament has instructed them to do in section four of the 1998 Act'.
91. [2004] UKHL 43.
92. Ibid, at para 53.
93. C. Clayton & H. Tomlinson, The Law of Human Rights (Oxford: OUP, 2000) 167.
94. This way of understanding s 3(1) is also supported by Edwards, above n 4, 355,
95. Bennion, above n 4, 77
96. Fenwick, above n 51, 43.
97. Ghaidan V Mendoza, above n 2, [50];
98. see also Lord Steyn, '2000-2005: Laying the Foundations of Human Rights Law in the United Kingdom' (2005) EHRLR 349, at 359
99. Lord Steyn, 'Incorporation and Devolution - A Few Reflections on the Changing Scene' (1998) EHRLR 153, 155
100. Lord Cook of Thornton, HL Deb vol 582 col 1272 (Second Reading) 27 November 1997
101. Edwards, ibid, 355.
102. Laws LJ argues that 'the challenge of the Human Rights Act will be to develop common law rules of statutory interpretation conformably with the Convention, but as part of a continuum with everything that has gone before', n 1 above, xiii;
103. see also Feldman, above n 4, 173.
104. On the value of continuity in legal interpretation generally, see J. Raz, The Authority of Law (Oxford: OUP, 1979), 208-9
105. and 'Why Interpret?' (1996) 9 Ratio Juris 349, 357-61.
106. This is not to deny that there may be some overlap between Convention rights and traditional common law rights, as was pointed out by Lord Hoffmann in Simms, above n 36, 131.
107. Moreover, in the last 40 years there has been increased judicial recourse to the ECHR in the English courts, see generally Hunt, above n 41.
108. See R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AER 720
109. Cross, above n 18, 166
110. see also Lord Hope, 'Human Rights - Where Are We Now' (2000) EHRLR 439, 440.
111. This point is affirmed in Ghaidan v Mendoza, para 30 per Lord Nicholls, para 44 per Lord Steyn, para 67 per Lord Millet;
112. R v A, para 44 per Lord Steyn;
113. R v Lambert, para 42 per Lord Steyn, para 78 per Lord Hope;
114. Poplar Housing & Regeneration Community Association Ltd v Donoghue [2002] QB 48 [59] per Lord Woolf;
115. Re S, Re W [2002] 2 AC 291 [37] per Lord Nicholls.
116. It is also set out in Rights Brought Home, Cm 3782 (1997), para 2.7.
117. The fact that it has no consequences for the method of adjudication, does not mean that the issue of characterization is unimportant. In the ongoing debate amongst administrative lawyers about the appropriate justification of judicial review, the question of whether the principles of judicial review should be characterised in terms of Parliament's 'presumed intent' is thought to be central to their legitimacy, see e.g. M. Elliott, Constitutional Foundations of Judicial Review (Oxford: Hart Publishing, 2001).
118. For further comment, see P. Craig, 'The Common Law, Shared Power and Judicial Review' (2004) 24 OJLS 237, 243ff.
119. Feldman, above n 4, 186.
120. It might be argued that a ministerial 'statement of compatibility' under s 19 HRA confirms parliamentary knowledge of this presumption. Even if this is true, it should be noted that s.19 statements are not included in the enacted statutory text. They are statements of intent or belief by the Minister in charge of the Bill as to its Conventioncompatibility. I have argued elsewhere that, as such, they will be treated by the courts as background or contextual information about the Act, but will not (and should not) be held to control or determine the judicial decision on Convention-compatibility, see Kavanagh, above n 12, 119-20.
121. It is sometimes difficult to talk about the 'interpretation intended by Parliament', because Parliament can enact legislation giving judges discretion to decide the issue themselves. In this situation, Parliament (or individual legislators) may not envisage or intend particular results or interpretations, beyond the intention to delegate the decision-making power over the issue to the courts.
122. The fact that there is some common ground between Convention rights and the rights protected under the common law means that post- and pre-HRA interpretation will not necessarily conflict.
123. See, e.g. R v A, above n 7
124. R v Lambert [2001] 3 WLR 206.
125. See, e.g. Ghaidan HL, para 24 per Lord Nicholls;
126. R (Fuller) v Chief Constable of Dorset Constabulary [2002] 3 WLR 1133 [39] per Stanley Burnton J;
127. International Transport Roth GmbH v Secretary of State for the Home Department [2002] 3 WLR 344, per Jonathan Parker LJ.
128. Roth, para 149.
129. Above n 67.
130. Ibid, at para 68, per Lord Hope.
131. The legislative objective was to penalize the unauthorized possession of dangerous drugs, knowing that many sophisticated drugs smugglers, dealers and couriers typically secrete drugs in some container, thereby enabling them to say that they are unaware of the contents, see para 36, per Lord Steyn;
132. para 71, 89 per Lord Hope.
133. Ibid, per Lord Steyn.
134. Wilson v First County Trust, above n 18 [62] per Lord Nicholls; for more detailed consideration of the role of proportionality in adjudication under the HRA,
135. see D. Feldman, 'Proportionality and the Human Rights Act 1998', in E. Ellis (ed.) The Principle of Proportionality in the Laws of Europe (Oxford: Hart Publishing, 1999) 117-44.
136. Wilson v First County Trust, para 63, per Lord Nicholls.
137. R v A, 66 per Lord Steyn
138. see also R v Lambert, n 67 above
139. R v Offen [2001] 1 WLR 421
140. Simms, above n 36, per Lord Steyn.
141. The same form of reasoning was adopted in Attorney General's Reference No 4 of 2002 [2004] UKHL 43 where the House of Lords used s 3(1) HRA to impose an evidentiary burden despite a clear parliamentary intention to impose a legal burden, see Lord Bingham, para 50.
142. Lord Nicholls, above n 2, para 32.
143. I draw attention to this point simply because adjudication which gives effect to the intention of Parliament is sometimes contrasted with creative or 'activist' adjudication. For reasons why this is a false contrast, see Dworkin, above n 27, 36ff;
144. see also Kavanagh, 'The Idea of a Living Constitution' (2003) 16 Canadian J of Law & Jurisprudence 55, 63-6.
145. [2001] 1 WLR 254.
146. Ibid, para 99.
147. Rent Act 1977, Sch 1, para 2(2).
148. Lord Nicholls, above n 2, para 35.
149. See also R v A, 68 per Lord Steyn where he argued that his Convention interpretation would achieve a major part of the legislative objective whilst attenuating 'its excessive reach'.
150. See, e.g. R v A, above n 7, 63.
151. This tendency is also noted extra-judicially by Lord Rodger of Earlsferry, 'A Time for Everything under the Law: Some Reflections on Retrospectivity' (2004) 121 LQR. 57, at 59, though he warns about the dangers of adopting this approach.
152. i.e. where the behaviour is relevant to consent and is so similar that it cannot reasonably be explained as a coincidence, per Lord Hutton, 101.
153. Para 40, per Lord Steyn. Lord Hope opined at para 92 that this showed Parliament recognized that 'as a general rule' that statutory provisions which require the accused to prove something as a defence to the offence with which he has been charged should be read and given effect to as if they imposed only an evidential burden on him.
154. [2002] 4 AER 1162.
155. Ibid, at para 35.
156. HL Deb vol 582 col 1272 (Second Reading) 3 November 1997
157. see also Lord Cooke of Thorndon, 'The British Embracement of Human Rights' (1999) EHRLR 243, 253.
158. Lord Steyn, above n 58, 155.
159. W. Wade, 'Human Rights and the Judiciary'(1998) EHRLR 520, 529
160. Clayton & Tomlinson, above n 51, 156
161. Bennion, above n 4, 91
162. Edwards, above n 4, 356.
163. Wade, ibid at 529.
164. Lord Steyn, above n 57, 155.
165. Ibid.
166. It should be noted that in Ghaidan v Mendoza Lord Rodger commented that post-HRA, a Conventioncompatible meaning arrived at by the courts is now 'the true meaning of the provision in our law' since that is the meaning which Parliament intended legislative provisions to bear, see above n 2, para 106. This is correct in the sense that if a higher court gives legislation a Convention-compatible meaning which departs from its ordinary meaning, the former rather than the latter is the legally valid interpretation. However, by saying that this is what Parliament intended, Lord Rodger is subscribing to the view advanced here that the 's 3(1) intention' takes priority over the original intention with which the legislation was enacted.
167. Emphasis added. This possibility has led some academic commentators to refer to s 3(1) as the 'bend me, shape me' provision, see D. Bonner, H. Fenwick & S. Harris-Short, 'Judicial Approaches to the Human Rights Act 1998' (2003) 52 ICLQ 549, 555.
168. R v A, 68 per Lord Steyn.
169. Lord Irvine of Lairg, 'The Development of Human Rights in Britain under the Incorporated Convention on Human Rights' (1998) PL 221, 228.
170. Cross, above n 22, 49, 93.
171. Note: In Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109 Lord Nicholls claimed at para 471 that the judicial power to rectify statutory language is 'confined to plain cases of drafting mistakes'. However, his Lordship cited pp 93-103 of Cross on Statutory Interpretation which includes the quote cited above suggesting a much broader set of reasons which would legitimate judicial rectification. Moreover, Cross provides case citations evidencing judicial approaches to statutory interpretation which 'seem to go further than what might be added to a text by necessary implication', 95. Lord Nicholls' statements may be best understood in light of Cross's point that 'many judges will prefer not to express what they are doing as a rectification of the statutory words', 98. Though see ord Woolf's more candid extra-judicial comment that 'it is the duty of the courts to remedy a defect in the statute by supplementing the statutory code' if statutory provisions have the result of conferring power which could be exercised unfairly or unreasonably, above n 38, 66.
172. Cross, above n 22, 98.
173. Ibid, at 102.
174. Para 44.
175. Lord Nicholls, above n 2, para 32
176. see also Lord Steyn, above n 2, para 41 where he warned against 'an excessive concentration and linguistic features of the particular statute'.
177. This point is made by Lord Steyn, R v A, 67.
178. See, e.g. R v A, above n 7
179. R v Lambert, n 67 above
180. R v Offen [2001] 1 WLR 206
181. Cachia v Faluyi [2001] 1 WLR 1966 (CA)
182. Ghaidan v Mendoza, above n 2
183. R v Secretary of State for the Home Department, ex parte Aleksejs Zenovics [2002] EWCA Civ 273
184. Attorney General's Reference No. 4 of 2002, above n 78.
185. e.g. Bennion, above n 4
186. R. Clayton, 'The Limits of What's "Possible": Statutory Construction under the Human Rights Act' (2002) EHRLR 559-66
187. Lord Lester, 'The Art of the Possible - Interpreting Statutes under the Human Rights Act' (1998) EHRLR 665-75.
188. For comment on this apparent consensus, see Kavanagh, 'The Elusive Divide between Interpretation and Legislation Under the Human Rights Act 1998' (2004) 24 OJLS 259, 275-7.
189. Simms, above n 36, 132.
190. Lord Bingham, above n 2, para 32.
191. Above n 108.
192. Ghaidan, above n 2, para 33,
193. following Re S, Re W, above n 61, para 41 per Lord Nicholls.
194. Ibid, at para 33.
195. [2003] 2 AC 467.
196. Ghaidan, above n 2, para 34.
197. See also International Transport Roth GmbH v Secretary of State for the Home Department [2002] 3 WLR 344, [18] per Simon Brown LJ.
198. For further discussion of the limits on the powers of judicial rectification under s 3(1), see Kavanagh, above n 110, 279-82.
199. For a more detailed examination of the recent case-law on this point (i.e. Re S, above n 61
200. Bellinger v Bellinger [2003] 2 AC 467
201. and R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837)
202. see Kavanagh, 'Statutory Interpretation and Human Rights after Anderson: A More Contextual Approach' 2004 PL 537-45.
203. Roth, ibid at para 37, per Jonathan Parker LJ.
204. [2003] 1 AC 837.
205. Ibid, at para 30.
206. Ibid, at para 59.
207. Ghaidan, above n 2, para 32.
208. An argument for a more contextual approach to understanding the judicial statements about s 3(1) is advanced in Kavanagh, above n 117.
209. Kavanagh, above n 110, 278.
210. For further discussion of this case, see generally Kavanagh, above n 117.
211. Stafford v UK (2002) 35 EHRR 1121
212. Benjamin and Wilson v UK (2002) 36 EHRR 1.
213. Though it is worth noting that neither of these options was canvassed by the House of Lords in their written judgment.
214. Apparently, as a matter of practice, he did in fact follow the judicial recommendation in almost all cases anyway. Anderson was one of 'a small minority of cases' where he did not, see Anderson, para 30 (noted by Lord Bingham).
215. Anderson [45] per Lord Steyn.
216. It is sometimes argued that it is illegitimate for judges to let predictions about what parliament will do influence their decisions, because this is a 'political' consideration. Constraints of space prevents me from addressing this argument here. However, it is not necessary for me to do so because, even if it were true, it does not show that my reading of Anderson is wrong. My claim is merely that this factor was important to the outcome of these cases. Whether this mode of judicial reasoning is legitimate or not is a separate question.
217. Marshall, above n 9, 245.
218. Similar factors influenced the House of Lords decision to issue a declaration of incompatibility in Bellinger v Bellinger, n 117 above, rather than attempt an interpretation under s 3(1).The fact that, like in Anderson, the government announced its intention to bring forward primary legislation which would remedy the incompatibility with the Convention (as declared by the ECtHR) was described by Lord Nicholls as 'having an important bearing on the outcome of this appeal', para 26.
219. Para 30 (Lord Bingham); para 59 (Lord Steyn).
220. This point is also made by Cross, above n 22, 29.
221. Lord Steyn, above n 16, 64 (emphasis added).
222. This point is also made by Cross, above n 22, 29.
223. This phrase is borrowed from Lord Woolf, above n 38, 67, referring to the judicial use of the 'presumed intention' model to justify the precedence of EU law over UK legislation.
224. As Paul Craig points out, this approach 'preserves the formal veneer of Diceyan orthodoxy while undermining its substance' and has the advantage of making Parliament rather than the courts seem responsible for the subordination of UK law to EU law: Craig, 'Sovereignty of the United Kingdom Parliament after Factortame' (1991) Yearbook of European Law 223, 251.
225. Bennion, above n 4.
226. R v A, 67 per Lord Steyn.
227. Ghaidan, above n 2, para 30.
228. It is likely that devices such as rectification or severance or 'reading in' which were available to the judiciary in exceptional cases before 1998, will now tend to be used more widely within the framework of s 3(1).
229. Black-Clawson, above n 23, 629 per Lord Wilberforce.