The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so.
The intention of Parliament in enacting s.3 was that, to an extent bounded only by what is 'possible', a court can modify the meaning, and hence the effect, of primary and secondary legislation. Parliament, however, 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. That would cross the constitutional boundary s.3 seeks to demarcate and preserve.
It is my view not open to the courts to foreclose them by adopting an interpretation of the existing legislation which it not only does not bear but which is manifestly inconsistent with it.
Interpretation under s.3 brings about significant changes in the traditional role of Parliamentary intention in statutory interpretation. It shifts the interpretive focus away from what Parliament originally intended, towards fulfilling the overriding goal of achieving compatibility with the Convention. When interpreting under s.3, judges can detach legislative meaning from its original contextual setting.
'The question of whether something is "in the interests" of national security is not a question of law. It is a matter of judgment and policy.'
'They (the judiciary) should guard against a presumption that matters of public interest are outside their competence and be ever aware that they are now the ultimate arbiters (although not ultimate guarantors) of the necessary qualities of a democracy in which the popular will is no longer always expected to prevail.'
'The structure of the ECHR (the qualified rights) makes clear that an interference with the relevant Convention right is only justifiable if it is in accordance with the law necessary in a democratic society, criteria upon which the view of the executive cannot possibly be conclusive. Indeed it is the very ethos of the ECHR that the courts will be the arbiters of these criteria.'
'The effect of the 18-hour curfew
meant that the controlled persons were in practice in solitary confinement for this lengthy period every day for an indefinite duration.'
'(the decision of the Grand Chamber) establishes that the controlee must be given sufficient information about the allegation against him to enable him to give effective instructions in relation to those allegations.'
'I agree that the judgment of the European Court of Human Rights requires these appeals to be allowed. I do so with my very considerable regret, because I think that the decision of the ECHR was wrong and that it may well destroy the system of control orders which is a significant part of this country's defences against terrorism.'
'We continue to have very serious concerns about the human rights compatibility of both the control orders regime itself and its operation in practice.'