1. Lord Irvine ‘The Development of Human Rights in Britain under an Incorporated Convention on Human Rights’ (1998) PL 221 at 228. Sir William Wade ‘Human Rights and the Judiciary’ (1998) EHRLR 520 at 529.

2. Section 3(1) of the Human Rights Act 1998. Similar provisions are included in the Acts establishing devolved government. However, the wording of these sections is, rather confusingly, different. Section 101 of the Scotland Act (1998) provides that Scottish legislation ‘is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.’ While s 83 of the Northern Ireland Act (1998) states that an Act of the Northern Ireland Assembly ‘shall be read in the way which makes it within that competence or, as the case may be, does not make it invalid by reason of that section, and shall have effect accordingly’ . These provisions, Lord Cooke has observed, ‘may come to much the same thing… Nonetheless it seems odd that apparently different rules of interpretation are enacted to apply in different parts of the United Kingdom’ . See further Lord Cooke ‘The British Embracement of Human Rights’ (1999) EHRLR 243 at 255.

3. Lord Irvine, above n 1, at 228. Lord Lester ‘The Art of the Possible’ (1999) EHRLR 664, passim.

4. G Marshall ‘Interpreting Interpretation in the Human Rights Bill’ (1998) PL 167 at 167.

5. In one sense it is unique. This provision has created far more debate over its nature than either its South African or New Zealand equivalents.

6. Sir Robin Cooke ‘A Sketch from the Blue Train’ (1994) NZLJ 10 at 11. Lord Cooke has made similar remarks about the Human Rights Act. See Lord Cooke of Thorndon, above n 2, at 249.

7. The availability of the declaration of incompatibility (s 4) means that in practice judicial scrutiny under the Human Rights Act will be closer to the full constitutional review experienced in South Africa and Canada. British courts will not be burdened by the jurisprudential difficulty (the so-called s 4-5-6 conundrum) that the courts of New Zealand face in applying their Act. Sections 4 and 5 read as follows:

Other Enactments Not Affected

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), (a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or (b) decline to apply any provision of this enactment by reason only that the provision is inconsistent with any provision of this Bill of Rights.

Justified Limitations

Subject to Section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Read together ss 4 to 6 reveal an inherent tension. Section 5, which was clearly influenced by the constitutional Canadian Charter, sits uneasily in a statutory bill of rights lacking an equivalent of s 4 of the Human Rights Act. How and when does it apply? And what is its relationship with ss 4 and 6 which command the judiciary to uphold legislation’? Once an inconsistency with the Bill is identified, does s 5 require a limitations analysis? Indeed, does s 5 have any use given that in the end the conflicting statue must always be upheld under s 4? There are no easy answers to this problem as, for example, the various conflicting judgments in Ministry of Transport v Noort (1992) NZLR 260 reveal. Commenting on the interrelationship between these sections, Butler concludes that it ‘is so uncertain as to render the interpretation and application of the Bill a daunting and confusing exercise’ . See A Butler ‘The Bill of Rights Debate: Why the New Zealand Bill of Rights Act 1990 is a Bad Model for Britain’ (1997) 17 OJLS 323, 326, 325-336, and P Joseph ‘The New Zealand Bill of Rights’ (1996) 7 PLR 162, 167 for a review of the problems which the New Zealand Act has posed.

8. Chapter 3 of the Interim Constitution is entitled ‘Fundamental Rights’, but is usually referred to as the Bill of Rights.

9. See also s 232(3), which makes similar provision for the interpretation of laws in constitutional litigation not involving the Bill of Rights. Provisions similar to ss 35(2) and 232(2) are not, for some reason, included in final Constitution (Constitution of the Republic of South Africa Act 1996). However, s 233 of the final Constitution contains a requirement that South African law is to be construed, where reasonably possible, in conformity with the international obligations of the Republic.

10. Discussed below. See also Lord Cooke's remarks on the differences between s 6 of the New Zealand Bill and s 3 of the Human Rights Act., above n 2 at 249.

11. Lord Steyn ‘Incorporation and Devolution - A Few Reflections on the Changing Scene’ (1998) EHLRR 151, 153.

12. Minister of Home Affairs v Bickle 1984 (2) 2 SA 431 at 448. Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd (1982) 2 SA 778. R v Rube (1992) 3 SCR 159 at 159 per Lamer CJC. In R v Nickel City Transport (1993) 14 OR (3d) 115 at 149 Arbour JA concluded that ‘where the proper construction of a statutory provision is uncertain the courts will construe the statute in a manner that is consistent with the Charter rather than in a manner that would be offensive to its provisions’.

13. 297 US 288 (1936). See also Crowell v Benson (1931) 285 US 22 at 65 per Hughes CJ.

14. 297 US 288 (1936) at 346 and 349.

15. Section 3 applies to all courts exercising jurisdiction within the United Kingdom, and not simply those empowered under s 4(2) of the Act to make a declaration of incompatibility. Thus, a Magistrate's Court, for example, will be required to apply s 3 notwithstanding its inability to make a declaration of incompatibility.

16. Prinsloo v Van Der Linge 1997 (3) SA 1012 at para 13 per Ackerman, O'Regan and Sachs JJ.

17. See, for instance, A-G (Canada) v Hallet & Carey Ltd (1957) AC 427 at 449. where the Judicial Committee concluded that ‘there are many so-called rules of construction… But the paramount rule remains that every statute is to be expounded according to its manifest and expressed intention’.

18. Section 3 has been described by Lord, Lester As ‘a strong command to the judges’ (HL Debates Vol 583 Google Scholar, col 534 (18 November 1997)).

19. The Human Rights Act may be a simple statute, but it unquestionably enjoys a special status as an enactment giving legal status to fundamental rights and freedoms. ‘Human rights legislation,’ as the Canadian Supreme court observed, ‘is of a special nature and declares public policy regarding matters of general concern’ . Re Winnipeg School Division No 1 and Cranton (1985) 21 DLR (4th) 1 at 6 per McIntyre J. See also Lord Lester, above n 3, at 668, and D Feldman ‘The Human Rights Act 1998 and Constitutional Principles’ (1999) 19 LS 168 at 178.

20. G Marcus ‘Interpreting the Chapter on Fundamental Rights’ (1994) SAJHR 92 at 96.

21. D Feldman, above n 19, at 185–186.

22. According to Carol Rogerson, reading down is a term coined by Canadian academic lawyers. Previously they had referred to such a technique as part and parcel of the ordinary principles of statutory interpretation. See further C Rogerson ‘The Judicial Search for Appropriate Remedies under the Charter: the Examples of Overbreadth and Vagueness’ ch 8 in R Sharpe Charter Litigation (Toronto: Butterworths, 1986) p 247. Du Plessis and Corder refer to s 35(2) as the ‘reading down provision’ . See further their comments in L Du Plessis and H Corder Understanding South Africa's Interim Bill of Rights (Kenwyn, RSA: Juta and Co. 1994) pp 120–121.

23. The Federal Constitutional Court of Germany has adopted an interpretative technique identical to the common law presumption of constitutionality - verfassungskonforme Auslegung. This precludes the court adopting distorted interpretations. See further 2 BVerfGE 226, 282; 18 BVerfGE 97, 111; 53 BVerfGE 147, 153. Cited by Ackermann J in Bernstein v Bester 1996 (2) SA 751, discussed below.

24. Lord Lester, above n 3, at 669.

25. Smith v Attorney-General (Boputhswana) 1984 (1) SA 196 at 202 per Hiemstra CJ. See also the analysis by L Du Plessis and J R de Ville ‘Bill of Rights Interpretation in the South African Context (2) - Diagnostic Observations’ (1993) Stell LR 199 at 201–203.

26. Prinsloo v Van Der Linge 1997 (3) SA 1012, at para 13 per Ackerman, O’ Regan and Sachs JJ.

27. See S v Bhulwana 1996 (1) SA 388, at paras 26–29 per O'Regan J and Nel v Le Roux NO 1996 (3) SA 562, at para 18 per Ackermann J. See also the remarks of Hardie Boys J in Knight v Commissioner of Inland Revenue (1991) 2 NZLR 30 at 45 on the applicability of s 6 of the New Zealand Bill of Rights.

28. A Scottish court faces a problem here. Does it apply s 3 of the Human Rights Act which applies to subordinate legislation (ie Acts of the Scottish Parliament) ‘whenever passed’ (s 3(2)(a)) or does it follow s 101 of the Scotland Act enacted after the Human Rights Act?

29. (1982) 2 SA 778.

30. (1982) 2 SA 778 at 783.

31. A Butler ‘A Presumption of Compatibility with the Charter’ (1993) 19 Queen's LJ 209 at 241.

32. 1996 (1) SA 984.

33. Constitution of the Republic of South Africa Act 1993, s 25(3).

34. Bernstein v Bester 1996 (2) SA 75 1, at para 60 per Ackermann J.

35. 1996 (2) SA 751.

36. Section 13 of the interim Constitution states: ‘Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private Communications.’

37. 1996 (2) SA 751, at para 60 per Ackermann J.

38. 1996 (2) SA 751, at para 60 per Ackermann J. Emphasis added.

39. Emphasis in the original.

40. 1996 (2) SA 751, at para 62 per Ackermann J. The reasoning has been applied since in Nel v L Roux NO 1996 (3) SA 562.

41. The relevant provisions read as follows:

The Director may by notice in writing require the person whose affairs are to be investigated (’ the person under investigation’) or any other person whom he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.

Any person who without reasonable excuse fails to comply with a requirement imposed on him under this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

See also S Nash and M Furse ‘Self-Incrimination, Corporate Misconduct and the Convention on Human Rights’ (1995) Crim LR 854. Emphasis added.

42. Coetzee v Republic of South Africa 1995 (4) SA 63 1, at para 62 per Sachs J.

43. Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd (1982) 2 SA 778 at 783d.

44. Lord Irvine, above n 1, at 228–229.

45. Butler, above n 3 1, at 213.

46. S v Mbahapa 1991 (4) SA 668.

47. Article 11(3) of the Constitution guarantees that: ‘All persons who are arrested and detained in custody shall be brought before the nearest Magistrate or other judicial officer within a period of forty-eight hours of their arrest or, if this is not reasonably possible, as soon as possible thereafter, and no such persons shall be detained in custody beyond such period without the authority of a Magistrate or other judicial officer.’

48. The omnibus s 50 is not reproduced for reasons of space.

49. S v Mbahapa 1991 (4) SA 668 at 676 per Hannah JA. Muller JA concurred.

50. S v Mbahapa 1991 (4) SA 668 at 676.

51. Butler, above n 31, at 226.

52. Butler, above n 31, at 232.

53. Rogerson, above n 22, at p 241. See also Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385 at 439 per L'Heureux-Dubé J.

54. 1997 (3) SA 1012. The leading judgment was a joint opinion of Ackermann, O'Regan and Sachs JJ, delivered by Sachs J.

55. Act No 122 of 1984.

56. Section 84 provides: ‘When in any action by virtue of the provisions of this Act or the common law the question of negligence in respect of a veld, forest or mountain fire which occurred outside a fire control area arises, negligence is presumed, until the contrary is proved.’

57. Section 25(3)(c) provides ‘Every accused person shall have the right to a fair trial, which shall include the right to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial.’

58. S v Zuma 1995 (2) SA 642.

59. 1997 (3) SA 1012, at para 45 per Didcott J.

60. 1997 (3) SA 1012, at para 14 per Ackermann, O'Regan and Sachs JJ's.

61. M Supperstone and J Coppel ‘Judicial Review after the Human Rights Act’ (1999) EHRLR 301 at 322–325.

62. Arguably s 3 when read with s 6 will render the decision of the House of Lords in R v Secretary for the Home Department Ex parte Brind (1990) 1 AC 696 irrelevant. See Lord Lester, above n 3, at 688.

63. (1989) 59 DLR (4th) 416. For an invaluable discussion of the application of the Charter to statutory discretion, see J Ross ‘Applying the Charter to Discretionary Authority’ (1991) 24 Alberta LR 382.

64. Applied in R v Rube (1993) 1 WWR 385, at paras 1-2 per Lamer CJC and, more recently, in Delisle v Canada (1999, unreported) Supreme Court of Canada dated 14 September 1999 per Bastarache J at para 23.

65. (1989) 59 DLR (4th) 416 at 444 per Lamer J. His Lordship dissented in part, but spoke for the court on this point.

66. (1989) 59 DLR (4th) 416 at 444.

67. (1989) 59 DLR (4th) 416 at 444.

68. (1989) 59 DLR (4th) 416 at 444. A point which is often missed by commentators.

69. This scrutiny should take place in addition to the ordinary heads of judicial review. See further Ross, above n 63, at 414.

70. Sections 1 and 2(b) Canadian Charter of Rights and Freedoms 1982.

71. Butler, above n 31, at 241.

72. (1961) IR 345. See further the useful and cogent discussion by Butler, above n 31, at 230–231, to which I am indebted and on which the discussion in this part draws.

73. Disassociation being the corollary of the right to association. See further National Union of Railwaymen v Sullivan (1947) IR 77.

74. The term was defined at common law.

75. (1961) IR 345 at 398.

76. Butler, above n 31, at 231.

77. Case v Ministry of Safety and Security 1996 (3) SA 61 7, at para 79 per Morgoro J.

78. Case v Ministry of Safety and Security 1996 (3) SA 6 17, at para 79 per Morgoro J.

79. See eg Rocker v Royal College of Dental Surgeons (1991) 71 DLR (4th) 68 at 82–83 per McLaughlin J for the court.

80. 1998 (4) SA 1127.

81. Act No 101 of 1965. Referred to hereafter as the Medicines Act.

82. So far as it is relevant s 28 (1) provides:

‘An inspector may at all reasonable times – (a) enter upon any premises, place, vehicle, vessel or aircraft at or in which there is or is on reasonable grounds suspected to be any medicine or Scheduled substance; (b) inspect any medicine or Scheduled substance, or any book, record or document found in or upon such premises, place, vehicle, vessel or aircraft; (c) seize any such medicine or Scheduled substance, or any books, records or documents found in or upon such premises, place, vehicle, vessel or aircraft and appearing to afford evidence of a contravention of any provision of this Act; (d) take so many samples of any such medicine or Scheduled substance as he may consider necessary for the purpose of testing, examination or analysis in terms of the provisions of this Act.’

83. Above n 37.

84. 1998 (4) SA 1127, at para 21.

85. 1998 (4) SA 1127, at para 23.

86. 1998 (4) SA 1127, at para 23.

87. 1998 (4) SA 1127 at para 32.

88. Osborne v Canada (1991) 82 DLR (4th) 321 at 347 per Spoinka J.

89. Osborne v Canada (1991) 82 DLR (4th) 321 at 347.

90. Kauesa v Minister of Home Affairs 1996 (4) SA 965 at 987 per Dumbutshena AJA (Namibian Supreme Court).

91. See eg Lord Irvine, above n 1, at 228; or Lord Lester, above n 3, at 673.

92. Schachter v Canada (1992) 93 DLR (4th) 1 at 12–13 per Lamer CJC.

93. Schachter v Canada (1992) 93 DLR (4th) 1 at 19 per Lamer CJC.

94. See eg Vriend v Alberta (1998) 156 DLR (4th) 385 cited by Lord Lester, above n 3 at 672.

95. For instance in Nova Scotia v Phillips (1986) 34 DLR (4th) 633 the Nova Scotia Court of Appeal, in a pre-Schachter decision, did exactly this, holding invalid a welfare programme which extend benefits to single mothers, but not single fathers, unconstitutional. This dilemma is not one which faces a British court in dealing with an under-inclusive Act of Parliament, as the strongest remedy available to it is the declaration of incompatibility which does not affect the continuing validity of the Act.

96. J Klaaren ‘Judicial Remedies’ in M Chaskalson et al Constitutional Law of South Africa (Kenwyn, RSA: Juta and Co, 1996-1999) pp 9–6.

97. P Hogg Constitutional Law of Canada (Scarborough, Ontario: Carswell, 1999) pp 37–16.

98. Case v Ministry of Safety and Security 1996 (3) SA 617, at para 76 per Morgoro J.

99. Coetzee v Republic of South Africa 1995 (4) SA 631, at para 62 per Sachs J.

100. (1998) 1 NZLR 523 at 541. For discussion see A Butler ‘Same-Sex marriage and freedom from discrimination in New Zealand’ (1998) PL 396 and P Rishworth ‘Reflections on the Bill of Rights after Quilter v Attorney-General’ (1998) NZLR 683.

101. Section 52 of the Constitution Act 1982 provides that ‘the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect’ . See Schachter v Canada (1992) 93 DLR (4th) 1 at 11–14 per Lamer CJC.

102. See eg his remarks that ‘the sovereignty of Parliament should not be disturbed’ 585 HL 839 (3 November 1997).

103. G Marshall ‘Two kinds of compatibility: more about s 3 of the Human Rights Act 1998’ (1999) PL 377 at 378.

104. Lister v Forth Dry Dock and Forth Estuary Engineering (1990) 1 AC 546.

105. Van Gend en Loos (1963) ECR 1 at 12 and Costa v ENEL (1964) ECR 585 at 593. For a cogent summary see A Whelan ‘National Sovereignty in the European Union’ in T Murphy and P Twomey Ireland's Evolving Constitution 1937-1997 – Collected Essays (Oxford: Hart Publishing, 1998), pp 280–283.

106. Devolution will create some interesting anomalies. A Scottish court may be able to read in provisions into an Act of Parliament passed before the Scotland Act 1998 because not only is the subject matter is within the competence of the Scottish Parliament but also presumably because it is impliedly repealed by the later Scotland Act. A Court in England and Wales faced with the same impugned Act would only have recourse to the declaration of incompatibility.

107. Once again, it is fair to say that the so-called s 4-5-6 conundrum in New Zealand under the New Zealand Bill of Rights Act makes the contribution of those courts practically worthless in resolving this particular issue. See Butler, above n 8, at 325–337.

108. Osborne v Canada (1991) 82 DLR (4th) 321 at 326.

109. Hogg, above n 97, at pp 37–16 and Butler, above n 31, at 243–245.

110. R v Nickel City Transport (1993) 14 OR (3d) 115 at 148.

111. Tarnopolsky JA wrote a concurring judgment, but based his conclusion on different reasoning. Grange JA somewhat remarkably agreed with both sets of reasons.

112. RSO 1990 CH8.

113. R v Nickel City Transport (1993) 14 OR (3d) 115 at 138.

114. 1986 24 DLR (4th) 536.

115. R v Nickel City Transport (1993) 14 OR (3d) 115 at 149. Her Honour concluded thus: ‘I am satisfied that I can safely conclude that s. 116 of the Highway Traffic Act was intended to create a strict liability offence, using the presumption of constitutionality, or that in any event it must be read that way in order to conform with the requirements of s 7 of the Charter.’ Emphasis added.

116. On the facts of this particular case the accused was unable to make out the defence of due diligence.

117. R v Nickel City Transport (1993) 14 OR (3d) 115 at 149.

118. Arguably, this is the most important limb of the test, or ‘the heart and soul of s.1 justification’ as Hogg puts it (above n 97 at 35–30.) See further R v Oakes (1986) 26 DLR (4th) 200. In other words, in such circumstances can a court interpret the statute so as to impair the right or freedom to a lesser extent?

119. R v Nickel City Transport Ltd (1993) 14 OR (3d) 115 at 148–149 per Arbour JA. See also R Sullivan Driedger on the Construction of Statutes (Toronto: Butterworths, 3rd edn, 1994) p 328.

120. L Du Plessis and H Corder Understanding South Africa's Interim Bill of Rights (Kenwyn, RSA: Juta and Co, 1994) p 101 commentingon s 35(2) of the interim Constitution.

121. Eg Lord Lester ‘The Impact of the Human Rights Act on Public Law’ in J Beatson Constitutional Reform in the UK: Practice and Principles (Oxford: Hart Publishing, 1998) p 106.

122. Matadeen v pointu (1999) 1 AC 98 at 110 per Lord Hoffmann.

123. In a compelling case a minister can, of course, make a remedial order under s 10 of the Human Rights Act (the so-called ‘fast-track’ procedure).

124. Bhim Singhji v Union of India AIR 1981 SC 234 at 242. Cited in Butler, above n 31, at 210.

125. HL Debs vol 583, col 840 (5 February 1998).