Abstract —Section 3 of the Human Rights Act provides courts with a distinctive, and controversial, power to (re)interpret legislative provisions, where ‘possible’, in a manner which is compatible with the rights under the European Convention on Human Rights. However, much of the commentary on this provision relies disproportionately on a small handful of early landmark cases, which, whilst important, risks obscuring how section 3 is routinely applied by courts, including lower courts, in reality. This article provides an empirical account of how section 3 has been interpreted and applied in practice, drawing on qualitative and quantitative measures and a bespoke dataset compiling all successful uses of section 3 in the case law. It brings insights into how judges conceptualise their duty under section 3; which factors influence and control its use; and the relationship between section 3 and other methods of interpretation. Ultimately, it will be argued that section 3, however radical it may be in theory, is subject to significant judicial constraints in practice.
Lewis Graham (Tue,) studied this question.