Interpreting the Interpretive Obligation: Empirical Insights into the Use of Section 3 of the Human Rights Act 1998

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.