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On Thursday last week the President of the Supreme Court Lord Phillips delivered the inaugural Alexander lecture on public law, entitled “The art of the possible: statutory interpretation and human rights”, to a distinguished audience at Inner Temple Hall.

The Alexander lectures are organised by Brick Court Chambers in memory of Lord Alexander of Weedon QC, who died in 2005.  Lord Phillips gave a one hour judicial masterclass on his chosen subject, namely the increasingly wide approach taken by the Courts to the interpretation of statutes over the past thirty years (in particular in light of the Human Rights Act 1998): a suitably fitting tribute to a barrister described by Lord Denning as “the best advocate of his generation”.

After tributes to Lord Alexander from Sir Sydney Kentridge QC, chairing the event, and Lord Phillips (who described him as “his oldest friend at the bar”), Lord Phillips began by highlighting the personal contribution made by Lord Alexander to the field of statutory interpretation.  It was in the Diana Prosperity [1976] 1 WLR 989 that the then Bob Alexander QC persuaded the House of Lords to depart from the previously accepted canon of interpretation, strictly limited by the four corners of the contract, to consider the commercial purpose of the contract and the factual background in which it was made.

Lord Phillips traced the further evolution of the doctrine through developments such as Pepper v Hart (in which the House of Lords approved the use of Hansard as an aid to interpretation when the statutory provision in question was ambiguous or obscure or leads to absurdity, summarised by Lord Phillips as a judicial “wrong turn”), to the “European” cases following the European Communities Act 1972 such as Marleasing (in which the ECJ held that domestic legislation should be interpreted as far as possible in order to give effect to European directives).

However, the most significant development has been the Human Rights Act (s.3 of which requires domestic legislation to be read and given effect to in a way which is compatible with ECHR right).  Just how far does that obligation extend?  In Ghaidan v Godin-Mendoza, which Lord Phillips described as the “definitive” case on s.3 HRA 1998, the House of Lords held that s.3 could permit a Court to depart from a provision whose meaning was unambiguous, if that provision was not ECHR compatible, with the dramatic implication that s.3 could oblige a Court to disregard the legislative purpose of subsequent Parliaments.  Lord Phillips quoted with approval the following passage from Laws LJ in Thoburn v Sunderland City Council:

“We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes.  The two categories must be distinguished on a principled basis.  In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.”

The examples given of such constitutional statutes are Magna Carta, the Bill of Rights, the Act of Union, the Reform Acts, the European Communities Act, and the Human Rights Act.  Armed with these quasi constitutional statutes, judges can now in some circumstances apply the law in ways which are contrary to the unambiguous will of Parliament (albeit in human rights cases via the ‘shrewd compromise’ of declarations of incompatibility).  In concluding, Lord Phillips referred to the recent decision in HM Treasury v A (reviewed here on the UKSC Blog) in which the UKSC held that the government’s regime for freezing the assets of suspected terrorists (passed by resolution from the UN Security Council, but not by Parliament) was unlawful, since it breached the common law principle of legality.  Giving judgment in that case, Lord Phillips had expressed the view that had the regime been enacted by an Act of Parliament, the principle of legality could not have prevailed over the clear and unambiguous will of Parliament.  However, his Lordship wondered, given that the past thirty years had proven the “art of the possible”, would this conclusion be proved wrong in years to come?

Update: The full text of Lord Phillips’ speech is now available courtesy of Brick Court Chambers, and can be downloaded here.