April 17th, 2024 by James Goudie KC

In SOS for BUSINESS v MERCER ( 2024 ) UKSC 12 the Supreme Court, in relation to Trade Union legislation that fails to provide protection against sanctions short of dismissal penalising participation in lawful strike action, considers Section 3 of the Human Rights Act 1998 ( the interpretative presumption ) and Section 4 ( declarations of incompatibility ), and partially allows the appeal.

The approach to Section 3 is well established. So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with rights guaranteed under the European Convention of Human Rights. The Courts are required to interpret primary legislation to comply with Convention rights unless the legislation makes it impossible to do so Lady Simler, with whom the other Justices agree, says, at para 94, that, nonetheless, there are limits. Not all provisions in primary legislation can be rendered compliant. While Section 3 gives the Court a “ powerful tool “ with which to interpret legislation , it does not enable the Court to change the substance of a provision from one where it says one thing into one that says the opposite. A meaning cannot be adopted inconsistent with a fundamental of legislation. Account must be taken of practical repercussions.

When as in this case a Convention-compliant construction is not possible the question is whether a declaration of incompatibility should be made under Section 4. That was done in this case, by reference to Article 11 of the Convention.

Comments are closed.