Part A Essential elements of the legal system 2: Sources of law 31
6.2 Impact on statutory interpretation
Under the HRA UK courts are required to interpret UK law in a way compatible with the Convention so
far as it is possible to do so. Existing legislation must therefore be interpreted in a way which is
compatible with Convention Rights. This means that courts must take into account decisions and
judgements of the European Court of Human Rights when hearing a case.
Where legislation can be interpreted in two ways, one compatible with the Convention and one that is
incompatible, courts must follow the interpretation that is compatible. However, if a court feels that
legislation is incompatible with the Convention and that it cannot interpret it in such a way to make it
compatible, it may make a declaration of incompatibility. You should note that such a declaration does
not make the legislation invalid, however it is up to the legislator to remedy the situation.
Bellinger v Bellinger 2003
The facts: The court had to consider whether or not a male to female transsexual could be treated as a
female under the Matrimonial Causes Act 1973.
Decision: The court was unable to interpret the act to allow the transsexual to be considered female. It did
however issue a declaration of incompatibility.
6.3 Impact on the common law
UK courts must take into account the judgements and decisions of the ECHR when interpreting UK law.
The Act also requires UK courts to take into account the case law of the European Court of Justice when
making judgements. To some extent this affects the doctrine of precedent as it permits the overruling of
English law where it conflicts with the Convention. However, it has only been applied in exceptional
circumstances.