CA-2024-002756 - [2025] EWCA Civ 1038

Ms Davies argued that section 3 of the Human Rights Act 1998 should be applied; and that the policy ought to be “read down”. This is a new argument which was not put before the judge. But it is wrong. Section 3 relevantly provides:

“(1)

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2)

This section—

(a)

applies to primary legislation and subordinate legislation whenever enacted…”

In my judgment section 3 does not help her. It would only come to her rescue if, but for section 3, Ms Abdelrahman’s Convention rights would have been infringed. Since HHJ Bloom decided that they were not infringed (and this court ought not to interfere with her evaluation) there is no occasion for section 3 to be applied. That, to my mind, is clear from Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557: Lord Millett (in a dissenting speech) at [60]; Lord Rodger at [106]; Lady Hale at [145]. Mance LJ made a similar point in Michalak at [56].

Second, section 3 applies to the interpretation of legislation (whether primary or subordinate). We, however, are concerned with interpreting Islington’s policy, which is not legislation. For that reason, also, section 3 does not apply.