Office for Gas and Electricity Markets v Pytel

It is a misconception that courts may always "read in" words to primary legislation under section 3 of the Human Rights Act 1998 to remove incompatibility with Convention rights. Instead, section 3 only permits a Convention‑compliant reading so far as that is possible without departing from the fundamental thrust or a core feature of the statute. Where a proposed reading would contradict necessary implications of the statute, remove criminal liability, or require piecemeal reform of a complex multilateral regulatory scheme, section 3 cannot be used and a declaration of incompatibility or legislative amendment is for Parliament or the authorised minister.

The claimant, an analyst employed by the regulator, sought disclosure of documents said necessary to prove whistleblowing detriments under Part IVA and V of the Employment Rights Act 1996. The regulator relied on the general prohibition on disclosure in section 105 of the Utilities Act 2000. The Employment Tribunal read section 105 so as to permit disclosure for whistleblowing proceedings by effectively adding an exception under section 3 of the Human Rights Act 1998. The regulator conceded incompatibility of section 105 with Articles 6 and 10. The EAT was asked to decide whether section 105 could lawfully be read as compatible under section 3, and whether the ET had erred.

(1) The EAT allowed the appeal and substituted its decision for that of the Employment Tribunal. The ET had erred in law in its approach to section 3 of the Human Rights Act 1998 and in its treatment of section 105 of the Utilities Act 2000 (see paras [63]–[71]; [97]).

(2) It is not possible to read section 105 so as to make it compatible with Articles 6 and 10 in the way proposed by the ET. The prohibition in section 105(1) and its carefully crafted exceptions, the criminal sanction in section 105(9), and the statutory scheme taken as a whole show that the amendment proposed by the ET would cross the boundary between interpretation and legislation (see paras [72]–[89]; [97]).

(3) Factors supporting that conclusion included: (a) omission from the list in section 105(6) is properly read as deliberate; (b) the right of an information-owner to withhold consent under section 105(2) would be overridden; (c) Parliament gave the Secretary of State express power to amend section 105(6) by order, indicating the institutional route for change; and (d) the ET's reading would remove criminal liability (see paras [85]–[88]; [92]).

(4) The ET misapplied admissible materials in construction by relying on Parliamentary debates where there was no relevant ambiguity (see para [70]).

(5) The correct remedy where primary legislation cannot be read compatibly is a declaration of incompatibility under section 4 or amendment by Parliament or the Secretary of State, not judicial "reading in" (see paras [43]–[56]; [97]).

(6) Consequence: the ET's order for disclosure was wrong in law and of no effect. The appeal is allowed (see para [97]).

• Employment Appeal Tribunal: Appeal from Employment Tribunal (London Central) decision of Employment Judge Lewzey; judgment of the EAT substituted for the ET's decision (10 December 2018) (see paras [1]; [97]).