Against Interpretation as an Alternative to Invalidation

This paper's object is to sound a note of caution against the rise of remedial interpretation (ie a court rewriting a statute to render it compatible with a constitutional norm) as an alternative to statutory invalidation as a remedy for violations of constitutional norms in Anglo-American countries (eg s 3 of the UK Human Rights Act, the expanding principle of legality). It argues that there are a number of rule-of-law concerns with the practice, eg, diminishing the transparency of exercises of judicial power and exacerbating the gap between the text and operation of statutes. Finally, it considers the limits of this argument, in particular, that a preference for invalidation over interpretation presumes an absence of institutional failure (ie a responsive, competent legislature that is capable of enacting new constitutionally compatible statutes following invalidation of constitutionally incompatible statutes).