Declaration Of Incompatibility Research Articles

The Omid Litigation: Should Courts Hear Oral Evidence When Determining the Proportionality of Section 2(1) of the Suicide Act 1961?

This commentary reviews Mr Omid T's legal challenge for a declaration of incompatibility under section 4 of the Human Rights Act 1998. Omid argued that section 2(1) of the Suicide Act 1961 is incompatible with his Articles 2 and 8 rights under the European Convention on Human Rights (ECHR). The Omid litigation considers whether it is appropriate and necessary that courts should hear primary oral evidence with cross-examination in determining the ethical, moral, and social policy issues that underlie the assessment of whether the Suicide Act is a disproportionate restriction on Omid's rights. The question of what type of evidence would need to be available to courts to determine section 2(1)'s proportionality is an important question left unresolved by Nicklinson v Ministry of Justice. The Omid litigation concludes it is inappropriate and unnecessary that courts should hear oral evidence and permit cross-examination in determining section 2(1)'s proportionality. The commentary analyses the reasoning in the Omid litigation regarding why it is inappropriate to hear oral evidence with cross-examination in determining section 2(1)'s proportionality. The commentary then argues a persuasive case can be made for the appropriateness of oral evidence and cross-examination in assisted suicide proportionality cases.

Discretionary Space and Declarations of Incompatibility

The Human Rights Act (HRA) has long been hailed for solving the historic tension between judicial oversight of rights protection and democratic legitimacy through the ‘elegant’ and ‘ingenious schem...

Dialogic remedies

Abstract Remedies have in the past and should in the future occupy a central place in constitutional theory. It is a sign of its maturity that dialogic theories of judicial review have produced new remedies such as suspended declarations of invalidity and declarations of incompatibility. Dialogic remedies, like dialogic theories in general, are vulnerable to critiques from judicial constitutionalists that they weaken the role of courts. This article responds by outlining a two-track approach to remedies inspired in part by Alexander Bickel. In the first track, successful litigants should generally receive some tangible remedy from a court, but in the second track, courts should generally defer to the superior ability of legislatures and the executive to select among a range of systemic remedies to produce better compliance with rights in the future. Such an approach follows the aspirations of dialogic theories in drawing on the distinctive and complementary strengths of judicial and political constitutionalism. The two-track approach is applied to remedial decisions involving both laws and executive actions. Examples include a Canadian decision that employed a suspended declaration of invalidity but also allowed judicial exemptions from an assisted suicide offense and South African cases that prevent evictions and provide remedies for individual students while ordering engagement to achieve systemic housing and educational remedies.

Judicial disapproval as a constitutional technique

In this article, I consider judicial disapproval as a form of non-binding review of the constitutionality of legislation. Judicial disapproval is epitomized by the “declaration of incompatibility”—a concept that is commonly thought to have been pioneered in the United Kingdom in the 1990s. I show that the concept in fact has a considerably longer history. In the 1940s, the concept was envisaged and endorsed by Britain’s principal contributor to the drafting of the European Convention on Human Rights, David Maxwell Fyfe, and by Hersch Lauterpacht in his work on the incorporation of an international bill of rights into national legal systems. Variants on the concept were also examined and given some credence by American constitutional thinkers during the Revolutionary era and the early Republic. After considering the history of judicial disapproval as a constitutional technique, I offer some observations on the differences between judicial disapproval and Marbury-style judicial review. I conclude with a brief explanation as to why judicial disapproval is likely to persist as a form of rights review in the United Kingdom, whatever the fate of the Human Rights Act 1998.

Prisoner Disenfranchisement in the United Kingdom and the Scope of EU Law: United Kingdom Supreme Court

On 16 October 2013 the United Kingdom Supreme Court delivered judgment in two conjoined cases that considered the legality of prisoner disenfranchisement. The Court considered both the compatibility of the disenfranchising provisions with the European Convention on Human Rights (‘the Convention’), and whether those provisions breached a right to vote acquired by the appellants under European Union law. In a unanimous judgment the Supreme Court dismissed the appeals, acknowledging the incompatibility of the relevant legislation with Article 3 of Protocol No. 1 of the Convention but declining to issue a declaration of incompatibility. The Supreme Court further held that EU law does not confer upon EU Citizens a substantive right to vote in European Parliamentary elections.The cases are significant on a number of levels. First, the nuanced arguments advanced before the Court tested the jurisdictional scope of EU law and its capacity to confer rights upon EU Citizens in the absence of cross-border movement. The claims thus held the potential to widen the jurisdiction of EU law along the trajectory outlined by such ECJ case-law as Ruiz Zambrano and Fransson. Secondly, those arguments probed the extent to which the European Charter of Fundamental Rights (‘the Charter’) imports Strasbourg jurisprudence into EU law and thus creates an alternative mechanism through which to enforce Convention rights. Finally, the decision evidences the constitutional tensions that emanate from discordant interpretations of fundamental rights by national and supranational courts from discordant interpretations of fundamental rights by national and supranational courts.

Declarations of Incompatibility, Dialogue and the Criminal Law

The past 30 years have seen the development of ‘New Commonwealth’ forms of judicial review. These models of review are characterized by an emphasis on institutional dialogue over either legislative or judicial supremacy. Thus, instead of giving courts a strike down power, dialogic review grants courts the power to declare legislation ‘incompatible’ with human rights norms while leaving the final say on the legislation with the legislature. This article explores the potential for controversy when such a non-binding mechanism is employed in the arena of the criminal law. In particular, it focuses on the Northern Irish case of R v McR and the Australian case of Momcilovic v the Queen. These cases demonstrate the difficulties associated with the operation of dialogic review in the criminal law.

A Human Rights Act for Australia: A Transfer of Power to the High Court, or a More Democratic Form of Judicial Decision-Making?

Australia is the only Western democracy without some form of constitutional or legislative Bill of Rights. In 2008 the Australian Federal Government established the National Human Rights Consultation Committee, which recommended that Australia adopt a Human Rights Act similar to that in force in the United Kingdom.A number of submissions received during the consultation argued that giving the High Court of Australia power to issue declarations of incompatibility would result in a ‘transfer of power’ to an unelected judiciary. This dissertation seeks to dispel that argument as unfounded: the High Court already makes decisions which operate to protect human rights, albeit under the guise of decisions regarding the Australian Constitution or the common law. To demonstrate this point, this dissertation takes the High Court decision in South Australia v Totani (2010) 242 CLR 1, which was decided according to the constitutional requirement of judicial independence, and demonstrates that it would have been decided the same way under the United Kingdom Human Rights Act 1998. Importantly however, a Human Rights Act would give the High Court less power than it currently holds under the Constitution.That being established, this dissertation then seeks to shift the focus of the debate in Australia, from whether the High Court should have the power to make decisions regarding human rights, to why it would be better for this to occur under a Human Rights Act. Two reasons are posited in support of the latter proposition: first, a Human Rights Act would give the High Court greater democratic legitimacy, in giving it a specific legislative mandate to make decisions regarding human rights; and secondly, a Human Rights Act would result in a ‘culture of justification’ in Australia, bringing human rights to the forefront of government and public consciousness.

Contextual constitutionalism after the UK Human Rights Act 1998

Contextual constitutionalism after the UK Human Rights Act 1998† Evan Fox-Decent (bio) I Introduction The UK Human Rights Act 19981 (HRA) requires judges to review legislative and administrative action for compliance with the rights and freedoms entrenched in the European Convention on Human Rights (Convention). But unlike constitutional texts such as the Canadian Charter of Rights and Freedoms, the HRA does not empower the judiciary to strike down offending legislation. Instead, judges are directed, under section 3, that ‘so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’ If a Convention-compliant interpretation is not possible, under section 4 judges may make a ‘declaration of incompatibility.’ While such declarations do not invalidate the legislation under review, they give notice to the elected branches that the legislation violates the Convention and that, as a consequence, the European Court of Human Rights (ECHR) may find the UK in breach of its international legal obligations. Sections 6–9 of the HRA provide for judicial review of administrative action and remedies, including compensatory remedies for injuries resulting from Convention breaches. When the HRA was enacted, both supporters and detractors acknowledged its constitutional significance, though for different reasons. Admirers hailed it as ‘a quantum leap into a new legal culture of fundamental rights and freedoms’2 purporting to establish ‘a higher order framework, a constitutional order.’3 Sceptics worried that the HRA [End Page 133] embodied an unprecedented shift in political power from the elected branches to a democratically unaccountable judiciary.4 Roughly ten years on, Aileen Kavanagh’s Constitutional Review under the UK Human Rights Act and Tom Hickman’s Public Law after the Human Rights Act provide textured assessments of the HRA jurisprudence and its influence on public law. Both are firmly in the ‘admirer’ camp, offering sustained defences of review under the HRA from the perspective of sophisticated constitutional theories. Kavanagh’s book focuses on the HRA cases and the perennial tension between popular democracy and rights-based review protective of minorities. Hickman’s focus is how the HRA has reshaped UK public law. Their distinctive emphases repay close reading of both books, as do the originality, nuance, and rigour of their arguments. This article cannot do justice to the authors’ many contributions. I will pass over, for instance, Kavanagh’s insightful discussion of parliamentary sovereignty (ch 11), as well as Hickman’s persuasive critique of the failure of HRA review to impose procedural obligations when decision making affects Convention rights (ch 8). Nor will I attempt to relate their arguments to the wider literatures they engage. My chief aim is to suggest that, despite differences on some substantive matters, both are committed to a constitutional theory I shall refer to as ‘contextual constitutionalism.’ The hallmark of this theory is the contention that constitutional review is legitimate only if it pays careful attention to the legal and institutional context within which it takes place. By ‘legal context,’ I mean the context for statutory interpretation constructed by legislation and its purposes, common-law principles and values, and international norms. ‘Institutional context’ refers to features of the elected and non-elected branches that make them more or less well suited to performing certain constitutional functions, such as adjudication and law making. We shall see that the authors’ commitment to contextual constitutionalism reflects a like commitment on the part of the courts. A corollary of this theory is that one-size-fits-all prescriptions are suspect, since they threaten to efface legally significant features of particular contexts. Thus Kavanagh is critical of commentators who argue in the abstract in favour of giving preference ex ante to review under section 3 of the HRA rather than under section 4, or vice versa (ch 5; e.g. 123). For her, only an inquiry sensitive to the legal and institutional context of the relevant case can determine whether review under section 3 or section 4 is appropriate. In a similar vein, Hickman abjures [End Page 134] using proportionality in every case of judicial review of administrative action (ch 6; e.g. 183–4). We begin with the...

We Need to Talk: 'Democratic Dialogue' and the Ongoing Saga of Prisoner Disenfranchisement

Challenges to prisoner disenfranchisement in the United Kingdom have persisted for more than a decade, progressing through the domestic courts to the European Court of Human Rights and back again. The issue has been subject to a prolonged two-stage consultation. And yet, in spite of the decision in Hirst v UK (No. 2) that the current disenfranchisement regime breaches the right of prisoners to vote, the governments in office since this decision have to-date declined to introduce legislation to rectify the breach. This article considers the response of United Kingdom’s domestic courts to this situation, focusing upon the general unwillingness of the courts to confront the government over the stalled reform process and the implications of this reluctance for the operation of the Human Rights Act 1998. The prisoner enfranchisement cases give rise to important questions regarding the domestic courts’ discretion to re-interpret provisions so as to bring the law within the margin of appreciation and whether multiple declarations of incompatibility should be issued if the government fails to respond to the first in an appropriate and timely manner.

Beyond the legalese and rhetoric: improving human rights protection in Australia

The National Human Rights Consultation recently conducted in Australia and culminating in the government's new Human Rights Framework engaged a remarkable number of Australians on the question of how to better protect human rights, short of modifying the Constitution. However, the debate was frequently dominated by polemical views (often waged among lawyers) in which rhetoric and legalese flourished. Pro-rights groups almost universally supported the adoption of a Human Rights Act based on the so-called dialogue model, represented in statutes adopted in the United Kingdom, Victoria and the Australian Capital Territory. This article examines that preferred model — as supported by the report of the Consultative Committee, but ultimately not adopted by government — within the context of the Australian constitutional framework. It concludes that, although it is capable of working well at the state and territory levels in Australia, the model (at least in its present form) sits uneasily within Australia's federal constitutional context. While charter proponents have been at pains to assert the constitutional validity of the dialogue model, validity alone is not the only concern; the legitimacy of the High Court is also potentially weakened through the conferral of a remedial power incompatible with the court's role in conducting judicial review. Consequently, calls for a dialogue model charter at the federal level, containing the declaration of incompatibility as its centerpiece, are rejected. Instead, two alternative reform options are presented: the first involving a variation of the preferred dialogue model; the other involving a suite of alternative reforms similar to, but more far-reaching than, those recommended by the Brennan Committee. With Australia's Human Rights Framework set to be reviewed in 2014 (Commonwealth of Australia 2010, 3), such proposals remain relevant to the ongoing discussion that is set to continue over the coming years.

The Human Rights Act and Juridification: Saving Democracy from Law

The Human Rights Act (HRA) 1998 s. 4 declaration of incompatibility was designed to preserve and maintain the supremacy of parliament and thereby reinforce the superiority of the democratic actors within the UK constitution. Despite this, the author will illustrate a process of juridification – the replacing of politics with the formality of law and legal decisions – and will argue that this has undermined the protection of civil liberties and the control of the executive in the UK. The strengthening of democracy through a genuine ‘declaration of incompatibility’ rather than the current de facto judicial strike-down power will be advocated.

Examining the influence of the European Convention on Human Rights in Northern Ireland courts

This article examines the influence of the European Convention on Human Rights (ECHR) on the legal culture of litigants and judges in Northern Ireland. The results show that there has been a dramatic increase in the number of judicial review cases based upon the ECHR in the years immediately following implementation of the treaty through the Human Rights Act. However, while there has been an increase in the number of ECHR claims by litigants, judges in Northern Ireland have thus far been reluctant to issue declarations of incompatibility pursuant to the Human Rights Act. Furthermore, a multivariate analysis of the likelihood of Northern Irish judges to rule against the government shows that, controlling for other factors, judges are not more willing to rule against the government when the ECHR is invoked. Overall, it appears that the early influence of the ECHR on Northern Irish law has been greatest in the willingness of litigants to bring judicial review cases based upon the treaty—a development that may portend larger changes in UK jurisprudence in the future.

UK Anti-Terrorism Legislation: Still Disproportionate?

The Anti-Terrorism, Crime and Security Act 2001 was introduced immediately following the Al Qa'eda attacks in the USA as a response to the terrorist threat to the UK's national security. In a major government policy reversal, Part 4 re-introduced indefinite detention without charge or trial, necessitating derogation from Article 5 of the European Convention. Judicial review and habeas corpus were expressly excluded remedies. Three years after the first detentions, the Law Lords produced a landmark judgment quashing the designated derogation order and making a judicial declaration of incompatibility of the legislation with human rights law on the grounds of proportionality and discrimination. This article reviews their main findings, government and parliamentary reaction, and the succeeding legislation assessing whether the Law Lords' concerns were properly met or, in fact, sidestepped.

Constitutional Limits on Bills of Rights Introduced by a State or Territory

The introduction of the Human Rights Act 2004 (ACT) ('the HRA'), although contentious, is indicative of a move towards the introduction of bills of rights at State or Territory level in Australia. The HRA is modelled on the UK Human Rights Act and the New Zealand Bill of Rights Act, and has precipitated discussion in several States on the merits of introducing their own bills of rights, with Victoria enacting the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, one significant area of uncertainty, which has been given little consideration, is how the HRA (and equivalent legislation at State level) will operate within Australia's constitutional framework. Section 32 of the HRA enables the ACT Supreme Court to issue a 'declaration of incompatibility' when a provision of ACT legislation is incompatible with a right enunciated in the HRA. However, this declaration is intended to initiate 'dialogue' between the judiciary and the legislature: it does not invalidate the legislation, or affect the rights of the parties in the dispute in which the declaration is made. This article will address the constitutional limits that may be placed on the exercise of this novel 'remedy'. Some of these constitutional limits are unique to the ACT and its Supreme Court, while many will also be applicable to bills of rights introduced by a State.

Taking the Strasbourg Jurisprudence into Account: Developing a ‘Municipal Law of Human Rights’ under the Human Rights Act

Questions surrounding the legitimate extent of the judicial role have long been the source of controversy. Concerns that unelected and unrepresentative judges are ‘legislating’ rather than interpreting the law or are interfering in matters of ‘democratically endorsed’ government policy, have often been, and will continue to be, raised by academics and politicians alike. The question is one of separation of power— of the appropriate constitutional role and division of functions between the executive, judicial, and legislative branches of the United Kingdom Government. This debate has been given a new dimension by the Human Rights Act 1998 (hereafter HRA), most obviously through the courts' exercise of their power under section 3(1) of that Act—the duty to interpret primary and secondary legislation to be, as far as possible, compatible with ‘the Convention rights’. Indeed much has been made of the unique method by which the HRA reconciles the interpretative obligation under section 3(1) with the sovereignty of Parliament by way of the ‘declaration of incompatibility’ under section 4. The doctrine of parliamentary sovereignty imposes limits on the scope of section 3(1); in spite of its ‘broad and malleable’ language, which might permit ‘an interpretation which linguistically may appear strained’, it does not sanction courts to act as legislators. As Lord Nicholls of Birkenhead noted in Re S; Re W, attributing to a statutory provision ‘a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment’. That case has been seen by some as a retreat from what has been termed the ‘far-fetched’ interpretation of section 3(1) adopted by the House of Lords in the earlier decision of R v A. Nicol, for one, has argued that Re S; Re W and Anderson taken together, clearly reject ‘the notion that “interpretations” could conflict with clear statutory words' — as R v A had arguably suggested — thereby endorsing parliamentary sovereignty, above the Convention, ‘as the country's supreme constitutional doctrine’. For it to retain its legitimacy therefore, the judicial act under section 3(1) needs to remain an exercise of ‘interpretation’: to attribute a meaning to a legislative provision ‘quite different from that which Parliament intended … would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act’. It would ‘not be judicial interpretation but judicial vandalism’.

The Declaration of Incompatibility

The Declaration of Incompatibility

The United Kingdom's Human Rights Act 1998 in Theory and Practice

Thisessay assesses the significance of the United Kingdom's Human Rights Act (HRA) 1998 on legal theory and practice. Part II considers its constitutional context and significance; Part III deals with whether the European Convention on Human Rights has been ‘incorporated’. Part IV deals with its entry into force. The two principal methods used by the HRA to relate to (1) statutory interpretation and (2) a duty on public authorities or those exercising public functions. We consider these in turn. Part V analyses the interpretative obligation contained in the Act, the power for higher courts to make a ‘declaration of incompatibility’, and effects of such a declaration. Part VI explores the new statutory duty imposed by the Act. Part VII assesses the Act's remedial provisions. Part VIII notes the particular provision made for freedom of expression and freedom of religion. Part IX discusses the issues of ‘horizontal effect’ and the ‘margin of appreciation’. Part X concludes with an assessment of the significance of the HRA on legal theory and practice—just how big a difference has it made and will it make?

The sexual history provisions in the Youth Justice and Criminal Evidence Act 1999--a violation of the right to a fair trial?

In response to the Home Office recommendations contained in Speaking Up for Justice (1998) the Youth Justice and Criminal Evidence Act (YJCEA) 1999 introduced a new regime for the conduct of sexual offence trials. Section 41 of the Act, which came into force on 4 December 2000, brings about dramatic changes to the rules on the admissibility of evidence of complainants' sexual behaviour, severely restricting the discretion of trial judges to introduce such evidence or to allow questioning concerning it. This represents a radical new departure that will fundamentally affect an accused's position at trial. Responses to section 41 have predictably been divided given the extremely sensitive nature of this area of the law of evidence and the complex set of social and political issues which are at stake. Many have greeted it as a long overdue reform of a system premised upon outmoded and sexist beliefs concerning women's sexual behaviour which has routinely functioned to admit prejudicial and irrelevant evidence. Others, predominantly within the legal profession, have expressed serious concerns over whether the new law is workable and the extent to which, by potentially excluding critically relevant evidence, it may infringe upon a defendant's right to a fair trial. The quality of the legislation is soon to be tested. On 26 and 27 March 2001 the House of Lords heard an interlocutory appeal in the case of R v. A and were asked to decide if the new provisions, by excluding previous sexual history evidence between the complainant and the defendant, contravened Article 6 of the European Convention of Human Rights. Their Lordships are, at the time of writing, yet to give judgment and the fate of the defendant in question, and several others whose trials have been postponed pending their decision, hangs in the balance. This article seeks to show that the new Act, despite being well-intentioned, does not adopt a coherent or sustainable approach to the relevance of previous sexual history evidence and the restrictive nature of its provisions are such that genuinely relevant material will be rendered inadmissible. This creates the risk of disembodying the case before the jury and raises the significant possibility that miscarriages of justice will occur. As a consequence, unless the legislation can be read down in such a way as to reintroduce a measure of judicial discretion to admit such evidence, a declaration of incompatibility may be called for.

R v Secretary of State for the Environment, Transport and the Regions ex parte Holding and Barnes plc and others

Although the facts giving rise to this decision concerned planning control and planning law the decision is of relevance to the debate about the applicability of the Human Rights Act 1998 to the various regulatory functions and powers conferred on the Financial Services Authority (FSA) by the Financial Services and Markets Act 2000, hence its inclusion and discussion in this Journal. The three conjoined appeals which formed the subject matter of this decision were made directly to the House of Lords from a decision of the Divisional Court on 13th December, 2000 whereby the court made a declaration of incompatibility with Article 6 of the European Convention on Human Rights (ECHR) in respect of certain statutory decision‐making powers conferred on the Secretary of State for the Environment, Transport and the Regions (the Secretary of State).

Is a Declaration of Incompatibility an Effective Remedy?

(2000). Is a Declaration of Incompatibility an Effective Remedy? Judicial Review: Vol. 5, No. 4, pp. 247-250.