Declarations of Incompatibility and Political Responses in the UK

Having considered the space for political responses to striking down of legislation in India, this section analyses the space for political responses to declarations of incompatibility under the HRA.

Commentators often engage in arguments concerning the 'space' available to the Westminster Parliament and government in respond­ing to declarations of incompatibility without defining that protean word. For the sake of clarity, the word 'space' is defined in two different senses. The first is decisional space, which addresses the question about whether Parliament and the government are obliged to accept declara­tions of incompatibility to begin with. In theory, when a declaration of incompatibility is made, the government has several options avail­able, in terms of its decisional space. This includes (a) announcing that the declaration will be fully addressed; (b) announcing that it will not be addressed at all (such an announcement may take two forms—the government may assert either that the provisions of primary legislation are compliant with Convention rights and that the court was wrong to make a declaration of incompatibility, or that the court was right in making the declaration of incompatibility, but Parliament nevertheless wishes to retain the legislation); (c) announcing that a declaration of incompatibility will be addressed to a certain extent, but not fully; and (d) completely ignoring or refusing to acknowledge the declaration of incompatibility—part of the reason for which the declaration was considered a 'masterful' way of preserving parliamentary sovereignty.

The second is remedial space, which focuses on the legal mode and the substantive means by which a declaration of incompatibility will be addressed. Primary legislation passed by Parliament and remedial executive orders under section 10 of the HRA comprise the methods by which declarations of incompatibility can be addressed. The sub­stantive means by which a declaration of incompatibility may be dealt with concern the options available to Parliament and government in addressing such declarations. For instance, an incompatibility may be addressed by introducing a fresh statutory regime, making changes to the existing system, introducing legislative safeguards, redrawing lines of institutional authority, etc.

The argument that developed in this section is that the remedial space available to Parliament and government is narrower than that assumed by the existing scholarship. Further, the decisional space is limited not only because it is politically difficult to reject declarations of incompatibility, but also because in practice, courts are mindful of expected political reactions to declarations of incompatibility.

Declarations of Incompatibility in Practice

Section 4(2) of the HRA reads: 'If the court is satisfied that [a provi­sion of primary legislation]... is incompatible with a Convention right, it may make a declaration of that incompatibility.' As stated in the introduction, section 4 empowers higher courts, when satisfied that a provision of primary legislation is incompatible with a Convention right, to make a declaration of incompatibility. The decision to make a declaration of incompatibility is at the discretion of the court,^[370] and the government is entitled to notice and hearing when the court considers making such a declaration.^[371] A declaration under section 4 does not affect the 'validity, continuing operation or enforcement' of the provision in respect of which it is given.^[372] It is also not binding on the parties to the proceedings in which it is made.^[373] One scholar usefully describes it as an 'open remedy', which leaves it formally open to the other branches of government to decide what remedial action to take, if any.^[374]

An examination of the declarations of incompatibility that have been made thus far reveals many interesting features.

By virtue of its formally non-binding status, the declaration of incom­patibility is looked upon by some commentators as the 'unwanted rem­edy⁷ for parties—litigants in search of an instant remedy urge the court to invoke the interpretive power under section 3 of the HRA, whereas the government seeks judgment that the impugned provisions are, on the face of it, compatible with Convention rights.^[377] Although this is the paradigm scenario, it is certainly not true in every case. Section 4 may be the only remedial course sought by the claimant in cases where she acknowledges the need for systemic legal change or recognizes that it is impossible to employ section 3 to interpret the statutory provisions in a Convention-compliant manner.

There have accordingly been cases in which claimants have sought a declaration of incompatibility alone.^[378] For instance, in Nasseri,^[379] the claimant sought a declaration that paragraph 3 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act, 2004, applied by section 33 of that statute, was incompatible with Art. 3 of the Convention, since it authorized the removal of the claimant to another state without substantive consideration of whether the removal would violate the prohibition on torture, inhuman or degrading treatment or punishment. In that case, it was fairly clear that it would not be possible to read the statutory provisions compatibly with the Convention, and therefore section 3 was ruled out of the picture.

The Nexus between Declarations of Incompatibility and Expected Responses

It emerges from the case law that the courts have made two kinds of dec­larations of incompatibility. The first is a declaration that particular stat­utory provisions are incompatible with one or more Convention rights (specific declarations). For example, in A v. SSHD,^[380] the House of Lords declared section 23 of the Anti-Terrorism, Crime and Security Act, 2001 (ATCSCA) to be incompatible with Arts 5 and 14 of the Convention, insofar that it permitted detention of suspected international terrorists in a way that was disproportionate and discriminatory on the grounds of nationality and immigration status. The second category includes declarations that consider a statutory scheme or regime incompatible with Convention rights (general declarations). In International Transport Roth GmbH v. SSHD,^[381] the Court of Appeal declared the penalty regime under Part II of the Immigration and Asylum Act, 1999 (which penal­ized unknowing carriers of illegal entrants into the UK) incompatible with Art. 6 and Art. 1 of the Protocol 1 to the Convention. In that case, Brown L.J. observed that the 'troubling features of the scheme' were 'all inter-linked'.^[382]

Sathanapally argues that in some cases, declarations of incompat­ibility have been made (in preference over rights-compliant interpre­tations under section 3 of the HRA) in conditions where a complex scheme needs to be developed or difficult policy-based choices need to be made.^[383] This, according to her, has been done in order to avoid 'pre-empting changes to the law through the legislative process'^[384] by identifying standards by which the incompatibility may be remedied. The first part of her argument is correct and is discernible in the case of specific declarations and general declarations. In fact, both the cases discussed above were followed by comprehensive changes to legisla­tive policy.

The second part of her argument—that declarations of incompat­ibility in such cases avoid pre-empting changes to the law—stands on a more tenuous footing. In many cases where declarations of incom­patibility are issued, courts nonetheless make obiter dicta suggestions about how remedial law on the issue might be framed and which legal method (primary legislation or a remedial executive order) could be used to bring about that change. These will be referred to as 'soft sug­gestions'. It is now worth considering a few examples.

In R (T) v. Chief Constable of Greater Manchester Police,^[385] the primary question before the Court of Appeal was whether the statutory scheme under the Police Act, 1997, which required enhanced criminal record certificates to be issued by the Criminal Records Bureau to those work­ing with people under 18, was compliant with Convention rights. The Court found the scheme disproportionate and declared it incompatible with Art. 8 of the Convention.^[386] The Court's observations accompa­nying the declaration of incompatibility are of particular interest. It first stated that a proportionate scheme that Parliament may seek to introduce would not require the individual consideration of every case. It then endorsed some of the recommendations made by an expert in a recent Criminal Records Review on the manner in which offences should be filtered for the purposes of disclosure. However, the Court stated thereafter that it would not 'prescribe the solution that should be adopted'^[387] and that it would be left to Parliament to decide 'what amendments to make'.^[388] This disclaimer merely reiterates an obvious fundamental principle: if courts prescribed the specific remedial course that Parliament should pursue, that would overstep their role under the HRA and comprise a usurpation of parliamentary authority.

In R (Clift) v. SSHD,^[389] the House of Lords was faced with determin­ing the compatibility of certain provisions of the Criminal Justice Act, 1991, under which the home secretary retained the power to determine the release on parole of prisoners serving determinate terms of 15 years or more. Since the parties agreed that a Convention-compatible inter­pretation would not be possible, the Court made a declaration that sections 46(1) and 50(1) of the statute were incompatible with Art. 14 (read with Art. 5). Lord Brown observed that, given the Court's deci­sion, the home secretary needed to consider whether 'the time [had]... not now come to leave all future decisions as to release on licence exclusively to the Parole Board'.^[390]

On comparable lines, in R (Baiai) v. SSHD,^[391] Buxton L.J. in the Court of Appeal issued guidance of what a Convention-compatible regime for controlling sham marriages might look like, after declar­ing the existing statutory regime incompatible. He observed: 'To be proportionate, a scheme. must either properly investigate individual cases, or at least show that it has come close to isolating cases that very likely fall into the target category. It must also show that the marriages targeted do indeed make substantial inroads into the enforcement of immigration control.'^[392]

To identify a fourth example, in R (Thompson) v. SSHD,^[393] statutory provisions that imposed unreviewable notification requirements on certain classes of sexual offenders under the Sexual Offences Act, 2003 (SOA) were at issue before the Supreme Court. While making a declara­tion of incompatibility, Lord Phillips clarified that Parliament could impose an 'appropriately high threshold for review' to avoid opening the floodgates to review applications.^[394] He confirmed the Court of Appeal's prognosis that Parliament could make it difficult to secure a review through controls such as the time at which an application can first be made, the general frequency at which applications can be made, and what applicants need to prove for notification requirements to be varied or discharged.

The soft suggestions made by the courts in these cases have per­formed one of two distinct functions. In Clift, Lord Brown's statement had the effect of acting as a guiding influence on Parliament and government, indirectly indicating that any role for the home secretary in decisions for release on licence might face further compatibility issues. In T, Baiai, and Thompson, the Court's suggestions operated as assurances that not much needed to be done in order to remedy the incompatibility, clarifying the minimum—an incentive, of sorts, to do so. In T, it was suggested that an appropriate system of filtering could be introduced in the criminal record certificates regime, without having to establish a system of individual consideration of every case.

In Baiai, the Court of Appeal said that in order to be proportion­ate, the scheme for controlling sham marriages should 'at least show' that it has come close to isolating cases that are very likely to fall into the target category.^[395] In Thompson, the Supreme Court's observations constituted an assurance that establishing a high threshold for review of indefinite notification requirements would be compatible with the Convention. These suggestions constitute a form of carrot dangling to the government—'change the law only in a certain way or up to a certain extent, and you have fixed the incompatibility without compro­mising too much on your original legislative policy'.

In another case before the Court of Appeal, the question was whether sections 72 and 73 of the Mental Health Act, 1983, impos­ing a 'reverse burden of proof' on patients applying for discharge from detention in hospital, were compatible with the Convention.^[396] The Court declared these provisions as incompatible with Arts 5(1) and 5(4) of the Convention. However, Lord Phillips said that only rarely would sections 72 and 73 constrain a Mental Health Review Tribunal to refuse an order of discharge where the continued detention of the patient infringes Art. 5. It was a matter which, in the opinion of the Court, the secretary of state had to bear in mind while determining whether to take remedial action under section 10 of the HRA. Thus, in this decision, the Court made a subtle suggestion about the means that could be employed (in the form of a section 10 remedial order) in responding to the declaration of incompatibility. The incompatibility was later removed through a remedial order under section 10 of the HRA.^[397] Thus, whereas in Clift, the Court exerted guiding influence on how the incompatibility might be addressed, in this case, it focused on the means by which this might be done.

Some scholars might disagree with this analysis of strategic adjudi­cation under the HRA, citing Baroness Hale's judgment in R (Wright) v. Secretary of State for Health^[398] in support of their argument. Part VII of the Care Standards Act, 2000 established a scheme for the creation and maintenance of a statutory list of persons who were unsuitable to work with vulnerable adults. The relevant question before the Court in this case was whether the provisions of Part VII were compatible with the Convention rights of care workers. After declaring section 82(4) of the Care Standards Act to be incompatible with Arts 6 and 8 of the Convention, Baroness Hale observed that she 'would not make any attempt to suggest ways in which the scheme could be made compatible'.^[399]

Two reasons were provided for this. First, the issue involved striking a delicate balance between the rights of care workers and the rights of the vulnerable people with whom they work. The legislature was in a better position to strike this balance in the first instance. Second, the statute in question was likely to be replaced by a fresh statutory regime, and she did not want her judgment to cast light on the incompatibility of that regime. Baroness Hale's reasoning does not constitute a rejection, in principle, of courts providing subtle suggestions of how an incompat­ibility might be remedied. From these observations, it seems clear that it was grounded in the specific circumstances of the case. In fact, her decision to provide two pointed case-specific reasons for not making such suggestions in Wright reflects that she may not have exercised the restraint that she did in the absence of those reasons—a conclusion that is confirmed by her opinion in Nicklinson.^[400]

Strong approval of the practice of courts offering soft suggestions of how incompatibilities with Convention rights may be addressed came from the UK Supreme Court's judgment in Nicklinson. The question before the nine-member panel in that case was whether the English law criminalizing assisted suicide^[401] violated the right to privacy under Art. 8 of the Convention, and whether a code published by the Director of Public Prosecutions,^[402] on the prosecution of those who assisted suicide, was lawful. Three of the judges (Lords Neuberger, Mance, and Wilson) acknowledged that even if the law, as it stood, was incompat­ible with Convention rights and could not be given a rights-compliant interpretation, no declaration of incompatibility would be issued. Lord Neuberger justified this position on several grounds, one of which was: '[T]his is not a case... where the incompatibility is simple to identify and simple to cure: whether, and if so how, to amend section 2 [of the Suicide Act, 1961] would require much anxious consideration from the legislature; this also suggests that the courts should, as it were, take matters relatively slowly.'^[403]

These observations seem to suggest that making soft suggestions to accompany a declaration of incompatibility is part of the prevailing orthodoxy under the HRA. But Lord Neuberger went even further than this, indicating that doing so was not merely a matter of convention, but judicial duty:^[404]

[I]t is for Parliament to decide how to respond to a declaration of incom­patibility, and in particular how to change the law. However, at least in a case such as this, the Court would owe a duty, not least to Parliament, not to grant a declaration without having reached and expressed some idea of how the incompatibility identified by the court could be remedied. (Emphasis added)

Lord Mance's opinion in the same case indicates that the soft sug­gestions made by courts could be part of a broader project of constitu­tional collaboration between Parliament and the courts:^[405]

[A declaration of incompatibility] affords to the courts of the U.K., no doubt uniquely, an opportunity to collaborate to some extent with Parliament in the amendment of the statutory provision which is dis­covered to have overridden human rights. I do not regard a degree of collaboration as objectionable or, in particular, as compromising judicial independence. But a court will be of maximum assistance to Parliament in this regard if it not only identifies the factors which precipitate the infringe­ment but articulates options for its elimination. (Emphasis added)

Baroness Hale was one of the judges who would have made a dec­laration of incompatibility. In another example of the issuance of soft suggestions to guide Parliament's remedial options, she prescribed four requirements that could be put in place to identify people who should be allowed help to end their lives.^[406]

There is an interesting nexus between these soft suggestions offered by British courts and the legislative history of the HRA. The Conservative Party had proposed an amendment to what was then Clause 4 of the Human Rights Bill, which would have required courts to set out the 'nature and extent' of a declaration of incompatibility 'in so far as arises from the nature of the case before the court'.^[407] As one Conservative MP (who was later to become attorney general during the prime ministership of David Cameron) explained, this amendment was intended to require courts to provide guidelines on how an incom­patibility might be complied with.^[408] The amendment was rejected on the basis that it would cause confusion and require courts to certify the precise extent of an incompatibility with Convention rights, which was not feasible.^[409] Have the soft suggestions offered by courts been prompted by this particular debate in the House of Commons, or are they simply obiter dicta statements that one might expect to see in judgments of this nature? It is very hard to tell, especially since British courts explicitly cite parliamentary debates sparingly.

The Impact of Section 4 on the Legislative Process

It is also worth flagging the nexus between declarations of incompatibil­ity and expected responses in the case law. In a relatively early decision under the HRA, Lord Nicholls confirmed that extrinsic evidence extend­ing beyond the statute being examined might need to be relied upon in deciding the compatibility of a statutory provision.^[410] Evidence of this kind includes ministerial statements in Parliament, explanatory notes published with a statute, government white papers, etc. But extrinsic evidence has performed two different functions in the case law under the HRA. The first is to decide whether a statutory provision may be incom­patible to start with, given its 'practical effect' and with regard to the 'complete picture' of rights protection.^[411] This would precede the inquiry as to whether the provision may be read compatibly, relying on section 3 of the HRA. The second use of extrinsic evidence, which is more interest­ing in the context of this chapter, is in the choice between the remedial routes offered by sections 3 and 4 of the HRA after an incompatibility has been found. This use of extrinsic evidence is explored further.

Extrinsic evidence from the political arena and judgments of the Strasbourg Court have influenced the courts' decisions about whether or not to issue a declaration of incompatibility. For instance, in Bellinger v. Bellinger,^[412] the failure of the Matrimonial Causes Act, 1973 to recog­nize the marriage of a post-operative male-to-female transsexual with a man was at issue before the House of Lords. Given that the Court found the relevant statutory provision prima facie incompatible with Convention rights, it could have either stretched the meanings of the words 'male' and 'female' under the statute so as to include persons who were born with one sex but had later become, or were regarded as, persons of the opposite sex, or issued a declaration of incompatibility.

In his judgment, Lord Nicholls (with whom all the other judges agreed) took account of a number of factors in choosing to make a declaration of incompatibility. The Strasbourg Court had already determined that the barring of transsexuals from marrying in the UK was unjustified.^[413] The Interdepartmental Working Group on Transsexual People had been reconvened in the UK, with a mandate to examine the implications of granting full legal status to transsexual people. The Labour government had expressed a commitment to enact primary legislation allowing transsexuals to marry in such situ­ations. A draft outline bill on the issue was expected to be published in due course. Lord Nicholls avoided the section 3 route and made a declaration of incompatibility, on the premise that these matters were for Parliament to determine, 'especially when the government, in unequivocal terms... already announced its intention to introduce comprehensive primary legislation on this difficult and sensitive sub­ject'.^[414] Thus, the Court kept a close eye on the government's expected response while deciding which remedy to invoke between section 3 and section 4.

Phillipson criticizes the House of Lords' reliance on the expected response from Parliament while determining whether or not to issue a declaration of incompatibility in Bellinger.^[415] He makes three argu­ments: First, that the issue should not have been treated as one to be considered either by the Court or by Parliament: both institutions could have played a valuable role in the circumstances. The Court could have reinterpreted the section to the benefit of Mrs Bellinger and Parliament could have introduced a comprehensive legislative scheme thereafter. A similar point is made by Tom Hickman, who posits that invoking section 3 would not have precluded legislative intervention in any event.^[416] Second, the Court could not have been certain that the relevant legislation would actually be passed. The proposed legis­lation could, amongst other things, be outweighed by 'more pressing business' and the government could change its mind.^[417] Third, the new legislation may not have been retrospective, leaving the litigant in the same position as before.

These arguments are problematic. Perhaps the House of Lords could have chosen to reinterpret the relevant statutory provisions in Bellinger. But exercising this option could itself easily have invoked Phillipson's second concern, as immediate judicial redress could have led to the issue being placed on the political backburner. The Court would jus­tifiably have been concerned that intervention through section 3, as opposed to a 'headline-grabbing'^[418] declaration of incompatibility, would risk pushing the matter lower down on the government's prior­ity list, rather than inviting 'prompt parliamentary action'.^[419] This also explains the reason owing to which the Court may have consciously eschewed granting immediate redress to Mrs Bellinger, in the apprehen­sion that doing so might alleviate the pressure for systemic change in the law. Further, as Kavanagh argues, the decisional space available to the government for changing its mind was limited, since the govern­ment's intention to bring about legal reform was not a purely voluntary decision, but was considered an international law obligation in the light of the judgment from Strasbourg.^[420]

The case of M^[421] illustrates a similar point. The important question was whether sections 26 and 29 of the Mental Health Act, 1983, under which a patient could not seek review of the person who was appointed as his/her 'nearest relative' under the statute, were incompatible with Art. 8 of the Convention. According to the statutory definition, the claimant patient's allegedly abusive father would have been her nearest relative. The government accepted the incompatibility. However, citing a number of factors seeking to establish its intention to change the law, it argued that a formal declaration of incompatibility was unnecessary. These factors included a draft bill to amend the law, statements of MPs, a statement by a minister in the Department of Health, and a friendly settlement entered into by the government in a case^[422] that was pending in the Strasbourg Court, in which it committed to amending the law.

Highlighting that immediate change was not forthcoming and that it would be difficult to 'predict with accuracy when or how' the incom­patibility would be rectified, Kay J. made a declaration of incompat­ibility.^[423] It is instructive to notice from the tenor of the judgment of the Administrative Court that the fact that the incompatibility would, in principle, be remedied was beyond question. What motivated the Court to make the declaration of incompatibility was, inter alia, that the remedy was not immediately forthcoming. In other words, the Court looked upon its declaration as a further catalyst for a remedy that was already in the pipeline.

A similar justification was partially the basis for the House of Lords' decision to make a declaration of incompatibility in R (Anderson) v. S SHD.^[424] The only question in that case was whether the Home Secretary's power to set the 'tariff'^[425] for mandatory life sentence prison­ers was compatible with Art. 6 of the Convention. Mindful of the two recent Strasbourg Court decisions^[426] declaring the power incompatible and evidence from parliamentary debates that these decisions would be acted upon,^[427] the Court chose to make a declaration of incompatibility.

It should be clarified that the argument developed thus far does not necessarily imply that courts will issue a declaration of incompatibility whenever the government seeks one in preference to a Convention­compatible interpretation under section 3 of the HRA. The case of SSHD v. MB^[428] offers a good example. The case concerned the compatibility of the 'non-derogating control order' regime under the Prevention of Terrorism Act, 2005 with Art. 6 of the Convention. Finding the regime incompatible, the majority chose to interpret the relevant statutory pro­visions in a Convention-compliant manner, in spite of the plea of the Secretary of State that section 4 be invoked in preference to section 3. As Baroness Hale's opinion demonstrates, the Court was clearly concerned that a declaration of incompatibility would not actually be positively addressed.^[429] A finding that the regime was non-compliant with Art. 6 would likely prompt the government to derogate from that provision of the Convention, thereby permitting it to conduct the proceedings in a way that it 'knew to be incompatible'.^[430] Thus, the majority chose section 3 over section 4 in the belief that the government's remedial preference was not backed by a genuine commitment to address the incompatibility with Convention rights.

Some commentators are troubled by courts' application of conse- quentialist reasoning in deciding whether or not to make a declaration of incompatibility. Jowell, for instance, says that judges should not be influenced by the fact that Parliament may disregard their pronounce­ments.^[431] But this plea seems far removed from reality—judicial con­sciousness about the aftermath of decisions is so intrinsic to the judicial process that if judges are to take criticism for doing so seriously, they would likely continue to take political reactions into account without actually saying that they do so. As Justice Hogan of the High Court of Ireland argues extrajudicially, judges consider it important to be able to have some control on the aftermath of their decisions, so as to avoid 'social and political chaos', and arrive at a consensus in favour of a solu­tion that avoids controversy.^[432] Judges' willingness to make findings of incompatibility is hampered by the possibility that uncontrolled or devastating consequences would follow their decisions. Some promi­nent theories of judicial decision-making also posit that judges take into account the extent to which political actors are willing and able to overcome judicial decisions.^[433]

In the context of the HRA, explanations for making declarations of incompatibility whose consequences are predictable extend beyond the avoidance of chaos and promotion of consensus building. Judges could well be deeply conscious of preserving the legitimacy and authoritative nature of the declaration of incompatibility.^[434] This argument rests on the fear that ignorance or rejection of a few declarations of incompat­ibility would open the floodgates or establish an adverse constitutional precedent. Another explanation could be that judges are anxious for justice to be served to individual litigants in cases under the HRA. Therefore, when a remedy through government is not imminent, they would be inclined to invoke section 3. However, this explanation is less persuasive, since legislation addressing declarations of incompatibility may not be retrospective and does not necessarily benefit the litigants in the case.^[435] In any event, it is discernible that courts in the UK have made decisions on whether to issue declarations of incompatibility with a close eye on expected political consequences.

This argument should not be taken to mean that Parliament is unable to reject a judicial invocation of the interpretive obligation under sec­tion 3 of the HRA.^[436] It may do so, for example, by re-enacting the statute in the same terms or amending the statutory provision to clarify its meaning. The important difference between section 3 and section 4 is that in the case of the former, the burden of legislative inertia is on Parliament.^[437] In other words, the government needs to provide the impetus for change through Parliament and would have to bear the additional social and political costs associated with doing so. But when a declaration of incompatibility is made, simply doing nothing is enough to retain the incompatibility on the books.^{[438] [439] Other things being equal, it is easier to ignore, or at the least, delay responses to, declarations of incompatibility than override Convention-compatible interpretations under section 3.245}

In both situations, the government would need to pay the political price (including the loss of public confidence, a breach of international obligations under the Convention, and the possibility of an adverse ruling from Strasbourg)^[440] for rejecting the court's understanding of Convention rights. In the case of the declaration of incompatibility, however, it would need to bear the additional costs accompanying the introduction of fresh legislation. As Michael Perry posits, there is a presumption (in the form of the burden of legislative inertia), carrying institutional force, in favour of the status quo of the law.^[441] Those seeking to change the law would be tasked with overcoming that presumption.

Further, the parties contending that statutory provisions should be read in a Convention-compatible manner are certain to benefit from the reinterpretation of a statutory provision under section 3, and this benefit is unlikely to be withdrawn by subsequent legislation.^[442] Thus, courts can invoke section 3 with the knowledge that Parliament is virtu­ally powerless, even with the enactment of fresh legislation, to deprive benefits conferred upon specific parties by the court.

Responses to Declarations of Incompatibility

The Limited Decisional Space and Remedial Space of Parliament and Government

Judges have been quite conscious in asserting the formal position under the HRA—that the consequences of declarations of incompatibility are political rather than legal. As Lord Scott put it in the Belmarsh Prison case, the court only draws attention to the incompatibility and provides ammunition to people to agitate for change through the democratic process.^[443] In another case, Kay J. observed that it was for the 'the Government to decide what, if anything, to do' about a declaration of incompatibility.^[444]

However, in practice, as Appendix B indicates, responses to decla­rations of incompatibility have been made either through remedial orders or primary legislation in almost every instance. Amongst the 20 declarations that attained finality, 13 were remedied through pri­mary legislation. Amendments were largely made either by introduc­ing special legislation or by inserting provisions into a bill that was already before Parliament at the time.^[445] The fast-track remedial power under section 10 of the HRA was invoked on three occasions.^[446] In two cases, the impugned provisions had already been amended by primary legislation before the filing of the claim.^[447] One final decla­ration of incompatibility, concerning the restrictions on the voting rights of prisoners, is still under consideration.^[448] Even in this case, the Conservative-Liberal Democrat coalition government introduced a draft bill for pre-legislative scrutiny, in which two out of three options laid out by the government sought to purge the incompatibility, while the third restated the existing ban.^[449]

Governments across the political spectrum have focused more on the imperative question of how to act, rather than whether to take any remedial action to begin with.^[450] Thus, since the enactment of the HRA, the norm during the two Labour governments and the Conservative-Liberal Democrat coalition government has been to positively address declarations of incompatibility.^[451] Parliamentary debates are also replete with statements to the effect that the govern­ment is generally expected to amend the law in some way following a declaration of incompatibility.^[452] This is particularly the case after all avenues of appeal are exhausted. A peer in the House of Lords put the point quite succinctly: 'Our constitutional arrangements are such that when the highest court of the land identifies an incompatibility with the European Convention on Human Rights, the Government of the day, whoever is in power, take remedial action.'^[453]

Considerable academic debate has surfaced about whether the government has any remedial space in responding to declarations of incompatibility. Some scholars claim that in elongating the response time for legislative response to a declaration and through the strategic technique of making minor alterations without fully addressing the declaration, the legislature has considerable remedial space in engag­ing with such declarations.^[454] While conceding that 'judicial reasoning leading to a finding of incompatibility⁷ will imply that 'certain legisla­tive options are precluded', others contend that Parliament will have 'room for legislative manoeuvre' in deciding how to remedy an incom- patibility.^[455] But none of them has considered the extent to which judicial reasoning does in fact narrow the options of Parliament and government.

Commentators have failed to factor in other important elements that limit the remedial space available to the government in respond­ing to declarations of incompatibility. To begin with, such declarations are sometimes made in respect of a narrow, transitional group of cases where the law has already been changed prospectively. This is what happened in Clift, which was discussed earlier. In these situations, the government is deprived of the discretion of deciding whether a remedy should be retrospective, since the failure to adopt a retrospective rem­edy would constitute ignorance of the declaration and bear attendant political costs.^[456]

Further, it was argued earlier that declarations of incompatibility are accompanied by soft suggestions explaining how the incompat­ibility might be remedied. These suggestions, as already expounded upon, could perform three distinct functions. First, they may exercise a guiding influence on the government by narrowing the government's substantive options in deciding how to remedy the incompatibility, limiting its remedial space. The House of Lords' judgment in C lift was used to demonstrate this.

Second, they may constitute an incentive to remedy the incompat­ible provisions, by indicating that only limited change is required to remove the incompatibility. Such declarations operate as assurances to Parliament that an amendment providing a certain floor of rights protection is all that is required to comply with the court's decision. Here, Parliament is not prevented from providing for a higher level of rights protection, but would not be required to do so in order to 'fix' the incompatibility. Thus, the remedial space available to Parliament and government for deciding the level of rights protection that should be granted in order to eliminate the incompatibility is effectively attenuated.

Political developments following the Supreme Court's declaration of incompatibility in Thompson confirm this claim. The incompatibility identified in that case was rectified through a remedial order,^[457] which incorporated the Court's suggestions of imposing a high threshold for review for those subjected to indefinite notification requirements under the SOA. It appears that the soft suggestions made by the Supreme Court in this case enabled the Conservative Party-led coalition government to address the incompatibility without alienating an important part of their political constituency. As the parliamentary under-secretary of state for the home department said in the House of Commons:^[458]

We have also brought forward the draft Sexual Offences Act 2003 (Remedial) Order 2012, which will ensure that strict rules are put in place and a robust review is carried out on a case-by-case basis before any sex offender placed on the register for life can be removed. This will remove the legislative incompatibility identified by the Supreme Court in the case.... We are clear that we have developed a process that is robust, workable and makes public protection a central factor, while at the same time preventing sex offenders being able to waste taxpayers' money by repeatedly challenging our laws. Sex offenders who continue to pose a risk will remain on the register and will do so for life if necessary.

The minimalist approach of the government to addressing the incom­patibility was exemplified by the then home secretary's, Theresa May's, statement to Parliament that the government would make the 'mini­mum possible changes to the law' that would be necessary to comply with the Supreme Court's judgment.^[459]

This claim was also confirmed by developments following the Court of Appeal's judgment in T.^[460] The secretary of state amended the statu­tory provisions declared incompatible by an executive instrument,^[461]

based on the suggestions of the Court of Appeal that an appropriate filtering mechanism, which would not require the individual con­sideration of every case, could be introduced.^[462] Once again, the soft suggestions offered by the Court made it more politically plausible for the government to address the incompatibility, whilst assuring their constituents that 'important safeguards for public protection' would be maintained.^[463] While discussing the amendments to the law in Parliament, the under-secretary of state for the Ministry of Justice thus emphasized the government's 'commitment to maintaining public pro­tection and national security⁷.^[464] The claim that soft suggestions have incentivized addressing declarations of incompatibility remains politi­cally untested in relation to the other case in which such suggestions were made: Baiai. A soft assurance of this nature accompanied Buxton L.J.'s declaration of incompatibility in the Court of Appeal. However, the declaration of incompatibility was varied in appeal to the House of Lords.^[465]

Third, courts may on some occasions even go to the extent of sug­gesting the means by which an incompatibility may be addressed. The case of H^[466] provides a good example of this. The Court of Appeal's subtle suggestion of making a remedial order was acted upon by the secretary of state.

These arguments indicate that the remedial space available to Parliament and the government varies, both in terms of content and form, and is often more limited than one might expect. It would be going much too far to say that Parliament has 'unfettered discretion'^[467] to determine the manner of its response to a declaration of incompat­ibility. These soft suggestions should not be mistaken as exerting an insuperable normative force on the government. They are obiter dicta statements, but function as conduits through which broader messages are conveyed from the judiciary to Parliament.^[468] The suggestions, along with a failure to adhere to them would, however, like (but to a lesser extent than) the declaration of incompatibility, form an impor­tant part of the political discourse. As Tushnet argues, in weak-form systems, legislative deliberations are 'informed but not controlled' by what courts have said, since the legislature recognizes that courts have some advantages over them in constitutional interpretation.^[469] Evidence from parliamentary debates about declarations of incompat­ibility also indicates that MPs not only consider the bare text of these declarations, but also judicial observations accompanying them.^[470] Judicial observations are sometimes even cited or paraphrased to understand the scope of the incompatibility, as well as the possible options to remedy it.^[471]

Closely related to these points is the fact that the Westminster Parliament is conscious of the possibility of sequel judgments resulting in further declarations of incompatibility, in the event that legislation addressing an earlier declaration does not do so adequately. While discussing the government's proposed response to the judgment in the Belmarsh Prison case (declaring provisions of the ATCSA incompat­ible with Convention rights), some MPs expressed scepticism about whether the response would itself withstand future judicial scrutiny. As Lord Donaldson, the former Master of the Rolls, observed in the House of Lords:^[472]

If the Government are to persist [with its current response]... in the very near future someone will ask the courts to set the matter aside. That will go to the House of Lords, no doubt, where I should be very surprised if the Law Lords did not say, 'No—this won't do.' Where they will draw the line, I do not know, but it will not be where the Government have drawn it.

It thus becomes sensible for a government seeking to avoid a second declaration of incompatibility to address the (original) declaration based on the soft suggestions of the court making it, as a kind of insur­ance policy against future challenge. So far, the only sequel judgment to have resulted in a declaration of incompatibility was in Royal College of Nursing v. SSHD,^[473] where the Administrative Court declared that provisions of a statute^[474] that replaced a law that was declared incom­patible,^[475] as itself being incompatible with Convention rights.

These arguments are consistent with the 'court-centric' approach to pre-enactment political rights review under the HRA in practice. Ministerial statements of compatibility under section 19 tend to focus on whether proposed legislation will withstand challenge in domestic courts and the Strasbourg Court as opposed to whether such legisla­tion is, in the government's own view, compatible with Convention rights.^[476] The Cabinet Office's Guide to Making Legislation also requires the relevant government departments to 'consider any risk of legal challenge and ensure that the way the bill is drafted reduces the risk as far as possible'.^[477] Further, a memorandum setting out the impact of a bill on Convention rights, containing a 'frank assessment by the department of the vulnerability to challenge in legal and policy terms', is required to be provided to the Parliamentary Business and

Legislation Committee before the bill can be approved for introduction or publication in draft.^[478]

The Strasbourg Court Dimension

One important aspect influencing political responses to declara­tions of incompatibility remains to be discussed. Section 2(1) of the HRA requires courts in the UK determining questions in relation to Convention rights to take Strasbourg Court jurisprudence into account. British courts have adopted the 'mirror' principle in their consider­ation of case law of the Strasbourg Court. According to this principle, which was first articulated in R (Alconbury Developments) v. Secretary of State^[479] and has been cited in several cases thereafter,^[480] a strong pre­sumption—that clear and constant Strasbourg jurisprudence will be followed—operates.

This presumption can be displaced only for very good reasons,^[481] for instance, if the Strasbourg decision is 'fundamentally at odds with the distribution of powers under the British constitution'^[482] or misunderstands some aspect of English law.^[483] The transformation of Convention rights into domestic law is meant to function as a floor rather than a ceiling: whereas domestic courts can provide augmented rights protection, they cannot fall below the minimum standard set by Strasbourg.^[484] As Lord Bingham famously put it, the national courts would 'keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less'.^[485]

The failure to address a domestic declaration of incompatibility could result in a case being taken to the Strasbourg Court, with a high probability that the Court would find a breach of Convention rights.^[486] This is because of the fact that the Strasbourg Court accords a margin of appreciation to decisions of national authorities, including courts. Thus, the political sanction underlying a declaration of incompatibil­ity transforms into a legal one through the Strasbourg Court,^[487] and the UK falls under an international obligation to amend its domestic law. As one MP had put it (rather bluntly) in the House of Lords: 'We have no choice but to respond to a judgment of the European Court of Human Rights. We have obligations under human rights law.'^[488] The possibility of an aggrieved claimant making an application to the Strasbourg Court makes the declaration of incompatibility a potent remedy—a matter which Chapter 5 discusses at length.

A Constitutional Convention or Atrophy of Constitutional Power?

Has the expectation that Parliament or the government of the day will address declarations of incompatibility transformed into a constitu­tional convention? Sir Ivor Jennings famously set out a (now familiar) three-part test for establishing that a practice had transformed into a constitutional convention. The three necessary conditions are: the existence of a precedent, belief on the part of political actors that they are bound by the precedent, and a reason for the rule.^[489] Jaconelli added a self-evident, but sometimes overlooked, fourth condition: that the rule must be constitutional in character (that is, it must 'regulate the manner in which the business of government is to be conducted').^[490]

Many scholars believe that a convention of compliance with declarations of incompatibility is emerging, but has not yet fully crystallized.^[491] The Strasbourg Court, tasked with determining whether the declaration of incompatibility was an effective domestic remedy for the purposes of Art. 35(1) of the Convention,^[492] adopted a similar position in Burden v. UK.^[493] Although there is no legal obligation to address declarations of incompatibility, the Court observed that it was possible that in the future, evidence of a 'long-standing and established practice' of giving effect to declarations of incompatibility 'might be sufficient to persuade [it]... of the effectiveness of the procedure'.^[494] The implication is that while the practice has a constitutional character (since it has deep implications on the functioning of the government) and is supported by underlying reasons (varying from the special sta­tus of courts in determining the meaning of Convention rights to the protection of minorities), sufficient precedent is not yet available and political actors' beliefs on the binding nature of this expectation are not firmly developed.

Adrian Vermeule argues that some constitutional powers tend to 'atrophy⁷ over time.^[495] Powers that remain unexercised for long periods gradually become un-exercisable, as their exercise would seem to run contrary to the rules of the political game. The other way of looking at his argument is that on account of political precedent heuristics, a constitutional convention against the use of such powers develops as the power falls into desuetude. In the context of the declaration of incompatibility, he claims that Parliament's compliance may 'unin­tentionally be preparing the ground for a day in which Parliament will be thought to violate a constitutional convention if it refuses to comply'.^[496]

Vermeule provides the following examples to demonstrate his argument: the royal veto in the UK, the notwithstanding clause under section 33 of the Canadian Charter, the 'disallowance' power (also of Canadian heritage), the power to 'pack' the Supreme Court, and the Congressional power to impeach executive officers (both from the US). However, it is not merely coincidental that all the examples he gives refer to powers where the burden of legislative inertia is on the body that seeks to exercise its constitutional power. Thus, for instance, in order to invoke the notwithstanding clause under section 33 of the Canadian Charter, the relevant legislature needs to do so expressly through statute. Similarly, to pursue a 'court-packing' agenda, the US Congress would need to assemble the political capital to pass appro­priate legislation. In these examples, the position after the power has atrophied is the default case. As explained earlier, the declaration of incompatibility is subtly different. Under the HRA, the default case is that primary legislation remains valid unless the government or Parliament addresses the declaration that it is incompatible with Convention rights.

Evaluating the atrophy of powers where the burden of legislative inertia is on the legislature or government is fairly straightforward and can be expressed in terms of a binary. Hence, in the case of the notwithstanding clause and the court-packing power, we can say that required legislation has either been enacted or not. The prisoners' vot­ing rights story following the declaration of incompatibility in Smith^[497] demonstrates that this is not quite as easy to discern with the decla­ration of incompatibility. Eight years after the Scottish Registration Appellate Court declared section 3 of the Representation of People Act, 1983 incompatible with Art. 3 of Protocol 1 to the Convention, the incompatibility remains on the statute books. In some official statements, governments have expressed an intention to remove the incompatibility.^[498] However, individuals in government, including the prime minister,^[499] have expressed strong disagreement with the decision.

How is such a case to be considered in the context of a constitutional convention or atrophy analysis? If we were to argue that only express rejection of a declaration of incompatibility constitutes a refusal to comply, then this would be treated as compliance. On the other hand, the incompatible law still remains the law of the land. The evaluation of compliance with declarations of incompatibility is not conducive to a binary analysis, but fits more comfortably with the idea of a gradient, requiring a nuanced approach.

It may, of course, be possible for a constitutional convention to develop to the effect that all declarations of incompatibility will be addressed by the government or Parliament. The important point to be made is that by virtue of the unique design of the HRA, the crystalliza­tion of a constitutional convention that declarations of incompatibility will be addressed is likely to be a slower and more arduous process than it would be for powers where the burden of legislative inertia is on the body possessing the power. Two factors justify this argument: First, it is simpler to exercise a power by maintaining the status quo rather than to exercise a power by assembling the political capital required to alter it. Second, it is difficult to evaluate the atrophy of the power to reject declarations of incompatibility in binary terms, thereby neces­sitating a longer frame of reference before any definitive constitutional conclusion can be drawn.

Thus, the following conclusions emerge from the foregoing analysis. Declarations of incompatibility are very likely to be remedied by the government or Parliament. Courts sometimes issue a declaration of incompatibility where extrinsic evidence and Strasbourg Court deci­sions make it fairly clear that the declaration will be acted upon. In such cases, the government is in any event likely to address the incom­patibility, limiting its decisional space. On other occasions, courts have made soft suggestions, as a form of carrot dangling, about how incompatible provisions might be remedied with minimal change to the existing statutory scheme. These suggestions assume the form of incentives to address the declaration and influence the decisional space available to Parliament and the government. Finally, the failure to address a declaration of incompatibility is likely to result in an adverse ruling from Strasbourg, transforming the government's domestic politi­cal obligation to act into an international legal obligation. This would be accompanied by political and public pressure both domestically and internationally, leaving the government in a position where it has little to gain, but much to lose in refusing to remove the incompatibility.^[500] This renders the decisional space politically difficult to enjoy.

The menu of political options available to the government when a declaration of incompatibility is made (or the remedial space, as described) is narrower than that assumed in the existing scholarship. Some declarations of incompatibility are so narrowly framed that they leave little room to the government for manoeuvre. Suggestions made in judgments declaring primary legislation incompatible with Convention rights exercise a guiding influence on the manner and the mode by which an incompatibility may be addressed.

Finally, the power to ignore or reject declarations of incompatibility may atrophy in the future through disuse. But the road towards a con­stitutional convention that all declarations of incompatibility will be addressed is a difficult one, on account of the fact that when section 4 is invoked, the burden of legislative inertia remains on the person that seeks the removal of the incompatibility. Therefore, declarations of incompatibility have greater coercive force than we might imagine at first glance—in practice, they not only tell Parliament and the government what to do, but often also advise them on how to go about doing it.

***

Despite India having been formally categorized as a jurisdiction with judicial supremacy in which courts have the power to strike down pri­mary legislation (the old model of judicial review), judicial decisions have not necessarily comprised the 'last word' on questions about rights. The Indian Parliament has sometimes responded to judgments through two kinds of constitutional amendments, embracing the opportunity to offer its alternative interpretation of rights to that of the courts. Conversely, even though the HRA is categorized under the new model labels, in which courts do not have the power to strike down pri­mary legislation, legislative rejection of declarations of incompatibility has proven a very difficult option to invoke in practice. Moreover, the space available to the Westminster Parliament for political responses is narrower than that assumed in the existing scholarship.