Another important mechanism is the declaration of incompatibility which clearly marks the separation of powers between the courts and Parliament.
Section 4 of the HRA provides that, in any proceedings in which a court considers that a provision of legislation is incompatible with a Convention right, ‘it may make a declaration of that incompatibility’. Section 4(6) makes clear, however, that a declaration of incompatibility ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given’.
How does it work?
As stated above, the primary obligation of the court is, so far as it is possible to do so, to read and give effect to primary legislation and subordinate legislation in a way which is compatible with the Convention rights. Where legislation is inconsistent with the Convention rights then the court may issue a declaration of incompatibility.
The case of R (Wright and others) v Secretary of State for Health113is an example of how declarations of incompatibility work. This case concerned care workers who did not have an opportunity to challenge their provisional classification as unsuitable to work with vulnerable adults. They claimed a breach of their rights to a fair trial (article 6) and to privacy (article 8).
The Protection of Vulnerable Adults (POVA) scheme in England and Wales was a system set out in the Care Standards Act 2000, which was developed, promoted and controlled by the Department of Health for the purpose of acting as a workforce ban on those people who had been proven to have harmed vulnerable people in their care. A care worker could be provisionally placed on a Protection of Vulnerable Adults List (POVA) pending the determination of an investigation.
In practice, care workers on the POVA List waited many months for a decision to be made. In the four cases reviewed by the House of Lords the care workers were kept on the list for between eight and nine months but at the end of this period only one of the four remained on the List. Three of the care workers had therefore been left without the opportunity to work for nine months. Listing prevented a care worker from being employed in any job that involved vulnerable people, including children.
The House of Lords unanimously found the provisional listing without the opportunity to defend the allegations a breach of the rights to a fair trial and privacy. It also made a declaration of incompatibility, declaring that the relevant provisions of the Care Standards Act 2000 which set out the procedure for being placed on the POVA were incompatible with the those rights. Importantly, the court did not decide how the provisions could be made compatible with Convention rights as it was held that was a matter for Parliament to decide.
The government responded by replacing POVA with the Vetting and Barring Scheme (VBS) with referrals to the Independent Safeguarding Authority (ISA). The new system was provided for in the Safeguarding Vulnerable Groups Act 2006 (SVGA). Under the new system, all new referrals of care workers to the ISA are not provisionally listed. Listing only occurs after an individual has had the opportunity to put forward their own representations and a full investigation has been completed.
Why do the courts have this power?
The declaration of incompatibility is one of the most innovative features of the HRA. It is also important to note that the power may be exercised only by the higher courts and as a measure of last resort, where the legislation cannot be read or given effect in a way which is compatible with the Convention. As Dominic Grieve, the then Shadow Attorney General stated during the parliamentary debates, ‘[the requirement for the courts] to set out the nature and the and extent of the incompatibility...is an indispensable prerequisite to Parliament being able to make an objective and correct judgment on compatibility and on how it wishes to proceed...'114
The power of the courts to make a declaration of incompatibility under the HRA was a deliberate compromise between two different models for protecting human rights: the ‘strong’ form of judicial review, under which the courts have the power to strike down any legislation that is incompatible with human rights, such as exists under the US Bill of Rights, the Canadian Charter of Rights and Freedoms, and the South African Bill of Rights; and a weaker, more ‘parliamentary’ model of protecting rights as exemplified by the New Zealand Bill of Rights Act, in which the courts have no such strike-down power but only the ability to interpret legislation consistently with basic rights along the lines of the power under section 3 of the HRA.
The former model is sometimes seen as a more effective way of protecting rights, but it involves real limitations on the power of democratic governments to decide certain areas of policy. The latter model is much more respectful of parliamentary sovereignty but has been criticised for offering too few safeguards against arbitrary interference with fundamental rights. As the Lord Chancellor explained to Parliament:115
The design of the bill is to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament. In the very rare cases where the higher courts will find it impossible to read and give effect to any statute in a way which is compatible with convention rights, they will be able to make a declaration of incompatibility. Then it is for Parliament to decide whether there should be remedial legislation. Parliament may, not must, and generally will, legislate.
Why concerns are misplaced
Declarations of incompatibility by the courts have no direct effect on the continuing validity of an Act of Parliament. It is not tantamount to striking down legislation: the law does not automatically change as a result of a declaration of incompatibility. Instead, Parliament must decide whether it wishes to amend the law.
The only formal effect is to enable the government to exercise a fast-track power to make a remedial order (see below). In particular, it allows Parliament to take the appropriate steps to correct the matter rather than wait for the inevitable, adverse judgment of the European Court of Rights. As Lord Hoffmann explained in Ex Parte Simms in 1999:
‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal.’116
It is, of course, correct that the UK government is bound as a matter of international law to give effect to final judgments of the ECtHR to which it is a party.117 But this is because the UK as a sovereign power agreed to be bound by this when it signed and later ratified the European Convention on Human Rights. As Professor Jeremy Waldron explained to the parliamentary Joint Committee on Human Rights in March 2011, ‘Part of the point of being a sovereign is that you take on obligations’.118 The task of living up to one’s responsibilities may sometimes cause difficulties, but it is a mistake to think of this as any kind of violation of sovereignty. More importantly, it remains always for Parliament to decide what action to take in response to a declaration of incompatibility or an adverse judgment of the Strasbourg Court. As the Master of the Rolls, Lord Neuberger, noted in a recent lecture:119
[U]nder the 1998 Act the courts’ role is to try and interpret every statute so as to comply with the Convention, and, if that is impossible, to warn Parliament that the statute does not comply – reflecting the alarm bell just mentioned. It is then for Parliament to decide whether to amend the legislation. If it chooses not to do so, that is an end to the matter from a legal point of view.
The court’s limited privilege to review, not strike down, legislation cannot therefore impinge on parliamentary sovereignty. First, the court’s power only arises because it has been bestowed by Parliament through the 1998 Act, and what Parliament gives it can take away. That is well demonstrated by the fact that the English courts had no power to apply the Convention for the first fifty years of its life – i.e. until the 1998. Secondly, where legislation does not comply with the Convention, the ultimate decision as to what to do about it is in the hands of Parliament, not the courts.
In fact, despite the continuing controversy over declarations of incompatibility under section 4, the power is used infrequently: between October 2000 and September 2011, only 27 declarations had been made, of which 8 were subsequently overturned on appeal.120 Of the 19 final declarations:121
12 were or will be remedied by subsequent primary legislation;
2 were remedied by a remedial order under section 10 of the HRA;
4 related to provisions that had already been remedied by primary legislation by the time the declaration had been made; and
1 is under consideration by the government as to how to remedy the incompatibility.
The best-known and undoubtedly the most controversial declaration was that in the Belmarsh case,122 in which the House of Lords declared the indefinite detention of foreign nationals under Part 4 of the Anti-Terrorism Crime and Security Act 2001 to be incompatible with the rights to liberty (article 5) and non-discrimination (article 14) of the Convention.
Other declarations have included the incompatibility of the Matrimonial Causes Act 1973 with the right of transsexual persons to marry (Bellinger v Bellinger)123 the incompatibility of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 with the right of foreign nationals to marry (R (Baiai and others) v Secretary of State for the Home Department);124 and the incompatibility of the Care Standards Act 2000 with the right to a fair hearing in respect of persons who had been provisionally listed by the Secretary of State as unsuitable to work with vulnerable adults (mentioned above).125 Had a declaration of incompatibility not been made by a UK court in each of these cases, then it is likely that the complainant would have been successful before the ECtHR. To this extent, each declaration of incompatibility has enabled the UK government to forego the unnecessary additional burden of having to defend incompatible legislation in Strasbourg.
The misconception that the courts are engaged in ‘overruling’ Parliament cannot be squared with the practical reality of how declarations of incompatibility operate under section 4. In our view, section 4 is an essential safeguard for the protection of Convention rights in the UK, and one that works by respecting the principle of parliamentary sovereignty. We see absolutely no case for either its amendment or repeal.