Dialogue and declarations of incompatibility under section 4 of the Human Rights Act 1998

Abstract

It has been argued that the Human Rights Act 1998 (‘HRA’) establishes a ‘dialogue’ between the courts, parliament and the executive.  This ‘dialogue’ is supposed to be an exchange of ideas about rights pursuant to which policy goals are revised, but not blocked, following judicial decisions and takes place predominantly when courts issue declarations of incompatibility under s 4 of the HRA.  There have been 18 cases in which declarations have become final.  This article considers those 18 cases and their legislative aftermaths.  It reveals, firstly, that parliament has some ability to deal with rights issues without the courts’ prompting, secondly, that although certain declarations may have led to constructive modification of public policy, other declarations may have led to less effective policy and, thirdly, that parliament has no real freedom to disagree with the conclusions of the courts on questions of rights when a declaration has been made.