*Editors’ note: this post is part of a series on ‘The Human Rights Act After 22 Years’, following the SLS Annual Seminar held in November 2022. You can read the first post in the series here.*
In previous work, I have criticised the courts’ apparent confusion and/or uneasiness with the making of declarations of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”). I have argued that the courts have paid insufficient mind to the fact that the regime under sections 3-4 of the HRA is different to the regime under HRA sections 6-9. The related questions of who has standing to bring a section 4 claim and what “incompatibility” means are unresolved. In this post, I recap my argument and attempt to ignite a discussion about the proper purpose of section 4, prior to any future human rights reform.
The opportunity to take stock
The retention of the power to make declarations of incompatibility in the June 2022 Bill of Rights Bill (“BoRB”) was welcome, but risks us losing the opportunity to question whether there is any room for improvement. In the “rebalanc[ing]” (clause 1(2)) supposedly to be achieved by the BoRB, it is the HRA section 3 interpretation power which is to be lost. The power to make declarations of incompatibility remains as before (clause 10).
These two plans – reform or remove section 3, but leave section 4 as is – have been steadfast in Conservative Party HRA reform plans since at least 2015 so it seems sensible, pending future reform, to consider a couple of questions. First, why has section 4 been less controversial than section 3? And secondly, if the answer to that question is at least partly “because the courts have used the power sparingly” (in cases like R (on the application of Nicklinson and another) v Ministry of Justice or In Re Northern Ireland Human Rights Commission (“NIHRC”)) we ought to consider whether that is the correct approach. The average number of declarations since the HRA came into force is fewer than two per year. Without a section 3 power, or with a watered-down section 3 power, perhaps that would increase, and that in itself could make section 4 more controversial. It is curious to note that whilst politicians seem to have been willing to continue with section 4 as is, in the UNCRC case Lord Reed described section 4 as an example of Parliament “qualify[ing] its own sovereignty” (para 50) when that is explicitly not what Parliament intended to do.
The purpose of this post is to begin an examination of section 4 so that we can see more clearly how it should be used. Although I think it would be a shame to make any drastic changes to the text of section 4, I do think that at least we should take the opportunity to make sure we are comfortable with what section 4 is, in the hope that it can be embraced even more fully than before. Even Jack Straw once described a declaration of incompatibility as like “an unexploded bomb in the middle of a minister’s room”. The imagery is very apt. On the positive side, it shows that the declaration is taken seriously – the bomb must be defused before it explodes in the minister’s face. As we know, all declarations are eventually acted upon, although some seem to have especially long fuses. But on the negative side, a metaphor that depicts a judicial remedy as an incendiary attack on the executive does not depict relations as being particularly healthy. Why are declarations not viewed as being part of a healthy dialogue between the judiciary and the political branches? Perhaps politicians are always going to bristle at being scolded by the judiciary. Perhaps this political restraint on Parliament is what Lord Reed was alluding to in UNCRC. But, just perhaps, there is the opportunity to have a fresh start in any future Bill of Rights.
Standing under section 4 of the HRA
The BoRB continues to reflect the difference between HRA sections 3-4 (BoRB clause 10) and HRA sections 6-9 (BoRB clauses 12-19) in that the proposed permission stage (clause 15) will not apply to cases where declarations of incompatibility are being sought. The regime under sections 3 and 4 is specifically about legislation, whereas sections 6-9 deal with the victims of unlawful acts of public authorities. “Victimhood” is not required for declarations of incompatibility. Indeed, as I have argued elsewhere, one cannot be a victim of an unlawful act for the purposes of section 4. Acts (with a small “a”) may be incompatible with Convention rights, but they are not unlawful when they are carried out under primary legislation which of course remains in force even once an incompatibility has been found. This therefore raises the question of who does have standing to make a section 4 claim – if it is not just victims, then who? Section 4 is (or should be) about assessing legislation, not just how that legislation operates with respect to that one particular person. Nevertheless, the courts are obviously uncomfortable with abstract reasoning and appear to have struggled with the more novel section 4 power as compared to section 3 which could more easily be compared with existing interpretive powers.
In NIHRC, the Court (by majority) decided that the NIHRC did not have standing to bring the case, but also (by majority) held that they would have made a declaration of incompatibility if it had. The Court went in search of an unlawful act where one could not exist. Section 6 of the HRA (and clause 12 of the BoRB) makes clear that public authorities do not act unlawfully where they are giving effect to the provisions of incompatible legislation. In NIHRC, Lord Mance described sections 3 and 4 as “a last resort” (para 62) where sections 6-9 have failed. For many claimants, this is true, but certain other claimants have no recourse to sections 6-9. Consider the infamous case of Ghaidan v Godin Mendoza – a tenant seeking redress from a private landlord has no remedy under the public authority provisions, he relies solely on his challenge to the legislation.
What does “incompatible” mean?
We cannot answer the question of who has standing to make a section 4 claim without considering what it means for a statutory provision to be incompatible with a Convention right. We can see the Court’s uncertainty about this question in NIHRC. Lord Kerr thought that there only had to be a “likelihood” of suffering in “at least some members of the vulnerable group” (para 257). Lord Mance thought that legislation had to “inevitably” operate incompatibly “in a legally significant number of cases” (para 82). Whereas Lord Reed thought there had to be a breach in “all or almost all cases” (para 355).
Three examples can perhaps help to elaborate. Example one: in R v Secretary of State for the Home Department ex parte Anderson, the Home Secretary’s tariff-setting power was declared incompatible with Article 6 of the European Convention on Human Rights (“ECHR”). The Court held that there would be an incompatibility “even if he does no more than confirm what the judges have recommended” (para 28). The instant case was perhaps all the more compelling because the Home Secretary did depart from the judicial recommendation. But the Court was clear – the power could not be exercised compatibly in any circumstances. Straightforwardly, the mere existence of that role for the Home Secretary undermined independence therefore the declaration was made.
But not all cases are so simple. What if the legislation does not systematically breach Convention rights? Such a situation arose in example two: Percy v DPP. A protestor at an American air base trampled upon and defaced the American flag. Her conviction under section 5 of the Public Order Act 1986 (for behaviour likely to cause “harassment, alarm or distress”) violated Article 10 ECHR. However, a declaration of incompatibility would have been inappropriate because not every conviction under section 5 would engage Article 10 – the example was given of Vigon v DPP where a video camera was hidden in a changing room. In cases like Percy, HRA sections 6-9 apply – the legislation affords significant discretion and it must be exercised compatibly with Convention rights. A declaration of incompatibility is not the correct remedy where the legislation is open to a vast range of interpretations, many of which do not engage Convention rights at all.
But there is another category of cases, which needs more detailed consideration. Example three is Beghal v DPP. Sylvie Beghal, the wife of a convicted terrorist, was stopped under schedule 7 of the Terrorism Act 2000 which allows for border searches. In Beghal, no declaration was made because of the particular circumstances of Beghal’s case, but the Court noted that the upper limits of the legislation might systematically breach Convention rights. For example, the Court thought it was “not easy to see” (para 54) how detention for up to six hours could be justified, but since Beghal had been detained for a mere 30 minutes there was no breach of Article 5 ECHR. The Court also worried about the Article 8 implications of the powers to retain data (e.g. phone or computer records) gathered during searches – but Beghal’s data had not been retained. This is precisely the sort of case where the Court could have made a declaration of incompatibility despite having what we might call an unsympathetic claimant. One potential concern is that not making a declaration in a case like Beghal can cause confusion and potentially even undermine Parliament’s will. Where, for example, the legislation permits detention for up to six hours but the Court expresses disquiet about whether that might be too long to be compatible with Article 5 ECHR, public authorities might be confused about the proper limits of their power (if 30 minutes is fine but six hours is questionable, what is the acceptable maximum?) In cases like this, it is easy to see the incompatibility because of the defined and clear limits – for example, detention for up to six hours – as opposed to the broader terms of section 5 of the Public Order Act 1986 (“harassment, alarm or distress”). Not making the declaration of incompatibility allows the judiciary and public authorities to potentially rewrite legislation rather than passing the issue back to the political branches for full consideration.
In short, the meaning of “incompatibility” should not demand that rights be breached by every single operation of the legislation. Indeed, this is what Parliament envisaged. During the Human Rights Bill’s passage, a proposed amendment would have added section 4(2A) to the legislation:
“a court may not make a declaration of incompatibility unless it is necessary for the purpose of determining the matter before it.”
The amendment was defeated on the basis that, according to Geoff Hoon, it had “no place in the scheme” envisaged for section 4 and was “fundamentally misconceived”. I think it would be a mistake to pursue a similar amendment in any future replacement for the HRA. However, I do think that it is worth having the discussion so that maybe, this time, we can get a clearer idea of what “incompatibility” means. If the idea that the Beghal Court should have made a declaration of incompatibility seems unorthodox or inappropriate, then we really ought to consider why that is the case and achieve some consistency between the possibilities afforded by the legislation and judicial practice.
In any future human rights reform, we have the opportunity to take stock and to reconsider the unique features of section 4. In particular, we ought to think about what it means for a piece of legislation to be incompatible with a Convention right and, relatedly, who can bring a section 4 claim. Perhaps we have never been clear enough that section 4 is about reviewing legislation, not giving a remedy to an individual. In other words, the court is reviewing Acts with a capital “A”, not acts with a small “a”. In an ideal world, we might even encourage a dialogue where a declaration of incompatibility is not seen as an attack. During the HRA’s passage, Lord Irvine said that declarations of incompatibility would be unnecessary in “99 per cent. of the cases that will arise”. Perhaps that set the tone for some judicial reluctance and we ought to think about whether we want to set that same tone next time. We can be mindful of the potential consequences of making more declarations of incompatibility whilst encouraging the courts to use their declaratory power as intended – but first we must be clear about what that intent actually is.
I am grateful to Professors Merris Amos, Michael Gordon, Alison Young and the participants of the 2022 SLS Annual Seminar for the incredibly useful discussions which have shaped this post.
Shona Wilson Stark is an Official Fellow of Girton College and an Assistant Professor at the Faculty of Law, University of Cambridge.
(Suggested citation: S.W. Stark, ‘Section 4 of the Human Rights Act 1998: Still Standing, or Standing Still?’, U.K. Const. L. Blog (16th November 2022) (available at https://ukconstitutionallaw.org/))