577 At 581, Lord Slynn remarked that ‘it is clear that the 1998 Act

must be given its full import and that long or well entrenched ideas

may have to be put aside, sacred calves culled’. Lord Steyn has also

taken a liberal approach (above).

At the other extreme, it has been suggested that English law should

form the baseline and be assumed to confirm to the convention unless

clearly incompatible. Lord Hoffman (1999) has suggested a cautious

approach arguing that UK culture is more communitarian than, for

example, that of the USA (see also his speeches in R. (Alconbury) v.

Secretary of State (2001) and in R. v. Secretary of State for the Home

Department ex parte Simms [1999] 3 All ER 400, 413). Sir John Laws

(1998) has also proposed a cautious approach based on the common

law. In R. v. Lambert [2001] 3 All ER 577 at 603 Lord Hope empha-

sised ‘the need (a) to respect the will of the legislature so far as this

remains appropriate and (b) to preserve the integrity of our statute law

so far as this is possible.’ In R. v. Secretary of State for Social Services

ex parte C (2000), Lord Hoffmann remarked that the Human Rights

Act 1998 ‘was no doubt intended to strengthen the rule of law but not

to inaugurate the rule of lawyers’ (see also Scott Baker J in Gunn-Russo

v. Nugent Care Housing Society (2001), para. 65).

A middle position is that the decisions of the European court are

taken as the primary guidance unless there is some important feature of

our constitutional arrangements, legislation or case law that requires

us to differ (see R. v. Togher [2001] 3 All ER 463, 472 per Lord Woolf, R.

(Alconbury) v. Secretary of State [2001] 2 All ER 929, 969 per Lord

Slynn. This approach carries with it the danger of a ‘race to the bottom’

438 General Principles of Constitutional and Administrative Law

because international human rights jurisprudence tends towards bland

compromise (see Gardner in McCrudden and Chambers, 1994).

18.4.3 Declaration of incompatibility

This is a last resort. The court has a duty to interpret primary

legislation in line with a Convention right. Where this is not possible a

higher court (High Court and above) may, but is not required to, make

a ‘declaration of incompatibility’ (s. 4). This is at the heart of the

accommodation between law and democracy. A declaration of incom-

patibility has no effect on the validity of the law in question and is not

binding on the parties (s. 4(6)). A declaration of incompatibility invites

Parliament to consider whether to change the law. Additionally s. 10

creates a ‘fast-track’ procedure applicable in special circumstances.

This enables a minister by statutory instrument subject to the approval

of Parliament to make such amendments as he considers necessary

to remove the incompatibility. The fast-track procedure can be used

where a declaration of incompatibility has been made or where an

incompatibility arises because of a ruling by the ECHR and a minister

considers that there are ‘compelling reasons’ for proceeding. It does

not apply to Measures of the Church of England. Subordinate legisla-

tion which conflicts with a Convention right can be quashed by the

court and reinstated in amended form under this procedure.

In Wilson v. First County Trust Ltd (above) the Court of Appeal took

the view that a declaration of incompatibility should be made, firstly

because the point had been fully argued, secondly because a formal

declaration gives legitimacy to the court’s order overriding the human

right and thirdly in order to provide a basis for the responsible minister

to consider making a remedial order (see also R. v. Mental Health

Review Tribunal (above)). The court did not express a view as to

whether the law should be changed thereby avoiding making an overt

political value judgement. Ministers are not bound to obey a declara-

tion of incompatibility and judicial review may not lie in respect of a

refusal to do so (below 18.4.5).

18.4.4 Statement of compatibility

Under s. 19, a Minister of the Crown in charge of a Bill in either House

of Parliament must, before the Second Reading of the Bill: (a) make a

statement to the effect that in his view the provisions of the Bill are

compatible with the Convention rights (a ‘statement of compatibility’);

439

Human Rights and Civil Liberties

or (b) make a statement to the effect that although he is unable to

make a statement of compatibility the government nevertheless wishes

the House to proceed with the Bill. The statement must be in writing

and published in such manner as the minister making it considers

appropriate. Apart from putting political pressure on the government,

the statement might be used by the courts along with other evidence

of the government’s intentions to help them interpret legislation. The

main purpose of the statement of compatibility is to ensure that

the promoters and drafters of all legislation give attention to human

rights aspects. There is a Joint Parliamentary Committee on Human

Rights and the government is considering whether to introduce a

Commissioner to monitor the working of the Act.

18.4.5 Remedies

By virtue of s. 6 (1) ‘it is unlawful for a public authority to act in

a way which is incompatible with a Convention right’ except where:

(a) ‘as a result of one or more provisions of primary legislation, the

authority could not have acted differently’; or (b) ‘in the case of one or

more provisions of, or made under, primary legislation which cannot

be read or given effect in a way which is compatible with the Con-

vention rights, the authority was acting so as to give effect to or enforce

those provisions.’ For this purpose an ‘act’ includes a failure to act

but does not include a failure to introduce or lay before Parliament

a proposal for legislation nor make any primary legislation or remedial

order (s. 6 (6)). A failure to respond to a declaration of incompati-

bility may therefore not be reviewable unless it is unreasonable on

ordinary grounds.

Section 7 entitles a ‘victim’ to bring proceedings in respect of an act

which is unlawful under s. 6, and also to rely on Convention rights in

‘the appropriate court or tribunal or any legal proceedings such as

defence against a criminal charge or administrative action or an appeal.

However the Secretary of State can make rules designating an appro-

priate court or tribunal for particular purposes (s. 7 (1) (a), s. 9 (1) (c);

see below p. 570).

‘Victim’ has the same meaning as in cases brought before the ECHR

(s. 7 (7)). The claimant or a close relative must be directly affected, or at

least very likely to be affected, by the action complained of (see Klass v.

Federal Republic of Germany (1978), Open Door and Dublin Well

Woman v. Ireland (1992)). There is no standing for NGOs representing