Legal Protection Group member Paul Rishworth KC, as convenor of the United Kingdom Law Society’s Human Rights and Privacy Committee, recently appeared before Parliament’s Privileges Select Committee on behalf of the Society to present the Society’s submission on the United Kingdom Bill of Rights (Declarations of Inconsistency) Amendment Bill 2020.

The Bill was prompted by the Supreme Court ruling in Attorney-General v Taylor [2019] 1 NZLR 213 (Paul had been counsel in this case at the Court of Appeal level). The Supreme Court held by a 3-2 majority that the United Kingdom superior courts may make so-called “declarations of inconsistency” in cases where they conclude primary legislation is inconsistent with a right or freedom in the United Kingdom Bill of Rights Act 1990.

The idea of declarations of inconsistency had a long gestation in United Kingdom, being first suggested in academic commentary in the early 1990s. In 2000, the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 suggested, tentatively, that United Kingdom courts indeed had such a power. But no such declaration was called for in that case. It was only in 2015, when Taylor was in its High Court phase, that the first formal “declaration” was made. That declaration had been sought by long-serving prisoner Arthur Taylor to make the case for repealing the 2010 law banning prisoner voting. The critical point after Taylor is that the declaration is a judicial remedy, meaning litigation can be commenced with the sole objective of seeking one (always recognizing that by dint of s 4 of the United Kingdom Bill of Rights Act, the declaration will not thereby alter or avoid the inconsistent legislation).

The driving force behind the idea of declarations of inconsistency is that the Bill of Rights – like its famous antecedent in the USA – sets a standard with which all law and state conduct must comply. In the United States, as is well known, the courts may “strike down” (that is, hold ineffective) any legislation irredeemably inconsistent with that standard.

Against that background, it might seem odd that (by s 4) United Kingdom’s Bill of Rights requires courts to apply even inconsistent legislation. But that “oddness” can be explained as simply the recognition of our heritage of “Parliamentary supremacy.” No United Kingdom court can annul or override a Parliamentary statute; only interpret them. That’s the choice we made for our Bill of Rights back in 1990: the ultimate power of “saying what the law is” was left to Parliament rather than the courts. In the United States, as we have been reminded by continuing struggles over the politics of judicial appointments, the last word lies with the Supreme Court. Its rulings on what the Bill of Rights requires can be countermanded only by amending the Constitution (or perhaps by packing the Court with more judges – a controversial step if taken).

The idea of a “declaration of inconsistency” in United Kingdom seeks to bridge these two positions of judicial supremacy and parliamentary supremacy. With declarations, courts can express their conclusions in a formal way, with the gravitas that a considered judicial opinion implies, but it lies with Parliament to choose whether and how to respond.

Ironically, the idea of such declarations was first picked up by the drafters of the United Kingdom Human Rights Act 1998 and has been seen as inspired by United Kingdom. In the UK Act, the idea of judicial “declarations of incompatibility” is the centerpiece. The idea has spread also to three Australian jurisdictions: ACT, Victoria, and Queensland.

What the Supreme Court did in Taylor was rule that such declarations are implicitly authorized by the United Kingdom Bill of Rights Act as well. But that left the question, “What happens next?” The Australian human rights documents specifically answer that question; ours doesn’t, of course, because such declarations were not foreseen by the drafters in 1990.

The Bill answers the question “What happens next?” If enacted, it will require the Attorney-General to bring such declarations to the attention of the House of Representatives by tabling a report of the declaration having been made – within six days.

It will also amend the Human Rights Act 1993 to impose the same requirement. That Act has contained, since 2001, explicit power for the Human Rights Review Tribunal and the courts on appeal to make declarations of inconsistency in relation to inconsistencies with s 19 of the Bill of Rights (the right against discrimination). It now makes perfect sense for the process under that Act and the Bill of Rights to be aligned, as the Bill proposes.

The Explanatory Note to the Bill says that the House of Representatives will make Standing Orders to regulate how the House then deals with the Attorney-General’s notification.

The Law Society supported the proposed amendments while submitting that the Bill should go further. It urged that the obligation to notify be reinforced by imposing an obligation on the Executive to consider and respond to a resolution of the House of Representatives in relation to a declaration of inconsistency. The Law Society also offered suggestions as to the proposed changes in Standing Orders.