University of Cambridge
Much of the common law world has seen a quiet constitutional and public law revolution of sorts over the last two decades. A number of developments and factors have led courts to increasingly (or more explicitly) review legislation against human rights and civil liberties standards. This has variously been described as the ‘new Commonwealth model of constitutionalism’, as a rise in dialogue-orientated reasoning and an uptake of inter-institutional disagreement. In concert with these changes has been the development of remedial solutions. Across jurisdictions, Parliaments have designated remedies that they wish for the judiciary to utilise when assessing legislation, and judges have also creatively developed their remedial arsenal. These remedial solutions include invalidation, declarations of inconsistency (“DOIs”), the interpretation of statutes in line with rights standards, and public law damages.
In a forthcoming article, I assert that there has been another kind of remedial solution adopted by judges across numerous jurisdictions, which I call Indications of Inconsistency (“IOIs”). And I suggest that this turn in judicial practice is normatively concerning.
IOIs arise when, in the course of giving judgment, a judge pronounces or otherwise concludes that a statutory provision breaches a protected human right or civil liberty. Like DOIs, IOIs do not affect the validity, operation or enforcement of the legislative provision in question. The right or liberty being considered may arise under a statute, a constitutional document, the common law or international law. The judicial conclusion that there is a breach of the respective right may be made explicitly or by way of implication in the judgment. The reasoning must include that there is a breach of the protected right, rather than a prima facie interference. As such, an IOI may be informed by a proportionality analysis, given many rights will only be breached if the infringement is held to be disproportionate. Most importantly, a judicial decision giving rise to an IOI will not take the extra step of either striking down the legislative provision, or issuing a formal declaration that there has been a rights breach. In this sense, an IOI stops short of two commonly utilised remedies within the common law world – legislative invalidation and DOIs.
In New Zealand, there has been an explicit acceptance by the judiciary that IOIs may be given where legislation breaches rights under the New Zealand Bill of Rights Act. The rise of IOIs in that jurisdiction has occurred as part of a suite of remedies creatively developed by judges, in the face of a near complete lack of remedies provisions in the Bill of Rights Act.
In the UK, where courts have specifically been given the power to issue DOIs under the Human Rights Act 1998, there has been a move toward the deferral of issuing DOIs. The archetypal case producing this result is R (Nicklinson) v Ministry of Justice  UKSC 38, which related to the compatibility of a blanket ban on assisted suicide with rights under the Human Rights Act. The UK Supreme Court unanimously held it had jurisdiction to hear the case, and a majority held there were substantive reasons to issue a DOI on the facts of the case. However, within this majority, Lords Neuberger, Mance and Wilson found that a DOI should not be issued in the specific case, given Parliament was about to consider the statutory prohibition on assisted suicide; that issuing a DOI at that time raised questions of institutional competence or democratic legitimacy; that the court had not identified the way in which the defect should be remedied; and that there had been uncertainties regarding evidence and arguments before the court. In doing so, these judges clearly issued an IOI: they indicated that an incompatibility existed between the relevant legislation and a right protected under the Human Rights Act, before refusing to issue a DOI. Justifying this cause of action was the argument that this action would aid ‘dialogue or collaboration’.
IOIs have also been given in the UK where judges have found that they have no jurisdiction to hear a case, and yet go on to make a substantive decision that there is an inconsistency between a legislative provision and a protected right. This approach can be seen In the Matter of Northern Ireland Human Rights Commission  UKSC 27 and in Banks v Commissioners for HMRC  UKFTT 0617 (TC). In these decisions, the judges completed a full analysis of the compatibility of primary legislation against rights protected under the Human Rights Act, before explicitly finding that relevant rights had been breached. Despite those findings, no DOIs were issued, due to a lack of jurisdiction to do so (in Northern Ireland because of standing, and in Banks because the Tribunal lacked the power to issue a DOI under the Human Rights Act). Like other cases of IOIs, the litigants were left in precarious positions. Judges had authoritatively determined that their rights had been breached by statute, but did nothing further to remedy that situation.
In Ireland, there has been a push toward the use of deferred invalidation as a remedy where legislation is found to be in breach of constitutional rights. Cases such as NHV v Minister for Justice & Equality  IESC 35 and PC v Minister of Social Protection  IESC 63 are examples, and show the courts issuing IOIs. In those cases, the Supreme Court indicated a conflict between legislation and rights protected under the Irish Constitution, before deferring a decision on remedies. The Court did this to enable the legislature to fix the identified statutory defect, or to enable the parties make submissions as to the court order. While Tom Hickey called this a ‘promising “dialogue-oriented” departure in Irish constitutional law’, others such as Eoin Carolan have more cautiously assessed the turn in judicial practice.
In the forthcoming article, I consider these cases as well as the normative arguments regarding IOIs. Of course, the consequences and desirability of IOIs in different jurisdictions will depend on acutely local issues, not least what the potential counterfactuals to the issuing of an IOI may be. Nevertheless, there are some normative assessments which are applicable across different jurisdictions. IOIs may help promote positive dialogue between the branches of government, may help vindicate a rights breach, or be of assistance should the rights breach be brought before an international forum such as the UN Human Rights Committee. However, when IOIs are given, the result for the litigant and society is likely to be uncertain and unsatisfactory. Indeed, there is arguably very little pressure on the other branches to remedy the rights breach following an IOI. Unlike DOIs, which may enliven procedures for fast track review of the impugned legislation, or serious expectations that Parliament or the Executive reconsider such legislation, most manifestations of IOIs will not have this result. In this sense, IOIs provide an even weaker remedial solution than one of the archetypal ‘weak-form’ judicial review remedies: DOIs. And it is questionable whether IOIs will produce a positive form of dialogue.
It will be interesting to see if the rise of IOIs continues across different jurisdictions, and the impact of this on public law litigation. For example, should there be a continued increase in the assessment of legislation as against fundamental common law rights, it may be that judges reach for IOIs as a less controversial and light touch remedial response to any breaches identified. I suggest that such an approach is normatively concerning for both the litigants and the legal system more broadly.
Nicholas Petrie is a PhD candidate at the University of Cambridge, where he is a Gates Cambridge Scholar.
Suggestion citation: Nicholas Petrie, “Indications of Inconsistency: A Concerning Remedy for Breaches of Protected Rights and Liberties” IACL-AIDC Blog (24 September 2019) https://blog-iacl-aidc.org/2019-posts/2019/9/24/indications-of-inconsistency-remedial-solutions-for-breaches-of-protected-rights-and-liberties