Double-Counting Deference? The Discretionary nature of Declarations of Incompatibility under the Human Rights Act

This paper argues that utilising the discretionary nature of declarations of incompatibility under section 4 of the Human Rights Act 1998 as a form of ‘remedial deference’ is irreconcilable with the judgment’s reasoning in the first instance. Moreover, this manifestation of judicial deference does not align with any existing theory or justification of judicial deference; rather, it is to double-count the deference that has previously been factored into the judicial assessment regarding the compatibility of the provision with the UK’s human rights obligations in the first instance. Instead, the emphasis on the discretionary nature of declarations of incompatibility confuses the court’s proper function under the HRA to protect and vindicate human rights while simultaneously respecting parliamentary sovereignty. Judicial references to the concept of ‘dialogue’ as a means of assuaging concerns of undue deference fail to convince and, on the contrary, add weight to the contention that dialogue obfuscates rather than clarifies the correct role of the judicial function. The case law as to the discretionary nature of section 4 should therefore be treated as anomalous and an unfortunate judicial experiment.