II. What Are Indications of Inconsistency?

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. The IoI does not affect the validity, operation or enforcement of that legislative provision. The right in question may arise under 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 include 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.

A central aspect of an IoI is that the judicial pronouncement does not affect the validity of the legislation in question. On one view, this runs counter to the conception of the common law judicial function, which is often expressed as being incompatible with abstract advisory opinions.Footnote ³ Adjudication is often understood to be between two parties, retrospective and presided over by a neutral arbiterFootnote ⁴; with right and remedy being interdependent.Footnote ⁵ Despite such conceptions of the judicial function, judicial advice-giving is not new in the common law world.Footnote ⁶ Some common law jurisdictions, such as India and Canada, explicitly provide for judicial advice-giving.Footnote ⁷ The Privy Council also has an historic but rarely used jurisdiction to give advisory opinions.Footnote ⁸ However, even in jurisdictions without such specific advisory capacities, one of the first things a student of the common law is taught is that judgments may be split between ratio decidendi and obiter dicta, with obiter being a form of judicial comment or opinion. Obiter dicta do not form part of the core substantive reasoning, nor any binding precedent on future courts. Nevertheless, obiter remarks may be persuasive for future court decisions, signal possible future legal change, or send a message about a judge's opinion as to the desirability of certain legislation or government policy.Footnote ⁹ However, IoIs should be distinguished from general obiter comments on legislation. In particular, we ought to limit our understanding of IoIs to circumstances in which a court notes in its reasoning that a statute actually breaches a protected right. An IoI cannot simply be judicial disapproval or a negative comment made in passing, as may be the case with statements in obiter. For different reasons, IoIs should also be distinguished from judicial opinions which arise pursuant to a specific advisory jurisdiction, such as in India and Canada. Unlike IoIs, which arise in ordinary common law proceedings between litigants, such advisory opinions are given following a reference or question being put to the court specifically for purpose of an opinion.Footnote ¹⁰ It follows that judicial advice-giving is not wholly novel in the common law world, however, the rise of IoIs is somewhat of a unique phenomenon and should be analysed as such.Footnote ¹¹

One way of understanding IoIs is by way of comparison with DoIs, given the similarity between the two remedies.Footnote ¹² DoIs arise when a judge reaches a similar conclusion to that within an IoI, but then issues a formal declaration that the statutory provision gives rise to a rights breach. Courts are likely to have many of the same objectives in mind when issuing IoIs as they do with DoIs. These include engaging in “dialogue” with the Parliament and Executive about the need for legislative change, the symbolic vindication of rights and providing positive cost outcomes for litigants. All of this can be contrasted with judicial invalidation, which has the very different result of the court striking down the statutory provision causing the rights breach.Footnote ¹³

DoIs have been considered novel,Footnote ¹⁴ because they enable courts to scrutinise valid legislation and declare it to be rights-breaching.Footnote ¹⁵ As Lord Neuberger has said, such a function would have been “unthinkable” for common law judges 50 years ago, but “[w]e have travelled a very long way”.Footnote ¹⁶ While in some senses revolutionary, the DoI also aligns with common law doctrine, in that it does not alter the legislation in question.Footnote ¹⁷ As such, any legal changes flowing from the DoI will occur through the supreme law-making body: Parliament.Footnote ¹⁸ It is for this reason that DoIs are said not to disturb Dicey's conception of parliamentary sovereignty,Footnote ¹⁹ which has been influential across the common law world. However, DoIs do run counter to Dicey's insistence on the interdependence of right and remedy,Footnote ²⁰ given that the court order does not automatically alter or impact the legislation in question. It is this unique operation of the DoI that has led to it being described as “a special pseudo remedy”,Footnote ²¹ and being found by the Australian High Court to be outside the “judicial function” as that term applies under the Australian Constitution.Footnote ²²

Supporters of DoIs argue that they are facilitative of dialogue between the courts and the other branches of government, which is increasingly important to the “new Commonwealth model of constitutionalism”.Footnote ²³ This is because DoIs enable courts to scrutinise legislation and engage with Parliament about the need for legislative change, but leave the final decision on such amendments to Parliament. Other remedies such as suspended invalidation of legislation also attract positive treatment in much of this literature, for providing the courts with flexible, dialogic remedial options.Footnote ²⁴ IoIs may similarly be seen as facilitative of inter-institutional dialogue. However, as will be shown in Sections IV–VII below, the judge-articulated and extra-statutory nature of IoIs means there are often no formally articulated requirements before the court engages in the IoI process, nor specifically laid out expectations flowing from the IoI. As a result, there is arguably more scope for political pushback or inactivity following their pronouncement. And this in turn may undermine the court as an institutional actor.Footnote ²⁵ The courts should be mindful of such normative concerns if there is to be an increase in IoI usage.

III. Normative Concern

Remedial creativity has been a hallmark of the common law, with judges applying measured solutions to complex and novel issues.Footnote ²⁶ Nevertheless, even subtle shifts in remedial practice and procedure have a significant impact on the adjudication of rights issues.Footnote ²⁷ If IoIs are on the rise in the common law world, the judiciary and academy ought be aware of the impact of this. This section raises some concerns about the rise of IoIs, not least that this may normalise a particularly weak remedial outcome for litigants. This risk is not clearly outweighed by any systematic benefit for the legal system as a whole, for example that there will be increased and productive dialogue between the branches of government.

In considering the normative arguments for and against IoIs, one natural starting point is the literature on DoIs. This is because, as we have seen above, IoIs and DoIs have similarities in terms of their potential role for litigants and for the legal system more generally. Further, there has been a significant amount written on DoIs across multiple jurisdictions, now that they have been in operation under statute for nearly two decades.Footnote ²⁸ Arguments against the use of DoIs include that they may be ignored, leaving rights-breaching legislation in placeFootnote ²⁹; that they unduly encourage courts to criticise ParliamentFootnote ³⁰; that the judiciary risks becoming involved in political, moral or policy-oriented decision-makingFootnote ³¹; and that diverting attention away from alternative remedial solutions reinforces and normalises a weak solution that may have limited benefit for the individual litigant.Footnote ³²

In those jurisdictions with DoIs, the remedy has been met with criticism and controversy.Footnote ³³ This criticism relates in part to the optics of DoIs, which may not reflect the reality, or intention, of the remedy. Take the UK Human Rights Act 1998 (“UKHRA”) for example. While the interpretive power under section 3 of the UKHRA is the “principal remedial measure”Footnote ³⁴ and provides a strong mechanism to intrude on the legislative function (by adding, amending or deleting statutory words), it is the DoI power which has been received with significant disdain by the media and politicians.Footnote ³⁵ We see this in response to the case of Thompson, where a DoI was issued in relation to the inability to remove a person's name from the sex offenders’ register.Footnote ³⁶ The then Home Secretary Theresa May said she was appalled at the decision and stated: “It is time to assert that parliament makes our laws, not the courts, that the rights of the public come before the rights of criminals and, above all, that we have a legal framework that brings sanity to cases such as these.”Footnote ³⁷

David Cameron also criticised the decision, saying he would do the “minimum necessary” to comply with it.Footnote ³⁸ These are strange statements, given the DoI remedy was fashioned in the UKHRA to do the very things May and Cameron so desired: give Parliament the final decision on what to do about rights issues.Footnote ³⁹ As Lady Hale noted extrajudicially: “[c]uriously, when introduc[ing] the order in Parliament, the Prime Minister was highly critical of our decision, but made no mention of the fact that the Government could have chosen to do nothing about it.”Footnote ⁴⁰ Nevertheless, concerns about political pushback and institutional competency may help explain why judges remain cautious about issuing DoIs.Footnote ⁴¹

Despite all of the concerns and criticism about DoIs, the remedy is still pursued by litigants and has been acknowledged by various courts to have specific and unique benefits. In addition to the dialogic benefits,Footnote ⁴² DoIs may also vindicate rights, both in the sense that they may hasten the removal of rights-breaching legislation,Footnote ⁴³ and as Glazebrook and Ellen France JJ. of the Supreme Court of New Zealand have acknowledged, in “the sense of marking and upholding the value and importance of the right”.Footnote ⁴⁴ Finally, on an important practical level, there may be positive costs implications for successful parties.Footnote ⁴⁵

Normative arguments in favour of IoIs essentially track those of DoIs. They suggest that IoIs help promote positive dialogue between the branches of government,Footnote ⁴⁶ which has flow on benefits such as maximising popular accountability, inspiring better policy choices and encouraging judicial candour.Footnote ⁴⁷ Further, an IoI 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.Footnote ⁴⁸

There are various normative arguments against IoIs. These include that IoIs, like DoIs, potentially cause damage by going against the usual judicial reluctance toward advisory opinions, leading to a blurring of the separation of powers and inappropriately opening courts up to matters which have traditionally been outside their competence.Footnote ⁴⁹ They may also be seen as the judiciary gratuitously criticising Parliament.Footnote ⁵⁰ However, the risks are even worse with IoIs than with DoIs. This is because any risks are counterbalanced by weaker potential benefits than DoIs. IoIs leave the litigant and society in a more precarious position, because there is a less explicit statement that there has been a rights breach, and a less clear process for Parliament and the Executive to reconsider the offending legislation. The dialogue promoted under a scheme of IoIs is therefore likely to be much less robust than through established processes in place for DoIs. Absent clear process to reconsider and amend the law as occurs in statutory mechanisms for DoIs, there is less pressure on Parliament or the Executive to reconsider the law.Footnote ⁵¹

While there is much to be said about the normative undesirability of IoIs, there is perhaps even more to be said about the alternative courses of action open to judges who determine that legislative provisions are incompatible with protected rights. Some obvious alternatives are the increased use of the interpretive tools such as the principle of legalityFootnote ⁵²; invalidating legislation; and the issuing of DoIs. This paper is not the place to explore all of these, not least because the options and their likely uptake will be very different across jurisdictions. Instead, the following sections will reflect on the potential impact of a rise in IoIs for judicial practice, inter-institutional dialogue and rights protection. In each of the examples considered we see cautious remedial developments made by a judiciary cognisant of problems associated with sudden change or judicial overreach. However, slow change may nevertheless have major consequences to which we should be alive.Footnote ⁵³

IV. Indications of Inconsistency in New Zealand

The jurisdiction that has most clearly embraced IoIs is New Zealand. This is because, unlike its counterparts in other jurisdictions, the New Zealand Bill of Rights Act 1990 (“NZBORA”), lacks a comprehensive remedial regime. The remedies provisions initially proposed were dropped to ensure the Bill's passage through Parliament.Footnote ⁵⁴ In addition, section 4 expressly disallows the judiciary to strike down or decline to apply any legislation on the ground that it is inconsistent with any provision in the NZBORA. As such, the NZBORA's chief promoter Geoffrey Palmer told Parliament that “the Bill creates no new legal remedies for the court to grant. The judges will continue to have the same legal remedies as they have now”.Footnote ⁵⁵ Despite this, the judiciary have approached the NZBORA creatively, incrementally building a remedial arsenal.Footnote ⁵⁶ For example, the courts famously fashioned a form of public law damages for breaches of rights.Footnote ⁵⁷ More recently, the Supreme Court in Taylor approved the first DoI issued for a breach of the NZBORA,Footnote ⁵⁸ despite the absence of an explicit provision for such a remedy in the legislation.Footnote ⁵⁹ A number of decisions before Taylor had postulated that the courts had such a power.Footnote ⁶⁰ But until that case, the courts had limited themselves to IoIs, or what have become known as “Hansen indications”, after the case bearing that name.

The key provisions in relation to IoIs and DoIs in the NZBORA are sections 4–6, which provide:

After the NZBORA came into force, courts and academics considered the correct approach to these sections.Footnote ⁶¹ In some early cases, the courts avoided considering how sections 4–6 fit together, and particularly the role of section 5, by assuming that the limitation under the statute in question was inconsistent with the NZBORA, before applying the statute pursuant to section 4.Footnote ⁶² Alternatively, the courts proceeded on the basis that the NZBORA had no role to play in the interpretive process because the meaning of the provision was so clear.Footnote ⁶³ As a result, these early cases generally did not meet the key elements of IoIs. This is because section 5 is important with regard to IoIs, as most of the rights in the NZBORA are expressed in absolute terms, subject to that universal qualification.Footnote ⁶⁴ Given that an IoI or DoI cannot be made unless there is an unjustified or unreasonable breach of the right, the section 5 analysis becomes crucial.Footnote ⁶⁵

In contrast to the cautious approach of some early decisions, the courts began to countenance that their role included considering the justifications of limitations to rights under section 5. The Court of Appeal in Ministry of Transport v Noort was split on the question of the interpretative role for section 5.Footnote ⁶⁶ The minority approach of Cooke P. and Gault J. was that there was no scope to utilise section 5 in considering whether any limitation on rights was justified.Footnote ⁶⁷ However, the majority of Richardson, McKay and Hardie Boys JJ. held that the courts could reason not only that there was an apparent inconsistency between a statute and a right in the NZBORA, but that this apparent inconsistency was not justified under section 5.Footnote ⁶⁸ This in essence, suggested that courts could make IoIs. And this position has prevailed in the jurisprudence. Even Cooke P. and Gault J. changed their tune later that year in Temese v Police, when all of the judges held it was appropriate to consider justification under section 5.Footnote ⁶⁹

As the courts began to accept the role of section 5, they began to explicitly recognise that what they were doing was issuing IoIs.Footnote ⁷⁰ The Court of Appeal case of Moonen v Film Literature Board of Review was groundbreaking in this regard, with Tipping J. stating that the courts must have “the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights, in that it constitutes an unreasonable limitation on the relevant right or freedom which cannot be demonstrably justified in a free and democratic society”.Footnote ⁷¹

While the explicit acceptance of the IoI remedy was somewhat controversial at first,Footnote ⁷² it came to be considered routine. The Supreme Court addressed the issue in Hansen v The Queen, where it affirmed that courts can make IoIs with regard to rights listed in the NZBORA.Footnote ⁷³ While the court in Hansen took a slightly different approach than Moonen to the order in which sections 4 and 6 were to be considered,Footnote ⁷⁴ Hansen was a clear affirmation from the highest court that IoIs should be considered a part of the judicial function in cases considering the NZBORA.

As IoIs became an accepted judicial practice, a question remained as to whether DoIs were available. There had been early flirtations with the idea by judges and academics,Footnote ⁷⁵ and the courts later danced around the question of whether a formal DoI could be issued.Footnote ⁷⁶ But litigants continued to push for DoIs, adding weight to the argument that they are a desirable remedy. Litigants argued that the formal nature of the DoI remedy may help vindicate rights, in that courts are seen to defend and uphold the respective rights and Parliament is clearly invited to remedy the rights breaches; that DoIs may meet the “effective remedy” requirement under international law; and that DoIs may result in better cost outcomes.Footnote ⁷⁷

The courts first issued a DoI in the Taylor proceedings. In an extensive and groundbreaking decision, the Court of Appeal held that the jurisdiction to issue DoIs was, at least in large part, to be found at common law.Footnote ⁷⁸ The unanimous judgment concluded that the jurisdiction to issue DoIs “finds its source in the common law jurisdiction of the higher courts to answer questions of law” and was “confirmed” by the NZBORA.Footnote ⁷⁹ The majority judges of the Supreme Court were less emphatic on the source of the DoI power. However, they suggested the power to issue DoIs may arise under the common law.Footnote ⁸⁰ All of the judges also firmly concluded that nothing about issuing a DoI was inconsistent with the usual judicial function.Footnote ⁸¹

In terms of the rise of IoIs, two things should be noted about Taylor. First, neither the Court of Appeal nor Supreme Court ruled out the future use of IoIs now that a DoI had been issued. Instead, the courts clearly emphasised that there was still a place for IoIs in NZBORA cases.Footnote ⁸² Second, the DoI issued in Taylor lies somewhere between an IoI and a DoI, in the manner in which DoIs are generally understood outside New Zealand. The Taylor DoI resembles DoIs in other jurisdictions in that it is a formal declaration that primary legislation is inconsistent with protected rights. However, it lacks some of the procedural requirements and clear ramifications that DoIs have in other jurisdictions, such as the action to be taken in Parliament and the option for Executive to remedy the rights breach following the issuing of a DoI under the UKHRA.Footnote ⁸³ In lieu of these statutory provisions, the Court of Appeal in Taylor laid out certain procedural requirements and ramifications for DoIs in New Zealand. Regarding procedural issues, the court specified rules on issues such as mootness, standing, process and discretion.Footnote ⁸⁴ Regarding ramifications of DoIs, the court noted, among other things, that a DoI would give rise to a constitutional expectation that Parliament or the Government would respond by “reappraising the legislation and making any changes that are thought appropriate”.Footnote ⁸⁵ The Supreme Court was less focused on laying out the procedural hurdles which must be met for a DoI to be issued. Further, the lead judgment of the Supreme Court distanced itself from the discussion in the Court of Appeal decision regarding dialogic benefits of DoIs, but it did note that a DoI could be of “assistance” to Parliament.Footnote ⁸⁶

In terms of the normative arguments, when one compares an IoI like that in Hansen to a DoI issued under the UKHRA, the DoI is preferable for both the litigant and for the public more generally. The UK remedy has clear boundaries in terms of when it may be issued and provides a structured process by which the Executive and Parliament must reconsider the rights-infringing legislation. The gulf between IoIs and DoIs is closed somewhat by the issuing of a DoI for breaches of the NZBORA, as in Taylor. However, DoIs under the NZBORA still do not provide particularly attractive remedial outcome. As has occurred in response to Taylor, it is open to Parliament to completely ignore the DoI issued by the courts and refuse to remove the inconsistency in the legislation.Footnote ⁸⁷

V. Deferred Declarations of Incompatibility

The deferral of a DoI may constitute an IoI in certain circumstances. The archetypal case producing such a deferred DoI is Nicklinson, which related to the compatibility of a blanket ban on assisted suicide with rights under the UKHRA.Footnote ⁸⁸ The UK Supreme Court unanimously held it had jurisdiction to hear the case and a majority (Lady Hale and Lords Neuberger, Mance, Kerr and Wilson) held it was appropriate to consider issuing a DoI under the UKHRA.Footnote ⁸⁹ This majority also held there were substantive reasons to issue a DoI on the facts of the case. Despite this, Lords Neuberger, Mance and Wilson went on to find that a DoI should not have been issued in the specific case before the court. In doing so, these three judges deferred the DoI consideration and in effect issued a form of IoI.Footnote ⁹⁰ The strained reasoning leading to this IoI has had significant and retrogressive consequences for subsequent consideration of assisted suicide laws by all branches of government, despite one purpose of the deferred DoI being to leave it to Parliament to consider any legislative change.Footnote ⁹¹

A majority of judges in Nicklinson held or indicated the general prohibition on assisted suicide was incompatible with the right to private life under Article 8 of the European Convention of Human Rights (“ECHR”), which is protected domestically under the UKHRA.Footnote ⁹² In coming to this conclusion but refusing to issue a DoI, Lords Neuberger, Mance and Wilson noted that Parliament was about to consider the statutory prohibition on assisted suicide and should be first given that opportunityFootnote ⁹³; that issuing a DoI at that time raised questions of institutional competence or democratic legitimacyFootnote ⁹⁴; that the court had not identified the way in which the defect should be remediedFootnote ⁹⁵; and that there had been uncertainties regarding evidence and arguments before the court.Footnote ⁹⁶ These judges did not rule out a future DoI, but rather invited further consideration of the issue, should Parliament not satisfactorily deal with the matter.Footnote ⁹⁷

This was an unusual and unexpected turn in the development of DoI practice.Footnote ⁹⁸ After all, Parliament had itself assigned the courts a constitutional role in considering the compatibility of legislation against the rights listed in the UKHRA.Footnote ⁹⁹ The more expected course would be that laid out by Lady Hale, who stated:

In contrast, Lords Neuberger, Mance and Wilson clearly issued an IoI, by indicating their view that an incompatibility existed between the relevant legislation and Article 8, before refusing to issue a DoI. In justifying this route, Lord Neuberger wrote: “Dialogue or collaboration, whether formal or informal, can be carried on with varying degrees of emphasis or firmness and there are times when an indication, rather than firm words are more appropriate and can reasonably be expected to carry more credibility. For the reasons just given, I would have concluded that this was such a case.”Footnote ¹⁰¹

Lord Mance stated that it was not an appropriate time to consider issuing a DoI, before associating himself with Lord Neuberger's main conclusions (including that stated above) and noting that he would “not rule out the possibility” of a further DoI application.Footnote ¹⁰² Lord Wilson warned that if the case returned to court and Parliament had failed to satisfactorily address the issue, there was a “real prospect” that the fresh claim would succeed.Footnote ¹⁰³

Interestingly, Lord Neuberger's judgment in Nicklinson was one of the first in the UK to endorse the notion of “dialogue”.Footnote ¹⁰⁴ Similarly, Lord Wilson offered extensive suggestions on a possible assisted suicide scheme in an effort to “collaborate” with the legislature.Footnote ¹⁰⁵ Extrajudicially, Lord Mance has stated that one of the reasons for the deferred DoI was “dialogue with the legislature”.Footnote ¹⁰⁶ However, even if it were accepted that dialogue is a positive metaphor or goal, the extent to which a deferred DoI is a positive dialogic step is questionable. As Stevie Martin has suggested, the “claim that Parliament would benefit from the absence of a declaration fundamentally mischaracterises the nature and purpose of s.4 of the HRA”,Footnote ¹⁰⁷ which is to communicate the rights breach in order that Parliament may decide what to do in relation to that breach. Further, Lords Neuberger, Mance and Wilson's judgments also place a significant evidential burden on applicants, by suggesting they must not only prove there is a rights infringement, but that the infringement was disproportionate and that there is a workable scheme which could replace the current rights-infringing scheme. This burden should have fallen on the Executive.Footnote ¹⁰⁸

When we add the three judges that I say issued an IoI (Lords Neuberger, Mance and Wilson), to the judges who held they would have issued a DoI (Lady Hale and Lord Kerr), there was a majority of the court providing a clear indication to Parliament that the legislation in question breached Article 8. Despite this, the response to Nicklinson has been stark. The House of Commons and House of Lords have considered but rejected multiple Bills to amend the law.Footnote ¹⁰⁹ In one sense, this could be seen as dialogue in action: the Supreme Court noted their view on the compliance with rights and the democratic legislature has in turn decided to stick with the status quo. However, Nicklinson has been central to the debates in Parliament and subsequent court cases.Footnote ¹¹⁰ The unusual reasoning of the court has led to the judgment being confused.Footnote ¹¹¹ For example, Nicklinson has been taken as evidence that the current law complies with the ECHR,Footnote ¹¹² and therefore supporting the status quo. In contrast, all DoIs issued under the UKHRA since 2000 have resulted in legal changes or are currently under active reconsideration by the Government.Footnote ¹¹³ The difference between the result following the issuing of DoIs versus the result following the Nicklinson deferred DoI lends weight to the normative argument that DoIs are a more effective remedy likely to lead to legislative change, than their weaker IoI counterparts.

Despite the potential problems with the deferred DoI approach in Nicklinson, it seems it may become accepted practice within the UK. In Conway v Secretary of State for Justice the Court of Appeal considered a further DoI application in relation to UK assisted dying laws.Footnote ¹¹⁴ While the court rejected the application, it distinguished the Nicklinson deferred DoI approach on the basis of a change in circumstances. These changes included that there had been further Strasbourg jurisprudence, the fact that Parliament had since considered the matter and rejected legislation, and on the basis of better evidence about the alternative scheme that could be implemented if a DoI were to be issued. In doing so, the Court of Appeal in Conway made comments which supported the Nicklinson deferred DoI approach, which it noted was taken in light of the Supreme Court's reasoning that Parliament was a better forum for determining the issue of legalising assisted suicide than the courts.Footnote ¹¹⁵ Furthermore, the Supreme Court refused permission to appeal in Conway, therefore providing support for the Court of Appeal decision.Footnote ¹¹⁶

The Nicklinson approach has also been considered In the Matter of Northern Ireland Human Rights Commission [2018] UKSC 27 (“Northern Ireland Human Rights Commission”).Footnote ¹¹⁷ The case, which is considered in Section VII below, related to laws criminalising most abortions in Northern Ireland. The court distinguished Nicklinson, noting that, unlike Nicklinson, there was no clear indication that the legislature was going address the issue at hand in the near future; that the incompatibility in the present case was easily identifiable and easily cured; and that the interests were not of two living adults like in Nicklinson.Footnote ¹¹⁸ The court's reasoning suggests that, should the facts have been different it would have followed the Nicklinson deferred DoI approach. Tellingly, Lady Hale, who vocally opposed the deferred DoI approach in Nicklinson, approved of the notion in Northern Ireland Human Rights Commission, in distinguishing the two cases on the facts. Given the acceptance of the Nicklinson deferred DoI approach it seems reasonable to expect more of these types of IoIs may be given in future UK jurisprudence.

VI. Deferred Invalidation

The idea of constitutional or superior courts suspending invalidation orders is not new.Footnote ¹¹⁹ It occurs when a court declares that a law is unconstitutional but suspends the operation of that invalidation order to a determinate time. Deferred invalidation is similar to this. In the case of a deferred invalidation the court indicates the conflict with the constitution, before deferring its decision on remedies, typically to enable the legislature to fix the statutory defect, or to enable the parties make submissions as to the court order.Footnote ¹²⁰ Any invalidation is postponed for an indeterminate and potentially infinite period. While both deferred and suspended invalidation orders may be understood as IoIs, deferred invalidation orders more squarely fall within the definition. This is because suspended invalidation will generally provide for legislative invalidation to be made on a certain future date. Therefore, like ordinary invalidation, the claimant's rights are vindicated and the general public is given the benefit of rights compliant legislation, it is just that this is given delayed effect. On the other hand, in deferring invalidation, the court does not guarantee the legislation will be invalidated or that further action will be taken. Recent Irish cases, in particular the proceedings in NHV v Minister for Justice and Equality & ors Footnote ¹²¹ and subsequent cases, show a burgeoning uptake of deferred invalidation. They neatly show why deferred invalidation orders are an instance of IoIs and help flesh out some of the normative issues. These cases raise other important issues in the Irish context, including with regards to the constitutional permissibility of deferred invalidation,Footnote ¹²² and unenumerated rights.Footnote ¹²³ However, my concern is the normative implications of IoIs in the form of deferred invalidation. This is despite the fact that such a consideration is somewhat premature, given this is a recent judicial turn in Ireland.Footnote ¹²⁴

Aileen Kavanagh has recently written that a range of judicial practices variously described as the judiciary “holding back”, “softening its blow” and “leaving legislative leeway” are on the rise, showing increased uptake of suspended and deferred invalidation across different jurisdictions.Footnote ¹²⁵ We see this occurring in countries traditionally understood to be “strong form” judicial review jurisdictions such as Germany, Italy and ColombiaFootnote ¹²⁶; as well as in countries broadly falling in the common law tradition such as the UK (with regard to EU law),Footnote ¹²⁷ India,Footnote ¹²⁸ Hong Kong,Footnote ¹²⁹ Canada,Footnote ¹³⁰ South AfricaFootnote ¹³¹ and Ireland.Footnote ¹³² This is perhaps because the blunt nature of invalidation makes it unappealing to judges.Footnote ¹³³ Indeed, suspended invalidation has been received favourably in jurisdictions where it has been utilised,Footnote ¹³⁴ where it is most often justified by judges on the basis of there being exceptional factual circumstances or concerns regarding institutional competence.Footnote ¹³⁵ Kavanagh has argued that the uptake of such practices is leading to an “iterative and interactive dynamic between courts and the legislature”.Footnote ¹³⁶ Whether such dialogic aims are being met, or outweigh countervailing normative concerns, is jurisdiction specific. However, the recent case law in Ireland is instructive.

Judicial supremacy, along with the power to invalidate unconstitutional legislation, is central to the Irish legal order.Footnote ¹³⁷ These concepts often go unquestioned,Footnote ¹³⁸ despite invalidation being the primary remedy for unconstitutionality.Footnote ¹³⁹ In this sense, the NHV proceedings and subsequent cases can be seen as part of a constitutional moment in Ireland.Footnote ¹⁴⁰ However, there is historical and theoretical support for the remedial innovation that is occurring. Despite the judiciary nominally having the “final word” on the Constitution, Fiona de Londras has argued that responsibility for the Constitution has long been shared between branches of government, public authorities and the people.Footnote ¹⁴¹ Furthermore, judicial creativity has a long pedigree in Ireland.Footnote ¹⁴² In addition, prior to NHV there was some support for a deferred or suspended approach. For example, some judges had warned, by way of obiter, of potential unconstitutionality which needed to be rectified.Footnote ¹⁴³ There was also a line of cases considering the prospective application of constitutional invalidation,Footnote ¹⁴⁴ which foreshadowed the deferral jurisprudence.Footnote ¹⁴⁵ However, the clear uptake of deferred invalidation in NHV and subsequent cases is a novel turn.Footnote ¹⁴⁶ This is in part because of the courts in these cases were considering legislation, whereas much of the precedent related to other forms of unconstitutionality.Footnote ¹⁴⁷

The Applicant in NHV was a Rohingya man seeking refugee status in Ireland. Pending final determination of his asylum application he was given €19 per week, was required to live in State accommodation and was subject to a prohibition on employment.Footnote ¹⁴⁸ The Minister had refused the Applicant permission to take up an offer of employment on the basis of the prohibition in section 9(4) of the Refugee Act 1996. The Applicant argued this refusal was unconstitutional and sought invalidation of the legislative provision, among other things.Footnote ¹⁴⁹

Writing for the court in the 30 May 2017 judgment, O'Donnell J. held that a right to work is a part of the human personality protected by Article 40.1 of the Irish Constitution.Footnote ¹⁵⁰ The court then made an “in principle” finding that the Applicant's section 9(4) right had been unjustifiably infringed and the Constitution breached.Footnote ¹⁵¹ Despite this finding, the court went on to defer the invalidation, with O'Donnell J. stating:

The 30 May 2017 decision is an archetypal IoI. The court did not declare the legislation unconstitutional, but noted it was prepared “in principle” to hold so.Footnote ¹⁵³ The court then deferred, not suspended, the invalidation.Footnote ¹⁵⁴ It was therefore open to the court to refuse to issue the invalidation at a later date, leaving only a warning that the legislation in question was unconstitutional. Adding more credence to the argument that the decision was in substance an IoI, was the fact that the proceedings had become substantially moot, given the Applicant was issued with refugee status in the period between the Supreme Court granting leave to appeal and hearing the case.Footnote ¹⁵⁵ The court decided to proceed with the hearing given, among other things, there “there is a point of law of general public importance arising here”.Footnote ¹⁵⁶

On 21 November 2017, the Government announced it would opt in to the EU (recast) Reception Conditions Directive (2013/33/EU), which would have corrected the constitutional breach.Footnote ¹⁵⁷ When the case did return to the Supreme Court after six months, the State asked for a further deferral, on the basis that invalidation would lead to a flood of applications to work and to enable the Government time to opt in to the Directive.Footnote ¹⁵⁸ The court issued judgment on 30 November 2017 and afforded the State a further period of time to take whatever measures it considered necessary before an invalidation was made. The court noted it would sit again on 9 February 2018, at which time it would not consider the matter further, but simply make the declaration of invalidity requested by the Applicant.Footnote ¹⁵⁹ Chief Justice Clarke noted that the court had “already given judgment in this matter and ha[d] ruled that in certain respects the absolute prohibition … was inconsistent with the Constitution”.Footnote ¹⁶⁰ On 9 February 2018, the Supreme Court sat and made the declaration of invalidity.Footnote ¹⁶¹

The May and November 2017 NHV decisions were both technically deferrals rather than suspensions.Footnote ¹⁶² Neither used the language of suspension, nor specifically declared invalidation before suspending that effect.Footnote ¹⁶³ However, the decision of 30 November 2017 was in essence a suspension.Footnote ¹⁶⁴ The court specified that on a certain date it would sit and make a declaration invalidating the legislation, without considering the matter further. In justifying its actions, the Supreme Court noted the approach was exceptional and that the usual course would be to render the relevant provision inoperable.Footnote ¹⁶⁵ However, similar remedies have been issued in numerous proceedings since.Footnote ¹⁶⁶ Indeed, in the 12 months following the May 2017 decision there were more cases in which the courts issued a deferred invalidity order than a regular invalidity declaration.Footnote ¹⁶⁷ A notable example is PC v Minister for Social Protection.Footnote ¹⁶⁸

In PC, the claimant challenged section 249(1)(b) of the Social Welfare (Consolidation) Act 2005, which denied certain welfare benefits to detained prisoners, including a State pension for the Applicant. When the matter first came before the Supreme Court, it was determined that section 249(1)(b) was constitutionally flawed because it imposed an automatic punitive sanction on prisoners which could only have been administered by the judiciary.Footnote ¹⁶⁹ The law was therefore invalid for breaching sections 34 and 38.1 of the Constitution.Footnote ¹⁷⁰ Despite this finding, the court followed the course in NHV, “adjourning” the matter to allow the parties to make submissions on the question of the remedy.Footnote ¹⁷¹ This decision was therefore a deferral, although it had a “suspensory effect to the declaration of invalidity”.Footnote ¹⁷² When the matter came before the court again, section 249(1)(b) was declared invalid.Footnote ¹⁷³ The court also held no damages should be issued,Footnote ¹⁷⁴ but noted the Claimant was entitled to €10,000 in unpaid benefits.Footnote ¹⁷⁵

To a greater extent than in NHV, the judgments in PC considered the correct approach to and issues arising from deferred invalidity. While again noting the normal outcome in such cases would be invalidation,Footnote ¹⁷⁶ O'Donnell J.’s lead judgment distinguished suspended invalidation (as in Canada), with the deferred invalidation approach of NHV.Footnote ¹⁷⁷ Justice O'Donnell described the Irish approach of deferred invalidation in the following manner: “the practical effect of the order made in this case is to indicate an unconstitutionality, but to leave in place the legislative provision, permitting prima facie the continued operation of a law considered to be inconsistent with the Constitution for the period between the delivery of the judgment and the making of any formal order.”Footnote ¹⁷⁸

The Irish approach helps focus attention on normative issues arising from deferred invalidation and IoIs more generally. In terms of positive outcomes, deferred invalidation could be a welcome addition to the judicial toolkit,Footnote ¹⁷⁹ providing judges with a flexible solution to complex cases, while also maintaining the social order underpinning the laws being considered. It has been argued that it is a favourable development tempering judicial supremacy, providing a workable alternative to the blunt tool of invalidation.Footnote ¹⁸⁰ Relatedly, deferred invalidation may encourage more legislative debate of rights,Footnote ¹⁸¹ and enable Parliament to better choose the manner in which rights inconsistencies are ameliorated.Footnote ¹⁸² And this occurs without changing the status quo of the constitutional order, as the judiciary still has the last word on the Constitution. Finally, Tom Hickey has noted this as a “promising ‘dialogue-oriented’ departure in Irish constitutional law”,Footnote ¹⁸³ albeit within a broader tradition of collaborative governance in Ireland.Footnote ¹⁸⁴

While there are clearly potential positives in deferring invalidation, these may be outweighed by the potential negatives. These issues align with the concerns raised about IoIs more generally in Section III above. Most obviously, deferred invalidation leaves unconstitutional legislation in place, despite the possibility of future invalidation.Footnote ¹⁸⁵ Aside from being unsatisfactory for the litigant and other people affected by the relevant legislative provisions,Footnote ¹⁸⁶ this decoupling of the right and remedy goes against what David Kenny has said “has always been a hallmark of [the Irish] system of litigation”.Footnote ¹⁸⁷ As such, a litigant could be subject to a prolonged wait before her right is vindicated, if this occurs at all. This was the case in NHV, where despite being given over eight months to rectify the breach, the Government failed to do so and the court ended up invalidating the legislative provision in the absence of any further solution.Footnote ¹⁸⁸ Further, this change in remedial landscape may impact litigant behaviour. Notably, potential litigants may be less inclined to bring a case to rectify a breach, as deferred or systemic remedies are likely to be less appealing than immediate and direct ones.Footnote ¹⁸⁹ Of course, some of these concerns could be tempered by other means. For example, in Canada there is a practice of exempting the litigant from the suspension,Footnote ¹⁹⁰ and in South Africa the courts may issue “interim orders” which provide a judicial solution to the rights breach during the suspension period.Footnote ¹⁹¹ Kenny has argued that unless Irish courts embrace some such practices then deferral will not be workable.Footnote ¹⁹² But these additional practices seem to create their own concerns. In the case of exemptions, the result is unfair for people affected by the law but not party to the proceedings. On the other hand, interim orders may be seen as the courts providing views to the legislature on alternative legal schemes. This may undermine Parliament's role in the legislative process, which would be contrary to one of the main reasons for deferring invalidation (leaving legislative rectification to Parliament).Footnote ¹⁹³ The question becomes: would it not be better to just use the indelicate invalidation remedy rather than a convoluted and unequal deferral and exemption regime?

Beyond the immediate litigant and proceedings, uptake of deferred invalidation raises concerns going to the core of the legal system.Footnote ¹⁹⁴ Indeed, the Irish courts have previously been reluctant to award remedies other than invalidation on the basis they could impinge on the separation of powers.Footnote ¹⁹⁵ The idea here is that the judicial role is to enforce constitutional rights and uphold the rule of law, meaning courts invalidate unconstitutional legislation, rather than trying to fix or replace it.Footnote ¹⁹⁶ In addition, increased use of deferred invalidation could suggest a new role for the courts, with unintended consequences. This includes that the court's analysis is considered one of many valid opinions on the law, rather than a determination of it.Footnote ¹⁹⁷ Further, judicial choices on the timing and reasoning for deferral may indicate to Parliament various degrees of concern about legislation and therefore impact the subsequent political process.Footnote ¹⁹⁸ Finally, the courts could veer into a new role of providing opinion on the lawfulness of suggested solutions to rights breaches, which raises concerns about democratic accountability.Footnote ¹⁹⁹ The Supreme Court has been alive to this final concern,Footnote ²⁰⁰ and has been at pains to assert it is not the role of the courts to assess the constitutionality of proposed laws.Footnote ²⁰¹ However, litigants have already taken to requesting judicial consideration of proposed alternatives to legislation subject to deferred invalidation.Footnote ²⁰²

How the courts respond to such issues and the frequency with which deferred DoIs are issued, will determine the desirability of these Irish IoIs. Despite the Supreme Court being adamant that deferred invalidation will be exceptional,Footnote ²⁰³ it could become the preferred or at least a common remedy. The cases following NHV suggest this is already happening, as does the experience in Canada, where despite initial pronouncements that suspended invalidation would be used in a limited fashion, it became the default remedy.Footnote ²⁰⁴

VII. No Jurisdiction: No Worries

The final category of cases that fall within the IoI framework does not have a ready-made title. I am calling it “no jurisdiction: no worries”. It is essentially where the court finds that it has no jurisdiction to hear a matter and yet goes on to issue an IoI in any case. The clearest example of this is Northern Ireland Human Rights Commission. In that case the Northern Ireland Human Rights Commission (“Commission”) brought proceedings regarding both Westminster and Northern Ireland laws which criminalise most abortions in Northern Ireland.Footnote ²⁰⁵ The Commission argued that the laws were incompatible with Articles 3, 8 and 14 of the ECHR, insofar as that law prohibits abortion in cases of (1) fatal malformation of the foetus, (2) pregnancy as a result of rape and/or (3) pregnancy as a result of incest. The Commission sought DoIs to that effect under the UKHRA.

A majority of the Supreme Court held it did not have jurisdiction because the Commission did not have standing to bring the proceedings. In the lead judgment on jurisdiction, Lord Mance focused on the abstract nature of the proceedings – holding that the Applicant had no standing because the proceedings were not brought, as the relevant legislation required, in relation to an actual or potential victim of an unlawful act of a public authority.Footnote ²⁰⁶ Despite this, Lord Mance, and a differently comprised majority of judges, held that the laws were incompatible with Article 8 of the ECHR, as protected by the UKHRA. The decisions of Lord Mance, Lady Black and Lord Reed (with whom Lord Lloyd-Jones agreed) are of most interest. These judges held that there was no jurisdiction. And yet despite this, they all went on to explain their respective conclusions on the substantive question of whether the legislation complied with the ECHR. Lord Mance noted that despite there being no jurisdiction to give any relief in the case, it would be “unrealistic and unhelpful” for him not to express his conclusions on the compatibility of the legislation with rights protected under the UKHRA.Footnote ²⁰⁷ This was because the case had been fully argued and evidence put before the court,Footnote ²⁰⁸ and because other judges in the case had held that the Supreme Court did have jurisdiction to hear the case.Footnote ²⁰⁹

That these judges held that they had no jurisdiction but went on to provide a “strong view”Footnote ²¹⁰ on the compatibility of the legislation in place was highly unusual. Lord Reed noted this, when he stated that where an applicant is found to have no standing “it would ordinarily follow that the court should express no view on whether the laws challenged … are or are not compatible with Convention rights”.Footnote ²¹¹ Nevertheless, Lord Mance and Lady Black concluded that the law was incompatible with Article 8.Footnote ²¹² On the other hand, Lord Reed (with Lord Lloyd-Jones agreeing) went on to conclude that the current legislative scheme did not breach Articles 3 or 8.

Lord Mance noted it had been five years since the Commission raised the issue and that if the court was to refuse to come to any conclusions on the matter, it would still be open for an affected person to return to court and reventilate the same issues. For Lord Mance, this was “not an appropriate course”, considering that the law was clearly in need of amendment to remove the incompatibility and that it was inevitable a DoI would be made in such a further round of litigation.Footnote ²¹³ As such, Lord Mance summarised his position and the consequences of the legislature failing to amend the law, as follows:

It is clear that Lord Mance's judgment meets the definition of an IoI. He made a clear finding that there is incompatibility between the relevant abortion laws and Article 8. Further, he urged the legislature to amend the law, as soon as possible. Lady Black held similarly, albeit in less direct and clear language. Further, Lords Reed and Lloyd-Jones would have also issued an IoI had they come to the conclusion that the abortion laws were incompatible with Article 8. The fact their analysis led them to decide in the alternative does not take away from the fact that they followed an approach whereby judges may fully consider the issue of inconsistency of legislation with protected rights, even where the court lacks jurisdiction.

The support of a majority of judges in Northern Ireland Human Rights Commission for an approach which denied jurisdiction but still made substantive findings as to the compatibility of legislation against rights protected by the UKHRA suggests that we may see this approach more often in the UK. The recent First Tier Tribunal decision of Banks v Commissioners for HMRC is one such case.Footnote ²¹⁵ Banks was brought by the pro-Brexit campaigner Arron Banks, after he was issued an inheritance tax bill for donations that he and companies he controlled gave to the UK Independence Party (“UKIP”). The case related to section 24 of the Inheritance Tax Act 1984 (“ITA”), which provided tax exemptions for political parties that met certain requirements. UKIP did not meet the relevant requirements and Banks argued this breached Article 14 and Article 1 of Protocol 1 of the ECHR, which are protected under the UKHRA.Footnote ²¹⁶ The Tribunal held that the different treatment of Banks under ITA s. 24 (compared with people who made donations to exempt parties) was discrimination on the basis of political opinion within the meaning of Article 14.Footnote ²¹⁷ Judge Greenback held the aim of promoting private funding of political parties was legitimate,Footnote ²¹⁸ but the different treatment of Banks was not proportionate.Footnote ²¹⁹ Regarding remedies, the judge held it was not possible to construe section 24 of the ITA in a rights compatible manner in line with the interpretive approach provided for in section 3 of the UKHRA, because to do so would “go against the grain” of the legislation and because this was a political decision best left to Parliament.Footnote ²²⁰ Finally, Greenback J noted that the Tribunal could not issue a DoI as it was not a court designated to do so under section 4(5) of the UKHRA.Footnote ²²¹

Banks differs from Northern Ireland Human Rights Commission, in that the issue was not standing, but a power to issue a DoI. However, the upshot is much the same. Both judgments complete a full analysis of the compatibility of primary legislation and explicitly find that the respective rights had been breached. Despite those findings, no DoIs were issued, due to a lack of jurisdiction. Like other cases of IoIs, the litigants are left in precarious positions. A judge has authoritatively determined that their rights have been breached by statute, but has done nothing further to remedy that situation. And the pressure on Parliament and the Executive to do anything is minimal at most.