What is the story with declarations of incompatibility and the otherwise ostensible binding Ness of the human rights act?

Question

My understanding was always the governments couldn’t actact contrarily to HRA rights.

On the other hand there is this regime of judicial so called “declarations of incompatibility” which are albeit apparently non-binding.

But suppose the rights violations act 2023 grants government minister X a power to undertake a certain procedure against people that clearly violates their rights. Like for example summarily and arbitrarily summon them for immediate maiming or castration.

The law grants a power to the government which is clearly in contradiction with individuals’ HRA rights, yet, it was passed into law by an act of Parliament.

Suppose that Minister Alex exercises this power against citizen Bob and selects him to report to the Wapping Docks at dawn tomorrow for unanaesthetised castration.

Usually it seems that Bob can apply for judicial review against such conduct of government officials, and it seems to me that usually in such cases the judicial result would be binding.

So where does the conversely non-binding regime of declarations of incompatibility figure into this mix?

Answer 1

The UK has parliamentary sovereignty, not separation of powers

Unlike, say, the United States, where the legislature, the judiciary, and the executive have co-equal power in their respective spheres, in the UK, the judiciary and the executive are subordinate to Parliament.

The courts have no power to nullify an Act of Parliament for being unconstitutional like they do in jurisdictions where a written constitution gives them such a power like the USA, Canada, or Australia. The purpose of the Declaration of Incompatibility is to advise Parliament that the law they have passed contradicts the HRA and they should think about that and decide if that’s what they really wanted to do.

That means that the UK Parliament could pass the Arbitrary Bollock Removal Act 2023 (ABRA) tomorrow and it would be valid law.

The courts can still provide judicial review of the actions of the executive under ABRA but they cannot declare the law a nullity. That is, the Minister’s actions can be scrutinised to ensure they followed the ABRA and other established principles such as procedural fairness and, if they didn’t, declare the executive actions void. However, if they did follow the law, off come your nuts.