LECTURES - College of Social Sciences and International Studies ...

Public Power and Private Power
is no such problem: they must all yield to the Convention
rights.
Where, however, the Human Rights Act encounters primary
legislation which simply will not accommodate it, the courts
have been given a new tool—the declaration of incompatibility.
Furnished with such a declaration, ministers will have the power
to amend the offending statute by the use of "remedial orders".
They will also, in a relevant sense, have a duty to do so because—
and it is this which distinguishes the United Kingdom's situation
sharply not only from that of New Zealand but from that
of every other common law country with a Bill of Rights—the
entire state, Parliament included, is under a treaty obligation to
conform to the Convention. What remains to be seen is how
government will respond to a judicial declaration of incompatibility
with which it disagrees. Governments appear now to
have no right of appeal to the Court of Human Rights in
Strasbourg: it is only the aggrieved individual who may petition
the Court. 4 Will government therefore respect the court's
ruling whatever its reservations, or will it have to adopt the
inelegant expedient of refusing to change the law and compelling
the individual to take the state before the Strasbourg court
for non-compliance, so that Her Majesty's Government can
argue that Her Majesty's courts have got it wrong?
It would be pleasant if the unpredictabilities ended here, but
they don't. One major imponderable is the measure of the
courts' receptivity to human rights issues. There is no doubt
that across the common law world the atmosphere has changed
in the last two decades. We have seen the Supreme Court of
India beginning to draw out of the once dormant constitution a
federal legislation has repeatedly been found incompatible with the Charter:
see the comprehensive schedule in Peter Hogg and Alison Bushell, "The
Charter Dialogue between Courts and Legislatures" (1997) 35 Osgoode Hall
L.J. 75. This is, at least in part, because the Canadian courts, armed with the
power to strike down, have declined to adopt more catholic canons of construction
in order to avoid conflict: see Andrew Butler, "A presumption of
statutory conformity with the Charter" (1993) 19 Queens L.J. 209. Somewhere
in between stands New Zealand's experience with section 6 of the Bill of Rights
Act 1990: see Michael Taggart, "Tugging on Superman's Cape" [1998] P.L. 266
at section 280-286; cf Paul Rishworth's early exhortation "The potential of a
Bill of Rights" [1990] N.Z.L.J. 68 at 69-70. But Lord Cooke of Thorndon has
said that he "may be wrong" in his dictum in Ministry of Transport v. Noort
[1992] 3 N.Z.L.R. 260 at 272 that section 6 "does not authorise a strained
interpretation": see "The British embracement of human rights", unpublished,
June 1998. (The error, if error there is, may lie in no more than the choice of
epithet.)
4 ECHR (as amended by Protocol 11), Art. 34. The former Art. 48, giving, wider
recourse, has gone.
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