FOR THE PURPOSES OF RIGHT TO SELF-DETERMINATION, HOW DOES ONE DEFINE PEOPLE IN CONTEXT OF KASHMIR


 

43 

The Denning Law Journal 2013 Vol 25 pp 43-89 

 

DIALOGUE AND DECLARATIONS OF 

INCOMPATIBILITY UNDER SECTION 4 OF THE 

HUMAN RIGHTS ACT 1998 
 

Christopher Crawford

 

 

ABSTRACT  
 

It has been argued that the Human Rights Act 1998 (‗HRA‘) establishes a 

‗dialogue‘ between the courts, parliament and the executive. This ‗dialogue‘ is 

supposed to be an exchange of ideas about rights pursuant to which policy 

goals are revised, but not blocked, following judicial decisions and takes place 

predominantly when courts issue declarations of incompatibility under s 4 of 

the HRA. There have been 18 cases in which declarations have become final. 

This article considers those 18 cases and their legislative aftermaths. It 

reveals, firstly, that parliament has some capability of dealing with rights 

issues without the courts‘ prompting, secondly, that a declaration can certainly 

lead to constructive modification of public policy but may also lead to less 

effective policy and, thirdly, that parliament has no real freedom to disagree 

with the conclusions of the courts on questions of rights when a declaration 

has been made. 

 

1.  INTRODUCTION 
 

When the Human Rights Act 1998 (‗HRA‘) was enacted, many 

commentators claimed that it would establish a ‗dialogue‘ between the courts, 

parliament and the executive.
1
  

                                                      

 Barrister-at-Law, Doctoral candidate at Queensland University of Technology. 

1
 Sandra Fredman ‗Bringing Rights Home‘ (1998) 114 (October) LQR 538, 538-539; 

Sandra Fredman ‗Allies or Subversives? The Judiciary and Democracy‘ (1998) 32 Is 

LR 407, 422-424; Sandra Fredman ‗Judging Democracy: The Role of the Judiciary 

under the HRA 1998‘ (2000) 53(1) CLP 99, 119; Ben Emmerson ‗Constitutional 

Law: Human Rights‘ [1998] EHRLR 663, 663; Francesca Klug ‗The Human Rights 

Act 1998, Pepper v Hart and All That‘ [1999] PL 246, 248; Murray Hunt ‗The Human 

Rights Act and Legal Culture: The Judiciary and the Legal Profession‘ (1999) 26(1) J 

Law & Soc 86, 89-90; Joanna Miles ‗Standing under the Human Rights Act 1988: 

theories of rights enforcement and the nature of public law adjudication‘ (2000) 59(1) 

CLJ 133, 164; Joanna Harrington ‗Rights Brought Home: The United Kingdom 

Adopts a ‗Charter of Rights‘‘ (2001) 11 Const Forum Const 105, 111. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

44 

The concept of ‗dialogue‘ under the HRA has been explained by Alison 

Young in her book, Parliamentary Sovereignty and the Human Rights Act.
2
 

In her book, Young defined ‗democratic dialogue models‘ as protections 

of human rights that do not grant the courts the final ability to make 

authoritatively determinative accounts as to the compatibility of legislation 

with human rights; rather, ―mechanisms are incorporated into the legal 

protection of rights that enable the legislature to respond to judicial 

determinations as to the compatibility of legislation with human rights‖.
3
   

Young noted that the term ‗democratic dialogue‘ derived from a well-

known journal article by Peter Hogg and Allison Thornton (nee Bushell).
4
 In 

their article, Hogg and Thornton argued that where judicial decisions were 

open to legislative reversal, modification or avoidance, it was appropriate to 

regard the relationship between the courts and the legislature as a dialogue.
5
 It 

was upon this basis that Young found it ‗easy to conclude‘
6
 that the HRA 

provided for a democratic dialogue model of rights protection: judicial 

decisions taken under both ss 3 and 4 of the HRA were open to reversal, 

modification or avoidance by the legislature. 

Section 3(1) of the HRA is an interpretative provision. It provides that, so 

far as it is possible to do so, primary and subordinate legislation in the United 

Kingdom must be read and given effect in a way that is compatible with the 

rights set out in Schedule 1 to the HRA. The rights set out in Schedule 1 come 

from the European Convention on Human Rights (‗Convention‘).
7
 Section 

3(2)(b) provides that, if primary legislation is incompatible with Convention 

rights, that does not affect its validity, continuing operation or enforcement. 

Section 4(2) of the HRA provides that if a court
8
 is satisfied that primary 

legislation is incompatible with Convention rights, it may make a declaration 

                                                      
2
 Alison Young, Parliamentary Sovereignty and the Human Rights Act (Hart 

Publishing 2009). See also Richard Clayton, ‗Judicial Deference and Democratic 

Dialogue‘: The Legitimacy of Judicial Intervention under the Human Rights Act 

1998‘ [2004] PL 33; cf Tom Hickman ‗Constitutional Dialogue, Constitutional 

Theories and the Human Rights Act 1998‘ [2008] PL 306. 
3
 Young (n 2) 25-26. 

4
 Peter Hogg and Allison Bushell, ‗The Charter Dialogue Between Courts and 

Legislatures (Or Perhaps the Charter of Rights Isn‘t Such a Bad Thing After All)‘ 

(1997) 35 OHLJ 75. 
5
 Ibid 79-80. 

6
 Young (n 2) 113. 

7
 Convention for the Protection of Human Rights and Fundamental Freedoms, opened 

for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 

1953). 
8
 When the HRA was originally enacted, the term ‗court‘ was defined in s 4(5) as (a) 

the House of Lords, (b) the Judicial Committee of the Privy Council, (c) the Courts-



THE DENNING LAW JOURNAL 
 

 

 

45 

of that incompatibility. Section 4(6)(a) states that a declaration does not affect 

the validity, continuing operation or enforcement of the statutory provision in 

respect of which it is given. Section 10(2) provides that, if a court makes a 

declaration then, if a Minister considers that there are compelling reasons, he 

may by order make such amendments to the legislation as he considers 

necessary to remove the incompatibility. Schedule 2 to the HRA sets out the 

process by which remedial orders are made. 

Young asserted that ss 3 and 4 established two different forms of 

dialogue.
9
 She contended that dialogue took place predominantly when courts 

issued s 4 declarations.
10

 It is this form of dialogue with which this journal 

article is concerned. 

Young argued that a declaration provided a signal to parliament that 

legislation contained provisions that were contrary to Convention rights. She 

asserted that a declaration could prompt the legislature to debate if and how to 

respond to the courts; it could respond either by amending legislation to 

ensure its compatibility with Convention rights, or by providing a justification 

for its maintenance on the statute books.
11

 Importantly, Young claimed that 

the legislature had the freedom to disagree with the conclusions of the courts 

as to the modifications required to ensure Convention compatibility.
12

   

The dialogue portrayed by Young is akin to the ‗institutional interaction‘ 

described by Leighton McDonald: an exchange of ideas about human rights 

between the parliament and the courts pursuant to which policy goals are 

revised, but not blocked, following judicial decisions.
13

  

The attraction of the concept of dialogue is obvious: if parliament chooses 

to amend legislation following a declaration then the amendment should be 

constructive from a rights standpoint; if it disagrees with the judicial decision 

                                                                                                                               
Martial Appeal Court, (d) in Scotland, the High Court of Justiciary sitting otherwise 

than as a trial court or the Court of Session and (e) in England and Wales or Northern 

Ireland, the High Court or the Court of Appeal. Following the creation of the UK 

Supreme Court, s 4(5)(a) was amended by omitting the words ‗House of Lords‘ and 

inserting the words ‗Supreme Court‘.  
9
 Young (n 2) 26. Young noted, in passing, that the derogation power and ‗the 

qualified rights found in articles 8-11 of the Convention‘ would also facilitate 

dialogue but she did not explore the issue any further than that. She clearly considered 

ss 3 and 4 to be the main drivers of dialogue: see Young (n 2) 113-114. 
10

 Ibid 10. 
11

 Ibid. 
12

 Ibid 116. 
13

 Leighton McDonald, ‗New Directions in the Australian Bill of Rights Debate‘ 

[2004] PL 22, 28.  



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

46 

then it is free to do so. In other words, dialogue should lead ‗to a better 

outcome for rights as well as democracy‘.
14

 

Perhaps unsurprisingly, some say that dialogue under the HRA is nothing 

more than a ‗fantasy‘ that merely raises the question of who gets the last 

word.
15

 James Allan has argued that it is the judiciary that has the final say on 

rights issues.
16

 Allan contended that, in practice, is almost always impossible 

for a legislature to disagree with the conclusions of the courts,
17

 contrary to 

Young‘s claim. Allan asserted that, as the judges‘ views always prevailed 

over those of the legislature, that in no way resembled a dialogue.
18

 

Young‘s arguments are interesting in light of the fact that the government 

that introduced the HRA did not actually assert that it would precipitate 

‗democratic dialogue‘.
19

 They are of further interest in light of the fact that 

two senior Law Lords, Lord Bingham of Cornhill and Lord Phillips of Worth 

Matravers, expressly denied that the HRA involved a dialogue between the 

courts, parliament and the executive.
20

 They are of still further interest when 

one considers that, despite the protestations of Lords Bingham and Phillips, 

many commentators have continued to maintain that the HRA has established 

a dialogue about rights between the three arms of government.
21

 The purpose 

                                                      
14

 Irene Khan, ‗Human rights in an age of terror‘ in Nicolas Kang-Riou, Confronting 

the Human Rights Act 1998: Contemporary Themes and Perspectives (Taylor and 

Francis 2012) 105. 
15

 Keith Ewing, ‗Doughty defenders of the Human Rights Act‘ in Nicolas Kang-Riou, 

Confronting the Human Rights Act 1998: Contemporary Themes and Perspectives 

(Taylor and Francis 2012) 122. For other criticisms of dialogue under the HRA, see 

Keith Ewing and Joo Cheong Tham, ‗The Continuing Futility of the Human Rights 

Act‘ [2008] PL 668, 691; Philip Sales and Richard Ekins, ‗Rights-consistent 

interpretation and the Human Rights Act 1998‘ (2011) 127 (April) LQR 217, 236; Ian 

Leigh and Roger Masterman, Making Rights Real: The Human Rights Act in its First 

Decade (Hart Publishing 2008) 118. 
16

 James Allan, ‗The Victorian Charter of Human Rights and Responsibilities: 

Exegesis and Criticism‘ (2006) 30(3) MULR 880, 914. 
17

 Ibid 915. 
18

 Ibid 913. 
19

 There was no mention of dialogue in either the consultation paper or the White 

Paper that preceded the introduction of the HRA: see Jack Straw and Paul Boateng 

‗Bringing Rights Home: Labour‘s Plans to incorporate the European Convention on 

Human Rights into UK Law‘ [1997] EHRLR 71; Rights Unit, UK Parliament, Rights 

Brought Home: The Human Rights Bill (Cm 3782, 1997).  
20

 Joint Committee on Human Rights, Minutes of Evidence taken on Monday 26 

March 2001: Examination of Witnesses (2000-01, HL 66-ii, HC 332-ii), [78]. 
21

 Francesca Klug, ‗The Human Rights Act - a ‗Third Way‘ or ‗Third Wave‘ Bill of 

Rights‘ [2001] EHRLR 361, 370; Richard Edwards ‗Judicial Deference under the 

Human Rights Act‘ (2002) 65 MLR 859, 867; Lizzie Barmes ―Adjudication and 



THE DENNING LAW JOURNAL 
 

 

 

47 

of this article is to examine the extent to which dialogue does take place when 

courts issue declarations of incompatibility under s 4 of the HRA.  

As at 1 January 2013, 27 declarations of incompatibility had been made 

by the courts since the HRA came into force on 2 October 2000. Of these, 18 

have become final (in whole or in part) and are not subject to further appeal 

whilst 9 have been overturned on appeal.
22

 The 18 cases in which declarations 

have been finalised and their legislative aftermaths will be considered below 

in chronological order from earliest to most recent.  

 

2.  R (H) V LONDON NORTH AND EAST REGION MENTAL 
HEALTH REVIEW TRIBUNAL [2001] EWCA CIV 415, [2002] QB 

1 
 

This case concerned a patient who made an application to a mental health 

review tribunal to be discharged from detention in hospital, which was 

refused. The patient then sought judicial review by way of a declaration of 

incompatibility under s 4 of the HRA, which was also refused. The patient 

appealed. The Court of Appeal allowed the appeal and declared that ss 72(1) 

and 73(1) of the Mental Health Act 1983 were incompatible with the right to 

                                                                                                                               
public opinion‖ (2002) 118 (October) LQR 600, 621; Keir Starmer ‗Two years of the 

Human Rights Act‘ [2003] EHRLR 14, 18; Clayton (n 2) 42-45; Bharat Malkani 

‗Human rights treaties in the English legal system‘ [2011] PL 554, 575; Po-Jen Yap 

‗Defending Dialogue‘ [2012] PL 527, 527 n 2. 
22

 Ministry of Justice, United Kingdom, Responding to human rights judgments: 

Report to the Joint Committee on Human Rights on the Government’s response to 

human rights judgments 2011-12 (Cm 8432, 2012), 40. In this report, it is recorded 

that, as at 31 July 2012, 27 declarations had been made by the UK courts. It is also 

noted that, of these 27 declarations, 19 had become final (in whole or in part) and 

were not subject to further appeal and 8 had been overturned on appeal. The report is 

incorrect in counting R (Hooper) v Secretary of State for Work and Pensions [2003] 

EWCA Civ 875 as a declaration that had become final. The correct interpretation of 

Hooper is that a declaration was made at first instance in respect of repealed 

legislation: see R (Hooper) v Secretary of State for Work and Pensions [2002] EWHC 

191 (Admin). On appeal to the Court of Appeal, the declaration was discharged: see R 

(Hooper) v Secretary of State for Work and Pensions [2003] EWCA Civ 875 [1]. On 

appeal to the Judicial Committee of the House of Lords, it was held that, as the 

relevant legislative provisions had been repealed, there was no point in their 

Lordships making a declaration: see R (Hooper) v Secretary of State for Work and 

Pensions [2005] UKHL 29, [2005] 1 WLR 1681, 1696-7. Accordingly, the making of 

the declaration in Hooper was, in reality, overturned on appeal. Therefore, as at 31 

July 2012, 27 declarations had been made by the UK courts, of which 18 had become 

final (in whole or in part) and were not subject to further appeal and 9 had been 

overturned on appeal. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

48 

liberty under article 5(1)(4) of the Convention in that, for the tribunal to be 

obliged to order a patient's discharge, the burden was placed upon the patient 

to prove that the criteria justifying his detention in hospital for treatment no 

longer existed; and that article 5(1)(4) required the tribunal to be positively 

satisfied that all the criteria justifying the patient's detention in hospital for 

treatment continued to exist before refusing a patient's discharge.   

In order to remove the incompatibility, the Mental Health Act 1983 

(Remedial) Order 2001 amended ss 72(1) and 73(1) to provide that a mental 

health review tribunal had to direct the discharge of a patient if it was not 

satisfied that the criteria justifying his/her detention in hospital for treatment 

continued to exist. 

The House of Lords considered the Mental Health Act 1983 (Remedial) 

Order 2001 on 11 April 2002. In moving the approval of the Order, the 

Labour Government Whip, Lord Filkin, made the following comments about 

H: 

 

―It was the government‘s view that there was no discernible error of 

law in the Court of Appeal‘s judgment and in addition, the judgment 

was not out of line with the thrust of government policy intentions for 

new mental health legislation as set out in the White Paper Reforming 

the Mental Health Act.‖
23

 

 

The Order was supported by the Conservative and Liberal Democrat 

parties (the Conservative peer, Baroness Noakes, described it as ‗clearly 

necessary‘) and was duly approved.
24

 

The Court of Appeal‗s decision in H was uncontroversial. All sides of 

British politics accepted that ss 72(1) and 73(1) of the Mental Health Act 1983 

were incompatible with the right to liberty. The declaration may very well 

have resulted in a constructive modification to legislation. 

 

3.  RE AN APPLICATION FOR JUDICIAL REVIEW BY MCR 
[2002] NIQB 58 

 

This case concerned a Northern Irishman who was charged with attempted 

buggery pursuant to s 62 of the Offences against the Person Act 1861. The 

Sexual Offences Act 1967 effectively decriminalised homosexual acts in 

private in England and Wales but s 62 remained in force in Northern Ireland. 

The accused applied for a declaration that s 62 was incompatible with his 

                                                      
23

 HL Deb 1 April 2002, vol 633, col 601. See also HC Deb 28 October 2002, vol 

391, col 627 (Jean Corston). 
24

 HL Deb 11 April 2002, vol 633, col 603 – 607. 



THE DENNING LAW JOURNAL 
 

 

 

49 

right to a private life under article 8 of the Convention. The application was 

not opposed by the Crown. In a short judgment, the High Court of Justice in 

Northern Ireland referred to two decisions of the European Court of Human 

Rights (‗ECtHR‘) where it was noted that there was no pressing social need 

for the criminalisation of homosexual acts between consenting adult males 

performed in private. The Court made the declaration sought pursuant to s 4 

of the HRA. 

By the time McR was decided, the process of modernising British law on 

sexual offences had been underway for some time. A review of sex offences 

was set up by the UK government in 1999, the independent review group 

producing a consultation paper in July 2000. In addition the government 

carried out a review of Part 1 of the Sex Offenders Act 1997 and proposals 

were published for public consultation by Home Office in July 2001. These 

two reviews fed into a White Paper, Protecting the Public: strengthening 

protection against sex offenders and reforming the law on sexual offences, 

published in November 2002.
25

 Relevantly, the White Paper stated as follows: 

 

―Certain existing offences criminalise consensual sexual activity in 

private between men, which would not be illegal between 

heterosexuals or between women. In order to provide common sense 

and making policing the law fair and practicable, these offences will 

be replaced with generic offences. This will ensure that the criminal 

law protects everyone equally from non-consensual sexual activity, 

but does not criminalise sexual activity that takes place between 

consenting adults in private.‖
26

 

 

The White Paper was followed by the enactment of the Sexual Offences 

Act 2003, which repealed s 62 of the Offences against the Person Act 1861.  

By 2002, the British government accepted that it should not intervene in 

the personal, private relationships of consenting adults.
27

 This was obviously 

the reason why the Crown did not oppose the High Court in Northern Ireland 

making the declaration of incompatibility. There is no reason to suspect that 

the decision in McR was anything other than uncontentious. 

 

                                                      
25

 Arabella Thorp, ‗The Sexual Offences Bill (No 128) 2002-03 (UK)‘ (Research 

Paper 03/62 House of Commons Library, United Kingdom Parliament, 2003) 3. 
26

 Secretary of State for the Home Department, Protecting the Public: Strengthening 

protect against sex offenders and reforming the law on sexual offences (Cm 5668, 

2002) 10. 
27

 Ibid 5 (Foreword by the then Home Secretary, David Blunkett). 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

50 

4.  INTERNATIONAL TRANSPORT ROTH GMBH V SECRETARY 
OF STATE FOR THE HOME DEPARTMENT [2002] EWCA CIV 

158, [2003] QB 728 
 

This case concerned a penalty scheme created pursuant to s 32 of the 

Immigration and Asylum Act 1999, which made carriers liable to a fixed 

penalty of £2,000 for every clandestine entrant to the United Kingdom found 

concealed in a vehicle. The owner, hirer and driver were liable unless they 

could establish that they were acting under duress or that they had no 

knowledge of the clandestine entrant and that there was an effective system 

for preventing the carriage of clandestine entrants which was operated 

properly on the occasion in question. Once the Home Secretary had issued a 

penalty notice a senior immigration officer could detain the vehicle if he 

considered there was a serious risk that the penalty would not be paid and no 

satisfactory alternative security had been given. In several joined proceedings, 

groups of claimants brought proceedings against the Home Secretary, 

challenging the lawfulness of the penalty scheme.   

The Court of Appeal held that the scale and inflexibility of the penalty 

without the possibility of mitigation or the right for the penalty to be 

determined by an independent tribunal were factors which made the scheme 

unfair and in breach of the claimants‘ right to a fair hearing under article 6 of 

the Convention. The Court of Appeal also held that the scheme imposed an 

excessive burden on the carriers which was disproportionate to the objective 

to be achieved and was a breach of the claimants‘ right to peaceful enjoyment 

of their possessions under article 1 of the First Protocol to the Convention. 

Accordingly, the Court of Appeal held that a declaration that the scheme was 

incompatible with article 6 of the Convention and article 1 of the First 

Protocol to the Convention was appropriate. 

Just before the Court of Appeal handed down its decision in Roth, the 

government released a White Paper on immigration and asylum policy.
28

 The 

majority of the White Paper proposals were incorporated into the subsequent 

Nationality, Immigration and Asylum Act 2002.
29

 The new Act also 

incorporated a response to Roth. Section 125 and Schedule 8 of the 

Nationality, Immigration and Asylum Act 2002 amended the penalty scheme 

under s 32 of the Immigration and Asylum Act 1999 by introducing a new 

                                                      
28

 Secretary of State for the Home Department, Secure Borders, Safe Haven: 

Integration with Diversity in Modern Britain (Cm 5387, 2002). The White Paper was 

published on 7 February 2012 (HC Deb 7 February 2002, vol 379, col 1027). Roth 

was handed down on 22 February 2002. 
29

 Dallal Stevens, ‗The Nationality, Immigration and Asylum Act 2002: Secure 

Boarders, Safe Haven?‘ (2004) 67(4) MLR 616, 617. 



THE DENNING LAW JOURNAL 
 

 

 

51 

variable penalty of up to £4,000 for those carrying clandestine entrants by 

road or rail, a right of appeal to the County Court against the imposition 

and/or size of the penalty and the power for the Court to release a confiscated 

vehicle where it thought that penalty was not appropriate.
30

 

Members of the government, including the Home Secretary, expressly 

stated that they thought the new penalty scheme was ‗fair‘.
31

 Although 

members of a government are hardly likely to say that new legislation is 

unfair, there is no evidence that they were uncomfortable with the new 

penalty scheme or with the Roth decision. On the contrary, the Lord 

Chancellor indicated that he thought that the Roth decision was principled and 

fair.
32

 Some Conservative and Liberal Democrat Lords clearly wanted to 

lessen the severity of the penalty scheme even more.
33

 In those circumstances, 

it seems likely that a majority of parliament accepted, in a real way, the 

revised penalty regime brought about by Roth. 

 

5.  R (ANDERSON) V SECRETARY OF STATE FOR THE HOME 
DEPARTMENT [2002] UKHL 46, [2003] 1 AC 837 

 

The claimant had been convicted of two murders for which he received 

mandatory life sentences. By his stated practice, adopted pursuant to his 

power to control the release of such prisoners under s 29 of the Crime 

(Sentences) Act 1997, the Home Secretary received advice from the trial 

judge, the Lord Chief Justice and departmental officials prior to deciding the 

minimum period to be served by the claimant. In fixing the claimant's tariff,
34

 

the Home Secretary set a longer period than that recommended by the 

judiciary. The claimant challenged the decision by way of judicial review. On 

25 November 2002, the Judicial Committee of the House of Lords declared 

that s 29 of the Crime (Sentences) Act 1997 was incompatible with the right 

under article 6 of the Convention to have a sentence imposed by an 

independent and impartial tribunal. 

                                                      
30

 David Blunkett, ‗UK Government: Criminal Refugees to be removed from country‘ 

M2 Presswire (online), 25 April 2002; M2 Presswire, ‗UK Government: New 

penalties for carrying illegal immigrants start tomorrow‘ M2 Presswire (online), 9 

December 2002. 
31

 Ibid. See also HC Deb 21 May 2002, vol 386, col 61WH (John Denham). 
32

 Lord Irvine ‗The Impact of the Human Rights Act: Parliament, the Courts and the 

Executive‘ [2003] PL 308, 318. 
33

 HL Deb 17 July 2002, vol 637, col 1354 – 1357. 
34

 The minimum period of imprisonment that a murderer had to serve before release 

was considered was known as the ‗tariff‘. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

52 

Anderson was a case ‗waiting to happen‘
35

 because judicial erosion of the 

Home Secretary‘s tariff-setting power had already begun by the time it was 

decided.
36

 In May 2002, the ECtHR held in Stafford v United Kingdom
37

 that 

the Home Secretary's veto of a parole board's recommendation that a post-

tariff lifer should be released was contrary to the prisoner‘s right under article 

5 of the Convention to have the lawfulness of his detention decided speedily 

by a court. The Home Secretary, David Blunkett, said the following in 

relation to the Stafford judgment: 

 

―I am disappointed with this judgment which has the effect of 

removing the Home Secretary‘s statutory power to decide the release 

– on Parole Board recommendations – of adult murderers whose tariff 

has expired…I am concerned that this judgment may serve as 

encouragement for those who would like to remove the Home 

Secretary‘s powers to set tariffs for adult murderers. If this judgment 

were to be used to support a legal process to achieve this, I would seek 

to use domestic legislation to enshrine the power of Parliament to 

provide adequate punishment for the guilty – including life meaning 

life. Policy on the protection of the public and punishment of the 

guilty must always be the domain of the elected Parliament.‖
38

 

 

It was pretty obvious that the Home Secretary thought that the Stafford 

decision was wrong.
39

 It was also clear that, as a result of Stafford, Mr 

Anderson would probably win his appeal when it was heard later that year.
40

 

However, it was less obvious as to what the government intended to do if the 

result of Mr Anderson‘s appeal was as expected. In July, the government was 

maintaining that it was ―necessary for the maintenance of public confidence in 

the criminal justice system that decisions relating to the length of time a 

murderer spends in custody and release are taken by the Home Secretary‖
41

; 

however by October Mr Blunkett‘s aides were saying that the Home Secretary 

                                                      
35

 Christopher Gale and Annabelle James, ‗Comment: Mandatory Life Sentences and 

Executive Interference‘ (2002) 66 JCL 417, 421. 
36

 This process is described in detail in Stephen Shute ‗Punishing Murderers: Release 

Procedures and the ―Tariff‖, 1953-2004‘ [2004] Crim L Rev 873. 
37

 (2002) 35 EHRR 32. 
38

 M2 Communications Ltd, ‗UK Government: Stafford Judgement‘ M2 Presswire 

(online), 28 May 2002. 
39

 Stephen Pollard, David Blunkett (Hodder and Stoughton 2005) 4.  
40

 Clare Dyer, ‗Blunkett Loses Key Power to Keep Killers in Jail‘ The Guardian 

(London) 29 May 2002, 1.7. 
41

 David Barrett, ‗We should decide killer‘s fate, says top judge‘ Daily Post (London) 

9 July 2002, 19. 



THE DENNING LAW JOURNAL 
 

 

 

53 

would simply bring in a new law to make sure ―life means life‖ if Mr 

Anderson‘s appeal was successful.
42

  

On 28 October 2002, the Conservative Opposition moved a resolution in 

the Commons that the House ‗notes with concern the impact of the 

Convention on the sentencing powers of the Home Secretary…and calls upon 

the Government…to construct a lasting settlement that can bring the [HRA] 

into conformity with the democratic will of the people…‘
43

 The resolution 

was defeated but it seems fairly clear that parliament had begun to seriously 

consider what it would do if confronted by a declaration on a topic of real 

public interest.
44

 

Anderson was then handed down. Mr Blunkett promised to introduce new 

legislation which would establish a clear set of principles within which judges 

would fix minimum tariffs for murderers in the future, thus indicating that the 

Home Secretary would no longer have that power.
45

 The government then 

introduced amendments to the Criminal Justice Bill which transferred the 

power to fix tariffs in mandatory lifer cases from the Home Secretary to the 

sentencing judge.
 
The legislation also established statutory guidelines which 

had to be taken into account by judges when they set the minimum terms that 

murderers had to serve before they became eligible for parole.
46

 

The guidelines were designed to place very substantial constraints on 

sentencing judges. That this is so can be seen from the Explanatory Notes to 

the Criminal Justice Act 2003, which state that while ‗there may be a few very 

exceptional cases in which starting points [for minimum terms] will be 

increased or decreased very substantially, it is expected that the vast majority 

                                                      
42

 David Leppard and Zoe Thomas, ‗Legal Ruling may Free 200 Killers Early‘ 

Sunday Times (London) 6 October 2002, 10. 
43

 HC Deb 28 October 2002, vol 391, col 605 (Dominic Grieve). 
44

 There were a couple of references to dialogue during the Commons debate on 28 

October 2002 (HC Deb 28 October 2002, vol 391, col 605-651) but no agreement as 

to its form. Vera Baird (Labour, Redcar) stated (at col 639): ‗There is no doubt that a 

healthy tripartite dialogue has been engendered between the courts, Parliament and 

the Executive by the Human Rights Act. They have all worked together‘. However, 

Dominic Grieve (Conservative, Beaconsfield) stated (at col 612-613): ‗We have had 

an extraordinary paradigm shift in the way in which we run our affairs. Some might 

argue that that is for the better. However, it involves a dialogue between the 

Executive and the judiciary, from which Parliament is effectively excluded. I have 

serious doubts about that process. As the dialogue continues, there is a danger that the 

process of justice, Parliament and the Executive will be brought into disrepute with 

the public‘. 
45

 HC Deb 25 November 2002, vol 395, col 100-101W. 
46

 Shute (n 36) 890. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

54 

of cases will tend to attract minimum terms that reflect [those prescribed by 

the Act]‘.
47

  

After noting that the Home Secretary‘s role of examining tariff cases was 

‗horrendous‘, Mr Blunkett explained the motivation behind the new 

legislation in the following terms: 

 

―We want to reassert the role of Parliament that historically existed 

when considering cases of murder, and to ensure that there is clarity 

and a response to public concern… 

 

―Today I am responding to the [Anderson] judgment. Although I 

accept that it takes the tariff out of the hands of the Home Secretary – 

as I said, no Home Secretary would be sorry to see that go – we are 

trying to achieve the same result.‖
48 

 

 

Although it may have been traumatic to consider horrific murders, it 

seems unlikely that Mr Blunkett wanted to give up his tariff setting power. He 

knew that he could hand that power over to the judiciary but he fought Mr 

Anderson all the way to the House of Lords to try and keep it. Even after 

Anderson went against him, he introduced legislation that had, as he saw it, 

the express purpose of retaining the status quo; that is, accountability to the 

public for sentences served by murderers.  

If Mr Blunkett had tried to retain his tariff setting power after Anderson, 

he may very well have received the support of the Conservative Party
49

 and a 

large section of the general public. As noted above, he wanted to retain 

parliament‘s accountability to the public for terms of imprisonment served by 

murderers. Anderson did not, of course, change or strike down any law: the 

House of Lords merely declared s 29 of the Crime (Sentences) Act 1997 to be 

incompatible with the Convention. Why then did Mr Blunkett and the 

government not simply ignore Anderson?  

There was probably a combination of reasons. Firstly, the government 

may have considered that the new legislation would be effective; that is, it 

would force the judiciary to hand down the minimum sentences that the 

government wanted. Secondly, it may not have wanted to provoke a political 

fight with those who believed that the Home Secretary had no place setting 

tariffs and/or that the judiciary should not be questioned on matters of human 

                                                      
47

 Explanatory Notes to the Criminal Justice Act 2003 (UK) 642 [835].  
48

 HC Deb 20 May 2003, vol 405, col 865-870. 
49

 After Stafford was handed down, the shadow Home Secretary, Oliver Letwin, said, 

‗We believe that the Home Secretary should retain the ability to overrule the parole 

board in cases involving murderers‘: Dyer (n 40). 



THE DENNING LAW JOURNAL 
 

 

 

55 

rights.
50

 Thirdly, and most likely, the government recognised that Mr 

Anderson would simply take his case to the ECtHR where he would win. Mr 

Blunkett was advised by the Home Office that he had no chance of success in 

Strasbourg because of the ECtHR‘s decision in Stafford.
51

 

Sir Philip Sales and Richard Ekins disagree with Young‘s conclusion that 

the HRA establishes a dialogue between the judiciary and the legislature.
52

 

They say that the root of the problem with Young‘s approach is that it fails to 

identify what is, in fact, a fundamental feature of the HRA, namely, that it 

provides domestic remedies for rights drawn from international law. Sales and 

Ekins note that the ECtHR does not perceive itself to be participating in any 

form of democratic dialogue with each European legislature, ‗nor could it 

sensibly do so‘.
53

 The judgments of the ECtHR are legally binding on all three 

branches of the United Kingdom government so it is difficult, politically and 

legally, for the United Kingdom parliament to legislate inconsistently with 

judgments of the ECtHR.
54

 Sales and Ekins conclude that the ‗Strasbourg 

dimension‘ is a ‗fundamental aspect of the [HRA]‘.
55

 

After Anderson was handed down, Merris Amos wrote the following: 

 

―The judgment of the House of Lords was…a prime example of the 

courts, parliament and the executive engaging in a dialogue at the end 

                                                      
50

 For example, just prior to Anderson being handed down, the Liberal Democrat 

home affairs spokesman, Simon Hughes, was quoted as saying, ‗It would be wrong, 

even if understandable, for the home secretary to resist any judgment that went 

against him‘: see Vikram Dodd and Clare Dyer, ‗His Life in Whose Hands? Sarah 

Payne killer ordered to serve 50 years: Law lords to strip Home Secretary of right to 

set terms for murderers‘ The Guardian (London) 25 November 2002, 1.3. 
51

 Dodd and Dyer, ibid.  
52

 Philip Sales and Richard Ekins (n 15) 236. 
53

 Ibid 227-228. 
54

 Jason Varuhas ‗Courts in the service of Democracy: Why Courts Should Have a 

Constitutional (But Not Supreme) Role in Westminster Legal Systems‘ [2009] NZ 

Law Review 481, 515. Judgments of the ECtHR are of a declaratory nature: they state 

whether and to what extent there has been a violation of a human rights guarantee 

under the Convention. Pursuant to article 46 of the Convention, the United Kingdom 

is obliged to abide by any judgment in a case to which it is a party. It is an underlying 

norm of international law that a state will bring to an end any continuing or future 

violation of human rights of the kind mentioned in the judgment. There are examples 

of reluctance on the part of some states to follow the reasoning of the ECtHR but in 

the long run all the states have accepted its jurisprudence: see Georg Ress, ‗The Effect 

of Decisions and Judgments of the European Court of Human Rights in the Domestic 

Legal Order‘ (2005) 40 Tex ILJ 359. 
55

 Sales and Ekins (n 15) 229. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

56 

of which fundamental human rights emerged victorious as was 

intended by the architects of the [HRA].‖
56

 

 

If dialogue under the HRA is supposed to be an exchange of ideas about 

human rights between parliament and the courts pursuant to which policy 

goals are revised, but not blocked, following judicial decisions, there is real 

reason to doubt the accuracy of Amos‘ statement. It is clear that parliament 

was well aware of the case for the Home Secretary‘s role to be transferred to 

the judiciary; after all, as Amos accepts, numerous challenges to this role had 

been brought domestically and in the ECtHR.
57

 Mr Anderson‘s appeal could 

not have raised any new ―ideas‖ about human rights; hence, there could 

hardly have been an exchange of ideas about them.  

The government fought to retain the Home Secretary‘s power; Amos 

admits that Mr Blunkett ‗was anxious to retain his role‘.
58

 Once the House of 

Lords handed down its decision, the government relinquished that power. Was 

this an example of a policy goal being blocked or merely modified?  

The answer to this question depends upon what the policy goal actually 

was. If the goal was to ensure adequate punishment for murderers then an 

assessment of whether that goal has been achieved after Anderson is beyond 

the reach of this article. However, it seems fairly clear that Mr Blunkett 

formed the view that, in order to ensure that murderers received adequate 

punishment, it was necessary for the executive to have direct control of their 

minimum terms of imprisonment. If that was the government‘s goal then it 

was undoubtedly not achieved.  

Was that objective ‗blocked‘? The ‗Strasbourg dimension‘ was patently 

an important factor in the government‘s decision-making process. Although 

the government may have been anxious to retain its power, it knew that the 

ECtHR would demand its surrender. The government‘s hand was clearly 

forced by the prospect of an inevitably adverse ECtHR judgment.
59

  

Anderson did not produce an exchange of ideas about human rights. 

Depending on one‘s view of what the government‘s policy goal actually was, 

the process may very well have been closer to a monologue, judges doing the 

talking and legislatures the listening,
60

 than the dialogue alleged by Amos.  

                                                      
56

 Merris Amos ‗R v Secretary for the Home Department, ex p Anderson – Ending the 

Home Secretary‘s Sentencing Role‘ (2004) 67(1) MLR 108,116-117. 
57

 Ibid 108. 
58

 Ibid 117. 
59

 Ibid: Amos describes the outcome in Anderson as ‗somewhat inevitable‘ (117), ‗a 

foregone conclusion‘ (117) and ‗not unexpected‘ (122). 
60

 Frederick Morton and Rainer Knopff, The Charter Revolution and the Court Party 

(Broadview Press 2000) 166. 



THE DENNING LAW JOURNAL 
 

 

 

57 

6.  R (D) V SECRETARY OF STATE FOR THE HOME 
DEPARTMENT [2002] EWHC 2805 (ADMIN), [2003] 1 WLR 1315 

 

This case concerned a claimant who had been sentenced to a discretionary 

term of life imprisonment. He was subsequently transferred to a mental 

hospital and made the subject of restrictions. The claimant served the 

minimum period of his detention and applied for discharge. The mental health 

review tribunal did not have the power to order a patient‘s discharge. Under s 

74(1) of the Mental Health Act 1983, the mental health review tribunal was 

obliged to notify the Secretary of State whether, in its opinion, the patient was 

entitled to be discharged. Under s 74(1)(b) of the Mental Health Act 1983, if 

the tribunal formed the opinion that a patient was entitled to be conditionally 

discharged, the tribunal could recommend that, in the event of the patient not 

being discharged, the patient should continue to be detained in hospital. It was 

the Secretary of State's policy to refer to the Parole Board the cases of all 

restricted patients who remained in hospital following a tribunal 

recommendation under s 74(1)(b). The Parole Board had the power to direct 

the release of a patient; however there was no statutory right of access to a 

board hearing. Mr Justice Stanley Burnton made a declaration under s 4 of the 

HRA that the absence of any power in s 74 of the Mental Health Act 1983 to 

order the release of a prisoner: (a) who was sentenced to a discretionary life 

sentence; and (b) who was transferred to hospital and made subject to 

restrictions; and (c) who was subsequently the subject of a recommendation 

under s 74(1)(b) of the Mental Health Act 1983; and (d) who remained in 

hospital, was incompatible with his right to have the lawfulness of his 

detention decided speedily by a court pursuant to article 5(4) of the 

Convention. 

Section 295 of the Criminal Justice Act 2003 amended s 74 of the Mental 

Health Act 1983 by inserting a new subsection (5A), which gave transferees 

such as the claimant in D a right of access to the Parole Board. As it was the 

policy of the Home Secretary, prior to D, to refer all such transferees to the 

Parole Board anyway, the amendment was ‗a change in form more than 

substance‘.
61

 The uncontroversial nature of the amendment was reflected in 

the fact that it was introduced and agreed to in the House of Lords without 

debate.
62

  

 

                                                      
61

 Peter Bartlett and Ralph Sandland, Mental Health Law: Policy and Practice (3
rd

 ed, 

OUP 2007) 417. 
62

 HL Deb 14 October 2003, vol 653, col 918-920. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

58 

7.  BLOOD AND TARBUCK V SECRETARY OF STATE FOR 
HEALTH (HIGH COURT OF ENGLAND AND WALES, 

SULLIVAN J, 28 FEBRUARY 2003, UNREPORTED) 
 

The facts of this case were reported in The Telegraph and Daily Mail 

newspapers on 28 February 2003.
63

 According to those newspaper reports, 

Mrs Blood and Mrs Tarbuck used the sperm of their respective deceased 

husbands to conceive children. Under s 28(6)(b) of the Human Fertilisation 

and Embryology Act 1990, a man could not be named as the father of a child 

if his sperm was used to fertilise an egg after his death. The result was that the 

Blood and Tarbuck children‘s birth certificates did not state their fathers‘ 

names. The legal proceedings appear to have been brought by Mrs Blood and 

Mrs Tarbuck on their own account and on behalf of their children. The parties 

to the litigation agreed that the court should make a declaration pursuant to s 4 

of the HRA that s. 28(6)(b) was incompatible with human rights. Mr Justice 

Sullivan (as he then was) made a declaration in the terms sought. 

The Human Fertilisation and Embryology (Deceased Fathers) Act 2003 

introduced new subsections into s 28 of the Human Fertilisation and 

Embryology Act 1990, which set out the circumstances in which certain 

deceased men could be registered as the father on a child‘s birth certificate. 

The Human Fertilisation and Embryology (Deceased Fathers) Act 2003 

was uncontentious, which is reflected in the fact that the declaration in Blood 

and Tarbuck was made with the consent of the Health Secretary. In 2001, the 

Labour government supported a private Members Bill that would have 

allowed a child conceived by in vitro fertilisation after the father‘s death to 

record his/her father‘s name on his/her birth certificate but it did not complete 

all its stages before the general election was called that year.
64

 When the issue 

was raised again in parliament in 2003, the Human Fertilisation and 

Embryology (Deceased Fathers) Act was passed with the support of all sides 

of politics.
65

   

 

8.  BELLINGER V BELLINGER [2003] UKHL 21, [2003] 2 AC 467 
 

The petitioner was a transsexual female who had been correctly classified 

and registered at birth as male but had undergone gender reassignment 

surgery. In 1981 she went through a ceremony of marriage with a man who 

                                                      
63

 The case is also noted in Ministry of Justice (n 22) 47. 
64

 HC Deb 23 March 2001, vol. 365, col 642-650; HC Deb 24 January 2002, vol 378, 

col 1090W. 
65

 HC Deb 28 March 2003, vol. 402 col 602-612; HL Deb 4 July 2003, vol 650, col 

1148-1163.  



THE DENNING LAW JOURNAL 
 

 

 

59 

supported her petition for a declaration that the marriage was valid at its 

inception and subsisting. The judge at first instance refused to grant the 

declaration on the ground that ‗male‘ and ‗female‘ in s 11(c) of the 

Matrimonial Causes Act 1973 were to be determined by reference to 

biological criteria and that the petitioner was a male and not a woman for the 

purposes of marriage.  

On 10 April 2003, the Judicial Committee of the House of Lords 

dismissed her appeal but made a declaration pursuant to s 4 of the HRA that s 

11(c) was incompatible with the petitioner's right to respect for her private life 

under article 8(1) of the Convention and with her right to marry under article 

12 of the Convention. 

By the time that Bellinger was decided, steps were well underway to 

allow transsexual people to be officially recognised in the gender with which 

they identified. In 1999, the Home Secretary set up the Interdepartmental 

Working Group on Transsexual People. The Working Group published a 

report in April 2000, which put forward a number of options but suggested 

that the government put the matters out to public consultation. The Working 

Group was reconvened in 2002 to examine the implications of granting full 

legal status to transsexual people in their acquired gender.
66

 

On 11 July 2002, the ECtHR delivered judgments in favour of two 

transsexual people in Goodwin v United Kingdom
67

 and I v United Kingdom
68

, 

which effectively obliged the British government to recognise sex changes as 

legally valid. On 13 December 2002, the government announced that it would 

publish draft legislation that would give transsexual people legal recognition 

in their acquired gender.
69

  

On 27 November 2003, the Gender Recognition Bill had its first reading 

in the House of Lords.
70

 It eventually passed both houses of parliament: 155 

votes for to 57 against in the Lords and 335 votes for to 26 against in the 

Commons.
71

 The Gender Recognition Act 2004 enabled transsexual people to 

apply for legal recognition of their acquired gender. Successful applicants 

would be issued with a gender recognition certificate and would have the right 

                                                      
66

 Catherine Fairbairn, ‗The Gender Recognition Bill (No. 56) 2003-04 (UK)‘ 

(Research Paper 04/15 House of Commons Library, United Kingdom Parliament, 

2004), 10-11. 
67

 (2002) 35 EHRR 447. 
68

 (2003) 36 EHRR 53. 
69

 Fairbairn (n 66) 11-15. 
70

 HL Deb 27 November 2003 vol 655, col 24. 
71

 HL Deb 10 February 2004 vol 656, col 1090-1092; HC Deb 23 February 2004, vol 

418, col 105-108. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

60 

to marry in their acquired gender and be given birth certificates that 

recognised the acquired gender.   

The Gender Recognition Act 2004 was the outcome, not of the decision in 

Bellinger, but of the Working Group‘s consultation with the transsexual 

community in the United Kingdom and of the ECtHR‘s judgments in 

Goodwin and I.
72

 Indeed, in Bellinger, counsel for the intervening Lord 

Chancellor submitted that a declaration would serve no useful purpose as the 

government had already announced its intention to bring forward primary 

legislation on the subject.
73

 Bellinger did not result in any real exchange of 

ideas about human rights between parliament and the courts because the issue 

was already being fully considered by the government by the time the 

decision was handed down.  

 

9.  R (M) V SECRETARY OF STATE FOR HEALTH [2003] EWHC 
1094 (ADMIN) 

 

The claimant was a 34 year old woman with a borderline personality 

disorder who was liable to detention under the Mental Health Act 1983. She 

had made allegations of sexual abuse against her adoptive father, which were 

denied by him. The claimant‘s adoptive father was her ‗nearest relative‘ as 

that term was defined in s 26 of the Mental Health Act 1983. The Mental 

Health Act 1983 gave various powers and entitlements to her adoptive father 

as her ‗nearest relative‘. Section 29 of the Mental Health Act 1983 enabled the 

replacement of a patient‘s ‗nearest relative‘ but only in limited circumstances 

and not on the application of the patient. As there were no legal means 

available to the claimant to compel her adoptive father‘s replacement, she 

applied for a declaration that ss 26 and 29 of the Mental Health Act 1983 were 

incompatible with her right to respect for her private life under article 8 of the 

Convention.  

In his reasons for judgment, Mr Justice Maurice Kay (as he then was) 

noted that the Health Secretary admitted that ss 26 and 29 were incompatible 

with article 8. His Honour stated that that was not surprising given that the 

ECtHR had come to that conclusion in JT v United Kingdom
74

. His Honour 

noted that the judgment of the ECtHR recorded a friendly settlement between 

JT and the British government pursuant to which the government undertook to 

amend the Mental Health Act 1983 in order to provide a detainee with the 

power to make an application to court to have the ‗nearest relative‘ replaced 

                                                      
72

 Andrew Sharpe ‗Gender Recognition in the UK: a Great Leap Forward‘ (2009) 

18(2) Soc & Legal Stud 241, 242. 
73

 Bellinger v Bellinger [2003] 2 AC 467, 471, 481-482. 
74

 [2000] ECHR 133. 



THE DENNING LAW JOURNAL 
 

 

 

61 

where the patient reasonably objected to a certain person acting in that 

capacity. Following the friendly settlement in JT, no amending legislation had 

been enacted. The Health Secretary acknowledged the incompatibility but 

submitted that the government intended to enact amending legislation in the 

form of a comprehensive Mental Health Bill with a view to a root and branch 

reform of the 1983 Act. The government had, in fact, published a Draft Bill in 

the form of the Mental Health Bill 2002. It was for this reason that the Health 

Secretary submitted that a declaration was unnecessary. As the 

incompatibility had been identified some time previously but its removal had 

not taken place, Mr Justice Maurice Kay rejected the government‘s 

submission and made the declaration sought. 

Sections 23 – 26 of the Mental Health Act 2007 amended ss 26 – 29 of the 

Mental Health Act 1983. In particular, s 23 introduced a new right for a 

patient to apply for a court order displacing the ―nearest relative‖. 

M was similar to Bellinger in that the process of legislative change was 

well underway by the time the case was decided. If there was an exchange of 

ideas about human rights, it happened long before M was handed down. 

 

10.  A V SECRETARY OF STATE FOR THE HOME 
DEPARTMENT [2004] UKHL 56, [2005] 2 AC 68 (‘BELMARSH’) 

 

Following the terrorist attacks in the United States of America on 11 

September 2001, the British government concluded that there was a public 

emergency threatening the life of the nation within the meaning of article 15 

of the Convention. Article 15 relevantly provides as follows: 

 

Derogation in time of emergency 

1. In time of war or other public emergency threatening the life of the 

nation any high contracting party may take measures derogating from 

its obligations under this Convention to the extent strictly required by 

the exigencies of the situation, provided that such measures are not 

inconsistent with its other obligations under international law. 

 

Article 15 is not expressly incorporated by the HRA, but s 14 of the HRA 

makes provision for prospective derogations by the United Kingdom to be 

designated in an order made by the Secretary of State. Accordingly, the 

government made the Human Rights Act 1998 (Designated Derogation) 

Order 2001, designating the United Kingdom's proposed derogation, under 

article 15, from the right to personal liberty guaranteed by article 5(1) of the 

Convention. It then placed the Anti-terrorism, Crime and Security Bill before 

parliament.  



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

62 

Part 4 of the Bill (ss 21 – 36) received a great deal of attention in 

parliament and was debated publicly at considerable length.
75

 As ultimately 

enacted, s 21 enabled the Home Secretary to certify that he reasonably 

believed that a person‘s presence in the United Kingdom was a risk to 

national security and that the person was a terrorist. Under s 23, foreign 

nationals so certified by the Home Secretary could be detained if they could 

not be deported because of fears for their safety or other practical 

considerations.  

It was pointed out to the Home Secretary, Mr Blunkett, that one of the 

UK‘s leading human rights barristers, David Pannick QC, had opined that the 

derogation from article 5 was unlawful because detention without trial was 

not strictly required by the exigencies of the situation. Mr Blunkett responded 

by saying that he was aware of Mr Pannick‘s comments but had received legal 

advice that they were incorrect.
76

 

Despite the misgivings of some about Part 4,
77

 parliament passed the Bill 

and the Anti-terrorism, Crime and Security Act came into force on 14 

December 2001. 

Due to the presence of a sunset clause,
78

 parliament was required to revive 

and renew ss 21 – 23 of the Act, which it duly did in 2003.
79

 Under the terms 

of the sunset clause, any renewal could only last a year so parliament was 

required to consider ss. 21 – 23 again in 2004. By that time, a review of the 

Act had been conducted by a committee of Privy Counsellors, chaired by 

Lord Newton of Braintree. The Newton Committee strongly recommended 

that the powers that allowed foreign nationals to be detained potentially 

indefinitely be replaced as a matter of urgency.
80

 Parliament noted the report
81

 

but decided to renew ss 21 – 23 again anyway.
82

 

In October 2004, the Judicial Committee of the House of Lords heard an 

appeal by A and 8 other foreign nationals who had been detained under s 23 

of the Act. As most of the appellants were being held in Belmarsh prison in 

south-east London, A v Secretary of State for the Home Department became 

known as the Belmarsh decision.  

                                                      
75

 HC Deb 12 December 2001, vol 376, col 911 (David Blunkett). 
76

 HC Deb 12 December 2001, vol 376, col 916. 
77

 See eg HC Deb 19 November 2001, vol 375, col 95 (Douglas Hogg). 
78

 Anti-terrorism, Crime and Security Act 2001 (UK) s 29. 
79

 Anti-terrorism, Crime and Security Act 2001 (Continuance in force of sections 21 

to 23) Order 2003 (UK); HC Deb 3 March 2003, vol 400, col 584-608. 
80

 Privy Councillor Review Committee, Anti-terrorism, Crime and Security Act 2001 

Review: Report, (HC December 2003, 100), 11. 
81

 HC Deb 25 February 2004, vol 418, col 293-384. 
82

 Anti-terrorism, Crime and Security Act 2001 (Continuance in force of sections 21 

to 23) Order 2004 (UK). See also HC Deb 3 March 2004, vol 418, col 1027. 



THE DENNING LAW JOURNAL 
 

 

 

63 

On 16 December 2004, the Law Lords handed down their judgment in 

which they held that since s 23 applied to non-nationals suspected of 

international terrorism but not to nationals who presented the same threat; 

permitted non-national suspects to leave the United Kingdom; did not address 

the threat from nationals; and was capable of applying to individuals who did 

not pose that threat, it did not rationally address the threat to security and was 

not strictly required by the exigencies of the situation within the meaning of 

article 15. Their Lordships held that since the purpose of s 23 was to protect 

the United Kingdom from the risk of a terrorist attack, which could come 

from nationals or non-nationals, the fact that only non-national suspects were 

detained under s 23 meant that a declaration should be made that that section 

was incompatible with the right to liberty (article 5 of the Convention) and the 

prohibition against discrimination (article 14 of the Convention) in so far as it 

was disproportionate and permitted detention of suspected international 

terrorists in a way that discriminated on the ground of nationality or 

immigration status. 

The next day, the front page of The Guardian newspaper reported that the 

‗scathing‘ judgment had ‗left anti-terror laws in tatters‘.
83

 The Foreign 

Secretary, Jack Straw, was reported as saying that the Law Lords were 

‗simply wrong‘ to rule that terror suspects were being held arbitrarily without 

charge.
84

 The new Home Secretary, Charles Clarke, stated that he would not 

revoke the s 21 certificates or release the detainees but did say that he would 

study the judgment carefully to see whether it was possible to modify the Act 

to address the concerns raised by the Law Lords.
85

 

The following day, the front page of The Independent newspaper reported 

that the government‘s refusal to withdraw its anti-terror laws had left Britain 

on the brink of a constitutional crisis.
86

 

On 21 December 2004, The Guardian newspaper reported that Mr Clarke 

was being attacked for failing to announce what the government would do to 

respond to the judgment. The newspaper reported Conservative MP, Tony 

Baldry, as saying that the Law Lords ‗didn‘t make an ethical, moral or 

philosophical judgment…They made a legal judgment‘.
87

 

                                                      
83

 Clare Dyer, Michael White and Alan Travis, ‗‗Judges‘ verdict on terror laws 

provokes constitutional crisis‘ The Guardian (London) 17 December 2004.  
84

 Richard Edwards, ‗Law Lords ‗wrong‘ over Detentions, says Straw‘ Evening 

Standard (London) 17 December 2004. 
85

 Oonagh Blackman ‗War on the Law Lords: Clarke defies Decision on Belmarsh 

Inmates‘ The Daily Mirror (London) 17 December 2004.  
86

 Robert Verkaik and Colin Brown, ‗Belmarsh: a new Affront to Justice‘ The 

Independent (London) 18 December 2004.  
87

 David Hencke and Clare Dyer, ‗Clarke criticised over Terror Suspects Ruling‘ The 

Guardian (London) 21 December 2004. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

64 

On 26 January 2005, Mr Clarke told the House of Commons that, 

although the government believed that the Part 4 powers were justified, he 

accepted the declaration made by the Law Lords. He indicated that the 

government had decided to replace the Part 4 powers with a new system of 

control orders, which would limit the movement and communications of 

suspected terrorists.
88

 

On 3 February 2005, the Lord Chancellor, Lord Falconer of Thoroton, 

gave a lecture in which he told the audience that he not only accepted the 

Belmarsh judgment but that the government had got the balance wrong.
89

 

On 22 February 2005, Mr Clarke introduced the Prevention of Terrorism 

Bill into the House of Commons. As he had previously indicated, the Bill 

introduced a scheme of control orders applicable to all suspected terrorists 

irrespective of whether they were British or foreign nationals. In his statement 

to parliament, Mr Clarke made the following comments: 

 

―The Law Lords' judgment on 16 December found that the part 

4 powers in the 2001 Act were disproportionate and discriminatory in 

that they applied only to foreign nationals, and we had apparently 

managed to contain the threat from British nationals without 

detention…I accept that judgment, and therefore believe that it is 

important to address those concerns. We should not simply renew the 

current legislation, which the Law Lords so overwhelmingly regard as 

flawed. We should replace it—with strong measures that are fully 

compatible with the European convention on human rights, and 

applicable to both British and foreign nationals.‖
90

 

 

On 11 March 2005, parliament enacted the Prevention of Terrorism Act, 

which repealed ss 21 – 23 of the Anti-terrorism, Crime and Security Act 2001 

and replaced detention with control orders. 

On 7 July 2005, 52 civilians were killed in a series of terrorist bombings 

in London. On 26 July 2005, the Prime Minister, Tony Blair, gave a press 

conference in which he was reminded about Lord Hoffman‘s comments in the 

Belmarsh judgment (‗The real threat to the life of the nation…comes not from 

terrorism but from laws such as these‘)
91

 and asked whether there was ‗any 

way you can ensure the judges take account of what we think is now public 

                                                      
88

 HC Deb 26 January 2005, vol 430, col 305-309. 
89

 Adrian Butler and Deborah James, ‗―We got the balance wrong‖; Falconer admits 

anti-terror legislation broke the law‘ Daily Post (Liverpool) 4 February 2005.  
90

 HC Deb 22 February 2005, vol 431, col 152. 
91

 A v Secretary of State for the Home Department [2005] 2 AC 68, 132. 



THE DENNING LAW JOURNAL 
 

 

 

65 

and parliamentary opinion?‘ The Prime Minister responded in the following 

terms: 

 

―I hope that recent events have created a situation where people can 

understand that it is important that we do protect ourselves and that in 

a sense if we can take measures to protect ourselves, it then becomes 

easier in a sense to protect our own way of life and our democracy and 

I doubt those words that you were quoting from one of those 

judgments would be uttered now.‖
92

 

 

The Prime Minister concluded his comments by stating that ‗one way of 

making sure we keep together is to make sure that the laws that I think the 

country would regard as the minimum necessary are actually passed and are 

then upheld‘.
93

 

The Prime Minister‘s answers were interpreted by some as indicating his 

disagreement with the Belmarsh decision.
94

 As Mr Blair‘s autobiography 

reveals, that interpretation was undoubtedly correct: 

 

―Less happy was the episode over the new anti-terror laws which we 

were seeking to pass following the House of Lords ruling in 

December 2004 that our existing power to detain suspects was 

unlawful under the Convention, which was now incorporated into UK 

law. Here, there was simply a fundamental disagreement between 

myself and the judiciary and media; or at least a large part of it, about 

the threat we faced. 

 

―Although these decisions are supposed to be a strict matter of law, 

inevitably in the human rights field there is a lot of subjective 

judgement around the politics. I doubt such a ruling would have been 

reached in September 2001 or July 2005 – ie in the wake of terrorist 

attacks in the US and London – but as time passes, the sense of 

urgency goes with it. And it was true: we were asking for draconian 

powers, unacceptable in principle except in the most rare 

circumstances.‖
95

 

                                                      
92

 ‗PM‘s Press Conference - 26 July 2005‘ (Press Release, 26 July 2005) 

http://webarchive.nationalarchives.gov.uk/20061004051823/http://number10.gov.uk/p

age7999. 
93

 Ibid. 
94

 Benedict Brogan, ‗Blair: Judges let us Down‘ Daily Mail (London) 27 July 2005; 

William Cash, ‗Terrorism and the Rule of Law‘ The Times (London) 2 August 2005. 
95

 Tony Blair, A Journey: My Political Life (Alfred A Knopf 2010) 575. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

66 

If the Prime Minister disagreed with Belmarsh, why didn‘t his 

government simply refuse to repeal ss 21 – 23 of the Anti-terrorism, Crime 

and Security Act 2001? Mr Blair offered the following explanation in his 

autobiography: 

 

―Once the House of Lords made the ruling, we had to amend the 

law.‖
96

 

 

Why was it that the Blair government had to amend the law? The diary of 

former Labour MP, Chris Mullin, reveals some of the government‘s thinking 

on the subject. Mr Mullin attended a meeting at the Prime Minister‘s office 

two days before the Belmarsh decision was handed down. His diary records 

the meeting in the following terms: 

 

―To Number 10 for a meeting about the detentions at Belmarsh…‖ 

 

―The Attorney General outlines the options. His starting point is that 

we should obey the forthcoming Lords‘ judgment, which is expected 

to go against the government. Alternatively, we could amend the law 

– ‗the difficulty is we don‘t know what to put in its place.‘‖ 

 

―‗It will be a big thing, if we don‘t accept the judgment,‘ the Attorney 

General said.‖
97

  

 

What Mr Mullin‘s diary note exposes is that, not only did the government 

know that it theoretically had the option of rejecting the Law Lords‘ 

judgment, it also knew that it would be a ‗big thing‘ if it took that option. 

How ‗big‘ of a ‗thing‘ would it have been? Lord Lloyd of Berwick painted a 

vivid picture in his 2005 Denning Lecture: 

 

―If the Government had rejected the decision in A‘s case, as it could 

have done, and renewed Part 4 of the 2001 Act when it expired, there 

would have been a major constitutional crisis. I shall never forget the 

sense of relief when…Mr Clarke as Home Secretary announced that 

the Government would accept the declaration of incompatibility…I 

would like to think that Mr Clarke‘s quiet acceptance of the decision 

in A‘s case marked the start of a new chapter in the relationship 

between the judges and the executive. Instead of crying foul, as the 

                                                      
96

 Ibid.  
97

 Ruth Winstone (ed) A View from the Foothills: The Diaries of Chris Mullin (Profile 

Books 2009) 731-732. 



THE DENNING LAW JOURNAL 
 

 

 

67 

Government might well have done when Mr Blunkett was Home 

Secretary, the executive has recognised that judges also have a job to 

do, especially in the realm of human rights. If this is so, then A‘s case 

was a decision of huge importance, not only in what it decided, but in 

the manner of the Government‘s acceptance of that decision.‖
98

 

 

In light of the media reports that followed the Belmarsh decision, Lord 

Lloyd was almost certainly right to surmise that any rejection of the judgment 

would have resulted in a major constitutional crisis. It should not be forgotten 

that 2005 was an election year. One can only imagine the hysteria that would 

have occurred if the government had been seen to ‗go against‘ the judgment 

of the highest court in the land. The Opposition would have likely had a field 

day with the issue. 

One of the Law Lords who delivered the Belmarsh judgment, Baroness 

Hale of Richmond, argued in her 2007 Ryan Lecture that, in the United 

Kingdom, all three organs of government were engaged in a constitutional 

dialogue.
99

 Lady Hale explained that part of the way that democratic dialogue 

was supposed to work was that, if legislation was incompatible with 

fundamental rights, the courts ‗decide how far they can go towards putting it 

right without trespassing on parliamentary sovereignty‘.
100

 She explained that 

parliamentary sovereignty was preserved by the issuing of a declaration 

because it did not ‗affect the validity of anything done under the statue and 

parliament still has a choice whether or not to do anything about it‘.
101

 Lady 

Hale cited the Belmarsh decision as evidence of the dialogue.
102

 

With the greatest of respect to Lady Hale, it seems difficult to classify the 

outcome of the Belmarsh decision as involving any kind of dialogue. 

Parliament was well aware of the rights arguments that would be deployed 

against the Anti-terrorism, Crime and Security Act 2001 in the courts. Despite 

this, it chose to enact and then renew ss 21 – 23 on a number of occasions, in 

the face of strong criticism. After the Belmarsh decision was handed down, 

the government clearly did not want to repeal ss 21 – 23 but, if it did not do 

so, it would have provoked a constitutional crisis. Just how little the 

                                                      
98

 Lord Lloyd ‗The Judges and the Executive – have the Goalposts been Moved?‘ 

(2006) 18 Denning LJ 79, 93. 
99

 Baroness Hale, ‗Human Rights in the Age of Terrorism: the Democratic Dialogue 

in Action‘ (2008) 29 Geo J. Int'l L 383, 386. 
100

 Ibid 405. 
101

 Ibid 388. 
102

 Ibid 391-393. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

68 

government thought of Law Lords‘ decision is demonstrated by the fact that it 

later took the unusual step of challenging its correctness in the ECtHR.
103

 

Despite the protestations of Lord Falconer, the better view is that the 

government amended the law, not because it thought that it was wrong, but 

because the political pressure to do anything else was just too great. The 

reality is that parliament had no choice: it had to amend the law just as Mr 

Blair said.  

The outcome was not arrived at by an exchange of views: it was dictated 

by the Law Lords. Prior to the Belmarsh decision being handed down, the 

Attorney General knew that the government could amend the law but didn‘t 

‗know what to put in its place‘. The comment suggests that the government 

needed to know what the courts thought the law should be before it could act. 

The Law Lords duly did tell the government what they thought the law should 

be. The leading judgment in Belmarsh was delivered by Lord Bingham who 

noted that when one of the appellants had been released on bail it was on 

stringent conditions that limited his freedom of movement and association.
104

 

Lord Bingham stated: 

 

―The appellants suggested that conditions of this kind, strictly 

enforced, would effectively inhibit terrorist activity. It is hard to see 

why this would not be so.‖
105

 

 

Taking the hint and now knowing what to put in place of detention orders, 

the government introduced the control order scheme under the Prevention of 

Terrorism Act 2005. 

Some might argue that Belmarsh did not involve the rejection of a key 

legislative policy goal: the legislative objective was to keep the public safe 

from foreigners suspected of terrorism and the enactment of the Prevention of 

Terrorism Act 2005 ensured that that objective was achieved in a way that 

was properly respectful of human rights. In response, two things can be said. 

Firstly, it is unlikely that Belmarsh did not result in the blocking of a key 

policy goal. As Mr Blair says in his autobiography, he conceived of offering 

foreigners suspected of terrorism a choice: ‗leave the country, or stay in 

custody‘.
106

 The Belmarsh decision totally obstructed this objective. Secondly, 

even if a key objective was not frustrated, the legislature‘s policy was 

                                                      
103

 See A v United Kingdom (2009) 49 EHRR 29; Sangeeta Shah, ‗From Westminster 

to Strasbourg: A and others v United Kingdom‘ (2009) 9 Co HRLR 473. 
104

 A v Secretary of State for the Home Department [2005] 2 AC 68, 106-107. 
105

 Ibid 107. 
106

 Blair (n 95) 575. 



THE DENNING LAW JOURNAL 
 

 

 

69 

distorted, and arguably not in a constructive way.
107

 As Baroness Hale herself 

noted, seven people who were subject to control orders had, by the time of her 

lecture, gone missing so ‗its effectiveness as a preventive measure is 

questionable‘.
108

 

Lord Lloyd was prescient to say that Belmarsh was a decision of huge 

importance, not only in what it decided, but in the manner of the 

government‘s acceptance of that decision. If a government that believed so 

strongly in legislation on such an important subject matter was not willing to 

defend it in the face of a declaration, perhaps no government ever would? The 

outcome of Belmarsh was strong evidence of the proposition that, in the 

future, it would be, as Lord Lloyd predicted, ‗for the judges, and ultimately 

for Strasbourg, to say what the Convention means‘.
109

 

 

11.  R (WILKINSON) V INLAND REVENUE COMMISSIONERS 
[2005] UKHL 30, [2006] 1 ALL ER 529 

 

The taxpayer was a widower whose wife died on 23 June 1999. At that 

time, s 262 of the Income and Corporation Taxes Act 1988 provided for a 

bereavement allowance payable only to widows. By s 34 of the Finance Act 

1999, s 262 ceased to have effect in relation to deaths occurring after 6 April 

2000. By letter of 11 December 2000, the Inland Revenue Commissioners 

refused the taxpayer's claim to a payment on the ground that there was no 

basis in United Kingdom law for allowing widowers to claim the widow's 

bereavement allowance. The judge refused the taxpayer's claim for judicial 

review of the commissioners' decision, but granted a declaration that s 262 

was incompatible with article 14 of the Convention (‗The enjoyment of the 

rights and freedoms set forth in this Convention shall be secured without 

discrimination on any ground such as sex…‘) when read with article 1 of the 

First Protocol to the Convention (‗Every natural or legal person is entitled to 

the peaceful enjoyment of his possessions‘). The taxpayer took his appeal to 

the House of Lords, arguing that it was possible to read s 262 as including 

widowers. The House of Lords dismissed his appeal. 

Wilkinson did not result in dialogue. The incompatibility was removed by 

s 34 of the Finance Act 1999, which was enacted well before the taxpayer 

filed his claim for judicial review. 

 

                                                      
107

 Christopher Manfredi and James Kelly, ‗Six Degrees of Dialogue: A Response to 

Hogg and Bushell‘ (1999) 37 OHLJ 513, 522. 
108

 Baroness Hale (n 99) 396. 
109

 Lord Lloyd (n 98) 93. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

70 

12.  R (MORRIS) V WESTMINSTER CITY COUNCIL (NO 3) [2005] 
EWCA CIV 1184, [2006] 1 WLR 505: R (GABAJ) V FIRST 

SECRETARY OF STATE (ADMINISTRATIVE COURT, 28 

MARCH 2006, UNREPORTED) 
 

The facts of Morris were that the claimant and her daughter came to the 

United Kingdom from Mauritius and were given leave to enter as visitors. 

When their leave to remain expired, the claimant applied for a British passport 

on the basis that she was a British citizen by descent. That status was 

subsequently recognised and she obtained a British passport, while her 

daughter was not thought eligible for British citizenship and remained a 

citizen of Mauritius alone. The claimant subsequently applied to the defendant 

council for accommodation under the Housing Act 1996. That application was 

refused on the basis that the claimant did not have a ‗priority need for 

accommodation‘. The council, relying on s 185(4) of the Housing Act 1996, 

subsequently confirmed its decision.  

Under s 189 of the Housing Act 1996, a person with dependent children 

had a ‗priority need for accommodation‘. However, s 185(4) prevented an 

otherwise eligible applicant from relying on a person subject to immigration 

control to bring him/her within the class of persons with dependent children. 

In other words, if the claimant‘s daughter had been British, the claimant 

would have had a ‗priority need for accommodation‘. As the claimant‘s 

daughter was not British, the claimant did not have a ‗priority need for 

accommodation‘.  

On 14 October 2005, the Court of Appeal declared that s 185(4) was 

incompatible with the right under article 14 of the Convention to enjoy 

without discrimination the right under article 8 of the Convention to respect 

for home and family life to the extent that it required a dependent child of a 

British citizen, if both were habitually resident in the United Kingdom, to be 

disregarded when determining whether the British citizen had a priority need 

for accommodation, when that child was subject to immigration control. 

The government‘s response to Morris took some time to develop. On 3 

March 2006, the Office of the Deputy Prime Minister informed parliament‘s 

Joint Committee on Human Rights (‗JCHR‘) that the government had decided 

not to appeal the decision.
110

 On 28 March 2006, the Administrative Court 

made a declaration by consent in Gabaj
111

 that s 185(4) was incompatible 

with the Convention, albeit in slightly different terms to the declaration in 

                                                      
110

 Joint Committee on Human Rights, UK Parliament, Twenty Third Report (2006) 

app 4 (Letter from Alan Edwards to the JCHR dated 2 March 2006). 
111

 Ibid (Letter from Alan Edwards to the JCHR dated 20 April 2006). See also 

Ministry of Justice (n 22) 40. 



THE DENNING LAW JOURNAL 
 

 

 

71 

Morris. On 27 June 2006, the Minister for Housing and Planning, Yvette 

Cooper, advised the JCHR that the government intended to remedy the 

incompatibility as quickly as possible.
112

 

Schedule 15 of the Housing and Regeneration Act 2008 introduced 

amendments to the Housing Act 1996 that meant that s 185(4) would no 

longer apply to British citizens.
113

 Accordingly, a British citizen with a 

dependent child who applied for housing, like Mrs Morris, would have a 

‗priority need for accommodation‘ even if that child was not a British citizen 

and subject to immigration control. The housing authority to which the 

application was made would discharge its duty to the applicant, not by 

offering long-term social housing, but by arranging an offer of 

accommodation in the private rental sector. The policy concerns of the 

government and the purpose of Schedule 15 were explained by the Under-

Secretary of State for Communities and Local Government, Iain Wright, when 

the Commons was considering the amendments: 

 

―This is a complex area of law, but in summary, the issue at stake is 

what help British citizens whose household includes members with 

different immigration status should get if they become homeless. The 

amendments will ensure that in future, households in those 

circumstances will be provided with suitable housing, while 

continuing to ensure that people from abroad with no claim to UK 

public resources cannot confer entitlement to long-term social 

housing.‖
114

 

 

The amendments were passed by parliament without dissent.
115

  

Although Morris posed ‗particularly difficult‘ policy problems,
116

 there 

are reasons to believe that the parliament was comfortable with the ultimate 

outcome as expressed in the amendments to the Housing Act 1996. Firstly, the 

government naturally accepted that British citizens had to be provided with 

some form of housing assistance if they became homeless through no fault of 

                                                      
112

 Ibid (Letter from Yvette Cooper to the JCHR dated 27 June 2006). 
113

 Section 185(4) was also amended so that it would not apply to European Economic 

Area nationals and Commonwealth citizens with a right of abode in the United 

Kingdom. 
114

 HC Deb (Grand Committee), 21 July 2008, vol 479, col 610. 
115

 The amendments were introduced in Committee on 23 June 2008 (HL Deb (Grand 

Committee) 23 June 2008, vol 702, col GC495-560); they were agreed to in the 

House of Lords on the third reading of the Housing and Regeneration Bill on 17 July 

2008 (HL Deb 17 July 2002, vol 637, col 1322- 88) and agreed to in the House of 

Commons on 21 July 2008 (HC Deb 21 July 2008, vol 479, col 575-621). 
116

 HL Deb 9 July 2008, vol 703, col 821 (Baroness Andrews). 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

72 

their own.
117

 Secondly, as noted above, the amendments were agreed to 

without dissent. Thirdly, it seems unlikely that the amendments would have 

resulted in significant additional expenditure for the government. Only a small 

number of people were affected by the operation of s 185(4).
118

 The 

amendments did not result in migrants obtaining access to scarce and valuable 

social housing. Accordingly, there is good cause to think that Morris did 

provoke an exchange of ideas about rights pursuant to which policy goals 

were revised but not blocked. 

 

13.  R (CLIFT) V SECRETARY OF STATE FOR THE HOME 
DEPARTMENT [2006] UKHL 54, [2007] 1 AC 484  

 

The claimants were foreign citizens who had been sentenced to lengthy 

terms of imprisonment and made subject to deportation orders. By virtue of ss 

46(1) and 50(2) of the Criminal Justice Act 1991, the Parole Board had no 

power to recommend the early release on licence of long-term prisoners 

subject to deportation orders and the decision was at the discretion of the 

Home Secretary. The claimants each made representations for early release 

but the Home Secretary decided not to order their release. The claimants 

sought judicial review of the Home Secretary's decisions as being contrary to 

articles 5 and 14 of the Convention
119

 in that they were treated differently 

from long-term prisoners who were not subject to deportation because those 

prisoners were entitled to the benefit of a referral to the Parole Board. The 

judge at first instance allowed the claims but was overturned by the Court of 

Appeal. 

On appeal, the Judicial Committee of the House of Lords held that 

differential treatment afforded to prisoners liable to deportation by having 

their release dates determined by the Secretary of State could not be 

                                                      
117

 HL Deb (Grand Committee) 23 June 2008, vol 702, col GC524 (Baroness 

Andrews). 
118

 HL Deb (n 116) col 820 (Baroness Andrews). 
119

 Convention (n 7).  

Article 5 relevantly provides as follows: 
1. Everyone has the right to liberty and security of person. No one shall be deprived 

of his liberty save in the following cases and in accordance with a procedure 

prescribed by law: 

(a) the lawful detention of a person after conviction by a competent court;... 
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to 

take proceedings by which the lawfulness of his detention shall be decided 

speedily by a court and his release ordered if the detention is not lawful. 

Article 14 relevantly provides as follows: 
The enjoyment of the rights and freedoms set forth in this Convention shall be 

secured without discrimination on any ground such as...national or social origin. 



THE DENNING LAW JOURNAL 
 

 

 

73 

objectively justified, given the Parole Board's ability to make such 

determinations. Accordingly, a declaration would be made that ss 46(1) and 

50(2) were incompatible with article 14, read with article 5, to the extent that 

they prevented prisoners liable for removal having their cases reviewed by the 

Parole Board in the same manner as other long-term prisoners. 

By the time the matter was heard by the House of Lords, ss 46(1) and 

50(2) had been repealed and replaced by the Criminal Justice Act 2003. But 

they continued to apply to offences committed before 4 April 2005 pursuant 

to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and 

Saving Provisions) Order 2005 so they continued to apply to the claimants. 

Section 27 of the Criminal Justice and Immigration Act 2008 amended the 

Criminal Justice Act 1991 to remove the incompatibility in transitional cases. 

Section 27 seems to have been enacted without difficulty or controversy. 

Although the Criminal Justice and Immigration Act 2008 had a long passage 

through parliament, the wording of s 27 did not change from the time that it 

was first presented.
120

 The Public Bill Committee appointed to consider the 

Criminal Justice and Immigration Bill agreed, without dissent, that it should 

form part of the legislation.
121

 The JCHR concurred, saying that it was a 

‗simple‘ remedy to a ‗straightforward legal problem‘.
122

 

 

14.  SMITH V SCOTT [2007] CSIH 9, 2007 SC 345 
 

This case concerned the incapacity of convicted prisoners to vote pursuant 

to s 3 of the Representation of the People Act 1983, which relevantly provides 

as follows: 

 

―A convicted person during the time that he is detained in a penal 

institution in pursuance of his sentence…is legally incapable of voting 

at any parliamentary or local government election.‖ 

 

On 6 October 2005, the ECtHR held in Hirst v United Kingdom (No 2)
123

 

that s 3 violated article 3 of the First Protocol to the Convention. Article 3 

provides as follows: 

 

―The High Contracting Parties undertake to hold free elections at 

reasonable intervals by secret ballot, under conditions which will 

                                                      
120

 Criminal Justice and Immigration Bill 2007 (UK) cl 15.  
121

 PBC Deb 21 November 2007, vol 467, col 355-363. 
122

 Joint Committee on Human Rights, Thirty First Report (2008) [107]. 
123

 (2006) 42 EHRR 41. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

74 

ensure the free expression of the opinion of the people in the choice of 

the legislature.‖ 

 

For present purposes it is important to note that the ECtHR has interpreted 

article 3 as conferring individual suffrage rights and has held that the 

undertaking given by the High Contracting Parties (which obviously includes 

the United Kingdom) obliges them to take positive steps to guarantee those 

rights.
124

 

On 2 February 2006, the British government indicated that, as a result of 

the Hirst decision, it would undertake a public consultation in relation to 

prisoners' voting rights.
125

 

On 14 February 2006, the Registration Appeal Court (in effect, the 

Scottish Court of Session) first began to hear Mr Smith‘s appeal. Mr Smith 

was a convicted drug dealer whose application to be included in the register of 

electors had been refused pursuant to s 3 of the Representation of the People 

Act 1983. The time allocated for the appeal was insufficient and it was 

adjourned to a later date. 

On 14 December 2006, the Department of Constitutional Affairs 

published a consultation document, which set out the principles of prisoner 

enfranchisement and the options available to the United Kingdom.
126

 

On 11 January 2007, the Registration Appeal Court reconvened for the 

final time on Mr Smith‘s appeal. During the course of the appeal, counsel for 

the Secretary of State for Scotland informed the court that the Secretary of 

State fully accepted the Hirst decision.
127

 The Secretary of State submitted 

that a declaration was unnecessary as the government was already aware that s 

3 was not Convention-compliant and action was being taken to remedy that 

situation.
128

 

On 24 January 2007, the court delivered its judgment in which it noted 

that, although the government had published its consultation document, the 

issue of prisoners‘ voting rights had not been resolved despite having been in 

                                                      
124

 Sophie Briant, ‗Dialogue, Diplomacy and Defiance: Prisoners‘ Voting Rights at 

Home and in Strasbourg‘ [2011] EHRLR 243, 244 citing Mathieu-Mohin and 

Clerfayt v Belgium (Series A no. 113), judgment of 2 March 1987, 22-23.  
125

 Smith v Scott 2007 SC 345, 360-361. 
126

 Steve Foster, ‗The Long and Winding Road: the Battle for the Prisoner‘s Right to 

Vote‘ (2011) 16(1) Cov LJ 19, 21 citing Department of Constitutional Affairs (UK), 

‗Voting Rights of Convicted Prisoners Detained Within the United Kingdom – The 

UK Government‘s Response to the Grand Chamber of the European Court of Human 

Rights‘ Judgment in Hirst v United Kingdom‘ CP29/06 (2006). 
127

 Smith v Scott 2007 SC 345, 349. 
128

 Ibid 364. 



THE DENNING LAW JOURNAL 
 

 

 

75 

the public arena for a long time.
129

 In those circumstances and in light of the 

fact that the Scottish parliamentary election would be held in May 2007, the 

court decided that it would make a declaration that s 3 was incompatible with 

article 3 of the First Protocol to the Convention.
130

 

The declaration of the Scottish court produced no response in the British 

parliament.  

On 27 March 2007, the Lord Chancellor, Lord Falconer, informed the 

JCHR that the government did not believe that the declaration required urgent 

action because the judgment did not establish any new principle beyond that 

established in Hirst. The Lord Chancellor also noted that the government‘s 

consultation process was still underway.
131

 

Thereafter, it is fair to say that the Labour government relied upon the 

consultation process to delay law reform on the topic for the remainder of its 

time in office.
132

 The new Conservative/Liberal Democrat government, 

elected in May 2010, had no real desire to amend the law either. The 

politically popular view was enunciated by Prime Minister David Cameron in 

November 2010: ‗Frankly, when people commit a crime and go to prison, 

they should lose their rights, including the right to vote‘.
133

 

Eventually, the issue came before the ECtHR again in Scoppola v Italy 

(No 3)
134

, a case concerning prisoner voting rights in which the United 

Kingdom was given leave to intervene. The United Kingdom submitted that 

the findings in Hirst were wrong and that the ECtHR should revisit its 

decision.
135

 On 22 May 2012, the ECtHR rejected that submission and 

reaffirmed the principles set down in Hirst.
136

 

The result of Scoppola was that the United Kingdom government was 

required to provide the ECtHR with proposals that satisfied article 3 of the 

First Protocol within 6 months of the judgment.
137

 

On 22 November 2012, the British government published the Voting 

Eligibility (Prisoners) Draft Bill and announced it would be considered by a 

joint committee of both houses of parliament. The draft bill set out 3 different 

potential approaches for the committee to consider. The first would enable 

                                                      
129

 Ibid 364-365. 
130

 Ibid 365. 
131

 Joint Committee on Human Rights, Sixteenth Report (2007), app 13. 
132

 Colin Murray, ‗Playing for Time: Prisoner Disenfranchisement under the ECHR 

after Hirst v United Kingdom‘ (2011) 22 KLJ 309, 310. 
133

 Ibid citing HC Deb 3 November 2010, vol 517, col 921. 
134

 (2013) 56 EHRR 19. 
135

 Ibid 677. 
136

 Ibid 681. 
137

 Steve Foster, ‗Prisoners‘ voting rights and the ECHR: still hazy after all these 

years‘ (2012) 17(1) Cov LJ 75, 80. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

76 

prisoners sentenced to less than 4 years to vote. The second would limit the 

vote to prisoners sentenced to 6 months or less. The third approach would 

continue the ban on prisoner voting.
138

  

As at today‘s date, the joint committee has not been appointed, the issue 

has not been resolved and there is still much drama to be played out. Prime 

Minister Cameron has stated very clearly that prisoners will not get the vote 

under his government.
139

 The Labour Party has proclaimed its opposition to 

prisoner enfranchisement too.
140

 The current Home Secretary, Theresa May, 

has indicated that the next Conservative government will scrap the HRA and 

may leave the Convention altogether.
141

 Against this backdrop, it has been 

reported
142

 that the UK Supreme Court will hear an appeal in June 2013 by a 

convicted murderer, George McGeoch, who has not been allowed to add his 

name to the electoral register.
143

    

Whatever the eventual outcome, it seems fairly clear that the declaration 

in Smith did not result in an exchange of views between parliament and the 

judiciary about the voting rights of prisoners. Due to the decision in Hirst, 

consideration of that issue was well underway by the time the judgment in 

Smith was handed down. Furthermore, there was no parliamentary response to 

the declaration. It was not a case of parliament considering and then rejecting 

the Registration Appeal Court‘s opinion: it was more or less ignored. 

Parliament‘s failure to respond to the declaration in Smith raises some 

interesting implications for dialogue theory. It is evidence that a declaration 

might not have the practical effect of compelling parliament to comply with 

the views of the judiciary. How could parliament ignore the declaration in 

                                                      
138

 HC Deb 22 November 2012, vol 553, col 746 (Chris Grayling).  
139

 Graeme Wilson, ‗Prisoners won‘t get the Vote, says PM‘ The Sun (London) 25 

October 2012. 
140

 In response to the announcement of 22 November 2012, the shadow Justice 

Minister, Sadiq Khan, revealed that the Labour government‘s assurances to the 

Registration Appeal Court in Smith v Scott may not have been entirely accurate: ‗The 

Labour government disagreed with the Court‘s decision [in Hirst]. It is not, and never 

has been, Labour‘s position to give prisoners the vote. That is why we appealed the 

decision and continued to challenge it until we lost office‘: see HC Deb (n 138) col 

747. 
141

 Theresa May, ‗Victory 2015‘ (speech delivered to Conservative Home conference, 

London, 9 March 2013).  
142

 Owen Bowcott, ‗Britain ‗painted itself into a corner‘ on prisoner votes: Human 

Rights Chief says UK is setting bad example‘ The Guardian (London) 16 July 2012; 

Owen Bowcott, ‗Judge defends court role over terror suspects: Ministers and supreme 

court chief at odds over use of human rights laws‘ The Guardian (London) 5 March 

2013. 
143

 McGeoch v Lord President of the Council [2011] CSIH 67, 2012 SC 410. 



THE DENNING LAW JOURNAL 
 

 

 

77 

Smith yet be forced to comply with the ruling in Belmarsh? The answer 

probably lies in the different circumstances surrounding the two cases:  

 

a) Previous ECtHR decision. By the time Smith was handed down, 
parliament was already dealing with the binding decision of the 

ECtHR in Hirst. Smith was merely a non-binding (in the strict legal 

sense) affirmation of Hirst. By contrast, Belmarsh was the sole 

judicial authority as to whether the government‘s detention scheme 

was compatible with human rights. 

 

b) Public support for the legislation in question. The enfranchisement of 
prisoners had almost no popular support. By contrast, the detention 

system introduced by the Anti-terrorism, Crime and Security Act 2001 

was controversial and many people supported its abolition. 

 

c) Public awareness of the declaration. The Belmarsh decision was 
highly-publicised in the media. By contrast, Smith was a relatively 

obscure decision of a Scottish court. 

 

d) Public respect for the declaration. Belmarsh was a ruling of the 
highest court in the United Kingdom. By contrast, the Registration 

Appeal Court in Smith effectively followed a previous ruling of an 

unpopular European court. 

 

Taken together, these factors probably made it relatively easier, from a 

political standpoint, for the government to effectively disregard Smith as 

compared to Belmarsh.  

As noted above, at present it is unclear as to whether parliament will 

eventually give some prisoners the right to vote. A decision by the Supreme 

Court in Mr McGeoch‘s favour may force parliament‘s hand, much as the 

declaration in Belmarsh did.
144

 The issue of prisoner enfranchisement may 

end up playing a decisive role, not only in determining whether parliament 

can have the final say under the HRA, but in the very future of that Act.    

 

                                                      
144

 If the decision by the Court of Appeal in R (Chester) v Secretary of State for 

Justice [2010] EWCA Civ 1439, [2011] 1 WLR 1436 is any indicator, it is unlikely 

that the Supreme Court will press the government. In Chester, the appellant sought 

the same declaration as was granted in Smith. In dismissing the appeal, the Court of 

Appeal noted that the government‘s choices were ‗delicate‘, ‗difficult‘ and ‗a political 

responsibility‘: see Chester [2011] 1 WLR 1436, 1449. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

78 

15.  R (BAIAI) V SECRETARY OF STATE FOR THE HOME 
DEPARTMENT (NOS 1 AND 2) [2008] UKHL 53, [2009] 1 AC 287 

 

In the United Kingdom, non-European Economic Area nationals are 

subject to immigration control and require leave to enter or remain in the 

country. Section 19 of the Asylum and Immigration (Treatment of Claimants, 

etc) Act 2004, together with the Immigration (Procedure for Marriage) 

Regulations 2005, introduced a regime under which non-EEA nationals had to 

apply to the Home Secretary for a certificate of approval to marry if they 

wished to enter into a marriage otherwise than in accordance with the rites of 

the Church of England. The Home Secretary‘s policy was that, in order to 

obtain a certificate, an applicant had to have valid leave to enter or remain in 

the United Kingdom for more than six months (and more than three months of 

that leave had to be unexpired at the time of the application), or exceptionally 

compelling compassionate grounds.  

The claimants were refused certificates. They sought judicial review and a 

declaration of incompatibility on the grounds that the s 19 regime and the 

Home Secretary‘s policy were incompatible with the right to marry protected 

by article 12 of the Convention. The Home Secretary maintained that the 

regime was necessary in order to avoid the abuse of immigration rights by 

marriages of convenience. 

The Judicial Committee of the House of Lords found that the conditions 

set out in the Home Secretary‘s policy, though relevant to immigration status, 

had no relevance to the genuineness of a proposed marriage, which was the 

only relevant criterion for determining whether permission should be given. 

Their Lordships held that, since the effect of the policy, subject to the 

discretionary compassionate exception, was to impose a blanket prohibition 

on exercise of the right to marry by all those within the specified categories 

irrespective of whether the parties' proposed marriages were ones of 

convenience, the scheme represented a disproportionate interference with the 

right to marry. The scheme violated article 12 to that extent and a declaration 

was made accordingly. 

The certificate of approval scheme was abolished by the Asylum and 

Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2011. 

The Order was approved by the House of Commons without debate.
145

 In the 

House of Lords, the Minister of State for Security and Counter Terrorism, 

Baroness Neville-Jones, moved that the Order be approved, stating: 

 

                                                      
145

 HC Deb 30 March 2011, vol 526, col 485. 



THE DENNING LAW JOURNAL 
 

 

 

79 

―The Government want to bring this order into force subject to your 

Lordships' agreement. We are doing so for two reasons. First, the 

domestic courts have declared that the scheme is incompatible with 

the European Convention on Human Rights. Abolishing the scheme 

will remove this incompatibility. Secondly, changes made following 

rulings from the domestic courts have weakened the scheme and the 

Government do not consider it any longer to be an effective method of 

dealing with sham marriages.‖
146

 

 

Lord Avebury indicated that the Liberal Democrat Party welcomed the 

Order.
147

 Lord Rosser signalled that the Labour Party also supported the Order 

‗in light of the court judgments‘ but stated that he had a number of concerns 

about whether the government could continue to restrict sham marriages.
148

 In 

response to Lord Rosser, Baroness Neville-Jones declared that: 

 

―Although there is some anxiety in the House, which I share, about 

our ability to control the situation, we will be monitoring it carefully 

and making our best efforts to ensure that [the sham marriage] route is 

not used. I hope that the House will feel it necessary to abolish the 

scheme and, on the basis of the Government putting in place the best 

methods that we can to control this, approve the order.‖
149

 

 

The House of Lords duly approved the Order. 

As all sides of British politics appeared to accept that the abolition of the 

certificate of approval scheme was necessary, Baiai may very well have 

produced a real exchange of views about human rights between the judiciary 

and parliament. 

 

16.  R (WRIGHT) V SECRETARY OF STATE FOR HEALTH [2009] 
UKHL 3, [2009] 1 AC 739 

 

The claimants were care workers who were referred to the Health 

Secretary under s 82(1) of the Care Standards Act 2000, which made 

provision for keeping a list of people considered unsuitable to work with 

vulnerable adults. Pending the determination of each reference, the Health 

Secretary provisionally included the claimants' names in the list pursuant to s 

82(4)(b), which made no provision for first according them a hearing.   

                                                      
146

 HL Deb 4 April 2011, vol 726, col 1603. 
147

 Ibid col 1605. 
148

 Ibid col 1607-1608. 
149

 Ibid col 1612. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

80 

The Judicial Committee of the House of Lords held that, given the 

possibility that provisional listing under s 82(4)(b) could result in irreparable 

damage to a person's employment or prospects of employment in the care 

sector, the denial of an opportunity to answer allegations before being listed 

meant that s 82(4)(b) contravened the right to a fair hearing under article 6(1) 

of the Convention. The House of Lords further held that the listing of a person 

on suspicion of such serious misconduct as to indicate that he or she posed a 

risk to vulnerable adults could result in stigma so great as to constitute an 

interference with the right to respect for private life under article 8 of the 

Convention. Accordingly, their Lordships made a declaration that s 82(4) was 

incompatible with articles 6 and 8 of the Convention. 

The day before the judgment was handed down, the government 

announced that the Independent Safeguarding Authority (ISA) had assumed 

full responsibility for deciding whether a person should be barred from 

working with children and vulnerable adults.
150

 This new barring system was 

a completely different system to that considered in Wright. Indeed, the 

existence of the new scheme was referred to in the judgment but the Law 

Lords noted that they had ‗not heard argument upon whether or not that 

scheme is compatible with the Convention rights as the question does not 

arise on these appeals‘.
151

  

The new vetting and barring system was established in response to 

findings of the Bichard Inquiry, which had been set up in 2004 following the 

conviction of Ian Huntley, a school caretaker, for the murders of two 

schoolgirls.
152

 The Inquiry report recommended, amongst other things, that a 

registration scheme should be established for those wishing to work with 

children or vulnerable adults. The Safeguarding Vulnerable Groups Act 2006 

provided for such a scheme, maintained by the ISA.
153

 

In short, the abolition of the old scheme and the introduction of the new 

vetting and barring scheme were not instigated by the declaration in Wright.  

 

17.  R (F AND THOMPSON) V SECRETARY OF STATE FOR THE 
HOME DEPARTMENT [2010] UKSC 17, [2011] 1 AC 331 

 

The claimants were sex offenders. By virtue of the nature of their offences 

and the length of their sentences, they became automatically subject for an 

                                                      
150

 HC Deb 20 January 2009, vol 486, col 23WS. 
151

 [2009] 1 AC 739, 755. 
152

 After Mr Huntley was convicted, it was revealed that, although he had been 

investigated for sexual offences, he had been able to work at a school because none of 

those investigations had resulted in a conviction. 
153

 Explanatory Notes to the Protection of Freedoms Act 2012 (UK), 11. 



THE DENNING LAW JOURNAL 
 

 

 

81 

indefinite period to the notification requirements in ss 82 – 86 of the Sexual 

Offences Act 2003. By these requirements, an offender has to inform the 

police of certain personal details and by the Sexual Offences Act 2003 (Travel 

Notification Requirements) Regulations 2004, made pursuant to s 86, an 

offender has to inform the police of the details of foreign travel plans. These 

notification requirements are what are known colloquially as the ‗sex 

offenders register‘.
154

  

The Divisional Court of the Queen's Bench Division made a declaration 

that the absence of any mechanism for review of the notification requirements 

in the 2003 Act was a disproportionate interference with the right to respect 

for private and family life guaranteed by article 8 of the Convention.
155

 On 

appeal, the decision was upheld by the Court of Appeal
156

 and the Supreme 

Court. 

The Supreme Court‘s judgment was handed down on 21 April 2010. The 

government‘s response took some time to develop but, when it came, it was 

ferocious. 

On 16 February 2011, the Home Secretary, Ms May, made a statement in 

the House of Commons in which she declared that the government was 

‗disappointed and appalled‘ by the decision in F and Thompson. She 

proclaimed that the government would make the ‗minimum possible changes 

to the law in order to comply with the ruling‘.
157

 

Prime Minister Cameron also declared that he was ‗appalled‘ by the 

decision, stating how ‗completely offensive‘ it was to ‗once again…have a 

ruling by a court that flies in the face of common sense‘.
158

 

Interestingly, the Home Secretary asserted that: 

 

―I would far rather not have to stand here saying that we have to make 

a change to the sex offenders register, but we do have to make a 

change.‖
159

 

 

                                                      
154

 Terry Thomas and David Thompson, ‗Applications to Come off the UK Sex 

Offender Register: the Position After F and Thompson v. Home Office 2010‘ (2012) 

51(3) Howard Journal 274 at 274. 
155

 [2008] EWHC 3170, [2009] 2 Cr App R (S) 47. 
156

 [2009] EWCA Civ 792, [2010] 1 All ER 1024. 
157

 HC Deb 16 February 2011, vol 523, col 959. 
158

 Ibid col 955. Other government members also voiced their displeasure with F and 

Thompson: see ‗MP slams sex offender ruling‘ Essex Chronicle (Chelmsford), 24 

February 2011; ‗PM ―appalled‖ by ruling on sex register‘ Coventry Telegraph (UK), 

17 February 2011. 
159

 HC Deb (n 157) col 961. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

82 

After this assertion was made, Labour MP Jack Straw put the following 

proposition to Ms May: 

 

―[Will] she confirm that under section 4 of the Human Rights Act 

1998 there is absolutely no obligation on her or the House to change 

the law one bit? All the Court did was to issue a declaration of 

incompatibility and section 4 makes it absolutely clear that any 

decision following that is a matter for the sovereign Parliament. It 

would be entirely lawful for the House and her to say that the existing 

regime will continue without any amendment.‖
160

 

 

The Home Secretary responded to that proposition in the following terms: 

 

―The right hon. Gentleman makes a point about the application of the 

Human Rights Act and the European convention on human rights and 

about Parliament having the final decision about what should happen. 

In this case, Parliament will have the final decision on what 

happens.‖
161

 

 

It is probably fair to say that the Home Secretary fudged the issue. If she 

had been willing to answer the question directly, her answer may have been 

along the following lines, ‗It is politically easier for the government to blame 

the judiciary and make minor changes to the legislation than it is to leave the 

legislation as it stands and provoke a constitutional crisis‘.
162

  

Of course, there may very well have been other reasons why the 

government thought it necessary to amend the legislation. When the amending 

instrument was eventually placed before parliament (the Sexual Offences Act 

2003 (Remedial) Order 2012), the Conservative peer, Baroness Stowell of 

Beeston, stated that: 

 

―Our constitutional arrangements are such that when the highest court 

of the land identifies an incompatibility with the European Convention 

on Human Rights, the Government of the day, whoever is in power, 

take remedial action. This is for various reasons, not the least of which 

is to ensure that the Government are not left vulnerable to further legal 

                                                      
160

 Ibid col 963. 
161

 Ibid col 963. 
162

 In this context, see Vernon Bogdanor, ‗Who decides when MPs and courts 

collide?: Britain is fast approach a crisis of authority that only a written constitution 

can resolve‘ The Times (London), 25 May 2011, 22. 



THE DENNING LAW JOURNAL 
 

 

 

83 

proceedings, potentially involving millions of pounds of taxpayers‘ 

money.‖
163

 

 

In other words, the threat of proceedings in the ECtHR (which the 

government clearly could not win) was a powerful incentive to amend the 

legislation. 

The Sexual Offences Act 2003 (Remedial) Order 2012 enabled sex 

offenders to apply to the police for a review of whether their notification 

requirements should cease. The application could only be made once a fixed 

period of time had expired following the offender‘s release from custody: for 

adults this period was 15 years and for children it was 8 years. Offenders 

could appeal from the police decision to the magistrates‘ court but the onus 

would be on them to demonstrate that they no longer posed a risk to the 

community. 

It is unclear whether this new policy was a distortion of the old (that is, 

less effective but more easily defensible before the courts).
164

 The Labour 

Party certainly had serious reservations about the costs involved in allowing 

offenders to apply for a review and the risk to the community in permitting 

offenders to come off the register. They refused to support the new policy.
165

 

Unfortunately, sex offences committed by persons released from the register 

will be a prerequisite to determining whether the Labour Party‘s stance was 

correct.  

It is possible that the government‘s rage over F and Thompson was merely 

confected. The outbursts from the Prime Minister and the Home Secretary 

occurred well after the decision was handed down. The government did, of 

course, theoretically have the power to ignore F and Thompson and the Home 

Secretary did concede that parliament would make the final decision on the 

appropriate policy. If the government had chosen not to amend the legislation, 

the Labour Party may very well have supported that position. 

It seems more likely, however, in light of Ms May‘s subsequent 

declaration that the next Conservative government would scrap the HRA,
166

 

that the frustration expressed by Conservative politicians about F and 

Thompson was genuine. The Conservatives were probably confronted with a 

conundrum similar to that faced by the Labour government after the Anderson 

                                                      
163

 HL Deb 5 July 2012, vol 738, col 875.  
164

 Manfredi and Kelly (n 107) 522. 
165

 HL Deb (n 163) col 879-883 (Baroness Smith). See also the comments of Diana 

Johnson in HC Deb, Eighth Delegated Legislation Committee Debates, 19 June 2012. 

<http://www.publications.parliament.uk/pa/cm201213/cmgeneral/deleg8/120619/120

619s01.htm>. 
166

 May (n 141). 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

84 

decision. They did not want to afford criminals additional rights but, by the 

same token, they did not want to come into direct conflict with the highest 

court in the nation. Ignoring the declaration would simply mean that the 

matter would be taken to the ECtHR where the government would inevitably 

lose.  

There may have been another factor that influenced the policy outcome: 

the fact that the government was a coalition between the Conservative Party 

and the Liberal Democrat Party. The Liberal Democrats were probably much 

more inclined to accept that the government should follow the Supreme 

Court‘s ruling than many Conservatives were.
167

 Amendment of the 

legislation may have been a price that Conservatives such as the Prime 

Minister and the Home Secretary were willing to pay in order to keep the 

coalition intact.   

The making of the Sexual Offences Act 2003 (Remedial) Order 2012 was 

about raw politics; it had little to do with principle. Neither the Conservative 

Party nor the Labour Party really thought that allowing sex offenders an 

opportunity to come off the register was a good idea. It would be far-fetched 

to describe the process as having involved a genuine exchange of opinions 

about rights. Like Anderson, if there was any flow of information, it was 

closer to a monologue, judges doing the talking and legislatures the listening, 

than a dialogue. 

 

18.  R (ROYAL COLLEGE OF NURSING) V SECRETARY OF 
STATE FOR THE HOME DEPARTMENT [2010] EWHC 2761 

(ADMIN); [2011] PTSR 1193 
 

The Safeguarding Vulnerable Groups Act 2006 provided for a registration 

scheme for those wishing to work with children or vulnerable adults, which 

was maintained by the ISA.  

Under the scheme, persons convicted of or cautioned for a serious sexual 

offence would be placed on the barred lists with no opportunity to make 

representations as to why their inclusion might be unwarranted.
168

 Pursuant to 

                                                      
167

 See eg Libby Brooks, ‗This is not the way to keep us safe from sex offenders: 

David Cameron's ―stand against paedophiles‖ is more to do with ditching the Human 

Rights Act than protecting victims‘ The Guardian (London), 18 February 2011; 

Allegra Stratton, ‗Nick Clegg tells Lib Dems: power means accepting unpopularity: 

More than 1,000 police officers on duty or standby at conference, ready for mass 

protests‘ The Guardian (London), 11 March 2011; see also the comments of the 

Liberal Democrat peer, Lord Lester: HL Deb 5 July 2012, vol 738, col 884-6. 
168

 See Ralph Sandland ‗Policing Care in the House of Lords‘ [2009] J Mental Health 

L 171, 174-175. 



THE DENNING LAW JOURNAL 
 

 

 

85 

paragraph 8 of Schedule 3 to the Act (when read with the regulations
169

), 

persons convicted of or cautioned for specified offences that were less grave 

than the aforementioned serious sexual offences would also be automatically 

placed on the barred lists but had the right to make representations as to why 

they should be removed. It is the latter category with which the Royal College 

of Nursing case was concerned. 

The facts of Royal College of Nursing were that the ISA placed the second 

to fourth claimant nurses on the barred lists after having been informed that 

they had been cautioned for relatively minor offences. Their names were 

subsequently removed but the nurses suffered a significant loss of wages 

during the periods when they had been unable to work. The first claimant, a 

body representing the interests of the nursing profession, and the nurses 

challenged the lawfulness of the scheme. 

On 10 November 2010, Mr Justice Wyn Williams held, after considering 

the decision in Wright, that the nurses‘ inability to make representations in 

advance of listing was a breach of article 6 of the Convention. His Honour 

also found that the scheme gave rise to potential breaches of article 8. 

Accordingly, his Honour declared that paragraph 8 of Schedule 3 to the Act 

was incompatible with articles 6 and 8 of the Convention. 

By the time that the case was argued before Mr Justice Wyn Williams, the 

new Conservative/Liberal Democrat government had already announced that 

the vetting and barring scheme would be reviewed and remodelled.
170

 In the 

review report dated February 2011, the government stated: 

 

―Following a recent judicial review brought by the Royal College of 

Nurses, the ―autobar with representations‖ element of the scheme has 

been found by the courts not to be compatible with human rights 

obligations, to the extent that a person is barred before having any 

opportunity to make representations against the decision. This 

decision has been accepted by Ministers and it follows that this 

process must be changed in any new scheme.‖
171

 

 

The process was changed by s 67 of the Protection of Freedoms Act 2012. 

Under the new process, the ISA was required to seek representations from an 

                                                      
169

 Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and 

Miscellaneous Provisions) Regulations 2009 (UK), sch (reg 6 and para 4). 
170

 Explanatory Notes to the Protection of Freedoms Act 2012 (UK), 11. Mr Justice 

Wyn Williams referred to the review in the course of his judgment: [2011] PTSR 

1193, 1228. 
171

 Home Office (UK), Vetting and Barring Scheme Remodelling Review – Report 

and Recommendations, 11 February 2011, 25. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

86 

individual who had committed one of those specified offences less grave than 

a serious sexual offence prior to reaching a decision on whether to place that 

person on the barred lists. If no representations were received within the 

prescribed time period, the ISA was required to place the individual on the 

lists. 

The need to amend the Act was, as the review report indicated, accepted 

by the government. The new process was uncontroversial and proceeded 

unchallenged through parliament.
172

 Accordingly, it can be concluded that 

Royal College of Nursing probably did result in an exchange of views about 

rights between the judiciary and parliament pursuant to which policy may 

very well have been constructively amended. 

 

19.  CONCLUSIONS  
 

Of the 18 cases in which declarations of incompatibility have been 

finalised, 17 have resulted in change to legislation for one reason or another. 

The only case in which the making of a declaration of incompatibility 

pursuant to s 4 of the HRA has not resulted in legislative change is Smith v 

Scott. The issue of whether prisoners will get the vote should be decided, at 

the latest, by the outcome of the 2015 general election. That election is also 

likely to be critical in determining the future of the HRA.  

Of the 17 cases resulting in legislative change, it could only rightly be 

argued that 8 of them involved a process of ‗dialogue‘ between the courts, 

parliament and the executive (that is, there was an exchange of ideas about 

human rights pursuant to which policy goals were revised, but not blocked, 

following the judicial decision): 

 

 R (H) v London North and East Region Mental Health Review Tribunal 

 International Transport Roth GmbH v Secretary of State for the Home 
Department 

 R (D) v Secretary of State for the Home Department 

 R (Morris) v Westminster City Council (No 3) 

 R (Gabaj) v First Secretary of State 

 R (Clift) v Secretary of State for the Home Department 

 R (Baiai) v Secretary of State for the Home Department (Nos 1 and 2) 

 R (Royal College of Nursing) v Secretary of State for the Home Department 
 

                                                      
172

 The reading debates can be found at HC Deb 1 March 2011, vol 524, col 205-271; 

HC Deb 11 October 2011, vol 533, col 281-301; HL Deb 8 November 2011, vol 732, 

col 167-228; HL Deb, 12 March 2012, vol 736, col 15-69. 



THE DENNING LAW JOURNAL 
 

 

 

87 

Of those 8 cases, 2 dealt with the exactly the same statutory provision: 

Morris and Gabaj. It should also be noted that the declaration in D had no real 

effect because the new legislation simply accorded with what the 

government‘s practice had always been. 

It could not be rightly argued that the other 9 cases involved a process of 

‗dialogue‘. 

In 6 of those 9 cases, the process of amending the impugned legislation 

was well underway, or indeed completed, by the time the court made the 

declaration of incompatibility: 

 

 Re an Application for Judicial Review by McR 

 Blood and Tarbuck v Secretary of State for Health 

 Bellinger v Bellinger 

 R (M) v Secretary of State for Health 

 R (Wilkinson) v Inland Revenue Commissioners 

 R (Wright) v Secretary of State for Health 
 

In these 6 cases, the making of a declaration did not cause the legislative 

change. There could not have been ‗dialogue‘ because the policy goals were 

revised before the judicial decision, not after. 

The remaining 3 cases were the ones that attracted the most public 

interest:  

 

 R (Anderson) v Secretary of State for the Home Department 

 A v Secretary of State for the Home Department (‗Belmarsh‘) 

 R (F and Thompson) v Secretary of State for the Home Department 
 

In each of these 3 cases, the making of the declaration was a direct cause 

of the legislative change that followed. However, in at least 2 cases, Anderson 

and Belmarsh, the government was well aware of the human rights arguments 

against the relevant legislation long before the judicial decision was handed 

down. In all 3 cases (especially in relation to Belmarsh), there is strong 

evidence to support the proposition that the government did not want to 

amend the relevant legislation but was compelled to by the judicial decision. 

Furthermore, in at least 2 cases, Belmarsh and F and Thompson, there is some 

evidence to suggest that the new public policy, forced into place by the 

judicial decision, may be less effective than the old. It seems strained, to say 

the least, to describe as ‗dialogue‘ a process whereby one party knows the 

arguments against its position, does not accept them, receives a ‗signal‘
173

 

                                                      
173

 Young (n 2) 10. 



DIALOGUE AND DECLARATIONS OF INCOMPATIBILITY UNDER 

SECTION 4 OF THE HUMAN RIGHTS ACT 1998 

 

 

88 

from another party that those arguments should be accepted, then complies 

with those arguments even though they disagree with them for perfectly valid 

reasons.
174

 

Whether or not the process is described as ‗dialogue‘, ‗institutional 

interaction‘ or something else is probably irrelevant; what is important is to 

recognise that parliament does not, in reality, have much, if any, freedom to 

disagree with the conclusions of the courts on questions of rights when a 

declaration has been made. This has obvious implications for the traditional 

notion of parliamentary sovereignty in the United Kingdom. As predicted by 

Mark Tushnet, the HRA may very well have escalated into what is effectively 

strong-form judicial review.
175

    

As cases such as R (H) v London North and East Region Mental Health 

Review Tribunal indicate, it is possible that the making of a declaration might 

lead to a constructive modification of public policy (from a rights 

perspective). However, as Belmarsh and F and Thompson suggest, it is also 

possible that declarations might lead to less effective policy. Further research 

in this respect is clearly required, especially in circumstances where 

parliament appears to have at least some capability of dealing with rights 

issues in the absence of ‗signals‘ in the form of s 4 declarations. If the policy 

benefits of ‗dialogue‘ are negligible then the wisdom of revising the long-

established model of responsible government in the United Kingdom might be 

called into question.  

                                                      
174

 See Sales and Ekins (n 15) 230 but cf Alison Young, ‗Is dialogue working under 

the Human Rights Act 1998?‘ [2011] PL 773. 
175

 Mark Tushnet, ‗New Forms of Judicial Review and the Persistence of Rights and 

Democracy-Based Worries‘ (2003) 38 Wake Forest L Rev 813, 836.