Enforcing Laws That Infringe Rights

[2016] Public Law 206-214

13 Pages Posted: 18 Nov 2015 Last revised: 11 Oct 2016

See all articles by Robert Leckey

Robert Leckey

McGill University - Faculty of Law

Date Written: November 17, 2015

Abstract

The United Kingdom’s Human Rights Act 1998 provides that a judicial declaration that legislation is incompatible with rights does not affect the law’s validity and ongoing enforcement. This paper challenges the widespread view by which a judicial determination that a law violates rights, coupled with that law’s continuing operation, gives the HRA a distinctive feature. It does so by reference to the Canadian experience of rights review. Judges applying the Canadian Charter of Rights and Freedoms have developed a practice of delaying declarations that rights-infringing legislation is invalid, despite having the power to strike laws down immediately. In both countries, then, laws infringing rights may remain enforceable. Contrasting judicial postures of constitutional enforcement and legislative engagement emphasize the Canadian shift from immediate orders and emphasize the strength of interpretive remedies in the UK. From the complainant's view, the HRA’s declaration of incompatibility is less distinctive than UK commentators often suppose. The larger message, given the impact of judicial practice, is the need for caution in presuming how rights instruments will operate and in assessing them as “weak” or “strong.”

Keywords: human rights, judicial practice, Human Rights Act 1998, Canadian Charter of Rights and Freedoms, remedies

JEL Classification: K19

Suggested Citation

Leckey, Robert, Enforcing Laws That Infringe Rights (November 17, 2015). [2016] Public Law 206-214. Available at SSRN: https://ssrn.com/abstract=2692201

Robert Leckey (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)

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