[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Aileen Kavanagh reviews Neil Duxbury’s article on Judicial Disapproval as a Constitutional Technique, which appears in the current issue of I•CON. Duxbury’s full article is available for free here.]
—Aileen Kavanagh, University of Oxford
In a fascinating article published in the most recent issue of ICON, Professor Neil Duxbury considers ‘judicial disapproval as a form of non-binding review of the constitutionality of legislation.’ Taking the ‘declaration of incompatibility’ under the UK Human Rights Act 1998 (HRA) as the epitome of such a ‘judicial disapproval’ technique, Professor Duxbury shows that the idea of giving courts a formal power to declare legislation incompatible with rights (without allowing them to invalidate such laws) has an older vintage than we might have assumed. Not only was the idea of a non-binding declaratory power mooted during the drafting history of the European Convention of Human Rights, Duxbury documents how similar ideas were given some credence in American constitutional thinking during the Revolutionary era and the early Republic. Of course, the fact that this idea was mooted – but ultimately rejected – in these other contexts, may shore up the claim made by Stephen Gardbaum and others that the declaration of incompatibility is something of a constitutional novelty in the late 20th century – not as an idea or theoretical proposal, but as an innovation in constitutional design which was realised in practice. Either way, Duxbury’s nuanced historical picture repays further reading, and is a salutary reminder that there is a lot to learn from looking back, as we try to make sense of the present moving forward.
In this blog post, I want to pick up on some of the analytical or evaluative issues which arise from the intriguing idea of judicial disapproval as a constitutional technique. Duxbury describes judicial disapproval ‘as a form of non-binding review of the constitutionality of legislation’. It arises when courts have the formal power to declare or ‘alert’ or ‘prompt’ or point out to the legislature that an enacted law is incompatible with a right. The crucial point for Duxbury is that ‘disapproval is emphatically not repudiation’. Throughout the article, Duxbury contrasts ‘judicial disapproval’ with judicial invalidation or ‘judicial override’ of legislation on the other. As he puts it, when courts have the power to ‘disapprove’, they do not ‘control unreasonable laws by nullifying them, but rather do so by helping parliament to see when its laws ought to be repealed or altered’. Declaration is not invalidation.
Now, you might say that ‘alerting’ someone to a problem is very different from ‘disapproval’. ‘Alerting’ simply means pointing something out, giving someone information or reminding them of something they may have forgotten. ‘Disapproval’, on the other hand, has stronger, more negative connotations. Indeed, you might say that whether a judge approves or disapproves of legislation is neither here nor there. Their job is to come to a conclusion on whether a statute complies with rights and to give a fully reasoned judgment to support that conclusion. Duxbury is aware of this. Therefore, he clarifies that by using the term ‘judicial disapproval’ he ‘does not mean that a court must be commenting negatively on a law that falls short’. Most likely, the court will be ‘stating a fact about compatibility’, or at least stating their own view on that issue. As such, Duxbury is using the term ‘disapproval’ as a term of art somewhat detached from our colloquial understanding of the term. When he talks of ‘disapproval’, he simply means a judicial power to issue a formal declaration which alerts the legislature to a possible rights-violation. It may prompt the legislature to amend the law, but does not compel it to comply. Judges may ‘disapprove’ of the law in this specialised sense, but they may not disapply it.
Although Duxbury’s article is almost exclusively focused on the UK declarations, he occasionally suggests a broader understanding of disapproval. In one footnote, he intimates that advisory opinions could be viewed as instances of ‘judicial disapproval’. At the end of the article, he suggests that the familiar common law presumption that legislation should be read compatibly with rights, could also be viewed as a form of judicial disapproval. Indeed, if the category is defined as any non-binding judicial statement which alerts the legislature to the possible unconstitutionality of a particular legislative provision (or alert the legislature to its possible unconstitutionality), obiter dicta would seem to provide a good example of ‘judicial disapproval’. This is a familiar technique employed by many courts across the world, where they find legislation to be compliant with rights, whilst simultaneously signalling their worries and reservations about that the law to the legislature in obiter dicta. US courts have been known to raise a constitutional warning flag, or otherwise to engage in various forms of advisory or admonitory review. And the US is not alone. In many systems where judges possess the strike-down power, they nonetheless use such prompting devices alongside – and sometimes instead of – the more blunt tool of invalidation. Duxbury does not mention such techniques as an instance of the phenomenon he describes, but it seems to me that they could be included.
We can now concentrate on Duxbury’s particular focus in this article, namely, the idea of judges vetting legislation for constitutionality without the power to invalidate or override or strike it down. In this blogpost, I want to make the following five points. First, when we examine the constitutional practice surrounding the declaration of incompatibility in the UK since 1998, it seems as if the key political and legal actors do not perceive the declaration as an instance of mere disapproval, but rather as an authoritative statement of what the law requires which places the government and Parliament under a general (though not absolute) obligation to change to the law. If we want to stick with the disapproval metaphor, I would call this ‘disapproval with bite’. Second, the legislative history surrounding the enactment of the declaration of incompatibility supports the view that the UK Government envisaged a regular practice of compliance with the declarations. In other words, it was enacted in the expectation that it would have considerable bite – an expectation which has been borne out in practice. Third, the various types of obligation and pressure which come to bear on the UK government and Parliament when the courts issue a declaration of incompatibility narrows the distinction between declaration and invalidation. Though these tools are not identical by any means, they can operate in a similar way, producing similar – if not identical – effects in many cases. Fourth, I will argue that viewing the declaration of incompatibility as ‘disapproval with bite’ helps to illuminate and explain the Nicklinson case, which is the UK’s leading case on assisted suicide. Finally, I will conclude with some comments that the well-known 1997 New York Times editorial on the Human Rights Act, referred to by Duxbury, overlooks. In my view, the New York Times took the declaration of incompatibility to be a form of mere disapproval and, in doing so, it missed out on the constitutional norms which underpin the workings of this mechanism. Understood in this broader constitutional context, the declaration looks different. It has more bite – as intended – and therefore, the dangers that editorial alludes to are exaggerated.
Let’s start with a brief overview of how the declaration of incompatibility functions in British legal and political practice. As noted above, the HRA explicitly states that when the courts issue such a declaration of incompatibility, this has no impact on the validity of the impugned measure, and Parliament is under no legal duty to comply with it. In this sense, the declaration matches Duxbury’s definition of disapproval as ‘emphatically not repudiation’. But as is well-known, there is a near-perfect rate of compliance with declarations of incompatibility in the UK, with no example to date of legislation enacted explicitly to defy or counter or neuter a declaration. In almost every single case in which such a declaration has been issued, Parliament and/or the Executive have eventually either repealed the impugned legislation or amended it to satisfy the declaration of the courts. The only possible exception to this almost uniform pattern of compliance is the prisoner voting issue, where the UK Government has done nothing to implement a Strasbourg ruling declaring the UK’s ban on prisoner voting to violate the Convention. I have discussed the peculiarities of the prisoner voting issue elsewhere, and there is no need to reiterate those points here. Suffice it to say that the prisoner voting saga is very much the exception, not the rule. The prevailing practice over the last 17 years is one of legislative compliance not defiance.
How do we account for the near-perfect rate of compliance? To put it in Duxbury’s terms, why is judicial disapproval carrying so much weight? One possibility is that the government and legislature just happen to agree with every declaration of incompatibility which has been made. Recent empirical work on the legislative response to declarations of incompatibility has revealed that this is true for some – though not all – declarations issued to date. They have concerned uncontroversial issues on which the Government and Parliament had no inclination to defy. Duxbury offers an alternative hypothesis, namely, that the near-perfect rate of compliance is due to the prohibitively high political costs of not complying with a judicial declaration. Duxbury conjectures that once the court expresses its disapproval, this gives the legislature ‘the status of human rights contravener’ – a tainted status which is bad politics even for a government with a strong majority, and virtually unthinkable for a government with a more fragile political support base. The ‘political costs’ of countering a declaration of incompatibility is one of the most common explanations advanced in the literature for the near-perfect rate of legislative compliance with judicial declarations under the HRA. There is no doubt that such costs exist, that they are potentially substantial, and that they tend to bear most heavily on governments with narrow majorities.
But neither the possibility of agreement nor the immense political costs give us the whole picture. Another reason for the high compliance rate is that if the government refuses to amend the legislation in response to a declaration of incompatibility, the aggrieved litigants can take their case to Strasbourg where it is almost inevitable that they will succeed. Therefore, although the declaration is not, in itself, legally binding, it is a means by which the courts can alert Parliament to a binding obligation in international law which the UK – as a signatory to the European Convention – is bound to implement. Indeed, one of the main reasons for enacting the HRA in the first place was precisely to obviate the need for British citizens to have to take their case to Strasbourg, and to avoid the reputational cost to the UK of the then steady pattern of adverse decisions against the UK in Strasbourg.
The upshot is that given the political repercussions of resisting a judicial declaration of incompatibility (both domestically and internationally) and the legal repercussions in the highly likely event of an adverse finding from Strasbourg, the declaration of incompatibility has ‘a much stronger practical force than its legally non-binding status might suggest’. As Mark Tushnet has suggested, the combination of political and legal costs may turn a nominally declaratory power into a power to strike down in all but name. The technique may be different, but the effects it produces are similar. Certainly, if we look at the issue from the point of view of which institution has ‘the last word’ on what rights require – the courts or the legislature – the answer will often be the same in both the US and the UK. The answer is the courts. Whether by invalidation or declaration, the judicial view sticks.
Let’s turn now to my second point about the legislative history surrounding the HRA. Though it is not included in Duxbury’s history of the general idea of constitutional vetting by declaratory means, it is highly relevant to understanding how the key architects of the HRA thought this device would work in practice. When the Human Rights Bill was going through Parliament, many members of the Government stated in parliamentary debate that there would be a strong expectation that Government would generally comply with the declarations. In the House of Lords, the Lord Chancellor (Lord Irvine) stated: “we expect that the government and Parliament will in all cases almost certainly be prompted to change the law following a declaration of incompatibility.” In the House of Commons, the Home Secretary said ‘We expect that, in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention’. In the Second Reading in the House of Lords, Lord Borrie put the point succinctly when he said that ‘the intention of the Bill surely is that government and Parliament will faithfully implement any declaratory judgment made by the High Court’. When questioned on the likely legislative response to declarations of incompatibility under section 4, the Home Secretary (Jack Straw) confirmed that:
In the overwhelming majority of cases, regardless of which party was in government, I think that Ministers would examine the matter and say ‘A declaration of incompatibility has been made and we shall have to accept it. We shall therefore have to remedy the defect in the law spotted by the Judicial Committee of the House of Lords.
Though we should treat statements made in parliamentary debate with some caution, we can nonetheless say with confidence that when the declaratory mechanism was presented in Parliament, it was not portrayed as a mechanism of mere disapproval, but rather an important statement of the higher courts about the rights-compliance of a legislative measure, which the government and legislature were expected to remedy ‘in the overwhelming majority of cases’. This expectation has proved to be correct as a matter of practice.
Let us now turn to the third point concerning the distinction between declaration and invalidation. The combined strength of the various (legal and political) obligations on Parliament to amend legislation to comply with DOIs has led some academic commentators (as well as some judges and political actors) to suggest that although the UK courts are not empowered to strike down legislation, they are “effectively doing so indirectly, given that government would almost certainly want to change the law.” Though in theory hortatory, in practice a declaration of incompatibility resembles “a de facto judicial power to procure the amendment of legislation which unlawfully qualifies fundamental rights” akin to a strike-down power. A former judge of the UK House of Lords suggested extra-curially that the difference between a judicial strike-down power and the declaration of incompatibility is merely “technical,” because “if the courts make a declaration of incompatibility, the political pressure upon the government and Parliament to bring the law into line will be hard to resist.” Certainly, if the declarations of incompatibility are complied with in almost every case, then they have a similar effect as a strike-down power in terms of ultimately securing prospective legislative change in line with judicial pronouncements on what rights require.
The main difference is remedial. Whilst the declaration of incompatibility is highly likely to spur legislative amendment to remedy the rights-violation prospectively, that does nothing for the individual litigant who has the dubious benefit of a declaration from the court that their rights have been violated, but no remedy for that violation since the impugned legislation remains valid. This is a significant difference. One of the ironic effects of the remedially empty declaration is that it leads UK courts to engage in highly creative interpretations under section 3 in order to do corrective justice in the instant case, thus avoiding the declaratory mechanism altogether. Another ironic effect is that it may disincentivise potential litigants from taking cases under the HRA if the violation is so crystal clear that it cannot be remedied by way of interpretation. But these differences – significant though they are – do not detract from the general point that the declarations are highly effective in securing legislative compliance with court rulings. Indeed, this regular compliance has led a number of scholars in the UK and beyond to surmise that there is now an emerging constitutional convention of legislative compliance with DOIs.
The fourth point concerns the Nicklinson case concerning assisted suicide. The issue in Nicklinson was whether the blanket prohibition on assisting suicide in section 2 of the Suicide Act 1961 violated the right to private life under Article 8 of the European Convention on Human Rights. By a majority of 7:2, the UK Supreme Court rejected this claim and declined to issue a declaration of incompatibility. Given the facts and the evidence placed before them, the majority were unable to establish that the blanket ban on assisting suicide constituted a disproportionate interference with rights. For the purposes of evaluating the idea of the declaration of incompatibility as ‘disapproval’, the most intriguing aspect of the Nicklinson case is that three of the Supreme Court judges held back from issuing a declaration of incompatibility (despite being somewhat inclined to do so), on the grounds that they wished ‘to accord Parliament the opportunity of considering whether to amend the legislation, subject of course to such regulations and other protective features as Parliament thinks appropriate’.
What are we to make of this position? Certainly, if we look at it through the lens of ‘judicial disapproval’, it will seem ‘very strange’. After all, if the point of courts issuing declarations of incompatibility is to show their disapproval by alerting Parliament to rights concerns, why hold back from doing so precisely in a case where the courts wished to alert Parliament to potential problems with the Suicide Act 1961, but did not feel competent to remedy the legislative deficiency themselves? I suggest that what explains the three judges’ decision to hold back from issuing a declaration in Nicklinson was their belief that the declaration is much more than mere disapproval which has no binding political or legal effect. Instead, it is the considered legal opinion of a majority of the UK Supreme Court that a particular piece of legislation is clearly incompatible with Convention rights – a conclusion which is highly likely to be borne out eventually in an adverse judgment in Strasbourg. Not only is the judicial declaration entitled to respect from the legislature, judges are aware that it in fact receives such respect and is now embedded within a regular practice of compliance with declarations. Moreover, when a declaration of incompatibility is issued, this activates a review by the Joint Committee on Human Rights, which has a role in striving to ensure that the Government will respond positively to declarations of incompatibility.
By refraining from issuing a formal declaration that this law clearly violates the Convention, the judges were able to alert the legislature about judicial concerns, without activating these institutional mechanisms which would pressure the government into compliance. In so doing, they reduced the pressure on Government to comply with the ruling, whilst still giving the government the benefit of some (tentative) judicial opinions on the matter. Of course, there are big questions about whether this equivocal stance by the UKSC was appropriate. The case has attracted a lot of criticism, and rightly so. But that is a different matter. For the moment, what is important is that the courts did not view the declaration of incompatibility is a mere suggestion which could be lightly made by the courts and easily brushed aside by parliamentarians. I would say that they did not view the declaration as a technique of mere disapproval, but as an authoritative statement on what the law of the convention requires. As Professor Conor Gearty put it, if declarations of incompatibility ‘look like proper court orders, are received as such orders, and produce legal outcomes like ordinary remedies, then perhaps, after all, that is what they are’. Given this reality, there is a responsibility on the judges to deploy them with caution and to ensure that if they issue a declaration of incompatibility, they are on a sure legal footing. They could not find that footing on the facts of the Nicklinson case.
Let me conclude by examining a well-known New York Times editorial which expressed incredulity about the dangers of the declaration of incompatibility under the HRA just as it was being enacted. Looking at the UK HRA through American eyes, it is easy to see how it could be dismissed as ‘half-measures on British freedoms’ rather than iron-cast guarantees. Instead of the strong ‘strike-down’ on the American model, we have optional suggestions, non-binding recommendations or, as Duxbury puts it, expressions of ‘judicial disapproval’. How can such polite suggestions do the hard work of upholding rights, especially rights held by the least popular groups in society, including prisoners, immigrants and sexual offenders? Surely a mere declaration will achieve nothing, thus leaving freedoms to ‘come and go with the political winds’?
The New York Times is right that there are dangers with using declaratory mechanisms as a way of enforcing rights. Undoubtedly, there are some constitutional cultures where they would achieve nothing and simply fall on deaf ears. But such dangers also apply to the strike-down power. After all, it is not unknown for the US Congress to either ignore, override, or minimise the effect of a judicial strike-down. Invalidation may nullify the law immediately, but in terms of ensuring that the legislature acts to fill the gap or remedy the legislative defect, there is no guarantee of compliance in any system. Indeed, given the now widespread practice amongst courts across the world to suspend or delay the nullification of the law to a later date, the gap between declaration and immediate invalidation narrows further.
But the critical point here in respect of the UK is that the UK’s constitutional system cannot be grasped fully by looking at the legal formalities alone. Whilst the declaration of incompatibility is legally non-binding, it was enacted with the firm expectation that the government and Parliament would comply with those declarations in the overwhelming majority of cases. As Duxbury puts it, ‘given parliament’s general attitude to declarations of incompatibility’, we can normally expect these declarations to elicit a favourable legislative response. True, that response can be begrudging at times or subject to delay and negative political rhetoric. But, ultimately, the government and Parliament end up complying with these declarations in almost every single case. Indeed, this practice chimes with parts of the broader historical story told by Duxbury, namely, that many proponents of the idea of declaratory constitutional review did so in the belief that they would have ‘significant political potency’. Of course, the declaratory mechanism provides the UK government with a legal escape hatch in situations where the courts hand down a thoroughly unjustifiable decision which seems so contrary to the public interest that the Government believes it would be prudent, justified and politically feasible to ignore it or defy it. But this is very much the exception rather than the rule. Indeed, most constitutions contain methods of amendment or override or derogation to cater for this prospect in any case, and are well-justified in doing so.
Professor Duxbury’s historical analysis is informative, instructive and insightful. Nonetheless, the practical operation of the declaration of incompatibility in the UK (and the thinking which lay behind it) makes me somewhat reluctant to characterise this mechanism as ‘judicial disapproval’. Moreover, whilst declaration may not be invalidation on its face, its operation brings it closer to invalidation in practice. The various political and legal pressures on the government to comply with the declarations ensures that UK rights are not left blowing in the wind. Indeed, many scholars in the UK and beyond argue that there is an emerging constitutional convention of compliance with such declarations. The UK system gives judges the power to nudge rather than push. But in a culture where polite nudges have strong censorial effect, they can be as forceful as a push (if not more so), without the unseemly spectacle of judges telling politicians what to do.
Suggested citation: Aileen Kavanagh, Article Review: Aileen Kavanagh on Neil Duxbury’s Judicial Disapproval as a Constitutional Technique, Int’l J. Const. L. Blog, Nov. 29, 2017, at: http://www.iconnectblog.com/2017/11/aileen-kavanagh-on-neil-duxburys-judicial-disapproval-as-a-constitutional-technique/
 Neil Duxbury, ‘Judicial Disapproval as a Constitutional Technique’ (2017) 15 ICON 649 (hereafter Duxbury, ‘Disapproval’).
 Gardbaum, The New Commonwealth Model of Constitutionalism, 29-30 (2013)
 Duxbury, ‘Disapproval’, 649.
 Ibid, 662, 664.
 Ibid 659
 Ibid 651
 Ibid 659
 See Re McFarland  UKHL 17: ‘Just as courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions, whether they approve of them or not, unless or until they are set aside …’, per Lord Bingham .
 Duxbury, ‘Disapproval’, 650.
 Ibid, footnote 1.
 Ibid, 669.
 Ronald Kroteszyinski, ‘Constitutional Flares: On Judges, Legislatures and Dialogue’ (1999) 83 Minn. L. Rev
 Neil Katyal, ‘Judges as Advice-Givers’ (1998) 50 Stan. L. Rev. 1709
 Hans Linde, ‘The United States Experience’ (1972) 20 AJCL 415, 421 (special issue on the Admonitory Functions of Constitutional Courts).
 Aileen Kavanagh, ‘Stopping Short of Striking Down’ (unpublished paper presented at ICON-S in Copenhagen, on file with author).
 For a more detailed explanation of these dynamics, see Aileen Kavanagh, ‘What’s so Weak about Weak-Form Review? The Case of the UK Human Rights Act’ (2016) 13 ICON 1008, 1020-1028 (hereafter ‘What’s so Weak?’.
 Duxbury, ‘Disapproval’, 651.
 Kavanagh, ‘What’s so Weak about Weak-Form review’? A Rejoinder to Stephen Gardbaum’ (2016) 13 ICON, 1049, 1051 (hereafter Kavanagh, ‘Rejoinder’).
 Aruna Sathanapally, Beyond Disagreement: Open Remedies in Human Rights Adjudication (OUP, 2015); Jeff King, ‘Parliament’s Role Following Declarations of Incompatibility’ in Murray Hunt, Hayley Hooper & Paul Yowell (eds) Parliament and Human Rights (Oxford, Hart Publishing, 2015), 171.
 Duxbury, ‘Disapproval’, 651.
 See eg Aileen Kavanagh, Constitutional Review under the UK Human Rights Act 1998 (Cambridge, CUP, 2009), 281-293; Mark Tushnet, Weak Courts, Strong Rights (Princeton University Press, 2008), 247.
 See further Kavanagh, ‘What’s so Weak?’, 1024.
 White Paper, Rights Brought Home, 1997 – available at https://www.gov.uk/government/publications/the-human-rights-bill.
 Kavanagh, ‘What’s so Weak?’, 1025.
 Tushnet, Weak Courts, Strong Rights, 25, 31.
 For further discussion of this way of characterising the issues at stake in Kavanagh, ‘A Hard Look at the Last Word’ (2016) 36 Oxford Journal of Legal Studies 825.
 582 Parl. Deb., H.L., cols. 1227–1228 (1997).
 Hansard, HC, col. 778 (second reading) (16 February 1998).
 Lord Borrie, 583 HL 1275-76, 3 November 1997
 317 HC 1301 (October 21, 1998) (emphasis added).
 K.D. Ewing, The Human Rights Act and Parliamentary Democracy, 62 Mod. L. Rev. 79, 92 (1999); Lord A. Lester, The Art of the Possible—Interpreting Statutes under the Human Rights Act, Eur. Hum. Rts. L. Rev. 663, 671, 668 ; Mark Elliott, Parliamentary Sovereignty and the New Constitutional Order: Legislative Freedom, Political Reality and Convention, 22 Legal Stud. 340, 348 (2002) (hereafter Elliott, ‘Parliamentary Sovereignty’; Helen Fenwick, Civil Liberties and Human Rights 190, 199-204 (2007).
 Elliott, ibid at 349.
 Lord Hoffmann, Human Rights and the House of Lords, 62(2) Mod. L. Rev. 159, 160 (1999).
 See further Kavanagh, ‘What’s So Weak?’
 Tom Hickman, ‘Bill of Rights Reform and the Case for Going Beyond the Declaration of Incompatibility Model’  New Zealand LR 35.
 Kavanagh, Constitutional Review under the UK Human Rights Act 1998 (CUP, 2009), 289; Jeff King, ‘Parliament’s Role’; Adrian Vermeule, The Atrophy of Constitutional Powers, 3 Oxford J. Legal Sci. 421, 442 (2012); Mark Elliott, ‘Parliamentary Sovereignty’.
 Nicklinson v UK  UKSC 38
 Ibid, .
 Duxbury, ‘Disapproval’, 663 (at fn 72).
 Conor Gearty, On Fantasy Island: Britain, Europe and Rights (Oxford 2016).
 Half-Measures on British Freedoms, NY Times, Nov 17 1997, cited in Duxbury, 667.
 For excellent discussion of this phenomenon, see Robert Leckey, Bills of Rights in the Common Law (Cambridge, CUP, 2015).
 Duxbury, ‘Disapproval’, 668
 Duxbury, ‘Disapproval’, 657.
 See references in fn 35.
 Kavanagh, ‘Rejoinder to Gardbaum’, 1052.