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Summary

One key question which arises under the Human Rights Act 1998 is whether there is a constitutional convention of political compliance with declarations of incompatibility. This chapter provides a comprehensive empirical analysis of all the political responses to declarations of incompatibility in the first two decades of the HRA. It concludes that there is significant evidence of a constitutional convention in statu nascendi. Though the convention does not preclude the government and legislature from rejecting a declaration of incompatibility in exceptional and rare circumstances, there is a conventional and normative expectation amongst the key political actors that they are under an obligation to comply with those declarations in the normal run of affairs.

Article 43 EC prohibits not only restrictions on freedom of establishment on the part of the host State but also those restrictions that are attributable to the State of origin. This article focuses on the latter aspect, the prohibition on ‘exit restrictions’, which was at the centre in the European Court of Justice's recent judgment in Marks & Spencer.

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12 - Declarations, Obligations, Collaborations

Summary

Exit restrictions on freedom of establishment after Marks & Spencer

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12 - Declarations, Obligations, Collaborations

Summary

Exit restrictions on freedom of establishment after Marks & Spencer