This chapter traces judicial decision making under the Human Rights Act 1998, examining how courts approach their tasks of interpreting legislation compatibly with rights, on the one hand, or, if that is not possible, making a declaration of incompatibility instead. Though the declaration of incompatibility is not legally binding on the Government and Parliament, this chapter uncovers ’the hidden strengths of weak-form review’, highlighting the multiple ways in which declarations of incompatibility tie the hands of the political branches of government. It concludes that declarations of incompatibility are not aptly portrayed as opening gambits in a constitutional conversation, as dialogue scholars would lead us to believe. Instead, they are authoritative decisions in a collaborative constitutional scheme, where judicial determinations of the higher courts that legislation violates rights are entitled to constitutional comity and respect. It concludes by noting the current trend towards ’autochthonous constitutionalism’ under the common law, in preference to litigation under the HRA.

This Chapter examines the broad range of remedies available for laws that violate human rights. Part I examines non-binding declarations of incompatibility and related supra-national remedies, interpretative remedies, partial declarations of invalidity, suspended declarations of invalidity and prospective rulings. Part II identifies general principles that should inform the choice of remedies. These include respect for the legitimate roles of legislatures in making policy choices not dictated by the interaction of rights and legislative objectives, not allowing remedies to be limited by the form of legislative drafting and presumptions of retroactive relief. Part III applies the two-track approach to remedies with special attention to the dilemmas provided by suspended declarations of invalidity and prospective rulings. Comparisons are made between the Canadian use of exemptions and the South African use of interim guidelines, and between how Canadian and UK courts have responded to assisted dying cases. It also examines the dilemmas presented when legislatures refuse to respond to a declaration of incompatibility. It suggests that courts should have continued to award damages when the UK Parliament refused to respond to a declaration that a ban on prisoner voting was inconsistent with rights.