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Discretionary Space and Declarations of Incompatibility

Lookup NU author(s): Dr Conall Mallory, Dr Helene Tyrrell



This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License (CC BY-NC-ND).


S4 of the Human Rights Act 1998 affords judges a power to make declarations of incompatibility where legislation is incompatible with a Convention right. The provision therefore creates what we term as a ‘discretionary space’ for judges: having ascertained an incompatibility they are left to either make a declaration or exercise restraint. We chart the considerations that have informed both the shape of this discretionary space and the deliberations within it during the first two decades of judicial reasoning under the Human Rights Act in the House of Lords and Supreme Court. We find that judges in the apex court have approached their use of discretion from differing perspectives in relation to a series of considerations which we categorise into three groups: the outcome of the instant case, the operation of the legislation in question and the legitimacy of the judicial role. With isolated instances of rebellion from some judges, these considerations have collectively led to a shrinking of the power afforded to the judiciary in s4, to the detriment of what has the potential to be a powerful corrective tool.

Publication metadata

Author(s): Mallory C, Tyrrell H

Publication type: Article

Publication status: Published

Journal: Kings Law Journal

Year: 2021

Volume: 32

Issue: 3

Pages: 466-496

Online publication date: 19/09/2021

Acceptance date: 07/07/2021

Date deposited: 05/09/2021

ISSN (print): 0961-5768

ISSN (electronic): 1757-8442

Publisher: Taylor and Francis


DOI: 10.1080/09615768.2021.1975590


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