Bellamy on Declarations of Incompatibility in Canada and the UK

GCDC member Professor Richard Bellamy has contributed a piece entitled ‘Declarations of Incompatibility in Canada and the UK: Are They Really the Same?’ to a debate in the Constitutional Theory Monitor on Section 33 of the Canadian Charter of Rights and Freedoms (the ‘notwithstanding clause’) occasioned by the current Supreme Court of Canada appeals on the subject.

In the piece, Professor Bellamy discusses the differences between the notwithstanding clause and Article 19(1)(b) of the UK Human Rights Act (HRA) 1998, whereby Ministers may ‘nevertheless’ proceed with a Bill even though they feel they may not be able to declare it ‘compatible’ with certain of the rights enumerated in the Act, at least as the courts may understand them. Some of the appellants, interveners, and judges in the Canadian appeals had raised the issue of whether legislation enacted under Section 33 should still be subject to scrutiny by the Supreme Court as in the UK, which – as per Article 4(2) of the HRA – could still issue a declaration of incompatibility if it saw fit, albeit with the legislation remaining in force unless the legislature concerned chose to revise it, as is the case under Article 4(6) of the HRA. 

Professor Bellamy disputes the advisability of this proposal. He highlights that the Canadian Convention and the HRA operate in ‘very different constitutional context[s]’ – with Canada having a legal constitution in which ‘strong review’ is the norm, while the UK has a political constitution in which ‘weak review’ is the norm. He makes two main points: 1) Although Canada is often characterised as being a ‘weak review’ legal system, that is not really the case. It is a strong review legal constitutional system that has a clause that allows that to be suspended – Section 33 means there is no review at all. He considers it wrong to say that is a weakening of review over all (and so the dominant view is just wrong). 2). Any political constitution will create a legal constitution based on statute law, which the political constitution ultimately controls but is applied until it does so by the courts. The HRA is no different in this respect to any other law. Likewise, any legal constitution operates alongside a political constitution. Section 33 merely gives this underlying political constitution a temporary exemption from being subject to the legal constitution. So whereas in the HRA weak review under Article 4 is business as usual, that would not be the case if a declaration of incompatibility was allowed under Section 33 in Canada. It would be at variance with the suspension of the Charter allowed by the legal constitution – an extension into the domain the legal constitution expressly forbids its trespassing into.

Read the piece on the Constitutional Theory Monitor website.

Related: Delaney on US-Canada Comparisons in the Notwithstanding Clause Appeals