4 - Remedies for Laws That Violate Human Rights

Summary

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.