[37] Finally, in McDonnell v Chief Executive of the Department of Corrections, the Court of Appeal relevantly summarised the position after Belcher as follows:46 (a) No decision has yet been made by the Supreme Court on whether declarations of inconsistency are available in criminal proceedings. However, this Court has indicated (in an obiter comment) that they are not; a separate civil proceeding is required: … (b) The preferred approach to identifying inconsistencies is to do so in the reasons for judgment, without issuing a formal declaration. … (d) There is no jurisdictional bar to the Court of Appeal granting a declaration of inconsistency where such a declaration was not first sought in the High Court but was technically available. Is the making of a declaration contemplated by the Bill of Rights? [38] Contrary to the submission of the Solicitor-General that the making of a declaration does not fit with the language and legislative history of the Bill of Rights, we see the making of a formal declaration as a logical step from the settled position outlined above. That is, that an effective remedy should be available for a breach of the Bill of Rights and the courts can draw upon the ordinary range of remedies to provide such a remedy. [39] This approach is contemplated in Baigent in which the Court of Appeal found that to enable an effective remedy, public law damages were available for a breach of the Bill of Rights.47 Cooke P in Baigent considered the absence in the Bill of Rights of an express provision about remedies was “probably not of much consequence”.48 46 47 48 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [123]. Baigent, above n 28, at 677–678 per Cooke P, 691–692 per Casey J, 702–703 per Hardie Boys J, 706 and 713 per Gault J and 718 per McKay J. See also by way of example, R v Goodwin, above n 27; and Law Commission Crown Liability and Judicial Immunity: A Response to Baigent’s case and Harvey v Derrick (NZLC R37, 1997). See also the discussion on the courts’ function by John Hart Ely “Toward a Representation-Reinforcing Mode of Judicial Review” (1978) 37 Md L Rev 451 at 471 and 485–486; and John Hart Ely Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, Cambridge (Mass), 1980). For a discussion of the way in which judicial responses can be seen to de-escalate social tensions in a political context see William N Eskridge Jr “Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics” (2005) 114 Yale LJ 1279 at 1292–1312. At 676.