Declaration of incompatibility


A declaration of incompatibility in UK constitutional law is a declaration issued by a United Kingdom judge that a statute is incompatible with the European Convention of Human Rights under the Human Rights Act 1998 section 4. This is a central part of UK constitutional law. Very few declarations of incompatibility have been issued, in comparison to the number of challenges.

Human Rights in the UK

reads as follows: "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights". Where the court determines a piece of legislation is inconsistent with the Convention rights, the court can issue a declaration of incompatibility under section 4 of the Human Rights Act 1998. However, the declaration of incompatibility is often seen as a last resort as the judiciary will attempt to interpret primary legislation as being compatible. Such a declaration will only be issued if such a reading is not possible.
Once the court has issued a declaration of incompatibility, the law remains the same until Parliament removes the incompatibility. The courts must still apply the legislation as it is and the parties to the actual case are unaffected by the declaration. Hence, the declaration has no actual legal effect and the parties neither gain nor lose by it. A declaration of incompatibility is only the start of a remedy to a Human Rights Act 1998 claim. Section 8 of the Act enables the court to make any further remedy it sees fit.
In England and Wales, the High Court, Court of Appeal, Supreme Court, Judicial Committee of the Privy Council, and the Courts Martial Appeal Court can issue declarations of incompatibility. In Scotland, in addition to the Supreme Court, the Court of Session and the High Court of Justiciary are also able to issue declarations of incompatibility. In Northern Ireland, the Northern Irish High Court or Court of Appeals can issue a statement of incompatibility for Acts of the Northern Irish Assembly
By section 10 of the Human Rights Act 1998, a "fast track" option of a remedial order can be used by the ministers to amend non-compliant legislation which has been declared incompatible. As of 2016 this option has been used twice: in 2001 for the Mental Health Act 1983, and in 2009 for the Sexual Offences Act 2003.

List of cases

There had been 20 declarations of incompatibility by April 2013, with 8 having been overturned on appeal. By July 2016 there were two more declarations finalised, and four more subject to appeal.
CaseCitationDescriptionResult
1.R v Secretary of State for Health EWCA Civ 415Sections 72 and 73 of the Mental Health Act 1983 ss 72-73 found incompatible with ECHR art 5, where a Mental Health Review Tribunal was not required to discharge a patient after it was shown there was no disorder to warrant detention.HRA 1998 s 10 remedial order made: Mental Health Act 1983 Order 2001 v Secretary of State for the Home Department UKHL 46Crime Act 1997 s 29 violated ECHR art 6, requiring a sentence imposed by an independent and impartial tribunal, instead of the Secretary of State imposing a minimum period.Criminal Justice Act 2003, sections 303, 332 and Schedule 37, Pt 8 repealed.
5.R v Secretary of State for the Home Department EWHC 2805Mental Health Act 1983 s 74 violated ECHR art 5 for continued detention of discretionary life prisoners depended upon discretion of the executive to have access to a court.Criminal Justice Act 2003 section 295 amended.
6.Blood and Tarbuck v Secretary of State for HealthUnreportedHuman Fertilisation and Embryology Act 1990 s 28 violated ECHR art 8 and 14 for not allowing a deceased father’s name to be given on the birth certificate of his child.Human Fertilisation and Embryology Act 2003 amended.
7.Bellinger v Bellinger UKHL 21Matrimonial Causes Act 1973 s 11 was incompatible with Articles 8 and 12 in so far as it makes no provision for the recognition of gender reassignment.Gender Recognition Act 2004 amended.
8.R v Secretary of State for Health EWHC 1094Mental Health Act 1983 ss 26 and 29 were incompatible with Article 8, as the claimant had no choice over the appointment or legal means of challenging the appointment of her nearest relative.Mental Health Act 2007 ss 23-26 amended
9.R v IRC EWCA Civ 814Taxes Act 1988 was incompatible with Article 14 when read with Article 1 of Protocol 1 for discriminating against widowers in the provision of Widows Bereavement Allowance.Already repealed by the time of the case by the Finance Act 1999 sections 34, 139, Schedule 20.
10.R v Secretary of State for Work and Pensions EWCA Civ 875Social Security Contributions and Benefits Act 1992 ss 36-37 violated ECHR art 14 and art 8, and article 1, Protocol 1 for providing benefits to widows but not widowers.Already changed by Welfare Reform and Pensions Act 1999 s 54.
11.R v Westminster City Council EWCA Civ 1184Housing Act 1996 s 185 violated Article 14 to the extent that it requires a dependent child under immigration control to be disregarded when determining whether a British citizen has priority need for accommodation.Housing and Regeneration Act 2008 Sch 15 changed.
12.A v Secretary of State for the Home Department UKHL 56The Anti-terrorism, Crime and Security Act 2001 s 23 was incompatible with Articles 5 and 14 was disproportionate by permitting the detention of suspected international terrorists in a way that discriminated on the ground of nationality or immigration status. The Human Rights Act 1998 Order 2001 was disproportionate means to achieve protection from terrorism.Prevention of Terrorism Act 2005 changed the regime to control orders.
13.R v SS Home Dept UKHL 53Asylum and Immigration Act 2004 19 is incompatible with ECHR arts 12 and 14, in dealing with sham marriages.Asylum and Immigration Act 2004 2011
14.R v First Secretary of StateUnreported
15.R v Secretary of State for Health UKHL 3
16.R v Secretary of State for the Home Department UKHL 54
17.Smith v Scott CSIH 9
18.R v Secretary of State for Justice EWHC 3170
19.R v SSHD EWHC 2761
20.R v Chief Constable of Greater Manchester EWCA Civ 25
21.R v Secretary of State for Work and Pensions EWCA Civ 413Jobseekers Act 2013 was incompatible with their rights under Article 6 and Article 1 of the First Protocol to the ECHR.
22.David Miranda v Secretary of State for the Home Department EWCA Civ 6Terrorism Act 2000 Sch 7, stopping and questioning
23.R v Secretary of State for the Home Department EWHC 89
24.R v Constable of Surrey Police EWHC 295
25.Z EWHC 1191Human Fertilisation and Embryology Act 2008 s 54
26.R v Secretary of State for the International Development UKSC 32Sections 1 and 3 of Civil Partnership Act 2004 are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.Legislation amended by Civil Partnerships, Marriages and Deaths Act 2019
27.R v Secretary of State for the Home Department EWHC 452 The right to rent scheme is incompatible with article 14 of ECHR taken in conjunction with article 8 and 14 of the Convention. Any rollout of the scheme to Scotland, Wales or Northern Ireland without further evaluation a breach of s 149 of the Equality Act 2010.

The following cases involved declarations of incompatibility that were overturned on appeal:
CaseCitationDescriptionResult
1.R v Secretary of State for the Environment, Transport and the Regions UKHL 23Town and Country Planning Act 1990 ss 77-79
2.Wilson v First County Trust Ltd UKHL 40Consumer Credit Act 1974 s 127
3.Matthews v Ministry of Defence UKHL 4Crown Proceedings Act 1947 s 10
4.R v Secretary of State for the Home Department UKHL 38
5.R v Secretary of State for Health UKHL 60
6.Re MB UKHL 46
7.Nasseri v Secretary of State for the Home Department UKHL 23
8.R v Secretary of State for Justice UKHL 1
9.Northern Ireland Human Rights Commission’s Application NIQB 102Offences of the Person Act 1861 ss 57-58, and Criminal Justice Act 1945 s 25, banning abortion in Northern Ireland, incompatible with ECHR arts 3, 8 and 14.Reversed by Northern Ireland Court of Appeal

The following cases involved the court finding that a statute was incompatible but not making a formal declaration of incompatibility:
CaseCitationDescriptionResult
1.R. v Secretary of State for Justice UKSC 63European Parliamentary Elections Act 2002 s8The Supreme Court held that a blanket prohibition on convicted prisoners voting in European Parliament elections was incompatible with Protocol 1 article 3 of the convention, but the Supreme Court declined to make a declaration of incompatibility as the same issue had been raised in Smith v Scott CSIH 9, where the incompatibility of section 3 of the Representation of the People Act 1983 had been declared, and the issue was already being considered by the UK Parliament. A declaration was a discretionary remedy, and there was no point in making any further declaration of incompatibility.
2.In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review '' UKSC 27Offences Against the Person Act 1861 ss 58-59The Supreme Court held that the provisions were incompatible with the right to respect for private and family life, guaranteed by article 8 of the Convention, insofar as they prohibited abortion in cases of rape, incest and fatal foetal abnormality. However, the court also held that the claimant did not have standing to bring the proceedings and accordingly the court had no jurisdiction to make a declaration of incompatibility reflect its view on the compatibility issues.