Declaration of incompatibility
Encyclopedia
A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider that the terms of a statute to be incompatible with the UK's obligations under the Human Rights Act 1998
, which incorporated the European Convention of Human Rights into the UK domestic law.
Section 3(1) of the Human Rights Act 1998 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.
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.
By section 10 of Human Rights Act 1998, a 'fast track' option can be used by the ministers to amend non-compliant legislation which has been declared incompatible (except if it is a measure
of the Church of England).
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
, which incorporated the European Convention of Human Rights into the UK domestic law.
Section 3(1) of the Human Rights Act 1998 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
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
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.
In England and Wales, the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
, Court of Appeal, Supreme Court
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
, Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, and the Courts Martial Appeal Court can issue declarations of incompatibility.
In Scotland, in addition to the Supreme Court
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
, the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
and the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
are also able to issue declarations of incompatibility.
By section 10 of Human Rights Act 1998, a 'fast track' option can be used by the ministers to amend non-compliant legislation which has been declared incompatible (except if it is a measure
Church of England Assembly (Powers) Act 1919
The Church of England Assembly Act 1919 is an Act of the Parliament of the United Kingdom that gives the Church of England the power to pass primary legislation called Measures. Measures have the same force and effect as Acts of Parliament...
of the Church of England).
External links
- A table of all of the declarations of incompatibility which the courts have made as of 1 August 2006 from the Department for Constitutional AffairsDepartment for Constitutional AffairsThe Department for Constitutional Affairs was a United Kingdom government department. Its creation was announced on 12 June 2003 with the intention of replacing the Lord Chancellor's Department...
- Law Reports -- Is there still a grey area in the operation of sections 3 & 4 HRA 1998 ?
- "Responding to Human Rights Judgments" - Report presented to Parliament in September 2011 by Ministry of Justice