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.
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. [1] However, the declaration of incompatibility is often seen as a last resort as the judiciary will attempt to interpret primary legislation as being compatible. [2] 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. [3] 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. [4] In Northern Ireland, the Northern Irish High Court or Court of Appeal can issue a statement of incompatibility for Acts of the Northern Irish Assembly. [5]
By section 10 of the Human Rights Act 1998, a "fast track" option of a remedial order (a type of statutory instrument) 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). 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.
![]() | This section needs to be updated.(September 2018) |
There have been 47 declarations of incompatibility by April 2024, with 10 having been overturned on appeal. [6] [ verification needed ]
Case | Citation | Description | Result | |
---|---|---|---|---|
1. | R (H) v Secretary of State for Health | [2001] EWCA Civ 415 | Sections 72 and 73 of the Mental Health Act 1983 ss 72–73, where a Mental Health Review Tribunal was not required to discharge a patient after it was shown there was no disorder to warrant detention, was found incompatible with ECHR art 5. | HRA 1998 s 10 remedial order made: Mental Health Act 1983 (Remedial) Order 2001 (SI 2001 No.3712). |
2. | McR's Application for Judicial Review | [2003] NI 1 | The Offences Against the Person Act 1861 s 62, creating an offence for attempted buggery in Northern Ireland, was incompatible with ECHR art 8. | Offences repealed by Sexual Offences Act 2003, sections 139, 140, Sch 6 para 4 and Sch 7. |
3. | International Transport Roth GmbH v Secretary of State for the Home Department | [2002] EWCA Civ 158 | The Immigration and Asylum Act 1999 Part II violated ECHR art 6 by fixing penalties, rather than letting a penalty be determined by an independent tribunal. It also violated Article 1 of Protocol 1 as it imposed an excessive burden on the carriers. | Amended by Nationality, Immigration and Asylum Act 2002, section 125 and Schedule 8. |
4. | R (Anderson) v Secretary of State for the Home Department | [2002] UKHL 46 | The Crime (Sentences) Act 1997 s 29, which empowered the Secretary of State to set minimum terms of imprisonment for life sentences, violated ECHR art 6, which requires a sentence to be imposed by an independent and impartial tribunal. | Repealed by Criminal Justice Act 2003, sections 303(b)(I), 332 and Schedule 37, Pt 8. |
5. | R (D) v Secretary of State for the Home Department | [2002] EWHC 2805 | The Mental Health Act 1983 s 74 violated ECHR art 5(4) by making continued detention of discretionary life prisoners depend upon discretion of the executive to have access to a court. | Amended by Criminal Justice Act 2003 section 295. |
6. | Blood and Tarbuck v Secretary of State for Health | Unreported | The Human Fertilisation and Embryology Act 1990 s 28(6)(b) violated ECHR art 8 and 14 for not allowing a deceased father's name to be given on the birth certificate of his child. | Amended by Human Fertilisation and Embryology (Deceased Fathers) Act 2003. |
7. | Bellinger v Bellinger | [2003] UKHL 21 | The Matrimonial Causes Act 1973 s 11(c) was incompatible with Articles 8 and 12 in so far as it makes no provision for the recognition of gender reassignment. | Amended by Gender Recognition Act 2004. |
8. | R (M) v Secretary of State for Health | [2003] EWHC 1094 | The Mental 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. | Amended by Mental Health Act 2007 ss 23–26 |
9. | R (Wilkinson) v IRC | [2003] EWCA Civ 814 | The Taxes 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 Finance Act 1999 sections 34(1), 139, Schedule 20. |
10. | R (Hooper) v Secretary of State for Work and Pensions | [2003] EWCA Civ 875 | The Social 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 amended by Welfare Reform and Pensions Act 1999 s 54(1). |
11. | A v Secretary of State for the Home Department | [2004] UKHL 56 | The Anti-terrorism, Crime and Security Act 2001 s 23 was incompatible with Articles 5 and 14. It was held to be 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 (Designated derogation) Order 2001 was a disproportionate means to achieve protection from terrorism. | Prevention of Terrorism Act 2005 changed the regime to control orders. |
12. | R (Sylviane Pierrette Morris) v Westminster City Council | [2005] EWCA Civ 1184 | Housing Act 1996 s 185(4) 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. | Amended by Housing and Regeneration Act 2008 Sch 15. |
13. | R (Gabaj) v First Secretary of State | [2006] Unreported | Section 185(4) of the Housing Act 1996 is incompatible with ECHR art 14 in that prioritising need of households for housing disregards a pregnant woman from abroad who is ineligible for housing assistance. | Amended by Housing and Regeneration Act 2008 Sch 15. |
14. | R (Baiai) v SS Home Dept | [2008] UKHL 53 | The Asylum and Immigration (Treatment of Claimants etc) Act 2004 19(3) is incompatible with ECHR arts 12 and 14, in that dealing with sham marriages infringes on the right to marry. | Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial Order) 2011 |
15. | R (Wright) v Secretary of State for Health | [2009] UKHL 3 | Procedures under the Care Standards Act 2000 Part VII found incompatible with arts 6 and 8, in that a provisional listing immediately damaged the care worker's career prospects without any hearing or opportunity to make representations. | Court of Appeal itself reinterpreted the Act to require an opportunity to make representations unless it would lead to unacceptable delay. |
16. | R (Clift) v Secretary of State for the Home Department | [2006] UKHL 54 | The Parole Board (Transfer of Functions) Order 1998 provisions on early release discriminates against prisoners on long sentences compared to both those on shorter and on life sentences, in breach of ECHR art 14 in conjunction with art 5. | |
17. | Smith v Scott | [2007] CSIH 9 | A blanket ban on prisoners voting breaches Art 3 of the First Protocol to the ECHR. | |
18. | R (F and Thompson) v Secretary of State for Justice | [2008] EWHC 3170 (Admin) | Sex offenders' indefinite placement on a register and obligations thereby to report movements etc to police are disproportionate and in breach of ECHR art 8. | |
19. | R (Royal College of Nursing) v SSHD | [2010] EWHC 2761 | The previous scheme established under the Safeguarding Vulnerable Groups Act 2006 which automatically prohibited those placed on lists established under the scheme from working with children and/or vulnerable adults was unlawful: the absence of a right to make representations breached their right to a fair trial. | |
20. | R (T) v Chief Constable of Greater Manchester | [2013] EWCA Civ 25 | The Rehabilitation of Offenders Act 1974 and Police Act 1997 issue of Criminal Record Certificates required for working with children or vulnerable adults. Disclosure of spent cautions and minor convictions (e.g. a caution age 11 for stealing two bicycles) breached the right to private life under ECHR Art 8. | |
21. | R (Reilly (no 2) v Secretary of State for Work and Pensions | [2016] EWCA Civ 413 | Jobseekers (Back to Work Schemes) Act 2013 was incompatible with their rights under ECHR Article 6 (right to a fair trial) and Article 1 of the First Protocol (protection of property). | |
22. | Benkharbouche v Embassy of the Republic of Sudan, and Libya | [2015] EWCA Civ 33 | ||
23. | David Miranda v Secretary of State for the Home Department | [2016] EWCA Civ 6 | Terrorism Act 2000 Sch 7, stopping and questioning | |
24. | R (P and A) v Secretary of State for the Home Department | [2016] EWHC 89 (Admin) | Disclosure of previous convictions to be used as evidence in trial was held to be incompatible with Article 8, since they infringe upon the respondent's private life. | |
25. | R (G) v Constable of Surrey Police | [2016] EWHC 295 (Admin) | A statutory scheme for the disclosure of spent criminal records was incompatible with Article 8. | |
26. | Z (A Child) (No 2) | [2016] EWHC 1191 | Human Fertilisation and Embryology Act 2008 s 54 | The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 |
27. | R (Johnson) v Secretary of State for the Home Department | [2016] UKSC 56 | ||
28. | Consent Order in R (Bangs) v Secretary of State for the Home Department | 2017, unreported | ||
29. | Smith v Secretary of State for Justice | [2017] EWCA Civ 1916 | ||
30. | R (Steinfeld and Keiden) v Secretary of State for the International Development | [2018] UKSC 32 | Sections 1 and 3 of the Civil Partnership Act 2004 (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with ECHR article 14 taken in conjunction with article 8. | Legislation amended by Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 |
31. | K (A Child) v Secretary of State for the Home Department | [2018] EWHC 1834 | ||
32. | Siobhan McLaughlin, Re Judicial Review (Northern Ireland) | [2018] UKSC 48 | ||
33. | Jackson and Simpson v Secretary of State for Work and Pensions | [2020] EWHC 183 (Admin) | ||
34. | In the matter of application by 'JR111' for judicial review (ruling on remedy) | [2021] NIQB 48 | ||
35. | Secretary of State for Business and Trade (Respondent) v Mercer (Appellant) | [2024] UKSC 12 |
The following cases involved declarations of incompatibility that were overturned on appeal:
Case | Citation | Description | Result | |
---|---|---|---|---|
1. | R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions | [2001] UKHL 23 | Town and Country Planning Act 1990 ss 77–79 | |
2. | Wilson v First County Trust Ltd (No.2) | [2003] UKHL 40 | Consumer Credit Act 1974 s 127(3) | |
3. | Matthews v Ministry of Defence | [2003] UKHL 4 | Crown Proceedings Act 1947 s 10 | |
4. | R (Uttley) v Secretary of State for the Home Department | [2004] UKHL 38 | ||
5. | R (MH) v Secretary of State for Health | [2005] UKHL 60 | ||
6. | Re MB | [2007] UKHL 46 | ||
7. | Nasseri v Secretary of State for the Home Department | [2009] UKHL 23 | ||
8. | R (Black) v Secretary of State for Justice | [2009] UKHL 1 | ||
9. | Northern Ireland Human Rights Commission’s Application | [2015] NIQB 102 | The Offences against the Person Act 1861 ss 57–58, and the Criminal Justice Act (NI) 1945 s 25, banning abortion in Northern Ireland, were incompatible with ECHR arts 3, 8 and 14. | Reversed by Northern Ireland Court of Appeal [7] |
10. | R (Joint Council of Immigrants) v Secretary of State for the Home Department | [2019] 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 would be a breach of s 149 of the Equality Act 2010. |
The following cases remain subject to appeal, as of July 2022:
Case | Citation | Description | Result | |
---|---|---|---|---|
1. | In the matter of an application by JR123 for judicial review | [2021] NIQB 97 | ||
2. | R v Marks, Morgan, Lynch and Heaney | [2021] NICA 67 | ||
The following cases involved the court finding that a statute was incompatible but not making a formal declaration of incompatibility:
Case | Citation | Description | Result | |
---|---|---|---|---|
1. | R (on the application of Chester) v Secretary of State for Justice | [2013] UKSC 63 | European Parliamentary Elections Act 2002 s8 | The 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 relation to local, Scottish Parliament and UK Parliament elections) in Smith v Scott [2007] 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 (Northern Ireland) | [2018] UKSC 27 | Offences Against the Person Act 1861 ss 58–59 | The 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 to reflect its view on the compatibility issues. |
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Convention on Human Rights. The Act makes a remedy for breach of a Convention right available in UK courts, without the need to go to the European Court of Human Rights (ECHR) in Strasbourg.
The Anti-terrorism, Crime and Security Act 2001 is an Act of Parliament of the United Kingdom, formally introduced into Parliament on 19 November 2001, two months after the terrorist attacks in the United States on 11 September. It received royal assent and came into force on 14 December 2001. Many of its measures are not specifically related to terrorism, and a Parliamentary committee was critical of the swift timetable for such a long bill including non-emergency measures.
The Prevention of Terrorism Act 2005 was an Act of the Parliament of the United Kingdom, intended to deal with the Law Lords' ruling of 16 December 2004 that the detention without trial of eight foreigners at HM Prison Belmarsh under Part 4 of the Anti-terrorism, Crime and Security Act 2001 was unlawful, being incompatible with European human rights laws.
The Supreme Court of the United Kingdom is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the United Kingdom’s highest appellate court for these matters, it hears cases of the greatest public or constitutional importance affecting the whole population.
The European Convention of Human Rights Act 2003 is an act of the Irish parliament, the Oireachtas, which gave further effect to the European Convention on Human Rights in Irish law. It is substantially similar to the UK's Human Rights Act 1998.
The New Zealand Bill of Rights Act 1990 is a statute of the Parliament of New Zealand part of New Zealand's uncodified constitution that sets out the rights and fundamental freedoms of anyone subject to New Zealand law as a bill of rights, and imposes a legal requirement on the attorney-general to provide a report to parliament whenever a bill is inconsistent with the Bill of Rights.
United Kingdom administrative law is part of UK constitutional law that is designed through judicial review to hold executive power and public bodies accountable under the law. A person can apply to the High Court to challenge a public body's decision if they have a "sufficient interest", within three months of the grounds of the cause of action becoming known. By contrast, claims against public bodies in tort or contract are usually limited by the Limitation Act 1980 to a period of 6 years.
The constitution of the United Kingdom comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no official attempt has been made to codify such arrangements into a single document, thus it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched.
R v The Commissioner of Police of the Metropolis [2011] UKSC 21 was a 2011 judgment of the Supreme Court of the United Kingdom. The case concerned the extent of the police's power to indefinitely retain biometric data associated with individuals who are no longer suspected of a criminal offence. In the case, a majority of the Supreme Court, including the Court's President Lord Phillips and the Lord Chief Justice Lord Judge reversed an earlier ruling of the High Court of Justice and found that the police force's policy of retaining DNA evidence in the absence of 'exceptional circumstances' was unlawful and a violation of Article 8 of the European Convention on Human Rights. The court declined to offer any specific relief however, recognising that the policy is expected to be subject to legislative scrutiny as Part 1 of the Protection of Freedoms Bill 2011.
Parliamentary sovereignty is an ancient concept central to the functioning of the constitution of the United Kingdom but which is also not fully defined and has long been debated. Since the subordination of the monarchy under parliament, and the increasingly democratic methods of parliamentary government, there have been the questions of whether parliament holds a supreme ability to legislate and whether or not it should.
Section 3 of the Human Rights Act 1998 is a provision of the United Kingdom's Human Rights Act 1998 that requires courts to interpret both primary and subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act 1998. This interpretation goes far beyond normal statutory interpretation, and includes past and future legislation, therefore preventing the Human Rights Act from being impliedly repealed by subsequent contradictory legislation.
Sections 4 and 10 of the Human Rights Act 1998 are provisions that enable the Human Rights Act 1998 to take effect in the United Kingdom. Section 4 allows courts to issue a declaration of incompatibility where it is impossible to use section 3 to interpret primary or subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act. In these cases, interpretation to comply may conflict with legislative intent. It is considered a measure of last resort. A range of superior courts can issue a declaration of incompatibility.
The Data Retention and Investigatory Powers Act 2014 was an Act of the Parliament of the United Kingdom, repealed in 2016. It received Royal Assent on 17 July 2014, after being introduced on 14 July 2014. The purpose of the legislation was to allow security services to continue to have access to phone and internet records of individuals following a previous repeal of these rights by the Court of Justice of the European Union. The act was criticised by some Members of Parliament for the speed at which the act was passed through parliament, by some groups as being an infringement of privacy.
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent.
Taylor v Attorney-General[2015] NZHC 1706 is a New Zealand High Court judgment which made a formal declaration that a statute that prohibited prisoners from voting is inconsistent with the New Zealand Bill of Rights Act 1990. The action was brought by Arthur Taylor, a high-profile prison inmate. This was the first time a court had recognised that a formal declaration of inconsistency is an available remedy for statutory breaches of the Bill of Rights. Section 5 of the Bill of Rights Act states, "Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In his decision, Justice Heath declared that the Electoral Amendment Act 2010 which stripped all voting rights in general elections from prisoners was an unjustified limitation on the right to vote contained in s 12 of the Bill of Rights. The Court of Appeal upheld this decision after the Attorney-General appealed the jurisdiction of the courts to make declarations of inconsistency.
R (Nicklinson) v Ministry of Justice was a 2014 judgment by the Supreme Court of the United Kingdom that considered the question of the right to die in English law.
R (Miller) v Secretary of State for Exiting the European Union is a United Kingdom constitutional law case decided by the United Kingdom Supreme Court on 24 January 2017, which ruled that the British Government might not initiate withdrawal from the European Union by formal notification to the Council of the European Union as prescribed by Article 50 of the Treaty on European Union without an Act of Parliament giving the government Parliament's permission to do so. Two days later, the government responded by bringing to Parliament the European Union Act 2017 for first reading in the House of Commons on 26 January 2017. The case is informally referred to as "the Miller case" or "Miller I".
A citizen of Ireland is legally permitted to change the designation of their gender on government documents through self-determination. In 2015, Ireland was the fourth state in the world to permit such alterations to government documents. By May 2017, 230 people had been granted gender recognition certificates under the law. Section 16 of the Act entitles the holder of a gender recognition certificate to apply to have the certificate amended if there is a clerical error or an error of fact in the content of the certificate. Two such corrections have been made since commencement of the Act.
The Northern Ireland Act 2019, colloquially known as the 2019 Northern Ireland Act, is an Act of the Parliament of the United Kingdom that provided for the extension of the period for forming a Northern Ireland executive until 13 January 2020. The Act also extended the powers of the Secretary of State for Northern Ireland during this time whilst imposing several conditions. The Act requires that the Secretary of State report regularly to Parliament, designed to limit the ability of the sovereign to prorogue parliament, as well as providing for the legalisation of same-sex marriage and opposite-sex civil partnership in Northern Ireland and the liberalisation of abortion laws if no executive was formed by midnight on 21 October 2019. After the deadline passed, abortion was decriminalised automatically by repeal of Sections 58 and 59 of the Offences Against the Person Act 1861; in December 2019 the British Government passed regulations legalising same-sex marriage and opposite-sex civil partnerships on 13 January 2020. Further regulations governing abortion came into force on 31 March 2020.
The Bill of Rights Bill was a proposed Act of Parliament in the United Kingdom that sought to replace the Human Rights Act 1998. It was introduced to the House of Commons by Dominic Raab, the Deputy Prime Minister of the United Kingdom and Secretary of State for Justice, on 22 June 2022.