Declaration of Incompatibility in UK Law

Leading Cases
  • Wilson v First County Trust Ltd (No 2)
    • House of Lords
    • 10 Julio 2003

    In particular, it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister's exploration of the policy options or of his explanations to Parliament.

  • R v A (No 2)
    • House of Lords
    • 17 Mayo 2001

    In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so.

  • Ghaidan v Godin-Mendoza
    • House of Lords
    • 21 Junio 2004

    Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'.

    A study of the case law listed in the Appendix to this judgment reveals that there has sometimes been a tendency to approach the interpretative task under section 3(1) in too literal and technical a way. If the core remedial purpose of section 3(1) is not to be undermined a broader approach is required. That is, of course, not to gainsay the obvious proposition that inherent in the use of the word "possible" in section 3(1) is the idea that there is a Rubicon which courts may not cross.

  • R (on the application of Nicklinson and another) v Ministry of Justice; R (on the application of AM) v DPP
    • Supreme Court
    • 25 Junio 2014

    First, the question whether the provisions of section 2 should be modified raises a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts.

    An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with ECHR. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers.

  • Kay v Lambeth City Council; Leeds City Council v Price
    • House of Lords
    • 08 Marzo 2006

    But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461.

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Legislation
  • Human Rights Act 1998
    • UK Non-devolved
    • 1 de Enero de 1998
    ... ... right must take into account any—(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,(b) opinion of ... of revocation) primary legislation prevents removal of the incompatibility ... 4: Declaration of incompatibility ... (1) Subsection (2) applies ... ...
  • The Civil Procedure (Amendment) Rules 2023
    • UK Non-devolved
    • 1 de Enero de 2023
    ... ... Human Rights ... 19.5. —(1) The court may not make a declaration of incompatibility in accordance with section 4 of the Human Rights Act ... ...
  • The Criminal Procedure Rules 2020
    • UK Non-devolved
    • 1 de Enero de 2020
    ... ... or Scotland;(m) extend the time for service of a statutory declaration to which applies—(i) rule 44.2 (Statutory declaration of ignorance of ... documents for appeal or referencerule 36.11Declaration of incompatibility with a Convention rightrule 36.12Abandoning an appealrule 36.13Grounds of ... ...
  • The British Nationality Act 1981 (Remedial) Order 2019
    • UK Non-devolved
    • 1 de Enero de 2019
    ... ... Nationality Act 1981 as are necessary to remove that incompatibility ... In accordance with paragraph 2(a) of Schedule 2 to the Human Rights ... the Home Department [2016] UKSC 56, the Supreme Court made a declaration of incompatibility in relation to paragraph 70 of Schedule 9 to the ... ...
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Books & Journal Articles
  • The Human Rights Act and Juridification: Saving Democracy from Law
    • No. 30-2, June 2010
    • Politics
    The Human Rights Act (HRA) 1998 s. 4 declaration of incompatibility was designed to preserve and maintain the supremacy of parliament and thereby reinforce the superiority of the democratic actors ...
    ... ... 4 declaration o f i ncompatibility was d esigned to preserve a nd maintain ... as he considers necessary to remove the incompatibility’ – the minister is not compelled to act. The ... ...
  • R v Secretary of State for the Environment, Transport and the Regions ex parte Holding and Barnes plc and others
    • No. 9-3, March 2001
    • Journal of Financial Regulation and Compliance
    • 275-278
    Although the facts giving rise to this decision concerned planning control and planning law the decision is of relevance to the debate about the applicability of the Human Rights Act 1998 to the va...
    ... ... Court on 13th December, 2000 whereby the court made a declaration of incom-patibility with Article 6 of the European Convention on Human ... 16th May, 2001) the Court of Appeal made a declaration of incompatibility in respect of the statutory prohibition in s. 127(3) of that Act which ... ...
  • Equal Civil Partnerships, Discrimination and the Indulgence of Time: R (on the application of Steinfeld and Keidan) v Secretary of State for International Development
    • No. 82-5, September 2019
    • The Modern Law Review
    In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development the Supreme Court unanimously declared that the ban on different‐sex civil partnerships was inco...
    ... ... victory for those campaigning for reform and the issuing of a declaration of incompatibility by the Court is likely to have influenced the later ... ...
  • Surrogacy and Single Parents Following Re Z
    • No. , May 2017
    • Edinburgh Law Review
    • 281-286
    ... ... and led the High Court to make a declaration of incompatibility under section 4 of the Human Rights Act 1998. In Re Z ... ...
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Law Firm Commentaries
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