A declaration of incompatibility is a declaration issued by judges in the United Kingdom if they consider that the terms of a statute are incompatible with Britain's obligations under the Human Rights Act, which incorporated the European Convention of Human Rights into the UK domestic law.

Section 3(1) of the Human Rights Act (HRA) 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 HRA.^[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 the Parliament removes the incompatibility.^[3] Contrary to what some people may think, the HRA does not entitle the courts to become a legislator, but merely to interpret the law. 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. ^[4]

By section 10 of HRA, a 'fast track' option can be used by the ministers to amend non-compliant legislation with has been declared incompatible (except if it is a measure of the Church of England).

[edit] References

1. ^ Section 4 of Human Rights Act 1998
2. ^ An Introduction to the Human Rights Acts 1998 - Alexander Harris Solicitors
3. ^ Joint Committee On Human Rights Sixteenth Report
4. ^ A Guide to the Human Rights Act 1998 (s2.28)

[edit] Further reading

• Holland, James; Webb, Julian (2006). Learning Legal Rules. Oxford University Press. ISBN 9780199282500. 

[edit] 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 Affairs
• Law Reports -- Is there still a grey area in the operation of sections 3 & 4 HRA 1998 ?