Human Rights

Justice written question – answered on 26th April 2011.

Alert me about debates like this

Photo of Chris Heaton-Harris Chris Heaton-Harris Conservative, Daventry

To ask the Secretary of State for Justice in which court cases a declaration of incompatibility has been made under section 4 of the Human Rights Act 1998 since the entry into force of that Act; which provision of legislation was declared to be incompatible with which Convention right in each case; what the Government's response was to each declaration; and which such declarations are final.

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

27 declarations of incompatibility have been made under section 4 of the Human Rights Act 1998 since it came into force on 2 October 2000.

The information requested concerning these declarations of incompatibility is given in the following table.

Name of case Legislative provision declared incompatible Government response Outcome
1 R (on the application of Alconbury Developments Ltd.) v . Secretary of State for the Environment, Transport and the Regions (Administrative Court; [2001] HRLR 2; 13 December 2000) (a) The Town and Country Planning Act 1990 (i) sections 77 and 78 (ii) section 79 (excluding the words inserted into sub section 79(4) by paragraph 19 of Schedule 7 to the Planning and Compensation Act 1991); (iii) paragraphs 3 and 4 of Schedule 6 (insofar as it applied to section 79); (b) The Transport and Works Act 1992 sections 1, 3 and 23(4); (c) The Highways Act 1980 sections 14(3)(a), 16(5)(a), 18(3)(a) and 125 and paragraphs 1, 7 and 8 of Part 1 of Schedule 1; (d) The Acquisition of Land Act 1981 section 2 (3) and paragraph 4 of Schedule 1. Appeal to House of Lords The House of Lords overturned the declaration on 9 May 2001: [2001] UKHL 23
2 R (on the application of H) v . Mental Health Review Tribunal for the North and East London Region & The Secretary of State for Health (Court of Appeal; [2001] EWCA Civ 415; 28 March 2001) Sections 72 and 73 of the Mental Health Act 1983 Legislation amended by the Mental Health Act 1983 (Remedial) Order 2001 (SI 2001 No.3712), which came into force on 26 November 2001
3 Wilson v. First County Trust Ltd (No.2) (Court of Appeal; [2001] EWCA Civ 633; 2 May 2001) Section 127(3) of the Consumer Credit Act 1974 Appeal to House of Lords The House of Lords overturned the declaration on 10 July 2003: [2003] UKHL 40
4 McR's Application for Judicial Review (Queen's Bench Division (NI); [2002] NIQB 58; 15 January 2002) Section 62 of the Offences Against the Person Act 1861, which continued to apply in Northern Ireland Section 62 was repealed in Northern Ireland by the Sexual Offences Act 2003, section 139, section 140, Schedule 6 paragraph 4, and Schedule 7. These provisions came into force on 1 May 2004.
5 International Transport Roth GmbH v . Secretary of State for the Home Department (Court of Appeal; [2002] EWCA Civ 158; 22 February 2002) The penalty scheme contained in Part II of the Immigration and Asylum Act 1999 Legislation amended by Nationality, Immigration and Asylum Act 2002, section 125, and Schedule 8, which came into force on 8 December 2002.
6 Matthews v. Ministry of Defence (Queen's Bench Division; [2002] EWHC 13 (QB); 22 January 2002) Section 10 of the Crown Proceedings Act 1947 Appeal to Court of Appeal Court of Appeal overturned the declaration, a decision which was upheld by the House of Lords on 13 February 2003: [2003] UKHL 4.
7 R (on the application of Anderson) v . Secretary of State for the Home Department (House of Lords; [2002] UKHL 46; 25 November 2002) Section 29 of the Crime (Sentences) Act 1997 Defended appeal to House of Lords, which allowed the appeal Law repealed by the Criminal Justice Act 2003, sections 303(b)(i) and 332 and Schedule 37, Part 8, with effect from 18 December 2003. Transitional and new sentencing provisions were contained in Chapter 7 and Schedules 21 and 22 of that Act.
8 R (on the application of D) v . Secretary of State for the Home Department (Administrative Court; [2002] EWHC 2805 (Admin); 19 December 2002) Section 74 of the Mental Health Act 1983 was incompatible with Article 5(4) to the extent that the continued detention of discretionary life prisoners who had served the penal part of their sentence depended on the exercise of a discretionary power by the executive branch of government to grant access to a court Law amended by section 295 of the Criminal Justice Act 2003 section 295, which came into force on 20 January 2004.
9 Blood and Tarbuck v . Secretary of State for Health (unreported; 28 February 2003) Section 28(6)(b) of the Human Fertilisation and Embryology Act 1990 Law amended by the Human Fertilisation and Embryology (Deceased Fathers) Act 2003, which came into force on 1 December 2003
10 R (on the application of Uttley) v . Secretary of State for the Home Department (Administrative Court; [2003] EWHC 950 (Admin); 8 April 2003) Sections 33(2), 37(4)(a) and 39 of the Criminal Justice Act 1991 Appeal to the House of Lords The House of Lords overturned the declaration on 30 July 2004: [2004] UKHL 38.
11 Bellinger v. Bellinger (House of Lords; [2003] UKHL 21; 10 April 2003) Section 11(c) of the Matrimonial Causes Act 1973 Intervened in proceedings brought before the House of Lords In Goodwin v UK (Application 28957/95; 11 July 2002) the European Court of Human Rights had already identified the absence of any system for legal recognition of gender change as a breach of Articles 8 and 12. This was remedied by the Gender Recognition Act 2004, which came into force on 4 April 2005.
12 R (on the application of M) v. Secretary of State for Health (Administrative Court; [2003] EWHC 1094 (Admin);16 April 2003) Sections 26 and 29 of the Mental Health Act 1983 In 2004, the Government published a Bill proposing reform of the mental health system, which would have replaced these provisions. Following substantial opposition in Parliament, the Government withdrew the Bill in March 2006 and introduced a new Bill which received Royal Assent on 19 July 2007 as the Mental Health Act 2007, of which sections 23 to 26 replace the incompatible provisions. These provisions came into force on 3 November 2008.
13 R (on the application of Wilkinson) v. Inland Revenue Commissioners (Court of Appeal; [2003] EWCA Civ 814; 18 June 2003) Section 262 of the Income and Corporation Taxes Act 1988 The section declared incompatible was no longer in force at the date of the judgment, having already been repealed by the Finance Act 1999 sections 34(1), 139, and Schedule 20.
14 R (on the application of Hooper and others) v. Secretary of State for Work and Pensions (Court of Appeal; [2003] EWCA Civ 875; 18 June 2003) Sections 36 and 37 of the Social Security Contributions and Benefit Act 1992 The law had already been amended at the date of the judgment by the Welfare Reform and Pensions Act 1999, section 54(1), which came into force on 9 April 2001
15 R (on the application of MH) v. Secretary of State for Health (Court of Appeal; [2004] EWCA Civ 1609; 3 December 2004) Section 2 of the Mental Health Act 1983 was declared incompatible with Article 5(4) of the ECHR in so far as: (i) it is not attended by provision for the reference to a court of the case of an incompetent patient detained under section 2 in circumstances where a patient has a right to make application to the Mental Health Review Tribunal but the incompetent patient is incapable of exercising that right; and (ii) it is not attended by a right for a patient to refer his case to a court when his detention is extended by the operation of section 29(4). Appeal to House of Lords The House of Lords overturned the declaration on 20 October 2005: [2005] UKHL 60.
16 A and others v. Secretary of State for the Home Department (House of Lords; [2004] UKHL 56; 16 December 2004) Section 23 of the Anti-terrorism, Crime and Security Act 2001 Appeal to Court of Appeal against decision of the Special Immigration Appeals Tribunal. Court of Appeal allowed government appeal, which was then appealed to House of Lords. The provisions were repealed by the Prevention of Terrorism Act 2005, which put in place a new regime of control orders, which came into force on 11 March 2005.
17 R (on the application of Sylviane Pierrette Morris) v. Westminster City Council & First Secretary of State (No. 3) (Court of Appeal;[2005] EWCA Civ 1184; 14 October 2005) Section 185(4) of the Housing Act 1996 Law was by Schedule 15 to the Housing and Regeneration Act 2008. The Act received Royal Assent on 22 July 2008 and Schedule 15 was brought into force on 2 March 2009.
18 R (Gabaj) v. First Secretary of State (Administrative Court; unreported; 28 March 2006 Section 185(4) of the Housing Act 1996 Law amended by Schedule 15 to the Housing and Regeneration Act 2008. The Act received Royal Assent on 22 July 2008 and Schedule 15 was brought into force on 2 March 2009.
19 R (on the application of Baiai and others) v. Secretary of State for the Home Department and another (Administrative Court; [2006] EWHC 823 (Admin); 10 April 2006) (a) Section 19(3) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (b) Regulations 7 and 8 of the Immigration (Procedure for Marriage) Regulations 2005 (a) Appeal to House of Lords (b) Following House of Lords judgement laid Remedial Order to abolish certificate of approval scheme, which was approved on 4(th) April 2011 and the scheme will end on 9(th) May 2011. The House of Lords held that the declaration of incompatibility should be limited to a declaration that section 19(1) of the Act was incompatible with Article 14 taken together with Article 12, insofar as it discriminated between civil marriages and Church of England marriages. In other respects it was possible to read and give effect to section 19 in a way which was compatible with Article 12: [2008] UKHL 53.
20 Re MB (Administrative Court; [2006] EWHC 1000 (Admin); 12 April 2006) Section 2 of the Prevention of Terrorism Act 2005 (specifically the procedure provided by the 2005 Act for supervision by the court of non-derogating control orders was held incompatible) Appeal to Court of Appeal The Court of Appeal overturned the declaration, a decision which was upheld by the House of Lords on 31 October 2007: [2007] UKHL 46.
21 R (on the application of (1) June Wright (2) Khemraj Jummun (3) Mary Quinn (4) Barbara Gambier) v. (1) Secretary of State for Health (2) Secretary of State for Education & Skills (Administrative Court; [2006] EWHC 2886 (Admin); 16 November 2006) Section 82(4)(b) of the Care Standards Act 2000 Appeal to Court of Appeal The House of Lords reinstated the declaration of incompatibility on 21 January 2009: [2009] UKHL 3. By the date of the House of Lords' judgment, the transition to a new scheme under the Safeguarding Vulnerable Groups Act 2006 was already underway. The new SVGA scheme does not include the feature of provisional listing which was the focus of challenge in the Wright case.
22 R (Clift) v. Secretary of State for the Home Department; Secretary of State for the Home Department v Hindawi and another (House of Lords; [2006] UKHL 54; 13 December 2006) Sections 46(1) and 50(2) of the Criminal Justice Act 1991 The provisions in question had already been repealed and replaced by the Criminal Justice Act 2003, save that they continued to apply on a transitional basis to offences committed before 4 April 2005. Section 27 of the Criminal Justice and Immigration Act 2008 therefore amended the Criminal Justice Act 1991 to remove the incompatibility in the transitional cases. The amendment came into force on 14 July 2008, but reflected administrative arrangements addressing the incompatibility that had been put in place shortly after the declaration was made.
23 Smith v. Scott (Registration Appeal Court (Scotland); [2007] CSIH 9; 24 January 2007) Section 3(1) of the Representation of the People Act 1983 Currently the Government is considering afresh the issue of prisoners' voting rights and the outcome of this process will determine the Government's response to the declaration in Smith.
24 Nasseri v. Secretary of State for the Home Department (Administrative Court; [2007] EWHC 1548 (Admin); 2 July 2007) Paragraph 3 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 Appeal to Court of Appeal, which overturned the declaration on incompatibility The claimant appealed to the House of Lords and was unsuccessful.
25 R (Wayne Thomas Black) v. Secretary of State for Justice (Court of Appeal; [2008] EWCA Civ 359; 15 April 2008) Section 35(1) of the Criminal Justice Act 1991 Appeal to House of Lords against Court of Appeal judgement The House of Lords overturned the declaration of incompatibility on 21 January 2009: [2009] UKHL 1.
26 R (on the application of (1) F (2) Angus Aubrey Thompson) v. Secretary of State for the Home Department (Administrative Court; [2008] EWHC 3170 (Admin); 19 December 2008) Section 82 of the Sexual Offences Act 2003 Appeal to Supreme Court The Supreme Court upheld the declaration on 22 April 2010: [2010] UKSC 17. The Home Secretary announced to Parliament in February 2011 that she would bring forward proposals shortly.
27 R (on the application of Royal College of Nursing and others) v. Secretary of State for Home Department (Administrative Court; [2010] EWHC 2761; 10 November 2010). Paragraph 8 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 The Government is bringing forward provisions in the Protection of Freedoms Bill.

Does this answer the above question?

Yes3 people think so

No0 people think not

Would you like to ask a question like this yourself? Use our Freedom of Information site.