2.2 Declarations of incompatibility
Where there is a direct conflict between UK domestic law and the rights under the ECHR, UK courts may make a declaration of incompatibility under Section 4, Subsection 2 of the HRA.
There are several examples of when the courts have done this, such as when the British Nationality Act 1981 (Remedial) Order 2019 was passed to remove incompatibilities with the ECHR.
Examples of declarations of incompatibility
In the case of Johnson v. Secretary of State for the Home Department [2016] UKSC 56, the Supreme Court made a declaration of incompatibility in relation to paragraph 70 of Schedule 9 to the Immigration Act 2014, which amended s.41A(1) of the 1981 Act to apply a good character test to applications for registration under ss.4F–4I of the 1981 Act.
In the case of R (on the application of David Fenton Bangs) v. Secretary of State for the Home Department (claim number CO/1793/2017), the Administrative Court (a division of the High Court in England and Wales) agreed a consent order by which a declaration of incompatibility was made in relation to s.47(1) of the Borders Citizenship and Immigration Act 2009 (c.11), insofar as it introduced a new s.41A into the 1981 Act, applying a good character test to applications for registration under s.4C of the 1981 Act.
However, note that a declaration of incompatibility does not affect the validity of law passed by Parliament. The UK courts must continue to apply the incompatible law and it is Parliament’s responsibility to amend it accordingly.
Courts have powers to issue a declaration of incompatibility under s.4 of the HRA. The declaration constitutes a notification to Parliament that the legislation is incompatible with the ECHR. Parliament can then decide to amend or retain the legislation. Note that declarations of incompatibility in relation to legislation of the other UK legislatures have a different effect. For example, a declaration of incompatibility about a law from the Senedd (the Welsh Parliament) means that the law is void and has no effect.