Declaration of Incompatibility

A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider that the terms of a statute to be incompatible with the UK's obligations under the Human Rights Act 1998, which incorporated the European Convention of Human Rights into the UK domestic law.

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. However, the declaration of incompatibility is often seen as a last resort as the judiciary will attempt to interpret primary legislation as being compatible. 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. 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.

By section 10 of the Human Rights Act 1998, a 'fast track' option 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).