Effect of a declaration of incompatibility (HRA 1998 ss.3-4)
In proceedings in the High Court, Farah Siddiqui argues that a section of an Act of Parliament breaches her right to respect for private and family life under Article 8 of the European Convention on Human Rights. The judge concludes that the provision cannot be read and given effect in a way that is compatible with Article 8, and makes a declaration of incompatibility.
Which of the following best describes the effect of the declaration?
Choose one answer to see the reasoning.
Worked answer
Correct answer B: The provision remains valid and in force, the declaration does not bind the parties, and a Minister may make a remedial order if he considers there are compelling reasons.
THE RULE TO REMEMBER
A declaration of incompatibility under s.4 HRA 1998 leaves the provision valid, operative and enforceable and does not bind the parties; change is left to Parliament or a Minister's remedial order under s.10.
Effect of a declaration of incompatibility (HRA 1998 ss.3-4)
Section 3(1) of the Human Rights Act 1998 requires legislation to be read and given effect compatibly with Convention rights so far as it is possible to do so, but s.3(2)(b) provides that this does not affect the validity, continuing operation or enforcement of incompatible primary legislation. Where a compatible reading is not possible, the court may make a declaration of incompatibility under s.4(2). Section 4(6) provides that the declaration does not affect the validity, continuing operation or enforcement of the provision and is not binding on the parties. Section 10 then allows a Minister of the Crown who considers there are compelling reasons to amend the legislation by remedial order to remove the incompatibility.
Why A is wrong: S.4(6)(a) states that the declaration does not affect the validity of the provision.
Why C is wrong: The provision continues in operation and must still be enforced (s.3(2)(b) and s.4(6)(a)); the court cannot strike down or disapply primary legislation under the Act.
Why D is wrong: Nothing in ss.4 or 10 obliges Parliament to act; s.10 gives a Minister a discretionary power to make a remedial order.
Why E is wrong: S.4(5) defines "court" to include the Supreme Court (s.4(5)(a)) and, in England and Wales, the High Court and the Court of Appeal (s.4(5)(e)), so the High Court may make a declaration.
That's today's practice done. Another featured question tomorrow.
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