Declarations of Incompatibility:
When Parliament enacted the Human Rights Act 1998 (the HRA) it enabled the higher courts to make 'declarations of incompatibility' in relation to legislation. This was a major innovation in our law. The HRA section 3 states: 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. Section 4(2) applies when a court determines whether a provision of primary legislation is compatible with a Convention right. If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (Note s.4(4) in relation to subordinate legislation).
The effect of a declaration is to put the government on notice that the court considers that there is an incompatibility between the legislation and Convention rights. This enables the government and Parliament to decide whether to address that incompatibility and, if so, how. Parliament is not bound to make any changes. It could choose
to leave matters just as they are. If that course is taken then there is the possibility that the matter might eventually be raised in the European Court of Human Rights. If Parliament opts to make changes then the HRA has a 'fast-track' procedure - section 10. It is important to note that, when a declaration of incompatibility is made, the legislation is not in any way invalidated. It continues in force and may continue to be enforced.
The declaration of incompatibility permitted by the HRA has permitted the courts to clearly state their view on the legislation but has also retained Parliament's right to make any legislation. The courts have not been handed a weapon to 'strike down' legislation in the way that, for example, the Supreme Court of the United States may find that legislation is unconstitutional - (see here).
Two recent decisions of the Court of Appeal:
Two judgments of the Court of Appeal (Civil Division) illustrate the process. In one case the court made a declaration of incompatibility and in the other refused to do so.
1] Declaration granted:
R(T) v Chief Constable of Greater Manchester, Secretaries of State for Home Department and Justice  EWCA Civ 25.
The court issued a Declaration of Incompatibility to the effect that the Enhanced Criminal Records Certificate scheme under the Police Act 1997 was, in certain respects, incompatible with Article 8 ECHR. A detailed look at this case is on the Panopticon blog. When T was 11 years of age,
he received two warnings from the Manchester Police in connection with
two stolen bicycles. He is now 21 years of age. Apart from these
police warnings, he is a man of good character. He believed that his
warnings were spent. But he was disabused of this in 2008 when (aged
17) he sought a part-time job at the local football club. The club
requested an ECRC which revealed the warnings. Following
representations, the police agreed to "step down" the warnings. A
"stepped down" conviction or caution was one to which only the police
had access and which was not disclosable to third parties.
T's case is considered by the court at paras. 28 to 69 of the judgment. The court concluded (69) that it was satisfied that, in certain respects, the disclosure provisions of the 1997 Act were incompatible with Article 8. It was for Parliament to devise a proportionate scheme. T was entitled to a declaration of incompatibility.
The case was argued in the Court of Appeal on 26th and 27th November 2012 with judgment delivered on 29th January 2013. It appears that the court delayed handing down the judgment to give the Home Office time to prevent the implications of the ruling causing problems with criminal record checks - see The Guardian 29th January 2013
A further notable point is that the court was willing to direct that the decision does not take effect pending determination by the Supreme Court of an application
by the Secretaries of State for permission to appeal, provided that the
application is made within 28 days from the date of the court's order. Thus, the court gave the executive considerable leeway. Given the Home Secretary's inevitable 'disappointment' at any decision which does not go her way, an application for an appeal to the Supreme Court is inevitable.
2] Declaration refused:
R (Gallestegui) v Westminster City Council  EWCA Civ 28.
Remember the late Brian Haw who camped out in Parliament Square, London in protest at the Iraq War? The Police and Social Responsibility Act 2011 Part 3 (in force 19th December 2011) s.143(1) was enacted to stop certain 'prohibited activities' in Parliament Square including 'camping.' Gallestegui is a peace campaigner and, for the past 6 years, has carried out a 24 hour vigil in Parliament Square. She challenged the legislation under Arts. 6, 10 and 11 and article 1 of Protocol No 1.
Lord Dyson MR concluded by saying:
'The importance of the freedom to protest in Parliament
Square is not in doubt. But the rights of others to use Parliament
Square (for protesting as well as simply enjoying the space) are also
important. If the effect of the 2011 Act had been to give the police
and/or Westminster and the GLA the power significantly, to emasculate
the freedom to protest then it might have been necessary to declare that
the statute was incompatible with articles 10 and 11 of the Convention.
But the statute is carefully targeted only at protests by those few
who wish to set up camp in Parliament Square. The freedom to protest
generally is not impaired at all. .... it is possible to maintain a protest day and night without
the use of a tent or similar equipment. For the reasons that I have
given, the balance between the rights of the few protesters adversely
affected by this legislation and the rights of others was struck by
Parliament in a way which fell within the area of its discretionary
judgment. For the same reasons, I believe that the ECtHR would hold
that this exercise of judgment fell within the margin of appreciation of
the UK. This is not a case for the grant of a declaration of