Appendix B: Political Responses to Declarations of Incompatibility in the United Kingdom
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | |
| 1. | R (Alconbury Developments) v. Secretary of State for the Environment, Transport and the Regions [Divisional Court,[1108] House of Lords[1109]] | The Divisional Court declared certain provisions of the Town and Country Planning Act, 1990, the Transport and Works Act, 1992, the Highways Act, 1980, and the Acquisition of Land Act, 1981 incompatible with Art. 6 of the European Convention for the Protection of Human Rights and Fundamental | Overturned |
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | colspan=2 bgcolor=white>Party in Government at the Time of Enactment of ||||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| Freedoms, 1950 (Convention). The declaration was overturned on appeal to the House of Lords. | ||||||||
| 2. | R (H) v. London North and East Region Mental Health Review Tribunal [Administrative Court,[1110] Court of Appeal[1111]] | The Court of Appeal declared sections 72(1) and 73(1) of the Mental Health Act, 1983 incompatible with Art. 5(1)(4) of the Convention. | Final | The incompatibility was removed by the Mental Health Act, 1983 (Remedial) Order, 2001. | ||||
| 3. | Wilson v. First County Trust Ltd (No 2) [Court of Appeal,[1112] House of Lords[1113]] | The Court of Appeal declared section 127(3) of the Consumer Credit Act, 1974 incompatible with Art. 6 and Art. 1 of Protocol 1 ofthe Convention. The declaration was set aside by the House of Lords. | Overturned | |||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective (but the order applied to applications and referrals pending before the Mental Health Tribunal). | 8 | Labour | ||||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| 4. | McR's Application for Judicial Review [High Court][1114] | Section 62 of the Offences against the Person Act, 1861 (which at the time was applicable in Northern Ireland) was declared incompatible with Art. 8 of the Convention. | Final | The incompatible provision was repealed by the Sexual Offences Act, 2003 (SOA) — section 139 read with Schedule 6 (paragraph 4) and section 140 read with Schedule 7. | ||||
| 5. | International Transport Roth GmbH v SSHD [High Court,[1115] Court of Appeal[1116]] | The High Court declared the penalty regime under Part II of the Immigration and Asylum Act, 1999 incompatible with Art. 6 of the Convention and Art. 1 of Protocol 1 to the Convention. The declaration was confirmed by the Court of Appeal. | Final | The penalty regime was amended by section 125 read with Schedule 8 of the Nationality, Immigration and Asylum Act, 2002. | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective | 22.1 | 27.5 | Labour | |||||
| Prospective | 8.5 | 9.5 | Labour | |||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| 6. | Matthews v. Ministry of Defence [High Court,[1117] Court of Appeal,[1118] House of Lords[1119]] | The High Court declared section 10 of the Crown Proceedings Act, 1947 incompatible with Art. 6 of the Convention. The Court of Appeal overturned this declaration. The decision of the Court of Appeal was affirmed by the House of Lords. | Overturned | |||||
| 7. | R (Anderson) v. SSHD [Divisional Court,[1120] Court of Appeal,[1121] House of Lords[1122]] | The House of Lords declared section 29 of the Crime (Sentences) Act, 1997 incompatible with Art. 6 of the Convention. | Final | The incompatible provision was repealed by the Criminal Justice Act, 2003.[1123] [1124] | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective (however, prisoners who were already serving a term fixed by the Secretary of State had the opportunity to have their minimum term re-set by the High Court.36) | 11.8 | 12.7 | Labour | |||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| 8. | R (D) v SSHD [Administrative Court][1125] | Section 74 of the Mental Health Act, 1983 was declared incompatible with Art. 5(4) of the Convention by the Administrative Court. | Final | The incompatible provision was amended by section 295 of the Criminal Justice Act, 2003. | ||||
| 9. | Blood and Tarbuck v. Secretary of State for Health [Administrative Court (unreported)] | The Administrative Court declared section 28(6)(b) of the Human Fertilisation and Embryology Act, 1990 incompatible with Art. 8 and Art. 14 (read with Art. 8) of the Convention. | Final | The incompatibility was removed by the Human Fertilisation and Embryology (Deceased Fathers) Act, 2003. | ||||
| 10. | R (Uttley) v. SSHD [Administrative Court,[1126] Court of Appeal,[1127] House of Lords[1128]] | The Court of Appeal declared sections 33(2), 37(4A), and 39 of the Criminal Justice Act, 1991 incompatible with Art. 7 of the Convention. The declaration was overturned by the House of Lords. | Overturned | |||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective | 11 | 13 | Labour | |||||
| Retrospective | 6.6 | 9.1 | Labour | |||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| 11. | Bellinger v Bellinger [Family Division,[1129] Court of Appeal,[1130] House of Lords[1131]] | The House of Lords declared section 11(c) of the Matrimonial Causes Act, 1973 incompatible with Arts 8 and 12 of the Convention. | Final | The incompatibility was remedied by the Gender Recognition Act, 2004. | ||||
| 12. | R (M) v Secretary of State for Health [Administrative Court][1132] | The Administrative Court declared sections 26 and 29 of the Mental Health Act, 1983 incompatible with the Convention. | Final | The incompatible provisions were amended by the Mental Health Act, 2007. | ||||
| 13. | R (Wilkinson) v. Inland Revenue Commissioners [Administrative Court,[1133] Court of Appeal,[1134] House of Lords[1135]] | Section 262 of the Income and Corporation Taxes Act, 1988 was declared incompatible with Art. 14 read with Art. 1 of Protocol 1 of the Convention by | Final | The incompatible provision was abolished by section 34 of the Finance Act, 1999, before the case was heard at first instance. | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective | 14.7 | 23.8 | Labour | |||||
| Prospective | 51.3 | 66.6 | Labour | |||||
| Prospective | Labour | |||||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| The Administrative Court. Appeals against the declaration were dismissed by the Court of Appeal and the House of Lords. | ||||||||
| 14. | R (Hooper and Others) v. Secretary of State for Work and Pensions [Administrative Court,[1136] Court of Appeal,[1137] House of Lords[1138]] | The Administrative Court declared sections 36 and 37 of the Social Security Contributions and Benefits Act, 1992 incompatible with Arts 8 and 14 of the Convention. The declaration was overturned by the Court of Appeal. The House of Lords agreed with the Administrative Court, but saw 'no point' in making declarations of incompatibility since the relevant sections had been repealed.[1139] | Overturned by the Court of Appeal. The House of Lords did not reinstate the declaration. | The impugned provisions were, in any event, amended by the Welfare Reforms and Pension Act, 1999 before the case was heard at first instance. | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective | Labour | |||||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| 15. | R (MH) v. Secretary of Health [Administrative Court,[1140] Court of Appeal,[1141] House of Lords[1142]] | The Court of Appeal declared sections 2 and 29(4) of the Mental Health Act, 1983 incompatible with Art. 5(4) of the Convention. The House of Lords overturned the declaration. | Overturned | |||||
| 16. | A v SSHD [Special Immigration Appeals Commission (SIAC),[1143] Court of Appeal,[1144] House of Lords[1145] [1146]] | The SIAC declared section 23 of Anti-Terrorism, Crime and Security Act, 2001 (ATCSA) incompatible with Arts 5 and 14 of the Convention. This decision was reversed by the Court of Appeal, but was later affirmed by the House of Lords. | Final | The incompatible provision was repealed by the Prevention of Terrorism Act, 2005. | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective (existing appeals against certification to the SIAC were not affected).58 | 2.8 | 2.9 | Labour | |||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| 17. | R (Sylviane Pierrette Morris) v. Westminster City Council and First Secretary of State (No 3) [Administrative Court,[1147] Court of Appeal[1148]] | The Administrative Court declared section 185(4) of the Housing Act, 1996 incompatible with Art. 14 of the Convention. The declaration was modified slightly and upheld by the Court of Appeal. | Final | The incompatible provision was amended by Schedule 15 of the Housing and Regeneration Act, 2008. | ||||
| 18. | R (Gabaj) v. First Secretary of State [Administrative Court (28 March 2006, unreported)] | The Administrative Court declared section 185(4) of the Housing Act, 1996 incompatible with Art. 14 of the Convention. | Final | The incompatible provision was amended by Schedule 15 of the Housing and Regeneration Act, 2008. | ||||
| 19. | R (Baiai) v. SSHD [Administrative Court,[1149] Court of Appeal,[1150] House of Lords[1151]] | The Administrative Court declared section 19(3) of the Asylum and Immigration (Treatment of Claimants, etc.) | Final | The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Remedial) | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective | 33.2 | 40.6 | Labour | |||||
| Prospective | 27.8 | 35.1 | Labour | |||||
| Prospective (but since the 'Certificate of Approval' scheme was eliminated, those who had | 32.8 | 33.3 | Conservative Liberal Democrats Coalition | |||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| Act, 2004 incompatible with Arts 12 and 14 of the Convention. The House of Lords varied this declaration, applying it to section 19(1) and limiting it on the basis that it discriminated between civil and Anglican marriages. | Order, 2011 addressed the incompatibility by removing the 'Certificate of Approval' scheme under the Act. | |||||||
| 20. | Re MB [Administrative Court,[1152] Court of Appeal,[1153] House of Lords[1154]] | The Administrative Court declared that the provisions of section 3 of the Prevention of Terrorism Act, 2005 relating to the Court's supervision of non-derogating control orders were incompatible with Art. 6 of the Convention. The | Overturned | |||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| been denied this certificate in the past had the freedom to give notice of marriage). | ||||||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| declaration was overturned by the Court of Appeal. The House of Lords refused to issue a declaration of incompatibility. | ||||||||
| 21. | bgcolor=white>R (Wright and Others) v. Secretary of State for Health [Administrative Court,[1155] Court of Appeal,[1156] House of Lords[1157]]The Administrative Court declared certain provisions of the Care Standards Act, 2000 incompatible with Arts 6 and 8 of the Convention. This declaration was overturned by the Court of Appeal. On appeal, the House of Lords declared section 82(4) of the Care Standards Act, 2000 incompatible with Arts 6 and 8 of the Convention. | Final | The transition to a fresh statute, the Safeguarding Vulnerable Groups Act, 2006, which does not include a system of provisional listing, began even before the decision of the House of Lords. | |||||
| 22. | R (Clift) v SSHD, R (Hindawi) | In respect of Hindawi and Headley, the | Final | The provisions in question had already | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective | Labour | |||||||
| Retrospective | 16.8 | 19 | Labour | |||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| v. SSHD, R (Headley) v. SSHD [Administrative Court,[1158] Court of Appeal,[1159] House of Lords[1160]] | House of Lords declared sections 46(1) and 50(1) of the Criminal Justice Act, 1991 incompatible with Art. 14 (in conjunction with Art. 5) of the Convention. | been repealed, but applied on a transitional basis to offences committed before 4 April 2005.[1161] The response was statutory, in the form of section 27 of the Criminal Justice and Immigration Act, 2008, which removed the incompatibility in these transitional cases as well. | ||||||
| 23. | Smith v. Scott [Registration Appeal Court][1162] | The Court declared section 3 of the Representation of | Final | Although a draft bill,[1163] proposing | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| - | - | - | - | |||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| People Act, 1983 incompatible with Art. 3 of Protocol 1 of the Convention. | three options, was presented for parliamentary scrutiny, the law remains unamended. | |||||||
| 24. | R (Nasseri) v. SSHD [Administrative Court,[1164] Court of Appeal,[1165] House of Lords[1166]] | The Administrative Court declared paragraph 3 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act, 2004 incompatible with Art. 3 of the Convention. The declaration was overturned by the Court of Appeal. The House of Lords confirmed the overturning of the declaration. | Overturned | |||||
| 25. | R (Black) v Secretary of State for Justice [Court | The Court of Appeal declared section 35(1) | Overturned | - | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| - | - | - | - | |||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| of Appeal,[1167] House of Lords[1168]] | of the Criminal Justice Act, 1991 incompatible with Art. 5(4) of the Convention, since it left the decision on the parole of longÂterm determinate sentence prisoners to the Secretary of State. The declaration was overturned in appeal before the House of Lords. | |||||||
| 26. | R (F & Thompson) v Secretary of State [Divisional Court, Court of Appeal,[1169] Supreme Court[1170]] | The Divisional Court declared section 82 of the SOA incompatible with Art. 8 of the Convention. The declaration was confirmed by the Court of Appeal and the Supreme Court. | Final | A remedial order removing the incompatibility was made by the Secretary of State— the Sexual Offences Act 2003 (Remedial) Order, 2012. | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Retrospective (existing offenders under indefinite notification requirements would be able to make an application for review). | 26.8 | 27.3 | Conservative Liberal Democrats Coalition | |||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| 27. | R (Royal College of Nursing) v. SSHD [Administrative Court][1171] | The Court declared paragraph 8 of Part 2 of Schedule 3 of the Safeguarding Vulnerable Groups Act, 2006 incompatible with Arts 6 and 8 of the Convention, as it provided for the automatic barring of persons under the statute without allowing them to make prior representations. | Final | The incompatibility removed by section 67(6) of the Protection of Freedoms Act, 2012. | ||||
| 28. | T v. Secretary of State for Justice [Administrative Court,[1172] Court of Appeal,[1173] Supreme Court[1174]] | The Court of Appeal declared the disclosure provisions in relation to enhanced criminal record checks under the Police Act, 1997 incompatible with Art. 8 of the Convention. The | Final | The incompatibility was removed by executive order after the Court of Appeal judgment but before the Supreme Court judgment— Rehabilitation | ||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |||||
| Prospective | 17.7 | 22 | Conservative Liberal Democrats Coalition | |||||
| Conservative Liberal Democrats Coalition | ||||||||
| No. | Case | Details of Declaration | Final/ Overturned | Mode of Response | ||||
| Supreme Court confirmed the declaration of incompatibility. | of Offenders Act, 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order, 2013. | |||||||
| Prospective/ Retrospective | Response Time between Declaration and Enactment of Response (in Months) | Response Time between Declaration and Entry into Force of Response (in Months) | Party in Government at the Time of Enactment of Response | |