incompatibility declarations

Question 1

s 4(2) and (4)

Answer 1

s.4(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. s.4(4) If the court is satisfied—(a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility…

Question 2

Ghaidan v Godin-Mendoza [2004] UKHL 30, Lord Nicholls [30]

Answer 2

While noting the ‘unusual and far reaching character’ of the s. 3 interpretive obligation (at [30]; see also [29], and Lord Steyn, at [44–46]), he did not regard it as giving the courts carte blanche

Question 3

An Example of a Declaration of Incompatibility
o R (on the application of H) v Mental Health Review Tribunal for North and East London Region [2001] EWCA Civ 415

Answer 3

• It was argued that the language of s. 72 (which provided criteria for s. 73 decisions), and the form for considering an application under s. 73 breached Art. 5 of the European Convention on Human Rights (ECHR). This was because it placed the burden of proof on the patient to demonstrate that they no longer met the criteria for detention (see s. 3 MHA, detailed at [11]), instead of on the state
• Decision: court made an order declaring incompatibility of ss 72 and 73