UNDER SECTION 4 OF THE HUMAN RIGHTS ACT 1998
COMPATIBILITY MADE
X
6: DECLARATIONS OF IN
APPENDI
Act 1998 in e of which have been made under section 4 of the Human Rights
s of incompatibility we are awar
Part 1: These are the declaratione the
eal—se
been overturned on appeal (although some remain subject to appnd which have not
,
a gislation in primary leisionsrovrespect of pow
. the table bel out in Part 2 of al are set at ibility which have been overturned on appeions of incomp). Declarat“comments” column Comments Content of the declaration Date Case name and description
The legislation was amended by the Mental Health Act 1983 (Remedial) Order 2001(SI 2001 N
Sections 72 and 73 of the Mental Health Act 1983 w Mar 2001
28 alth ation of H) v Mental HeR (on the applicere incompatible with Article ibunal
for the North and East
Review Tr 4) in as much as they did not 5(1) and 5(o.3712) (In force 26 Nov 2001)
discharge a patient where it require a Mental Health Review Tribunal to suffering could not
be shown that he was s London Region & The Secretary of State for Health (Court of Appeal)
[2001] EWCA Civ 415 anted that warrfrom a mental disorder detention. er dmitted und
The case concerned a man who was aught section 3 of the Mental Health Act 1983 and so
discharge from hospital.Section 62 was repealed in NI by the Sexual OffencSection 62 of the Offences Against thePerson Act 1861 (attempted buggery),which co 15 Jan2002
McR’s Application for Judicial Review es Act ons 139, 140, 2003, sectirn d to apply in Northe
ntinue ph 4 and Schedule 6 paragraIreland, was incompatible with Article 8 to the extended with the
(Kerr J)[2003] NI 1 The case concerned a man who was cha Schedule 7.(In force 1 May 2004)
sensual terfered with co at it int th duals. e en indivi ha viour betw sexual be an. He argued that the existence of attempted buggery of wom the offence of attempted buggery was in breach of Article 8.
The legislation was amended by the Maintained in Part II coy scheme The penalty onality, and Asylum Act 1999 of the Immigration 22 Feb 2002 um Act Immigration and Asylcause le 6 be with Articatible
was incomp on 125, and 2002, sectifended the penalties of the fixed nature of International Transport Roth GmbH v Secretary of State for the Home Department (Court of Appeal, upholding Sullivan J)[2002] EW
CA Civ 158 Schedule 8.(In force 8 Dec 2002) rmined by o have a penalty dete the right tal. It also violated
dent tribun an independ an 1 as it imposeocol e 1 of ProtArticl The case involved a challenge to a penalty regime applied to carriers who unknowingly transported clandestine entrants to the UK. the carriers.
rden on buexcessive.
Case name and description Comments Content of the declaration Date The law was repealed by the
Criminal Justice Act 2003,sections 303(b)(I), 332 and Schedule 3es) Act e (SentencSection 29 of the Crim
25 Nov 2002 retary R (on the application of Anderson) v Secight e with the rbl 1997 was incompati
7, Pt 8. under Article 6 to have a sentence imposed by nd pendent a an indeTransitional and new
sentencing provisions were contained i period impartial tribunal in that the Secretaryof State decided on the minimumof State for the Home Department(House of Lords)[2002] UKHL 46The case involved a challenge to the Secretary of Statefor the Homn Chapter 7 and which must be served by a mandatory life sentence prisoner before he was considered for release on licence.o set the minimum e Department’s power t
that 1 and 22 of Schedule 2 Act.(Date power repealed 18Dec 2003) period that must be served by a mandatory life sentence prisoner. The law was amended by the Criminal Justice Act 2003 section 295.
(In force 20 Jan 2004) Section 74 of the Mental Health Act1983 was i19 Dec 2002 ary of State for the Home R v Secretn compatible with Article 5(4) nt, ex parte D Department that the continued to the exte
f discretionary life prisoners detention oHC 2805 (Stanley Burnton J)[2002] EWheir nal part of the pe
rved t who had secise of a pended on the exersentence dery power by the executive discretion The case involved a challenge to the Secretary of State for the Home Department’s discretion to allow a ess to to grant accovernment branch of g a court. discretionary life prisoner to obtain access to a court to
challenge their continued detention. The law was amended by theHuman Fertilisation and
Embryology (DeceasedFathers) ASection 28(6)(b) of the Human Fertilisation and Embryology Act 1990
was incompatible wi28 Feb2003 th Article 8, and/or Blood and Tarbuck v Secretary of State for
Health(Sullivan J)ct 2003. cle 8, Article 14 taken together with Arti(In force 1 Dec 2003) d not allow a
nt that it dito the exteules preventing a deceased Unreported The case concerned the r ther’s name to be given on deceased faate of his child. th certific the bir father’s name from being entered on the birth certificate of his child.
Case name and description Comments Content of the declaration Date l 2002) (11 Ju v UK In Goodwin
Section 11(c) Matrimonial Causes Act 1973 was incompati 10 Apr2003 Bellinger v Bellinger d the
identifiethe ECtHR e with Articles 8 blabsence of any system for legalrecognition of gender change
as a breach of Articles 8 and 12. This wand 12 in so far as it makes no provision for the recognition of gender sexual appealed (House of Lords)[2003] UKHL 21 A post-operative male to female trans
reassignment. as remedied by the he was not validly married to her cision that sagainst a dect 2004.
Gender Recognition A fact that at law she was a man. husband, by virtue of the (In force 4 April 2005)
e These provisions will b apter 3 replaced by Part 1, Ch Sections 26 and 29 of the Mental Health
Act 1983 were incompatible with Article 16 Apr2003 (clauses 24–27) of the Mental Health Bill currently before Parliament.8, in that the claimant had no choiceover the appointment or legal means of challengi
R (on the application of M) v Secretary of State for Health(Maurice Kay J)[2003] EWHC 1094 The Bill was r the appointment of hengintroduced in the House ofLords on 16 November 2006.It completed its Lords stageson 6 March 2007 and will nowpass to the House ofCommons. tive. nearest rela
detention under The case concerned a patient who lived in hostelaccommodation but remained liable to
the Mental Health Act 1983. Section 26 of the Act designated her adoptive father as her “nearest relative”
even though he had abused her as a child. The law had already been amended at the da Sections 36 and 37 of the Social Security Contributions and Be 18 Jun 2003 ation of Hooper and others) v R (on the applic
te of the nefit Act s d Pension Secretary of State for Work anre nt by the Welfa judgmen n breach of Article 14 i1992 were iReform and Pensions Act1999, secticle 8 and Article 1 n with Articombinatio(Court of Appeal, upholding Moses J)[2003] EWCA Civ 875 on 54(1) wers. of Protocol 1 in that benefits were
provided to widows but not wido House equent by subsed unaffectn wasaratio (The decl (In force 9 Apr 2001) UKHL 29 on 5 May 2005) of Lords ruling [2005] The case concerned Widowed Mothers Allowance which was payable to women only and not to men. Case name and description
Comments Content of the declaration Date The section declared incompatible was no longer in
force at t Section 262 of the Income and Corporation Taxes Act 1988 was incompati 18 Jun 2003
ation of Wilkinson) v Inland R (on the applicnt udgmehe jhe date of tcle 14 when read ble with Arti
having already been repealed by the Finance Act 1999 sections 34(1) with Article 1 of Protocol 1 in that it
discriminated against widowers in the provision of Widows Bereavement Allowance.Revenue Commissioners(Court of Appeal, upholding Moses J)[2003] EWCA Civ 814 , 139, Schedule 20. Ho
use equent by subsed unaffected wasaratio (The decl UKHL 30 on 5 May 2005) of Lords ruling [2005]
after 6 Apr 2000) (In force in relation to deaths occurring on or a yment of Widows Bereavement
The case concerned the prs. t not widowews buAllowance to widoThe provisions were repealed by the Prevention of T 1998 (Designated ts Act RighThe Human16 Dec2004 Home ate for the ers v Secretary of St A and other rorism 2001 was quashed derogation) Order nt Departme which put in place a Act 2005,
e meansattionporas not a prot wause ibecnew regime of control orders.(In force 11 Mar 2005)t uld no
sought and cog the aimevin of achi (House of Lords) [2004] UKHL 56 ticle 15. thin Arl
we therefore fallible Section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatl ed in
ternationaThe case concerned the detention under the Anti-terrorism,Crime and Security Act 2001 of foreign nationals who had been certified by t with Articles 5 and 14 as it wasdisproportionate and pers suspect Stat
eary of the Secretamitted the d who could not be deported without breaching terrorists, andetention of suspected internationalterroristce accordanrial int charge or thouained wit They were detcle 3 Art is in a way that discriminated on the immigration status.ground of nationality orwith a derogation from Article 5(1) provided by the Human Rights Act 1998 (Designated Derogation) Order 2001. how to DCLG are considering Section 185(4) of the Housing Act 1996was incompatible wi14 Oct2005 ation of Sylviane Pierrette R (on the applicremedy the incompatibility. th Article 14 to the es a dependent child t it requirextent tha who is subject to immigration control to be disregarded when determining whether a British citizen has prioMorris) v Westminster City Council & FirstSecretary of State(Court of Appeal, upholding Keith J)
[2005] EWCA Civ 1184 rity on. need for accommodation plication for local authority The case concerned an apen) accommodation by a single mother (a British citizwhose child was subject to immigration control.
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