Incompatibility Declarations HRA s. 4

Introduction

Section 4 of the Human Rights Act 1998 (HRA) gives certain senior courts a specific tool: a declaration that a provision in an Act of Parliament is incompatible with a right under the European Convention on Human Rights (ECHR). This declaration does not strike down or suspend the law. Instead, it flags the problem to Parliament, preserving parliamentary sovereignty while allowing courts to speak plainly when a statutory provision cannot be read compatibly with Convention rights.

The courts must first consider whether they can interpret the provision compatibly under Section 3 HRA. Only where a rights‑consistent reading is not possible should a declaration be made. This guide explains when Section 4 is used, which courts can issue a declaration, what the declaration does, and what typically happens next.

What You'll Learn

• Which courts can issue a Section 4 declaration and in what kinds of cases
• How Section 4 fits with Section 3 (interpretation) and Section 6 (public authority duty)
• The effect of a declaration under Section 4(6) and what it means for the parties
• How declarations interact with primary and subordinate legislation
• What government can do after a declaration, including remedial orders under Section 10
• Leading cases from the House of Lords and the UK Supreme Court, and how they shaped the law

Core Concepts

Interpretation First: Section 3 HRA

• Section 3 requires courts to read and give effect to legislation in a way that is compatible with Convention rights, “so far as it is possible to do so”.
• The power is strong but not limitless.
  • In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords accepted substantial “reading in” to achieve compatibility where this was consistent with the overall scheme.
  • In Re S (Minors) [2002] UKHL 10 and R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, the House of Lords refused interpretations that would cross the line into judicial amendment or contradict a core feature of the legislation.
• If a rights‑compatible reading would go against the grain of the statute, rewrite its policy, or create a scheme Parliament clearly did not choose, Section 3 cannot be used. The court then considers a Section 4 declaration.

Tip: Always plead Section 3 interpretations first. Invite a Section 4 declaration in the alternative if the court concludes a compatible reading is not possible.

Who Can Make a Declaration (Section 4(5))

Only specified senior courts may issue a declaration of incompatibility:

• England and Wales: High Court, Court of Appeal, and the UK Supreme Court
• Scotland: Court of Session and the High Court of Justiciary
• Northern Ireland: High Court and Court of Appeal
• The Judicial Committee of the Privy Council also appears in the statute, though most domestic human rights appeals now lie to the UK Supreme Court

If a lower court (for example, the County Court or a tribunal) faces an incompatibility issue, it must apply Section 3 if it can. It cannot issue a declaration under Section 4 and will usually leave the point to be taken to a senior court on appeal. If a court is considering a declaration, the relevant law officer (such as the Attorney General) must be notified and may intervene (Section 5 HRA).

Primary vs Subordinate Legislation

• Section 4 mainly concerns Acts of Parliament (primary legislation). A declaration may be made where a provision in an Act is incompatible.
• Subordinate legislation (such as regulations) is different:
  • If it is incompatible but could lawfully be made compatible under the enabling Act, the court should set it aside or disapply it (public authorities must not act incompatibly under Section 6).
  • A declaration under Section 4 may be made in relation to subordinate legislation only if the primary legislation prevents the incompatibility from being removed (Section 4(4)).

Effects and Limits of a Declaration (Section 4(6))

A Section 4 declaration:

• Does not affect the validity, continuing operation, or enforcement of the provision
• Is not binding on the parties to the case (the court must still decide the dispute under the law as it stands)
• Carries significant constitutional and political weight; it usually prompts consideration of legislative change

Damages are not a given. Under Section 8 HRA, damages may be awarded only if necessary to afford “just satisfaction” for a breach by a public authority. Where a public authority had no choice because primary legislation required the act (Section 6(2)(a)), damages will often be refused.

What Happens Next: Section 10 Remedial Orders and Parliament

After a declaration:

• Ministers may use Section 10 HRA to make a remedial order to remove the incompatibility. This is a streamlined process, subject to Parliamentary scrutiny (normally the affirmative procedure) and oversight by the Joint Committee on Human Rights.
• Alternatively, Parliament may pass full primary legislation to reform the law.
• A declaration is not an instruction to legislate, but governments generally respond, sometimes after consultation or an independent review.

Key Examples or Case Studies

Bellinger v Bellinger [2003] UKHL 21

• Issue: Marriage under the Matrimonial Causes Act 1973 did not recognise a transgender woman’s acquired gender.
• Right engaged: Article 8 (private life).
• Outcome: The House of Lords held that a Section 3 reading would involve choices best left to Parliament; it made a declaration of incompatibility.
• Aftermath: Gender Recognition Act 2004 created a statutory scheme for legal recognition.

R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46

• Issue: The Home Secretary set minimum terms for mandatory life sentences for murder.
• Rights engaged: Article 6 (independent and impartial tribunal).
• Outcome: No Section 3 fix was possible without recasting the scheme; a declaration was made.
• Aftermath: Judges, not ministers, now set minimum terms (Criminal Justice Act 2003).

A v Secretary of State for the Home Department [2004] UKHL 56 (the Belmarsh case)

• Issue: Indefinite detention of foreign nationals suspected of terrorism under the Anti‑terrorism, Crime and Security Act 2001.
• Rights engaged: Articles 5 and 14 (liberty and non‑discrimination).
• Outcome: Declaration that the scheme was disproportionate and discriminatory.
• Aftermath: The scheme was replaced by control orders (later TPIMs), following Parliamentary debate.

R (F and Thompson) v Secretary of State for the Home Department [2010] UKSC 17

• Issue: Indefinite notification requirements for certain sex offenders with no review mechanism.
• Right engaged: Article 8.
• Outcome: Declaration that the absence of review was incompatible.
• Aftermath: Protection of Freedoms Act 2012 introduced a review process.

Smith v Scott [2007] CSIH 9 (Registration Appeal Court, Scotland)

• Issue: Blanket ban on convicted prisoners voting (Representation of the People Act 1983).
• Right engaged: Article 3 of Protocol 1.
• Outcome: Declaration of incompatibility.
• Aftermath: The ban remained for a period; later, limited changes followed in Scotland (prisoners on short sentences may vote in some elections). The broader political debate continued.

R (Nicklinson) v Ministry of Justice [2014] UKSC 38

• Issue: Assisted dying and the compatibility of the Suicide Act 1961.
• Point to note: The Supreme Court accepted it had jurisdiction to make a declaration but declined to do so at that time, emphasising the institutional limits on judicial change where moral and policy choices arise. This shows the high threshold for using Section 4 when Parliament is actively considering reform.

Practical Applications

For litigators and advisers:

• Choose the right forum
  • Start in a court that can grant a Section 4 declaration (High Court and above), or plan a clear appeal route.
• Plead a Section 3 route first
  • Set out the precise compatible reading you say is possible. Explain why it respects the statutory scheme.
• Plead Section 4 in the alternative
  • If the court rejects the Section 3 reading, invite a declaration. Identify the exact provision(s) and the Convention right(s) engaged.
• Notify law officers early
  • The Attorney General (or relevant law officer) must be notified under Section 5 if a declaration is in prospect. Expect an intervention.
• Manage remedies and outcomes
  • Be realistic about damages: Section 6(2) may shield public authorities acting under primary legislation.
  • Consider interim relief on separate grounds if individual harm is pressing, but remember a declaration does not suspend the statute.
• Evidence and proportionality
  • In cases turning on justification (e.g., Articles 8, 10, 11), assemble evidence on necessity and proportionality. Government will often put forward detailed material; be ready to test it.
• Plan for what comes next
  • If a declaration is made, seek directions about the status of the individual case (e.g., a stay or structured timetable) and keep watch for remedial orders or a Bill.

For government lawyers and drafters:

• Assess whether a remedial order under Section 10 is suitable or whether full legislation is needed.
• Prepare statements and impact material for Parliamentary scrutiny, and engage early with the Joint Committee on Human Rights.
• Review adjacent provisions for knock‑on effects so the amendment is coherent.

For students and exam preparation:

• Be clear on the Section 3/Section 4 sequence.
• Cite authority: Ghaidan (strong interpretation), Re S and Anderson (limits), and Bellinger/A/Anderson/F and Thompson (declarations in practice).
• State the effect of Section 4(6) precisely: no strike‑down, not binding on the parties, political rather than legal force.

Summary Checklist

• Section 3 first: can the court read the statute compatibly “so far as possible”?
• Only senior courts listed in Section 4(5) can make a declaration.
• Subordinate legislation: normally disapplied if incompatible; use Section 4 only if the primary Act compels the incompatibility.
• A declaration does not change the law or decide the parties’ rights; the case must still be determined under the statute.
• Section 5 notice to law officers before a declaration is made.
• Section 10 remedial orders provide a route for fast legislative correction, subject to Parliamentary control.
• Key cases: Bellinger (gender recognition), Anderson (tariffs), A (Belmarsh), F and Thompson (sex offenders), Smith v Scott (prisoner voting).
• Damages are not automatic; Section 6(2) may bar them where the public authority had no discretion.

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