The Challenge Of The ECHR Appendix Declarations Of Incompatibility Under S.4 Of The UK Human Rights Act 1998

Appendix: Declarations of Incompatibility made under section 4 of the Human Rights Act, 1998
Declarations of incompatibility made under section 4 of the Human Rights Act 1998
Part 1: These are the declarations of incompatibility we are aware of which have been made under section 4 of the Human Rights Act 1998 in
respect of provisions in primary legislation, and which have not been overturned on appeal (although some remain subject to appeal – see the
“comments” column). Declarations of incompatibility which have been overturned on appeal are set out in Part 2 of the table below.
Case name and description
Date Content of the declaration
R (on the application of H) v Mental Health Review
Tribunal for the North and East London Region &
The Secretary of State for Health
(Court of Appeal)
The case concerned a man who was admitted under
section 3 of the Mental Health Act 1983 and sought
discharge from hospital.
28 Mar
2001 Sections 72 and 73 of the Mental Health
Act 1983 were incompatible with Article
5(1) and 5(4) in as much as they did not
require a Mental Health Review Tribunal
to discharge a patient where it could not
be shown that he was suffering from a
mental disorder that warranted detention.
The legislation was amended by
the Mental Health Act 1983
(Remedial) Order 2001 (SI 2001
(In force 26 Nov 2001)
McR’s Application for Judicial Review
(Kerr J)
The case concerned a man who was charged with the
attempted buggery of woman. He argued that the
existence of the offence of attempted buggery was in
breach of Article 8.
15 Jan
2002 Section 62 of the Offences Against the
Person Act 1861 (attempted buggery),
which continued to apply in Northern
Ireland, was incompatible with Article 8
to the extent that it interfered with
consensual sexual behaviour between
Section 62 was repealed in NI
by the Sexual Offences Act
2003, sections 139, 140,
Schedule 6 paragraph 4 and
Schedule 7.
(In force 1 May 2004)
International Transport Roth GmbH v Secretary
of State for the Home Department
(Court of Appeal, upholding Sullivan J)
The case involved a challenge to a penalty regime
applied to carriers who unknowingly transported
clandestine entrants to the UK.
22 Feb
2002 The penalty scheme contained in Part II of
the Immigration and Asylum Act 1999
was incompatible with Article 6 because
the fixed nature of the penalties offended
the right to have a penalty determined by
an independent tribunal. It also violated
Article 1 of Protocol 1 as it imposed an
excessive burden on the carriers.
The legislation was amended by
the Nationality, Immigration
and Asylum Act 2002, section
125, and Schedule 8.
(In force 8 Dec 2002)

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