WHAT DOES IT MEAN FOR A PROVISION TO BE “INCOMPATIBLE” WITH CONVENTION RIGHTS?

Abstract

What it means for a provision to be “incompatible” with Convention rights is crucial in determining whether courts with the power to do so ought to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“HRA”). A clear understanding of incompatibility is also necessary for the proper operation of statements of compatibility under section 19 HRA. It is crucial for the devolved legislatures whose incompatible legislation is “not law”. And delegated legislation can be struck down, or declared incompatible, by a court for the same reason. Yet the test for determining incompatibility remains unclear and understudied. The lack of clarity threatens both rights protection and dialogue between the different branches, and layers, of the state. This article argues that the test currently favoured sets the bar inappropriately high, and that the test must more clearly consider both the potential extent, and the likelihood, of the breach.