Enhancing Parliament's role in relation to human rights judgments - Human Rights Joint Committee Contents

3  Declarations of Incompatibility


136. There has been one new final declaration of incompatibility made during the past year.[135] There have been a number of new declarations, however, which have been overturned on appeal or which are currently subject to appeal.[136]

137. In our previous Reports, we praised the Ministry of Justice database on declarations of incompatibility, noting that, if regularly updated, the database can significantly increase the transparency of the Government's response to these important judgments.[137] In our last Report, we expressed disappointment that the database did not appear to have been updated for a significant period of time; nor was it easily accessible on the new, redesigned, Ministry of Justice website.

138. Through officials at the Ministry of Justice, we have been provided with an updated version of this database, which adopts a different narrative format, which in our view is difficult to follow and less accessible. We are disappointed that the database is no longer available on the Ministry of Justice website. We recommend that the Ministry of Justice takes steps to resolve this problem to enable widespread public access to its database on declarations of incompatibility in order to enhance transparency in the implementation process. We also repeat our recommendation that the database should be reviewed and updated on at least a quarterly basis.

Recent declarations of incompatibility


139. On 21 January 2009, in Wright v Secretary of State for Health, the House of Lords made a declaration of incompatibility in relation to the scheme for placing care workers employed to look after vulnerable adults on a list of people considered unsuitable to work with such adults. It declared section 82(4)(b) of the Care Standards Act 2000 to be incompatible with the right to a fair trial (Article 6 ECHR) and to respect for private life (Article 8 ECHR).

140. We considered and reported on this declaration of incompatibility when scrutinising the then Policing and Crime Bill, as it amended the Safeguarding Vulnerable Groups Act 2006 which replaced the Care Standards Act.[138] We wrote to the Minister to ask whether, in the light of the House of Lords judgment in Wright, the 2006 Act is compatible with human rights and whether it meets the problems identified by the House of Lords in relation to Articles 6 and 8 ECHR. In reply, the Minister told us that the Government remained satisfied that the 2006 Act was compatible with human rights, as the new scheme does not involve any provisional listing and the Independent Safeguarding Authority (ISA) must invite representations before placing someone on the list. However, the Minister also noted that individuals would not be able to make representations where it was considered that they posed an immediate risk of harm. In our Report, we concluded that aspects of the new scheme under the Safeguarding Vulnerable Groups Act remained troubling from a human rights perspective. We concluded:

    The fact that the individual will not be invited to make representations where it is deemed that she poses an immediate risk of harm before she is placed on the barred list appears, on its face, to be analogous to the Secretary of State's discretion to offer some care workers, but not others, the opportunity to make representations, which was part of the House of Lords' reasoning in Wright.[139]

141. We noted the House of Lords' decision that there needed to be a swift method for hearing both sides of the story and before irreparable harm was done. We concluded that it was unclear how quickly a hearing involving the barred person, at which he or she could make representations, would take place under the new scheme. We recommended that the Government consider whether the procedure needs to be amended to give effect to the judgment by ensuring that an individual who is placed on the barred list without the possibility of making representations is able to make representations at a full hearing as a matter of urgency and, as the House of Lords held, "before irreparable damage [is] done".[140] We reiterate these concerns and encourage the Government to clarify the issue.

142. We have recently received a submission from Richard Thomas, Administrative Justice and Tribunals Council Chairman, expressing serious concerns about the compatibility of Section 4 of the Safeguarding Vulnerable Groups Act 2006 with the right to a fair hearing, as guaranteed by Article 6 ECHR and the right to respect for private and family life, guaranteed by Article 8 ECHR. His particular concern focuses on the limited right of appeal open to individuals who are to be listed. The existing route of appeal is limited to appeal on grounds of error of fact or error of law. Mr Thomas points out, that in decisions which involve the determination of whether it is appropriate for an individual to be included on a safeguarding list, this involves the exercise of discretion. Without a full appeal in respect of this discretionary power, the right to appeal is not adequate to meet the need for a hearing by an independent and impartial tribunal for the purposes of Article 6 ECHR. This reasoning has recently been confirmed by Lord Justice Laws in the Court of Appeal:

    Though it may entertain appeals on law or fact from the ISA for the purposes of its jurisdiction "the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact (s 4(3) of the 2006 Act). The issue most likely to be critical in a case like the present, namely whether on the proved or admitted facts the quality of an individual's act should be judged severe enough to put him on the barred list, appears to lie beyond the Upper Tribunal's decision.[141]

143. We have not had an opportunity to enter into correspondence with the Government on the scope of concerns raised by the Chairman of the Administrative Justice and Tribunals Council (AJTC) about the right to a fair hearing in relation to barring decisions made under the Safeguarding Vulnerable Groups Act 2006. We publish the recent letter of the Chairman of the AJTC with this report. We consider that the concerns which he has raised about the scope of the right to appeal in respect of barring decisions are serious ones. We recommend that the Government should respond directly to the Chairman of the AJTC, including its analysis of the compatibility of Section 4 of the Safeguarding Vulnerable Groups Act 2006 with Articles 6 and 8 ECHR. We call on the Government to publish that response as soon as possible.

Unremedied declarations of incompatibility

144. In this section, we consider declarations of incompatibility which remain outstanding because they have still not been remedied by the Government. We do not propose to set out the facts of these cases; this section should be read together with our previous Reports.


145. This case determined that the requirement that any marriage outside the Church of England involving a person subject to immigration control must be subject to a Certificate of Approval issued by the Secretary of State was incompatible with the right to enjoy respect for religion and belief without discrimination (as guaranteed by Article 9 and 14 ECHR). The Government accepts that the exemption of the Church of England from the Certificate of Approval regime is in breach of the Convention. In our last report, we criticised the Government's approach to this case. We called on the Government to explain its plan to create a distinct scheme for Church of England marriages and to bring forward its proposals for the removal of the discriminatory exemption without delay.[142]

146. In its response to our last report, in January 2009, the Government told us:

    The Government is committed to remedying the declared incompatibility with Article 14…The UK Border Agency is liaising with relevant stakeholders and is considering the most appropriate way to remedy the incompatibility. We are conscious of the House of Lords find that the scheme could represent a disproportionate interference with Article 12 for those applicants who are needy and not able to afford the fee for a Certificate of Approval application, and are considering very carefully the implications of the House of Lords judgment in this respect. This aspect relates to the secondary legislation, and is separate from the declaration of incompatibility which of course concern the primary legislation.[143]

147. We wrote to the Government in May 2009, asking for further information on progress in relation to this case.[144] We also noted that the compatibility of the Certificate of Approval scheme with the right to marry and the right to respect for belief or religion without discrimination (Articles 12, 9 and 14) is being challenged at the European Court of Human Rights.[145]

148. The Immigration Law Practitioners Association (ILPA) told us:

  • The Government delay in relation to its response to the declaration of incompatibility in this case; and its response to the findings of the House of Lords was extensive;
  • It was surprised by the Government's statement that the UK Border Agency had been liaising with stakeholders on this case. ILPA is part of the Agency's Corporate Stakeholder Group and had tried, unsuccessfully, to raise the need for a response to this case. It understood that both interveners in the case, AIRE Centre and the Joint Council for the Welfare of Immigrants, had not been consulted;
  • An opportunity for reform had been missed in the Borders, Citizenship and Immigration Act 2009; and
  • This scheme continued to operate: "The blanket prohibition on the right to marry without such a certificate and the exemption for the Anglican church remain."[146]

149. On 12 November 2009, six months after our original letter, the Minister responded to our request for further information. He told us that the Government considered that, in its view, it had taken adequate steps to meet the criticism of the House of Lords that the fees associated with the Certificate of Approval scheme could interfere with the right of needy applicants to marry (Article 12 ECHR). In any event, the Government had decided to remove the entire Certificate of Approval scheme rather than reform it to extend to Church of England marriages:

    The UK Border Agency has sought for some time to bring marriages after Anglican preliminaries in England and Wales within the CoA scheme but has been unable to find a workable solution. The imperative need to respond to the declaration of incompatibility, together with other changes to the CoA scheme since 2005 which we believe have weakened its effectiveness, have led us to conclude that we should deal with the incompatibility by removing the scheme. We propose to bring forward a Remedial Order under Section 10 of the Human Rights Act to achieve this.[147]

150. The Minister explained that the Government envisaged using the non-urgent procedure and planned to lay a proposal before Parliament as "early as possible in the New Year". The Government intended to reform the rules on gaining immigration status through marriage in order to achieve the policy intentions it had intended to pursue through the Certificate of Approval scheme.[148] The Government hoped that these proposals would be in place before the Remedial Order came into force. The Minister promised to write to us in due course with further details about its approach. In January 2010, the Government re-affirmed its intention to bring forward these proposals "as soon as possible" but explained that it did not intend the Order to come into force until at least the end of 2010.[149]

151. We welcome the Government's decision to bring forward a Remedial Order in this case. Unfortunately, as we have no information about the substance of the Order or its likely timetable, we are unable to consider the substance of the Government's approach. We are concerned that it is now almost a year since we asked for further information on this case. The relevant declaration of incompatibility is over three years old and yet we still have no clear proposals to scrutinise or any timetable for action.

152. If the Government intends to remove the entire Certificate of Approval Scheme, this would be a relatively simple legislative change, which could have been achieved during this parliamentary session with relative ease. However, we regret that the Government has moved so slowly towards the production of a draft Order that it cannot be considered before the end of this Parliament. In the meantime, this scheme continues to operate in a discriminatory way, in breach of the right to marry without discrimination. In the light of the earlier prolonged delay in this case, further procrastination is unacceptable. We call on the Government to publish its draft Order and its timetable for reform as soon as possible. While delay may be inevitable, because of the forthcoming election, any work done by the Government so far to meet this incompatibility should be published in order to inform the next Parliament, and to encourage prompt action to remove the ongoing incompatibility in section 19 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

153. In its submission ILPA argued that this type of delay was usually inherent in the actions of UK Border Agency. [150] In our last report, we expressed our view that where the Government was involved in a case like this - where it accepted one declaration of incompatibility, but sought to appeal another - there would be a number of factors which would determine whether action was necessary before the final appeal in the case. These factors included the seriousness of the interference concerned, the time until the appeal, any interim measures and the administrative costs involved in an interim change to meet the relevant declaration of incompatibility.[151] ILPA expressed its concern that our comments had encouraged the UK Border Agency to see administrative inconvenience as an acceptable reason to stall its response to human rights arguments in other cases:

    ILPA is concerned that the [Committee's] reference to striking a balance between cost and administrative convenience and the detriment suffered by those whose human rights have been breached may give comfort where none is intended. The cases above are examples of breaches of human rights where the Government has determined that there is not only "no rush" but no need to do anything until forced to act as a result of subsequent litigation. ILPA considers that in all cases a remedy should be brought forward "without delay" and that delay, rather than time taken to implement the judgment is what has been experienced in the cases described.[152]

154. In our last report, we set out a number of factors to be considered by Government in their response to accepted declarations of incompatibility in cases which were still subject to appeal. One of those factors was administrative cost. Our comments were limited to a very narrow set of circumstances, and even in those small number of cases, our view remains that any declaration of incompatibility should be removed without unnecessary delay. We repeat that the Government's response to cases finding incompatibilities with Convention rights should be proactive, in order to ensure that future breaches are avoided and that public funds are not wasted pursuing repetitive cases.

155. We asked the Minister for Human Rights whether the Government intended to seek a friendly settlement in the Strasbourg challenge in the light of its decision to remove the Certificate of Approval scheme. The Minister told us that the Government could not discuss pending cases.[153] We would be grateful if the Government would keep us informed of progress in the case of O'Donoghue v United Kingdom and provide us with the judgment in the case and any Government response in due course.


156. This case concerned discrimination on the grounds of nationality in respect of access to housing assistance offered by local authorities. We commented on this case in our last two reports, expressing concern over the time taken by the Government to respond to the declaration of incompatibility.[154] In its response to our request for further information, the Government confirmed its view that Schedule 15 of the Housing and Regeneration Act 2008 resolves the declaration of incompatibility in this case.[155]

157. We have previously reported our view that although this measure may remove the direct cause of the incompatibility identified in these cases, the solution in Schedule 15 of the 2008 Act gives rise to a similar risk of incompatibility.[156] Schedule 15 continues to make a distinction between those entitled to the full range of housing assistance in relation to priority need, and a lesser set of obligations which will be open to those whose priority need is based upon their relationship with a dependant who is subject to certain immigration controls. We note that a similar kind of distinction, albeit based on facts which arose prior to the enactment of Schedule 15, is currently being challenged at the European Court of Human Rights.[157]


158. Section 3 of the Representation of the People Act 1983 is subject to a declaration of incompatibility, in so far as it imposes a complete ban on prisoners' voting.[158] We considered this issue above, in Chapter 2.

135   R (Wright) v Secretary of State for Health [2009] UKHL 3. Back

136   R (Black) v Secretary of State for Justice [2009] UKHL 1 (House of Lords overturned the declaration of incompatibility made by the Court of Appeal); Nasseri v Secretary of State for the Home Department [2009] UKHL 23 (House of Lords' upheld Court of Appeal's decision overturning declaration of incompatibility made by the High Court); R (F) v Secretary of State for Justice [2009] EWCA Civ 792 (subject to appeal). Back

137   Second Monitoring Report, para. 27; Third Monitoring Report, para. 82. Back

138   Tenth Report of Session 2008-09, Legislative Scrutiny: Policing and Crime Bill, HL 68/ HC 395, paras 1.106-1.110. Back

139   Ibid., para. 1.110. Back

140   Ibid., para. 1.110. Back

141   Governors of X School v R (on the application of G & Others) [2010] EWCA Civ 1 Back

142   Third Monitoring Report, paras 96-106. Back

143   The Government Response (2009), page 28. Back

144   Ev 4 Back

145   O'Donoghue v United Kingdom, App. No. 34848/07. Back

146   Ev 34- 35 Back

147   Ev 5 Back

148   Cm 7730, Home Office, Simplifying Immigration Law, November 2009. Back

149   Ev 57 Back

150   Ev 40 - 41 Back

151   Third Monitoring Report, paras 104 - 106. Back

152   Ev 43 Back

153   Second Report of Session 2009-10, Work of the Committee in 2008-09, HL Paper 20/HC 185, Q 92. Back

154   Third Monitoring Report, para 95; Second Monitoring Report, para 134. Back

155   Ev 20. Back

156   Third Monitoring Report, para 95. Back

157   Bah v United Kingdom, App. No. 56328/07. Back

158   William Smith v Electoral Registration Officer [2007] CSIH XA33/04 (24 January 2007) Back

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