Declaration of Incompatibility (Case Study Sample)

Declaration of Incompatibility
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According to the United Kingdom constitution, a declaration of incompatibility is a declaration issued by a judge, and it stipulates that a statute is rendered incompatible with regards to the European Convention of Human Rights under the act of Human Rights of 1988. The amendment was brought forth in section 3(1) of the human rights act 1988, which states that there is a possibility for incompatibility, if primary and subordinate legislation read and give effective ways that render the convention rights compatible (King, 2015). Furthermore, when a court comes up with the decision and determines that legislation is inconsistent as per the convention rights, it issues the declaration of incompatibility according to section 4 of the Human Rights Act of 1998. Nonetheless, this is not usually considered the first judicial move, and it is considered the last resort in attempts of the interpretation of primary legislation as being compatible. In this case, not many declarations of incompatibility have been issued, which has resulted from a number of challenges. The declaration of incompatibility is a positive to some extent but also comes with negativity to some extent. Thus, the purpose of this essay is to address the impact of the declaration of incompatibility with reference to the United Kingdom law, both positive and negative.
First, the declaration of incompatibility has made the judiciary less powerful and subject to change through the parliament. For instance, once the Court, be it supreme or the subordinate courts, issue the declaration of incompatibility it is assumed that the decision should be final (Leckey, 2015). However, the remain remains intact until the parliament considers the law to be incompatible. In this case, the impact of the issue is considered negative with regard to the judicial system. In other words, the Court is to, after that, apply any form of legislation rendered to them as it is, and the actual case should remain unaffected by the declaration. The declaration of incompatibility is the beginning of the claim of the Human Rights Act 1988. Therefore, when applied, the declaration should serve the purpose of serving everyone's interest, no one is to lose or gain, but all should be satisfied. In addition, section eight of the act also enables the judicial court system's intervention to make remedies that they see best for the people. In brief, when it comes to England and Wales, the powers to issues the declaration of incompatibility is vested upon the Court of appeal, the judicial committee of Privy Council, the High Court, the Court Martial Appeal Court, and the Supreme Court. Similarly, the same is done by the Supreme Court, the High Court of Justiciary, and the Court of Sessions in Scotland. On the other hand, In Northern Ireland, the Northern Irish High Court of Appeals makes the issue in accordance with and guidance of the Northern Irish Assembly. This means that the court systems do not influence the decisions regarding the declaration of incompatibility. Still, the call is made by the different parliament settings of the United Kingdom. Furthermore, the other parties that influence the decision to issue the declaration are the church and the ministers.
The other impact is that the declaration of incompatibility has helped to protect marriages and help in their recognition in the United Kingdom. Through the declaration of incompatibility, the Human Rights Acts 1988 has been made easier and applicable in domestic law (King, 2015). For instance, it helped in upholding the legislation of marriages and civil partnership. In this case, the Supreme Court ended up issuing the declaration of incompatibility as per sections 1 and 3 respectively of the civil partnership act of 2004 in the case of Steinfeld and Keiden against the Secretary of State for the International Development. In other words, same-sex couples were considered legal and had legal rights upon entering a civil partnership. In other words, Civil partnerships were made available to both same-sex couples and opposite-sex couples. By ensuring that they were registered in a civil partnership, they could be given legal relationship recognition. Moreover, this helped provide a stepping stone to the couples, stipulating their legal rights and responsibilities.
On the other hand, the declaration of incompatibility helped reduce terror crime and provide safety to the people of the United Kingdom. For instance, the Anti-terrorism, Crime and Security Act of section 23 was rendered incompatible in accordance with Articles 5 and 14, which were disproportionate and allowed for the detention of terrorist suspects (De Londras, 2014). In addition, this was disapproved on the ground of nationality, religion, and immigration status of the people who resided in the United Kingdom. Through the declaration of incompatibility, the Human Rights Act of 1998 was not to be applied to the suspects involved in international terrorism activities. Moreover, with regards to sentences of crimes as per Crime Act of 1997 Section 29, it was assumed that this was a violation of the European Convention on Human Rights as per article 6. The article requires that for the sentence imposed by a tribunal, be it independent pr impartial, the Secretary of State is able to impose the minimum period for a sentence. In this case, he or she can make a sentence that will be in line with the protection of the people, in that for a terrorist, and the sentence should be that equal to the crimes they commit.
Furthermore, the declaration of incompatibility has also helped solve conflicts that arise from domestic laws and international laws. For instance, it is implausible for a nation to turn down an individual seeking asylum; hence, the declaration of incompatibility has helped uphold the immigration and Asylum Act of 1999 that violated the European Convention on Human rights (Djeffal, 2016). Ideally, the law enacted penalties on individuals rather than letting the tribunal determine penalties independently. Furthermore, before the declaration of incompatibility, immigrants were subjected to an imposed and excessive penalties that were rather burdening to them. However, the declaration has helped ease immigrants' lives, and they are treated in a humane manner that upholds their basic rights. In addition, individuals seeking asylum are also treated with respect and are given necessary protection, their rights are upheld, and they are treated properly in accordance with the law. From a personal point of view, I believe that this has also helped in building stronger international ties as through respecting the rights of other nationalities and their people, the relationship between countries is honored to a greater extent.
On the other hand, the declaration of incompatibility has had a positive impact on the lives of the people in the United Kingdom. In this case, most individuals have developed better awareness of their rights and responsibilities as citizens (Leckey, 2015). Moreover, they have also understood the legi