Chapter

The Criteria for a Declaration of Incompatibility

Aruna Sathanapally

in Beyond Disagreement

Published in print October 2012 | ISBN: 9780199669301
Published online January 2013 | e-ISBN: 9780191744648 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199669301.003.0005
The Criteria for a Declaration of Incompatibility

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Part II comprehensively examines how the UK courts have used and developed the innovative, non-binding, declaratory power given to them by the HRA. Chapter 4 examines how, and to what extent, courts have exercised their power to issue a declaration of incompatibility (DOI), by examining the criteria that have developed in the jurisprudence, and contrasting them to the principal alternatives. It also considers whether concerns about providing an effective remedy to the litigant may discourage judicial use of the DOI remedy. The analysis in this chapter provides the starting point to understanding the operation of DOIs across courts and the legislature. It argues that the process of reasoning leading to a DOI shares important parallels with the use of other, more coercive, open remedies. It also suggests that the way in which the use of the DOI has been delineated supports the specialisation model of interaction.

Keywords: Section 3 Human Rights Act; Section 4 Human Rights Act; interpretative duty; clear statement rule; VCHRRA; remedial choice; effective remedy

Chapter.  12701 words. 

Subjects: Human Rights and Immigration

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