Legislation

3Interpretation of legislation

1

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

2

This section—

a

applies to primary legislation and subordinate legislation whenever enacted;

b

does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

c

does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

4Declaration of incompatibility

1

Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

2

If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

3

Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.

4

If the court is satisfied—

a

that the provision is incompatible with a Convention right, and

b

that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,

it may make a declaration of that incompatibility.

5

In this section “court” means—

a

the House of Lords;

b

the Judicial Committee of the Privy Council;

c

the Courts-Martial Appeal Court;

d

in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;

e

in England and Wales or Northern Ireland, the High Court or the Court of Appeal.

6

A declaration under this section (“a declaration of incompatibility”)—

a

does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

b

is not binding on the parties to the proceedings in which it is made.

5Right of Crown to intervene

1

Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court.

2

In any case to which subsection (1) applies—

a

a Minister of the Crown (or a person nominated by him),

b

a member of the Scottish Executive,

c

a Northern Ireland Minister,

d

a Northern Ireland department,

is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedings.

3

Notice under subsection (2) may be given at any time during the proceedings.

4

A person who has been made a party to criminal proceedings (other than in Scotland) as the result of a notice under subsection (2) may, with leave, appeal to the House of Lords against any declaration of incompatibility made in the proceedings.

5

In subsection (4)—

  • “criminal proceedings” includes all proceedings before the Courts-Martial Appeal Court; and

  • “leave” means leave granted by the court making the declaration of incompatibility or by the House of Lords.