Legislation
4 Declaration 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.