Section 4 — Human Rights Act 1998: Declaration of incompatibility.

Declaration of incompatibility. 4 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 Supreme Court;

b the Judicial Committee of the Privy Council;

c the Court 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. f the Court of Protection, in any matter being dealt with by the President of the Family Division, the Chancellor of the High Court or a puisne judge of the High Court.

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.