(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.
(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—
[F1(a)the Supreme Court;]
(b)the Judicial Committee of the Privy Council;
(c)the [F2Court 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.
[F3(f)the Court of Protection, in any matter being dealt with by the President of the Family Division, the [F4Chancellor 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.
Textual Amendments
F1S. 4(5)(a) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 66(2); S.I. 2009/1604, art. 2(d)
F2Words in s. 4(5)(c) substituted (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 156; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
F3S. 4(5)(f) inserted (1.10.2007) by Mental Capacity Act 2005 (c. 9), ss. 67(1), 68(1)-(3), Sch. 6 para. 43 (with ss. 27, 28, 29, 62); S.I. 2007/1897, art. 2(1)(c)(d)
F4Words in s. 4(5)(f) substituted (1.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 14 para. 5(5); S.I. 2013/2200, art. 3(g)
(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 [F5Supreme Court] against any declaration of incompatibility made in the proceedings.
(5)In subsection (4)—
“criminal proceedings” includes all proceedings before the [F6Court Martial Appeal Court]; and
“leave” means leave granted by the court making the declaration of incompatibility or by the [F7Supreme Court]
Textual Amendments
F5Words in s. 5(4) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 66(3); S.I. 2009/1604, art. 2(d)
F6Words in s. 5(5) substituted (28.3.2009 for certain purposes and 31.10.2009 otherwise) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 16 para. 157; S.I. 2009/812, art. 3 (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4
F7Words in s. 5(5) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 40, 148, Sch. 9 para. 66(3); S.I. 2009/1604, art. 2(d)
Modifications etc. (not altering text)
C1S. 5(2) functions made exercisable concurrently or jointly with the Welsh Ministers by 2006 c. 32, Sch. 3A para. 1 (as inserted (1.4.2018) by Wales Act 2017 (c. 4), s. 71(4), Sch. 4 para. 1 (with Sch. 7 paras. 1, 6); S.I. 2017/1179, reg. 3(p))