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Human Rights Act 1998

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4 Declaration of incompatibility.E+W+S+N.I.

(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.

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Amendments (Textual)

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

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