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Human Rights Act 1998

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This is the original version (as it was originally enacted).

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.

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