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 Vice-Chancellor 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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