Human Rights Act 1998 (c. 42) - Statute Law Database

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Human Rights Act 1998 (c. 42)
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Version 2 of 2 (Prospective available)

Declaration 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.

[F1 (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.

Annotations:
Amendments (Textual)
F1	S. 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)

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Attributes of: 4. Declaration of incompatibility.
Version no	Start date	End date	Extent	Confers power	Blanket amendment
> 2	01/10/2007		E+W+S+N.I.	N	N
			E+W+S+N.I.	N	N

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