Section 4 Declaration of incompatibility.

United Kingdom

(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 F4President of the Business and Property Division 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

Textual amendments

F1: S. 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)
F2: Words 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
F3: 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)
F4: Words in s. 4(5)(f) substituted (1.10.2026) by The Senior Courts (Transfer, Amendment and Consequential Provision) Order 2026 (S.I. 2026/723), art. 1(2), Sch. 1 para. 19