Declaration of Incompatibility

Section 4 of the Human Rights Act 1998 provides that where a court determines whether a provision of primary legislation is compatible with a Convention right and 'is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.' The same power extends to subordinate legislation where the incompatibility cannot be removed because the enabling primary legislation itself requires it. Only the higher courts listed in section 4(5) can make such a declaration, including the Supreme Court, the Judicial Committee of the Privy Council, the Court Martial Appeal Court, the High Court and Court of Appeal in England and Wales or Northern Ireland, the High Court of Justiciary (sitting other than as a trial court) or Court of Session in Scotland, and the Court of Protection in certain matters.

Critically, a declaration of incompatibility does not invalidate the offending provision. Section 4(6) states that a declaration 'does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given' and 'is not binding on the parties to the proceedings in which it is made.' The legislation remains fully in force unless and until Parliament chooses to amend it, whether through ordinary legislation or the fast-track remedial order procedure. This preserves parliamentary sovereignty: courts identify incompatibility but cannot themselves strike down an Act of Parliament.