(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.
Right of Crown to intervene. 5.—(1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court.
(2) In any case to which subsection (1) applies—
- (a) a Minister of the Crown (or a person nominated by him),
- (b) a member of the Scottish Executive,
- (c) a Northern Ireland Minister,
- (d) a Northern Ireland department,
is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedings.
(3) Notice under subsection (2) may be given at any time during the proceedings.
(4) A person who has been made a party to criminal proceedings (other than in Scotland) as the result of a notice under subsection (2) may, with leave, appeal to the House of Lords against any declaration of incompatibility made in the proceedings.
(5) In subsection (4)—
"criminal proceedings" includes all proceedings before the Courts-Martial Appeal Court, and
"leave" means leave granted by the court making the declaration of incompatibility or by the House of Lords.
