Under the Human Rights Act 1998, what action must a UK court take if it finds that a piece of primary legislation (an Act of Parliament) is entirely incompatible with a right set out in the European Convention on Human Rights, and it is impossible to interpret the statute compatibly?

Answer options:

Strike down the Act of Parliament as invalid

Issue a declaration of incompatibility under Section 4

Refer the matter immediately to the European Court of Human Rights

Rewrite the offending section of the Act to make it compatible

How to approach this question

Understand the balance between the Human Rights Act 1998 and the doctrine of Parliamentary Sovereignty in the UK.

Full Answer

B.Issue a declaration of incompatibility under Section 4✓ Correct

Section 4 of the Human Rights Act 1998 allows higher courts to issue a 'declaration of incompatibility' when primary legislation conflicts with Convention rights. Because of parliamentary sovereignty, the court cannot strike down the law; it remains valid until Parliament decides to amend it.

Common mistakes

Applying US-style constitutional law where courts can strike down unconstitutional legislation.

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