ExpertMedium1 markMultiple Choice
ACCA · Question 27 · Essential elements of the legal system
Section A
Under the Human Rights Act 1998, what can a UK court do if it finds that a piece of primary legislation (an Act of Parliament) is incompatible with the European Convention on Human Rights?
Section A
Under the Human Rights Act 1998, what can a UK court do if it finds that a piece of primary legislation (an Act of Parliament) is incompatible with the European Convention on Human Rights?
Answer options:
A.
Strike down the Act of Parliament so it is no longer law.
B.
Issue a declaration of incompatibility.
C.
Amend the Act of Parliament to make it compatible.
D.
Refer the matter to the European Court of Justice.
How to approach this question
Recall the balance the HRA 1998 strikes between human rights and parliamentary sovereignty.
Full Answer
B.Issue a declaration of incompatibility.✓ Correct
Due to the doctrine of parliamentary sovereignty, UK courts cannot strike down primary legislation. If a law cannot be interpreted in a way that is compatible with Convention rights (s.3), the higher courts can issue a 'declaration of incompatibility' (s.4). This does not invalidate the law but puts pressure on Parliament to change it.
Common mistakes
Believing courts can strike down Acts of Parliament like the US Supreme Court can.
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