49. Declarations of incompatibility.

A 'declaration of incompatibility' is a declaration by a court that a provision of primary legislation, or a provision of subordinate legislation made in the exercise of a power conferred by primary legislation1, is incompatible with a Convention right2. Only certain higher courts may make a declaration of incompatibility3. A declaration may be made in any proceedings in which a court determines whether a provision of such primary or subordinate legislation4 and is satisfied:

  1.  

    (1)     in the case of primary legislation, that the provision is incompatible with a Convention right5; or

  2.  

    (2)     in the case of subordinate legislation made