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