ExpertMedium2 marksMultiple Choice
ACCA · Question 03 · Essential elements of the legal system
Section A
Under the Human Rights Act 1998, what is the legal effect if a UK court 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 is the legal effect if a UK court finds that a piece of primary legislation (an Act of Parliament) is incompatible with the European Convention on Human Rights?
Answer options:
A.
The court can strike down the legislation, rendering it void.
B.
The court may issue a declaration of incompatibility, but the legislation remains valid and enforceable.
C.
The legislation is automatically suspended until Parliament reviews it.
D.
The court must refer the matter to the European Court of Human Rights before proceeding.
How to approach this question
Recall the principle of Parliamentary Sovereignty and how the HRA 1998 interacts with it.
Full Answer
B.The court may issue a declaration of incompatibility, but the legislation remains valid and enforceable.✓ Correct
Due to parliamentary sovereignty, UK courts cannot invalidate primary legislation. Section 4 of the Human Rights Act 1998 allows higher courts to issue a 'declaration of incompatibility', which acts as a strong political signal to Parliament to change the law, but does not affect the validity or continuing operation of the Act.
Common mistakes
Assuming UK courts have the same strike-down powers as the US Supreme Court.
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