Where a court is considering the effect of legislation passed after the HRA came into force, the dominant judicial approach to declarations of incompatibility indicates that they should be used only where the legislation under consideration shows, expressly or by necessary implication, an intention on the part of Parliament to legislate contrary to the HRA.

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The dominant judicial approach to declarations of incompatibility under the Human Rights Act 1998 (HRA) is indeed to reserve such declarations for instances where legislation, passed after the HRA came into force, either expressly or by necessary implication, demonstrates an intention by Parliament to legislate in a manner that is contrary to the rights protected under the HRA. This approach underscores the principle of parliamentary sovereignty, allowing Parliament the opportunity to expressly legislate in contravention of the HRA if it so chooses, while also respecting the role of the courts in interpreting and applying the law in a manner that is compatible with human rights.

Where a Court Is Considering the Effect of Legislation Passed