A remedial order can only be made after a declaration of incompatibility or a similar finding of a European court with all appeals must have been complete or expressly renounced.
[7] However, In re S (Minors) (Care Order: Implementation of Care Plan) [2002] established that there may be cases where interpretation can go too far; that the court can assume an administrative power it would not ordinarily have, with practical consequences that it is not best placed to consider: "a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment.
Section 4 reflects this, and states that courts must continue to apply legislation, even if incompatible with Convention rights.
[14] Section 4(4) allows the court to issue a declaration of incompatibility if altering secondary legislation is impossible because it would necessarily conflict with a statute.
[5] In A v Home Secretary, the detention of foreign nationals under the Anti-Terrorism, Crime and Security Act 2001 was ruled to be in contravention of Article 14 of the convention.
Altering this would involve a "fundamental change in the traditional concept of marriage", which was the domain of the legislature and not the courts; accordingly, a declaration of incompatibility was issued.
[5] Since a declaration cannot invalidate or disapply legislation, it achieves its aim through political rather than legal means – it is for Parliament to correct the law, or continue to be in contravention of the convention.
[17] It is designed to be a quick method; although it must be put before parliament, a remedial order does not require full legislative approval.
[20] Parliament has used Section 10 to make small adjustments where possible to bring legislation into line with Convention rights.