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Introduction |
| The Convention Rights. |
1. -
(1) In this Act "the Convention rights" means the
rights and fundamental freedoms set out in-
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(a) Articles 2 to 12 and 14 of the Convention,
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(b) Articles 1 to 3 of the First Protocol, and
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(c) Articles 1 and 2 of the Sixth Protocol,
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as read with Articles 16 to 18 of the
Convention.
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(2) Those
Articles are to have effect for the purposes of this Act subject
to any designated derogation or reservation (as to which see
sections 14 and 15).
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(3) The
Articles are set out in Schedule 1.
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(4) The
Secretary of State may by order make such amendments to this Act
as he considers appropriate to reflect the effect, in relation
to the United Kingdom, of a protocol.
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(5) In
subsection (4) "protocol" means a protocol to the
Convention-
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(a) which the United Kingdom has ratified; or
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(b) which the United Kingdom has signed with a view to
ratification.
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(6) No
amendment may be made by an order under subsection (4) so as to
come into force before the protocol concerned is in force in
relation to the United Kingdom.
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| Interpretation of
Convention rights. |
2. -
(1) A court or tribunal determining a question which has arisen
in connection with a Convention right must take into account
any-
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(a) judgment, decision, declaration or advisory opinion of the
European Court of Human Rights,
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(b) opinion of the Commission given in a report adopted under
Article 31 of the Convention,
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(c) decision of the Commission in connection with Article 26
or 27(2) of the Convention, or
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(d) decision of the Committee of Ministers taken under Article
46 of the Convention,
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whenever made or given, so far as, in
the opinion of the court or tribunal, it is relevant to the
proceedings in which that question has arisen.
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(2) Evidence
of any judgment, decision, declaration or opinion of which
account may have to be taken under this section is to be given
in proceedings before any court or tribunal in such manner as
may be provided by rules.
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(3) In this
section "rules" means rules of court or, in the case
of proceedings before a tribunal, rules made for the purposes of
this section-
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(a) by the Lord Chancellor or the Secretary of State, in
relation to any proceedings outside Scotland;
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(b) by the Secretary of State, in relation to proceedings in
Scotland; or
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(c) by a Northern Ireland department, in relation to
proceedings before a tribunal in Northern Ireland-
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(i) which deals with transferred matters; and
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(ii) for which no rules made under paragraph (a) are in
force.
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Legislation |
| Interpretation of
legislation. |
3. -
(1) So far as it is possible to do so, primary legislation and
subordinate legislation must be read and given effect in a way
which is compatible with the Convention rights.
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(2) This
section-
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(a) applies to primary legislation and subordinate legislation
whenever enacted;
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(b) does not affect the validity, continuing operation or
enforcement of any incompatible primary legislation; and
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(c) does not affect the validity, continuing operation or
enforcement of any incompatible subordinate legislation if
(disregarding any possibility of revocation) primary
legislation prevents removal of the incompatibility.
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| Declaration of
incompatibility. |
4. -
(1) Subsection (2) applies in any proceedings in which a court
determines whether a provision of primary legislation is
compatible with a Convention right.
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(2) If the
court is satisfied that the provision is incompatible with a
Convention right, it may make a declaration of that
incompatibility.
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(3)
Subsection (4) applies in any proceedings in which a court
determines whether a provision of subordinate legislation, made
in the exercise of a power conferred by primary legislation, is
compatible with a Convention right.
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(4) If the
court is satisfied-
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(a) that the provision is incompatible with a Convention
right, and
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(b) that (disregarding any possibility of revocation) the
primary legislation concerned prevents removal of the
incompatibility,
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it may make a declaration of that
incompatibility.
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(5) In this
section "court" means-
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(b) the Judicial Committee of the Privy Council;
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(c) the Courts-Martial Appeal Court;
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(d) in Scotland, the High Court of Justiciary sitting
otherwise than as a trial court or the Court of Session;
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(e) in England and Wales or Northern Ireland, the High Court
or the Court of Appeal.
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(6) A
declaration under this section ("a declaration of
incompatibility")-
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(a) does not affect the validity, continuing operation or
enforcement of the provision in respect of which it is given;
and
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(b) is not binding on the parties to the proceedings in which
it is made.
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| Right of Crown to
intervene. |
5. -
(1) Where a court is considering whether to make a declaration
of incompatibility, the Crown is entitled to notice in
accordance with rules of court.
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(2) In any
case to which subsection (1) applies-
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(a) a Minister of the Crown (or a person nominated by him),
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(b) a member of the Scottish Executive,
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(c) a Northern Ireland Minister,
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(d) a Northern Ireland department,
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is entitled, on giving notice in
accordance with rules of court, to be joined as a party to the
proceedings.
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(3) Notice
under subsection (2) may be given at any time during the
proceedings.
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(4) A person
who has been made a party to criminal proceedings (other than in
Scotland) as the result of a notice under subsection (2) may,
with leave, appeal to the House of Lords against any declaration
of incompatibility made in the proceedings.
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(5) In
subsection (4)-
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"criminal proceedings" includes all proceedings
before the Courts-Martial Appeal Court; and
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"leave" means leave granted by the court making the
declaration of incompatibility or by the House of Lords.
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Public authorities |
| Acts of public
authorities. |
6.
- (1) It is unlawful for a public authority to act in a way
which is incompatible with a Convention right.
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(2)
Subsection (1) does not apply to an act if-
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(a) as the result of one or more provisions of primary
legislation, the authority could not have acted differently;
or
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(b) in the case of one or more provisions of, or made under,
primary legislation which cannot be read or given effect in a
way which is compatible with the Convention rights, the
authority was acting so as to give effect to or enforce those
provisions.
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(3) In this
section "public authority" includes-
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(a) a court or tribunal, and
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(b) any person certain of whose functions are functions of a
public nature,
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but does not include either House of
Parliament or a person exercising functions in connection with
proceedings in Parliament.
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(4) In
subsection (3) "Parliament" does not include the House
of Lords in its judicial capacity.
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(5) In
relation to a particular act, a person is not a public authority
by virtue only of subsection (3)(b) if the nature of the act is
private.
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(6) "An
act" includes a failure to act but does not include a
failure to-
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(a) introduce in, or lay before, Parliament a proposal for
legislation; or
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(b) make any primary legislation or remedial order.
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| Proceedings. |
7.
- (1) A person who claims that a public authority has acted (or
proposes to act) in a way which is made unlawful by section 6(1)
may-
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(a) bring proceedings against the authority under this Act in
the appropriate court or tribunal, or
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(b) rely on the Convention right or rights concerned in any
legal proceedings,
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but only if he is (or would be) a
victim of the unlawful act.
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(2) In
subsection (1)(a) "appropriate court or tribunal"
means such court or tribunal as may be determined in accordance
with rules; and proceedings against an authority include a
counterclaim or similar proceeding.
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(3) If the
proceedings are brought on an application for judicial review,
the applicant is to be taken to have a sufficient interest in
relation to the unlawful act only if he is, or would be, a
victim of that act.
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(4) If the
proceedings are made by way of a petition for judicial review in
Scotland, the applicant shall be taken to have title and
interest to sue in relation to the unlawful act only if he is,
or would be, a victim of that act.
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(5)
Proceedings under subsection (1)(a) must be brought before the
end of-
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(a) the period of one year beginning with the date on which
the act complained of took place; or
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(b) such longer period as the court or tribunal considers
equitable having regard to all the circumstances,
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but that is subject to any rule
imposing a stricter time limit in relation to the procedure in
question.
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(6) In
subsection (1)(b) "legal proceedings" includes-
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(a) proceedings brought by or at the instigation of a public
authority; and
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(b) an appeal against the decision of a court or tribunal.
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(7) For the
purposes of this section, a person is a victim of an unlawful
act only if he would be a victim for the purposes of Article 34
of the Convention if proceedings were brought in the European
Court of Human Rights in respect of that act.
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(8) Nothing
in this Act creates a criminal offence.
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(9) In this
section "rules" means-
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(a) in relation to proceedings before a court or tribunal
outside Scotland, rules made by the Lord Chancellor or the
Secretary of State for the purposes of this section or rules
of court,
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(b) in relation to proceedings before a court or tribunal in
Scotland, rules made by the Secretary of State for those
purposes,
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(c) in relation to proceedings before a tribunal in Northern
Ireland-
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(i) which deals with transferred matters; and
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(ii) for which no rules made under paragraph (a) are in
force,
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rules made by a Northern Ireland department for those
purposes,
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and includes provision made by order
under section 1 of the Courts and Legal Services Act 1990.
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(10) In
making rules, regard must be had to section 9.
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(11) The
Minister who has power to make rules in relation to a particular
tribunal may, to the extent he considers it necessary to ensure
that the tribunal can provide an appropriate remedy in relation
to an act (or proposed act) of a public authority which is (or
would be) unlawful as a result of section 6(1), by order add to-
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(a) the relief or remedies which the tribunal may grant; or
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(b) the grounds on which it may grant any of them.
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(12) An order
made under subsection (11) may contain such incidental,
supplemental, consequential or transitional provision as the
Minister making it considers appropriate.
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(13)
"The Minister" includes the Northern Ireland
department concerned.
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| Judicial remedies. |
8. -
(1) In relation to any act (or proposed act) of a public
authority which the court finds is (or would be) unlawful, it
may grant such relief or remedy, or make such order, within its
powers as it considers just and appropriate.
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(2) But
damages may be awarded only by a court which has power to award
damages, or to order the payment of compensation, in civil
proceedings.
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(3) No award
of damages is to be made unless, taking account of all the
circumstances of the case, including-
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(a) any other relief or remedy granted, or order made, in
relation to the act in question (by that or any other court),
and
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(b) the consequences of any decision (of that or any other
court) in respect of that act,
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the court is satisfied that the award
is necessary to afford just satisfaction to the person in whose
favour it is made.
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(4) In
determining-
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(a) whether to award damages, or
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(b) the amount of an award,
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the court must take into account the
principles applied by the European Court of Human Rights in
relation to the award of compensation under Article 41 of the
Convention.
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(5) A public
authority against which damages are awarded is to be treated-
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(a) in Scotland, for the purposes of section 3 of the Law
Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if
the award were made in an action of damages in which the
authority has been found liable in respect of loss or damage
to the person to whom the award is made;
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(b) for the purposes of the Civil Liability (Contribution) Act
1978 as liable in respect of damage suffered by the person to
whom the award is made.
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(6) In this
section-
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"court" includes a tribunal;
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"damages" means damages for an unlawful act of a
public authority; and
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"unlawful" means unlawful under section 6(1).
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