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An Act to give further effect to rights and freedoms guaranteed under
the European Convention on Human Rights; to make provision with respect
to holders of certain judicial offices who become judges of the European
Court of Human Rights; and for connected purposes.
[9th
November 1998]
BE
IT ENACTED by the Queen's most Excellent Majesty, by and with the advice
and consent of the Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of the same, as follows:-
Introduction
1.
- (1) In this Act "the Convention rights" means the rights
and fundamental freedoms set out in-
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, and
(c) Articles 1 and 2 of the Sixth Protocol,
as read with Articles 16 to 18 of the Convention.
(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).
(3) The Articles are set out in Schedule 1.
(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.
(5) In subsection (4) "protocol" means a protocol to the Convention-
(a) which the United Kingdom has ratified; or
(b) which the United Kingdom has signed with a view to ratification.
(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.
2. - (1) A court or tribunal determining a question which has arisen
in connection with a Convention right must take into account any-
(a) judgment, decision, declaration or advisory opinion of the European
Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article
31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2)
of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of
the Convention,
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.
(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.
(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-
(a) by the Lord Chancellor or the Secretary of State, in relation to
any proceedings outside Scotland;
(b) by the Secretary of State, in relation to proceedings in Scotland;
or
(c) by a Northern Ireland department, in relation to proceedings before
a tribunal in Northern Ireland-
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force.
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.
(2) This section-
(a) applies to primary legislation and subordinate legislation whenever
enacted;
(b) does not affect the validity, continuing operation or enforcement
of any incompatible primary legislation; and
(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.
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.
(2) If the court is satisfied that the provision is incompatible with
a Convention right, it may make a declaration of that incompatibility.
(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.
(4) If the court is satisfied-
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation
concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.
(5) In this section "court" means-
(a) the House of Lords;
(b) the Judicial Committee of the Privy Council;
(c) the Courts-Martial Appeal Court;
(d) in Scotland, the High Court of Justiciary sitting otherwise than
as a trial court or the Court of Session;
(e) in England and Wales or Northern Ireland, the High Court or the
Court of Appeal.
(6) A declaration under this section ("a declaration of incompatibility")-
(a) does not affect the validity, continuing operation or enforcement
of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is
made.
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.
(2) In any case to which subsection (1) applies-
(a) a Minister of the Crown (or a person nominated by him),
(b) a member of the Scottish Executive,
(c) a Northern Ireland Minister,
(d) a Northern Ireland department,
is entitled, on giving notice in accordance with rules of court, to
be joined as a party to the proceedings.
(3) Notice under subsection (2) may be given at any time during the
proceedings.
(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.
(5) In subsection (4)-
"criminal proceedings" includes all proceedings before the
Courts-Martial Appeal Court; and
"leave" means leave granted by the court making the declaration
of incompatibility or by the House of Lords.
Public
authorities
6.
- (1) It is unlawful for a public authority to act in a way which is
incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation,
the authority could not have acted differently; or
(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.
(3) In this section "public authority" includes-
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public
nature,
but does not include either House of Parliament or a person exercising
functions in connection with proceedings in Parliament.
(4) In subsection (3) "Parliament" does not include the House
of Lords in its judicial capacity.
(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.
(6) "An act" includes a failure to act but does not include
a failure to-
(a) introduce in, or lay before, Parliament a proposal for legislation;
or
(b) make any primary legislation or remedial order.
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-
(a) bring proceedings against the authority under this Act in the appropriate
court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(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.
(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.
(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.
(5) Proceedings under subsection (1)(a) must be brought before the end
of-
(a) the period of one year beginning with the date on which the act
complained of took place; or
(b) such longer period as the court or tribunal considers equitable
having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation
to the procedure in question.
(6) In subsection (1)(b) "legal proceedings" includes-
(a) proceedings brought by or at the instigation of a public authority;
and
(b) an appeal against the decision of a court or tribunal.
(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.
(8) Nothing in this Act creates a criminal offence.
(9) In this section "rules" means-
(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,
(b) in relation to proceedings before a court or tribunal in Scotland,
rules made by the Secretary of State for those purposes,
(c) in relation to proceedings before a tribunal in Northern Ireland-
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph (a) are in force,
rules made by a Northern Ireland department for those purposes,
and includes provision made by order under section 1 of the Courts and
Legal Services Act 1990.
(10) In making rules, regard must be had to section 9.
(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-
(a) the relief or remedies which the tribunal may grant; or
(b) the grounds on which it may grant any of them.
(12) An order made under subsection (11) may contain such incidental,
supplemental, consequential or transitional provision as the Minister
making it considers appropriate.
(13) "The Minister" includes the Northern Ireland department
concerned.
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.
(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.
(3) No award of damages is to be made unless, taking account of all
the circumstances of the case, including-
(a) any other relief or remedy granted, or order made, in relation to
the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in
respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction
to the person in whose favour it is made.
(4) In determining-
(a) whether to award damages, or
(b) the amount of an award,
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.
(5) A public authority against which damages are awarded is to be treated-
(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;
(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.
(6) In this section-
"court" includes a tribunal;
"damages" means damages for an unlawful act of a public authority;
and
"unlawful" means unlawful under section 6(1).
9.
- (1) Proceedings under section 7(1)(a) in respect of a judicial act
may be brought only-
(a) by exercising a right of appeal;
(b) on an application (in Scotland a petition) for judicial review;
or
(c) in such other forum as may be prescribed by rules.
(2) That does not affect any rule of law which prevents a court from
being the subject of judicial review.
(3) In proceedings under this Act in respect of a judicial act done
in good faith, damages may not be awarded otherwise than to compensate
a person to the extent required by Article 5(5) of the Convention.
(4) An award of damages permitted by subsection (3) is to be made against
the Crown; but no award may be made unless the appropriate person, if
not a party to the proceedings, is joined.
(5) In this section-
"appropriate person" means the Minister responsible for the
court concerned, or a person or government department nominated by him;
"court" includes a tribunal;
"judge" includes a member of a tribunal, a justice of the
peace and a clerk or other officer entitled to exercise the jurisdiction
of a court;
"judicial act" means a judicial act of a court and includes
an act done on the instructions, or on behalf, of a judge; and
"rules" has the same meaning as in section 7(9).
10.
- (1) This section applies if-
(a) a provision of legislation has been declared under section 4 to
be incompatible with a Convention right and, if an appeal lies-
(i) all persons who may appeal have stated in writing that they do not
intend to do so;
(ii) the time for bringing an appeal has expired and no appeal has been
brought within that time; or
(iii) an appeal brought within that time has been determined or abandoned;
or
(b) it appears to a Minister of the Crown or Her Majesty in Council
that, having regard to a finding of the European Court of Human Rights
made after the coming into force of this section in proceedings against
the United Kingdom, a provision of legislation is incompatible with
an obligation of the United Kingdom arising from the Convention.
(2) If a Minister of the Crown considers that there are compelling reasons
for proceeding under this section, he may by order make such amendments
to the legislation as he considers necessary to remove the incompatibility.
(3) If, in the case of subordinate legislation, a Minister of the Crown
considers-
(a) that it is necessary to amend the primary legislation under which
the subordinate legislation in question was made, in order to enable
the incompatibility to be removed, and
(b) that there are compelling reasons for proceeding under this section,
he may by order make such amendments to the primary legislation as he
considers necessary.
(4) This section also applies where the provision in question is in
subordinate legislation and has been quashed, or declared invalid, by
reason of incompatibility with a Convention right and the Minister proposes
to proceed under paragraph 2(b) of Schedule 2.
(5) If the legislation is an Order in Council, the power conferred by
subsection (2) or (3) is exercisable by Her Majesty in Council.
(6) In this section "legislation" does not include a Measure
of the Church Assembly or of the General Synod of the Church of England.
(7) Schedule 2 makes further provision about remedial orders.
Other
rights and proceedings
11.
A person's reliance on a Convention right does not restrict-
(a) any other right or freedom conferred on him by or under any law
having effect in any part of the United Kingdom; or
(b) his right to make any claim or bring any proceedings which he could
make or bring apart from sections 7 to 9.
12.
- (1) This section applies if a court is considering whether to grant
any relief which, if granted, might affect the exercise of the Convention
right to freedom of expression.
(2) If the person against whom the application for relief is made ("the
respondent") is neither present nor represented, no such relief
is to be granted unless the court is satisfied-
(a) that the applicant has taken all practicable steps to notify the
respondent; or
(b) that there are compelling reasons why the respondent should not
be notified.
(3) No such relief is to be granted so as to restrain publication before
trial unless the court is satisfied that the applicant is likely to
establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention
right to freedom of expression and, where the proceedings relate to
material which the respondent claims, or which appears to the court,
to be journalistic, literary or artistic material (or to conduct connected
with such material), to-
(a) the extent to which-
(i) the material has, or is about to, become available to the public;
or
(ii) it is, or would be, in the public interest for the material to
be published;
(b) any relevant privacy code.
(5) In this section-
"court" includes a tribunal; and
"relief" includes any remedy or order (other than in criminal
proceedings).
13.
- (1) If a court's determination of any question arising under this
Act might affect the exercise by a religious organisation (itself or
its members collectively) of the Convention right to freedom of thought,
conscience and religion, it must have particular regard to the importance
of that right.
(2) In this section "court" includes a tribunal.
Derogations
and reservations
14.
- (1) In this Act "designated derogation" means-
(a) the United Kingdom's derogation from Article 5(3) of the Convention;
and
(b) any derogation by the United Kingdom from an Article of the Convention,
or of any protocol to the Convention, which is designated for the purposes
of this Act in an order made by the Secretary of State.
(2) The derogation referred to in subsection (1)(a) is set out in Part
I of Schedule 3.
(3) If a designated derogation is amended or replaced it ceases to be
a designated derogation.
(4) But subsection (3) does not prevent the Secretary of State from
exercising his power under subsection (1)(b) to make a fresh designation
order in respect of the Article concerned.
(5) The Secretary of State must by order make such amendments to Schedule
3 as he considers appropriate to reflect-
(a) any designation order; or
(b) the effect of subsection (3).
(6) A designation order may be made in anticipation of the making by
the United Kingdom of a proposed derogation.
15.
- (1) In this Act "designated reservation" means-
(a) the United Kingdom's reservation to Article 2 of the First Protocol
to the Convention; and
(b) any other reservation by the United Kingdom to an Article of the
Convention, or of any protocol to the Convention, which is designated
for the purposes of this Act in an order made by the Secretary of State.
(2) The text of the reservation referred to in subsection (1)(a) is
set out in Part II of Schedule 3.
(3) If a designated reservation is withdrawn wholly or in part it ceases
to be a designated reservation.
(4) But subsection (3) does not prevent the Secretary of State from
exercising his power under subsection (1)(b) to make a fresh designation
order in respect of the Article concerned.
(5) The Secretary of State must by order make such amendments to this
Act as he considers appropriate to reflect-
(a) any designation order; or
(b) the effect of subsection (3).
16.
- (1) If it has not already been withdrawn by the United Kingdom, a
designated derogation ceases to have effect for the purposes of this
Act-
(a) in the case of the derogation referred to in section 14(1)(a), at
the end of the period of five years beginning with the date on which
section 1(2) came into force;
(b) in the case of any other derogation, at the end of the period of
five years beginning with the date on which the order designating it
was made.
(2) At any time before the period-
(a) fixed by subsection (1)(a) or (b), or
(b) extended by an order under this subsection,
comes to an end, the Secretary of State may by order extend it by a
further period of five years.
(3) An order under section 14(1)(b) ceases to have effect at the end
of the period for consideration, unless a resolution has been passed
by each House approving the order.
(4) Subsection (3) does not affect-
(a) anything done in reliance on the order; or
(b) the power to make a fresh order under section 14(1)(b).
(5) In subsection (3) "period for consideration" means the
period of forty days beginning with the day on which the order was made.
(6) In calculating the period for consideration, no account is to be
taken of any time during which-
(a) Parliament is dissolved or prorogued; or
(b) both Houses are adjourned for more than four days.
(7) If a designated derogation is withdrawn by the United Kingdom, the
Secretary of State must by order make such amendments to this Act as
he considers are required to reflect that withdrawal.
17. - (1) The appropriate Minister must review the designated reservation
referred to in section 15(1)(a)-
(a) before the end of the period of five years beginning with the date
on which section 1(2) came into force; and
(b) if that designation is still in force, before the end of the period
of five years beginning with the date on which the last report relating
to it was laid under subsection (3).
(2) The appropriate Minister must review each of the other designated
reservations (if any)-
(a) before the end of the period of five years beginning with the date
on which the order designating the reservation first came into force;
and
(b) if the designation is still in force, before the end of the period
of five years beginning with the date on which the last report relating
to it was laid under subsection (3).
(3) The Minister conducting a review under this section must prepare
a report on the result of the review and lay a copy of it before each
House of Parliament.
Judges
of the European Court of Human Rights
18.
- (1) In this section "judicial office" means the office of-
(a) Lord Justice of Appeal, Justice of the High Court or Circuit judge,
in England and Wales;
(b) judge of the Court of Session or sheriff, in Scotland;
(c) Lord Justice of Appeal, judge of the High Court or county court
judge, in Northern Ireland.
(2) The holder of a judicial office may become a judge of the European
Court of Human Rights ("the Court") without being required
to relinquish his office.
(3) But he is not required to perform the duties of his judicial office
while he is a judge of the Court.
(4) In respect of any period during which he is a judge of the Court-
(a) a Lord Justice of Appeal or Justice of the High Court is not to
count as a judge of the relevant court for the purposes of section 2(1)
or 4(1) of the Supreme Court Act 1981 (maximum number of judges) nor
as a judge of the Supreme Court for the purposes of section 12(1) to
(6) of that Act (salaries etc.);
(b) a judge of the Court of Session is not to count as a judge of that
court for the purposes of section 1(1) of the Court of Session Act 1988
(maximum number of judges) or of section 9(1)(c) of the Administration
of Justice Act 1973 ("the 1973 Act") (salaries etc.);
(c) a Lord Justice of Appeal or judge of the High Court in Northern
Ireland is not to count as a judge of the relevant court for the purposes
of section 2(1) or 3(1) of the Judicature (Northern Ireland) Act 1978
(maximum number of judges) nor as a judge of the Supreme Court of Northern
Ireland for the purposes of section 9(1)(d) of the 1973 Act (salaries
etc.);
(d) a Circuit judge is not to count as such for the purposes of section
18 of the Courts Act 1971 (salaries etc.);
(e) a sheriff is not to count as such for the purposes of section 14
of the Sheriff Courts (Scotland) Act 1907 (salaries etc.);
(f) a county court judge of Northern Ireland is not to count as such
for the purposes of section 106 of the County Courts Act Northern Ireland)
1959 (salaries etc.).
(5) If a sheriff principal is appointed a judge of the Court, section
11(1) of the Sheriff Courts (Scotland) Act 1971 (temporary appointment
of sheriff principal) applies, while he holds that appointment, as if
his office is vacant.
(6) Schedule 4 makes provision about judicial pensions in relation to
the holder of a judicial office who serves as a judge of the Court.
(7) The Lord Chancellor or the Secretary of State may by order make
such transitional provision (including, in particular, provision for
a temporary increase in the maximum number of judges) as he considers
appropriate in relation to any holder of a judicial office who has completed
his service as a judge of the Court.
Parliamentary
procedure
19.
- (1) A Minister of the Crown in charge of a Bill in either House of
Parliament must, before Second Reading of the Bill-
(a) make a statement to the effect that in his view the provisions of
the Bill are compatible with the Convention rights ("a statement
of compatibility"); or
(b) make a statement to the effect that although he is unable to make
a statement of compatibility the government nevertheless wishes the
House to proceed with the Bill.
(2) The statement must be in writing and be published in such manner
as the Minister making it considers appropriate.
Supplemental
20.
- (1) Any power of a Minister of the Crown to make an order under this
Act is exercisable by statutory instrument.
(2) The power of the Lord Chancellor or the Secretary of State to make
rules (other than rules of court) under section 2(3) or 7(9) is exercisable
by statutory instrument.
(3) Any statutory instrument made under section 14, 15 or 16(7) must
be laid before Parliament.
(4) No order may be made by the Lord Chancellor or the Secretary of
State under section 1(4), 7(11) or 16(2) unless a draft of the order
has been laid before, and approved by, each House of Parliament.
(5) Any statutory instrument made under section 18(7) or Schedule 4,
or to which subsection (2) applies, shall be subject to annulment in
pursuance of a resolution of either House of Parliament.
(6) The power of a Northern Ireland department to make-
(a) rules under section 2(3)(c) or 7(9)(c), or
(b) an order under section 7(11),
is exercisable by statutory rule for the purposes of the Statutory Rules
(Northern Ireland) Order 1979.
(7) Any rules made under section 2(3)(c) or 7(9)(c) shall be subject
to negative resolution; and section 41(6) of the Interpretation Act
Northern Ireland) 1954 (meaning of "subject to negative resolution")
shall apply as if the power to make the rules were conferred by an Act
of the Northern Ireland Assembly.
(8) No order may be made by a Northern Ireland department under section
7(11) unless a draft of the order has been laid before, and approved
by, the Northern Ireland Assembly.
21. - (1) In this Act-
"amend" includes repeal and apply (with or without modifications);
"the appropriate Minister" means the Minister of the Crown
having charge of the appropriate authorised government department (within
the meaning of the Crown Proceedings Act 1947);
"the Commission" means the European Commission of Human Rights;
"the Convention" means the Convention for the Protection of
Human Rights and Fundamental Freedoms, agreed by the Council of Europe
at Rome on 4th November 1950 as it has effect for the time being in
relation to the United Kingdom;
"declaration of incompatibility" means a declaration under
section 4;
"Minister of the Crown" has the same meaning as in the Ministers
of the Crown Act 1975;
"Northern Ireland Minister" includes the First Minister and
the deputy First Minister in Northern Ireland;
"primary legislation" means any-
(a) public general Act;
(b) local and personal Act;
(c) private Act;
(d) Measure of the Church Assembly;
(e) Measure of the General Synod of the Church of England;
(f) Order in Council-
(i) made in exercise of Her Majesty's Royal Prerogative;
(ii) made under section 38(1)(a) of the Northern Ireland Constitution
Act 1973 or the corresponding provision of the Northern Ireland Act
1998; or
(iii) amending an Act of a kind mentioned in paragraph (a), (b) or (c);
and includes an order or other instrument made under primary legislation
(otherwise than by the National Assembly for Wales, a member of the
Scottish Executive, a Northern Ireland Minister or a Northern Ireland
department) to the extent to which it operates to bring one or more
provisions of that legislation into force or amends any primary legislation;
"the First Protocol" means the protocol to the Convention
agreed at Paris on 20th March 1952;
"the Sixth Protocol" means the protocol to the Convention
agreed at Strasbourg on 28th April 1983;
"the Eleventh Protocol" means the protocol to the Convention
(restructuring the control machinery established by the Convention)
agreed at Strasbourg on 11th May 1994;
"remedial order" means an order under section 10;
"subordinate legislation" means any-
(a) Order in Council other than one-
(i) made in exercise of Her Majesty's Royal Prerogative;
(ii) made under section 38(1)(a) of the Northern Ireland Constitution
Act 1973 or the corresponding provision of the Northern Ireland Act
1998; or
(iii) amending an Act of a kind mentioned in the definition of primary
legislation;
(b) Act of the Scottish Parliament;
(c) Act of the Parliament of Northern Ireland;
(d) Measure of the Assembly established under section 1 of the Northern
Ireland Assembly Act 1973;
(e) Act of the Northern Ireland Assembly;
(f) order, rules, regulations, scheme, warrant, byelaw or other instrument
made under primary legislation (except to the extent to which it operates
to bring one or more provisions of that legislation into force or amends
any primary legislation);
(g) order, rules, regulations, scheme, warrant, byelaw or other instrument
made under legislation mentioned in paragraph (b), (c), (d) or (e) or
made under an Order in Council applying only to Northern Ireland;
(h) order, rules, regulations, scheme, warrant, byelaw or other instrument
made by a member of the Scottish Executive, a Northern Ireland Minister
or a Northern Ireland department in exercise of prerogative or other
executive functions of Her Majesty which are exercisable by such a person
on behalf of Her Majesty;
"transferred matters" has the same meaning as in the Northern
Ireland Act 1998; and
"tribunal" means any tribunal in which legal proceedings may
be brought.
(2) The references in paragraphs (b) and (c) of section 2(1) to Articles
are to Articles of the Convention as they had effect immediately before
the coming into force of the Eleventh Protocol.
(3) The reference in paragraph (d) of section 2(1) to Article 46 includes
a reference to Articles 32 and 54 of the Convention as they had effect
immediately before the coming into force of the Eleventh Protocol.
(4) The references in section 2(1) to a report or decision of the Commission
or a decision of the Committee of Ministers include references to a
report or decision made as provided by paragraphs 3, 4 and 6 of Article
5 of the Eleventh Protocol (transitional provisions).
(5) Any liability under the Army Act 1955, the Air Force Act 1955 or
the Naval Discipline Act 1957 to suffer death for an offence is replaced
by a liability to imprisonment for life or any less punishment authorised
by those Acts; and those Acts shall accordingly have effect with the
necessary modifications.
22. - (1) This Act may be cited as the Human Rights Act 1998.
(2) Sections 18, 20 and 21(5) and this section come into force on the
passing of this Act.
(3) The other provisions of this Act come into force on such day as
the Secretary of State may by order appoint; and different days may
be appointed for different purposes.
(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings
brought by or at the instigation of a public authority whenever the
act in question took place; but otherwise that subsection does not apply
to an act taking place before the coming into force of that section.
(5) This Act binds the Crown.
(6) This Act extends to Northern Ireland.
(7) Section 21(5), so far as it relates to any provision contained in
the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act
1957, extends to any place to which that provision extends.
S
C H E D U L E S
Schedule 1
THE ARTICLES
PART I
THE CONVENTION
RIGHTS AND FREEDOMS
ARTICLE 2
RIGHT TO LIFE
1.
Everyone's right to life shall be protected by law. No one shall be
deprived of his life intentionally save in the execution of a sentence
of a court following his conviction of a crime for which this penalty
is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention
of this Article when it results from the use of force which is no more
than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a
person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
ARTICLE 3
PROHIBITION OF TORTURE
No
one shall be subjected to torture or to inhuman or degrading treatment
or punishment.
ARTICLE 4
PROHIBITION OF SLAVERY AND FORCED LABOUR
1.
No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term "forced or compulsory
labour" shall not include:
(a) any work required to be done in the ordinary course of detention
imposed according to the provisions of Article 5 of this Convention
or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious
objectors in countries where they are recognised, service exacted instead
of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening
the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.
ARTICLE 5
RIGHT TO LIBERTY AND SECURITY
1.
Everyone has the right to liberty and security of person. No one shall
be deprived of his liberty save in the following cases and in accordance
with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent
court;
(b) the lawful arrest or detention of a person for non-compliance with
the lawful order of a court or in order to secure the fulfilment of
any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose
of bringing him before the competent legal authority on reasonable suspicion
of having committed an offence or when it is reasonably considered necessary
to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him
before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading
of infectious diseases, of persons of unsound mind, alcoholics or drug
addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting
an unauthorised entry into the country or of a person against whom action
is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language
which he understands, of the reasons for his arrest and of any charge
against him.
3. Everyone arrested or detained in accordance with the provisions of
paragraph 1(c) of this Article shall be brought promptly before a judge
or other officer authorised by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the
detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention
of the provisions of this Article shall have an enforceable right to
compensation.
ARTICLE 6
RIGHT TO A FAIR TRIAL
1.
In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal established
by law. Judgment shall be pronounced publicly but the press and public
may be excluded from all or part of the trial in the interest of morals,
public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would prejudice
the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum
rights:
(a) to be informed promptly, in a language which he understands and
in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his
defence;
(c) to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal assistance,
to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand
or speak the language used in court.
ARTICLE 7
NO PUNISHMENT WITHOUT LAW
1.
No one shall be held guilty of any criminal offence on account of any
act or omission which did not constitute a criminal offence under national
or international law at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the time
the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any
person for any act or omission which, at the time when it was committed,
was criminal according to the general principles of law recognised by
civilised nations.
ARTICLE 8
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1.
Everyone has the right to respect for his private and family life, his
home and his correspondence.
2. There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is necessary
in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.
ARTICLE 9
FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
1.
Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief and freedom,
either alone or in community with others and in public or private, to
manifest his religion or belief, in worship, teaching, practice and
observance.
2. Freedom to manifest one's religion or beliefs shall be subject only
to such limitations as are prescribed by law and are necessary in a
democratic society in the interests of public safety, for the protection
of public order, health or morals, or for the protection of the rights
and freedoms of others.
ARTICLE 10
FREEDOM OF EXPRESSION
1.
Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers.
This Article shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection
of health or morals, for the protection of the reputation or rights
of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the
judiciary.
ARTICLE 11
FREEDOM OF ASSEMBLY AND ASSOCIATION
1.
Everyone has the right to freedom of peaceful assembly and to freedom
of association with others, including the right to form and to join
trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other
than such as are prescribed by law and are necessary in a democratic
society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or
morals or for the protection of the rights and freedoms of others. This
Article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police
or of the administration of the State.
ARTICLE 12
RIGHT TO MARRY
Men
and women of marriageable age have the right to marry and to found a
family, according to the national laws governing the exercise of this
right.
ARTICLE 14
PROHIBITION OF DISCRIMINATION
The
enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.
ARTICLE 16
RESTRICTIONS ON POLITICAL ACTIVITY OF ALIENS
Nothing
in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting
Parties from imposing restrictions on the political activity of aliens.
ARTICLE 17
PROHIBITION OF ABUSE OF RIGHTS
Nothing
in this Convention may be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed
at the destruction of any of the rights and freedoms set forth herein
or at their limitation to a greater extent than is provided for in the
Convention.
ARTICLE 18
LIMITATION ON USE OF RESTRICTIONS ON RIGHTS
The
restrictions permitted under this Convention to the said rights and
freedoms shall not be applied for any purpose other than those for which
they have been prescribed.
PART II
THE FIRST PROTOCOL
ARTICLE 1
PROTECTION OF PROPERTY
Every
natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the
public interest and subject to the conditions provided for by law and
by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right
of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure
the payment of taxes or other contributions or penalties.
ARTICLE 2
RIGHT TO EDUCATION
No
person shall be denied the right to education. In the exercise of any
functions which it assumes in relation to education and to teaching,
the State shall respect the right of parents to ensure such education
and teaching in conformity with their own religious and philosophical
convictions.
ARTICLE 3
RIGHT TO FREE ELECTIONS
The
High Contracting Parties undertake to hold free elections at reasonable
intervals by secret ballot, under conditions which will ensure the free
expression of the opinion of the people in the choice of the legislature.
PART
III
THE SIXTH PROTOCOL
ARTICLE
1
ABOLITION OF THE DEATH PENALTY
The
death penalty shall be abolished. No one shall be condemned to such
penalty or executed.
ARTICLE 2
DEATH PENALTY IN TIME OF WAR
A
State may make provision in its law for the death penalty in respect
of acts committed in time of war or of imminent threat of war; such
penalty shall be applied only in the instances laid down in the law
and in accordance with its provisions. The State shall communicate to
the Secretary General of the Council of Europe the relevant provisions
of that law.
Schedule 2
REMEDIAL ORDERS
Orders
1.
- (1) A remedial order may-
(a) contain such incidental, supplemental, consequential or transitional
provision as the person making it considers appropriate;
(b) be made so as to have effect from a date earlier than that on which
it is made;
(c) make provision for the delegation of specific functions;
(d) make different provision for different cases.
(2) The power conferred by sub-paragraph (1)(a) includes-
(a) power to amend primary legislation (including primary legislation
other than that which contains the incompatible provision); and
(b) power to amend or revoke subordinate legislation (including subordinate
legislation other than that which contains the incompatible provision).
(3) A remedial order may be made so as to have the same extent as the
legislation which it affects.
(4) No person is to be guilty of an offence solely as a result of the
retrospective effect of a remedial order.
Procedure
2.
No remedial order may be made unless-
(a) a draft of the order has been approved by a resolution of each House
of Parliament made after the end of the period of 60 days beginning
with the day on which the draft was laid; or
(b) it is declared in the order that it appears to the person making
it that, because of the urgency of the matter, it is necessary to make
the order without a draft being so approved.
Orders laid in draft
3.
- (1) No draft may be laid under paragraph 2(a) unless-
(a) the person proposing to make the order has laid before Parliament
a document which contains a draft of the proposed order and the required
information; and
(b) the period of 60 days, beginning with the day on which the document
required by this sub-paragraph was laid, has ended.
(2) If representations have been made during that period, the draft
laid under paragraph 2(a) must be accompanied by a statement containing-
(a) a summary of the representations; and
(b) if, as a result of the representations, the proposed order has been
changed, details of the changes.
Urgent cases
4.
- (1) If a remedial order ("the original order") is made without
being approved in draft, the person making it must lay it before Parliament,
accompanied by the required information, after it is made.
(2) If representations have been made during the period of 60 days beginning
with the day on which the original order was made, the person making
it must (after the end of that period) lay before Parliament a statement
containing-
(a) a summary of the representations; and
(b) if, as a result of the representations, he considers it appropriate
to make changes to the original order, details of the changes.
(3) If sub-paragraph (2)(b) applies, the person making the statement
must-
(a) make a further remedial order replacing the original order; and
(b) lay the replacement order before Parliament.
(4) If, at the end of the period of 120 days beginning with the day
on which the original order was made, a resolution has not been passed
by each House approving the original or replacement order, the order
ceases to have effect (but without that affecting anything previously
done under either order or the power to make a fresh remedial order).
Definitions
5.
In this Schedule-
"representations" means representations about a remedial order
(or proposed remedial order) made to the person making (or proposing
to make) it and includes any relevant Parliamentary report or resolution;
and
"required information" means-
(a) an explanation of the incompatibility which the order (or proposed
order) seeks to remove, including particulars of the relevant declaration,
finding or order; and
(b) a statement of the reasons for proceeding under section 10 and for
making an order in those terms.
Calculating periods
6.
In calculating any period for the purposes of this Schedule, no account
is to be taken of any time during which-
(a) Parliament is dissolved or prorogued; or
(b) both Houses are adjourned for more than four days.
Schedule 3
DEROGATION AND RESERVATION
PART I
DEROGATION
The 1988 notification
The
United Kingdom Permanent Representative to the Council of Europe presents
his compliments to the Secretary General of the Council, and has the
honour to convey the following information in order to ensure compliance
with the obligations of Her Majesty's Government in the United Kingdom
under Article 15(3) of the Convention for the Protection of Human Rights
and Fundamental Freedoms signed at Rome on 4 November 1950.
There have been in the United Kingdom in recent years campaigns of organised
terrorism connected with the affairs of Northern Ireland which have
manifested themselves in activities which have included repeated murder,
attempted murder, maiming, intimidation and violent civil disturbance
and in bombing and fire raising which have resulted in death, injury
and widespread destruction of property. As a result, a public emergency
within the meaning of Article 15(1) of the Convention exists in the
United Kingdom.
The Government found it necessary in 1974 to introduce and since then,
in cases concerning persons reasonably suspected of involvement in terrorism
connected with the affairs of Northern Ireland, or of certain offences
under the legislation, who have been detained for 48 hours, to exercise
powers enabling further detention without charge, for periods of up
to five days, on the authority of the Secretary of State. These powers
are at present to be found in Section 12 of the Prevention of Terrorism
(Temporary Provisions) Act 1984, Article 9 of the Prevention of Terrorism
(Supplemental Temporary Provisions) Order 1984 and Article 10 of the
Prevention of Terrorism (Supplemental Temporary Provisions) (Northern
Ireland) Order 1984.
Section 12 of the Prevention of Terrorism (Temporary Provisions) Act
1984 provides for a person whom a constable has arrested on reasonable
grounds of suspecting him to be guilty of an offence under Section 1,
9 or 10 of the Act, or to be or to have been involved in terrorism connected
with the affairs of Northern Ireland, to be detained in right of the
arrest for up to 48 hours and thereafter, where the Secretary of State
extends the detention period, for up to a further five days. Section
12 substantially re-enacted Section 12 of the Prevention of Terrorism
(Temporary Provisions) Act 1976 which, in turn, substantially re-enacted
Section 7 of the Prevention of Terrorism (Temporary Provisions) Act
1974.
Article 10 of the Prevention of Terrorism (Supplemental Temporary Provisions)
(Northern Ireland) Order 1984 (SI 1984/417) and Article 9 of the Prevention
of Terrorism (Supplemental Temporary Provisions) Order 1984 (SI 1984/418)
were both made under Sections 13 and 14 of and Schedule 3 to the 1984
Act and substantially re-enacted powers of detention in Orders made
under the 1974 and 1976 Acts. A person who is being examined under Article
4 of either Order on his arrival in, or on seeking to leave, Northern
Ireland or Great Britain for the purpose of determining whether he is
or has been involved in terrorism connected with the affairs of Northern
Ireland, or whether there are grounds for suspecting that he has committed
an offence under Section 9 of the 1984 Act, may be detained under Article
9 or 10, as appropriate, pending the conclusion of his examination.
The period of this examination may exceed 12 hours if an examining officer
has reasonable grounds for suspecting him to be or to have been involved
in acts of terrorism connected with the affairs of Northern Ireland.
Where such a person is detained under the said Article 9 or 10 he may
be detained for up to 48 hours on the authority of an examining officer
and thereafter, where the Secretary of State extends the detention period,
for up to a further five days.
In its judgment of 29 November 1988 in the Case of Brogan and Others,
the European Court of Human Rights held that there had been a violation
of Article 5(3) in respect of each of the applicants, all of whom had
been detained under Section 12 of the 1984 Act. The Court held that
even the shortest of the four periods of detention concerned, namely
four days and six hours, fell outside the constraints as to time permitted
by the first part of Article 5(3). In addition, the Court held that
there had been a violation of Article 5(5) in the case of each applicant.
Following this judgment, the Secretary of State for the Home Department
informed Parliament on 6 December 1988 that, against the background
of the terrorist campaign, and the over-riding need to bring terrorists
to justice, the Government did not believe that the maximum period of
detention should be reduced. He informed Parliament that the Government
were examining the matter with a view to responding to the judgment.
On 22 December 1988, the Secretary of State further informed Parliament
that it remained the Government's wish, if it could be achieved, to
find a judicial process under which extended detention might be reviewed
and where appropriate authorised by a judge or other judicial officer.
But a further period of reflection and consultation was necessary before
the Government could bring forward a firm and final view.
Since the judgment of 29 November 1988 as well as previously, the Government
have found it necessary to continue to exercise, in relation to terrorism
connected with the affairs of Northern Ireland, the powers described
above enabling further detention without charge for periods of up to
5 days, on the authority of the Secretary of State, to the extent strictly
required by the exigencies of the situation to enable necessary enquiries
and investigations properly to be completed in order to decide whether
criminal proceedings should be instituted. To the extent that the exercise
of these powers may be inconsistent with the obligations imposed by
the Convention the Government has availed itself of the right of derogation
conferred by Article 15(1) of the Convention and will continue to do
so until further notice.
Dated 23 December 1988.
The
1989 notification
The
United Kingdom Permanent Representative to the Council of Europe presents
his compliments to the Secretary General of the Council, and has the
honour to convey the following information.
In his communication to the Secretary General of 23 December 1988, reference
was made to the introduction and exercise of certain powers under section
12 of the Prevention of Terrorism (Temporary Provisions) Act 1984, Article
9 of the Prevention of Terrorism (Supplemental Temporary Provisions)
Order 1984 and Article 10 of the Prevention of Terrorism (Supplemental
Temporary Provisions) (Northern Ireland) Order 1984.
These provisions have been replaced by section 14 of and paragraph 6
of Schedule 5 to the Prevention of Terrorism (Temporary Provisions)
Act 1989, which make comparable provision. They came into force on 22
March 1989. A copy of these provisions is enclosed.
The United Kingdom Permanent Representative avails himself of this opportunity
to renew to the Secretary General the assurance of his highest consideration.
23 March 1989.
PART
II
RESERVATION
At
the time of signing the present (First) Protocol, I declare that, in
view of certain provisions of the Education Acts in the United Kingdom,
the principle affirmed in the second sentence of Article 2 is accepted
by the United Kingdom only so far as it is compatible with the provision
of efficient instruction and training, and the avoidance of unreasonable
public expenditure.
Dated 20 March 1952
Made by the United Kingdom Permanent Representative to the Council of
Europe
Schedule 4
JUDICIAL PENSIONS
Duty to make orders about pensions
1.
- (1) The appropriate Minister must by order make provision with respect
to pensions payable to or in respect of any holder of a judicial office
who serves as an ECHR judge.
(2) A pensions order must include such provision as the Minister making
it considers is necessary to secure that-
(a) an ECHR judge who was, immediately before his appointment as an
ECHR judge, a member of a judicial pension scheme is entitled to remain
as a member of that scheme;
(b) the terms on which he remains a member of the scheme are those which
would have been applicable had he not been appointed as an ECHR judge;
and
(c) entitlement to benefits payable in accordance with the scheme continues
to be determined as if, while serving as an ECHR judge, his salary was
that which would (but for section 18(4)) have been payable to him in
respect of his continuing service as the holder of his judicial office.
Contribution
2.
A pensions order may, in particular, make provision-
(a) for any contributions which are payable by a person who remains
a member of a scheme as a result of the order, and which would otherwise
be payable by deduction from his salary, to be made otherwise than by
deduction from his salary as an ECHR judge; and
(b) for such contributions to be collected in such manner as may be
determined by the administrators of the scheme.
Amendments
of other enactments
3.
A pensions order may amend any provision of, or made under, a pensions
Act in such manner and to such extent as the Minister making the order
considers necessary or expedient to ensure the proper administration
of any scheme to which it relates.
Definitions
4.
In this Schedule-
"appropriate Minister" means-
(a) in relation to any judicial office whose jurisdiction is exercisable
exclusively in relation to Scotland, the Secretary of State; and
(b) otherwise, the Lord Chancellor;
"ECHR judge" means the holder of a judicial office who is
serving as a judge of the Court;
"judicial pension scheme" means a scheme established by and
in accordance with a pensions Act;
"pensions Act" means-
(a) the County Courts Act Northern Ireland) 1959;
(b) the Sheriffs' Pensions (Scotland) Act 1961;
(c) the Judicial Pensions Act 1981; or
(d) the Judicial Pensions and Retirement Act 1993; and
"pensions order" means an order made under paragraph 1.
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