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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. Back
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