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:—
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-
Interpretation of Convention rights
(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-
Interpretation of legislation
(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-
Declaration of incompatibility
(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-
Right of Crown to intervene
(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-
Acts of public authorities
(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-
Proceedings
(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 [1990 c. 41.] 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-
Judicial remedies
(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 [1940 c. 42.] 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 [1978 c. 47.] 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-
Judicial acts
(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).
Remedial action
10-
Power to take remedial action
(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-
Safeguard for existing human rights
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-
Freedom of expression
(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-
Freedom of thought, conscience and religion
(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-
Derogations
(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-
Reservations
(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-
Period for which designated derogations have effect
(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.
