Human Rights Act 1998
1998 Chapter 42 - continued

 
 

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
The Convention Rights.     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.
 
Interpretation of Convention rights.     2. - (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any-
 
 
    (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
Interpretation of legislation.     3. - (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
 
      (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.
Declaration of incompatibility.     4. - (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
 
      (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.
Right of Crown to intervene.     5. - (1) Where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court.
 
      (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
Acts of public authorities.     6. - (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
 
      (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.
Proceedings.     7. - (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
 
 
    (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.
 
Judicial remedies.     8. - (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
 
      (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).
 
 
 
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