Human Rights Bill [H.L.] - continued        House of Commons
Public authorities - continued

back to previous text
 
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 includes 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) 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.
      (6) 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.
 
      (7) Nothing in this Act creates a criminal offence.
 
      (8) Nothing in this Act shall be used to compel any minister, official or other person acting on behalf of a christian or other principal religious tradition represented in Great Britain to administer a marriage contrary to his religious doctrines or convictions.
 
      (9) In relation to-
 
 
    (a) a church school;
 
    (b) a school or college with a religious foundation or trust deed or, as the case may be, memorandum or articles of association,
  nothing in this Act shall be used to affect its ability to select for the position of headteacher, deputy headteacher or other senior post people whose beliefs and manner of life are appropriate to the basic ethos of the school and to dispense with the services of a person in the position of headteacher, deputy headteacher or other senior post whose beliefs and manner of life are not appropriate to the basic ethos of the school.
 
      (10) In relation to a charity which has as one of its aims the advancement of religion, nothing in this Act shall be used to affect its ability to select for the position of chief executive, deputy chief executive or other senior post people whose beliefs and manner of life are appropriate to the basic ethos of the charity and to dispense with the services of a person in the position of chief executive, deputy chief executive or other senior post whose beliefs and manner of life are not appropriate to the basic ethos of the charity.
 
      (11) In this section "rules" means-
 
 
    (a) in relation to proceedings before a court in Scotland, rules made by the Secretary of State for the purposes of this section,
 
    (b) in relation to proceedings before a tribunal in Scotland, rules made by the Lord Advocate or the Secretary of State for those purposes,
 
    (c) in relation to proceedings before any other court or tribunal, rules made by the Secretary of State or the Lord Chancellor for those purposes or rules of court,
  and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.
 
      (12) In making rules regard must be had to section 9.
 
      (13) The Minister who has power to make rules in relation to a particular tribunal may by order give that tribunal jurisdiction-
 
 
    (a) to determine such questions arising in connection with the Convention rights, or
 
    (b) to grant in respect of acts (or proposed acts) of public authorities which are (or would be) unlawful as a result of section 6(1) such relief or remedy of a kind that it has power to grant,
  as he considers appropriate.
 
      (14) An order made under subsection (13) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate.
 
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 jurisdiction 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) 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).
Judicial acts.     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;
 
    "rules" has the same meaning as in section 7(11).
 
Remedial action
Power to take remedial action.     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 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, in order to remove the incompatibility, it is appropriate to amend the legislation using the power conferred by this subsection, he may by order make such amendments to it as he considers appropriate.
 
      (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 it is appropriate to do so using the power conferred by this subsection,
  he may by order make such amendments to the primary legislation as he considers appropriate.
 
      (4) The power conferred by subsection (2) may also be exercised 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 section 12(1)(b).
 
      (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-
 
 
    (a) "amendments" includes repeals and the application of provisions subject to modifications, and
 
    (b) "legislation" does not include a Measure of the Church Assembly or of the General Synod of the Church of England.
Remedial orders.     11. - (1) A remedial order may-
 
 
    (a) contain such incidental, supplemental, consequential and 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; and
 
    (d) make different provision for different cases.
      (2) The power conferred by subsection (1)(a) includes-
 
 
    (a) power to amend or repeal 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) No person is to be guilty of an offence solely as a result of the retrospective effect of a remedial order.
 
Procedure.     12. - (1) No remedial order may be made unless-
 
 
    (a) a draft of the order has been approved by resolution of each House of Parliament made after the end of the period for consideration; or
 
    (b) it is declared in the order that it appears to the Minister making it, or Her Majesty in Council, that because of the urgency of the matter it is necessary to make the order without a draft being so approved.
      (2) If a remedial order is made without being approved in draft-
 
 
    (a) the order must be laid before Parliament after it is made; and
 
    (b) if at the end of the period for consideration a resolution has not been passed by each House approving the order, the order ceases to have effect (but without that affecting anything previously done under the order or the power to make a fresh remedial order).
      (3) A remedial order (or draft) laid before Parliament must be accompanied by a statement containing-
 
 
    (a) an explanation of the incompatibility which the order seeks to remove, including particulars of the relevant declaration, finding or order; and
 
    (b) a statement of the reasons why the person making it (or proposing to make it) considers an order in those terms appropriate.
      (4) "Period for consideration" means-
 
 
    (a) in subsection (1), the period of sixty days beginning with the day on which the draft was laid, and
 
    (b) in subsection (2), the period of forty days beginning with the day on which the order was made.
      (5) 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.
 
Other rights and proceedings
Safeguard for existing human rights.     13. 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.
 
Derogations and reservations
Derogations.     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 2.
 
      (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 2 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.
 
Reservations.     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 2.
 
      (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).
Period for which designated derogations have effect.     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.
 
 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1998
Prepared 9 February 1998