On Liberty (20 page)

1. Judicial remedies.
   
   1. (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. (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. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—
      
      1. (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
         
      2. (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. (4) In determining—
      
      1. (a) whether to award damages, or
         
      2. (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. (5) A public authority against which damages are awarded is to be treated—
      
      1. (a) in Scotland, for the purposes of section 3 of the
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         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;
         
      2. (b) for the purposes of the
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         Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
         
   6. (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).
      

1. Judicial acts.
   
   1. (1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only—
      
      1. (a) by exercising a right of appeal;
         
      2. (b) on an application (in Scotland a petition) for judicial review; or
         
      3. (c) in such other forum as may be prescribed by rules.
         
   2. (2) That does not affect any rule of law which prevents a court from being the subject of judicial review.
      
   3. (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. (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. (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
      [
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      (or, in Northern Ireland, a lay magistrate)
      ]
      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

1. Power to take remedial action.
   
   1. (1) This section applies if—
      
      1. (a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies—
         
         1. (i) all persons who may appeal have stated in writing that they do not intend to do so;
            
         2. (ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or
            
         3. (iii) an appeal brought within that time has been determined or abandoned; or
            
      2. (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. (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. (3) If, in the case of subordinate legislation, a Minister of the Crown considers—
      
      1. (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
         
      2. (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. (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. (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. (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. (7) Schedule 2 makes further provision about remedial orders.
      

Other rights and proceedings

1. Safeguard for existing human rights.
   

   A person’s reliance on a Convention right does not restrict—
   

   1. (a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom; or
      
   2. (b) his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9.
      

1. Freedom of expression.
   
   1. (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. (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—
      
      1. (a) that the applicant has taken all practicable steps to notify the respondent; or
         
      2. (b) that there are compelling reasons why the respondent should not be notified.
         
   3. (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. (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—
      
      1. (a) the extent to which—
         
         1. (i) the material has, or is about to, become available to the public; or
            
         2. (ii) it is, or would be, in the public interest for the material to be published;
            
      2. (b) any relevant privacy code.
         
   5. (5) In this section—
      

      “court” includes a tribunal; and
      

      “relief” includes any remedy or order (other than in criminal proceedings).
      

1. Freedom of thought, conscience and religion.
   
   1. (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. (2) In this section “court” includes a tribunal.
      

Derogations and reservations

1. Derogations.
   
   1. (1) In this Act “designated derogation” means—
      

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      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      

      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
      [
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      Secretary of State
      ]
      

   2. ^F17
      (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      
   3. (3) If a designated derogation is amended or replaced it ceases to be a designated derogation.
      
   4. (4) But subsection (3) does not prevent the
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      Secretary of State
      ]
      from exercising his power under subsection (1)
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      … to make a fresh designation order in respect of the Article concerned.
      
   5. (5) The
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      Secretary of State
      ]
      must by order make such amendments to Schedule 3 as he considers appropriate to reflect—
      
      1. (a) any designation order; or
         
      2. (b) the effect of subsection (3).
         
   6. (6) A designation order may be made in anticipation of the making by the United Kingdom of a proposed derogation.
      

1. Reservations.
   
   1. (1) In this Act “designated reservation” means—
      
      1. (a) the United Kingdom’s reservation to Article 2 of the First Protocol to the Convention; and
         
      2. (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
         [
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         Secretary of State
         ]
         .
         
   2. (2) The text of the reservation referred to in subsection (1)(a) is set out in Part II of Schedule 3.
      
   3. (3) If a designated reservation is withdrawn wholly or in part it ceases to be a designated reservation.
      
   4. (4) But subsection (3) does not prevent the
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      Secretary of State
      ]
      from exercising his power under subsection (1)(b) to make a fresh designation order in respect of the Article concerned.
      
   5. (5)
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      Secretary of State
      ]
      must by order make such amendments to this Act as he considers appropriate to reflect—
      
      1. (a) any designation order; or
         
      2. (b) the effect of subsection (3).