On Liberty (21 page)

1. Period for which designated derogations have effect.
   
   1. (1) If it has not already been withdrawn by the United Kingdom, a designated derogation ceases to have effect for the purposes of this Act—
      

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

      …, at the end of the period of five years beginning with the date on which the order designating it was made.
      

   2. (2) At any time before the period—
      
      1. (a) fixed by subsection (1)
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         …, or
         
      2. (b) extended by an order under this subsection,
         

      comes to an end, the
      [
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      Secretary of State
      ]
      may by order extend it by a further period of five years.
      

   3. (3) An order under section 14(1)
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      … 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. (4) Subsection (3) does not affect—
      
      1. (a) anything done in reliance on the order; or
         
      2. (b) the power to make a fresh order under section 14(1) . …
         
   5. (5) In subsection (3) “period for consideration” means the period of forty days beginning with the day on which the order was made.
      
   6. (6) In calculating the period for consideration, no account is to be taken of any time during which—
      
      1. (a) Parliament is dissolved or prorogued; or
         
      2. (b) both Houses are adjourned for more than four days.
         
   7. (7) If a designated derogation is withdrawn by the United Kingdom, the
      [
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      Secretary of State
      ]
      must by order make such amendments to this Act as he considers are required to reflect that withdrawal.
      

1. Periodic review of designated reservations.
   
   1. (1) The appropriate Minister must review the designated reservation referred to in section 15(1)(a)—
      
      1. (a) before the end of the period of five years beginning with the date on which section 1(2) came into force; and
         
      2. (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. (2) The appropriate Minister must review each of the other designated reservations (if any)—
      
      1. (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
         
      2. (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. (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

1. Appointment to European Court of Human Rights.
   
   1. (1) In this section “judicial office” means the office of—
      
      1. (a) Lord Justice of Appeal, Justice of the High Court or Circuit judge, in England and Wales;
         
      2. (b) judge of the Court of Session or sheriff, in Scotland;
         
      3. (c) Lord Justice of Appeal, judge of the High Court or county court judge, in Northern Ireland.
         
   2. (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. (3) But he is not required to perform the duties of his judicial office while he is a judge of the Court.
      
   4. (4) In respect of any period during which he is a judge of the Court—
      
      1. (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
         [
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         Senior Courts Act 1981
         ]
         (maximum number of judges) nor as a judge of the
         [
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         Senior Courts
         ]
         for the purposes of section 12(1) to (6) of that Act (salaries etc.);
         
      2. (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
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         Court of Session Act 1988 (maximum number of judges) or of section 9(1)(c) of the
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         Administration of Justice Act 1973 (“the 1973 Act”) (salaries etc.);
         
      3. (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
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         Judicature (Northern Ireland) Act 1978 (maximum number of judges) nor as a judge of the
         [
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         Court of Judicature
         ]
         of Northern Ireland for the purposes of section 9(1)(d) of the 1973 Act (salaries etc.);
         
      4. (d) a Circuit judge is not to count as such for the purposes of section 18 of the
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         Courts Act 1971 (salaries etc.);
         
      5. (e) a sheriff is not to count as such for the purposes of section 14 of the
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         Sheriff Courts (Scotland) Act 1907 (salaries etc.);
         
      6. (f) a county court judge of Northern Ireland is not to count as such for the purposes of section 106 of the
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         County Courts Act Northern Ireland) 1959 (salaries etc.).
         
   5. (5) If a sheriff principal is appointed a judge of the Court, section 11(1) of the
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      Sheriff Courts (Scotland) Act 1971 (temporary appointment of sheriff principal) applies, while he holds that appointment, as if his office is vacant.
      
   6. (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. (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.
      
   8. [
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      (7A) The following paragraphs apply to the making of an order under subsection (7) in relation to any holder of a judicial office listed in subsection (1)(a)—
      
      1. (a) before deciding what transitional provision it is appropriate to make, the person making the order must consult the Lord Chief Justice of England and Wales;
         
      2. (b) before making the order, that person must consult the Lord Chief Justice of England and Wales.
         
   9. (7B) The following paragraphs apply to the making of an order under subsection (7) in relation to any holder of a judicial office listed in subsection (1)(c)—
      
      1. (a) before deciding what transitional provision it is appropriate to make, the person making the order must consult the Lord Chief Justice of Northern Ireland;
         
      2. (b) before making the order, that person must consult the Lord Chief Justice of Northern Ireland.
         
   10. (7C) The Lord Chief Justice of England and Wales may nominate a judicial office holder (within the meaning of section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
       
   11. (7D) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—
       
       1. (a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;
          
       2. (b) a Lord Justice of Appeal (as defined in section 88 of that Act).
          ]
          

Parliamentary procedure

1. Statements of compatibility.
   
   1. (1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill—
      
      1. (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
         
      2. (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. (2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.
      

Supplemental

1. Orders etc. under this Act.
   
   1. (1) Any power of a Minister of the Crown to make an order under this Act is exercisable by statutory instrument.
      
   2. (2) The power of
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      …
      [
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      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. (3) Any statutory instrument made under section 14, 15 or 16(7) must be laid before Parliament.
      
   4. (4) No order may be made by
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      …
      [
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      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. (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. (6) The power of a Northern Ireland department to make—
      
      1. (a) rules under section 2(3)(c) or 7(9)(c), or
         
      2. (b) an order under section 7(11),
         

      is exercisable by statutory rule for the purposes of the
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      Statutory Rules (Northern Ireland) Order 1979.
      

   7. (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
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      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. (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.
      

1. Interpretation, etc.
   
   1. (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
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      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
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      Crown Act 1975;
      

      “Northern Ireland Minister” includes the First Minister and the deputy First Minister in Northern Ireland;
      

      “primary legislation” means any—
      

      1. (a) public general Act;
         
      2. (b) local and personal Act;
         
      3. (c) private Act;
         
      4. (d) Measure of the Church Assembly;
         
      5. (e) Measure of the General Synod of the Church of England;
         
      6. (f) Order in Council—
         
      7. (i) made in exercise of Her Majesty’s Royal Prerogative;
         
      8. (ii) made under section 38(1)(a) of the
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         Northern Ireland Constitution Act 1973 or the corresponding provision of the Northern Ireland Act 1998; or
         
      9. (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
      [
      ^F37
      Welsh Ministers, the First Minister for Wales, the Counsel General to the Welsh Assembly Government,
      ]
      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;
      

      ^F38
      …
      

      “the Eleventh Protocol” means the protocol to the Convention (restructuring the control machinery established by the Convention) agreed at Strasbourg on 11th May 1994;
      

      [
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      “the Thirteenth Protocol” means the protocol to the Convention (concerning the abolition of the death penalty in all circumstances) agreed at Vilnius on 3rd May 2002;
      ]
      

      “remedial order” means an order under section 10;
      

      “subordinate legislation” means any—
      

      1. (a) Order in Council other than one—
         
      2. (i) made in exercise of Her Majesty’s Royal Prerogative;
         
      3. (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
         
      4. (iii) amending an Act of a kind mentioned in the definition of primary legislation;
         
      5. (b) Act of the Scottish Parliament;
         
      6. (ba)
         [
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         Measure of the National Assembly for Wales;
         
      7. (bb) Act of the National Assembly for Wales;
         ]
         
      8. (c) Act of the Parliament of Northern Ireland;
         
      9. (d) Measure of the Assembly established under section 1 of the
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         Northern Ireland Assembly Act 1973;
         
      10. (e) Act of the Northern Ireland Assembly;
          
      11. (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);
          
      12. (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;
          
      13. (h) order, rules, regulations, scheme, warrant, byelaw or other instrument made by a member of the Scottish Executive
          [
          ^F41
          , Welsh Ministers, the First Minister for Wales, the Counsel General to the Welsh Assembly Government,
          ]
          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. (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. (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. (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. (5)
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      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .