On Liberty (23 page)

Authors: Shami Chakrabarti

BOOK: On Liberty

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The death penalty shall be abolished. No one shall be condemned to such penalty or executed.
]

Human Rights Act 1998 (c. 42)
SCHEDULE 2 – Remedial Orders
Document Generated: 2014-07-03

Changes to legislation:
There are outstanding changes not yet made by the
legislation.gov.uk
editorial team to Human Rights Act 1998. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details)

P
ART
III

T
HE
S
IXTH
P
ROTOCOL

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

SCHEDULE 2
Section 10.

R
EMEDIAL
O
RDERS

Orders

1. (1) A remedial order may—
  1. (a) contain such incidental, supplemental, consequential or transitional provision as the person making it considers appropriate;
  2. (b) be made so as to have effect from a date earlier than that on which it is made;
  3. (c) make provision for the delegation of specific functions;
  4. (d) make different provision for different cases.
2. (2) The power conferred by sub-paragraph (1)(a) includes—
  1. (a) power to amend primary legislation (including primary legislation other than that which contains the incompatible provision); and
  2. (b) power to amend or revoke subordinate legislation (including subordinate legislation other than that which contains the incompatible provision).
3. (3) A remedial order may be made so as to have the same extent as the legislation which it affects.
4. (4) No person is to be guilty of an offence solely as a result of the retrospective effect of a remedial order.

Procedure

1. No remedial order may be made unless—
  1. (a) a draft of the order has been approved by a resolution of each House of Parliament made after the end of the period of 60 days beginning with the day on which the draft was laid; or
  2. (b) it is declared in the order that it appears to the person making it that, because of the urgency of the matter, it is necessary to make the order without a draft being so approved.

Orders laid in draft

1. (1) No draft may be laid under paragraph 2(a) unless—
  1. (a) the person proposing to make the order has laid before Parliament a document which contains a draft of the proposed order and the required information; and
  2. (b) the period of 60 days, beginning with the day on which the document required by this sub-paragraph was laid, has ended.
2. (2) If representations have been made during that period, the draft laid under paragraph 2(a) must be accompanied by a statement containing—
  1. (a) a summary of the representations; and
  2. (b) if, as a result of the representations, the proposed order has been changed, details of the changes.

Urgent cases

1. (1) If a remedial order (“the original order”) is made without being approved in draft, the person making it must lay it before Parliament, accompanied by the required information, after it is made.
2. (2) If representations have been made during the period of 60 days beginning with the day on which the original order was made, the person making it must (after the end of that period) lay before Parliament a statement containing—
  1. (a) a summary of the representations; and
  2. (b) if, as a result of the representations, he considers it appropriate to make changes to the original order, details of the changes.
3. (3) If sub-paragraph (2)(b) applies, the person making the statement must—
  1. (a) make a further remedial order replacing the original order; and
  2. (b) lay the replacement order before Parliament.
4. (4) If, at the end of the period of 120 days beginning with the day on which the original order was made, a resolution has not been passed by each House approving the original or replacement order, the order ceases to have effect (but without that affecting anything previously done under either order or the power to make a fresh remedial order).

Definitions

1. In this Schedule—
  “representations” means representations about a remedial order (or proposed remedial order) made to the person making (or proposing to make) it and includes any relevant Parliamentary report or resolution; and
  “required information” means—
  1. (a) an explanation of the incompatibility which the order (or proposed order) seeks to remove, including particulars of the relevant declaration, finding or order; and
  2. (b) a statement of the reasons for proceeding under section 10 and for making an order in those terms.

Calculating periods

1. In calculating any period for the purposes of this Schedule, 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.

[
^F487 (1) This paragraph applies in relation to–

Human Rights Act 1998 (c. 42)
SCHEDULE 3 – Derogation and Reservation
Document Generated: 2014-07-03

1. (a) any remedial order made, and any draft of such an order proposed to be made,–
  1. (i) by the Scottish Ministers; or
  2. (ii) within devolved competence (within the meaning of the Scotland Act 1998) by Her Majesty in Council; and
2. (b) any document or statement to be laid in connection with such an order (or proposed order).

(2) This Schedule has effect in relation to any such order (or proposed order), document or statement subject to the following modifications.
(3) Any reference to Parliament, each House of Parliament or both Houses of Parliament shall be construed as a reference to the Scottish Parliament.
(4) Paragraph 6 does not apply and instead, in calculating any period for the purposes of this Schedule, no account is to be taken of any time during which the Scottish Parliament is dissolved or is in recess for more than four days.
]

Annotations:

Amendments (Textual)

F48	Sch. 2 para. 7 inserted (27.7.2000) by S.I. 2000/2040, art. 2, Sch. Pt. I para. 21 (with art. 3)

SCHEDULE 3
Sections 14 and 15.

D
EROGATION AND
R
ESERVATION

^F49

P
ART
I

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

Annotations:

Amendments (Textual)

F49	Sch. 3 Pt. I repealed (1.4.2001) by S.I. 2001/1216, art. 4

^F50

PART I

DEROGATION

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

Human Rights Act 1998 (c. 42)
SCHEDULE 4 – Judicial Pensions
Document Generated: 2014-07-03

Annotations:

Amendments (Textual)

F50	Sch. 3 Pt. I repealed (8.4.2005) by The Human Rights Act 1998 (Amendment) Order 2005 (S.I. 2005/1071), art. 2

P
ART
II

R
ESERVATION

At the time of signing the present (First) Protocol, I declare that, in view of certain provisions of the Education Acts in the United Kingdom, the principle affirmed in the second sentence of Article 2 is accepted by the United Kingdom only so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.

Dated 20 March 1952

Made by the United Kingdom Permanent Representative to the Council of Europe.

SCHEDULE 4
Section 18(6).

J
UDICIAL
P
ENSIONS

Duty to make orders about pensions

1. (1) The appropriate Minister must by order make provision with respect to pensions payable to or in respect of any holder of a judicial office who serves as an ECHR judge.
2. (2) A pensions order must include such provision as the Minister making it considers is necessary to secure that—
  1. (a) an ECHR judge who was, immediately before his appointment as an ECHR judge, a member of a judicial pension scheme is entitled to remain as a member of that scheme;
  2. (b) the terms on which he remains a member of the scheme are those which would have been applicable had he not been appointed as an ECHR judge; and
  3. (c) entitlement to benefits payable in accordance with the scheme continues to be determined as if, while serving as an ECHR judge, his salary was that which would (but for section 18(4)) have been payable to him in respect of his continuing service as the holder of his judicial office.

Contributions

1. A pensions order may, in particular, make provision—
  1. (a) for any contributions which are payable by a person who remains a member of a scheme as a result of the order, and which would otherwise be payable by deduction from his salary, to be made otherwise than by deduction from his salary as an ECHR judge; and
  2. (b) for such contributions to be collected in such manner as may be determined by the administrators of the scheme.

Amendments of other enactments

1. A pensions order may amend any provision of, or made under, a pensions Act in such manner and to such extent as the Minister making the order considers necessary or expedient to ensure the proper administration of any scheme to which it relates.

Definitions

1. In this Schedule—
  1. “appropriate Minister” means—
  2. (a) in relation to any judicial office whose jurisdiction is exercisable exclusively in relation to Scotland, the Secretary of State; and
  3. (b) otherwise, the Lord Chancellor;
  4. “ECHR judge” means the holder of a judicial office who is serving as a judge of the Court;
  5. “judicial pension scheme” means a scheme established by and in accordance with a pensions Act;
  6. “pensions Act” means—
  7. (a) the
    ^M17County Courts Act Northern Ireland) 1959;
  8. (b) the
    ^M18Sheriffs’ Pensions (Scotland) Act 1961;
  9. (c) the
    ^M19Judicial Pensions Act 1981; or
  10. (d) the
    ^M20Judicial Pensions and Retirement Act 1993; and

“pensions order” means an order made under paragraph 1.

Annotations:

Marginal Citations

M17	1959 c. 25 (N.I.).
M18	1961 c. 42.
M19	1981 c. 20.
M20	1993 c. 8.

Human Rights Act 1998 (c. 42)
Document Generated: 2014-07-03

Changes to legislation:

There are outstanding changes not yet made by the
legislation.gov.uk
editorial team to Human Rights Act 1998. Any changes that have already been made by the team appear in the content and are referenced with annotations.

Changes and effects yet to be applied to :

– s. 4(5)(f) words substituted by 2013 c. 22 Sch. 14 para. 5(5) –

– Sch. 4 para. 4 words inserted by 2013 c. 25 Sch. 8 para. 26

Commencement Orders yet to be applied to the Human Rights Act 1998

Commencement Orders bringing legislation that affects this Act into force: –

– S.I. 2006/1014 art. 2 Sch. 1 2 commences (2005 c. 4) –

– S.I. 2007/1897 art. 2 commences (2005 c. 9) –

– S.I. 2009/812 art. 3(a)(b) commences (2006 c. 52) –

– S.I. 2009/1059 Order transitional provisions for effects of commencing SI 2009/812

– S.I. 2009/1604 art. 2 commences (2005 c. 4)

Acknowledgements

I owe so much to my mother for reading to me and my father for arguing with me. I am grateful to a lifetime of wonderful teachers, mentors and friends – whether mentioned or not in my human rights story; you know who you are. James Sebastian, Jane, Stella, Tamara, Fi Mac, Diana, the Butters (especially my goddaughter Emilia), the H-As, Clare, Jude and Andrew, Anthony, Amrit, Cathy, Julie, Kevin, Domino, Sandi, DJ, Janet, Magda, Linda, Will G, Shyama, Vivienne, Tizer, Nicola B, Fiona S, Emilie H, B and best friend Fi H. You know why.

Thanks to Tom Penn at Penguin, who asked me to write
On Liberty
, and to Richard Duguid, Kate Watson, Ingrid Matts and Jim Stoddart for making the publishing process such a pleasure. Freelance copy-editor Bela Cunha brought years of experience to this challenge, with so much kindness and humility. Thank you. Thanks to Sam Johnson for organizing my bizarre blind photoshoot, to Paul Stuart for the covershot, and make-up maestro Lindsey Poole for my cheekbones and confidence. Jo Metson Scott took the author picture complete with eyes.

It’s hard to articulate sufficient gratitude to my dear friends Rachel Holmes (a distinguished ‘Writer at Liberty’) and Mairi Clare Rodgers (Liberty’s Media Director) for reading the full manuscript with such meticulous care and skill. And to all my extraordinary Liberty colleagues – named and yet to be named
in our vital continuing struggle – especially Ian McDonald, Jess Kaplan, Penny Morrow and George Pope. Frances Butler is our wise Chair and the late great Christine Jackson and Sue Baring have been rocks as successive Chairs of the Civil Liberties Trust. Liberty members past, present and future. You make it happen.

This book is for you, Bean. You and your generation are the point of and hope for everything.

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