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Human Rights Act 1998

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Human Rights Act 1998 1998 CHAPTER 42 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 1 The Convention Rights (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) [Article 1 of the Thirteenth 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. Reproduced by permission of Reed Elsevier (UK) Limited trading as LexisNexis (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. NOTES Initial Commencement To be appointed To be appointed: see s 22(3). Appointment Appointment: 2 October 2000: see SI 2000/1851, art 2. Amendment Sub-s (1): in para (c) words ―Article 1 of the Thirteenth Protocol‖ in square brackets substituted by SI 2004/1574, art 2(1). Date in force: 22 June 2004: see SI 2004/1574, art 1. Sub-s (4): words ―Secretary of State‖ in square brackets substituted by SI 2003/1887, art 9, Sch 2, para 10(1). Date in force: 19 August 2003: see SI 2003/1887, art 1(2). Subordinate Legislation Human Rights Act 1998 (Amendment) Order 2004, SI 2004/1574 (made under sub-s (4)). 2 Interpretation of Convention rights (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 Reproduced by permission of Reed Elsevier (UK) Limited trading as LexisNexis (ii) for which no rules made under paragraph (a) are in force. NOTES Initial Commencement To be appointed To be appointed: see s 22(3). Appointment Appointment: 2 October 2000: see SI 2000/1851, art 2. Amendment Sub-s (3): in para (a) words omitted repealed by SI 2003/1887, art 9, Sch 2, para 10(2). Date in force: 19 August 2003: see SI 2003/1887, art 1(2). Sub-s (3): in para (a) words ―the Lord Chancellor or‖ in square brackets inserted by SI 2005/3429, art 8, Schedule, para 3. Date in force: 12 January 2006: see SI 2005/3429, art 1(2). Subordinate Legislation Act of Adjournal (Criminal Procedure Rules Amendment No 2) (Human Rights Act 1998) 2000, SSI 2000/315. Act of Sederunt (Rules of the Court of Session Amendment No 6) (Human Rights Act 1998) 2000, SSI 2000/316. Legislation 3 Interpretation of legislation (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. NOTES Initial Commencement To be appointed To be appointed: see s 22(3). Appointment Appointment: 2 October 2000: see SI 2000/1851, art 2. Reproduced by permission of Reed Elsevier (UK) Limited trading as LexisNexis 4 Declaration of incompatibility (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 Supreme Court;] (b) the Judicial Committee of the Privy Council; (c) the [Court 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; [(f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the [Chancellor of the High Court] or a puisne judge of the High Court]. (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. NOTES Initial Commencement To be appointed To be appointed: see s 22(3). Appointment Appointment: 2 October 2000: see SI 2000/1851, art 2. Amendment Sub-s (5): para (a) substituted by the Constitutional Reform Act 2005, s 40(4), Sch 9, Pt 1, para 66(1), (2). Date in force: 1 October 2009: see SI 2009/1604, art 2(d). Sub-s (5): in para (c) words ―Courts Martial Appeal Court‖ in square brackets substituted by the Armed Forces Act 2006, s 378(1), Sch 16, para 156. Reproduced by permission of Reed Elsevier (UK) Limited trading as LexisNexis Date in force: 31 October 2009: see SI 2009/1167, art 4. Sub-s (5): para (f) inserted by the Mental Capacity Act 2005, s 67(1), Sch 6, para 43. Date in force: 1 October 2007: see SI 2007/1897, art 2(1)(d). Sub-s (5): in para (f) words ―Chancellor of the High Court‖ in square brackets substituted by the Crime and Courts Act 2013, s 21(4), Sch 14, Pt 3, para 5(5). Date in force: 1 October 2013: see SI 2013/2200, art 3(g). 5 Right of Crown to intervene (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 [Supreme Court] against any declaration of incompatibility made in the proceedings. (5) In subsection (4)— ―criminal proceedings‖ includes all proceedings before the [Court Martial Appeal Court]; and ―leave‖ means leave granted by the court making the declaration of incompatibility or by the [Supreme Court]. NOTES Initial Commencement To be appointed To be appointed: see s 22(3). Appointment Appointment: 2 October 2000: see SI 2000/1851, art 2. Reproduced by permission of Reed Elsevier (UK) Limited trading as LexisNexis Amendment Sub-s (4): words ―Supreme Court‖ in square brackets substituted by the Constitutional Reform Act 2005, s 40(4), Sch 9, Pt 1, para 66(1), (3).
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