September 2000
If a court other than one of the courts referred to in paragraph 83.10 cannot interpret primary legislation in a way which conforms with the Convention, it has no alternative but to follow the legislation. A higher court can make a declaration of incompatibility, but this does not mean that the statute is effectively set aside - this would undermine the sovereignty of Parliament. Instead there is a "fast-track" procedure for amending legislation to bring it in line with human rights principles. A remedial order may be made under section 10 and Schedule 2 of the Act which effectively allows the primary legislation to be amended by statutory instrument. Because it is not desirable that such a power may be exercised lightly, the order must be approved in draft by both Houses of Parliament before it is made and the procedure may only be used if the Minister considers that there are "compelling reasons" for amending the legislation.
Notes: [s4] [s10] [sch 2]The same procedure may be applied to secondary legislation if it is incurably incompatible with the Convention rights because of the primary legislation under which it is made. The court may make a declaration of incompatibility and the Minister may then by order make the necessary amendments to the primary legislation.
83.36 Proceedings against a public authority
Where a person believes they have been the victim of a contravention of the Act by a public authority they may bring proceedings in the following ways:
under the existing judicial review procedures;
in the county court or in the High Court where a claim for damages is made;
in the county court or in the High Court following a finding of unlawfulness in some other court which did not have the power to award damages or compensation;
in the High Court where a claim for compensation is made in respect of an act of a court or tribunal for the unlawful detention of a person.
A court or tribunal which finds that a public authority has acted unlawfully under the Act may grant such remedy within its powers as it considers just and appropriate. A court that has power to award damages may only do so under the Act where it is necessary to afford just satisfaction to the victim. A tribunal that has no powers to award damages or grant an injunction will not acquire the ability to do so under the Act. In determining the level of damages to be awarded, a court or tribunal should take into account the principles applied by the Strasbourg Court, who frequently award a modest level of damages and in some cases the Court considers that a judgment in favour of a victim is a sufficient remedy. Higher courts also have the power to make a declaration of incompatibility.
Notes: [s7] [s8]It will also be possible to rely on a Convention right in proceedings not brought directly in relation to the Act. For example, where a person is being prosecuted for a criminal offence, he will be able to advance arguments in his defence which are founded on interference with his Convention rights. In a judicial review case he will be able to advance arguments based on Convention rights.
A case against a public authority must be brought within one year of the action (or failure to act) complained of, although a court or tribunal may allow proceedings to be brought later if it considers that it is equitable to do so in the circumstances. But the one year time limit may be over-ridden if the rules of the procedure in question impose a stricter time limit, e.g. a claim made under the rules of judicial review must be brought promptly, and in any event within three months, subject to the court permitting a later application.
No proceedings may be brought under this Act in respect of acts or omissions which took place before the coming into force of the Act. However, a person may rely on a Convention right in proceedings brought by, or at the instigation of, a public authority, even if the act in question took place before the coming into the force of the Act.
If a victim does not find a remedy in the UK, he may still make an application to the Court in Strasbourg.
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