The Falkland Islands Constitution Order 2008

Enforcement of protective provisions

19.—(1) If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter that is lawfully available, that person (or that other person) may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction—

(a) to hear and determine any application made by any person in pursuance of subsection (1); and

(b) to determine any question arising in the case of any person that is referred to it in pursuance of subsection (4),

and to make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the foregoing provisions of this Chapter to the protection of which the person concerned is entitled; but the Supreme Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.

(3) (a) Without prejudice to the generality of subsection (2), where, in exercise of its powers under that subsection, the Supreme Court determines that one of the foregoing provisions of this Chapter has been contravened in relation to any person, it may order or, as the case may be, declare that the court which made the reference to it under subsection (4) (“the referring court”) has the power to order (within such limits as the Supreme Court may declare) the award to that person of such damages as the Supreme Court or, as the case may be, the referring court considers just and appropriate.

(b) An award of damages may not be made in pursuance of this subsection in respect of the enactment of any law by the Legislature or the making, under such a law, of any subordinate legislation, but such an award may be made in respect of anything done by any person acting by virtue of any such law or subordinate legislation or in the performance of the functions of any public office or any public authority.

(c) This subsection is without prejudice to section 5(8).

(4) If in any proceedings in any court (other than the Supreme Court, the Court of Appeal, Her Majesty in Council or a court-martial) any question arises as to the contravention of any of the foregoing provisions of this Chapter, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court unless, in the opinion of the court in which the question arose, the raising of the question is merely frivolous or vexatious.

(5) Where any question is referred to the Supreme Court in pursuance of subsection (4), the Supreme Court shall give its decision on the question and the referring court shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Court of Appeal or to Her Majesty in Council, in accordance with the decision of the Court of Appeal or, as the case may be, of Her Majesty in Council.

(6) (a) In determining any question which has arisen in connection with the interpretation or application of any of the foregoing provisions of this Chapter, every court shall take into account any—

(i) judgment, decision, declaration or advisory opinion of the European Court of Human Rights;

(ii) opinion of the European Commission of Human Rights (“the Commission”) given in a report adopted under Article 31 of the Convention;

(iii) decision of the Commission in connection with Article 26 or 27(2) of the Convention;

(iv) decision of the Committee of Ministers of the Council of Europe (“the Committee of Ministers”) taken under Article 46 of the Convention;

(v) judgment, decision or declaration of a superior court in the United Kingdom on the interpretation or application of the Convention,

whenever made or given, so far as, in the opinion of the court, it is relevant to the proceedings in which that question has arisen.

(b) In this subsection, references to the Convention are references to it as it has effect for the time being, except that—

(i) the references in subparagraphs (ii) and (iii) of paragraph (a) to Articles 31, 26 and 27(2) are references to those Articles as they respectively had effect immediately before the coming into force of the Eleventh Protocol;

(ii) the reference in subparagraph (iv) of paragraph (a) to Article 46 includes a reference to Articles 32 and 54 as they had effect immediately before the coming into force of the Eleventh Protocol; and

(iii) the references in paragraph (a) 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).

(c) In this subsection “the Convention” means the European Convention on Human Rights; “the Eleventh Protocol” means the protocol to the Convention (restructuring the control machinery established by it) agreed at Strasbourg on 11 May 1994; and “a superior court in the United Kingdom” means any of the following—

(i) the High Court or the Court of Appeal in England;

(ii) the High Court of Justiciary or the Court of Session in Scotland;

(iii) the High Court or the Court of Appeal in Northern Ireland;

(iv) the House of Lords; and

(v) the Judicial Committee of the Privy Council.

(7) An appeal shall lie as of right to the Court of Appeal from any final determination of any application or question by the Supreme Court under this section, and an appeal shall lie as of right to Her Majesty in Council from the final determination by the Court of Appeal of the appeal in any such case; but no appeal shall lie from a determination by the Supreme Court under this section dismissing an application on the ground that it is frivolous or vexatious.

(8) The Legislature may by law confer on the Supreme Court such powers in addition to those conferred by this section as may appear to be necessary or desirable for the purpose of enabling that Court more effectively to exercise the jurisdiction conferred on it by this section.

(9) The Legislature may by law make, or provide for the making of, provision with respect to the practice and procedure—

(a) of the Supreme Court in relation to the jurisdiction and powers conferred on it by or under this section;

(b) of the Supreme Court or the Court of Appeal in relation to appeals under this section from determinations of the Supreme Court or the Court of Appeal; and

(c) of other courts in relation to references to the Supreme Court under subsection (4),

including provisions with respect to the time within which any application, reference or appeal shall or may be made or brought.