SCHEDULE continued CHAPTER I continued
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.
20. If a court’s determination of any question arising under this Chapter might affect the exercise by a religious organisation (itself or its members collectively) of the right to freedom of conscience as defined and protected by section 11, it must have particular regard to the importance of that right.
21.—(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the right to freedom of expression as defined and protected by section 13.
(2) If the person against whom the application for the relief is made (“the respondent”) is neither present nor represented, no such relief shall be granted unless the court is satisfied—
(a) that the applicant has taken all available steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief shall be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court shall have particular regard to the importance of the right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has become, or is about to become, available to the public; or
(ii) it is, or would be, in the public interest for the material to be published; and
(b) any relevant privacy code.
22.—(1) In this Chapter, unless the contrary intention appears—
“contravention” in relation to any requirement includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;
“court” means any court of law or tribunal having jurisdiction in the Falkland Islands, including Her Majesty in Council but excepting a court constituted by or under disciplinary law;
“disciplinary law” means a law regulating the discipline of any disciplined force;
“disciplined force” means—
a naval, military or air force;
any police force of the Falkland Islands;
the prison service of the Falkland Islands;
“legal representative” means a person entitled to be in or to enter the Falkland Islands and to practise there before a court;
“member” in relation to a disciplined force includes any person who, under the law regulating the discipline of that force, is subject to that discipline; and
“minor” means a person who has not attained the age of eighteen years or such other age as may be prescribed for this purpose by any law.
(2) In relation to any person who is a member of a disciplined force raised under a law enacted, or having effect as if enacted, by the Legislature, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of the provisions of this Chapter other than sections 2, 3 and 4.
(3) In relation to any person who is a member of a disciplined force raised otherwise than as aforesaid and lawfully present in the Falkland Islands, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter.
(4) In this Chapter “period of public emergency” means any period during which—
(a) Her Majesty is at war; or
(b) the provisions of Part II of the Emergency Powers Order in Council 1939(6), or emergency regulations made under any Ordinance, are in operation in the Falkland Islands.
(5) For the purposes of this Chapter, a person shall be regarded as belonging to the Falkland Islands if he or she has Falkland Islands status and a person has such status if that person is—
(a) a person who immediately before the commencement of this Constitution had Falkland Islands status—
(i) by virtue of section 17(5)(a), (b), (c), (d)(i) or (f) of the former Constitution; or
(ii) by virtue of section 17(5)(e) of the former Constitution—
(aa) as a spouse, and the person is not living apart from his wife or her husband under a decree of a competent court or a deed of separation; or
(bb) as a widow or widower, and the person has not remarried; or
(b) a person who was born in the Falkland Islands, who was a citizen at birth and whose father or mother was permanently resident in the Falkland Islands at the time of the person’s birth; or
(c) a person who was born outside the Falkland Islands, who was a citizen at birth and whose father or mother was permanently resident in the Falkland Islands at the time of the person’s birth; or
(d) a citizen who was born in or outside the Falkland Islands whose father or mother at the time of the person’s birth had Falkland Islands status and was permanently resident in the Falkland Islands; or
(e) a citizen who was born outside the Falkland Islands whose father or mother was born in the Falkland Islands and had Falkland Islands status at the time of the person’s birth; or
(f) a person who has been granted Falkland Islands status under an Ordinance providing for the grant of that status to persons who have been ordinarily resident in the Falkland Islands for a period of at least seven years, or such period not exceeding seven years as the Ordinance may prescribe, and has not, in accordance with that Ordinance, lost or been deprived of such status.
(6) A person who has Falkland Islands status by virtue of subsection (5)(c) shall be regarded for the purposes of subsection (5)(e) as having been born in the Falkland Islands.
(7) Without prejudice to the right of any person to apply for the grant of Falkland Islands status, the following shall have a right by virtue of this Constitution to apply for such status under an Ordinance referred to in subsection (5)(f)—
(a) a British overseas territories citizen by virtue of having been so naturalised or registered while resident in the Falkland Islands;
(b) a spouse, widow or widower of a person who has Falkland Islands status; and
(c) a person under the age of eighteen years who is the child, stepchild, or child adopted in a manner recognised by law of a person who has Falkland Islands status;
and if an applicant referred to in this subsection is not granted Falkland Islands status, he or she shall, subject to section 9(2), be granted a permanent right to remain in the Falkland Islands.
(8) For the purposes of subsection (5), “citizen” means a person who is a British citizen, a British overseas territories citizen or a British Overseas citizen; or who was, at the material time, a citizen of the United Kingdom and Colonies, a British Dependent Territories citizen or a British subject.
See S.I. 1952/2031 (1952 I. p.620). The relevant amending instruments are S.I. 1956/731, 1963/88, 1633, 1964/267, 1199, 1965/131, 1968/724, 1973/759. Back [6]