Detailed Commentary on Sections in Part 2 “Inclusive” approach to exercise of functions Section 81: Human Rights
294.This section provides that the Welsh Ministers, First Minister and Counsel General have no power to make subordinate legislation, or to do any other act, if the subordinate legislation or act is incompatible with the European Convention of Human Rights.
295.The section also provides that the only persons (apart from the Attorney General, the Counsel General, the Advocate General for Scotland, Advocate General for Northern Ireland or the Attorney General for Northern Ireland) who can bring proceedings on the ground that an act of the Welsh Ministers etc. is incompatible with Convention rights or rely on Convention rights in proceedings are persons who are “victims” for the purposes of Article 34 of the Convention. (Article 34 of the convention requires applications to the European Court of Human Rights to be from “any person, non-governmental organisation or groups of individuals claiming to be a victim of a violation of a Convention right”).
296.The section also makes clear that an act of the Welsh Ministers etc. is not outside their powers by reason of being incompatible with Convention rights if that act is not unlawful under section 6 of the Human Rights Act 1998, i.e. if the act in question was inevitable as a result complying with an Act of Parliament.
297.Further, the section restricts the damages which a court or tribunal may award in respect of an act incompatible with Convention rights to the damages which could be awarded if the act was found to be unlawful under section 6 of the Human Rights Act.