Section 8 HRA provides that compensation (damages) for a breach may be awarded where it is necessary to do so to provide the victim with ‘just satisfaction’. Therefore if another remedy - for example an injunction to prevent a breach continuing – will give the victim an effective remedy, compensation will not be awarded in addition. This is consistent with the requirements of the Convention and was designed to incorporate article 13, which does not otherwise appear in the Act146, into UK law. Any bill which failed to provide for a full range of remedies being available for a violation of a Convention right would not comply with article 13.
In practice, damages awards in the domestic courts are rare, and where they are awarded, low. The principles for determining the quantum of any award have been set out by the House of Lords in R (Greenfield) v Secretary of State for the Home Department147. They are based on the premise that a finding of a violation is in itself an important remedy, and that compensation should not be greatly higher or lower than a victim would expect to be awarded in Strasbourg. However, Lord Bingham also held that the English courts could depart from ECtHR scales where appropriate.
The application of Greenfield has in fact led to very few awards of damages at all, and those that have been made are much lower than comparable claims for race or sex discrimination148. It has been argued that the courts have been so reluctant to award damages that it might amount to frustrating the intention of the HRA, if in fact an effective remedy is not available to individual claimants.
One of the principal reasons behind the availability of compensation for breaches of Convention rights is the deterrent principle – it is thought that a public body will more readily comply with its human rights obligations if not to do so would lay it open to damages claims. There is little evidence that the availability of damages in such cases does, at present, in fact drive greater compliance. It is in any event likely that it would only do so if the prospect of it happening in practice was greater than currently and if the likely amount of any damages award were higher.
Nonetheless the principle that damages should be available and accessible is an important provision that should be retained so that victims can obtain redress for a violation of their Convention rights.149
6. Section 10: The power to take remedial action
A declaration of incompatibility will trigger the possibility of ‘remedial action’ being taken by the government to correct the incompatibility.
Section 10 provides that in the event that either:
a UK court makes a declaration of incompatibility against a provision of legislation under section 4 and there is no prospect of any further appeal against the ruling; or
it appears to the government that a provision of legislation has become incompatible following a judgment of the ECtHR;
then government ministers may make a remedial order to correct the incompatibility, but only if they believe there are ‘compelling reasons’ for doing so.150
How this works in practice
The correction usually takes the form of secondary legislation.
Schedule 2 of the HRA sets out the relevant procedure for making the order, including the requirement for any draft order to be laid before Parliament and approved by a resolution of both Houses unless it is necessary to proceed as a matter of urgency, in which case it must be approved subsequently by both Houses.151
In November 2010, the then-shadow Justice Secretary Dominic Grieve MP wrote an article criticising the interpretation of the HRA by the courts. Among his criticisms of the HRA was the following:
We should … look at restoring a better balance between Parliament and the courts. It is wrong that primary legislation can be altered by Statutory Instrument if found incompatible with the Human Rights Act. Nor should our courts have power to stand a statute on its head.
In over a decade since the HRA came into force, however, the power under section 10 has only been used four times: once by the Labour government to remedy the incompatibility of sections 72 and 73 of the Mental Health Act 1983,152 and three times by the Coalition government in relation to stop and search,153 the rights of foreign nationals to marry,154 and introducing a right of appeal in relation to the sex offenders register.155
Although we agree that it is generally undesirable that primary legislation may be amended by statutory instruments, section 10 does require that all such remedial orders are laid before Parliament and are thereby prevented from having any lasting effect unless and until they are approved by both Houses. In our view, this is appears to be a sufficient safeguard against unnecessary resort to fast-track remedial orders. In addition, section 10(2) requires that a government minister must believe that there are ‘compelling reasons’ for doing so. Lastly, it is apparent that the power has in fact only been exercised in a handful of cases.
The lack of any evidence to show that the remedial power in section 10 has been in any way problematic only reinforces our view of it as an entirely sensible and practical measure.
Section 12 applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
It provides that no injunction is to be granted unless the court is satisfied that the claimant is likely to establish that publication should not be allowed and by section 12(4) the court must have particular regard to the importance of the Convention right to freedom of expression and in the case of journalistic, literary or artistic material the extent to which:
it is, or would be in the public interest for the material to be published, and any relevant privacy code, for example the Press Complaints Commission Code.
The inclusion of s.12 in the Human Rights Act was the result of press lobbying. Some quarters of the press were concerned that article 8 (privacy and family life) would infringe freedom of expression. Lord Wakeham, chairman of the PCC, welcomed its inclusion. He was confident it would mean no privacy law sneaked in through the back door as a result of the incorporation of the European Convention of Human Rights into British law.
The practical outcome of s.12 has been to set the standard of proof for claimants seeking injunctions. Section 12 makes the likelihood of success at trial an essential element in the court's consideration of whether to make an interim order. 'More likely than not', the words used in the Act, is a higher threshold to meet than 'a real prospect of success.'156 Other than to set the standard of proof, s.12 adds very little to article 10 and to the qualifications provided in article 10(2). It has been used mainly in cases concerning breaches of confidentiality.