Remedies for breaches of human rights

Remedies for Breaches of Human Rights under the HRA 1998 and ECHR

The Human Rights Act 1998 (HRA) incorporates the European Convention on Human Rights (ECHR) into UK law, establishing a legal framework for the protection and enforcement of human rights within the United Kingdom. The HRA mandates that UK courts must interpret legislation consistently with Convention rights, unless it is impossible to do so. Furthermore, it provides mechanisms for individuals to seek redress in domestic courts when their rights are violated by public authorities. In circumstances where domestic remedies are insufficient, individuals may bring their cases before the European Court of Human Rights (ECtHR) in Strasbourg. This comprehensive structure outlines the procedures and remedies available for breaches of human rights under both domestic and international law.

Domestic Remedies for Human Rights Breaches

When it comes to addressing human rights violations within the UK, the Human Rights Act 1998 provides several avenues. To understand how individuals can seek justice, we need to examine the essential provisions that enable them in domestic courts.

Section 3 HRA: The Interpretative Obligation

Section 3 of the Human Rights Act 1998 requires courts to interpret all legislation, so far as possible, in a way that is compatible with the rights set out in the ECHR. This imposes a strong interpretative duty on judges, compelling them to construe statutes in a manner that upholds human rights, even if such interpretations depart from traditional readings of the text.

Key Points of the Interpretative Duty:

1. Courts must strive to find interpretations of legislation that align with Convention rights.
2. The interpretation should not contradict the fundamental meaning of the legislation.
3. If compatibility cannot be achieved through interpretation, courts may consider issuing a declaration of incompatibility under Section 4 HRA.

Case Illustration: In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords interpreted the Rent Act 1977 to include same-sex partners as "spouses," thereby ensuring compatibility with Articles 8 and 14 of the ECHR, which protect the right to respect for private and family life and prohibit discrimination.

Section 4 HRA: Declarations of Incompatibility

When it is impossible to interpret legislation in a manner compatible with Convention rights, Section 4 of the HRA permits higher courts to issue a declaration of incompatibility. This declaration indicates that a particular provision of UK law is inconsistent with the ECHR but does not invalidate the law.

Key Aspects of Declarations of Incompatibility:

1. They do not affect the validity or enforcement of the legislation.
2. They alert Parliament to the inconsistency, prompting potential legislative amendment.
3. They uphold the principle of parliamentary sovereignty while promoting human rights compliance.

Notable Case: In R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32, the Supreme Court issued a declaration of incompatibility concerning the Civil Partnership Act 2004, which restricted civil partnerships to same-sex couples. This led to legislative change allowing opposite-sex couples to enter into civil partnerships.

Section 6 HRA: Obligations of Public Authorities

Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act in a way that is incompatible with Convention rights, unless primary legislation requires them to do so. This provision ensures accountability of public bodies and provides individuals with a direct means to challenge human rights violations.

Duties of Public Authorities:

1. Scope of Public Authorities: Includes government departments, local authorities, the police, and any other body performing public functions.
2. Right to Challenge: Individuals can bring proceedings against public authorities in domestic courts if their rights are violated.
3. Available Remedies: Courts can grant appropriate relief, including damages, injunctions, or declarations.

Practical Illustration:

Suppose a local council implements a policy that disproportionately affects a minority community, such as reducing access to essential services without adequate justification. Under Section 6 HRA, affected individuals can challenge the council's actions in court, arguing that the policy violates their rights under the ECHR, such as the right to non-discrimination under Article 14. This provision allows individuals to hold public authorities accountable and seek remedies for infringements of their rights.

Seeking Remedies through the European Court of Human Rights

When domestic remedies have been exhausted, and a rights violation remains unresolved, individuals may turn to the European Court of Human Rights (ECtHR) for justice. This provides an international forum to address breaches that could not be adequately remedied at the national level.

Admissibility Criteria for Applications to the ECtHR

To bring a case before the ECtHR, certain admissibility criteria must be met:

1. Exhaustion of Domestic Remedies: The applicant must have pursued all available and effective remedies in their national courts (Article 35(1) ECHR).
2. Time Limit: The application must be lodged within six months of the final decision at the national level (Article 35(1) ECHR).
3. Victim Status: The applicant must be directly affected by the alleged violation (Article 34 ECHR).
4. No Abuse of Rights: The application must not be manifestly ill-founded or an abuse of the right of application (Article 35(3) ECHR).

Illustrative Scenario:

Suppose an individual has been subjected to unlawful surveillance by state authorities, infringing upon their right to privacy under Article 8 of the ECHR. Despite challenging the surveillance in UK courts, the individual finds that domestic law permits such actions, and their claim is dismissed. With no further domestic remedies available, the individual can apply to the ECtHR, seeking a ruling that the UK's laws and practices violate the Convention. If the ECtHR agrees, it may award just satisfaction to the applicant and prompt the UK to amend its laws.

Article 41 ECHR: Just Satisfaction

If the ECtHR finds that a state has violated an individual's Convention rights, it may award "just satisfaction" to the injured party under Article 41. This may include:

1. Pecuniary Damages: Compensation for financial losses directly resulting from the violation.
2. Non-Pecuniary Damages: Compensation for suffering, distress, or humiliation caused by the violation.
3. Costs and Expenses: Reimbursement for costs incurred in bringing the case before the ECtHR.

The ECtHR's judgments are binding on the member state concerned, and compliance is monitored by the Committee of Ministers of the Council of Europe. While the ECtHR cannot overturn domestic laws or decisions, its judgments often lead to legislative changes to prevent future violations.

Illustrative Case: In Hirst v United Kingdom (No 2) [2005] ECHR 681, the ECtHR held that the UK's blanket ban on prisoner voting violated Article 3 of Protocol No. 1 of the ECHR (right to free elections). Despite the ruling, the UK's response highlighted challenges in implementing ECtHR judgments domestically.

Relationship Between UK Courts and the ECtHR

Section 2 HRA: Consideration of ECtHR Jurisprudence

Under Section 2 of the HRA, UK courts must take into account judgments and decisions of the ECtHR when determining questions relating to Convention rights. This encourages a dialogue between domestic courts and Strasbourg.

Approach to ECtHR Decisions:

1. UK courts generally follow clear and consistent ECtHR jurisprudence to ensure alignment with Convention rights.
2. When ECtHR case law is ambiguous or inconsistent, UK courts exercise their own judgment in interpreting Convention rights.
3. In certain circumstances, UK courts may depart from ECtHR decisions where they consider that the ECtHR has misunderstood or misapplied domestic law.

Notable Cases:

• R v Special Adjudicator (Ullah) [2004] UKHL 26 established the principle that UK courts should, in general, reflect the interpretations of the ECtHR.
• R v Horncastle [2009] UKSC 14 demonstrated that UK courts may depart from ECtHR jurisprudence when there are compelling reasons to do so, particularly where the ECtHR has not fully appreciated specific aspects of domestic law.

Challenges and Limitations in Enforcing Human Rights

Despite the robust framework provided by the HRA and the ECHR, enforcing human rights in the UK encounters several obstacles that can directly impact individuals seeking justice.

1. Parliamentary Sovereignty: Since Parliament can enact legislation that may be incompatible with Convention rights, individuals may find themselves without an effective remedy within domestic law. This means that certain rights violations might persist until legislative changes are made, leaving affected persons without immediate relief.
2. Balancing Security and Rights: In efforts to protect national security, laws may be introduced that restrict individual freedoms, such as extended detention without charge or surveillance measures. Individuals subjected to these laws may feel that their fundamental rights are compromised in the name of security, raising questions about the proportionality of such measures.
3. Margin of Appreciation: The ECtHR allows some discretion to national authorities in how they apply Convention rights, which can result in varying levels of protection across different countries. For individuals, this means that the extent of their rights protection may depend on interpretations that differ from one state to another.
4. Potential Legislative Changes: Ongoing debates about reforming the HRA, including proposals to replace it with a "British Bill of Rights," create uncertainty about the future of human rights protections. Individuals may be concerned about potential dilution of their rights and reduced access to remedies.

Conclusion

The complex interplay between domestic and international mechanisms for human rights protection under the Human Rights Act 1998 and the European Convention on Human Rights is central to addressing breaches within the UK legal system. The courts' interpretative obligation under Section 3 HRA compels them to construe legislation compatibly with Convention rights, often requiring innovative legal reasoning to align domestic law with international obligations. When interpretation cannot resolve incompatibility, the issuance of declarations under Section 4 HRA serves as a mechanism to signal inconsistencies without undermining parliamentary sovereignty. The obligations of public authorities under Section 6 HRA ensure that individuals have direct avenues to challenge rights violations domestically. Furthermore, the relationship between UK courts and the ECtHR under Section 2 HRA emphasizes the exchange of legal principles, with UK courts both guided by and contributing to Strasbourg jurisprudence. The pursuit of remedies through the ECtHR provides an additional layer of protection, allowing for international oversight and enforcement of human rights standards. However, challenges such as the limits of parliamentary sovereignty, the balancing of national security with individual rights, and potential legislative changes present ongoing complexities. Understanding these principles and their practical application is essential for addressing human rights remedies in the UK.