Human Rights Act 1998 and the European Convention on Human Rights - Remedies for breaches of human rights

Learning Outcomes

After studying this article, you will be able to explain the remedies available for breaches of human rights in England and Wales under the Human Rights Act 1998 and the European Convention on Human Rights. You will understand the role of UK courts in providing redress, the function of declarations of incompatibility, the process for seeking damages, and the circumstances in which individuals may apply to the European Court of Human Rights. You will also be able to identify the limitations and practical considerations relevant to these remedies.

SQE1 Syllabus

For SQE1, you are required to understand the remedies available for breaches of human rights under the Human Rights Act 1998 and the European Convention on Human Rights. In your revision, focus on:

  • the types of remedies available in UK courts for breaches of Convention rights
  • the process and effect of declarations of incompatibility
  • the availability of damages and other relief against public authorities
  • the procedure for bringing a claim before the European Court of Human Rights
  • the relationship between UK courts and the ECtHR, including the requirement to exhaust domestic remedies.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What is a declaration of incompatibility under the Human Rights Act 1998, and what is its legal effect?
  2. In what circumstances can a UK court award damages for a breach of a Convention right?
  3. What must an individual do before they can apply to the European Court of Human Rights?
  4. Can UK courts strike down Acts of Parliament that are incompatible with the ECHR? Explain your answer.

Introduction

Remedies for breaches of human rights in England and Wales are governed by the Human Rights Act 1998 (HRA), which incorporates most of the rights set out in the European Convention on Human Rights (ECHR) into domestic law. The HRA provides mechanisms for individuals to seek redress in UK courts when their rights are violated by public authorities. If domestic remedies are inadequate, individuals may apply to the European Court of Human Rights (ECtHR) in Strasbourg. This article outlines the main remedies available, the procedures for obtaining them, and the practical limitations relevant to SQE1.

Remedies in UK Courts under the Human Rights Act 1998

Interpretation of Legislation (Section 3 HRA)

UK courts must interpret all primary and secondary legislation, so far as possible, in a way that is compatible with Convention rights.

Key Term: Section 3 HRA
Section 3 of the Human Rights Act 1998 requires courts to interpret legislation compatibly with Convention rights, unless it is impossible to do so.

If it is not possible to interpret legislation compatibly, courts may consider other remedies.

Declarations of Incompatibility (Section 4 HRA)

Where a court finds that a provision of primary legislation is incompatible with a Convention right and cannot be interpreted compatibly, it may make a declaration of incompatibility.

Key Term: Declaration of Incompatibility
A formal statement by a higher court that a provision of primary legislation is incompatible with a Convention right. It does not invalidate the law.

A declaration of incompatibility does not affect the validity or enforceability of the legislation. It signals to Parliament that the law should be amended, but leaves the final decision to the legislature.

Remedies against Public Authorities (Sections 6–8 HRA)

It is unlawful for a public authority to act in a way that is incompatible with a Convention right, unless required by primary legislation.

Key Term: Public Authority
Any body performing public functions, including government departments, local authorities, the police, and courts.

Individuals who are victims of an unlawful act by a public authority may bring proceedings in a UK court or rely on Convention rights in any legal proceedings.

If the court finds a breach, it may grant any relief or remedy it considers just and appropriate, including:

  • a declaration (confirming the breach)
  • an injunction (ordering the authority to do or refrain from doing something)
  • damages (where necessary to afford just satisfaction)

Key Term: Damages (HRA context)
Financial compensation awarded by a court for a breach of a Convention right, if necessary to afford just satisfaction.

Damages are not automatic and are awarded only if the court considers them necessary. The court must consider the principles applied by the ECtHR.

Worked Example 1.1

A local authority introduces a policy that restricts access to a public service in a way that discriminates against a minority group. An affected individual brings a claim under the HRA. What remedies can the court grant?

Answer: The court may declare the policy unlawful, order the authority to change the policy (injunction), and, if necessary to afford just satisfaction, award damages.

Relationship between UK Courts and the ECtHR

UK courts must take into account judgments of the ECtHR when determining questions about Convention rights, but are not strictly bound by them.

Key Term: Section 2 HRA
Section 2 of the Human Rights Act 1998 requires UK courts to take ECtHR case law into account when interpreting Convention rights.

UK courts generally follow clear and consistent ECtHR jurisprudence, but may depart from it in exceptional circumstances.

Worked Example 1.2

A claimant alleges that a UK law violates their right to a fair trial under Article 6 ECHR. The ECtHR has previously found similar laws in other countries to be incompatible. Must the UK court follow the ECtHR decision?

Answer: The UK court must take the ECtHR decision into account, but is not strictly bound by it. The court may follow the ECtHR unless there are strong reasons not to.

Applying to the European Court of Human Rights

If an individual’s rights are violated and domestic remedies are exhausted, they may apply to the ECtHR in Strasbourg.

Key Term: Exhaustion of Domestic Remedies
The requirement that an applicant must have used all available and effective remedies in their own country before applying to the ECtHR.

Applications to the ECtHR must be made within six months of the final domestic decision and the applicant must be a victim of the alleged violation.

If the ECtHR finds a violation, it may award "just satisfaction" (compensation) and require the state to take steps to prevent future breaches. ECtHR judgments are binding on the state concerned.

Worked Example 1.3

A person is detained by the police in breach of Article 5 ECHR. They challenge the detention in UK courts but lose at every stage. What must they do before applying to the ECtHR?

Answer: The individual must have exhausted all domestic remedies (appeals, judicial review) before applying to the ECtHR within six months of the final decision.

Limitations and Practical Considerations

  • UK courts cannot strike down Acts of Parliament, even if incompatible with Convention rights. They may only issue a declaration of incompatibility.
  • Damages are not always available and are awarded only if necessary to afford just satisfaction.
  • The ECtHR cannot overturn UK laws or decisions, but its judgments are binding and may lead to legislative change.
  • Parliamentary sovereignty means that Parliament may choose not to amend incompatible laws, though political pressure usually leads to reform.

Exam Warning

UK courts cannot invalidate Acts of Parliament for incompatibility with the ECHR. The only remedy is a declaration of incompatibility, which does not affect the law’s validity.

Revision Tip

Always check whether the claimant has exhausted domestic remedies before considering an application to the ECtHR.

Key Point Checklist

This article has covered the following key knowledge points:

  • The Human Rights Act 1998 incorporates most ECHR rights into UK law and provides remedies for breaches by public authorities.
  • Courts must interpret legislation compatibly with Convention rights where possible (Section 3 HRA).
  • If legislation cannot be interpreted compatibly, higher courts may issue a declaration of incompatibility (Section 4 HRA), but cannot strike down the law.
  • Individuals may claim against public authorities for breaches of Convention rights and may be awarded damages if necessary to afford just satisfaction.
  • UK courts must take ECtHR judgments into account but are not strictly bound by them.
  • Applications to the ECtHR require exhaustion of domestic remedies and must be made within six months of the final decision.
  • ECtHR judgments are binding on the state and may result in compensation and legislative change.

Key Terms and Concepts

  • Section 3 HRA
  • Declaration of Incompatibility
  • Public Authority
  • Damages (HRA context)
  • Section 2 HRA
  • Exhaustion of Domestic Remedies
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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