Learning Outcomes
This article examines remedies for breaches of human rights in England and Wales under the Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR), explaining UK courts’ obligations and powers to grant redress, the legal status and procedure for declarations of incompatibility, and the availability of damages and other relief against public authorities. It outlines the process and requirements for bringing claims to the European Court of Human Rights (ECtHR) and analyzes how parliamentary sovereignty, court powers, and the principle of subsidiarity shape and limit these mechanisms, while presenting the significance of "just satisfaction," compliance and enforcement, and the relationship between UK law and supranational human rights oversight.
SQE1 Syllabus
For SQE1, you are required to understand remedies for breaches of human rights under the Human Rights Act 1998 and the European Convention on Human Rights in England and Wales, with a focus on the following syllabus points:
- the types of remedies available in UK courts for breaches of Convention rights
- the process and legal effect of declarations of incompatibility under the Human Rights Act 1998
- the basis and limitations for awarding damages and other forms of relief against public authorities
- the administrative and judicial procedures for pursuing a claim before the European Court of Human Rights, including admissibility and substantive requirements
- the relationship between the UK domestic courts and the European Court of Human Rights, such as the requirement to exhaust local remedies and the impact of ECtHR judgments
- the application of parliamentary sovereignty to human rights law, and the effect of political, legal, and practical constraints on 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.
- What is a declaration of incompatibility under the Human Rights Act 1998, and what is its legal effect?
- In what circumstances can a UK court award damages for a breach of a Convention right?
- What must an individual do before they can apply to the European Court of Human Rights?
- 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 primarily regulated by the Human Rights Act 1998 (HRA), which incorporates most of the rights in the European Convention on Human Rights (ECHR) into domestic law. The HRA establishes mechanisms enabling individuals to seek redress in UK courts when Convention rights are violated by public authorities or through the application of law. If domestic remedies are unavailable, inadequate or exhausted, individuals may take their claims to the European Court of Human Rights (ECtHR) in Strasbourg. Understanding the structure, effect, and limitations of these remedies—and the respective roles of domestic and supranational courts—is essential for a comprehensive appreciation of public law and constitutional principles, and is a core element of the SQE1 FLK1 syllabus.
Remedies in UK Courts under the Human Rights Act 1998
Interpretation of Legislation (Section 3 HRA)
UK courts must, so far as it is possible, interpret all primary and secondary legislation in a way which is compatible with Convention rights.
Key Term: Section 3 HRA
Section 3 of the Human Rights Act 1998 obliges courts to give effect to legislation in a manner compatible with Convention rights where possible. This can require courts to depart from the literal meaning of words, adopt strained interpretations, or read words into a statute if that would better achieve compatibility, provided the result does not contradict clear Parliamentary intent.
Where it is not possible to achieve compatibility through interpretation without contradicting the express statutory wording or Parliamentary intention, Section 3 does not permit the courts to amend or strike down legislation. In such cases, other remedies and processes must be considered.
The courts have, in some cases (e.g. R v A (No 2), Ghaidan v Godin-Mendoza), used Section 3 to interpret domestic law extensively, but they will not adopt interpretations that run contrary to the fundamental legislative purpose or to the express language of the statute.
Declarations of Incompatibility (Section 4 HRA)
If it is not possible for a court to interpret primary legislation compatibly with Convention rights, certain higher courts (typically the High Court or above) may make a declaration of incompatibility.
Key Term: Declaration of Incompatibility
A formal statement by a superior court that a provision of primary legislation (or subordinate legislation, in special circumstances) is incompatible with a Convention right. A declaration of incompatibility does not affect the validity, continued operation, or enforcement of the legislation; it does not bind parties to the proceedings and cannot invalidate or strike down Parliament’s work.
The power under Section 4 is deliberately limited by the doctrine of parliamentary sovereignty. The issuance of a declaration is “a weapon of last resort,” used only after interpretive tools under Section 3 are found insufficient. Upon such a declaration, it is for Parliament to determine if, and how, to amend the offending provision. In practice, declarations of incompatibility normally result in legislative change, but Parliament is not legally compelled to reform the incompatible law. The mechanism preserves Parliamentary control (see e.g. Bellinger v Bellinger, R (Anderson) v Home Secretary).
Legal Effect and Procedure
A declaration of incompatibility:
- does not void or suspend the effect of the legislation
- does not grant a remedy to the individual claimant in itself
- serves as an authoritative signal to Parliament and the executive that the law does not conform to Convention standards
Parliament may remedy the incompatibility via an ordinary Act or, if appropriate, via the "remedial order" process under Section 10 HRA, a form of “fast-track” legislative correction deployable if there are “compelling reasons.”
Remedies against Public Authorities (Sections 6–8 HRA)
Section 6 HRA renders it unlawful for a public authority to act in a way that is incompatible with a Convention right, unless, owing to primary legislation, the authority could not have acted differently.
Key Term: Public Authority
A public authority includes courts, tribunals, government departments, local authorities, police and bodies performing public functions.
A person who is a "victim" of an unlawful act by a public authority may seek relief through a claim in the UK courts or may rely on Convention rights in any legal proceedings.
If a breach is found, the court may grant any relief or remedy it considers just and appropriate, including:
- a declaration (confirming and clarifying the breach)
- an injunction or order to do or refrain from doing a particular act
- damages, but only if necessary to afford just satisfaction
Key Term: Damages (HRA context)
Damages are monetary compensation for a breach of a Convention right, available under Section 8 HRA if the court is satisfied that awarding damages is necessary to provide just satisfaction to the individual, having regard to the principles applied by the ECtHR.
Courts must consider all the circumstances of the case, including the impact of the breach, the applicant's behaviour, and the existence of other remedies. Damages are not the default remedy; in most cases a change of policy or an order halting the breach will suffice, and damages are granted sparingly.
Principles Applied to Relief
In determining the appropriate remedy:
- Courts are required to “take into account the principles applied by the ECtHR”, especially under Article 41 ECHR (just satisfaction).
- The nature and gravity of the breach, conduct of the parties, and the adequacy of considering other types of relief are relevant.
- Punitive or exemplary damages are not available; the purpose is satisfaction, not punishment.
Key Term: just satisfaction
"Just satisfaction" refers to the relief (damages or otherwise) the ECtHR considers appropriate to place the victim in the position they would have been in but for the violation of their rights, often restricted to the compensation necessary to remedy the effect of the breach.
Declaratory Relief and Injunctions
Courts may also grant declarations (confirming that a breach has occurred) and injunctions or orders to compel public bodies to take or refrain from certain actions, provided such remedies are just and appropriate in the circumstances. These forms of relief will often suffice to address a rights violation, reducing the occasions when damages are required.
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 by injunction or mandatory order, and, if necessary to afford just satisfaction, award damages. The courts must consider proportionality and necessity when deciding on damages, and will usually only grant monetary compensation if there is real harm that cannot be redressed otherwise.
Relationship between UK Courts and the ECtHR
Section 2 HRA requires UK courts to “take into account” relevant judgments, decisions, and opinions of the European Court of Human Rights when determining questions relating to Convention rights.
Key Term: Section 2 HRA
Section 2 of the Human Rights Act 1998 provides that UK courts are not formally bound by ECtHR jurisprudence, but should normally follow any clear and consistent line of decisions from Strasbourg unless there is a specific and compelling reason not to do so. Courts may depart from ECtHR decisions in rare and exceptional cases.
For example, a UK court may decline to follow Strasbourg jurisprudence where it is based on a misunderstanding of UK law or is out of step with British legal traditions, though consistency is generally preferred (see R (Ullah) v Special Adjudicator).
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’s decision into account, but is not bound by it. The court may choose to follow the ECtHR unless there are strong reasons not to, such as where the Strasbourg case rests on a misunderstanding of UK procedure or if Parliament clearly intended a different approach.
Applying to the European Court of Human Rights
If an individual's rights are violated and all effective and available domestic remedies are exhausted, they may apply to the European Court of Human Rights (ECtHR) in Strasbourg.
Key Term: Exhaustion of Domestic Remedies
Before applying to the ECtHR, an individual must have used all available and effective legal means in their own country to seek redress (e.g., appeals, judicial review). The requirement ensures the ECtHR acts as an international court of last resort.
Under Article 35 ECHR, applications to the ECtHR must generally be made within four months from the date of the final domestic decision (formerly six months), and only a "victim" can bring a claim.
Key Term: victim
For ECtHR purposes, a "victim" is anyone personally and directly affected by the alleged violation, whether a natural or legal person, a group, or a company.
The ECtHR will reject claims that are manifestly ill-founded, where no significant disadvantage is shown, or where the matter has already been brought before another international investigation. The principle of subsidiarity is key: national courts and authorities retain "primary responsibility" for enforcement of rights, and the ECtHR will not substitute its own judgment for domestic courts unless there has been a clear breach of a Convention right.
If the ECtHR finds a violation, it may award just satisfaction, which can include an order for monetary compensation and may require the state to take steps to prevent future breaches. However, the ECtHR cannot repeal or strike down UK laws; it can only issue a binding judgment requiring "just satisfaction," and the UK is obliged under Article 46 ECHR to abide by the Court's judgment, with enforcement ultimately carried out via the Committee of Ministers of the Council of Europe.
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 effective domestic remedies (including all appeals or applications for judicial review), and then apply to the ECtHR within four months of the final decision. If the application meets the admissibility criteria, the ECtHR will examine the merits and, if appropriate, award just satisfaction.
Remedies and Orders at the ECtHR
When a violation is found, the ECtHR may:
- declare the occurrence of a violation (declaratory relief)
- award "just satisfaction" (monetary compensation) under Article 41 ECHR
- indicate measures required to prevent recurrence of similar violations (sometimes by requiring legislative change or administrative steps)
While ECtHR judgments are binding on the UK, they do not have direct effect in UK law (unlike EU law): Parliament decides whether, and how, to change national law. Judicial practice is to implement ECtHR judgments in good faith, but there have been instances (e.g. prisoners' voting rights, Hirst v UK) where legislative reform has been slow or partial. The ECtHR cannot compel Parliament but relies on the UK's reputation and membership obligations for compliance.
Concept of 'Subsidiarity' and the Margin of Appreciation
The ECtHR operates the principle of subsidiarity: national authorities and courts have "primary responsibility" for protecting human rights, and the ECtHR will intervene only when states' responses are evidently insufficient or contrary to the Convention. The margin of appreciation doctrine allows a range of discretion to states in implementing certain rights, subject to the ECtHR's oversight to prevent manifestly disproportionate or arbitrary action.
Limitations and Practical Considerations
- UK courts cannot strike down Acts of Parliament for incompatibility with the ECHR. The only available court remedy is a declaration of incompatibility, leaving the law unchanged until or unless Parliament amends it.
- Damages under the HRA are only awarded if necessary to ensure just satisfaction, and are strictly compensatory, not punitive or exemplary, even if an egregious breach has occurred.
- The ECtHR does not function as an appellate court from UK courts and will not review alleged errors of fact or law unless they amount to a fundamental breach of a Convention right.
- Parliamentary sovereignty remains a core principle: in practice, ECtHR judgments are mostly implemented, but Parliament retains the final word on whether, how, and when to amend UK law.
- ECtHR applications must be clearly distinct from previous cases, and must not have been already finally determined by the ECtHR or involve the same parties and substantially the same facts as another matter determined by an international body.
Worked Example 1.4
Parliament adopts an Act incompatible with Article 8 ECHR (private and family life). This results in a declaration of incompatibility by the High Court. Parliament, despite criticism, declines to amend the offending Act. The claimant applies to the ECtHR and wins.
Answer:
While the court in the UK had no power to strike down the Act, the declaration of incompatibility enabled the claimant to demonstrate, for ECtHR purposes, that all domestic remedies had been exhausted. The ECtHR's finding binds the UK in international law, and the UK is expected—though not formally forced—to implement the judgment. However, until or unless Parliament amends the law, the incompatibility persists in UK law.
Remedial Orders and Enforcement
Section 10 of the HRA enables government ministers to use "remedial orders" to amend legislation quickly in response to a declaration of incompatibility or an ECtHR judgment. This process must follow the affirmative parliamentary resolution procedure and is only used when there are compelling reasons. Nevertheless, the government retains discretion as to whether to use this mechanism or to propose more substantial legislative change.
The Committee of Ministers of the Council of Europe is responsible for supervising execution of the ECtHR’s judgments. Failure to comply may prompt further international pressure, but there is no mechanism whereby the ECtHR's judgment can directly invalidate an Act of Parliament or force immediate domestic law reform.
Costs and Awards
In the UK courts, successful applicants may be awarded costs, but the court retains discretion and will consider conduct and the proportionality of the case. At the ECtHR, an award of "just satisfaction" may include both material and non-material damage, as well as reimbursement of necessary expenses.
Key Term: just satisfaction
The compensation or specific remedy that the ECtHR, or a UK court applying the HRA, deems necessary to place the victim in the position they would have been in but for the Convention breach. It will reflect principles applied in Strasbourg, but must be proportionate to the actual harm suffered.
Exam Warning
UK courts cannot strike down Acts of Parliament for incompatibility with the ECHR. The only judicial remedy is a declaration of incompatibility, which does not invalidate or suspend the law. The practical outcome will depend on subsequent political and parliamentary action.
Revision Tip
Always establish whether an individual has exhausted all viable and effective domestic remedies before considering an application to the ECtHR, and advise them to act within four months of the final domestic decision.
Key Point Checklist
This article has covered the following key knowledge points:
- The Human Rights Act 1998 incorporates most Convention rights from the ECHR into UK law, providing remedies for breaches, principally by public authorities.
- Courts must interpret UK legislation compatibly with Convention rights where possible (Section 3 HRA); where this is not possible, higher courts may issue a declaration of incompatibility (Section 4 HRA), but cannot strike down the law.
- Individuals may bring claims against public authorities for breach of Convention rights. UK courts may award any relief the court finds just and appropriate, including damages only where necessary for just satisfaction, taking account of ECtHR principles.
- A declaration of incompatibility has no legal effect on the offending law and does not bind Parliament, serving only as a signal for reform.
- Claims to the ECtHR may only be made after all effective domestic remedies have been exhausted, within four months of the final domestic decision. Normally, only a ‘victim’ of the breach may apply.
- ECtHR judgments are binding and may result in an order for "just satisfaction" and recommendations for legislative or administrative change. However, they do not override or repeal UK law.
- Parliamentary sovereignty means Parliament retains ultimate legal authority, and ECtHR judgments rely on political pressure and international supervision for enforcement.
- UK courts must take ECtHR decisions into account but are not strictly bound to follow them.
Key Terms and Concepts
- Section 3 HRA
- Declaration of Incompatibility
- Public Authority
- Damages (HRA context)
- just satisfaction
- Section 2 HRA
- Exhaustion of Domestic Remedies
- victim