CONCLUSION

[8.50] This chapter has considered the remedies available where an applicant has made out one or more of the grounds for review. There are four points that may be made by way of conclusion:

i.

ii. The remedies are discretionary and the courts may refuse to grant a remedy for a wide range of reasons (see [8.08]-[8.09]). On the other hand, where rights under EU law and/or the ECHR are in issue, the law is more complex and the argument that the remedies are discretionary needs to be treated with caution. This is because EU law and the ECHR both require that rights are given �effective’ protection, which may be lost where a court refuses a remedy where a decision or other measure is shown to be unlawful. That said, the law in this area continues to evolve, particu­larly under the European Communities Act 1972, and it would be too simplistic to say that remedies must always be granted. It is, instead, more accurate to say that remedies may be refused only where this is consistent with the case law of the CJEU and/or ECtHR (see [8.40] and [8.43]).

iii. Damages are also available as a remedy, albeit that awards of damages are very infrequent in the public law context ([8.21]-[8.29]). This is not just because of the rule that an ultra vires act will not per se give rise to a claim for damages (the public law illegality must at the same time be actionable in private law); it is also because of a restrictive body of case law on public authority liability.

iv. The Human Rights Act 1998 contains its own remedies regime that distinguishes between cases in which the courts may grant binding relief and those in which no such relief is possible because of the absence of a domestically recognised illegality ([8.40]). This thus means that there may be cases in which an individual’s rights have been �violated’ (for instance where primary legislation is contrary to the ECHR) but where the formal legal position of the parties remains the same (viz, where the remedy granted is a declaration of incompatibility). This is consonant with the Human Rights Act 1998’s twin objectives of (a) giving domestic effect to the provisions of the ECHR that are contained in Schedule 1 to the Act while (b) preserving the domestic constitutional doctrine of legislative supremacy.