THE HUMAN RIGHTS ACT 1998
[8.41] The Human Rights Act 1998 is structured around the 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.[1873] In terms of remedies, the Act sub-divides between those provisions that enable the courts to grant binding relief to individuals who make out an argument of illegality in a particular case (sections 6-8) and those that do not permit of binding relief because of the absence of a domestically recognised illegality (principally section 4, which provides for �declarations of incompatibility’[1874]).
In practice, a clear majority of cases will fall under sections 6-8, and the courts will thus decide whether there has been or would be an illegality and, if so, whether a remedy should issue. However, it is also possible for cases to raise issues under both sets of provisions, and the remedies granted by the court may therefore be a mixture of both those with legal effect and those without.[1875] Other cases may simply fall under the provisions that do not have binding legal effect, and the position of the parties will remain as was before the proceedings were initiated.[1876]Binding Remedies
The Relationship between Sections 6-8
[8.42] The starting point in respect of binding remedies is section 6(1), which makes it unlawful for a public authority to act in a manner which is incompatible with the rights contained in Schedule 1 to the Act[1877] (an act, for these purposes, includes a failure to act, save in relation to the legislative process in Parliament[1878]). Although the term �public authority’ has arguably been given an unduly narrow interpretation by the courts,[1879] section 6 is intended to allow individuals who are �victims’ within the meaning of section 7 of the Act to enforce their rights vertically against the State and all of its manifestations[1880] (subject to the facts of a case not being embraced by the Act’s general—though not absolute—prohibition on retrospective effect[1881]).
Section 7 thus provides that a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings in the appropriate court or tribunal or (b) rely on the provisions in Schedule 1 in any legal proceedings so long as he or she is, or would be, a �victim’ of the unlawful act. Where those proceedings are in the form of an application for judicial review, section 7(3) provides that the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he or she is, or would be, a victim of the act.[1882][8.43] The central provision on the binding remedies available under the Act is section 8, subsection (1) of which provides:
In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
In the context of judicial review proceedings, this means that each of the remedies available under sections 18-25 of the Judicature (Northern Ireland) Act 1978 and RCJ Order 53, rules 1 and 7 are at the disposal of the court in proceedings under the Human Rights Act 1998. Moreover, while those remedies are traditionally regarded as discreÂtionary (see [8.08]-[8.09][1883]), it can be doubted whether they are discretionary in the same sense in cases under sections 6-8. This is because sections 2 and 8 of the 1998 Act require courts to â€?take into account’ all relevant ECHR case law in proceedings before them, including that on remedies.[1884] It is thus arguable that remedies should be declined in cases of illegality under sections 6-8 only where there is ECHR authority to support that conclusion (see, eg, [8.45] on damages). Any other outcome would surely run contrary to the first objective of the Human Rights Act 1998 and to the ECtHR’s related understanding that â€?the ECHR is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.[1885]
Damages
[8.44] The requirement that courts take into account all relevant ECHR case law is particularly pronounced where a court is considering whether to make an award of damages for a breach of section 6 of the Act.
Here, section 8 provides that a court is to make an award of damages where it is satisfied that the award is necessary to afford â€?just satisfaction’ to the person in whose favour the award is to be made[1886] (the term â€?just satisfaction’ corresponds directly with the language of the ECHR[1887]). In deterÂmining necessity, the court must take account of all the circumstances of the case including any other relief or remedy granted, or order made, in relation to the act in question (by that court or any other court) and the consequences of any decision (of that or any other court) in respect of that act.[1888] Section 8 also provides that the court must here â€?take into account the principles applied by the [ECtHR] in relation to the award of compensation under Article 41 [ECHR]’.[1889][8.45] The corresponding body of domestic case law has pointed towards a generally restrictive approach to awards of damages under the Act, where it has been emphasised that the courts are to be guided by the case law of the ECtHR. The leading authority on the point remains R (Greenfield) v Home Secretary,[1890] which concerned the question whether a prisoner whose Article 6 ECHR rights had been violated by a prison disciÂplinary procedure should receive damages in addition to a declaration that the respondent had acted unlawfully. In holding that a declaration was sufficient in the context of the case, the House of Lords emphasised that the ECtHR itself frequently does not make awards of damages in Article 6 ECHR cases and that it tends to do so only where it finds a causal connection between the violation of Article 6 ECHR and any non-pecuniary loss for which the individual claims compensation. The House of Lords also emphasised that the Human Rights Act 1998 should not, in any event, be regarded as a tort statute that automatically gives rise to a remedy in damages, as the Act’s objectives of ensuring compliance with human rights standards can in many cases be met simply through the finding of a violation.
The Act, it was said, is not intended to give individuals access to better remedies than they would have were they to go to Strasbourg, but rather to incorporate in domestic law the ECtHR’s case-by-case approach and to require domestic courts to have regard to that approach. On the facts of the instant case as read with the Strasbourg jurisprudence, there were thus no special features that warranted an award of damages. A similarly restrictive approach has also been seen in the Northern Ireland courts in cases concerning violations of qualified rights in the prison context.[1891][8.46] It should finally be noted that the Human Rights Act 1998 also provides for damages in respect of judicial acts, albeit that they are available only where the judicial act is not done in good faith or where an award is necessary under Article 5(5) ECHR to compensate someone who has been detained in breach of his or her right to liberty under Article 5 ECHR.[1892] Where such damages are sought, the appropriate respondent is the Crown, and the Minister responsible for the court or tribunal (or person nomiÂnated by him or her) must be joined as a party to the proceedings.[1893]
Declarations of Incompatibility
[8.47] The Human Rights Act 1998’s prioritisation of the core constitutional doctrine of legislative supremacy (or parliamentary sovereignty) is most evident in section 4, as read with the Act’s section 3 interpretive obligation.[1894] The combined effect of these provisions is that a court should try â€?so far as it is possible to do so’ to give legislation that would otherwise interfere with rights an interpretation that is compliant with the ECHR but that, where such interpretation is not possible and the legislation is primary legislation, the court may in its discretion[1895] make a declaration that the relevant proviÂsion or provisions of the legislation is or are incompatible with the ECHR[1896] (primary legislation, which must be in force at the time of the court ruling,[1897] here includes Acts of Parliament but excludes Acts of the Northern Ireland Assembly and Northern Ireland Orders in Council;[1898] the courts that may make declarations are listed in section 4(5)[1899]).
That the doctrine of legislative supremacy is to remain unaffected by the Act is apparent from section 4(6), which provides that a declaration �(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made’.Primary legislation in that way remains sovereign and it is for Parliament to choose whether to repeal or amend the legislation or to leave it in force.[1900]
[8.48] Declarations of incompatibility may sometimes also be made in respect of subordinate legislation and, where they are made, this is a further outworking of the doctrine of legislative supremacy. Although it is implicit in sections 3 and 4 that subÂordinate legislation that is incompatible with the ECHR may be struck-down as ultra vires[1901]1 (subordinate legislation here includes Acts of the Northern Ireland Assembly and Northern Ireland Orders in Council[1902]), section 4(4) makes an exception where the legislation has been â€?made in the exercise of a power by primary legislation’ and â€?the primary legislation concerned prevents removal of the incompatibility’.[1903] Under those circumstances, the courts may merely make a declaration that the subordinate legislaÂtion is incompatible with the ECHR and it is for Parliament to decide whether to repeal or amend the legislation or to leave it in force.[1904] The doctrine of legislative supremacy similarly underlies section 6(2) of the Act, which provides that an act of a public authority will not be unlawful where:
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one of more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.[1905]
[8.49] Where a court is considering whether to make a declaration of incompatibility it must give notice to the Crown in accordance with section 5 of the Act and correÂsponding rules of court.[1906] Under those circumstances, a Minister of the Crown (or person nominated by him or her), a Northern Ireland Minister, and/or a Northern Ireland department is entitled to be joined as a party to the proceedings on giving notice in accordance with the rules of court.[1907] Notice, for these purposes, may be given at any time during the proceedings.[1908]