Helga Law Journal - 01.01.2021, Síða 141

Helga Law Journal Vol. 1, 2021
146
International Legal Research Group
147
remedying the violation of an individual due to a whole class of defendants being
immediately disregarded. It is correct to say that it is indeed public authorities
which are most likely to cause the most damage to the rights, a claim should
nonetheless be possible against private individuals. This, therefore, removes “the
protection of proportionality inherent in Convention law and often lacking in
domestic private law”63 and leaves a dangerous way of allowing the state to
organise its affairs in a way which hedges their liability and prevents effective
remedies.
A second challenge arises with the requirement that a claim can be made but
only “if he is (or would be) a victim of the unlawful act.64” Section 7(7) of the
HRA directs the reader to Article 34 of the ECHR, and allows the person to
claim they are a victim under limited circumstances. Under the test, a person
cannot bring a claim unless ‘he or she has been personally affected by the alleged
violation'.65 The issue that a whole class of interest groups “will be denied access
to the courts”66 has been mentioned and continues to affect many by acting as
an effective bar to the claims of human right violations67 Once again it is clear
here that the burden is placed upon the victim to prove that the right has been
violated, a process which may deter some and discourage others to attempt the
action for fear of failing to be a victim in the proper sense which as Clayton68
points out causes a chilling effect and imposes a restriction on the right of access
to the court.
Lastly, there are significant time limits imposed within s7(5) which requires
the claim to be filed within a year of the act complained of. Alternatively, the
court has the ability to increase this where it would be equitable to do so in the
circumstances. This once again not only presents a difficulty within the
complaints process but also implies that the violation is not deemed worthy
enough in the long period of time and demonstrates of the arbitrary and highly
discretionary system upon which the courts operate upon. Despite the
disadvantages outlined above, the complaints mechanism envisaged in the HRA
is still more desirable than the process that existed prior to the implementation
of the HRA, which required individuals to take their claim to the Strasburg court
and fight their battle outside of the UK.
2.2.2 Judicial Remedies Available
Supposing that a claim is successful, the court then considers section 8 and “may
grant such relief or remedy, or make such order, within its powers as it considers
just and appropriate”69 in relation to “any act (or proposed act) of a public

63 J Landau, 'Functional public authorities after YL' [2007] PL 630.
64 Human Rights Act 1998, s 7(7).
65 Knudsen v Norway No 11045/84, 42 DR 247 (1985).
66 Edward Gamier MP, HC Deb v. 314 col. 1065, 24 June 1998.
67 S Chakrabarti, J Stephens and C Gallagher, 'Whose Cost the Public Interest?' [2003] PL 697.
68 R. Clayton, 'Public interest litigation, costs and the role of legal aid' [2006] PL 429.
69 Human rights Act, s8.
authority which the court finds is (or would be) unlawful.”70 Here, all
circumstances must be considered within the making of such an award to ensure
“just satisfaction to the person in whose favour it is made.”71 This can include
injunctions which order a public authority to remedy the wrong through acting
in a certain way or not acting in another way or award financial damages to
compensate the individual if there has been a financial loss.
2.3 Testing the Effectiveness
The procedure itself demonstrates the difficulties which are placed in the way of
the individual claiming his rights have been violated. This, in turn, reflects the
balancing act that the courts have to perform when assessing the violation.
However, it must also be remembered that the decision of whether the right has
or has not have been violated may have limited if any, impact.
With relation to financial damages, the courts have been highly unreceptive
to financial compensation within public law unless there has been an element of
malice or the claim resembles one which could be successfully claimed in tort 72
and is in general considered to be a “residual remedy.”73 When deciding to award
damages the court must also consider Article 41 of the ECHR, therefore are also
required to take into account the ‘just satisfaction’ criteria within ECHR. This
does not provide any set formulation or quantitative criteria however it most
often uses the ‘equity principle’ which considers the seriousness of the violation,
applicant related factors and overall context-related factors in order to deliver
‘flexibility and an objective consideration of what is just, fair and reasonable in
all the circumstances of the case’74.
Injunctions, on the other hand, are usually seen as one of the most
significant ways in which an individual may be seen to have had sufficient redress.
The courts have previously shown to be careful and limited with imposing
injunctions where free speech or freedoms of expression have been concerned
as seen in Bonnard.75 This “exceptional caution in exercising the jurisdiction to
interfere by injunction”76 has continued in later cases,77 however, has more
recently time evolved78 to allow a more just and effective remedy to be awarded
to individuals who suffered from a violation of rights.

70 Human Rights Act, s(1).
71 ibid.
72 I Leigh, L Lustgarten, ‘Making Rights Real: The Courts, Remedies, And The Human Rights Act’ [1999]
58(3) Cambridge Law Journal 527
73 ibid Leigh et al. 527.
74 S Altwicker-Hàmori, A Peters, T Altwicker, ‘A Peters Measuring Violations of Human Rights: An
Empirical Analysis of Awards in Respect of Non-Pecuniary Damage Under the European Convention on Human
Rights’ [2016] Heidelberg Journal of International Law (HJIL) 16.
75 Bonnard V Perryman [1891] CA 2 JAN 1891.
76 ibid.
77 Laporte, Regina (On The Application Of ) V Chief Constable Of Gloucestershire [2006] UKHL 55.
78 Herbage v Pressdram Ltd [1942] CA.