Helga Law Journal - 01.01.2021, Side 142

Helga Law Journal - 01.01.2021, Side 142
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.
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