Helga Law Journal - 01.01.2021, Blaðsíða 143

Helga Law Journal Vol. 1, 2021
148
International Legal Research Group
149
Although judicial remedies within Section 8 may satisfy the individual to
some extent, many people claiming that their right to protest has been restricted
would want to see the laws changed as to ensure that a violation does not happen
again, especially in cases where the violation may be seen as lawful due to it being
an acceptable qualification “prescribed by the law.”79 The legislation is clear in not
entitling an individual to a remedy, but only allowing the court to provide this
where it sees fit,80 making the remedies highly discretionary.
A criticism that can be levelled against the granting of these judicial remedies
is that in cases where a piece of legislation may be seen as violating the rights, the
courts do not have the power to overturn or see the law as unlawful but rather
have to respect its validity in line with the principle of the sovereignty of
Parliament. This “dialogue approach” which relies on the judiciary and legislature
to communicate in order to resolve conflicts within our system also gives
Parliament the ultimate power decide whether the violation is sufficient enough
to warrant a change in law or whether to admit that a violation has occurred. Not
only this, its power stretches further as even where a violation is found, it may
also claim that such a violation necessary within the national system and file a
declaration of incompatibility in line with section 4 of HRA.81 Where the latter
path is taken, there can be no way in which an individual can be said to have
received a just remedy as such a declaration “affords no direct remedy to the
litigant.”82 This is also the position taken by the ECtHR who states that such
declarations do not constitute effective remedies, mostly due to the fact that it
provides the correct authority with “a power, not a duty, to amend the offending
legislation by order so as to make it compatible with the Convention.”83 The
ineffectiveness of the remedy is made yet more clear when considering that in
situations like this, the individual may still take their claim higher to the ECtHR
where the declaration of incompatibility may indeed be held to not provide an
effective remedy.84
In consequence, although the state we are in today is better than that based
on “good grace” of the police and public authorities before the implementation
of the HRA, it nonetheless fails to secure effective remedies by providing a
difficult and rigid procedure as illustrated above.
2.4 Judicial Review
The other way in which an individual may seek to claim a remedy may be through
judicial review. The concept of judicial review provides individuals with the
chance to challenge the decision-making process and actions of public authorities

79 European Convention on Human Rights, Art 10(2).
80 H Fenwick, G Phillipson ‘Judicial Reasoning under the UK Human Rights Act’ PL 2000 627
81 Human Rights Act 1998, s4(6).
82 M Amos, ‘Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the
Answer’ 72 Mod. L. Rev. 883 (2009) 892
83 ibid Amos 892
84 ibid (n 22) Fenwick 40
where they believe those authorities have acted in a way that contradicts or
abuses the power conferred upon them, these “abuses of power may and often
do invade private rights…that is to say misuses of public power.”85 The claims
are, thus, not against substantive decisions (merit-based review) but rather the
process which was undertaken to make a decision.
If successful, the individual may ask for the decision to be quashed,86
financial compensation87 to be awarded if there has been a loss or a prohibitory
or mandatory order imposed on the institution.88 In these cases a different and
separate set of difficulties also arises, not only as a claim can only be made by
permission being first given by the High Court but also due to the detailed
requirements contained within the Civil Procedure Rules and the Judicial review
Pre-Action protocol89 which must be complied with.
First, there is a time limit of three months which constitutes a ‘prompt’
application under Part 54.4,90 the individual must have ‘sufficient interest’ or be
a ‘victim’ from the act complained of,91 and the institution must also be a public
authority.92 Finally, the claim must be based on one of the grounds which give
rise to judicial review (illegality, unfairness, unreasonableness) here ‘illegality’
being the main one as a public authority can be seen as not acting illegally where
it acts counter to the “the law that regulates [their] decision-making power.”93
The obvious question to address at this stage is whether this procedure,
therefore, improves the state of affairs that leads to the ineffective remedies an
individual may receive under the HRA and whether it provides a more appealing
alternative. Many have argued that judicial review does not increase the chances
of delivering justice to an individual, leading some to argue that this is one of the
main ways in which the court plays a role in protecting human rights.94 Judicial
review has, however, been previously described as a ‘straitjacket,’ due to its highly
complex and technical nature which is highly inaccessible and presents an
undesirable approach to seeking remedies for human rights violations.95 It is
significant that the HRA implements the majority of the rights from the
Convention with the exception of Article 13, the right to an effective remedy for
violation of these rights. The question of whether the current HRA is sufficient
in satisfying Article 13 (effective remedies)96 is met is an important one since this

85 Sedley J in R v Somerset CC ex parte Dixon [1997] QBD COD
86 Senior Courts Act 1982, s 31(5).
87 Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406
88 R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators Association [1972] 2 QB 299
89 Pre-Action Protocol for Judicial Review, available at
https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv accessed 10 June 2018.
90 ibid s 31(6); Hardy v Pembrokeshire CC [2006] EWCA Civ 240.
91 Senior Courts Act 1981, s 31(3).
92 R (on the application of Beer (t/a Hammer Trout Farm)) v Hampshire Farmers Markets Ltd. [2003] EWCA
Civ 1056 1085.
93 Council of Civil Service Unions v. Minister for Civil Service [1985] AC 374.
94 F Klug, S Weir, K Starmer, The three pillars of liberty: Political rights and freedoms in the United Kingdom
(Routledge, London 2003) 91.
95 ibid 91.
96 Human Rights Act, s1(1)(a).