3.3.2. Damages under the Human Rights Act 1998

It is important to consider the effect of the Human Rights Act 1998 (HRA).¹⁸⁴ The HRA makes it unlawful for any public authority to act in a way which is incompatible with Convention rights.¹⁸⁵ The Act lays down remedies for such unlawfulness. Section 8(1) of the HRA provides that the court ‘may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate’. This confers a broad discretion upon the courts in fashioning an armoury of remedies, amongst which a grant of damages will take its place. Other subsections of section 8 lay down some significant restrictions on the award of damages.

Section 8(3) asserts that a precondition of the award of damages is that, taking account of all the circumstances of the case, the ‘court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made’. Those circumstances which must be taken into account by the court include ‘any other relief or remedy granted, or order (p.54) made, in relation to the act in question’¹⁸⁶ and ‘the consequences of any decision (of that or any other court) in respect of that act’.¹⁸⁷ In deciding whether to make any award, and if so its amount, the courts must take into account the (rather elusive)¹⁸⁸ ‘principles applied’ by the ECtHR under Article 41 of the ECHR.¹⁸⁹

Whether it is correct to describe the award of damages under the HRA as an action in tort has been subject to some debate.¹⁹⁰ Suffice it to say that it is clear from the wording of the statute that there is no automatic right to damages for unlawfulness, and that the courts retain a discretion as to the remedy they award. It is thus perhaps more accurate to describe this as a new power to award damages for unlawfulness. It is difficult to describe this new action as a public law tort if there is no right to monetary compensation.¹⁹¹

Much discretion has been given to the courts in formulating the damages remedy under the HRA, and many issues are still to be decided. It is as yet unclear what factors will be taken into account by the courts in awarding damages, over and above the need to show unlawfulness by virtue of the breach of the Human Rights Act. In particular, the issue of fault is as yet unclear. A variety of views have been expressed. It has been argued that liability for breach of section 6(1) of the HRA may arise on the (p.55) basis of strict liability.¹⁹² However, in a recent extrajudicial article, the Lord Chief Justice drew an analogy with Community law, arguing that the existence of fault should neither be a precondition of an award of damages nor should it be ignored: rather the presence of fault should be a factor making it more appropriate to award damages.¹⁹³

Looking closely at the wording of the HRA, and the Convention rights for which it affords protection, does provide some guidance. In one specific case, the mental state of the wrongdoer is crucial. Under section 9(3) of the HRA, it is provided that damages may not be awarded in respect of a judicial act done in good faith.¹⁹⁴ In other words, bad faith is a precondition of a right in damages for an individual who considers that his or her Convention rights have been violated by a judicial act. Proving bad faith will present a significant obstacle to reparation.¹⁹⁵

Beyond this specific case, the courts would seem to have more room for manœuvre in shaping the role of fault.¹⁹⁶ It is submitted that it may well be helpful to draw a parallel with Community law.¹⁹⁷ In certain situations, the mere infringement of a norm would constitute the necessary fault for the purposes of damages liability. So, for violations of the fundamental provisions of the European Convention on Human Rights (ECHR), such as Article 2¹⁹⁸ or Article 3,¹⁹⁹ it may be felt that it is unnecessary to require anything over and above the elements which are required by the substantive provisions of the Convention themselves.²⁰⁰ Thus, unlawfulness will be the determining factor. In cases of less serious human rights breaches, the presence or absence of fault on the part of the public authority may well be relevant in deciding whether the public authority should be financially responsible for the consequences of the unlawfulness, for instance in case of breach of procedural guarantees laid down in Article 6 of the ECHR. As in EC law, the approach of the courts (p.56) would thus be that in a damages claim under the HRA the presence of fault would in some circumstances be relevant, whereas in other areas it may be felt that unlawfulness per se suffices.

It should also be borne in mind that a damages remedy may be sought only if the defendant has breached a Convention right, and that in many cases this will itself entail an ‘in-built’ element of fault. An illustration of this is found in the right to life guaranteed by Article 2, which provides inter alia that ‘no one shall be deprived of his life intentionally’. Although Article 2 has been interpreted so that intentional wrongdoing is not an essential requirement of this provision,²⁰¹ many of the cases do in fact involve deliberate or negligent wrongdoing.²⁰² There are other examples of this ‘in-built’ element of fault. The commission of torture or inhuman treatment in contravention of Article 3 will often have been undertaken deliberately by the public body, its employees, or agents.²⁰³ In these cases, the elements of the Convention right themselves will thus provide effective control mechanisms upon the existence of unlawfulness prior even to a claim for damages.

The brevity of the statutory language in the HRA means that the primary duty of setting the parameters of the damages remedy falls upon the courts. Although reference to the principles applied by the Strasbourg Court may be of some limited assistance, in essence the domestic courts have been given a broad discretion to develop their own principles within the statutory framework of the HRA.²⁰⁴ Moreover, one thing that is clear is that the new damages remedy under the HRA will engage the courts in thinking carefully about the relationship between one type of unlawfulness, acting incompatibly with Convention rights, and the award of damages. The position under the HRA now contrasts with orthodox public law. This may well prompt a broader debate about the appropriate relationship between public law and private law remedies.