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Cite as: [2000] EWLC 266(1)

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PART I

INTRODUCTION

1. THE TERMS OF REFERENCE

1.1 In February of this year the Lord Chancellor and the Scottish Ministers respectively requested the Law Commission and the Scottish Law Commission to undertake a joint project in accordance with the following terms of reference:

(1) To carry out a review of the case-law of the European Court of Human Rights in relation to the award of compensation and the level of compensation awarded under Article 41 of the Convention and its predecessor Article 50;

(2) In light of that case-law, to consider the principles of Strasbourg jurisprudence which the courts should take into account when determining whether to award damages, or the amount of the award, under section 8 of the Human Rights Act 1998;

(3) As part of the review at paragraph (1), to identify the Strasbourg jurisprudence in relation to the award of damages that have been granted in respect of the enforceable right to compensation under Article 5(5).

1.2 In the letter enclosing the terms of reference the Lord Chancellor advised us that

"The aim of the review would be to inform the judiciary, practitioners and public bodies of the Strasbourg jurisprudence and the compensation levels awarded, in readiness for implementation of the Human Rights Act".^[1]

2. NATURE OF THE REPORT

1.3 This is not a typical Law Commission report, in that the purpose is information, rather than law reform. For this reason, and because of the limited time scale involved, we have not issued a formal consultation paper. However, as will appear below, we have been advised by expert consultants in England and Scotland, and have benefited from informal discussions with other practitioners and academics. The period of our work has also coincided with a stream of new publications on the European Convention on Human Rights (the "Convention") and the Human Rights Act 1998 (the "HRA"), some of which contain valuable discussions of the subject matter of the terms of reference.^[2]

1.4 Notwithstanding this wealth of material, we have been satisfied, both from our own work and discussions with others, that an independent study by the Law Commission would be of assistance. The apparently simple exercise required by Section 8 ^[3] is, on analysis, an unfamiliar one to English and Scottish courts. We have attempted to draw together the threads of existing case-law, and to relate them to practice in this country. It is our purpose to provide a framework for a continuing debate, as the jurisprudence in this country develops.

1.5 We have seen the main emphasis of the terms of reference as being the review of existing Strasbourg case-law. The second paragraph invites us to give some consideration to the principles which should guide the domestic courts, and accordingly we suggest how we think the courts might apply their discretion under the HRA. However, we do not see it as part of our function to pre-empt the formulation and development of principles through the case-law in the normal way. As we point out in Part IV, there are some fundamental issues to be resolved about the scope of damages remedies under the HRA, and their relationship with existing remedies. It has also become apparent from our review of recent cases in the European Court of Human Rights at Strasbourg (the "Strasbourg Court") that their own practices in relation to the award of just satisfaction are under review, and development may be expected there also.^[4]

3. COMPARATIVE WORK

1.6 Our terms of reference direct attention specifically to the Strasbourg case-law. We have not been asked to carry out a comparative study of the extensive caselaw relating to compensation for breaches of human rights provisions in common law and other jurisdictions. We have, however, referred to certain common law cases which seem to be of particular significance in relating the Strasbourg caselaw to a common law context.^[5]

4. THE STRUCTURE OF THE REPORT

1.7 The purpose of this report is not to detail the circumstances in which liability may arise under the HRA, but rather to examine the consequences of such liability in terms of remedies in damages. The report is divided into two Sections, the first concerned with general principles, and the second with a review of the Strasbourg case-law, article by article.

1.8 Although it was our original intention to deal with English and Scottish law together, discussions between the two Law Commissions have led us to the view that this may be misleading. Although there is much common ground, there are some significant differences between the two systems in their approaches to the award of damages. Since we are concerned with the relationship of the HRA with the existing practices in the Courts in England and Wales, we have thought it more useful to maintain some separation. Part IV therefore considers the application of Strasbourg principles in the context of the common law in England and Wales. Part V is a view from a Scottish perspective.

1.9 This report does not deal with particular issues arising out of the application of the HRA in Northern Ireland. However, the Law Reform Advisory Committee for Northern Ireland have been consulted, and we are grateful for their consideration. It is hoped that the review of the Strasbourg case-law will also be of value in that jurisdiction.

1.10 The report contains the following parts:-

Section A: General Principles

Part I: Introduction

Part II: Remedies Under The Human Rights Act 1998

This part sets out a brief outline of the main provisions of the HRA, and describes the provisions relevant to the award of remedies in general.

Part III: Just Satisfaction in Strasbourg

This part seeks to identify general principles from the Strasbourg case-law, and discusses some of the difficulties involved in that exercise.

Part IV: Just Satisfaction and the Common Law.

This Part seeks to relate the principles derived from the Strasbourg case-law to the practice of the common law of England and Wales.

Part V: Just Satisfaction and Scots Law.

This Part looks at the same issues from the perspective of Scots Law.

Section B: Just Satisfaction under individual articles of the Convention

Part VI: An article by article analysis.

This Part reviews cases in which damages have been awarded for breaches of individual articles, and seeks to illustrate the principles by reference to such cases.

Appendix A: Judicial Acts

This Appendix is directly related to the third paragraph of the terms of reference. It examines the circumstances in which damages may be awarded for violations of Article 5 by judicial acts.

Appendix B: Select Bibliography

5. FOREIGN CURRENCY CONVERSIONS

1.11 Throughout the Report, where reference is made to an award by the Strasbourg Court in a currency other than pounds sterling, we have given the approximate sterling equivalent. This is calculated by reference to the monthly average exchange rate for the currency in question for December of the year in which the award was made. For awards made in 2000, we have used the monthly average exchange rate of the month in which the award was made.

6. ACKNOWLEDGEMENTS

1.12 We gratefully acknowledge the invaluable assistance of Dr Jeremy McBride of the University of Birmingham and Professor Christopher Gane of the University of Aberdeen who have acted as consultants in the preparation of this report. We are also grateful for informal discussions we have had with other experts. In particular we would mention Sir Nicholas Bratza, judge of the Strasbourg Court, and other members of the Registry at the Strasbourg Court, who have offered comments on Part III in particular. The responsibility for the contents of the report is of course entirely our own.

Note 1   Letter from Lord Chancellor to Chairman 14 February 2000.    [Back]

Note 2   See bibliography at Appendix B. On the issue of damages, we would particularly mention A Practitioner’s Guide to the European Convention on Human Rights (1998) by Karen Reid (a unit leader in the registry at the Strasbourg Court), which includes a comprehensive table of the Strasbourg case-law; and Remedies in International Human Rights Law (1999), by Dinah Shelton, in which she sets the European case-law within the context of the jurisprudence of international human rights courts and institutions.    [Back]

Note 3   In essence to award damages where it is “just and appropriate” and “necessary” to do so: see Part II paras 2.19 - 2.21 below.    [Back]

Note 4   See, for example, the detailed discussion in Smith and Grady v United Kingdom Application nos 33985/96 and 33986/96, 25 July 2000 (considered in paras 6.179 - 6.181 below).    [Back]

Note 5   For a wider international review, readers are referred to Dinah Shelton’s comparative study, Remedies in International Human Rights Law (1999).    [Back]

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