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Cite as: [2000] EWLC 266(2)
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SECTION A: GENERAL PRINCIPLES
PART II
REMEDIES UNDER THE HUMAN RIGHTS ACT 1998
1. INTRODUCTION TO THE HUMAN RIGHTS ACT 1998
2.1 The HRA received Royal Assent on 9 November 1998. The greater part of the Act will come into force on 2 October 2000.[1] The Act extends to Scotland, Wales and Northern Ireland. It already has limited effect in Scotland, Wales and Northern Ireland as a result of the Scotland Act 1998 and the Government of Wales Act 1998, both of which came into force on 1 July 1999, and the Northern Ireland Act 1998, the relevant provisions of which came into force on 2 December 1999.[2]
2. THE RIGHTS PROTECTED BY THE HUMAN RIGHTS ACT 1998
2.2 The Convention rights which the HRA serves to protect are the rights set out in Articles 2-12 and 14 of the Convention, together with Articles 1-3 of the first Protocol and Articles 1 and 2 of the sixth Protocol.[3] In summary the protected rights are as follows:[4]
(1) Article 2: Right to life (for the text see paragraph 6.3)
(2) Article 3: Prohibition of torture (see paragraph 6.15)
(3) Article 4: Prohibition of slavery and forced labour
(4) Article 5: Right to liberty and security (see paragraph 6.27)
(5) Article 6: Right to a fair trial (see paragraphs 6.81 - 6.82)
(6) Article 7: No punishment without law (see paragraph 6.147)
(7) Article 8: Right to respect for private and family life (see paragraph 6.152)
(8) Article 9: Freedom of thought, conscience and religion (see paragraph 6.190)
(9) Article 10: Freedom of expression (see paragraph 6.193)
(10) Article 11: Freedom of association and assembly (see paragraph 6.204)
(11) Article 12: Right to marry (see paragraph 6.211)
(12) Article 14: Prohibition of discrimination (see paragraphs 6.213)
(13) Protocol No 1, Article 1: Protection of property (see paragraph 6.223)
(14) Protocol No 1, Article 2: Right to education (see paragraph 6.236)
(15) Protocol No 1, Article 3: Right to free elections (see paragraph 6.239)
(16) Protocol 6, Articles 1 & 2: Abolition of death penalty save in times of war.
2.3 It is to be noted that Article 1, which obliges contracting States to secure the rights and freedoms of the Convention to everyone within their jurisdiction, and Article 13, which guarantees an effective remedy for violations of the Convention, are omitted from this list.[5] The Government's view was that specific reference to these Articles was unnecessary, because the Act - gives effect to Article 1 by securing to people in the United Kingdom the rights and freedoms of the convention. It gives effect to Article 13 by establishing a scheme under which Convention rights can be raised before our domestic courts.... [it] provides an exhaustive code of remedies for those whose Convention rights have been violated... nothing more is needed.[6]
3. OUTLINE OF THE MAIN PROVISIONS OF THE ACT[7]
2.5 First, it requires that all primary and secondary legislation, whether enacted before or since the HRA, be interpreted in a manner which is compatible with Convention rights, "so far as it is possible to do so".[8] Secondary legislation which cannot be so interpreted will be invalid, unless the removal of the incompatibility is prevented by primary legislation.[9]
2.6 Incompatible primary legislation cannot be invalidated by the Courts. Instead, the higher courts may make a "declaration of incompatibility".[10] Where such a declaration has been made, the HRA provides a procedure whereby the relevant Minister may make a "remedial order", by statutory instrument, subject to approval of both Houses of Parliament.[11]
2.7 Secondly, the Act makes it unlawful for any "public authority" to act[12] in a way incompatible with the Convention rights.[13] The HRA enables the "victim"[14] of a breach to bring proceedings against the authority in respect of such acts (or proposed acts).[15] The proceedings must be brought within a year of the act complained of, subject to the court's power to extend the period if it is considered "equitable" to do so.[16] A victim may also rely on the Convention rights in any other legal proceedings.[17] Where the Court finds a breach it may give such relief, and make such orders, within its powers "as it considers just and appropriate".[18] The remedy may include an award of damages. The provisions of section 8 relating to such awards are the main subject of this report and are dealt with in detail in the following parts of this report.
4. DAMAGES UNDER SECTION 8
(1) The statutory provision
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful,[19] it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.[20]
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining
(a) whether to award damages, or
(b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
(2) Principal features
(1) Section 8(2) of the Act states that damages may only be awarded by a court which has power to award damages or to order the payment of compensation in civil proceedings.
(2) Section 8(3) states that damages cannot be awarded unless it is 'necessary to afford just satisfaction' to the applicant. Accordingly, if another remedy or exercise of the court's power can achieve this effect then damages should not be awarded.
(3) Section 8(3) requires the court, in determining whether an award is necessary to afford just satisfaction to the person in whose favour it is to be made, to take into account "any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court)..." and "the consequences of any decision … in respect of that act".
(4) Section 8(5) of the HRA enables a public authority which has been held liable in damages under the Act to claim contribution from any other person who would be liable in respect of the same damage. This might happen were another public authority also to have been involved in the violation or were another person to be liable to the applicant in tort.
5. PRELIMINARY MATTERS
(1) What is a "public authority"?
(2) Who is a "victim"?
(3) Which courts have the power to award damages?
(4) The requirement that any remedy granted be "just and appropriate".
(5) The relationship of claims under section 6 to other causes of action.
(1) Public authorities
2.11 The definition of "public authority"[21] is not exhaustive. The definition specifically excludes both Houses of Parliament, and persons exercising functions in connection with Parliamentary proceedings.[22] It includes any court or tribunal and "any person certain of whose functions are functions of a public nature", unless the nature of the act in question is private.[23] [Section 6] is designed to apply not only to obvious public authorities such as government departments and the police, but also to bodies which are public in certain respects but not others.[24]
2.12 "Obvious public authorities"[25] will be subject to the Act in relation to any of their activities, even those which have not hitherto been regarded as "public" for the purposes of judicial review, such as employment contracts.[26] A body which has some public functions will also be a 'public authority' for the purpose of the HRA, but only in respect of those functions. For example, Railtrack might be regarded as a public authority in respect of its safety regulation function, but not when acting as a commercial property developer.[27] A private security company might qualify in relation to the function of managing a contracted out prison, but not in relation to other private commercial activities.
2.13 Although the definition of "public authority" for these purposes includes a "court or tribunal",[28] remedies in damages in respect of "judicial acts" done in good faith are excluded, save to the extent required by Article 5(5) of the Convention.[29] We will see later that this exclusion may cause complications in certain cases.[30]
2.14 Article 5(5) exceptionally provides a specific guarantee of "an enforceable right to compensation" to victims of breaches of that Article (right to liberty and security).[31] This exception is the subject of the third issue in our Terms of Reference, and is discussed further below.[32]
(2) Who may bring proceedings under section 6?
2.15 A claim under section 7 may only be made by someone who is a "victim" of the unlawful act.[33] "Victim" is defined in section 7(7) as a person who would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the Strasbourg Court. Although the term "victim" is not defined in Article 34, the following guidance can be derived from that article and the case- law of the European Commission on Human Rights (the "Commission") and the Strasbourg Court.
(1) Article 34 itself provides that an application may be made by "any person, non-governmental organisation or group of individuals claiming to be the victim of a violation". Anyone who is subject to the jurisdiction of the state and claims to be a victim of a violation may bring an application under the Convention. The nationality of that individual is irrelevant.[34] Bodies with legal personality fall within Article 34.[35] However,
governmental bodies may not bring proceedings.[36]
(2) Generally the 'victim' must be able to show that he or she has been directly affected by the alleged violation of the Convention,[37] or is 'at risk' of being affected.[38] However, where the nature of the violation means that the applicant cannot be sure that it has been or will be applied to him or her, the court has adopted a wider approach to the question "who constitutes a 'victim'?"[39]
(3) The violation alleged by the applicant must usually exist when the application is made. However, the court has in some cases been prepared to rule that a future act by a contracting state would be a violation of the Convention where this is necessary to ensure that the rights under the Convention are safeguarded.[40] Section 7(1) of the HRA has made it clearer that action can be taken in respect of a future violation.
(4) The Court has recognised that in some cases an individual may suffer some injury where there has been a violation of a Convention right affecting another person. This has led to the development of the concept of the 'indirect victim': where for example a close relative of the victim can show some form of prejudice as a result of the violation, or a personal interest in the termination of the violation, that person will be able to bring a claim. For example in Kiliç v Turkey[41] the applicant, the brother of a murdered Kurdish journalist, was able to claim, inter alia, for the loss he had suffered as a result of his brother's death, and the failure of the Turkish authorities to investigate it.[42]
(5) It is not possible to bring an action to obtain a ruling on whether a provision of domestic law is contrary to the Convention. The Court will not examine the law of a State in the abstract.[43]
(6) Claims can be brought on behalf of victims who are unable to act on their own behalf provided that there is evidence of the representative's authority to act as such.[44] This will include cases where the victim has died.[45] In addition, an association such as a trade union can act on behalf of its members provided that it can identify those of its members who are directly affected, and demonstrate that it has received specific instructions from each of them.[46]
(3) The court must have power to award damages in civil proceedings
2.17 An unresolved issue concerns the position of the Court of Appeal (in England and Wales) when exercising its criminal jurisdiction.[47] The apparent intention of the section is to confine claims for damages to civil proceedings. However, the language focuses on the powers of the court, rather than the nature of the particular proceedings. Criminal appeals are heard by a separate division of the Court of Appeal, rather than by a separate court.[48] Accordingly, on a literal reading of the section, it is a court which, in civil proceedings, would have power to award damages. On this view, it would have power to award damages under the HRA, for example where it quashes a conviction reached in breach of the Convention.[49]
(4) "Just and appropriate" remedies.
2.19 Section 8(1) of the HRA gives the court power to "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate". This is obviously wide ranging. The White Paper which launched the Human Rights Bill[50] stated that the appropriate remedy in a case brought under the Act will depend upon the facts of each particular case and achieving 'a proper balance between the rights of the individual and the public interest'.[51] In deciding what constitutes a 'just and appropriate' remedy, regard must be had, not just to the range of substantive remedies available to the courts but also to the other powers of the courts which may be used to remedial effect.
2.20 It must also be noted that the definition of "Court" includes "tribunal".[52] Section 7(11) of the HRA allows the remedial powers of a tribunal to be extended by the Minister responsible for that tribunal, either in respect of the actual remedies the tribunal is able to grant or the grounds upon which an existing remedy may be granted. The power has not yet been exercised.
2.21 We will argue later that the range of remedies available to the court under section 8(1) may mean that it will often be unnecessary for the court to award damages, which under section 8(3) are to be awarded only if an award is necessary to provide just satisfaction to the victim.[53]
(5) Relationship of claims under section 6 to other causes of action.
2.22 It will happen frequently that the facts may give rise to both a claim under section 6 of the HRA and under another statute or at common law (typically in tort).[54] Under the Convention, the Strasbourg Court may only deal with a matter "after all domestic remedies have been exhausted."[55] It might be suggested that a similar principle should apply in domestic law, so that a remedy under the Act will only be granted where the existing law has been shown to be inadequate.
2.23 However, no requirement of exhaustion of other remedies has been included in
the HRA. Section 11 states specifically:
A person's reliance on a Convention right does not restrict-
(a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom; or
(b) his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9.
This suggests that the action under the HRA is not intended to be an action of "last resort" in the same way as an application to the Strasbourg Court. Where the same facts give rise to claims both under the Act and on some other common law or statutory basis, there appears to be nothing to prevent the claimant from giving priority to either, or proceeding on both in the same action.
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court)...
This requires the court to take into account any relief previously "granted" on another claim brought in the same action. By implication, where no such relief has yet been granted, the mere possibility of such relief should not lead the court to deprive the applicant of a remedy under the Act.[56]
2.25 The view that a claimant need not exhaust his or her remedies at common law before bringing a claim under section 6 seems to be confirmed by section 7(5) of the HRA. This provides that proceedings under the HRA must be brought within 12 months of the date on which the act complained of took place,[57] compared to the normal limitation periods for actions in tort of three or six years[58] and of three or five for actions in delict.[59] This suggests that an application under the HRA may need to be pursued before an action in, for example, tort, arising out of the same facts.
6. SECTION 9(3): LIABILITY IN RESPECT OF JUDICIAL ACTS
2.26 Proceedings in respect of judicial acts[60] are normally confined to appeal or judicial review, and there is no remedy in damages in respect of any judicial act done in good faith except "to the extent required by Article 5(5)...".[61] Article 5 deals with the "right to liberty and security", and, inter alia, provides protection against "unlawful detention". Article 5(5) provides:
Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
Awards of damages permitted by section 9(3) are to be made against the Crown,[62] and the appropriate Minister,[63] if not a party to the proceedings, is required to be joined in the proceedings.[64]
2.27 This limited exception to the general immunity for judicial acts raises an issue which is addressed in paragraph 3 of the Terms of Reference. Under the Strasbourg jurisprudence a judicial act is not to be regarded as "unlawful" for the purposes of Article 5 unless the court has exceeded its jurisdiction.[65] Applying this test in the domestic courts, for example in relation to committal orders by magistrates, raises some difficult questions. Since these relate more to the issue of liability than that of damages, which is the main subject-matter of this Report, the subject is dealt with separately in Appendix A.
7. SCOTLAND, WALES AND NORTHERN IRELAND
(1) Scotland
2.29 Under the Scotland Act 1998, the legislative competence of the Parliament, and the powers of the Scottish Executive are limited by reference to "the Convention rights", a term which has the same meaning as in the Human Rights Act.[66] An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament, and an Act is outside such competence if it is incompatible with any of the Convention rights.[67] By virtue of section 57(2) of the Scotland Act a member of the Scottish Executive[68] has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights.[69]
(1) those which define the legislative competence of the Parliament and the powers of the Executive by reference to the Convention rights (sections 29(2)(d) and 57(2) and (3));
(2) section 100, which applies the "victim" requirement of Article 34 of the Convention to persons bringing proceedings in a domestic court or tribunal on the ground that an act is incompatible with Convention rights, or relying on Convention rights in such proceedings;
(3) section 126(1) (which defines the Convention rights);
(4) schedule 6 (which sets out the procedures relating to "devolution issues").
(2) Wales
2.32 Under section 107(1) of the Government of Wales Act 1998, the Assembly has no power to make, confirm or approve any subordinate legislation, or to do any other act, so far as the subordinate legislation or act is incompatible with any of "the Convention rights".[70] Section 153(2) of that Act provides that if section 107 comes into force before the HRA, that section is to have the same effect until such time as that Act is fully in force, as it will have after that time.
(3) Northern Ireland
2.33 Under section 6(2)(c) of the Northern Ireland Act 1998, an Act of the Northern Ireland Assembly which is incompatible with any of the Convention rights is outside the legislative competence of the Assembly. It is, therefore, not law.[71] Section 24(1)(a) further provides that a Minister or a Northern Ireland department does not have the power to make, confirm or approve any subordinate legislation, or do any act, which is incompatible with Convention rights.[72] As with Scotland and Wales, these sections are to have effect as if the HRA were fully in force.[73]
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Note 1 The first part of the Act to come into force, on 24 November 1998, was s 19, which requires a statement of compatibility with the rights contained in the Convention in respect of every Bill before Parliament. [Back] Note 2 See paras 2.28 - 2.33 below. [Back] Note 3 These are defined as “the Convention rights”: HRA s 1(1). Under Article 15 there is limited scope for derogation from the Convention rights in times of war or where there is some other public emergency which threatens the life of the nation. The United Kingdom has one such derogation in place which deals with the pre-trial detention of suspected terrorists (see Schedule 3 to the HRA). [Back] Note 4 We set out the full text of the relevant Articles as indicated at the beginning of the discussion of each Article in Part VI. The text of Article 4 and Protocol No 6, Articles 1 and 2 are not given, as there no cases relevant to the award of damages under these Articles. [Back] Note 5 Article 16 (permitting restrictions on the political activity of aliens), Article 17 (prohibiting the abuse of rights) and Article 18 (limiting the use of restrictions on rights) of the Convention have been included within Schedule 1 to the HRA. [Back] Note 6 Lord Irvine of Lairg (Lord Chancellor): Hansard (HL) 18 November 1997, vol 583, col 475. As will be seen, the exclusion of remedies in respect of judicial acts (s 9) may cause complications in this respect: see Part IV paras 4.82 - 4.84 below. [Back] Note 7 This outline is intended to do no more than provide the essential background. For a fuller treatment, see for example Lord Lester of Herne Hill and D Pannick (eds), Human Rights Law and Practice (1999); S Grosz, J Beatson and P Duffy, Human Rights: The 1998 Act and The European Convention (2000); K Starmer, European Human Rights Law (1999) and J Wadham and H Mountfield, Blackstone’s Guide to the Human Rights Act 1998 (1999). [Back] Note 10 Section 4(2). The Scottish Parliament, Northern Ireland Assembly and Welsh Assembly have no power to legislate in a manner incompatible with Convention rights and, accordingly, any measures passed by these bodies which conflict with Convention rights can have no legal force. See further paras 2.28 - 2.33 below. [Back] Note 11 Section 10 and sched 2. [Back] Note 12 “Act” includes a failure to act: s 6(6). [Back] Note 13 Section 6(1). Section 6(2) provides that a public authority is not acting unlawfully if it could not have acted differently because of the provisions of primary legislation, or in the case of provisions of, or made under, primary legislation which cannot be read compatibly with Convention rights, if it was acting so as to give effect to or enforce those provisions. [Back] Note 14 See para 2.15 below. [Back] Note 15 Section 7(1)(a). The appropriate court for such proceedings is determined in accordance with the rules: s 7(2). In England and Wales, by CPR rule 7(11) (inserted by Civil Procedure (Amendment No 4) Rules SI 2000 No 2092) claims under s 7(1)(a) can be brought in any court (save for claims in respect of judicial acts which must be brought in the High Court.) [Back] Note 17 Section 7(1)(b). [Back] Note 18 Section 8(1). See further paras 2.19 - 2.21 below. [Back] Note 19 That is, unlawful under s 6(1): see s 8(6). [Back] Note 20 For the purposes of s 8, “damages” means “damages for an unlawful act of a public authority”: s 8(6). [Back] Note 22 Section 6(3)(b). Similarly, there is no remedy under s 6 for a failure to introduce legislation before Parliament, or to make primary legislation or a remedial order: s 6(6). [Back] Note 23 Section 6(3)(a), s 6(3)(b), (5). [Back] Note 24 Lord Irvine of Lairg (Lord Chancellor): Hansard (HL) 3 November 1997, vol 582, col 1232. [Back] Note 25 The Core Guidance for Public Authorities, issued by the Government’s Human Rights Task Force, refers to “obvious public authorities such as a Minister, a Government Department or agency, local authorities, health authorities and trusts, the Armed Forces and the police” (para 19). [Back] Note 26 Cf R v East Berks Health Authority ex p Walsh [1985] QB 152, 162, per Sir John Donaldson MR: “Employment by a public authority does not per se inject any element of public law...” [Back] Note 27 This was the example given by Lord Williams of Mostyn (Parliamentary Under- Secretary): Hansard (HL) 24 November 1997, vol 583, col 758. [Back] Note 28 Section 6(3). “Tribunal” is defined as meaning “any tribunal in which legal proceedings may be brought”: s 21(1). [Back] Note 29 Section 9(3). Proceedings in respect of judicial acts must normally be brought by exercising a right of appeal, or by judicial review: s 9(1). [Back] Note 30 See below, paras 4.82 - 4.84. [Back] Note 31 The right to a remedy in domestic law for breaches of other Articles depends on the right to an effective remedy under Article 13 (which is not one of the Convention rights incorporated under the HRA. See para 2.3 above). [Back] Note 32 See paras 2.26 - 2.27 below. [Back] Note 33 Section 7(1), (3). [Back] Note 34 See Article 1 of the Convention. [Back] Note 35 Applications have been brought, for example, by companies (AGOSI v United Kingdom A 108 (1986), 9 EHRR 1, Tre Traktörer AB v Sweden A 159 (1989), 13 EHRR 309); churches (X and Church of Scientology v Sweden (1979) 16 DR 68), and associations (Plattform ‘Ärzte für das Leben’ v Austria A 139 (1988), 13 EHRR 204 where the application was brought by an association of doctors campaigning against abortion). If the body in question has not been established according to the law of the state concerned, the application must be signed by all the members of the group. See report of the first session of the Commission proceedings, cited in P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights (3rd ed 1998), p 46. [Back] Note 36 Ayuntamiento de M v Spain (1991) 68 DR 209. [Back] Note 37 See for example X v Norway, (1961) Yearbook of the European Convention of Human Rights, vol 4, 270, where a petition concerning abortion was declared inadmissible because the applicant had not claimed to be a victim of the disputed legislation himself. [Back] Note 38 In Campbell and Cosans v United Kingdom (1980) 3 EHRR 531, children attending a school where corporal punishment was practised were held to be sufficiently ‘at risk’ to qualify as victims although they had not themselves received such punishment (see paras 6.237 - 6.238 below). See also Dudgeon v United Kingdom A 45 (1981), 4 EHRR 149 (see para 6.175 below); Norris v Ireland A 142 (1988), 13 EHRR 186 (see para 6.176 below), Open Door Counselling and Dublin Well Woman v Ireland A 246 (1992), 15 EHRR 244 (see para 6.197 below). [Back] Note 39 In Klass v Germany A 28 (1978), 2 EHRR 214 the applicants challenged legislation permitting secret surveillance of mail and telecommunications without notifying the individuals concerned or allowing any challenge to decisions made under it. The Court accepted that the legislation directly affected all users or potential users of post and telecommunications in Germany. In Hilton v United Kingdom (1986) 57 DR 108 (which also concerned security checks applied by the state) this test was qualified: the Commission held that it must be shown that there is a reasonable likelihood that the relevant measure has been taken with regard to the applicant. [Back] Note 40 In Soering v United Kingdom A 161 (1989), 11 EHRR 439 the Strasbourg Court found that a decision to extradite the applicant to the United States where the applicant faced being placed on death row would be a violation of Article 3. The departure from the general rule was justified by reference to “the serious and irreparable nature of the alleged suffering risked” (para 90). See further para 6.17 below. [Back] Note 41 Application no 22492/93, 28 March 2000. [Back] Note 42 See further paras 6.13 - 6.14 below. For other examples of indirect claims brought by those affected by the death of another, see W v United Kingdom (1983) 32 DR 190 and Kaya v Turkey 1998-I p 297, 28 EHRR 1 (discussed at para 6.8 below). [Back] Note 43 See Klass v Germany A 28 (1978), 2 EHRR 214, para 33; Håkansson and Sturesson v Sweden A 171 (1990), 13 EHRR 1, para 46. The Court has refused to recognise any form of actio popularis for the interpretation of the Convention, or any abstract attack on the laws of a Contracting State. [Back] Note 44 If possible the victim must be shown to have consented to the application (X v Germany Yearbook 1 (1955-1957) p 163). Where the victim is not of an age or capacity to authorise such action, the Court will consider “whether other or more appropriate representation exists or is available, the nature of the links between the applicant and the victim, the object and scope of the application introduced on the victim’s behalf and whether there are any conflicts of interest”: See SP, DP and T v United Kingdom Application no 23715/94 (1996), 22 EHRR CD 148. [Back] Note 45 See X v France A 234-C (1991), 14 EHRR 483. The applicant died shortly after the referral of his case to the Court. It was recognised that his parents were entitled to take his place in the proceedings. See also McCann v United Kingdom A 324 (1995), 21 EHRR 97 (discussed at paras 6.5 - 6.6 below), where the claim was brought by representatives of the estate of the deceased, and Deumeland v Germany A 100 (1986), 8 EHRR 448 (para 6.121 below). [Back] Note 46 Confédération des Syndicats Médicaux Français v France (1986) 47 DR 225. [Back] Note 47 In Parliament, the Lord Chancellor referred specifically to the intention that awards of damages should not be made in the Crown Court or Magistrates’ Courts, and stated generally that such awards should only be made by “the civil courts, which traditionally make awards of damages”. He did not refer to the Court of Appeal. See Hansard (HL) 24 November 1997, vol 583, col 844. [Back] Note 48 See Criminal Appeals Act 1968. [Back] Note 49 See Lester & Pannick op cit p 40. The Civil Procedure Rules provide that a claim under s 7(1)(a) of the HRA may be brought in any court (unless the claim is in respect of a judicial act, in which case it must be brought in the High Court). See Rule 7.11, inserted by the Civil Procedure (Amendment No 4) Rules, SI 2000 No 2092. [Back] Note 50 Rights Brought Home: The Human Rights Bill (1997) Cm 3782. [Back] Note 52 Section 9(5). See para 2.13 n 28 above for the definition of ‘tribunal’. [Back] Note 53 See paras 4.36 - 4.39 below. [Back] Note 54 See the examples at para 4.15 below. [Back] Note 56 See further the discussion of the court’s discretion to make an award in Part IV paras 4.33 - 4.42. [Back] Note 57 Though it should be noted that the court has a discretion to permit proceedings “within such longer period as the court considers equitable having regard to all the circumstances.” [Back] Note 58 Limitation Act 1980, ss 2, 11 and 14A. [Back] Note 59 Prescription and Limitation Act 1973, ss 6 and 17. [Back] Note 60 A judicial act is defined as “a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge”. This definition includes tribunals, magistrates and clerks exercising the jurisdiction of a court: s 9(5). [Back] Note 63 Or a person or government department nominated by that Minister: s 9(5). [Back] Note 64 Section 9(4) refers to joining “the appropriate person” who is defined, as indicated, in s 9(5). Such proceedings must be begun in the High Court. See para 2.7 n 15 above. [Back] Note 65 See Benham v United Kingdom 1996-III p 738, 22 EHRR 293. [Back] Note 66 Scotland Act 1998, s 126(1). [Back] Note 67 Scotland Act 1998, s 29(1) and (2)(d). [Back] Note 68 Defined by s 44 of the Scotland Act 1998 as the First Minister, such Ministers as the First Minister may appoint under s 47 of the Act, the Lord Advocate and the Solicitor-General for Scotland. [Back] Note 69 Section 57(3) of the Scotland Act provides that subsection 57(2) does not apply to an act of the Lord Advocate in prosecuting an offence or in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland which, because of s 6(2) of the HRA 1998, would not be unlawful under s 6(1) of that Act. [Back] Note 70 Which have the same meaning as in the HRA 1998: Government of Wales Act 1998, s 107(5). [Back] Note 71 Northern Ireland Act 1998, s 6(2). The Northern Ireland Act provides a number of means whereby the compatibility of proposed legislation with the Convention can be checked. See, for example, ss 11 and 69. See further Lord Lester of Herne Hill and D Pannick (eds), Human Rights Law and Practice (1999), paras 6.23 - 6.31. [Back] Note 72 Section 98(1) states that Convention rights within the Northern Ireland Act 1998 have the same meaning as in the Human Rights Act 1998. [Back]
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